Kazalyn v. State
| Decision Date | 24 January 1992 |
| Docket Number | No. 21429,21429 |
| Citation | 108 Nev. 67,825 P.2d 578 |
| Parties | Joseph Robert KAZALYN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender, Las Vegas, for appellant.
Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland and Thomas Carroll, Deputy Dist. Attys., Las Vegas, for respondent.
FACTS
At approximately midnight on March 20, 1989, appellant Joseph Robert Kazalyn (Kazalyn) and his bride of one month, Judy Pain Kazalyn, argued on the way home from a dinner party. Kazalyn contends they argued about Mrs. Kazalyn's use of cocaine and the fact that he threw her cocaine out of the car window. The argument resulted in Mrs. Kazalyn exiting the car on Industrial Road near Las Vegas.
Subsequently, Dennis Sweeney (Sweeney) was driving on Industrial Road when he struck an object lying in the roadway. Sweeney stopped his truck and backed up, discovering that he had hit a woman. He got out of his truck and began looking for a vehicle to flag down for assistance. Both Sweeney and his passenger, Pamela Anderson, noticed a car on the southbound shoulder of the road, approximately 150 yards away, when the car's headlights came on and began to approach Sweeney and the victim. Sweeney asked the driver of the car, Kazalyn, to call the police. Sweeney became suspicious when he noticed a woman's purse sitting on the passenger seat next to Kazalyn. Sweeney said, "She was with you, wasn't she?" whereupon Kazalyn smiled and said, "What's happening?" Sweeney then left to call the police.
Shortly thereafter, Anthony Montoya was travelling on Industrial Road when he saw a body lying in the road. He pulled his truck over so that his headlights illuminated the body. He noticed Kazalyn's car about five or ten yards away and went over to find out if the police had been called. He thought Kazalyn was a bystander because Kazalyn did not display any emotion. Montoya got a "creepy feeling" from Kazalyn and went back to his truck because he did not want to be near Kazalyn.
Upon arriving at the scene, the police learned that the woman Sweeney ran over was Kazalyn's wife, and that she had been a passenger in Kazalyn's vehicle. Kazalyn gave a series of three statements to the police, in which he recounted different versions of the events leading to his wife's death.
At the scene of the accident, two pools of Mrs. Kazalyn's blood were found. One pool was found at the point of initial impact by Sweeney's truck, which was connected to the second pool of blood by "drag marks" of blood and flesh. During an examination of Mrs. Kazalyn's body, the police found a tire track on her right thigh which bore the general characteristics of Kazalyn's left rear tire. Mrs. Kazalyn's face also showed signs of bruising, which the medical examiner testified occurred prior to being hit by Sweeney's truck. Mrs. Kazalyn did not have bruises on her face earlier that evening at the dinner party.
Kazalyn stood trial and was convicted by a jury of murder with the use of a deadly weapon. A penalty phase was conducted, whereupon the jury sentenced the defendant to life without the possibility of parole. The sentence was enhanced by a consecutive term of life imprisonment without the possibility of parole for the use of a deadly weapon.
On appeal, Kazalyn asserts the following errors: 1) there was insufficient evidence to convict him of first degree murder; 2) statements made to the police regarding a polygraph examination and prior bad acts should not have been admitted into evidence; 3) the jury instruction on reasonable doubt violated his due process rights; 4) the jury instructions did not adequately define premeditation; 5) the enhanced penalty for use of a deadly weapon was improper; 6) a separate penalty hearing should not have been held; and lastly, 7) the district court erred in informing the jury that with a sentence of life imprisonment with the possibility of parole, Kazalyn would be eligible for parole in ten years, when he actually would be eligible in twenty years.
Standard of Review.
The standard of review for sufficiency of evidence upon appeal is whether the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt. Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Where there is substantial evidence to support the jury's verdict, it will not be disturbed on appeal. Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937 (1978).
The State's theory at trial was that Kazalyn incapacitated his wife and left her lying in the roadway to be hit by another vehicle. Kazalyn contends that any number of vehicles may have struck the body and continued on without stopping.
While the case against Kazalyn is circumstantial, there was sufficient evidence for the jury to find the defendant guilty of murder in the first degree. The uncontroverted physical and testimonial evidence indicates that Kazalyn deliberately left his wife incapacitated in the roadway and watched while another vehicle struck her helpless form. There was more than sufficient evidence upon which a reasonable jury could find Kazalyn guilty beyond a reasonable doubt.
The decision to admit or exclude evidence, after balancing the prejudice to the defendant with the probative value, is within the discretion of the trial judge. Halbower v. State, 93 Nev. 212, 215, 562 P.2d 485, 486-87 (1977); see also, NRS 48.035. 1 The trial court's determination will not be reversed absent manifest error. Lucas v. State, 96 Nev. 428, 431-32, 610 P.2d 727, 730 (1980).
Kazalyn made three statements to the police wherein he offered several times to take a polygraph examination to prove that his version of the circumstances regarding his wife's death was the truth. Kazalyn initiated the offer to take a polygraph examination in each and every instance. At trial, all three statements were admitted into evidence. Kazalyn argues that the admission of his offers to take a polygraph examination is reversible error.
The case which articulates the standard in Nevada regarding polygraph evidence is Santillanes v. State, 102 Nev. 48, 714 P.2d 184 (1986). There, we held that a defendant's refusal or offer to submit to a polygraph examination is inadmissible and incompetent evidence. Id. at 50, 714 P.2d at 186. However, in the recently decided Davis v. State, 107 Nev. 600, 817 P.2d 1169 (1991), this court held that the admission of the defendant's videotaped statement wherein he offered to take a polygraph examination and subsequent prosecutorial references to the offer was harmless error.
The case before us differs from both Santillanes and Davis; here, the prosecutor did not refer to Kazalyn's offer to take a polygraph examination. There was no emphasis placed on the polygraph offers. This case also differs from Santillanes in that Kazalyn's offers to take a polygraph were not introduced into evidence in order to show consciousness of his guilt. Rather, the offers came into evidence simply as part of the interviews between Kazalyn and a police detective.
Generally, a disclosure that a defendant was willing or unwilling to take a lie detector test is inadmissible because it tends to prejudice the jury for or against the defendant. 95 A.L.R.2d 827 (1964). The strength of the evidence against a defendant is one criterion for determining whether the admission of the defendant's willingness or unwillingness to take a polygraph examination constitutes prejudicial error. Id. at 830. Where there is strong evidence of guilt, disclosure of whether the defendant was willing to take a lie detector test tends to be less prejudicial. Id.
A defendant's offer to take a polygraph examination tends to strengthen the credibility of the defendant. State v. Freeman, 24 Ariz.App. 367, 538 P.2d 1168, 1169 (1975); Coughran v. State, 565 P.2d 688, 691 (Okla.Crim.App.1977). Where the defendant cannot show he was prejudiced by the admission of his willingness to take a polygraph examination, it is harmless error to admit his statements. Freeman, 538 P.2d at 1169; People v. Skiles, 115 Ill.App.3d 816, 71 Ill.Dec. 333, 341, 450 N.E.2d 1212, 1220 (1983); Coughran 565 P.2d at 691. Kazalyn enhanced his credibility by spontaneously offering to take a polygraph examination. He failed to show that the jury was prejudiced against him by admission of the statements. Additionally, there is substantial evidence of his guilt.
This court is not advocating that a defendant's offer to take a polygraph examination be admitted into evidence. We affirm our holding in Santillanes that polygraph evidence in any form (whether it be the defendant's offer or refusal to take a polygraph examination or results of the examination) is not admissible unless the parties have stipulated to its admission in writing. Santillanes v. State, 102 Nev. 48, 50, 714 P.2d 184, 186 (1986). However, in the case before us, we hold that admission of Kazalyn's offers to take a polygraph examination was harmless error.
Evidence of prior misconduct is not admissible if its only relevancy is to show that the accused most likely committed the crime because he is of a criminal character; the evidence must be relevant for some other purpose. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983); see also, NRS 48.045(2). 2 This court has recognized that a defendant may be prejudiced by evidence of past crimes; the jury may find guilt more easily when it is known that the defendant has committed other acts of wrongdoing. Nester v. State, 75 Nev. 41, 46, 334 P.2d 524, 527 (1959).
Kazalyn argues that the district court erred...
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