Schnepp v. Fogliani

425 P.2d 141, 83 Nev. 131, 1967 Nev. LEXIS 241

• Court: Nevada Supreme Court
• Decided: March 16, 1967
• Docket: 5175
• Status: Published

Opinions

OPINION

By the Court,

Zenoff, J.:

Donald Schnepp and á codefendant were convicted of burglary. The conviction was affirmed on appeal. (Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966).) He now seeks habeas corpus for post conviction relief on the ground that he was deprived of a fair trial before 12 impartial jurors because of an incident that occurred during the trial. The remedy is appropriate. Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966).

During a late morning recess of the second day of the trial the petitioner, his codefendant, two deputies from the sheriff's office and a member of the jury were riding in the elevator in the courthouse. One deputy sheriff made the statement, “This little one (pointing at the petitioner) went in the place [burglarized], the big one (pointing at the co-defendant) is too big to go in the place, he drove the get away car.” There were also jocular remarks referring to Schnepp’s ability to coerce the codefendant to accompany Schnepp since Schnepp is slight and the codefendant weighed about 300 pounds.

The incident was called to the attention of the trial judge who, informally and in chambers, determined that the matter was not serious. He ordered the trial to proceed but did admonish the jury in the statutory manner to decide the case only as the case is submitted to them.

1. The point now in issue was not raised when the conviction was first appealed to this court. Since then, Parker v. Gladden, 385 U.S. 363, 17 L.Ed.2d 420 (1966), was decided by the U.S. Supreme Court. Extrajudicial remarks in the presence of jurors have assumed different proportions. There, it was held that the remark of the bailiff, “Oh, that wicked fellow, he is guilty,” to certain jurors, despite its lack of Tarzan-like quality, deprived the defendant of his right to be adjudged by 12 impartial and unprejudicial jurors and was inherently prejudicial. Cf. Turner v. Louisiana, 379 U.S. 466, 472-473 (1965); Patterson v. Colorado, 205 U.S. 454, 562; Sheppard v. Maxwell, 384 U.S. 333 (1966); Pointer v. Texas, 380 U.S. 400 (1965).

In this case, the two officers were in charge of the defendants who were prisoners of the state. Their duties were to safeguard the prisoners and insure their attendance in court during the trial. The comments made in the elevator were meant in jest but they were not funny to the defendant whose liberty was at stake. State v. Cotter, 54 N.W.2d 43 (Wis. 1952). The presence of the juror precluded any right on the part of the officers to be “good fellows” for the badge and uniform clothed them with the dignity of the state, the impact of which cannot be measured. The remarks bore directly on the guilt or innocence of the defendant. Parker v. Gladden, supra, declares that these circumstances create prejudice inherently harmful, incapable of rebuttal. When so deep-rooted, as here, an admonition to the jury provides no help. Cf. State v. Pacheco, 82 Nev. 172, 414 P.2d 100 (1966); Parker v. Gladden, supra.

It is ordered that the writ of habeas corpus must issue and Schnepp be discharged unless the state gives him a new trial within a reasonable time. (Pate v. Robinson, 383 U.S. 375, 386 (1966).) We commend the efforts of court-appointed counsel and direct the sum of $350.00 be paid him upon the filing of the appropriate certificate.

Thompson, C. J., concurs.