Furbay v. State

998 P.2d 553, 1 Nev. 481, 116 Nev. Adv. Rep. 55, 2000 Nev. LEXIS 66
CourtNevada Supreme Court
DecidedMay 4, 2000
DocketNo. 31857
StatusPublished
Cited by25 cases

This text of 998 P.2d 553 (Furbay v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Furbay v. State, 998 P.2d 553, 1 Nev. 481, 116 Nev. Adv. Rep. 55, 2000 Nev. LEXIS 66 (Neb. 2000).

Opinion

OPINION

Per Curiam:

On appeal from a judgment of conviction of first degree murder and robbery, Harold Furbay argues that (1) his right to a speedy trial was violated, (2) his motion for self-representation was improperly denied, (3) there was insufficient evidence to convict him of murder and robbery, and (4) he was denied a fair penalty hearing. We reject Furbay’s contentions and affirm his conviction and sentence.

In late 1991, Furbay met Max Combs at a truck stop in El Paso, Texas. Combs allowed Furbay to join him as he journeyed to Elko, Nevada. Their trip was interrupted when a Lake Mead park ranger impounded Combs’ vehicle. Combs did not have sufficient funds to redeem his vehicle, so Furbay searched for employment in Las Vegas.

Furbay began assisting Walter Jerry Mitchell with his pony ride business. Two weeks later, Furbay brought a man matching Mitchell’s description to Combs’ hotel. They arrived in a vehicle matching the description of Mitchell’s pickup truck. Two weeks after that, Furbay arrived at Combs’ hotel with the truck but without Mitchell. Furbay indicated that Mitchell was out of town and had permitted him to use the vehicle. Mitchell’s television and other personal items were in the back of the truck. Furbay and Combs decided to continue their journey to Elko in Mitchell’s truck. In Elko, Furbay tried to pawn some items, but was turned away for inadequate identification. Combs sold a silver and turquoise ring at a jewelry and loan establishment. Combs later revealed to police that Furbay sold a television and VCR in Las Vegas before leaving for Elko. After arriving in Elko, Furbay and Combs parted ways.

Mitchell’s body was found in Las Vegas on January 11, 1992. Mitchell had been killed by blunt trauma to the head and strangulation. In the aftermath of Mitchell’s death, Mitchell’s wife, who did not live with him, discovered a bill for telephone calls to [484]*484Baltimore, Maryland, placed on January 9 and 10, 1992. Many of Mitchell’s personal items, including silver and turquoise jewelry, a television, and a VCR, were also missing from his home.

Back in Elko, Furbay met Ricky Loftis from Moab, Utah. Furbay introduced himself as Jerry Mitchell. Loftis recently drove to Elko, but he was out of gas and money. Furbay asked Loftis to pawn some of Mitchell’s items, but Loftis was turned away for lack of identification. Loftis later sold a silver and turquoise watch in a parking lot, and a hitchhiker agreed to pawn other items. After Loftis sold his truck, the two agreed to travel to Moab in Mitchell’s truck. Before leaving, Furbay switched the license plates on Mitchell’s truck with those on Loftis’ truck.

During the trip to Moab, Loftis became suspicious of Furbay and decided to notify the police. After both were arrested, the police found an identification card for Jerry Mitchell in Furbay’s wallet. After further investigation, Furbay’s fingerprints were found in Mitchell’s home. The police also discovered that the phone calls to Maryland were to Furbay’s sister and a friend.

Following a jury trial beginning on October 20, 1997, Furbay was found guilty of first degree murder and robbery.

Right to a speedy trial

Furbay argues that his right to a speedy trial was violated because his jury trial did not occur until five and one-half years after his arrest in 1992.

In Nevada, a defendant has a statutory right to a trial within 60 days after arraignment. See NRS 178.556(2). However, a defendant can waive this statutory right and such a waiver can be expressed by counsel. See Schultz v. State, 91 Nev. 290, 292, 535 P.2d 166, 167 (1975). In this case, Furbay’s counsel waived application of the 60-day rule at Furbay’s arraignment.

A defendant’s fundamental constitutional right to a speedy trial was decided in Barker v. Wingo, 407 U.S. 514, 515 (1972). In Barker, the U.S. Supreme Court stated that there is no fixed time that indicates when the right to a speedy trial has been violated; thus, the right is assessed in relation to the circumstances of each case. See id. at 521. The prosecution, however, must discharge its “constitutional duty to make a diligent, good-faith effort to bring [the defendant to trial].” Moore v. Arizona, 414 U.S. 25, 26 (1973) (citations omitted). When determining whether the right to a speedy trial was violated, four factors should be considered: (1) length of delay; (2) the reason for the delay; (3) the defendant’s [485]*485assertion of his right; and (4) prejudice to the defendant. See Barker, 407 U.S. at 530.

During the intervening five and one-half years between Furbay’s arrest and his jury trial, his trial was continued nine separate times. While Furbay invoked his speedy trial rights in open court, the second factor of the Barker analysis weighs overwhelmingly in favor of the prosecution. Defense counsel requested five of the trial continuances. Two other trial dates were continued because the parties entered into plea negotiations which failed. Another trial date was continued for good cause because the prosecution could not locate a witness. And another trial date was continued because the prosecutor wished to attend a seminar. Thus, all but one of the continuances were for good cause or were occasioned by defense motions or tactics. See, e.g., Barker, 407 U.S. at 530. We conclude that the two-month postponement for the prosecutor’s seminar attendance was unacceptable delay; however, this is the only unacceptable delay in the five-and-one-half year period, and therefore, we hold there was no infringement of Furbay’s constitutional speedy trial right. There was no evidence that the actions of the prosecution prejudiced Furbay.

Right to self-representation

A defendant has a constitutional right to personally make his defense. See Faretta v. California, 422 U.S. 806, 819 (1975). To determine whether a defendant can represent himself, courts conduct a two-part inquiry. First, the defendant must be competent to waive his right to assistance of counsel. See Godinez v. Moran, 509 U.S. 389, 399 (1993). Second, when an accused relinquishes his right to counsel, he must do so “knowingly and intelligently.” Faretta, 422 U.S. at 835. An accused’s “technical legal knowledge, as such, is not relevant to an assessment of his knowing exercise of the right to defend himself.” Id. at 836.

By August 1994, Furbay had filed three motions to dismiss counsel as ineffective—all of which were denied. Furbay filed a motion to represent himself when the court refused to appoint other counsel. This motion was also denied. The record indicates that Furbay was aware of the dangers of proceeding without counsel at trial. However, it is unclear whether Furbay was aware that the prosecution was seeking the death penalty. Although the prosecution filed a notice to seek the death penalty, the record does not show that Furbay understood that the prosecution could seek

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Cite This Page — Counsel Stack

Bluebook (online)
998 P.2d 553, 1 Nev. 481, 116 Nev. Adv. Rep. 55, 2000 Nev. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/furbay-v-state-nev-2000.