Turner v. State, 12430

• Decision Date: 03 June 1982
• Docket Number: No. 12430,12430
• Parties: Roosevelt TURNER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 971

645 P.2d 971

98 Nev. 243

Roosevelt TURNER, Appellant, v. The STATE of Nevada, Respondent.

No. 12430.

Supreme Court of Nevada.

June 3, 1982.

[98 Nev. 244] Manos & Cherry, and Mark Bailus, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, and Randy Pike, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

PER CURIAM:

Following a jury trial, appellant Roosevelt Turner was convicted of two counts of robbery, two counts of kidnaping, and two counts of battery with the intent to commit robbery, each with the use of a deadly weapon.

One night, at approximately 11:30 p. m., the two victims were forced, at gunpoint, to admit appellant and his cohort into their apartment. They were later joined by a third intruder. During the lengthy ordeal which followed, the victims were tied, threatened with death, moved to various rooms throughout the residence, and physically harmed. Under coercion, the victims revealed the location of their money and jewelry. Appellant and his companions left the premises only after coercing a promise from one of the victims to obtain more money.

On appeal, appellant contends it was error to find him guilty of first degree kidnaping as a separate associated offense. See NRS 200.310(1). ¹ We disagree.

A separate conviction of kidnaping will lie if the movement of the victims is not incidental to the associated offense and there is a substantially increased risk of harm beyond that necessarily present in the associated offense. Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978). Whether the movement of the victims is incidental to the associated offense and whether it increased the risk of harm to the victims are questions of fact to be determined by the trier of fact in all but the clearest cases. Sheriff v. Medberry, 96 Nev. 202, 606 P.2d 181 (1980). In the case at bar, the evidence does not warrant interference with the jury's determination.

We also disagree with appellant's claim that it was prejudicial error to admit into evidence his inculpatory statement suggesting his presence at the crimes.

While at the police station to retrieve his property, appellant was interviewed by the police officer connected with the investigation of the crimes. ² During this interview, and before the statement was made, appellant informed the officer that he "didn't want to talk about it."

The respondent concedes that the officer's continued conversation with appellant is a violation of appellant's constitutional right to remain silent. Nevertheless, not every constitutional error mandates reversal. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Where the independent evidence of guilt is overwhelming, the improperly admitted evidence is harmless error and the resulting conviction will not be reversed. Accord Chapman v. California, supra. See Corbin v. State, 97 Nev. 245, 627 P.2d 862 (1981).

In the instant case, appellant was positively identified by both victims as one of their assailants. The case against appellant does not rest solely upon circumstantial evidence, but is predicated upon the testimony of eyewitnesses to the crimes. See Corbin v. State, supra. Accordingly, the error was harmless beyond a reasonable doubt.

The numerous other issues raised on appeal have been considered and are without merit or fail to demonstrate prejudicial error.

The judgment of the district court is affirmed.

GUNDERSON, C. J., MANOUKIAN, SPRINGER and MOWBRAY, JJ., and ZENOFF, Senior Justice, ³ c...