Dearman v. State, 9209

Citation566 P.2d 407, 93 Nev. 364
Case DateJuly 01, 1977
CourtSupreme Court of Nevada

Morgan D. Harris, Clark County Public Defender, and Stephen L. Huffaker, Deputy, County Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Clark County Dist. Atty., and H. Leon Simon, Chief Deputy Dist. Atty., Las Vegas, for respondent.



This is an appeal from a judgment of conviction wherein Appellant was found guilty, by jury verdict, of the crime of first degree murder. (NRS 200.010; 200.030). The trial judge thereafter sentenced him to life imprisonment with the possibility of parole.

Dearman was convicted of the murder of one Dennis Wolfe. The homicide occurred at approximately 8:30 p. m., on December 31, 1974, in a North Las Vegas, Nevada, bar and restaurant known as Cal's Gin Mill. It was undisputed at the trial that Dearman shot Wolfe seven times with a .45 caliber automatic pistol at close range. The shooting was observed by several patrons of the establishment who knew both the victim and the Appellant. Dearman's only defense presented at trial was that he was under the influence of a combination of alcohol and drugs at the time of the shooting and therefore could not form the necessary intent to commit the crime of first degree murder.

Appellant has raised three specifications of error for our determination. (1) The evidence is insufficient to support the conviction of first degree murder; (2) Improper and prejudicial statements made by the prosecutor during his closing argument affected the substantial rights of the defendant; (3) The Court erred in admitting Exhibits 4, 7, and 8 (color photographs of the victim) into evidence over objection of defense counsel.

1. The Evidence is Insufficient to Support a Conviction of First Degree Murder :

Here, Appellant asserts that the State did not present sufficient evidence to prove beyond a reasonable doubt that he was capable of forming the premeditation necessary to support a conviction of first degree murder. We disagree.

Dearman took the stand at trial and testified that he could not remember anything contemporaneous with the shooting, or thereafter, until waking up the next day in a park in California. He also testified that in addition to the alcohol that he had consumed throughout the day, he had ingested two pills, possibly barbiturates, just prior to going to the scene of the shooting. Dearman's mother, Delores Hutchens, testified that he was drunk at about 6:30 p. m., and that she had never seen him drink so much.

That Appellant had been drinking heavily since approximately 1:00 p. m., the afternoon of the incident is undisputed. However, it is the evidence of the degree of such intoxication which is conflicting. During the trial, witnesses testified that the decedent and Appellant each consumed several drinks from 1:00 p. m. to 6:30 p. m. on the day of the incident. Other evidence offered at trial showed that on two occasions the Appellant was capable of driving an automobile without incident, that during the relevant periods of time the Appellant was capable of carrying on and understanding a normal conversation, that he was capable of playing pool, that he knew the location of Cal's Gin Mill as he drove to that location from his home accompanied by his mother and a friend approximately one half hour prior to the shooting, that prior to the shooting he had been playing "21", and that at no time prior to the shooting did anyone notice anything out of the ordinary about the Appellant other than that he was to some degree intoxicated.

There was also testimony from which the jury could have reasonably inferred that Appellant had left the bar a few minutes prior to the shooting for the express purpose of obtaining the murder weapon.

William Glenn, an acquaintance, characterized Dearman as being "pretty looped" shortly after the shooting, but added that there was nothing about his manner that would indicate any unusual degree of intoxication.

The record further reveals that immediately following the shooting Appellant walked "briskly" out of the bar, entered his automobile, and drove at a high rate of speed out of the parking lot from where the vehicle was located. The jury could have reasonably inferred that these actions taken by the Appellant immediately after the shooting were for the purpose of effecting an escape from the scene, and further, that the Appellant knew at the time of the shooting that the act was wrong.

It is well established in Nevada that "it is the function of the jury and not the reviewing court to weigh the evidence." McGuire v. State,86 Nev. 262, 267, 468 P.2d 12, 15 (1970). It is also well recognized that " where there is substantial evidence in the record to support the verdict of the jury, it will not be overturned by an appellate court." Tellis v. State, 85 Nev. 679, 680, 462 P.2d 526, 527 (1969). See also, McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970).

"In this state it is well-recognized that in a prosecution for murder evidence of the intoxication of the accused is relevant for the purpose of a jury determination whether the defendant lacked the capacity to deliberate and premeditate required of first degree murder." Jackson v. State, 84 Nev. 203, 206, 438 P.2d 795, 797 (1968). Intent to kill, as well as premeditation, may be ascertained or deduced from the facts and circumstances of the killing, such as use of a weapon calculated to produce death, the manner of use, and the attendant circumstances. See Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). Here, the jury had such evidence presented for its consideration and further heard evidence of Appellant's speech, demeanor, and movement. Although the evidence is conflicting, the jury was at liberty to believe whichever witnesses it found most credible. Id. We perceive no error that would require a reversal of the jury's verdict on this issue, in that a finding of willful, deliberate, and premeditated killing was permissible despite the defendant's claim of intoxication. In accord, Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964).

2. Improper and Prejudicial Statements Made by the Prosecutor in Closing Argument Affected the Substantial Rights of the Defendant :

Dearman contends that he was deprived of a fair trial by improper and prejudicial prosecutorial closing argument. In one instance, the prosecutor submitted his own subjective belief concerning his responsibility as a prosecutor and reverence for life. 1 On another occasion, the prosecutor's argument dealt with the prosecutor presenting his personal views on mercy and justice. 2 In a third instance, it is claimed that the prosecutor attempted to arouse and inflame the passions of the jury by using an emotional argument concerning the decedent's not being able to keep New Year's resolutions or being able to see the roses bloom in spring. 3

Although the comments made by the prosecutor may have been improper, a reading of the record reveals that at no time were any objections made by Appellant. It is well established that improper remarks made by the prosecutor in closing argument will not be considered on appeal if not objected to at the time of trial. Watkins v. State, 93 Nev. 100, 560 P.2d 921 (1977); Jackson v. State, 93 Nev. 28, 559 P.2d 825 (1977); Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). This Court stated in Jackson, 93 Nev. 28, 30, 559 P.2d 825, 826 (1977):

"Jackson's contention that the prosecutor committed prejudicial error in his closing argument is also rejected. The now challenged comment was not considered sufficiently prejudicial to invoke an objection at the time it was made. Furthermore, the record discloses overwhelming evidence of guilt; thus, even if...

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