630 P.2d 1221 | Nev. | 1981
Appellants David Charles Barnes and Joanne Aune appeal from their judgments of conviction of murder in the first degree. The appellants seek reversal predicated upon three grounds: (1) the trial court erred in admitting into evidence the murder weapon; (2) the prosecutor’s remarks prejudiced the jury; and (3) the court improperly instructed the jury.
THE FACTS
In the early hours of October 13, 1977, the appellants engaged a cab to take them to their home in Reno. Later in the morning, the driver was found in the ransacked cab with seven bullet holes in his back.
Appellants were soon apprehended; they had in their possession a pistol which proved to be the murder weapon. The appellants were charged with (1) willful, deliberate and premeditated murder, and (2) with murder committed during the perpetration of a felony. They were tried to a jury and found guilty of first degree murder, predicated on both counts. The appellants admitted the homicide. Aune testified, however, that the cab driver had tried to attack Barnes with a pen, and that she came to Barnes’ rescue by shooting the driver seven times in the back.
THE EVIDENCE
The appellants claim the court erred in admitting the murder weapon into evidence. They argue that they were illegally
THE PROSECUTORIAL STATEMENT
Defense counsel repeatedly asked Aune on direct examination what Barnes had said on the morning of the killing. The prosecution offered a hearsay objection and after one such objection volunteered the suggestion: “If David Barnes wants to talk, he can get up on the stand and do it.” Appellants contend that this was a prejudicial comment on Barnes’ right to remain silent at trial in contravention of the fifth amendment and Griffin v. California, 380 U.S. 609 (1965). This court has held that the test in such instances is whether the language was “manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to [respond].” Deutscher v. State, 95 Nev. 669, 682, 601 P.2d 407, 416 (1979), citing Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). Applying this test to the facts at hand, we fail to see how the above quoted language “naturally and necessarily” would be taken as a comment on the failure of the accused to testify.
THE INSTRUCTIONS
1. Appellants suggest that the trial judge erred in failing to give the jury their requested instructions defining voluntary manslaughter. We do not agree. Our review of the record leads us to agree with the lower court that there is no evidence which would justify giving the requested voluntary manslaughter instructions.
NRS 200.050 defines voluntary manslaughter:
“In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.”