Reports of Cases Determined by the Supreme Court Of
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90 Nev. 1, 1 (1974) REPORTS OF CASES DETERMINED BY THE SUPREME COURT OF THE STATE OF NEVADA ____________ Volume 90 ____________ 90 Nev. 1, 1 (1974) Rhodes v. Rhodes GORDON STANLEY RHODES, Appellant, v. GILDA JEAN RHODES, Respondent. No. 7066 January 8, 1974 517 P.2d 1007 Appeal from portions of divorce decree concerning property, First Judicial District Court, Carson City; Frank B. Gregory, Judge. Affirmed. Je rry Collier Lane, of Carson City, for Appellant. Fondi & Banta, of Carson City, for Respondent. OPINION Per Curiam: We have reviewed the entire record; the evidence justifies 90 Nev. 1, 2 (1974) Rhodes v. Rhodes 1 the trial court's property distribution; the decree is in all respects affirmed. ____________________ 1 Mowbray, J., being disqualified, the Governor appointed Waters, D. J., to sit in his stead. While this appeal was under submission, Waters, D. J., died. As this case involves no novel points of law, but simply review of the record, which we find entirely adequate to support the trial court, said appeal is disposed of by a quorum of the Court. Nev. Const, art. 6, § 2. ____________ 90 Nev. 2, 2 (1974) Paulette v. Sheriff LLOYD LEONARD PAULETTE, Appellant, v. SHERIFF, CLARK COUNTY, NEVADA, Respondent. No. 7195 January 14, 1974 517 P.2d 786 Appeal from a order denying a pretrial petition for a writ of habeas corpus, Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge. Affirmed. Morgan D. Harris, Public Defender, and Thomas D. Beatty, Chief Deputy Public Defender, Clark County, for Appellant. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent. OPINION Per Curiam: Indicted for two counts of murder (NRS 200.010) by the Clark County Grand Jury, appellant sought pretrial habeas relief in the district court. In this appeal from the order denying that relief, he contends (1) he is not subject to prosecution in this state because he is a foreign national; and, (2) the evidence submitted to the grand jury was insufficient to establish probable cause. Appellant is one of three foreign nationals charged, on the same evidence in a single indictment, with the identical crimes. One of the co-defendants, Claude Theriault, previously raised the identical issues now raised by Paulette, which we considered and rejected, as being without merit, in Theriault v. 90 Nev. 2, 3 (1974) Paulette v. Sheriff 1 Sheriff, 89 Nev. 506, 515 P.2d 397 (1973). The other co-defendant, Robert Gordon Johnstone, also challenged the indictment on the lack of probable cause. We considered and rejected that contention in Johnstone v. Lamb, 89 Nev. 38, 505 P.2d 596 (1973). The order of the trial court is affirmed. ____________________ 1 Theriault also challenged the jurisdiction of Nevada courts to try a foreign national for a crime committed in this state in an original proceeding in prohibition, filed in this court as case No. 6983. We denied his petition for the extraordinary writ of prohibition in an unreported Order. ____________ 90 Nev. 3, 3 (1974) Sheriff v. Hodges SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. BILLY HODGES, Respondent. No. 7539 January 15, 1974 517 P.2d 1006 Appeal from an order granting a writ of habeas corpus, Eighth Judicial District Court, Clark County; William P. Compton, Judge. Appeal by a sheriff from an order of the district court granting a writ of habeas corpus to a person accused of selling heroin to a named police officer on the ground that the proof at the preliminary examination showed instead that the sale was consummated through a third-party undercover agent. The Supreme Court held that the fact that the undercover agent delivered the money to the accused and the heroin to the officer did not insulate the accused from prosecution. Reversed. Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark County, for Appellant. Eric Zubel, of Las Vegas, for Respondent. Drugs and Narcotics. Fact that, although criminal complaint charged accused with selling heroin to named police officer, proof at preliminary hearing showed that sale was made through intermediary, an undercover ! 90 Nev. 3, 4 (1974) Sheriff v. Hodges agent, did not insulate accused from prosecution for sale. NRS 453.161, 453.321. OPINION Per Curiam: A criminal complaint charged that respondent sold two (2) balloons of diacetylmorphine (heroin) to Las Vegas Police Officer Kent Clifford, in violation of NRS 453.321 and NRS 453. 161. After a preliminary examination respondent was ordered to stand trial for the offense and a criminal information was then filed in the district court. Thereafter, respondent filed a pretrial petition for habeas corpus, contending the information was fatally defective because the proof adduced at the preliminary examination showed the sale had been made to an undercover agent, acting as an intermediary, and not to Officer Clifford. The district court agreed and granted the writ of habeas corpus. Appellant contends the writ was improperly issued. The sole issue we need to resolve is whether or not an accused is subject to prosecution for the sale of a controlled substance when the proof adduced at the preliminary examination shows the sale was consummated through a third party. We conclude that, in the factual context of this case, respondent is subject to prosecution. The record reflects that Officer Clifford, together with an undercover agent, drove to the Las Vegas west side and parked his car some 10 to 15 feet from the rear entrance of Kelly's Liquor Store. The undercover agent got out of the car and met respondent near the rear entrance to the store. After negotiating a price for the heroin the agent walked back to the car and reported to Officer Clifford. Clifford, being satisfied with the terms, gave the undercover agent the agreed amount of money. The agent walked back to respondent, exchanged the money for the heroin, and delivered it to Officer Clifford. Clifford testified that he could not hear all of the conversation between Hodges and the agent but that he did visually observe the entire transaction, which took place in broad daylight. Our legislature has made it “unlawful for any person to sell, exchange, barter, supply or give away a controlled or counterfeit substance.” NRS 453.321(1). Whether Hodges made the sale directly to Officer Clifford, or through the conduit of the undercover agent, is neither determinative of, nor critical to, the issue of whether or not the crime was committed. Under our statute it is not necessary that the buyer deal " ! 90 Nev. 3, 5 (1974) Sheriff v. Hodges directly with the seller in order to sustain the charge. See People v. Taylor, 338 P.2d 377 (Cal. 1959), which held that the fact that the parties dealt with each other through a third person was immaterial, and such proof was sufficient to sustain a conviction. Compare Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968), where the accused was charged with the unlawful sale of narcotics to an informer. The proof in Tellis, as here, showed the parties had dealt with each other through an intermediary and we affirmed the conviction. Reversed. ____________ 90 Nev. 5, 5 (1974) Price v. First Nat'l Bank of Nevada MARY G. PRICE, Administratrix of the Estate of DELBERT GREEN, Deceased, Appellant, v. THE FIRST NATIONAL BANK OF NEVADA, Executor of the Estate of M. C. SINNOTT, Deceased, and HILDA SINNOTT, Doing Business as SINNOTT MOTEL, Respondents. No. 7076 January 16, 1974 517 P.2d 1006 Appeal from judgment entered on jury verdict by the Fifth Judicial District Court, Mineral County; Kenneth L. Mann, Judge. Affirmed. Peter L. Flangas, of Las Vegas, for Appellant. Richard P. Wait, of Reno, for Respondents. OPINION Per Curiam: The rulings of the district court which appellant assigns as error have not been shown to be inconsistent with substantial justice. The judgment is affirmed. NRCP 61. ____________ 90 Nev. 6, 6 (1974) Varner v. State DUANE VARNER, Appellant, v. STATE OF NEVADA, Respondent. No. 6961 January 16, 1974 518 P.2d 43 Appeal from judgment of conviction and sentence of the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge. Defendant was convicted in the district court of forgery and of uttering a forged instrument, and he appealed. The Supreme Court held that defendant's Fourth Amendment rights were not violated by search of his room in parents' home with parents' consent; that defendant was not prejudiced by admission of photographic identification display concerning an alleged accomplice; and that defendant had no basis for complaint with respect to identification before the jury of documents which were ultimately held inadmissible. Affirmed. Hal ley and Halley, of Reno, for Appellant. Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy, Washoe County, for Respondent. 1. Searches and Seizures. Where defendant who occupied a room in his parents' home was merely a guest at the sufferance of his parents, who retained full right of control over the premises, contrary to defendant's contention that he was a tenant within full right of control over his room, defendant's Fourth Amendment rights were not violated when the police searched his room with his parents' consent. U.S.C.A.Const. Amend. 4. 2. Criminal Law. Voluntariness of defendant's consent to search of his vehicle was a question of fact to be determined from all the circumstances. U.S.C.A.Const. Amend. 4. 3. Criminal Law. Defendant failed to demonstrate prejudice from admission of photographic identification display which pertained to an alleged accomplice who was not a defendant in the instant action.