Maxey v. State

Nevada Supreme Court

Maxey v. State

578 P.2d 751, 94 Nev. 255, 1978 Nev. LEXIS 534

CourtNevada Supreme Court

DecidedMay 17, 1978

DocketNo. 9634

StatusPublished

Cited by5 cases

This text of 578 P.2d 751 (Maxey 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

Maxey v. State, 578 P.2d 751, 94 Nev. 255, 1978 Nev. LEXIS 534 (Neb. 1978).

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Opinion

OPINION

Per Curiam:

Appellant stands convicted, by jury verdict, of robbery (NRS 200.380) with use of a deadly weapon (NRS 193.165). His principal contention on appeal is that a hypothetical fact situation given by the judge during voir dire as an illustration of circumstantial evidence constituted an improper comment relative to his guilt or innocence.

Although the alleged improper comment was made during voir dire, appellant’s counsel failed to object until after the jury was sworn and both sides had concluded their opening statements. Where, as here, appellant has knowledge of the misconduct, he must assert his right to a mistrial immediately or be deemed to have waived any alleged error. Cf. Scott v. State, 88 Nev. 682, 504 P.2d 10 (1972); State v. Hartley, 22 Nev. 342, 40 P. 372 (1895); Horne v. State, 506 S.W.2d 596 (Tex.Crim.App. 1974). Moreover, even assuming error, the record contains overwhelming evidence of appellant’s guilt and, thus, we deem any such error harmless. NRS 178.598. See Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971).

Appellant’s other contentions are without merit and, accordingly, the district court judgment is affirmed.

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OPINION

Per Curiam:

Appellant stands convicted, by jury verdict, of robbery (NRS 200.380) with use of a deadly weapon (NRS 193.165). His principal contention on appeal is that a hypothetical fact situation given by the judge during voir dire as an illustration of circumstantial evidence constituted an improper comment relative to his guilt or innocence.

Although the alleged improper comment was made during voir dire, appellant’s counsel failed to object until after the jury was sworn and both sides had concluded their opening statements. Where, as here, appellant has knowledge of the misconduct, he must assert his right to a mistrial immediately or be deemed to have waived any alleged error. Cf. Scott v. State, 88 Nev. 682, 504 P.2d 10 (1972); State v. Hartley, 22 Nev. 342, 40 P. 372 (1895); Horne v. State, 506 S.W.2d 596 (Tex.Crim.App. 1974). Moreover, even assuming error, the record contains overwhelming evidence of appellant’s guilt and, thus, we deem any such error harmless. NRS 178.598. See Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971).

Appellant’s other contentions are without merit and, accordingly, the district court judgment is affirmed.

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Bluebook (online)

578 P.2d 751, 94 Nev. 255, 1978 Nev. LEXIS 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxey-v-state-nev-1978.

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