Lord v. State

• Decision Date: 07 February 1991
• Docket Number: No. 20660,20660
• Citation: 806 P.2d 548,107 Nev. 28
• Parties: , 59 USLW 2543 Thomas Russell LORD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 548

806 P.2d 548

107 Nev. 28, 59 USLW 2543

Thomas Russell LORD, Appellant, v. The STATE of Nevada, Respondent.

No. 20660.

Supreme Court of Nevada.

Feb. 7, 1991.

[107 Nev. 29] Lee Elizabeth McMahon, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and William P. Henry, Deputy Dist. Atty., for respondent.

OPINION

ROSE, Justice.

A jury convicted appellant Thomas Russell Lord (Lord) of three crimes: first degree murder, robbery with a deadly weapon and conspiracy to commit robbery and/or murder. The jury sentenced Lord to death. For reasons set forth below, we affirm the convictions and prison sentences therefor, but set aside the sentence of death and remand for a new penalty hearing.

FACTS

Lord and co-defendant Donald James McDougal (McDougal) were charged with the three crimes stated above. McDougal was tried first, found guilty of all three crimes, and sentenced to life with the possibility of parole for the murder. Appellant Lord was tried separately later, found guilty of the same crimes, and sentenced to death on the murder count, as well as to prison terms on the second two counts.

At Lord's trial, the State proved the following circumstantial case. On October 5, 1988, a 51-year-old man was discovered dead in the bushes just off Interstate 15 in Nevada near the California border. He died of multiple stab wounds. Less than two hours later, Lord, 32, and McDougal, 22, were identified about 76 miles away in California, driving the victim's pickup truck on the same highway. Danny Young, manager of a service station on Interstate 15 in California, testified that he chased Lord and McDougal after they stole some gas from his station. When he caught them, McDougal offered to exchange a gold ring for the gas, which Young refused. Young further stated that he impounded their truck to pay for the gas, and Lord and McDougal walked away into the desert. The two were arrested the next day.

Other testimony indicated that the victim's truck had numerous blood stains in it, that Lord had blood matching the victim's blood-type on one of his boots, and that the blood did not match the blood-type of either Lord or McDougal. Las Vegas Metropolitan Police Detective David Hatch (Hatch) testified that some boot-prints at the scene where the body was dumped appeared "similar" to the boots Lord was wearing. According to the State's theory of the case, Lord and McDougal stole not only the truck, but also the victim's gold ring and some money. The ring, the money and the murder weapon were never found. However, the victim's mother was allowed to testify that her son wore a gold ring and that she had just recently wired her son $25. Additionally, the victim's pockets were turned inside out and the victim had a patch of lighter skin around one finger, which, according to a physician, indicated that he had recently been wearing a ring.

The defense rested without offering any evidence other than a few photos of the scene where the victim was found. Based on the above evidence, the jury found Lord guilty of the three crimes with which he was charged.

On the day of the penalty hearing, the district judge denied a defense request for a half-day continuance to allow out-of-state witnesses, including Lord's father, to arrive to testify the next morning. As a result, Lord had only one out of seven planned witnesses to testify on his behalf at the penalty hearing. As part of the State's penalty case, Detective Hatch read to the jury a confession which non-testifying co-defendant McDougal had given to police. Following the hearing, the jury returned a penalty verdict of death on the count of murder.

Lord now appeals the convictions and sentence of death. Imposition of the death penalty was stayed pending appeal pursuant to NRS 177.095.

LEGAL DISCUSSION OF GUILT PHASE

Lord makes eight assignments of error as to the guilt phase, none of which, we conclude, warrants reversal of the convictions.

1. Prosecutor's misstatement of evidence.

During opening arguments, the prosecutor, William Henry, stated he would

                prove that McDougal had offered to exchange the "victim's " ring for gas, and that boot-prints near the body bore the "same " pattern as the boots Lord was wearing.  Lord contends that these two statements were error under Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962) (holding that, during opening argument, prosecutor must refrain from stating facts which cannot be proved).  Here, the testimony at trial did not directly establish that it was the victim's ring that McDougal had proffered.  Further, Detective Hatch could not say that the boot-prints [107 Nev. 33] were the "same" (just "similar"), and he admitted that the boot-prints, in sandy soil, were not very reliable.  Thus, we agree that Mr. Henry's comments somewhat overstated the evidence, and that this should be avoided.  However, we need not decide if this was error under Garner.   Defense counsel utilized his very ample cross-examination and closing argument to show that the State had not conclusively proved either of these two facts.  Further, the jury was instructed that argument by counsel is not evidence.  Under these circumstances, we conclude that any error on this point was harmless under NRS 178.598
                

2. Testimony of the victim's mother.

Lord argues that it was error for the court to allow the victim's mother to testify, essentially because her appearance and testimony were more prejudicial than probative. It is error to allow the relative of a victim to testify where the testimony is not needed to prove or to strengthen proof of a material fact, giving rise to the inference that the relative's appearance was contrived primarily to arouse the sympathy of the jurors; such an unnecessary appearance during the guilt phase may prejudice the penalty phase as well. People v. Brown, 45 Cal.3d 1247, 248 Cal.Rptr. 817, 826, 756 P.2d 204, 213 (1988). In Brown, the testimony of the relative was on purely collateral matters and, hence, was error. Here, however, the State correctly contends that the victim's mother's testimony was very pertinent to the circumstantial proof of robbery. Since the ring and the money were never found, the State needed this testimony to prove that these items were stolen. Therefore, we cannot conclude that the appearance of this witness was contrived primarily to arouse the sympathy of the jurors.

3. Expert testimony of detective.

Detective Hatch was allowed to testify that, in his opinion, based on his law enforcement experience, certain minor injuries on Lord indicated that Lord had recently been in a fight. Lord contends that it was error to permit this testimony on a medical issue because Detective Hatch was not qualified as a medical expert. Without deprecating Detective Hatch's law enforcement experience, we are persuaded by Lord's contention. When, as here, the cause of injuries is not immediately apparent, the opinion as to the cause should be given by one qualified as a medical expert, not by a law enforcement officer, pursuant to NRS 50.275. Here, for example, the physician might have testified on this point. In other cases where it is apparent that the victim has been in a fight, no opinion is needed. A photograph of the injuries and counsel's argument will suffice to inform the jury. In any event, layperson opinion pursuant to NRS 50.265 is not an appropriate vehicle to illuminate the cause of these types of injuries. Despite the above, however, we cannot conclude that this error prejudiced Lord's substantial rights. There was other strong evidence of guilt. Additionally, on cross-examination by defense counsel, Detective Hatch admitted that he was uncertain how fresh the wounds were and that the wounds could have been caused by simple accident, rather than a fight.

4. Claimed Doyle violation.

Lord points out that, on re-direct examination of Detective Hatch, Mr. Henry three times asked Detective Hatch whether Lord had identified himself when Hatch met Lord on the day of the arrest. Lord contends that these questions constituted an improper attempt to draw attention to Lord's post-arrest silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240,

49 L.Ed.2d 91 (1976). Here, however, unlike the cases in which we have found reversible error upon a Doyle violation, the questions went only to Lord's failure to identify himself, not his failure to give an exculpatory story. More important, the prosecutor never once attempted to argue or in any way refer back to this brief testimony. In all, while a defendant's failure to identify himself could be used improperly to call attention to post-arrest silence, this was not done in the present case and, hence, this questioning did not rise to the level of a Doyle violation.

5. Disallowed impeachment of witness.

The fifth error assigned by Lord relates to the testimony given by Mr. Young, the service station manager who chased Lord and McDougal after they stole gas from the station. During cross-examination, Mr. Young admitted that he "observed" the inside and outside of the victim's truck when he impounded it. Later, on re-cross examination, defense counsel attempted to ascertain why Young had not noticed the blood stains in the truck until the morning after he impounded it. Young explained that he did not notice the blood because it was night, the truck was parked in an unlit area, and blood looks like dirt at night. Young said he looked inside the truck, but refused to answer yes to defense counsel's query as to whether he "inspected" the interior that evening. After this, defense counsel sought to impeach Young with a prior statement Young had made in McDougal's trial that he "examined" the interior of the truck that evening. Concluding that this was impeachment on a collateral issue, the district court refused to allow the impeachment. Lord argues that it was error for the court to disallow this impeachment. If Mr....