Langford v. State

• Citation: 600 P.2d 231,95 Nev. 631
• Decision Date: 27 September 1979
• Docket Number: No. 10477,10477
• Parties: Tom LANGFORD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 231

600 P.2d 231 95 Nev. 631 Tom LANGFORD, Appellant,
v.
The STATE of Nevada, Respondent. No. 10477. Supreme Court of Nevada. Sept. 27, 1979.

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Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender, Las Vegas, for appellant.

[95 Nev. 632] Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and H. Leon Simon, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

[95 Nev. 634] OPINION

MOWBRAY, Chief Justice:

Appellant Tom Langford was tried to a jury and convicted of robbery, one count of first degree kidnapping, two counts of second degree kidnapping, and the use of a deadly weapon in the commission of each of the said offenses.

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He has appealed from his judgment of conviction seeking reversal on the grounds that (1) the district attorney failed to comply with a discovery order; (2) the district court improperly instructed the jury concerning eyewitness identification; (3) the district court erred by failing to instruct the jury that an inference adverse to the prosecution could be drawn from the failure of Woody Hamric to testify; and, (4) the district court improperly instructed the jury regarding the law of kidnapping.

THE FACTS

At approximately 2:30 a. m. on October 19, 1976, Langford approached the rear door of a Las Vegas coffee shop and asked to see Woody Hamric, the dishwasher. In response to this inquiry, Sanford Walters, the manager of the coffee shop, instructed Langford to make his inquiry at the front of the shop. Immediately thereafter, Langford and Michael Clarke appeared in the front of the shop and told the waitress, Cynthia Walters, that they wished to see Hamric. Hamric then entered the front of the shop and Langford stated to Hamric that he had been sent to see about a job. Langford and Hamric then went to the rear of the shop to speak with Sanford Walters about applying for a job. When Sanford Walters turned to get Langford a job application, Langford displayed a firearm and ordered Hamric and Sanford Walters to the front of the shop. Upon arriving at the front of the shop, Langford ordered everyone, including five customers, to the back of the shop where he confined them in a walk-in freezer. Langford and Clarke then brought Cynthia Walters to the front of the shop where she was ordered to empty the cash register. She was then led back to the walk-in freezer, and Langford and Clarke fled. The eight persons in the freezer remained there for a few minutes, gaining release when Sanford Walters kicked down the freezer door.

Shortly after the robbery, Clarke was apprehended while [95 Nev. 635] fleeing the scene. He was identified as one of the perpetrators by both Sanford and Cynthia Walters. The police then showed the Walters some mugbooks of possible suspects, but neither was able to identify the second perpetrator. On October 26, however, both of the Walters were individually shown a photo line-up, from which each immediately identified Langford as the second perpetrator.

THE ISSUES

1. Prior to trial, the district court ordered the State to provide discovery of specified matter to appellant, including "(a)ll photographs shown in any photo arrays for identification purposes." Pursuant to this order, appellant was provided with copies of the photos used in the October 26 photo line-up. On cross-examination, Cynthia Walters stated that she had also looked at mugbooks after the incident in an attempt to identify the perpetrator. Thereafter, appellant moved for a mistrial contending the failure to provide the mugbooks violated the discovery order. The district attorney then stated that he was unaware the Walters had viewed the mugbooks, but would provide appellant with them. The district court denied the motion for a mistrial, and appellant contends this was error.

A trial court is vested with broad discretion in fashioning a remedy when, during the course of the proceedings, a party is made aware that another party has failed to comply fully with a discovery order. See NRS 174.295. Remedies available to the district court include the power to "permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances." Id. Here, the district court permitted inspection of the mugbooks by counsel for appellant, a remedy expressly sanctioned by NRS 174.295, and thus within the bounds of the court's discretion. We will not find an abuse of discretion in such circumstances unless there is a showing that the State has acted in bad faith, or that the non-disclosure results in substantial prejudice to appellant, and that such prejudice has not

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been alleviated by the trial court's order. See Maginnis v. State, 93 Nev. 173, 561 P.2d 922 (1977). Cf. United States v. Heiden, 508 F.2d 898 (9th Cir. 1974). In the instant case, it is apparent from the district attorney's statements at trial that the non- disclosure was inadvertent. Furthermore, even were we to assume the non-disclosure prejudiced appellant, the trial court alleviated this prejudice by allowing [95 Nev. 636] inspection of the mugbooks at a time during the trial when appellant could, if he so elected, cross-examine witnesses concerning the mugbooks. Accordingly, we find no abuse of discretion in the order...