Porter v. State

576 P.2d 275, 94 Nev. 142, 1978 Nev. LEXIS 507
CourtNevada Supreme Court
DecidedMarch 22, 1978
Docket9505
StatusPublished
Cited by39 cases

This text of 576 P.2d 275 (Porter 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
Porter v. State, 576 P.2d 275, 94 Nev. 142, 1978 Nev. LEXIS 507 (Neb. 1978).

Opinions

[144]*144OPINION

By the Court,

Manoukian, J.:

Appellant appeals from, a judgment and sentences imposed against him following jury verdicts wherein he was sentenced to nine years imprisonment for robbery, (NRS 200.380), and nine years for use of a deadly weapon in the commission of a crime, (NRS 193.165), the sentences, as mandated by statute, to run consecutively.

Appellant presents four issues for our disposition. (1) Was there substantial evidence upon which to convict appellant; (2) did the trial court commit error in refusing to permit purported expert testimony; (3) does the doctrine of accumulated error entitle appellant to a new trial; and (4) did the trial court commit error in denying appellant’s motion for new trial.

The victim of this crime, Wesley Speake, had been driving home from work on June 17, 1974, at about 3:30 a.m., when he noticed a disabled Cadillac convertible parked in a closed service station. The occupants, two well-dressed black couples, were attempting to remedy the mechanical problem when Speake approached and offered assistance. The Cadillac could not be restarted, and Speake offered to drive the individuals home.

After transporting the two women and one man to their respective residences, Speake drove the remaining male, who remained in the back seat, to his destination. Upon arrival, the man drew a knife, ordered Speake out of the vehicle, and demanded Speake’s money. After the man had possession of the money, he ordered Speake to walk with him to another destination. Speake refused, re-entered his vehicle, and drove away.

As Speake drove away, his passenger door, unbeknownst to him, was ajar and consequently he was later stopped by police [145]*145officers. He then informed the officers of the preceding events and gave a description of the individuals. The stalled automobile was subsequently located precisely where Speake had indicated.

Shortly thereafter, police officers visited Speake’s residence and exhibited several photographs of possible suspects. Speake immediately identified appellant as the robber. The officers cautioned Speake to take sufficient time to be sure, and after careful study, he again positively identified appellant as the perpetrator. The appellant was in fact the registered owner of the immobile Cadillac convertible located by the police. •

An arrest warrant subsequently issued for Porter, and approximately one month following the crime, he was found hiding under a bed in his girlfriend’s apartment. The arresting officer testified that Porter’s girlfriend claimed Porter was not present but consented to a search. The officer also testified that the bed was so low to the floor that Porter had to have had assistance in getting under it.

During trial, Porter’s defense consisted of alibi and mistaken identity. Porter’s girlfriend, his sister, and his sister’s boyfriend all testifed as alibi witnesses that Porter was with them on the night of the incident. There was some discrepancy in their several versions. Porter’s sister and her boyfriend testified that after they had dinner with Porter and his girlfriend at the home of Porter’s father, the two couples went to Porter’s apartment and were together until approximately 2:00 a.m. Porter’s girlfriend, however, testified that after dinner only she and Porter returned to the apartment, watched television, then fell asleep.

The mistaken identity defense was premised on Porter’s purported loan of his vehicle to a John Jones. Although Porter himself did not testify, several witnesses testified that another individual had been driving the Porter vehicle. One witness stated that he saw the Cadillac, but that someone else, not Porter, was driving. The girlfriend of John Jones said that she and Jones had used the Porter vehicle several hours prior to the robbery but that upon their return home she fell asleep and had no information whether Jones returned the car to Porter. Yet another witness testified that he was one of the individuals present when Speake offered his assistance and that John Jones was the driver of the Cadillac and also the last individual to be driven home. He stated that he did not know Jones personally but heard that was the driver’s name. Finally, the boyfriend of Porter’s sister testified that Jones had admitted the robbery.

The State presented evidence indicating that Porter’s sister and her boyfriend had been recent alibi witnesses in another [146]*146case, testifying that the accused in that case had been asleep at the time of the robbery. In addition, Speake testified identifying Porter as the person who robbed him.

The defense attempted to offer the testimony of a purported expert witness to the effect that there is little reliability associated with eyewitness identification. The trial court refused to permit such testimony.

The jury found Freddie Lee Porter guilty as charged.

A motion for a new trial was made principally on the affidavit of a court-appointed defense investigator who stated that he was present at a conversation in which John Jones, in the presence of several other people, admitted committing the robbery. During an evidentiary hearing, Jones was summoned as a witness but invoked the Fifth Amendment privilege against self-incrimination. Defense counsel also attempted to call a polygraph examiner to testify that Jones took a polygraph test and truthfully admitted committing the robbery.

The trial court denied the motion for new trial and entered judgment of conviction from which Porter appeals.

1. Substantial Evidence.

Appellant contends that there was no substantial evidence upon which to base a conviction. He argues that the defense produced witnesses who not only testified that he was elsewhere at the approximate time of the robbery, but also that he was not in possession of the vehicle associated with the incident. In addition, he argues there was testimony that John Jones had admitted complicity in the robbery to others. Based upon this evidence, it is appellant’s contention that a serious miscarriage of justice would be wrought if his conviction is permitted to stand.

In contrast to the exculpatory evidence and in addition to the other evidence of guilt, the jury heard the testimony of the victim who positively identified the appellant as the perpetrator. Such conflicting testimony addresses the sound discretion of the jury. Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975); Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975); King v. State, 87 Nev. 537, 490 P.2d 1054 (1971). Appellant acknowledges that the testimony of the victim, standing alone, would be sufficient to support his conviction. It follows that if this testimony considered alone is sufficient, it is no less sufficient in the presence of internally inconsistent testimony from the defense. The jury is at liberty to reject the defendant’s version of events. Harris v. State, 88 Nev. 385, 498 P.2d 373 (1972).

[147]*147The evidence, taken as a whole, amply supports the jury’s verdict.

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Bluebook (online)
576 P.2d 275, 94 Nev. 142, 1978 Nev. LEXIS 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-nev-1978.