FRANK RALPH LaPENA and ROSALIE MAXWELL, Appellants, v. THE STATE OF NEVADA, Respondent
LaPena v. State
Mowbray and Thompson, JJ., concur.
FRANK RALPH LaPENA and ROSALIE MAXWELL, Appellants, v. THE STATE OF NEVADA, Respondent.
FRANK RALPH LaPENA and ROSALIE MAXWELL, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 8063
January 2, 1976
544 P.2d 1187
Goodman and Snyder, and Douglas G. Crosby, of Las Vegas, for Appellants.
Robert List, Attorney General; George E. Holt, District Attorney, and Dan M. Seaton, Deputy District Attorney, Clark County, for Respondent.
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 appeal 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.
Among 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, he 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.
One of Weakland's brothers told of instructions from Jerry that if Jerry were ever in circumstances where he needed money, the brother was to see "Frank" and he would get some.
Additional permissible inferences can be drawn from the testimony of Bobby Webb, Mary Bordeaux and police officer Avants. LaPena v. Sheriff, supra; Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969). Weakland, the accomplice and coconspirator, told Webb of the contemplated robbery and indicated that a friend of his had supplied him with a map to the apartment, that he had given him information on what time Krause was to leave the apartment and that the thing was well planned. This was before the crimes were perpetrated.
After the crimes were committed, Weakland told Webb that his friend's girl friend would marry Krause and that she would pay him the money. Finally, after the crimes, Weakland told Webb that "if the police ever ask you if you know Frank, say no"; and Weakland said, "and you know who I am talking about," to which Webb replied, "yes." Webb then identified Frank as the Frank LaPena in court.
It is permissible to infer that the individuals to whom Weak-land was referring in his extra-judicial statements to Webb were LaPena and Maxwell.
Although the magistrate found Webb to be an accomplice (whether this was appropriate was not presented as an issue on appeal), Webb's testimony was corroborated by Mary Bordeaux, by Gail Weakland and by officers Avants and Lee.
Maxwell told police officers Avants and Lee of her involvement with Krause, her knowledge of his wealth, Krause's proposals of marriage and her true love for Frank LaPena. The permissible inferences from her testimony tie directly to the statements made by Weakland to Webb and support the conspiracy theory of the state.
All of the foregoing "tends to connect" LaPena and Maxwell with the crimes charged. The hearsay statements of Weakland to Webb are admissible under Goldsmith v. Sheriff, supra, and not "testimony" of an accomplice within NRS 175.291.
The witnesses who testified corroborating WeaHand's testimony do not appear to have been motivated by self-serving purposes. For example, WeaHand's ex-wife, Gaü, had often been beaten up by him, three times severely enough to cause her to be hospitalized. The most recent such incident occurred at the time of the events surrounding the Krause murder and robbery. It is doubtful that she would shade her testimony to favor him.
Although Wealdand's participation in these crimes may have warranted a more serious charge than second-degree murder, plea bargaining is permissible. Until legislatively forbidden, or otherwise, his testimony in exchange for a lesser accusation carries whatever weight a magistrate or jury want to give it. For our present purposes the evidence as related is inculpatory and corroborative.
Affirmed.
Mowbray and Thompson, JJ., concur.