Azbill v. State, 6122

• Citation: 495 P.2d 1064,88 Nev. 240
• Decision Date: 07 April 1972
• Docket Number: No. 6122,6122
• Parties: Sylvester Jackson AZBILL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 1064

495 P.2d 1064

88 Nev. 240

Sylvester Jackson AZBILL, Appellant, v. The STATE of Nevada, Respondent.

No. 6122.

Supreme Court of Nevada.

April 7, 1972.

Rehearing Denied May 19, 1972.

John Manzonie, Wiener, Goldwater & Galatz, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner, Raymond D. Jeffers, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

BATJER, Justice:

A jury found the appellant guilty of murder in the first degree and set his penalty at life in prison without possibility of parole. The same jury found him guilty of arson in the first degree and he was sentenced to 10 years, both sentences to run concurrently. A motion for a new trial was denied, and this appeal follows.

The appellant and Rose Mapel were married on September 20, 1967. At the time of the marriage she was approximately 20 years his senior. On the evening of December 27, 1967, the charred remains of Rose Mapel Azbill were discovered in the master bedroom of the Mapel-Azbill home at 709 Rancho Drive, Las Vegas, Nevada. The appellant and his son, Brad Azbill, were the only persons immediately present when the disastrous fire started. At the trial Brad testified that sometime during the evening of December 27, 1967, between eight and nine o'clock, he was in the master bedroom of the Mapel-Azbill home with his stepmother, Rose Mapel Azbill, and the appellant. The appellant asked Brad to get him a drink. When Brad returned to the bedroom the appellant stated he was going to kill Rose because she had found out that he had married her for her money and was going to divorce him, and he then requested Brad to get some charcoal lighter fluid. At that time, according to Brad's testimony, the appellant hit Rose several times with his fist and then hit her with his crutch. Upon being hit with the crutch Rose raised herself on the bed and mumbled something. By then the appellant had poured the lighter fluid on the bed. Brad looked away to avoid seeing his father hit Rose, and he suddenly realized that the room was filling with smoke.

On the day of the fire, Mark Hutton and Frank Luhman, friends of Brad, visited him at the home of his father and stepmother. They arrived between 10 a. m. and 11 a. m. John Hutton, another friend, arrived about 6 p. m. At approximately 6:30 p. m. the appellant and Brad went to the liquor store where the appellant purchased beer and liquor. At about 7 p. m. Brad took a bottle of beer to the decedent and noticed that the bottle of vodka on the floor near the bed contained less than three inches of liquor. At that time Brad observed that the decedent seemed alert and she thanked him for the beer. Just after 7 p. m. Brad went back out to the guest house behind the main house to be with his friends. At about 7:30 p. m. Brad was summoned into the house and told by the appellant that Rose wanted another can of beer. After serving the beer, as requested, Brad returned to the guest house where he remained until he was recalled to the main house by the appellant, just before the fire was started. John Hutton testified that as soon as the television program 'Lost in Space' was over he looked toward the main house and saw smoke coming from it. He and the other two boys ran inside the main house where they met Brad, who told them the oven was on fire. They searched the kitchen area and failed to find any fire or smoke, then the appellant told them that the Christmas tree was on fire, but that the fire had been extinguished. After examining the tree the boys found no damage so they began looking around the house and found the smoke was coming from the master bedroom. The smoke prohibited them from entering the room so they went outside, broke the bedroom window and used a garden hose in an attempt to extinguish the fire. It was at this time that they saw the decedent in the flames. They then began yelling for someone to call the fire department and police. There was no cross-examination of John Hutton.

Frank Luhman testified that during the afternoon of the day in question, the appellant was quite drunk and boastful; further that in such drunken state, the appellant threw a pen knife at him and then he brought a revolver into the living room and stated he would just as soon kill someone as look at him. The witness further testified that he saw Rose Mapel Azbill on the afternoon prior to her death while he was changing the sheets in the appellant's bedroom and that she appeared to be asleep in her room. At 5:30 in the evening, the appellant requested this witness to get some 'girls,' in return for such favor he was to be given $100. The witness, in response to the appellant's request, took a taxi but was unable to locate the type of women requested by the appellant.

Upon his return from the unfruitful search, the witness returned to the guest house. At about 8:30 p. m. he saw smoke coming from the main house and went to locate the fire. He corroborated the testimony of John Hutton that they were directed to the oven, and finding no fire there, were told by the appellant that the Christmas tree had been on fire. Having determined that the tree was not damaged he discovered the fire in the bedroom, broke the window into the room, and upon observing a burning body he fainted. Upon cross-examination of this witness, the defense elicited testimony that on the day of the fire Brad was quite intoxicated and that he seemed to be almost falling down from drunkenness. On re-cross examination the witness was asked why he had not previously told the police or grand jury about the incident with the gun or about going out in the early evening looking for 'girls.' He replied: 'Nobody asked me.'

In an attempt to impeach the testimony of the witness, the defense called Joanne Allison, a teacher at the school attended by the witness. She testified that he had a bad reputation for truth and veracity.

Mark Hutton corroborated the testimony about the pen knife and about the appellant's statement that the Christmas tree had been on fire. He also testified that he had not been drinking liquor that day but that Brad had been drinking but was not drunk. He added that while Brad and the appellant were at the liquor store in the early evening Rose had called for Brad.

The appellant took the stand and simply stated he did not start the fire. There was no cross-examination.

The appellant contends that the trial court erred (1) in denying him the right to impeach the respondent's witness by restricting cross-examination; (2) in giving an 'Allen Charge' type of instruction to the jury which coerced them into reaching a verdict; (3) when it commented upon the testimony of an expert witness; (4) when it admitted into evidence colored photographs of the deceased; (5) when it allowed the respondent to impeach its own expert witness, and (6) in refusing to give an instruction which he had requested to the jury. The appellant further contends that the verdict of the jury is not supported by substantial evidence sufficient to justify such finding, and is contrary to the law and the weight of the evidence and that the aggregate of the trial court's error violates federal requirements of due process and constitutes grounds for a new trial.

1. The appellant, during cross-examination of Brad Azbill, Mark Hutton and Frank Luhman, sought to elicit testimony from them that they were involved, on or about May 6, 1968, in taking an automobile belonging to Halliburton Oil Well Cementing Company, without permission or authority, from Las Vegas, Nevada to West Covina, California; that they were arrested by West Convina authorities; that they were subsequently turned over to the juvenile authorities of Los Angeles County and later returned to Las Vegas; and that no further action was taken. The appellant contended that he could properly inquire into the alleged offense for the purpose of showing interest, bias and state of mind of the witnesses.

The trial court by an order approving the respondent's motion in limine restricted the inquiry as to the alleged offense, but expressly stated that the appellant was not precluded from inquiry into the state of mind of each witness. ¹ At various intervals during the trial the appellant made offers of proof as to the unlawful conduct of Brad Azbill, Frank Luhman and Mark Hutton. Each time the trial court made the same ruling for the reasons stated.

The scope and extent of cross-examination is largely within the sound discretion of the trial court and in the absence of abuse of discretion a reversal will not be granted. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965); State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948); State v. McNeil, 53 Nev. 428, 4 P.2d 889 (1931).

NRS 48.020 provides: 'No person shall be disqualified as a witness in any action or proceeding on account of his opinions on matters of religious belief, or by reason of his conviction of felony, but such conviction may be shown for the purpose of affecting his credibility. . . .'

Although this court has indicated that within the limits of the exercise of sound discretion a cross-examiner must be permitted to elicit any facts which show bias, interest or similar feelings which may color the witnesses testimony (State v. Fitch, supra), it is the established law in this state that the credibility of a witness may be attacked by showing his conviction of a felony but not by his mere arrest. Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966). However, the appellant cites Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), for the proposition that upon cross-examination, for the purpose of establishing interest, bias or motive to testify falsely, some inquiry of the witness concerning his unlawful conduct may be permitted although there has been no felony conviction. Relying upon that case...