Yates v. State

596 P.2d 239, 95 Nev. 446, 1979 Nev. LEXIS 507
CourtNevada Supreme Court
DecidedJune 14, 1979
Docket10402
StatusPublished
Cited by19 cases

This text of 596 P.2d 239 (Yates 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
Yates v. State, 596 P.2d 239, 95 Nev. 446, 1979 Nev. LEXIS 507 (Neb. 1979).

Opinions

OPINION

By the Court,

Manoukian, J.:

A jury found appellant guilty of robbery (NRS 200.380) and [448]*448the use of a deadly weapon in the commission of a crime (NRS 193.165), and the trial court sentenced him to consecutive terms of fifteen years in state prison, the sentences to run consecutively to any prior sentences.

Wanda Newman, age 12, reported to the Las Vegas Metropolitan Police Department (LVMPD) that on May 29, 1977, she and her three younger brothers, James, Shaun and Terrill, were at home in Las Vegas when, at approximately 11:00 p.m., two black men entered her family’s apartment, subsequently pulled a gun and stated their intention to search the premises for money. Shaun and Terrill were locked inside the bathroom while the intruders ransacked the house. Finding no money, the men took two leather coats and various other items of clothing belonging to Wanda’s mother, Gloria McFirrin.

Subsequently, on June 3, 1977, at police headquarters, Wanda looked through a photographic lineup of black males. After viewing a number of pictures, she identified appellant as a suspect, resulting in appellant’s being charged.

At trial, appellant refused to take the stand. His defense consisted of testimony from two police officers who investigated the crime and stated that the single fingerprint taken from the scene was definitely not his. Appellant now seeks a reversal, claiming that certain irregularities during the course of his trial tainted his conviction.

Only two of the proffered issues warrant our consideration: (1) whether the court’s examination of a child witness prejudiced appellant’s case to such an extent that his motion for mistrial should have been granted; and (2) whether the trial court erred by failing to exclude evidence of appellant’s prior felony convictions.

/. The court’s examination of a child witness.

Wanda positively identified appellant as one of the perpetrators, both from her pretrial identification and from her recollection of his face at the time. Wanda’s mother testified that her house had been ransacked and her two leather coats stolen. Wanda’s youngest brother, Shaun, aged 9, testified that he saw the gun and that the intruders put him and Terrill in the bathroom. However, Shaun did not participate in any pretrial identification procedures and was unable to identify, appellant at trial. The prosecutor asked Shaun:

Q. If one of the men who were in your house that day walked by you on the street, would you be able to identify him?

[449]*449Defense counsel objected to the question as calling for speculation by the witness. The objection was sustained but the court then inquired of the witness whether he recognized appellant. Shaun testified that he could not recognize Yates as one of the perpetrators. Consequently, Yates cannot claim prejudice.

2. The prior convictions.

Appellant next contends that his motions in limine to exclude, for purposes of impeaching his testimony, evidence of his 1969 robbery conviction and his 1977 larceny conviction, both felonies, were improperly denied. He alleges the trial court’s denial of his motions prompted his decision not to take the stand. He therefore submits the trial court abused its discretion in finding the probative value of the prior convictions for impeachment outweighed their prejudicial effect. NRS 48.035.

Our statutes and case authority permit impeachment by proof of prior felony convictions which are not too remote. NRS 50.095;1 Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974); Anglin v. State, 86 Nev. 70, 464 P.2d 504 (1970); Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968). Beyond the contemplation of our legislature, appellant urges the use of prior felony convictions for impeachment should further be limited to only those felonies specifically determined relevant to the truthfulness or veracity of the witness. See People v. Beagle, 492 P.2d 1 (Cal. 1972); Gordon v. United States, 383 F.2d 936 (D.C. Cir. 1967); Luck v. United States, 348 F.2d 763 (D.C. Cir. 1965). NRS 50.095 imposes no such requirement, nor have any of the prior decisions of this court.2 However, our legislation contemplates a balancing process to determine whether the evidentiary usefulness of the proposed impeachment by prior [450]*450felony convictions, is substantially outweighed by the danger of unfair prejudice, NRS 48.035(1), or by considerations of undue delay and cumulativeness. NRS 48.035(2). While the nature of the underlying offense by which impeachment is sought may affect the trial court’s determination as to the relevance, and hence admissibility of the impeachment, that determination will be reversed only upon a clear showing of abuse. Jones v. State, 93 Nev. 287, 564 P.2d 605 (1977).

Even in those jurisdictions which adhere to the rule appellant espouses, since robbery and larceny involve dishonesty, convictions for such offenses are often held admissible for purposes of impeachment. See United States v. Wilson, 536 F.2d 883 (9th Cir. 1976), cert. denied, 429 U.S. 982; People v. Beagle, supra; United States v. Simpson, 445 F.2d 735 (D.C. Cir. 1970). Further, appellant’s 1969 conviction was not too remote, NRS 50.095(2); Anderson v. State, 92 Nev. 21, 544 P.2d 1200 (1976), and although similar to the charge for which appellant was on trial, cf. People v. Beagle, supra, we have not excluded such evidence in our prior cases. See, for example, Anderson v. State, supra.

Finally, we turn again to appellant’s claim that the trial court’s denial of his motion in limine compelled him to remain silent out of fear of impeachment. The record reveals that this potential was a weighty factor considered by the trial court in passing on the admissibility of the evidence. People v.

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Cite This Page — Counsel Stack

Bluebook (online)
596 P.2d 239, 95 Nev. 446, 1979 Nev. LEXIS 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yates-v-state-nev-1979.