Geer v. State

• Decision Date: 15 April 1976
• Docket Number: No. 8265,8265
• Citation: 548 P.2d 946,92 Nev. 221
• Parties: Paul Raymond GEER, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 946

548 P.2d 946

92 Nev. 221

Paul Raymond GEER, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 8265.

Supreme Court of Nevada.

April 15, 1976.

Rehearing Denied May 13, 1976.

Alan R. Johns, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George Holt, Dist. Atty., and Elliott A Sattler and Howard Jones, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

MOWBRAY, Justice.

A jury found the appellant, Paul Raymond Geer, Jr., guilty of murder and attempted murder. He was sentenced to life imprisonment with possibility of parole on the murder charge and 20 years on the attempted murder charge, the sentences to run concurrently. He has appealed from his judgments of convictions, asserting numerous assignments of errors, which we reject as meritless.

On the evening of November 28, 1973, Geer and his wife visited a bar in North Las Vegas. Geer had just finished a shift as a sheet metal worker and was attired in his work clothes. He carried on his belt a 4-inch knife that he used in cutting insulation and other materials on the job. The Geers met Raul Ortiz and Warren Ferrell in the bar. A conversation resulted among them that the Geers considered offensive. The verbal exchange became heated. Geer pulled his knife, and he and Ortiz struggled. Ferrell came to Ortiz's rescue, but it required the intercession of the bar owner to separate them. Geer left the bar and went home with his wife. Ortiz collapsed and died from massive blood loss resulting from a stab wound over an inch deep that severed a carotid artery in his neck. Ferrell's arm was cut from elbow to arm pit, severing the nerves and arteries in the process. He was also stabbed through the larynx. Ferrell survived the fracas, but has lost the use of one arm, and his eye has been permanently damaged.

Geer claims that the record below does not support the jury's finding that he was guilty of charges set forth in the Information. This complaint is completely without merit. There is overwhelming evidence of Geer's guilt; and in such cases we shall not disturb the verdict. See Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974). Geer complains that it was error for the district judge not to advise the jury to acquit. The law with regard to advisory instructions has been developed over the past century. See State v. Little, 6 Nev. 281 (1871); Terrano v. State, 59 Nev. 247, 91 P.2d 67 (1939); State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956); Cook v. State, 74 Nev. 51, 321 P.2d 587 (1958). The granting of an advisory instruction to acquit rests within the sound discretion of the court. In the instant case, the district judge was of the opinion that the facts in the record were sufficient to support a finding of premeditation and malice aforethought. A review of the record supports the court's conclusion. The motion for an advisory instruction was properly denied.

Geer would assign error to admission of the testimony of Judy Holyoak, a bartender. She was called during the presentation of the State's case in chief and was questioned regarding the ownership of a truck abandoned by Geer in the parking lot of the bar. At that time she was not permitted to testify as to Geer's past behavior in the bar. The court held, however, that such testimony could become relevant in rebuttal depending upon what the defense presented. During his testimony, Geer specifically denied having been asked, a week before the homicide, to leave the bar for causing a disturbance. Miss Holyoak was later called as a rebuttal witness, and she testified that she personally asked Geer to leave because he was drunk, belligerent, cursing loudly, and kicking the dice machine.

Geer moved to strike that testimony, on the grounds that it was irrelevant and immaterial. The motion was properly denied. On appeal, Geer now contends that the testimony should have been stricken as improper character evidence, inadmissible under the provisions of NRS 48.055. Miss Holyoak was called as a witness to rebut a statement made by Geer while on the stand. Where evidence is admitted over a defendant's objection at trial, new grounds for objection may not be raised on appeal. O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956).

Next, Geer complains that the district judge erred in failing to define 'assault' in his instructions to the jury. He cites Wilkerson v. State, 87 Nev. 123, 482 P.2d 314 (1971), wherein this court held, in an appeal from a judgment of conviction of assault with intent to kill and assault with a deadly weapon, that the term 'assault' should have been defined for the jury. The court in Wilkerson refused to reverse, however, on the grounds that the failure to define 'assault' was harmless error and the accused's guilt was clear. Wilkerson is distinguishable from this case. In Wilkerson, assault was an essential element of the crime with which the defendant was charged. Here, 'assault' is used only in conjunction with issues presenting the defendant's theory of the case, i.e., self-defense. If defense counsel wanted his theory of the case better defined, he should have offered...