657 P.2d 1157 (Nev. 1983), 13838, McCullough v. State

Docket Nº:13838.
Citation:657 P.2d 1157, 99 Nev. 72
Party Name:Joseph Lewis McCULLOUGH, Appellant, v. The STATE of Nevada, Respondent.
Case Date:February 10, 1983
Court:Supreme Court of Nevada

Page 1157

657 P.2d 1157 (Nev. 1983)

99 Nev. 72

Joseph Lewis McCULLOUGH, Appellant,


The STATE of Nevada, Respondent.

No. 13838.

Supreme Court of Nevada.

February 10, 1983.

        Thomas E. Perkins, State Public Defender, Annabelle Whiting Hall, Deputy Public Defender, Carson City, for appellant.

        [99 Nev. 73] Brian McKay, Atty. Gen., Dan R. Reaser, Deputy Atty. Gen., Carson City, Virginia R. Shane, Dist. Atty., Jack T. Bullock, II, Deputy Dist. Atty., Winnemucca, for respondent.


        PER CURIAM:

        A jury found appellant Joseph Lewis McCullough guilty of possession of a controlled substance and possession of stolen property. Among other contentions, McCullough argues on appeal that the jury was prejudicially misinformed regarding the concept of reasonable doubt, because the district judge made several attempts to quantify reasonable doubt during the voir dire examination of the jurors and also delivered an improper jury instruction on the subject. A review of the authorities and the record leads us to agree with appellant, and we therefore reverse.

        THE FACTS

        McCullough was charged with possession of a controlled substance (marijuana) and possession of stolen property (a 1974 Chevrolet "Luv" pickup truck).

        During the voir dire examination of the jurors during trial, the district judge attempted to illustrate the concept of reasonable doubt with a numerical scale. On a scale of zero to ten, the judge placed the preliminary hearing standard of probable [99 Nev. 74] cause at about one, and the burden of persuasion in civil trials at just over five. He then twice described reasonable doubt as about "seven and a half, if you had to put it on a scale." After introducing the jurors to the reasonable doubt standard provided by NRS 175.211, the judge again noted, "I have tried to give you that on a zero to ten scale."

Page 1158

        The district judge further embellished the statutory definition of reasonable doubt in his instructions to the jury, stating in instruction number five that "it is not necessary that the defendant's guilt should be established beyond any doubt or to an absolute certainty ...." McCullough's trial counsel did not object to the judge's extemporaneous characterizations of reasonable doubt, nor did she object to the above instruction. 1


        The general rule is that failure to object to asserted errors at trial will bar review of an issue on appeal. Krueger v. State, 92 Nev. 749, 755, 557 P.2d 717, 721 (1976); Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973). However, when constitutional questions are raised on appeal, we have the power to address them. Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968). We believe that the issues in this case are of constitutional dimension. See Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.1978).


        In NRS 175.211, the Legislature has both defined reasonable doubt and mandated that no other definition shall be given to juries in criminal actions in Nevada. 2 Despite our frequent condemnations of the practice, the lower courts of this state have [99 Nev. 75] persisted in adding to the statutory reasonable doubt definition. See, e.g., Page v. State, 94 Nev. 386, 580 P.2d 477 (1978); Jackson v. State, 93 Nev. 677, 572 P.2d 927 (1977); Tucker v. State, 92 Nev. 486, 553 P.2d 951 (1976). Instruction number...

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