Miranda v. State, 14553

• Decision Date: 07 October 1985
• Docket Number: No. 14553,14553
• Citation: 101 Nev. 562,707 P.2d 1121
• Parties: Roberto Hernandez MIRANDA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1121

707 P.2d 1121

101 Nev. 562

Roberto Hernandez MIRANDA, Appellant, v. The STATE of Nevada, Respondent.

No. 14553.

Supreme Court of Nevada.

Oct. 7, 1985.

Morgan D. Harris, Public Defender and Thomas W. Rigsby, Deputy Public Defender, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

STEFFEN, Justice.

Following a jury trial, appellant was convicted of one count each of first degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon and grand larceny. Following a separate penalty hearing, the jury imposed the death sentence on appellant for his first degree murder conviction. Appellant now appeals from the judgment of conviction and from the imposition of the death sentence. For the reasons set forth below, we affirm the judgment of conviction and the imposition of the death sentence.

THE FACTS

At Miranda's jury trial, Fernando Cabrera, an acquaintance of Miranda, testified that on the evening of August 8, 1981, Miranda asked him for a ride to the victim's home in Las Vegas. According to Fernando, he drove Miranda to the victim's home, and waited in his car in front of the victim's home for approximately one hour before entering the victim's home. When Fernando entered the home, he saw the victim's body on the floor, and saw that appellant was covered with blood and was holding a knife.

According to Fernando, when he entered the home Miranda advised him that he had gone to the victim's home "for drugs" and that "they tricked" him. Miranda then told Fernando to help him search the house for valuables. Because he apparently feared Miranda, Fernando helped him search the house, and helped Miranda take a television set and stereo from the victim's home. The two men also took a watch and ring from the victim, which Miranda told Fernando to keep. Fernando testified that Miranda was wearing gloves while they searched the victim's home.

Fernando also testified that Miranda approached him the next day, and again asked him for a ride to the victim's home, this time to take the victim's truck and to dispose of some incriminating evidence Miranda thought might have been left in the home. Fernando drove Miranda to the victim's The victim's body was found on August 10, 1981, by friends of the victim, who immediately called the police. All witnesses agreed that the victim's apartment was in a state of disarray, and several witnesses testified that various items of the victim's property were missing. Police determined that the victim had been stabbed in the chest by a large knife and had died as a result of a punctured lung sometime thereafter.

home, along with a third party, Emmett Anderson, whom the state was unable to locate prior to trial. Apparently because Miranda did not know how to drive a manual transmission, Fernando drove the truck to Fernando's apartment, with Miranda and Anderson following behind him in Fernando's car.

Following the above events, Miranda apparently fled to Los Angeles. David Cabrera testified at Miranda's trial that while Miranda was in Los Angeles, he saw what appeared to be a blood-stained shirt in Miranda's suitcase. David Cabrera also testified that Miranda told him he left Las Vegas because he had killed a man during the course of a narcotics transaction.

On his own behalf, Miranda presented several witnesses who testified that Fernando Cabrera had told them that Fernando had actually been the one who committed the murder. Several of Miranda's witnesses also testified that they had seen Fernando in blood-stained clothing shortly after the murder occurred.

Following the guilt phase of Miranda's trial, the jury found him guilty of one count each of first degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon and grand larceny. At the penalty phase of Miranda's trial, the jury sentenced Miranda to death for the first degree murder conviction. The district court also sentenced Miranda to two consecutive fifteen year prison sentences for the conviction of robbery with the use of a deadly weapon, and a ten year concurrent sentence for the grand larceny conviction. Miranda now appeals from each of these convictions and sentences.

THE GUILT PHASE

Miranda asserts that the district court erred at the guilt phase of his trial by refusing to admit into evidence an out-of-court statement made by Emmett Anderson, the person who Fernando Cabrera claims accompanied Miranda and Fernando to the victim's home the day after the murder. Anderson was not available to testify at trial, and Miranda therefore attempted to introduce into evidence a statement made by Anderson to the police prior to trial indicating that he had not gone to the victim's home with Miranda and Cabrera and that he knew nothing of the murder. The district court refused to admit Anderson's statements on the ground that they constituted inadmissible hearsay.

At trial and again on appeal, Miranda argues that the district court should have admitted Anderson's statements pursuant to NRS 51.315(1). This statute permits a district court to admit the out-of-court statement of a non-testifying party, when the declarant is not available to testify at trial and when the nature of the statement itself and/or the special circumstances under which it was made offer strong assurances of accuracy. See also Woods v. State, 101 Nev. 128, 696 P.2d 464 (1985); Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976).

Anderson's statements, however, were not of an inherently trustworthy nature and were not made under special circumstances which might have given rise to strong assurances of accuracy. The statements consisted of Anderson's denial of his own involvement in criminal activity, and were made to police at a time when Anderson was a potential suspect in the crime. Accordingly, the statements were self-serving in nature and unreliable for purposes of admission under NRS 51.315(1). The district court therefore did not err in excluding these statements.

Miranda also contends that the district court erred in excluding from evidence certain transcribed statements Fernando Cabrera made to police prior to trial, many of At trial and again on appeal, Miranda contends that the district court should have admitted the transcribed statements under the "business records" exception to the hearsay rule contained in NRS 51.135(1). ¹ The business records exception to the hearsay rule generally permits a party to introduce into evidence reports made during the regularly conducted course of business. Therefore, the police report itself, which was made when Fernando gave his statement to police, would have been admissible as substantive evidence to demonstrate such things as the date on which the report was made or the fact that the statement was actually taken. See United States v. Smith, 521 F.2d 957, 964 (D.C.Cir.1975). Nevertheless, the business records exception does not itself permit a party to introduce into evidence the actual contents of an out-of-court statement given to police by a witness to a crime concerning the events of the crime itself. Id.; see Frias v. Valle, 101 Nev. 219, 698 P.2d 875 (1985). Any statement given by a witness to a police officer is itself hearsay and must itself be independently admissible under a separate and distinct exception to the hearsay rule. See United States v. Smith, supra; see also NRS 51.365 (hearsay included within hearsay is not excluded under the hearsay rule if each part of the statement is independently admissible under an exception to the hearsay rule).

which were inconsistent with Fernando's trial testimony. The district court excluded the transcribed statements on the ground that they constituted inadmissible hearsay.

Although Miranda failed to make this argument either at trial or in his briefs on appeal, to the extent that Fernando's out-of-court statements to police were inconsistent with his trial testimony, they were independently admissible as substantive evidence under NRS 51.035(2)(a), the statutory exception to the hearsay rule which permits the introduction of prior inconsistent statements made by a testifying witness. ² See also Levi v. State, 95 Nev. 746, 748-49, 602 P.2d 189 (1979). Accordingly, the district court should have admitted any transcribed statements made by Fernando that were inconsistent with his trial testimony.

We conclude, however, that Miranda was not prejudiced by this error. The prior inconsistent statements given by Fernando Cabrera would not have served to exculpate Miranda. Instead, the inconsistencies in question pertained primarily to the sequence of events surrounding the commission of the offense; at best, Miranda might have used the inconsistent statements to impeach Fernando's overall credibility as a witness. Miranda, however, was given a full opportunity to accomplish this at his trial, when the district court permitted him to extensively cross-examine Fernando concerning his prior inconsistent statements. Accordingly, since the jury was made fully aware of the inconsistencies in question and since Miranda was given a sufficient opportunity to impeach Fernando's credibility in this regard, we conclude that Miranda was not prejudiced by the district court's decision not to admit the actual transcribed statements.

We have reviewed Miranda's remaining contentions concerning the guilt phase of his trial and conclude that they are without

merit. Accordingly, we now turn to consider Miranda's challenges to the penalty phase of his trial.

THE PENALTY PHASE

At the penalty phase of Miranda's trial, the state argued the existence of only one aggravating circumstance in its attempt to persuade the jury to impose the death sentence. See NRS 200.030(4). ³ Specifically, the state argued that the murder had been committed during the course of a robbery. See NRS 200.033(4...