Sheriff v. Potter
Sheriff v. Potter
Opinion of the Court
An information charged respondent Richard Potter (Potter) with two counts of robbery, a felony (NRS 200.380). The district court granted a pretrial petition for writ of habeas corpus on the ground that there was not sufficient evidence before the magistrate to establish probable cause to believe that Potter had committed the offense charged in the second count. Appellant Sheriff of Clark County has appealed from the order granting the petition. We reverse.
This court’s review is limited to whether the district court committed substantial error in determining that there was no probable cause. Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981).
The evidence before the magistrate consisted solely of preliminary hearing testimony from Lora Estrada (Estrada), one of the two alleged victims. The substance of her testimony is as follows. On September 3, 1982, shortly after ten o’clock at night, Estrada was hitchhiking with Lois Toledo (Toledo) in Las Vegas. The two women were picked up by two men identified at the hearing as Potter and his co-defendant Ricky Foote (Foote), who was driving. The four agreed that Toledo would supply gas money and the men would drive both women first to the Western Union office and then to the airport. After
The district court granted the petition for writ of habeas corpus solely on the ground that the evidence linking Potter to the commission of the offense charged in the second count of the information (the robbery of Lois Toledo) would not support a finding of probable cause that Potter had committed the robbery.
Probable cause to support an information may be based on slight, even “marginal” evidence. Sheriff v. Lyons, 96 Nev. 298, 607 P.2d 590 (1980); see Sheriff v. Miley, 99 Nev. 377, 663, P.2d 343 (1983). Potter argued in support of his petition that Estrada’s testimony was not fully consistent. However, “[w]hen the evidence is in conflict at the preliminary examination it is the function of the magistrate to determine the weight to be accorded to the testimony of the witnesses, and if an inference of criminal agency can be drawn from the evidence it is proper for the magistrate to draw it. . . .” Wrenn v. Sheriff, 87 Nev. 85, 87, 482 P.2d 289, 290 (1971).
In this case, the testimony of an eyewitness (Estrada) was that Potter was with Foote from the time the two women were picked up until after the robbery, that Potter secretively conversed with Foote just before the robbery, that their attack on the victims was contemporaneous and coordinated, and that Potter physically assisted Foote by pushing Toledo into the front seat as Foote pulled her. The two escaped together with the money obtained from both women. The magistrate properly drew an inference of criminal agency from this testimony. Under NRS 195.020, “[e]very person concerned in the commission of a felony . . . whether he directly commits the act constituting the offense, or aids or abets in its commission ... is a
Potter argued that his “mere presence” at the scene of the robbery of Toledo could not subject him to criminal liability. This proposition is correct, see Sheriff v. Fernandez, 97 Nev. 61, 624 P.2d 13 (1981), but irrelevant in light of Estrada’s testimony. The other contentions raised by Potter in his petition below were rejected by the district court as meritless and deserve no further discussion here.
Consequently, we find that the evidence before the magistrate established sufficient probable cause to charge Richard Potter with the robbery of Lois Toledo. The district court’s order granting Potter’s petition for a writ of habeas corpus constituted substantial error and is reversed, the second count of the information is reinstated, and the case is remanded for trial.
Reference
- Full Case Name
- SHERIFF, CLARK COUNTY, NEVADA v. RICHARD NEIL POTTER
- Cited By
- 5 cases
- Status
- Published