Howard v. State, 15113
| Decision Date | 15 December 1986 |
| Docket Number | No. 15113,15113 |
| Citation | 102 Nev. 572,729 P.2d 1341 |
| Parties | Samuel HOWARD, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Lizzie R. Hatcher, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, Deputy Dist. Atty., Daniel Deaton, Deputy Dist. Atty., Las Vegas, for respondent.
This is a capital case. Appellant Howard stands convicted of first degree murder and two robberies with the use of a deadly weapon. Howard has demonstrated no prejudicial error, and we therefore affirm his convictions and sentences.
On March 26, 1980, Howard was caught in the act of trying to defraud Sears Roebuck by seeking a refund on goods which had not been purchased. While being detained in the store's security office, Howard produced a .357 magnum pistol and made his escape, taking a security officer's badge and portable radio with him.
Later that day Howard contacted the victim's wife, and told her that he was interested in purchasing a van that she and the victim had advertised for sale in the Sears parking lot. Howard was referred to the victim, a Las Vegas dentist, who made arrangements to meet him later in the day at a hotel-casino to discuss the purchase of the vehicle. When the victim, his wife and his daughter met with Howard at the hotel, Howard represented himself as a security officer employed by the hotel, openly displaying the stolen portable radio in authentication of this claim. Arrangements were made during this meeting for the victim to meet with Howard the next day, March 27, at the victim's dentistry office to test-drive the vehicle. On March 27, the victim's body was found in the van. The victim had been robbed and murdered. The jury found Howard guilty of this murder and robbery. At a sentencing hearing the jury determined that Howard should receive the death penalty.
1. Effective Assistance of Counsel. Howard contends that his state-provided counsel was ineffective. Howard argues that he had no trust in counsel's representation because one member of the Clark County Public Defender's Office had been the victim's patient, and another member had been an acquaintance of the victim.
Howard's claims do not objectively justify Howard's distrust of his attorney. Those attorneys in the public defender's office who had a personal or professional relationship with the victim were ordered by the trial court not to involve themselves in this case. There is nothing in this record to indicate that the court's order was violated or that Howard did not receive "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985).
2. Severance of the Murder-Robbery Charge from the Sears Roebuck Charge. Howard contends that the district court erred by refusing to sever the charges arising out of the armed robbery of the Sears security guard from those relating to the robbery and murder of the victim. We disagree.
NRS 173.115 provides that two or more offenses may be charged together when they are based on the same act or transaction or based on acts which are "connected together" or are "parts of a common scheme or plan." 1 While it may not be possible to characterize the Sears robbery and the murder and robbery of the victim as the same transaction, they are clearly connected together. Howard gained possession of his bogus security officer status, the two-way radio and the security badge, during the Sears episode. Then, Howard saw the victim's van in the Sears parking lot with a "For Sale" sign bearing the victim's phone number. The two crimes occurred within a 24-hour period, and evidence indicates that Howard was wearing the same clothing during the two crimes and that one crime "flowed" into the other. Therefore, we conclude that the district judge did not abuse his discretion in permitting the joinder of these connected charges.
3. Evidentiary Hearing on Admissibility of Custodial Statements. Howard contends that the district court erred by refusing to grant him an evidentiary hearing on the issue of the voluntariness of incriminating statements he made while in custody. Our review of the record reveals that the district court did not err.
A hearing on this matter was set for April 8, 1983, but, on April 7, 1983, counsel stipulated that the motion would be continued until the date of trial, April 11, 1983. When the trial date arrived, the matter was not pursued. No further mention of an evidentiary hearing was made until the state was presenting the rebuttal testimony of Detective Leavitt.
Howard testified concerning statements which he had made while in custody prior to trial. The state then called Detective Leavitt as a rebuttal witness in order to impeach the testimony given by Howard.
Leavitt told the jury that before taking a statement from Howard he first advised him of his Miranda rights. Leavitt also testified Howard told him that he understood those rights and that they had been read to him several times before. Leavitt then testified that Howard told him that he recalled the Sears incident in Las Vegas. Leavitt also related Howard's statements regarding the fact that he might have killed someone in Las Vegas but could not recall for sure.
After Detective Leavitt's rebuttal testimony was given, defense counsel made the following statements to the trial judge outside the presence of the jury:
When Detective Leavitt was testifying we approached the bench and advised the court that there was a pending motion to suppress raising voluntariness and six [sic] amendment issues which would be brought out during an out of the jury's presence hearing. The Court allowed us to make the objection at this time, rather than interrupt the testimony of the witness. And I would just like that on the record.
The apparent intention of the defense counsel was to remind the court of the pre-trial motion for an evidentiary hearing. Our review of the record leads us to conclude that this "reminder" was so untimely as to constitute a waiver of the motion. To begin with, the motion for an evidentiary hearing was not timely filed. The motion was filed on April 1, 1983, ten days prior to trial. By statute, motions to suppress in a criminal prosecution are required to be filed no less than fifteen days before trial. NRS 174.125(3)(a). Although the trial court may waive the time requirement, the grounds for making an untimely motion must be established by affidavit. See NRS 174.125(3)(b) and (4). No such affidavit was supplied in the instant case.
Moreover, there is nothing in the record to contradict or oppose the trial court's ruling that Miranda warnings had been properly given. Accordingly, we conclude that the trial court properly denied a hearing and refused to suppress the statements given by Howard to police officers.
4. Refusal to Give Instruction on Accomplice Testimony. Howard contends that the district court erred in refusing to give the following instructions to the jury:
The testimony of an accomplice ought to be viewed with distrust. This does not mean that you may arbitrarily disregard such testimony, but you should give to it the weight to which you find it to be entitled after examining it with care and caution and in light of all the evidence in the case.
Although the trial court refused to give the requested instruction, the court instructed the jury that an accomplice's testimony must be corroborated by other evidence in order to support a verdict.
The only case cited by Howard to support his argument that the instruction should have been granted is People v. Dowd, 101 Ill.App.3d 830, 57 Ill.Dec. 214, 428 N.E.2d 894 (1981). In that case, however, the Illinois appellate court held that the failure to grant the instruction was not fatal to the conviction because the other instructions, when read together, were sufficient to inform the jury of the pitfalls of accomplice testimony. 57 Ill.Dec. at 225, 428 N.E.2d at 905. The granting of an instruction such as the one now in question is required only when an accomplice's testimony is uncorroborated. Buckley v. State, 95 Nev. 602, 600 P.2d 227 (1979). The Buckley case indicates that a cautionary instruction is "favored" even when the testimony is corroborated in "critical respects" but that the failure to grant it may not constitute reversible error. This is especially true where the jury was instructed that it had the duty of weighing the witness' credibility, where there is substantial evidence of guilt and where the witness' motive and possible bias had been explored through cross-examination. Id. at 604-05, 600 P.2d at 228- 29. Those factors were present in the case before us; the refusal of the instruction was therefore not...
To continue reading
Request your trial
-
Tabish v. State
...two automobile burglaries sixteen days apart joined with store robbery committed immediately after second burglary); Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986) (counts for robbery and murder properly joined when defendant used stolen items to lure murder victim within a day of the ......
-
Castillo v. Gittere, Case No. 2:04-cv-00868-RCJ-GWF
...to give a proposed nonstatutory mitigating jury instruction for an abuse of discretion, or judicial error. Howard v. State, 102 Nev. 572, 578, 729 P.2d 1341, 1345 (1986) ("Howard I"). Castillo cites Lockett v. Ohio, 438 U.S. 586 (1978) in support of his argument. There, a four-justice plura......
-
Snow v. Baker
...is not required where — as in this case —Page 50the testimony of the accomplice is corroborated by other evidence. See Howard v. State, 102 Nev. 572, 576-77, 729 P.2d 1341, 1344 (1986). This Court disagrees that Nevada law unequivocally requires a cautionary jury instruction regarding accom......
-
Lay v. State
...P.2d 1062, 1066 (1985). In addition, this court has approved the specific instruction read to Lay's jury. See Howard v. State, 102 Nev. 572, 577-78, 729 P.2d 1341, 1344-45 (1986); Nevius v. State, 101 Nev. 238, 250-51, 699 P.2d 1053, 1060-61 (1985). So long as a jury is instructed to consid......