Owens v. State

• Citation: 620 P.2d 1236,96 Nev. 880
• Decision Date: 16 December 1980
• Docket Number: No. 11897,11897
• Parties: Jackie Clinton OWENS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 1236

620 P.2d 1236 96 Nev. 880 Jackie Clinton OWENS, Appellant,
v.
The STATE of Nevada, Respondent. No. 11897. Supreme Court of Nevada. Dec. 16, 1980.

Page 1237

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

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., Las Vegas, for respondent.

[96 Nev. 881] OPINION

BATJER, Justice:

A jury found appellant guilty of sexual assault. Numerous contentions are raised on appeal. We affirm.

The victim testified that in the early morning hours of May 23, 1978, she awoke to find appellant in her bedroom. She jumped out of bed, but appellant closed the bedroom door to block her exit. She started crying, and appellant said he would take some money and leave. When the victim's six year old child came into the bedroom appellant grabbed a pair of scissors from the dresser, held them about six inches from the child's neck, and ordered the child to leave. Appellant then ordered the victim to get into bed. After throwing down the scissors, appellant had sexual intercourse with her. The victim [96 Nev. 882] testified that she was forced to have intercourse against her will.

Shortly after appellant left the premises, the victim reported the incident to the police. She had seen appellant a few times before, and was acquainted with him. Consequently, she was able to provide police with his name. That afternoon, two police officers went to his home. Appellant told the officers his name. The officers noted that he was wearing a pair of blue jeans with a red stripe which matched the description given by the victim. Appellant was placed under arrest and was charged with burglary, robbery and sexual assault. He was acquitted of the burglary and robbery charges, but was convicted of sexual assault.

1. Appellant contends that certain articles of his clothing were illegally seized by police officers at the time of the arrest, and that the district court erred by admitting the clothes into evidence. We need not decide whether the seizure was illegal. The items seized were merely cumulative evidence on the issue of identity of the assailant. The victim, who knew the assailant and was able to observe him for a relatively long period of time, positively identified appellant at trial. Evidence of recent intercourse was found on the jeans appellant was wearing at the time of his arrest, not on the other clothes which were seized. Furthermore, after the incident appellant wrote two letters to the victim in which

Page 1238

appellant essentially admitted that he was the assailant. Appellant did not testify or offer any evidence of an alibi. Thus, evidence proving the identity of the assailant was overwhelming. Accordingly, even if the clothes were illegally seized, their admission into evidence was cumulative, and any error was harmless beyond a reasonable doubt. Harrison v. State, 96 Nev. 347, 608 P.2d 1107 (1980); see Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980).

2. Appellant also contends that the denial of his pre-trial discovery motion seeking the victim's new address deprived him of due process and the right to effectively confront and cross-examine the witness. Following his arrest, appellant sent two letters to the victim and telephoned her at least twice. She moved from her former address in order to avoid further harassment. The prosecutor and district court refused to supply the new address, but agreed to make all necessary arrangements for defense counsel to meet with and interview the victim and her children.

A prosecutor must usually disclose the names and addresses of all witnesses. NRS 173.045(2). However, a defendant's right [96 Nev. 883] to confront witnesses is not violated by the trial court's refusal to disclose the address of a witness if disclosure could subject the witness to harassment, humiliation or danger. Brown v. State, 94 Nev. 393, 580 P.2d 947 (1978). In the circumstances of this case the district court did not commit error by refusing to order disclosure of the witness's new address.

3. Prior to trial the district court ordered appellant to produce handwriting and fingerprint exemplars, as well as saliva and blood samples. Appellant refused to obey the court's orders. The prosecutor attempted to establish appellant's fingerprints at trial by using a 1969 fingerprint card. References on the card to a prior arrest were blocked out. In response to the prosecutor's question as to the card, a police officer witness stated that the card was used "when we fingerprinted people in jail." Appellant's motion for a mistrial was denied. Appellant argues that the denial was...