Allen v. State

• Decision Date: 14 June 1983
• Docket Number: No. 13707,13707
• Citation: 99 Nev. 485,665 P.2d 238
• Parties: James ALLEN, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 238

665 P.2d 238

99 Nev. 485

James ALLEN, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 13707.

Supreme Court of Nevada.

June 14, 1983.

Frank J. Cremen, Las Vegas, for appellant.

D. Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and James N. Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted appellant of first degree murder for the shooting of Tony Lynn Sylvester during the course of a burglary at the Sylvester home. The same jury also sentenced appellant to death. For reasons hereinafter set forth, we affirm conviction, but reverse the sentence and remand the case for re-sentencing.

Appellant first contends that his trial was seriously infected with error by the admission of expert medical testimony. During appellant's trial, Richard Renner, the senior criminalist for the Las Vegas Metropolitan Police Department, testified that he had made a comparison of a piece of flesh found at the crime scene with a wound on appellant's arm. Renner concluded that he was unable to determine if the two were similar because there was too much scar tissue formed on appellant's wound. Thereafter, Dr. James Clarke, a pathology specialist, also made a comparison and he concluded that the piece of skin was very similar to the wound. Appellant insists that the district court erred by allowing the latter testimony into evidence on the grounds that it was speculative and contradictory. We disagree.

Any trial aid, including expert testimony, which assists a jury in ascertaining relevant truths should be admissible. Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728 (1965). The assistance of expert testimony, however, should be in an area foreign to the jury's knowledge. Dawson v. State, 84 Nev. 260, 439 P.2d 472 (1968). Unless the admission of expert testimony in the lower court was a clear abuse of the trial judge's discretion, this Court will not disturb the lower court's determinations. Stickelman v. Moroni, 97 Nev. 405, 632 P.2d 1159 (1981); Provence v. Cunningham, 95 Nev. 4, 588 P.2d 1020 (1979). Here, Dr Clarke's testimony was properly admitted because it dealt with an area outside the jury's knowledge and conduced toward aiding the jury in reaching its verdict. The fact that there was conflicting testimony between Dr. Clarke and Richard Renner does not render the former's opinion inadmissible. It is a well settled rule in this state that whenever conflicting testimony is presented, it is for the jury to determine what weight and credibility to give to that testimony. Henderson v. State, 95 Nev. 324, 594 P.2d 712 (1979); Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978). Here, the jury heard the testimony of both Renner and Clarke and was free to believe whichever witness it found most credible. See Dearman v. State, 93 Nev. 364, 566 P.2d 407 (1977). Expert testimony is not binding on the trier of fact; jurors can either accept or reject the testimony as they see fit. Clark v. State, 95 Nev. 24, 588 P.2d 1027 (1979). There was no abuse of discretion by the trial judge in admitting the expert testimony.

At the penalty hearing, the state introduced several items pertaining to appellant's character in support of the death penalty. Appellant contends that the district court erred by allowing these items to be introduced at the penalty hearing because they did not fit within any class of aggravating circumstances as outlined in NRS 200.033. While it is true that the items objected to by appellant are not aggravating circumstances, appellant fails to recognize the import of NRS 175.552 which provides that during a penalty hearing "evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible." (Emphasis supplied.) This statute clearly indicates and we so hold that NRS 175.552 is not limited to those nine aggravating circumstances outlined in NRS 200.033. Furthermore, the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), ruled that the relevant factors to be considered by a jury in imposing a penalty for a capital crime are "the character and record of the individual offender and the circumstances of the particular offense." Therefore we conclude that the district court did not err in admitting evidence of the appellant's character even though such evidence did not consist of aggravating circumstances.

Notwithstanding our conclusion that the district court may appropriately consider character evidence outside the nine areas of aggravating circumstances, we feel constrained to provide cautionary direction and admonition concerning the subject of such evidence in future penalty phase dispositions.

In the instant case, the jurors were informed, inter alia, that, at a time when appellant was on probation for another offense, he had moved his residence without permission and had failed to hold a job. Additionally, a jail employee who had no personal knowledge of any specific infraction, testified from jail records that appellant had presented disciplinary problems while awaiting trial. In our view, a decision to execute a human being should not be influenced by such dubious, tenuous "evidence".

Arguably, the "character evidence" admitted in this case should have been excluded as a matter of law because its probative value is clearly "outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury." NRS 48.035(1). Similarly, as a matter of law, such "evidence" arguably should have been excluded because its probative value is clearly "outweighed by undue delay [and] waste of time." NRS 48.035(2). In any event, it is apparent that the trial court had, and still has, discretion to exclude such evidence. NRS 48.035.

In our view, therefore, since a new penalty hearing will be required as specified hereafter, the district court should be most cautious about admitting such "character evidence." Character evidence of this kind would be inadmissible to establish guilt, see NRS 48.045, and as stated above, it is of questionable value in establishing an appropriate penalty.

Appellant next contends that his Fifth Amendment right not to be twice placed in jeopardy for the same offense was violated. Appellant cites Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) in support of his position. We conclude that Whalen is not applicable to the instant case.

Whalen involved the interpretation of federal law and is very limited in scope. There, the defendant was convicted of raping and killing the victim in the perpetration of the rape. The defendant claimed that his Fifth Amendment right had been violated since he had been convicted of both the rape and the murder. The high court agreed; however, the court specifically noted that its opinion was limited to the statutory interpretation of the laws of the District of Columbia which are enacted by Congress. The court then found that the laws of the District of Columbia provide that, in cases such as this, the rape merges into the murder and the defendant can only be convicted of the latter crime.

In the instant case, appellant was convicted of burglary and murder. In Nevada our statutes allow multiple punishment whenever a person in the commission of a burglary commits another crime. ¹ Since our statutory scheme is...