Bails v. State

545 P.2d 1155, 92 Nev. 95, 1976 Nev. LEXIS 526
CourtNevada Supreme Court
DecidedFebruary 13, 1976
Docket7687
StatusPublished
Cited by50 cases

This text of 545 P.2d 1155 (Bails v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bails v. State, 545 P.2d 1155, 92 Nev. 95, 1976 Nev. LEXIS 526 (Neb. 1976).

Opinions

OPINION

By the Court,

Thompson, J.:

A jury convicted Terry Michael Bails of first degree murder and he has been sentenced to prison for life with the possibility of parole. The evidence pointing to guilt was wholly circumstantial in character, but is not assailed as insufficient. Bails does contend, however, that prejudicial error occurred when the court refused to instruct the jury in a certain way about circumstantial evidence, and that prejudicial evidence was erroneously received.

1. The court was requested to instruct the jury that “if the evidence is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, it is your duty to adopt that interpretation which [97]*97points to the defendant’s innocence, and reject the other which points to his guilt.” The request was refused and such refusal is assigned as error.

We have heretofore considered such an instruction in cases involving both direct and circumstantial evidence and have ruled that it is not error to refuse to give the instruction if the jury is properly instructed regarding reasonable doubt. Hall v. State, 89 Nev. 366, 513 P.2d 1244 (1973); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970); see also: Scott v. State, 72 Nev. 89, 295 P.2d 391 (1956); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Crane v. State, 88 Nev. 684, 504 P.2d 12 (1972); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970); Kovack v. State, 89 Nev. 364, 513 P.2d 1225 (1973); McKinney v. State, 89 Nev. 556, 516 P.2d 1404 (1973). We have also held it permissible to give the instruction in such a case. Crane v. State, supra. However, in each of the cited cases there was direct testimonial evidence of guilt.

It is the appellant’s contention that when all of the evidence is circumstantial in character, the court is compelled to give the instruction in order to insure fair jury consideration of the case. We do not agree. The leading case on this precise point is Holland v. United States, 348 U.S. 121 (1955), which we have cited with approval on at least three occasions. See: Vincze v. State, supra; Kovack v. State, supra; Hall v. State, supra. In Holland, a wholly circumstantial evidence case, the court wrote: “The petitioners assail the refusal of the trial judge to instruct that where the government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions (citations), but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect (citations).

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”

[98]*98In the case before us the jury was properly instructed on the standards for reasonable doubt. In line with Holland, we hold that it was not error to refuse the requested instruction.

2. ' Over objection, the court allowed the prosecution to introduce evidence of the defendant’s use of narcotics. This evidence was received under the authority of NRS 48.045(2): “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of .mistake or accident.” The court reasoned that such evidence was probative of identity and motive,'and that the probative value thereof outweighed its prejudicial effect in this instance. The jury was properly instructed as to the limited purposes for which the evidence was-received. Brown v. State, 81 Nev. 397, 400, 404 P.2d 428 (1965).

As already stated, the evidence of guilt was wholly circumstantial. A third person did not witness the homicide. The defendant did not confess his guilt nor did he utter incriminating statements to anyone. He testified at the trial stating that he was elsewhere when the killing occurred. His testimony was corroborated. However, incriminating circumstances placed him at the crime scene.

The victim was Mildred Nosier. It is asserted that she was killed on November 11, 1972, at her home in Las Vegas. Her body was found two days later.-It was necessary to force entry into the home since it was tightly secured. In the opinion of the pathologist the primary cause of deáth was a massive hemorrhage about the heart due to penetrating stab wounds of the lung and heart. The secondary cause of death was extensive brain damage with hemorrhage caused by a heavy blunt instrument.

A broken knife was found near the victim. The pieces fitted together. A paper towel was recovered in the kitchen. It had been wet with water and blood and had dried in the shape of a finger. The defendant had cut his right ring finger seriously enough to cause bleeding. When he was arrested on November 16, the cut was still unscabbed. The defendant had Type A blood and the blood on the paper towel also was Type A. About 42 percent of the population has Type A blood. Blood on the knife wás determined to be Type O. The victim had Type O blood. About-45 percent of the population has Type O blood.

[99]*99During autopsy, the pathologist removed a small plastic fragment from the victim’s brain. It was determined that this fragment came from the support column of the telephone found beside the victim’s body. The defendant’s fingerprint in blood was found on the base of the telephone. Type A blood was found on the telephone in the recessed area around the cradle. Type O blood was found in the area of the broken fragment.

The victim collected two-dollar bills. The defendant admitted having two two-dollar bills in his possession on November 11.

Finally, the evidence discloses that the victim was most conscious of the security of her home. She had multiple locks on all three doors and would seldom allow anyone to enter except her son, his girl friend, and the defendant. Her son and the defendant were best friends. Her son, of course, had a key, as did his girl friend.

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Cite This Page — Counsel Stack

Bluebook (online)
545 P.2d 1155, 92 Nev. 95, 1976 Nev. LEXIS 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bails-v-state-nev-1976.