McMichael v. State

• Decision Date: 07 April 1978
• Docket Number: No. 9714,9714
• Citation: 94 Nev. 184,577 P.2d 398
• Parties: James Richard McMICHAEL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 398

577 P.2d 398

94 Nev. 184

James Richard McMICHAEL, Appellant, v. The STATE of Nevada, Respondent.

No. 9714.

Supreme Court of Nevada.

April 7, 1978.

Horace R. Goff, State Public Defender, and J. Thomas Susich, Jr., Chief Deputy Public Defender, Carson City, for appellant.

Robert R. List, Atty. Gen., Carson City, and Robert C. Manley, Elko County Dist. Atty., Elko, for respondent.

OPINION

MANOUKIAN, Justice:

Elko Police were notified on September 24, 1975, by a twelve-year-old male youth that while in Lamoille Canyon, Elko County, he witnessed appellant orally copulating a young boy. An arrest warrant issued incident thereto, and on October 16, 1975, appellant was arrested in California on the warrant. Shortly thereafter on October 20, 1975, appellant was taken into custody by the FBI on a federal Dyer Act charge. On January 20, 1976, Elko authorities issued a formal request to obtain custody of appellant which was granted by the federal authorities in March, 1976.

Trial was held on February 22-23, 1977, and the judgment of conviction of one count of the infamous crime against nature, a felony, was entered on March 21, 1977 ¹. This appeal followed.

Appellant raises the following issues for our consideration. (1) The trial court erred in admitting evidence of appellant's past and subsequent similar crimes and acts; (2) the trial court erred in refusing appellant's attempt to impeach a witness; (3) the trial court erred in refusing appellant's proffered jury instructions; (4) appellant was denied his constitutional right to a speedy trial; and (5) appellant was not given proper credit for time served. We turn to treat these questions.

1. Admission of Similar Crimes.

During respondent's case-in-chief, the court admitted into evidence testimony of the thirteen-year-old victim that he and appellant had recently engaged in similar proscribed oral copulation both prior and subsequent to the incident leading to appellant's arrest. The trial court admitted this testimony to prove intent or the absence of mistake or accident. ² We agree.

The general rule is that proof of character to evidence particular criminal conduct is inadmissible unless and until the accused gives evidence of his good character. McCormick on Evidence, § 190 (2nd ed. 1972); State v. Henley, 27 Or.App. 607, 557 P.2d 33 (1976); compare, Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The rule prohibiting proof of prior misconduct is an application of the general rule. Such evidence is admissible only if it is relevant for some purpose other than to show the accused probably committed the crime because he is of a criminal character. See, Demmert v. State, 565 P.2d 155 (Alaska 1977); see also, Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976). NRS 48.015 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." The general rule is that when evidence is sufficiently relevant it may be admitted even though it embraces evidence of the commission of another crime. Wallin v. State, 93 Nev. 10, 558 P.2d 1143 (1977); People v. Guerrero, 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366 (1976). Appellant urges error on the premise that intent or lack of mistake was not in issue. See, 1 Wharton's Criminal Evidence, 560 (13th ed. 1972). Here, we believe intent is an element of the crime with which appellant was charged (NRS 201.190; 193.190) and that his intention was put in issue by the not guilty plea ³. Overton v. State, 78 Nev. 198 370 P.2d 677 (1962). In our view, the evidence tends logically and by reasonable inference to establish a fact material to the State. Guerrero, supra. Even this type evidence, to be relevant, should not be admitted unless the acts are similar and proximate in time.

Moreover, in sex crimes generally a more liberal judicial attitude exists in admitting evidence of prior and subsequent proscribed sexual conduct. See, 77 A.L.R.2d 841. Upholding in a prosecution for fellatio, case-in-chief testimony of boys other than those with whom defendant was charged with having committed the acts, the court in State v. McDaniel, 80 Ariz. 381, 298 P.2d 798 (1956), said:

Certain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration. The fact that in the near past one has given way to unnatural proclivities has a direct bearing upon the ultimate issue whether in the case being tried he is guilty of a particular unnatural act of passion. The importance of establishing this fact far outweighs the prejudicial possibility that the jury might convict for general rather than specific criminality. Even granting the general rule of inadmissibility of evidence of independent crimes to prove the offense charged, many courts recognize a limited exception in the area of sex crimes to prove the nature of the accused's specific emotional propensity.

Id. at 802-03. Accord, State v. Miller, 115 Ariz. 279, 564 P.2d 1246 (1977); State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973); People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 (1967); compare, Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976).

Appellant contends that liberalization of the general rule of exclusion as to him results in undue prejudice because its probative value was substantially outweighed by the danger of prejudice. Here, the trial court only admitted evidence of sexual conduct between the appellant and the victim. See, People v. Stanley, 67 Cal.2d 812, 433 P.2d 913 (1967); see also, State v. Waites, 7 Or.App. 137, 490 P.2d 188 (1971); cf. People v. Kelley, 66 Cal.2d 232, 424 P.2d 947 (1967). Admission of the evidence involved the trial court's discretionary determination in balancing the prejudicial effect of proffered testimony against its probative value. NRS 48.035; see, Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965); see also, State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974). The court concluded the probative value of the evidence outweighed the prejudicial effect. Additionally, immediately after the victim was permitted to testify concerning recent similar past and subsequent sexual acts, the trial court admonished the jury as to the limited purpose of the admitted evidence. Further, the court gave the jury a cautionary instruction to the same effect. Moreover, the court excluded evidence of alleged past sexual acts between appellant and other young boys. The record indicates that the trial court was sensitive to the possible prejudicial effect of accumulative testimony of appellant's prior and subsequent sexual proclivities.

The high degree of relevancy, less prejudice to the accused and the general difficulty of proving such crimes are factors which have contributed to the development of this narrow exception to the general rule. See, McFarlin, supra. Because of the dangers of creating assumptions of guilt in the minds of the triers of fact, the risks attendant to compelling the accused to meet collateral charges and possible confusion of the issues, this exception mandates proof of similar offenses which are near in time to the principal offense and which do not apply to mere criminal propensities in general but rather to specific sexual proclivities. The evidence should be received with extreme caution, and if its relevancy is not clear, the evidence should be excluded. Kelley, supra; Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918). Whenever a confrontation occurs between relevancy and the general rule that protects the accused against prejudice likely to follow admission of such evidence, the trial court must, as was done in the instant case, weigh the probative value of the proffered evidence against the bias or prejudice likely to result. See, Stanley, supra; accord, People v. Sheets,251 Cal.App.2d 759, 59 Cal.Rptr. 777 (1967); State v. Hopfe, 249 Minn. 464, 82 N.W.2d 681 (1957). We do not decide whether evidence of any sex offenses involving persons other than the complaining witness would be admissible. See, McDaniel, supra; Bracey v. United States, 79 U.S.App.D.C. 23, 142 F.2d 85 (1944), cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589; 2 Wigmore on Evidence, § 360 (3rd ed. 1940). We note that this "emotional propensity" exception is limited to those cases involving sexual aberration, but this exception is not to the exclusion of the usual exceptions to the exclusionary rule. Miller, supra.

In the instant case, we find no abuse in the admission of the testimony, Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964); State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963), since the acts were similar, were committed within a period immediately preceding and following the instant offense, and involved sexual aberration.

2. Attempt to Impeach Witness.

Appellant next contends error in the trial court's refusal to permit him to impeach a prosecution witness for bias. Although the record is vague, it appears appellant was attempting to show bias since appellant had testified for the prosecution in a federal court against a relative of the witness. On objection, the court rejected such evidence as irrelevant.

We have held that great latitude in cross-examination is allowed to test a witness's motives, interests, animus, accuracy, and veracity. Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969), cert. denied, 398 U.S. 932, 90 S.Ct. 1831, 26 L.Ed.2d 98; State v. Boyle, 49 Nev. 386, 248 P. 48 (1926). In State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948), this Court conceded that a cross-examiner would be entitled to impeach any witness for bias or interest which may tend to color his testimony. Rejecting appellant's contention of error, however, we stated that impeachment for bias must be controlled by the sound discretion of the trial court. On this record, we will presume that the trial...