Lloyd v. State

• Decision Date: 06 April 1978
• Docket Number: No. 9651,9651
• Citation: Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (Nev. 1978)
• Parties: Stanley LLOYD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 740

576 P.2d 740

94 Nev. 167

Stanley LLOYD, Appellant, v.The STATE of Nevada, Respondent.

No. 9651.

Supreme Court of Nevada.

April 6, 1978.

Charles L. Garner, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., H. Leon Simon, Chief Deputy Dist. Atty. and H. Douglas Clark, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Stanley Lloyd has appealed from his conviction following a jury trial on the charge of having raped a seventeen-year-old girl.Before this courthe seeks to challenge 1) the trial court's rejection of his requested jury instructions, 2) the trial court's confinement of the scope of his counsel's closing argument, 3) the admission into evidence of a photograph of the victim's injuries, 4) the sufficiency of the State's evidence, and 5) the propriety of the thirty-year sentence imposed upon him.We find Lloyd's claims to be without merit, and shall therefore affirm the decision below.

1) The rejected jury instructions.

Our review of Lloyd's proffered instructions convinces us that to the extent that they are not erroneous statements of the law in Nevada, their substance was encompassed within the instructions actually given by the trial court.SeeLawson v. State, 91 Nev. 519, 539 P.2d 116(1975);Geary v. State, 91 Nev. 784, 544 P.2d 417(1975).

2) The confinement of the scope of Lloyd's counsel's closing argument.

Lloyd argues that he was denied a fair trial when the trial court refused to permit his counsel in closing argument to instruct the jury on alternative theories of law relating to rape.Those theories substantially echoed those reflected in his rejected jury instructions.

However it is improper for an attorney to argue legal theories to a jury when the jury has not been instructed on those theories.Cosey v. State, 93 Nev. 352, 566 P.2d 83(1977).This line of closing argument was therefore properly proscribed.

3) The admission of a photograph of the victim's injuries.

Two photographs were admitted into evidence as plaintiff's Exhibits "I" and "2".Exhibit "I" is a Polaroid color photograph taken by Las Vegas Police staff of the victim's head and neck, showing bruises around the neck area.Exhibit "2" is an enlargement of Exhibit "I".

Lloyd argues that Exhibit "2" should not have been admitted into evidence because the coloring on the enlargement is somewhat darker than the original, depicting the bruises on the victim's neck as more pronounced than they appear in the original.However testimony at the trial repeatedly emphasized that Exhibit "I" was the original and Exhibit "2" the reproduction.Moreover, there has been no suggestion that Exhibit "2" is so gruesome as to shock the jury.SeeCutler v. State, 93 Nev. 329, 566 P.2d 809(1977).In the absence of such a claim and where the record reveals that the jury was under no misapprehension as to the nature of Exhibit "2", it was properly admissible as relevant evidence.Allen v. State, 91 Nev. 78, 530 P.2d 1195(1975).

4) The sufficiency of the evidence.

Lloyd took the stand in his own defense.He did not deny the consummation of the sexual act, but rather testified that such act had occurred at the insistence of the victim.The victim testified extensively at the trial to the effect that she had been physically attacked and had been forced to submit for fear of her life.Her testimony was corroborated by the photographs of her injuries.The jury was presented therefore essentially with an issue of credibility, and its decision will be given great weight on appeal.Wheeler v. State, 91 Nev. 119, 531 P.2d 1358(1975);Hankins v. State, 91 Nev. 477, 538 P.2d 167(1975).

5) The sentence.

The Department of Parole and Probation recommended a sentence of six years.Lloyd argues that because of this recommendation, a thirty-year sentence constitutes an abuse of discretion on the part of the trial court.However this court held in Collins v. State, 88 Nev. 168, 494 P.2d 956(1972), that: "(T)here is no requirement imposed upon the sentencing court to set the penalty in compliance with the recommendations of the Department of Parole and Probation.A trial court does not abuse its discretion by imposing a sentence in excess of that suggested by the Department."88 Nev. at 171, 494 P.2d at 957.

Rather, an abuse of discretion will be found only when the record demonstrates "prejudice resulting from consideration of information or accusations founded on facts supported only by impalpable or highly suspect evidence . . . ."Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161(1976).Lloyd has made no allegations of improper reliance on suspect evidence.Rather, he argues that because no new evidence, not considered by the Department of Parole and Probation, was brought to light, the recommendation of the Department should have been followed by the trial court.

However, the recommendation of the Department of Parole and Probation is based only upon the...