Hardison v. State

• Decision Date: 06 February 1968
• Docket Number: No. 5197,5197
• Parties: Willie Richard HARDISON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 868

437 P.2d 868

84 Nev. 125

Willie Richard HARDISON, Appellant, v. The STATE of Nevada, Respondent.

No. 5197.

Supreme Court of Nevada.

Feb. 6, 1968.

Charles L. Kellar, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Clark County Dist. Atty., Alan R. Johns and Addeliar Guy, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

ZENOFF, Justice.

Jerry Mackta returned to his apartment at about 10:00 P.M. of the evening of July 3, 1964. He parked his car behind a red Pontiac automobile which, in turn, was parked in front of the apartment. Mackta noticed some clothes sticking out of the Pontiac which upon closer inspection turned out to be his clothes. Just then a man, later identified as the appellant, came out of the locked apartment, ordered Mackta out of the way, and sped off in the Pontiac. Mackta finding his apartment ransacked notified the police, giving them a description of the burglar and the license number of the Pontiac. In a very short time the police picked up Hardison in the Pontiac but the stolen items were never found.

Hardison was charged with burglary on one count, and with being an habitual criminal on a second count. He was convicted of both. His sentence was 1 to 15 years on the burglary and 10 to 50 years for being an habitual criminal.

As grounds for appeal Hardison assigns as error:

1. Fingerprint records used as exemplars were unlawfully obtained in violation of appellant's constitutional rights; therefore, such should have been suppressed as inadmissible evidence.

2. The police officer who obtained the fingerprints from the apartment and the appellant was not qualified as an expert; therefore, the trial court abused its discretion in admitting his testimony as expert opinion evidence.

3. The Nevada statute, NRS 202.360, which makes it a felony crime for an exfelon to possess a weapon capable of being concealed on his person, is unconstitutional in violation of his right to possess and bear arms. If this is true, the appellant was erroneously found to be an habitual criminal. Even if this is not true, such a felony conviction based on NRS 202.360 is not within the purview of the habitual criminal statute NRS 207.010(1).

4. Since defense counsel had previously been engaged in the prosecution of criminal cases as a member of the Clark County District Attorney staff and had likewise successfully prosecuted the appellant, there was a conflict of interest and appellant was denied the right to adequate defense by his counsel.

5. Count 2 of the information charging appellant with being an habitual criminal does not state a separate offense; therefore, separate sentences were erroneously imposed.

1. It is contended that the fingerprint exemplars used as evidence were obtained in violation of appellant's constitutional rights, therefore, such evidence should have been suppressed and not admitted.

NRS 174.465 requires that motions to suppress evidence shall be made prior to trial. This was not done. Nor was there such objection made at the trial of the case. The issue is not presented for the first time on appeal.

It is a general rule that failure either to utilize the statutory procedures to raise the question prior to trial or to object at the trial of the case will preclude appellate consideration of the issue when presented on appeal. Schaumberg v. State, Nev., 432 P.2d 500 (1967); O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). However, since appellant's contentions are grounded on constitutional questions this court is obligated to consider them on appeal. Nothing that the issue as raised and the arguments advanced in support thereof are identical to those considered and determined in Scott v. State, Nev., 434 P.2d 435 (1967), the contention is rejected as being without merit.

2. The question whether a particular witness is qualified as an expert and should be permitted to give opinion evidence is to be determined by the trial court in its discretion. The weight of his testimony is, of course, a question for the jury. Recognizing this, the trial court, itself, questioned the police officer regarding his qualifications as an expert, then permitted voir dire by the appellant. Satisfied, the trial court then ruled that the fingerprint testimony of the police officer may be introduced as expert testimony.

The record reveals that the police officer had some six months of formal training at the Institute of Applied Science studying fingerprint classification and identification methods. He had some 16 months of in-service tutelage from his supervisor likewise he studied on his own from monthly F.B.I. fingerprint bulletins. He had lifted almost 1,000 latent fingerprints, made comparison of 600 latent fingerprints with those in police record, and had made 15 positive comparisons. The appellant stresses the fact that the officer was not experienced in testifying at trial, having done so but once shortly before. This has no relevancy to the question of his expertise. Indeed, it can be said of many well-recognized experts that they have never testified. The trial court acted within the permissible limits of its discretion in receiving the officer's testimony.

3. Next, it is contended that NRS 202.360, making it a felony crime for a person previously convicted of a...