Weakland v. State, 10985

• Decision Date: 18 August 1980
• Docket Number: No. 10985,10985
• Citation: 96 Nev. 699,615 P.2d 252
• Parties: Gerald Ronald WEAKLAND, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 252

615 P.2d 252

96 Nev. 699

Gerald Ronald WEAKLAND, Appellant, v. The STATE of Nevada, Respondent.

No. 10985.

Supreme Court of Nevada.

Aug. 18, 1980.

Morgan D. Harris, Public Defender, and Terrance M. Jackson, Deputy Public Defender, Las Vegas, for appellant.

Robert J. Miller, Dist. Atty., and David Swartz, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Gerald R. Weakland pled guilty to second degree murder for the killing of Hilda Kraus. In connection with his plea, Weakland made a written and videotaped statement implicating Rosalie Maxwell and Frank LaPena. At the preliminary hearing for Maxwell and LaPena, Weakland repeated his statement, testifying that he was hired by Maxwell and LaPena to kill Kraus. Weakland later repudiated these statements at the Maxwell and LaPena trials, asserting that neither Maxwell nor LaPena was involved in the killing. The state subsequently charged that Weakland committed perjury when he denied LaPena's and Maxwell's involvement in the Kraus killing. After a trial to a jury, Weakland was convicted of two counts of perjury.

Although Weakland makes numerous assignments of error in this appeal, his primary argument involves the admission of the prior testimony and statements of himself and the victim's husband, Mr. Kraus. It is Weakland's appellate contention that such admissions were reversible error as the statements and transcripts of the testimony contained much irrelevant and cumulative information. We agree and believe the judgment of conviction must be reversed and the cause remanded for new trial.

Over vigorous objection by appellant's counsel, the district court admitted the complete transcripts of appellant Weakland's previous testimony and statements as well as those of the victim's husband, Mr. Kraus. Each of the transcripts contained a detailed description of the actual killing of Hilda Kraus which appellant's counsel sought to exclude as irrelevant and highly prejudicial. The district court ruled that such information was relevant as the "acts surrounding the murder were so inextricably entwined with the charge as to be not susceptible of separation." NRS 48.015 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evidence relating to a crime other than that for which the appellant is on trial is relevant where it tends to show the false swearing of the appellant. State v. Cerfoglio, 46 Nev. 332, 205 P. 791, 213 P. 102 (1923). In this case, however, it is the participation of LaPena and Maxwell in arranging the murder, rather than the details of the actual killing, which gives rise to the perjury charges. Thus, those portions of the transcripts and statements which describe the commission of the crime are irrelevant and their admission clearly error. NRS 48.025(2).

It is asserted that the reception of this inadmissible evidence is not harmless error as it denied appellant his right to a fair trial. NRS 178.598 defines harmless error as that which does not affect substantial rights. Although NRS 178.598 does not provide a standard...