White v. State, No. 11518

• Docket Nº: No. 11518
• Citation: 603 P.2d 1063, 95 Nev. 881
• Case Date: December 13, 1979
• Court: Supreme Court of Nevada

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603 P.2d 1063 95 Nev. 881 Danny Ray WHITE, Appellant,
v.
The STATE of Nevada, Respondent. No. 11518. Supreme Court of Nevada. Dec. 13, 1979.

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Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender, Las Vagas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert [95 Nev. 882] J. Miller, Clark County Dist. Atty., H. Douglas Clark, and James Tufteland, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

MANOUKIAN, Justice:

A jury found the appellant, Danny Ray White, guilty of burglary. NRS 205.060. On appeal he contends: (1) That the trial court committed error in its comments to the jury during their deliberations; (2) That the giving of an additional non-statutory instruction regarding reasonable doubt constituted reversible error; and, (3) That the evidence was insufficient to support the verdict. We find each contention to be without merit.

1. The Court's Inquiry.

During deliberations, the jury foreman sent a note to the trial court stating that the jury was unable to reach a unanimous verdict after numerous votes. In addition, the note indicated that "a better understanding of the term reasonable doubt would be helpful." Pursuant to NRS 175.451, the court [95 Nev. 883] thereafter convened in the presence of the defendant, both counsel, and the jury, whereupon the following discussion occurred:

THE COURT: Well, let me ask you this then before, with consent of counsel, counsel has asked that I ask you some preliminary questions with regard to the number of ballots you have taken, and without stating which why (sic), either one way or the other, if you could just give us a numerical lineup without stating for or against or whatever it might be, give us some idea if you have made any progress in your ballots. Have you made any progress from the time you stated (sic), has there been any material switch in the ballots?

MR. WOODBURY: Yes we have.

THE COURT: Has the shift been rather substantial?

MR. WOODBURY: I would say so, yes.

The trial court then gave the following instruction on reasonable doubt: "It is not necessary that the Defendant's guilt should be established beyond any doubt, or to an absolute certainty. But instead thereof the Defendant's guilt must be established beyond a reasonable doubt as hereinafter defined."

Immediately thereafter, the statutory definition of reasonable doubt, previously given to the jury, was repeated. NRS 175.211(1). ¹

In Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), the Supreme Court condemned the judicial inquiry into the numerical standing of a jury during deliberations. Burton did not decide, however, whether the numerical inquiry was reversible error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), resolved the issue, holding that a numerical inquiry constituted reversible error Per se. Recognizing that such an inquiry tends to be coercive, the Supreme

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Court said: "We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal." Id. at 450, 47 S.Ct. at 135.

The Supreme Court has never held, or intimated, that the [95 Nev. 884] Brasfield rule of Per se prejudicial error is a rule of constitutional law binding on the states. Indeed, there are explicit holdings that Brasfield merely created a federal procedural rule incident to the Supreme Court's supervisory power over federal courts. See Ellis v. Reed, 596 F.2d 1195...