Walker v. Fogliani ( 1967 )

Collins, J.,

dissenting:

I cannot agree with the reasons given by the majority of the court in reversing the conviction and granting a new trial. In effect the majority opinion reverses a prior decision of this court. Shambles are being made of the ancient doctrine of “the law of the case.” “It is a rule universally recognized by the Courts that a decision once made upon due deliberation ought not to be disturbed by the same Court, except upon the most cogent reasons and upon undoubted manifestation of error.” Linn v. Minor, 4 Nev. 462, 465 (1868). “Whenever a cause has been once fairly tried and finally determined, by a competent tribunal, the same questions, as between the same parties, ought not to be tried over again. They should be considered as forever settled. This rule is necessary for the repose of society. It is in the interest of the public that there should be an end of litigation.” McLeod v. Lee, 17 Nev. 103, 112 (1882). Points once settled in the Supreme Court should not be unsettled except for very weighty reasons. Nev.-Cal. Transportation Co. v. Commission, 60 Nev. 317, 108 P.2d 850 (1941).

Furthermore, the reversal is on fewer grounds of contended error than were before this court previously. My colleagues accept the finding of the trial judge on the evidentiary hearing held pursuant to order of the Ninth Circuit Court of Appeals regarding the confession. Thus they accept as true the deputy warden’s statement that Walker did not request an attorney prior to talking to the district attorney of Washoe County in Ardmore, Oklahoma. That being so, the confession was properly admitted in evidence by the original trial court and the jury could give it such weight as it chose.

Three errors remain, all of which were specifically passed upon by this court previously, Walker v. State, 78 Nev. 463, 376 P.2d 137 (1962), and ruled harmless. They include (1) the remark of the prosecuting attorney in his opening statement to the effect that appellant was apprehended in the Oklahoma State Penitentiary; (2) the asking by the prosecution of a question of a witness during the presentation of the prosecution’s case in chief concerning homosexuality when the prosecution, after objection, admitted that he could not connect the subject of homosexuality with appellant; and (3) the refusal to grant the motion of defense counsel for the production of a written report of the investigation made by a police officer who testified for the prosecution.

It becomes pertinent to recall what this court previously said about those points, especially in view of the now changed posture of the case where admission of the confession of Walker is no longer a point of contention. Regarding point (1), this court said at page 466, 78 Nevada, “In his opening remarks to the jury the district attorney, over the objection of appellant, was permitted to state that appellant was apprehended at the Oklahoma State Penitentiary in McAlester, Oklahoma.

“This statement was improper because it connotes the commission of an offense by appellant other than the one for which he was being tried. The objection, therefore, should have been sustained. State v. Lindsay, 63 Nev. 40, 161 P.2d 351.

“The appellant, however, was not prejudiced by this opening remark because the place of apprehension was contained in appellant’s written confession and mentioned by him in his oral testimony.” Walker’s confession being ruled admissible, the error clearly becomes harmless.

As to point (2), this court said on pages 466 and 467 of 78 Nevada, “During the direct examination of prosecution witness Gladden, the district attorney asked: ‘Now, based on your experience as a deputy warden at the Oklahoma State Penitentiary, and your some eight years’ experience altogether at the prison, and based on your close contact with the inmate personnel, can you state the incidence of homosexuality with the inmate population?’

“Appellant’s counsel objected to the question and moved that it be stricken from the record.

“The district attorney maintained that the question was relevant to motive, saying: ‘One of the theories of the State’s case will be that, in addition to robbery, this was a homicide in the perpetration of a homosexual act.’ However, when questioned by the court, he admitted that he did not intend to show that Gladden had any knowledge of the appellant in this respect.

“The district attorney erred in asking the question, but no intentional misconduct appears as would justify a reversal on that ground. People v. Doetschman, 69 Cal.App.2d 486, 159 P.2d 418.

“The court sustained the objection and stated to the jury: ‘The Court instructs you that under all the facts and circumstances of this case, and the state of the evidence to date, this is an improper question. The Court has sustained an objection to it. I ask you to completely disregard it, wipe it out of your minds, and let it have no more effect upon you than if this question had never been asked.’

“Appellant did not move for a mistrial. As heretofore stated, he objected to the question and moved that it be stricken. The court’s action was in exact compliance with appellant’s request and, consequently, he cannot complain of the court’s ruling in this regard. In view of appellant’s admissions that he committed the homicide in question, we are of the opinion that the mere asking of the question did not affect any substantial right of the appellant or prevent him from having a fair and impartial trial.” We again are concerned with the jury’s trustworthiness in following an explicit instruction from the trial court as to the performance of its duty. The immediate prejudice was not so apparent at the exact moment of the happening of the event as this court noted, because appellant did not then move for a mistrial. The whole atmosphere of prejudice, or the lack of it, could have been deeply and realistically explored by the trial court and counsel at the very moment it took place. Appellant’s counsel was, for the moment, satisfied with the court’s ruling which found no prejudice to have existed. Are we, or any other appeal court, so perceptive or clairvoyant to be able now, some six years later, from a cold, printed record to substitute our judgment for that of the trial judge and counsel on the scene and engaged in the proceeding? The time to make a critical determination of prejudice is at and during the trial by the trial judge when the parties, their counsel, the jury and all other relevant factors to make a rational judgment are present. This court in its earlier opinion on the exact point and for solid reasons found the error to be harmless. I agree and do not feel we are warranted or compelled, as my colleagues believe, to reconsider the point. Otherwise, we in the judiciary are making determination of public and private rights under the law an endless treadmill dependent upon the ebb and flow of legal opinion to the end we are gobbled up by refinement on top of refinement.

Turning to the third point, this court said on pages 468 and 469 of 78 Nevada, “Nevada Wise, a Reno police officer, who on September 24, 1960, spent two hours examining the pickup camper, its contents, and the body of the victim, testified on cross-examination that he had made a written report of this investigation. Appellant thereupon made a motion to produce the written report so that he could further cross-examine the witness. This motion was denied. We are of the opinion that the trial judge should have granted the motion to produce. State v. Bachman, 41 Nev. 197, 168 P. 733; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881. Its refusal to do so is not reversible error if no substantial right of the appellant was prejudiced by the trial court’s erroneous ruling. NRS 169.110.

“Wise testified on direct examination that he had gone to the pickup camper to photograph the scene and to process it for latent fingerprints, and that he took photographs of the exterior and interior of the camper. Some of these photographs were received in evidence after Wise had testified that they correctly and accurately portrayed that which they purported to portray. Wise also identified certain articles received in evidence which appeared in the photographs. This testimony was corroborated by Officers Williams and Manin who were present while Wise was making the investigation and taking the photographs. The photographs depicted a stab wound in decedent’s back, the tied hands, and blankets and other articles covering the body.

“Appellant in his written confession admitting stabbing and tying the hands of the victim and later covering the body. At the trial he testified that the confession as given was accurately transcribed except for certain discrepancies which he pointed out and described as being very minor.

“Under these circumstances we cannot conceive how Wise’s testimony could have been materially impeached by his written statement, or how the failure to furnish appellant the statement was in any way prejudicial.”

Can we say that this court did not give fair and candid consideration to the point? Perhaps if I were called upon to pass upon the point initially I might have taken a different stand. However, I am impressed with the point made by Mr. Justice Thompson in his dissent where he said at page 478, “Though the rule announced in Jencks [353 U.S. 657 (1957)] appears, at this time, to be a rule of procedure and not binding on state courts, it is most persuasive.” However, when this one procedural error is balanced against all other admissible evidence, including the appellant’s confession, I am persuaded it is harmless, notwithstanding severity of the punishment inflicted upon Walker. I do not feel Pointer v. Texas, 380 U.S. 400 (1965), relied upon by the majority, is controlling authority on this point.

That brings us to the point whether we are bound to follow the expression of opinion of the Ninth Circuit Court of Appeals, Walker v. Fogliani, 343 F.2d 43, at 48, when it states, “No present purpose would be served by extended and detailed discussion of the second ground of appellant’s petition, that in which it is urged that an accumulation of errors in the state trial proceedings resulted in a trial so substantially unfair as to violate federal requirements of due process. Conceding that the contention presents an issue worthy of serious consideration, our meeting it now would overlook the possibility of its elimination by future developments in orderly and proper procedure.” I feel we have the right and duty to make our own judicial determination upon the issues and apply the law, both state and federal, as we understand it, under our oath as judges. As state judges, I believe our role is to give practical effect and meaning to the decisions of the United States Supreme Court, and to apply them faithfully when duty requires it. But where the facts are different, even by a shade, we should be realistic and practical in our judicial pronouncements. We should follow cautiously, not try to outleap the federal courts.

The majority opinion relies heavily upon the case of Chapman v. California, 386 U.S. 18 (1967). I do not read Chapman to be applied retroactively, nor has the Supreme Court so ruled yet. Moreover, the majority opinion in that case said at page 4, “We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for ‘errors or defects which do not affect the substantial rights of the parties.’ 28 U.S.C. § 2111. None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules. All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not resulting in the automatic reversal of the conviction.”

Chapman further holds, “We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Where have the majority demonstrated in their opinion that the errors are of such a fundamental constitutional nature?

Finally, in view of the analysis of the evidence and errors set forth above, it appears to me, while a matter of exceedingly fine judgment, the errors were harmless beyond a reasonable doubt.

I respectfully dissent.