Wilson v. State
This text of 498 P.2d 1342 (Wilson 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.
Opinion
[414]*414OPINION
Convicted of robbery in violation of NRS 200.380, appellant contends the trial court erred:
(1) “in admitting into evidence a pistol which was found in the car in which Appellant was riding when he was arrested”;
(2) “in permitting Luther J. Wills [an investigator for the District Attorney] to testify at the trial since his name was not listed in the Information.”
In the factual context of this case, neither contention has merit.
1. The first claim of error relates to the fact that during redirect examination of the officer who arrested appellant three nights after the robbery for which he was convicted, the prosecutor offered into evidence a chrome-plated gun found in a car occupied by appellant and three companions. In essence, appellant argues there was no evidence connecting this gun with appellant; no evidence it was like the weapon used in the robbery, except that the victim testified the robber’s weapon also had a shiny barrel; no evidence, indeed, that appellant even knew the gun was in the car; and therefore no foundation for its admission against appellant as circumstantial evidence of another crime. This argument would require the most serious attention, if the State had proved the gun’s existence and offered it during direct examination of the arresting officer. State v. Thompson, 364 P.2d 783 (Ore. 1961); People v. Smith, 108 N.E.2d 596 (Ill. 1952); People v. McCall, 52 P.2d 500 (Cal.App. 1935); People v. Yee Fook Din, 39 P. 530 (Cal. 1895).
However, the record shows that on direct examination, [415]*415neither the prosecutor nor the witness mentioned the gun. It was on cross-examination, by appellant’s counsel, that testimony was first elicited that the witness originally arrested appellant because he believed appellant guilty of a different robbery, and then found a gun with a “shiny” barrel. With these facts proved by appellant, if subsequent admission of the gun in specie was error, which we do not decide, that error was certainly harmless because it did not substantially add to facts already properly before the jury. State v. Tranmer, 39 Nev. 142, 154 P. 80 (1915); see also Wyatt v. State, 77 Nev. 490, 499, 367 P.2d 104, 109 (1961).
2. Appellant also assigns error because during the State’s case in chief the prosecutor called his own investigator to testify, seeking to elicit testimony about conversations with another “witness” who was not called to testify. On appeal, the State has had the candor and perception to admit that the investigator, who had no personal knowledge of any relevant evidence, was not a competent witness.
However, the record shows that when the prosecutor called investigator Wills to the stand, appellant’s counsel did not object that the investigator’s testimony would be incompetent as hearsay, or deny appellant’s right to confrontation. An objection then made, that forms the predicate for appellant’s claim of error, was that the investigator’s name was not endorsed on the Information in accord with NRS 173.045(2).1 Apparently, because appellant’s counsel did not initially mention hearsay and related problems, the trial court thought the investigator could give competent evidence, and believed the State was excused from listing him because it had not “reasonably expect[ed] to call him.” Id.; cf. Dalby v. State, 81 Nev. 517, 406 P.2d 916 (1965).
As soon as it appeared the prosecutor intended to adduce incompetent evidence, the court properly intervened sua sponte, cf. Garner v. State, 78 Nev. 366, 374 P.2d 525 [416]*416(1962), and sustained a hearsay objection appellant’s counsel then made.2 Appellant’s counsel made no motion for a mistrial.
Finding the assigned claims of error without merit, we affirm appellant’s conviction and sentence.3
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Cite This Page — Counsel Stack
498 P.2d 1342, 88 Nev. 413, 1972 Nev. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-nev-1972.