618 P.2d 354 (Nev. 1980), 12590, Kaplan v. State

Docket Nº:12590.
Citation:618 P.2d 354, 96 Nev. 798
Party Name:Morey KAPLAN, also known as Harold Hartz, Jr., Appellant, v. The STATE of Nevada, Respondent.
Case Date:October 29, 1980
Court:Supreme Court of Nevada
 
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Page 354

618 P.2d 354 (Nev. 1980)

96 Nev. 798

Morey KAPLAN, also known as Harold Hartz, Jr., Appellant,

v.

The STATE of Nevada, Respondent.

No. 12590.

Supreme Court of Nevada.

October 29, 1980.

Page 355

[96 Nev. 799] Johnson, Belaustegui & Robison, and Kent R. Robison, Reno, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Dist. Atty., and Edwin T. Basl, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

MOWBRAY, Chief Justice:

Morey Kaplan appeals from the district court's order denying his motion for change of venue of his trial from Washoe County. Kaplan was charged in an indictment with the murder of Peggy Jean Davis. After a jury trial in 1979 Kaplan was found guilty. However, because of certain prejudicial statements made by the special prosecutor concerning Kaplan's prior criminal record which were published by the media, Kaplan was granted a new trial.

After the date for his second trial was set, Kaplan moved for a change of venue from Washoe County. Following selection of the jury the motion was argued and denied. This appeal followed.

Kaplan contends the district judge erred in denying his motion for change of venue because a fair trial cannot be had in Washoe County in view of the "influence of the pervasive [96 Nev. 800] publicity" surrounding the murder of Peggy Davis, Kaplan's alleged involvement in the crime, his conviction following the first trial, and his prior criminal record. To support this contention Kaplan argues that of the twelve jurors selected for his second trial, eight have been exposed to publicity concerning the case, four are aware of his first trial and conviction, three know of his prior criminal record, and four have already formed opinions that Kaplan is guilty of the crime.

A defendant is entitled to have a panel of impartial jurors. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). However, a qualified juror need

Page 356

not be totally ignorant of the facts and issues involved.

"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in...

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