Moser v. State

• Decision Date: 30 December 1975
• Docket Number: No. 8172,8172
• Citation: 544 P.2d 424,91 Nev. 809
• Parties: Edward August MOSER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 424

544 P.2d 424

91 Nev. 809

Edward August MOSER, Appellant, v. The STATE of Nevada, Respondent.

No. 8172.

Supreme Court of Nevada.

Dec. 30, 1975.

Rehearing Denied Jan. 28, 1976.

Carl Martillaro and Arthur J. Bayer, Jr., Carson City, for appellant.

Robert List, Atty. Gen., and Elliott A. Sattler, Deputy Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Dan M. Seaton, Chief Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

MOWBRAY, Justice:

A jury found appellant, Edward August Moser, guilty of murder of the first degree and fixed his sentence at life imprisonment with possibility of parole. ¹ Moser has appealed from his judgment of conviction, asserting several assignments of error, which we reject as meritless; therefore, we affirm.

1. During the early evening hours of December 22, 1972, Moser met his girl friend, Bobbie, at the Basin Bar in Las Vegas. Later in the evening, Roy Batiste entered the bar. Moser and Batiste became involved in a heated argument. There were racial slurs exchanged. Moser claimed Batiste made advances toward Bobbie. Later, Moser left the bar for a short time, and then returned. The verbal battle appeared to have subsided, and Batiste, apologizing to the patrons for his actions, departed. At this juncture, the evidence is at a variance. Moser testified that he met Batiste in the parking lot; that Moser became fearful of him and took his shotgun from his car to scare Batiste; that Batiste hit the gun, and it accidentally discharged, killing him. A disinterested witness, William Jarrett, testified differently. He said that Moser, when he noticed Batiste leaving, walked hurriedly past Batiste, exiting the bar before him; that after the two had left, Jarrett pulled the door open and saw the barrel of a gun protruding from a corner of a building, pointed at Batiste, who had one hand raised and the other at his side. Moser was completely concealed. Jarrett witnessed a shotgun blast, saw Moser then emerge from around the building, break open his gun, and remove the remaining shells. Moser left the scene and threw his gun in the desert. ² 2. Moser claims there was insufficient evidence presented to the jury to support the jury's finding that he was guilty of first degree murder. He claims it was all an accident. There was a direct eyewitness to the crime, and if the jury chose to believe him (Jarrett) rather than Moser, which they apparently did, it was their prerogative to do so.

". . . [O]ne may be guilty of murder in the first degree although the intent to commit such a homicide is formed 'at the very moment the fatal shot is fired.' " Payne v. State, 81 Nev. 503, 509, 406 P.2d 922, 926 (1965). When a design is once formed, the haste with which it is put into execution in no way affects or modifies the degree of guilt. State v. Gregory, 66 Nev. 423, 212 P.2d 701 (1949). Malice aforethought may be inferred from the intentional use of a deadly weapon in a deadly and dangerous manner. Moreover, the intention to kill may be ascertained or deduced from the facts and circumstances of the killing, such as the use of a weapon calculated to produce death, the manner of the use, and the attendant circumstances characterizing the act. Payne v. State, supra. There was sufficient evidence in the record below to support a charge of deliberate and premediated killing.

'Where there is substantial evidence to support a verdict in a criminal case, as the record indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).

3. Moser also contends that the court committed reversible error in giving a 'lying in wait' instruction. ³ Appellant contends that the evidence presented did not support such an instruction. The elements constituting 'lying in what' have not heretofore been discussed in Nevada. In addressing this issue, we are guided by that canon of statutory construction which provides that words in a statute having a well defined meaning at common law are presumed to be used in their common law sense, unless it clearly appears that another meaning was intended. Sheriff v. Smith, 91 Nev. 729, 542 P.2d 440 (1975). A succinct statement of the conduct on the part of the defendant which will support a finding of murder lying in wait is found in People v. Atchley, 53 Cal.2d 160, 346 P.2d 764, 772 (1959):

. . . The elements necessary to constitute lying in wait are watching, waiting, and concealment from the person killed with the intention of inflicting bodily injury upon such person or of killing such person. . . .' See also People v. Thomas, 41 Cal.2d 470, 261 P.2d 1 (1953). Cf. State v. Brooks, 103 Ariz. 472, 445 P.2d 831 (1968).

Applying the tests of Atchley, supra, to the instant case, we find that there was a 'watching, waiting, and concealment.' Jarrett's testimony would support an inference that Moser, after concealing himself behind the building, 'watched and waited' for Batiste. An instruction will be deemed proper if it is consistent with any reasonable inference that the jury might draw from the evidence. People v. Smith, 142 Cal.App.2d 287, 298 P.2d 540 (1956).

4. Moser's final allegation of error results from the prosecution's statements made during final argument, which are footnoted below. ⁴ The comments made were improper. They were designed to inflame the emotions of the jury. They had no place in a trial, and counsel's objection should have been sustained. The issue before us is whether the comments mandate reversal. We have held that the failure of defense counsel to seek corrective instructions precludes appellate review. In State v. Hunter, 48 Nev. 358, 367, 232 P. 778 781 (1925), this court held that 'to entitle a defendant to have improper remarks of counsel considered on appeal, objections must be made to them at the time, and the court must be required to rule upon the objection, to admonish counsel, and instruct the jury.' This requirement was reiterated in State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948), and more recently in Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967). No such request was made in the instant case.

Additionally, this is a case where the evidence was free from doubt. As this court said in Pacheco v. State, 82 Nev. 172, 179, 414 P.2d 100, 103 (1966):

'Improper argument is presumed to be injurious. If the case, however, is free from doubt, the appellate court will not reverse. (Cites omitted.) If it is closely contested, the error will be considered prejudicial. . . .'

An eyewitness observed the murder in the instant case. The issue of guilt was not close. Therefore, we conclude that prejudicial error requiring a reversal and a new trial did not occur. Accordingly, we affirm the jury's verdict and Moser's judgment of conviction.

BATJER, ZENOFF and THOMPSON, JJ., concur.

GUNDERSON, Chief Justice (concurring):

I agree that the prosecutor's 'Merry Christmas' argument constituted misconduct. Moreover, in the factual context of this case, I agree that such misconduct may be deemed non-prejudicial. With the approval of my brethren, however, I take this occasion to note that this court will consider penalizing prosecutors personally for similar derelictions hereafter. Such unprofessional tactics, however well intentioned, burden our court system in intolerable ways.

First, inflammatory argument inevitably creates serious appellate issues, occasioning unnecessary expenditure of time by this court, and by counsel, even if we ultimately decide reversal for a new trial is unnecessary--as we have in this case. The waste ensuing from improvident prosecutorial comment often does not end in this court, of course. Frequently, as may well happen in the instant case, the defense raises similar issues again in federal court, sometimes successfully and sometimes not, but always at additional public expense needlessly occasioned by the overzealous prosecutor.

Second, where a new trial ultimately is ordered, everything done before is at best a total loss. Indeed, with the passage of time, marshaling evidence necessary for successful presentation of the people's case may have become more difficult and costly, or even impossible. In such instances, the...