Garner v. State, s. 4484

Citation78 Nev. 366, 374 P.2d 525
Case DateSeptember 18, 1962
CourtSupreme Court of Nevada

James H. Phillips, Las Vegas, for appellant.

Charles E. Springer, Atty. Gen., Carson City, John F. Mendoza, Dist. Atty., William S. Barker, Deputy Dist. Atty., Las Vegas, for respondents.

THOMPSON, Justice.

Separate appeals by Garner, one from a judgment of conviction entered upon a jury verdict finding him guilty of the unlawful possession and control of a narcotic drug, Case No. 4484, and the other from the denial by the district court of his application for a writ of habeas corpus which was presented following his conviction, Case No. 4493. We believe the judgment of conviction must be reversed and the cause remanded for a new trial, because of prejudicial misconduct by the prosecuting attorney and the reception of inadmissible evidence. Therefore we will first discuss Case No. 4484.

Before making specific reference to the prosecutor's remarks and the evidence erroneously admitted, a brief statement setting forth circumstances of legal significance is necessary in order to place the issues in proper perspective. Garner acted as his own attorney during the jury trial below, having voluntarily waived his right to counsel. He failed to object to the remarks of the prosecutor and to the introduction of inadmissible evidence. The trial judge did not admonish the jury to disregard such remarks and evidence, nor did he take any other action with reference thereto. Garner did not testify. There is substantial evidence to prove Garner's possession of a narcotic drug. Whether such possession was lawful or unlawful is disputed, but we need not resolve that question. After the judgment of conviction, the trial court appointed counsel for Garner to assist in these appeals. Thus, Garner's complaint regarding the remarks of the prosecutor and the reception of inadmissible evidence is raised initially on appeal. With these circumstances in mind, we turn to relate the remarks and evidence to which we have referred.

During his opening statement to the jury the prosecutor, in relating what he intended to thereafter prove, said, among other matters: 'The first witness will be an important witness here, he will be Officer Hilliard. Officer Hilliard sees the defendant in West Las Vegas rather shabbily dressed and in a disorderly manner. At this time he didn't know anything. He goes back to the Police Station, though, looks up Mr. Garner's record, and there is reason to be suspicious from his prior record and what not. So, he goes back over to West Las Vegas, says to Mr. Garner, 'I have seen your record' and what not, and in effect 'may I search your person?" Officer Hilliard, to whom the prosecutor had referred in his opening statement, was the first witness called by the state. The following questions and answers appear in the record:

'Q. In other words, did you call to the Las Vegas Police Station?

'A. Yes, I did.

'Q. What did you find out pursuant to that radio call?

'A. I was able to ascertain that the subject was registered with our Department, Las Vegas Police Department, as an ex-felon. He had a lengthy criminal record, such as armed robbery, abortion, and so forth.

'Q. Were you able to determine whether these were convictions, or only accusations?

'The Court: I will have to admonish you, Mr. Bowman, to be careful.

'A. These were convictions for previous felonies.'

Later during his testimony Officer Hilliard was asked: 'Q. Well, after you talked to him and searched his person, then what did you do, Officer? A. Due to the fact my suspicions were aroused by his criminal record, the fact he was in an area carrying this medicine without a bag, I transported subject to Detective Bureau for further disposition.'

Later on during the presentation of the state's case in chief, a member of the State Board of Osteopathic Examiners, in explaining the revocation of Garner's Nevada license as an osteopath, said: 'The automatic reason that we had been attempting to serve notice was that he had been convicted of a felony in December of 1942, which would automatically void his Nevada license, if he could be notified. * * *.' The record further discloses that the same witness, in testifying about the contents of a letter sent Garner, said: 'I believe that it was worded that this was his official notification to appear before the Board September 17 to show cause why his license should not be revoked because of, and then the enumeration of: Number one, conviction of a felony; number two, practice, type of practice in California and Florida; number three, persistent police record.'

Finally, during summation to the jury, the prosecutor again mentioned that Garner's 'crime record' had been ascertained.

The state does not assert that evidence of other offenses committed by Garner was admissible. It acknowledges the general rule of criminal evidence that, on the trial of a person accused of crime, proof of a distinct independent offense is not admissible. It concedes that the evidence heretofore set out does not come within any exception to the general rule. Cf. Nester v. State, 75 Nev. 41, 334 P.2d 524; State v. McFarlin, 41 Nev. 486, 172 P. 371. However, the state does urge that the statements of the prosecutor and the evidence of other offenses were introduced into the case without objection by the defendant and he thereby waived any right to have the points considered on appeal. In any event, it insists that NRS 169.110, the 'harmless error' statute, must be given effect because of other competent evidence in the record establishing Garner's guilt beyond a reasonable doubt. On the other hand, Garner contends that the forensic misconduct of the prosecutor in opening statement and closing jury argument, in making reference to other offenses, together with the introduction of evidence concerning them, precluded any possibility of a fair trial being accorded him. He urges that the jury must have been influenced by the continual reference to his record of crime, particularly in view of the fact that the other evidence in the case does not conclusively establish that his possession of narcotics was unlawful.

We are appalled by the consummate disregard of the defendant's right to a fair trial. The duty of the prosecutor is beautifully expressed by the Supreme Court of the United States in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633; 79 L.Ed. 1314 in the following language:

'The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' See also State v. Rodriguez, 31 Nev. 342, 347, 102 P. 863.

After the jury has been selected and sworn, every criminal trial has three general phases--the opening statement, the proof and the summation. In the case at bar, the prosecutor struck 'foul blows' during each phase. The purpose of the opening statement is to acquaint the jury and the court with the nature of the case. It is proper for the prosecutor to outline his theory of the case and to propose those facts he intends to prove. State v. Olivieri, 49 Nev. 75, 236 P. 1100. However, it is his duty to state such facts fairly, and to refrain from stating facts which he will not be permitted to prove. State v. Olivieri, supra; Sefton v. State, 72 Nev. 106, 295 P.2d 385; State v. Erwin, 101 Utah 365, 120 P.2d 285. We know that appellate courts will not usually predicate error on a statement to the jury that certain proof, which is later rejected, will be offered if the question of its admissibility is a close one, thus indicating that the prosecutor acted in good faith in making the statements. State v. Lyskoski, 47 Wash.2d 102, 287 P.2d 114; State v. Albert, 159 Or. 667, 82 P.2d 689. In Olivieri, supra, the 'good faith' guide was recognized and the court, upon the record there presented, found nothing to indicate that the prosecutor acted in bad faith in overstating what he intended to prove. 1 Indeed, in Olivieri there was a failure of evidence, i. e., the state offered no evidence to establish the verity of the prosecutor's representation that the accused, shortly before shooting the prosecuting witness, was intoxicated and in a reckless or vicious humor, desired trouble, and was armed. The proof offered did not measure up to the statement made. It was a situation where improper matters were placed before the jury without having the misconduct discovered until a later phase of the trial. The misconduct there involved could not be immediately apparent to either the court or opposing counsel and was much less severe in character.

In the case before us we have an entirely different situation. The improper reference to the defendant's prior criminal record must have been at once apparent to the court. The court failed to act. The misconduct, understandably, was not apparent to the defendant who was without counsel. Accordingly, he failed to object. Furthermore, we must presume knowledge in the prosecutor that the defendant's record of crime, convictions for armed robbery and abortion, would not, under any rule of evidence, be admissible during the presentation...

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