James v. State

784 P.2d 965, 105 Nev. 873, 1989 Nev. LEXIS 317

• Court: Nevada Supreme Court
• Decided: December 28, 1989
• Docket: No. 19603
• Status: Published

Opinions

OPINION

By the Court,

Young, C. J.:

At appellants’ joint trial, a confidential police informant testified about meetings and conversations he had with appellants James and Kirkland in Florida and Arizona concerning their plans to use a small Nevada airplane for a trip from Arizona to Mexico. An Arizona police officer testified that he arrested the appellants upon their arrival in Arizona in the airplane. He also testified that Arizona and federal authorities were pursuing a drug smuggling investigation of appellants.

Appellants contend that the district court erred in admitting evidence of the drug smuggling investigation in Arizona. During cross-examination, defense counsel established that no charges were ever filed against appellants in Arizona and requested that the Arizona police reports be made available. Despite a warning from the the court that they were close to raising collateral issues, defense counsel elicited further testimony concerning the Arizona arrests and related matters. Thereafter, the State requested a hearing outside the presence of the jury regarding whether defense counsel had opened the door on the underlying facts and circumstances of the Arizona investigation and arrests. The court ruled that, pursuant to NRS 48.035(3) and NRS 48.045(2), the State could proceed with questions concerning the matters raised by defense counsel’s cross-examination.

Because the trial judge reasonably determined that defense counsel’s cross-examination raised new issues that warranted further inquiry by the prosecution, there was no abuse of discretion in finding the testimony admissible under NRS 48.035(3). However, because the State did not establish by clear and convincing evidence that appellants committed conspiracy to import marijuana or other drug offenses, the testimony was not admissible under NRS 48.045(2). Nevertheless, because the testimony was properly admitted under NRS 48.035(3), the district court’s error was harmless. Futhermore, because the trial judge was not manifestly wrong in finding that several issues were raised by defense counsel’s cross-examination which were confusing and misleading to the jury, there was no abuse of discretion in his deciding that the probative value of the testimony outweighed its prejudicial effect.

Appellants also contend that the district court erred in refusing to give a special cautionary instruction to the jury regarding the credibility of a paid informant’s testimony. Although the informant’s testimony was corroborated by testimony from law enforcement officers, the district court should have given the jury such a cautionary instruction. See Williams v. State, 103 Nev. 106, 112, 734 P.2d 700, 704 (1987). However, as in Williams, we find the error harmless because the evidence of appellants’ involvement in a false insurance claim was overwhelming, there was a general instruction on credibility given to the jury, and through cross-examination and closing arguments the informant’s character and credibility were effectively exposed.

Appellants further contend that their convictions should be reversed because the State failed to prove that the crimes occurred in the proper venue. In Dixon v. State, 83 Nev. 120, 424 P.2d 100 (1967), we stated the general rule that it is sufficient if it can be concluded from the evidence as a whole that the act was committed at the place alleged in the indictment. We held that venue may be established by circumstantial evidence and need not be shown beyond a reasonable doubt. Id. at 121-122, 424 P.2d at 100-101 (citations omitted). Although appellants assert that a majority of states require that venue be proved beyond a reasonable doubt, we believe that any change in the level of proof currently required would more appropriately be made by the legislature. Furthermore, there was ample circumstantial and direct evidence to prove proper venue here.

Appellants finally contend that seven other errors, combined with the errors alleged above, require reversal of their convictions under the cumulative error doctrine. However, because none of appellants’ additional contentions have merit, the cumulative error doctrine does not apply.

Because we hold that appellants’ contentions lack merit, we affirm the district court’s judgment.

Steffen and Mowbray, JJ., concur.