State v. Kassabian, 3649

• Decision Date: 28 April 1952
• Docket Number: No. 3649,3649
• Citation: 69 Nev. 146,243 P.2d 264
• Parties: STATE v. KASSABIAN.
• Court: Nevada Supreme Court

Page 264

243 P.2d 264

69 Nev. 146

STATE v. KASSABIAN.

No. 3649.

Supreme Court of Nevada.

April 28, 1952.

Ralli, Rudiak & Horsey, Las Vegas, for appellant.

W. T. Mathews, Atty. Gen., John C. Mowbray, Deputy Dist. Atty., Clark County, Las Vegas, and Robert E. Jones, Las Vegas, of counsel on brief, for respondent.

MERRILL, Justice.

On November 22, 1950, defendant Kassabian, following jury trial, was adjudged guilty of the crime of attempt to produce a miscarriage, commonly known as the crime of abortion. From that judgment and from order of the trial court denying new trial he has appealed. The matter with which we are here concerned is an assignment of misconduct on the part of counsel.

The woman upon whom the offense was alleged to have been committed (whom we shall call Patricia) was at the time of the alleged offense sixteen years of age. Defendant was a duly licensed physician and surgeon, whose specialty was the treatment of venereal disease. He admitted treating her. He asserted, however, that his examination of Patricia disclosed that she was not pregnant but was suffering from venereal disease and from retroflexion of the uterus and that it was for those matters that he treated her.

Defendant's principal contention upon this appeal is that there was not, as a matter of law, sufficient corroboration of Patricia's testimony under the requirement of § 10975, N.C.L.1929, that 'the defendant shall not be convicted upon the testimony of the woman upon * * * whom the offense shall have been committed, unless she is corroborated by other evidence.'

In this regard defendant contends that such corroboration as was presented, when taken by itself and without recourse to Patricia's testimony, is as consistent with defendant's story as with Patricia's. It must be conceded that the corroborative evidence is circumstantial and may, if one accepts the defendant's theory of the case, be considered as consistent with his story. Whether it was as consistent with innocence as with guilt was for the jury to consider. Their task in reaching the truth as to the actions of the defendant in the privacy of his office was not, therefore, an easy one and demanded a dispassionate, careful and analytical examination and weighing of all of the evidence. Further adding to its problems, this was a case in which the jury might most naturally succumb to influences of sympathy, passion or prejudice.

In close cases of this character where counsel's argument to the jury by virtue of the uncertain state of the evidence is magnified in importance, the importance of avoiding the misleading of the jury and of avoiding undue appeals to sympathy, passion and prejudice are likewise magnified. Unfortunately it is likewise true that it is in just such cases that a prosecuting attorney with a sincere conviction of the guilt of the defendant may most easily and understandably commit misconduct. However, as stated in State v. Rodriguez, 31 Nev. 342, 347, 102 P. 863, 865:

'[Prosecuting attorneys] have a duty to perform equally as sacred to the accused as to the state they are employed to represent, and that is to see that the accused has the fair and impartial trial guaranteed every person by our Constitution, no matter how lowly he may be, or degrading the character of the offense charged * * *.'

The closing argument to the jury by the prosecuting attorney, with which we are here concerned, may without exaggeration be characterized as inflammatory. All of the natural appeals to sympathy which the case presented were constantly emphasized.

These facts are stated merely to provide background for the actions assigned as misconduct, against which background the extent of prejudice resulting from such actions may more clearly appear.

In 53 Am.Jur. 386 (Trial § 480), it is stated:

'There is no rule of trial practice more universally accepted and applied than the rule that counsel may not introduce into his argument to the jury statements unsupported by evidence produced on the trial and made not as expressions of belief or opinion, but as assertions of fact. Judicial censure of misstatements of the evidence by counsel in arguing their case or statements of facts not in evidence or not warranted as a deduction from the evidence has been equally emphatic in both civil and criminal cases.'

In the course of cross-examination of the defendant by the prosecuting attorney we find the following:

'Q. Now, doctor, when you conducted the examination of this girl, was anyone present in your office? A. No, just myself.

'Q. Just yourself and the girl, is that right? A. Yes.

'Q. Isn't it the practice among doctors to always have someone present at the time when they examine a woman? A. Not necessarily, no.

'Q. Isn't it the usual custom? A. No. I don't have a big enough practice to have a nurse at the office, but it is not the usual custom.'

The defendant thus testified: First--that he did not employ a nurse; Second--that it was not the usual custom among doctors to have someone present while they examined a woman. No attempt was made to dispute this testimony upon either point and it remains uncontradicted in the record. If, in fact, the usual custom was otherwise it would have been an extremely simple matter to establish. Two other doctors gave testimony but neither was examined upon this point.

In the course of his closing argument to the jury the prosecuting attorney made the following statement:

'Ordinarily doctors have a nurse who is present to witness these treatments to women. Why didn't Doctor Kassabian have a nurse present? He must have been doing something he didn't want anyone else to know about, or else he would have a nurse present during the examination to protect him.'

Objection was promptly made and argued by counsel for defendant and the record continues:

'By the Court: I think it may stand. Although it is not in evidence what is the customary practice, the doctor stated that he didn't have enough practice to employ a nurse.

'[By the Prosecuting Attorney] I think, ladies and gentlemen, that the doctor didn't want a nurse around there, because a nurse would see what went on, and a nurse could come in and testify to what went on, and what that little girl told you----

'[By Defense Counsel] Object to that, your Honor, I believe that is exceeding the limit of opinion and conclusion. I don't want to interrupt----

'By the Court: I think that the testimony of the doctor was that he didn't have a nurse because he didn't have a large enough practice. He can draw his own conclusions from that. ...