LaPena v. State

544 P.2d 1187, 92 Nev. 1, 1976 Nev. LEXIS 501
CourtNevada Supreme Court
DecidedJanuary 2, 1976
Docket8063
StatusPublished
Cited by17 cases

This text of 544 P.2d 1187 (LaPena 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
LaPena v. State, 544 P.2d 1187, 92 Nev. 1, 1976 Nev. LEXIS 501 (Neb. 1976).

Opinions

OPINION

By the Court,

Zenoff, J.:

Frank LaPena and Rosalie Maxwell were charged as principals in the robbery of Marvin and Hilda Krause and in the murder of Hilda Krause on January 14, 1974. That the robbery and murder occurred is not in issue. Maxwell and LaPena [3]*3appeal from orders denying their petition for habeas corpus. They contend that for lack of sufficient corroborating evidence to the testimony of accomplice Gerald Weakland, who admitted the commission of the crime, they should not be bound over for trial.

LaPena and Rosalie Maxwell apparently believed that Marvin Krause was a man who possessed substantial wealth. Evidently, Rosalie and Krause had been meeting surreptitiously for a period of time prior to the robbery and killing. Weakland testified at the preliminary hearing that he was hired by LaPena to kill Hilda Krause so that Rosalie would be in a position to enjoy Krause without interference from his wife. LaPena would profit because he was Rosalie’s true lover and he would stand, he hoped, as a pecuniary beneficiary to the Krause-Maxwell relationship.

NRS 175.291(1) provides:

“A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Since Weakland is an accomplice we must determine what evidence is present independent of the accomplice testimony to connect LaPena and Maxwell with the crime. The necessary corroboration need not be found in a single fact or circumstance, rather several circumstances in combination may satisfy the statute. If circumstances and evidence from sources other than the testimony of the accomplice tend on the whole to connect the accused with the crime charged, it is enough. LaPena v. Sheriff, 91 Nev. 692, 541 P.2d 907 (1975); Lamb v. Bennett, 87 Nev. 89, 482 P.2d 298 (1971).

The composite of facts and circumstances as established by the testimony of many witnesses take the two accused beyond the status of mere casual association with Weakland. See Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975); Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971); Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). From the testimony of other witnesses it is established that LaPena was not merely an acquaintance of Weakland, as we noted in LaPena v. Sheriff, supra, but one who with Maxwell had a motive to get rid of Hilda Krause and who was therefore linked inculpably to Weakland in a criminal scheme.

[4]*4Among the witnesses were persons related to Weakland, brothers, sister-in-law and former wife, all of whom had been brought into contact with Frank LaPena by Weakland, as well as others. Their testimony concerned events and conversations that transpired proximately before and after the crimes were committed.

For a short period preceding the offenses, Jerry Weakland lived in the residence of his sister-in-law, Sandra. She testified to receiving phone calls from a “Frank” at her home. The telephone number she noted was traced at the preliminary hearing to Frank LaPena. She eventually was introduced to LaPena by Weakland and she knew of no other acquaintance of Jerry’s who bore the same first name of “Frank.”

Additionally, in the daylight hours after the crimes were committed Weakland brought a portable TV set to her home. A portable TV set was part of the loot from the robbery. She added that the TV set was quickly taken from her dwelling by Jerry’s brothers and destroyed, which as they testified was because of the surveillance of Jerry by the police after January 14.

Certain jewelry was taken from the Krauses by the culprits, principally a watch and a ring. Jerry gave a friend and a brother a watch and a ring that answered the description of the Krause jewelry. Gail had been taken to Rosalie Maxwell’s residence prior to the commission of the crimes by her former husband and after the crimes she was sent twice by Weakland to pick up cash from LaPena. Weakland also showed his ex-wife, Gail, $1,000 in cash in $100 bills that came suddenly into his possession at or about the time of the robbery and murder. She also saw him hide a watch and a ring a few hours after the time the crimes were committed.

Weakland testified that he borrowed his former wife’s 1973 Monte Carlo automobile at 3:00 a.m., January 14. Together with Thomas Boutwell they drove to a point near the Krause residence and parked it. After gaining entrance to the house he detailed how Boutwell tied up Marvin Krause and took him to a room away from where they met Hilda Krause. Jerry then hit Marvin Krause over the head with a .38 caliber pistol rendering him unconscious. Boutwell proceeded to strip Krause of his jewelry and what little cash he found on Krause’s body. At the same time Weakland took Mrs. Krause to another room, bound her arms behind her, fashioned her with a gag and hit her on the head with his fist which was covered with a black leather glove. He had obtained, prior to this event, a pair of black leather lead-filled gloves from LaPena. While she was thus unconscious, [5]*5he turned her face down, pulled her head up by the hair and cut her throat.

Boutwell was in another part of the house at the time apparently unaware of the murder. Together they carried the TV set outside to Krause’s Cadillac automobile and drove to the Monte Carlo car. When they were moving the TV set into the rear portion of Gail Weakland’s automobile a comer of the TV set ripped the liner of the car top. Gail testified she recalled that her car was in good shape when Jerry borrowed it but that when it was returned she noted the tear in the roof. This occurred during the morning hours following the murder.

Gail corroborated Weakland’s testimony that together they went to Lake Havasu after the crimes (although she did not know that crimes had been committed) and that she was present when Weakland attempted to call LaPena long distance from their motel room, to which the motel manager also testified.

Gail testified further and variously about Weakland sending her to LaPena for money on two occasions, that she returned the black gloves to LaPena at the Hacienda Hotel under furtive circumstances and even that prior to January 14 he showed her a hand-drawn map of the Krause residence which he later destroyed in her presence.

Rosalie Maxwell admitted to a detective that she was a sexual companion to Marvin Krause while his wife was out of the city; that Krause gave her money from time to time; and that Krause was her “live one” but Frank LaPena was her true lover. The totality of the testimony and evidence are supportive of inferences that Rosalie Maxwell and LaPena sought to eliminate Hilda Krause so that Rosalie and LaPena would be in a position to enjoy Krause’s wealth without Hilda’s interference. For this, Weakland was to be paid $10,000 by the end of the year.

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Related

Cheatham v. State
761 P.2d 419 (Nevada Supreme Court, 1988)
Weakland v. Board of Parole Commissioners
678 P.2d 1158 (Nevada Supreme Court, 1984)
Burns v. State
618 P.2d 881 (Nevada Supreme Court, 1980)
Sheriff v. Gordon
606 P.2d 533 (Nevada Supreme Court, 1980)
Globensky v. State
605 P.2d 215 (Nevada Supreme Court, 1980)
LaPena v. State
604 P.2d 811 (Nevada Supreme Court, 1980)
Farmer v. State
603 P.2d 700 (Nevada Supreme Court, 1979)
Miller v. Sheriff
592 P.2d 952 (Nevada Supreme Court, 1979)
Franklin v. State
577 P.2d 860 (Nevada Supreme Court, 1978)
Farmer v. Sheriff
569 P.2d 939 (Nevada Supreme Court, 1977)
Fish v. State
549 P.2d 338 (Nevada Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
544 P.2d 1187, 92 Nev. 1, 1976 Nev. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lapena-v-state-nev-1976.