*1 a revised had the Blossers’ then rendered appraised property, the lower “to We remanded the cause for appraisal. govern.” decide which the two should Blosser v. figures Wilcox, 124, 126, 83 Nev. 424 P.2d us,
From the record before it now instead of appears from, two there is none. choose plausible appraisals really now stigmatizes his first evaluation of “appraiser” with,” Blossers’ property being “wrong begin a mere settlement, “to effect and not a attempt compromise,” thus, to as the latter rather than “appraisal”; accept former, one would have to his credit make an capacity but discredit his when he appraisal, veracity saying has made one. The now his styles second evaluation of the “appraiser” him; Blossers’ as the real property only appraisal yet, made for reasons Mr. Justice I would not con- suggested Batjer, sider it a Blossers’ for proper appraisal property, of these purposes parties.
However, justification since I find no proposition the Blossers rescinded the contract to enforce by attempting it, their under since the rights respondent insists the second evaluation the true “appraisal,” since the Blossers’ rights bewill frustrated if no is afforded to completely opportunity view, agree that, them in this I with the acquiesce majority remand, the Blossers should afforded opportunity available reject only If accept “appraisal.” they reject it, the contract of the must fail because the parties “appraiser” function, has not fulfilled his and we agreed by them cannot it for him. perform LUFFMAN,
RICHARD EUGENE FOUNTS GARY Respond- NEVADA, v. THE STATE OF Appellants, ent.
No. 6305
Seymour Reno, H. for Appellant Luffman. List, General, Rose, Attorney Robert Robert E. District Barengo, and Robert R. Attorney, District Deputy Attorney, County, Respondent. Washoe
OPINION Court, Zenoff,
theBy C. J.: Luffman were of two Gary Richard Founts convicted counts of and one robbery robbery armed count attempted for the a Reno shop. barber September robbery Founts was as the robber the three who identified barbers barbers, were in the robbery. time of the One of the shop at Mr. testified at the he had Keough, grand jury hearing that been held 1969. He Founts in said he up by him, voice recognized Founts’ before even to see turning twice, since ‘Stick says you recognize “When man them up’ that voice.” began
Before the the defense moved to testi- exclude to the mony regard robbery. The previous motion *3 at later tentatively granted that time and modified as to so allow but meeting, reference to earlier detailed testimony to show the circumstances of that meeting.
In attorney his examination of Mr. Keough, prosecuting referred to the as an “unfortunate meeting confrontation” April and characterized as No “highly circumstances unusual.” reference to the details of that meeting. only was made The to reference tended to show April meeting robbery a had taken was Mr. to Keough’s response series of place a stated, questions Keough Founts’ counsel. a man “When says, twice you, you ‘Stick them remember it.” up’
None the three barbers Luffman who allegedly of saw was the driver of the car. His conviction was getaway solely based witness, on the testimony of Noel. Noel prosecution Wayne stated that he arrived at Luffman’s Septem- on morning of 9, stayed ber drove to through day and downtown Reno He with Luffman and Founts. was left in Reno and did not again see the defendants that evening, until later when he He returned Luffman’s. stated that defendants were and dividing money talking robbery some of had com- they car, told his They they mitted when he returned. him had left car, which was as the robbery identified downtown Reno. roommate, Luffman introduce the of sought testimony his Harris, Edward to show were together at the time they Though been robbery. orally state had notified sev- eral began before the trial that Luffman offer intended testimony to the admission of objected it testimony,
this offer 174.087(1) By been followed.1 had not because that he was with testify Harris would it was shown proof, together left they 9 and that Luffman all on day September about 5:00 alone at Noel left 9:00 p.m. According as to events before the jury allowed to testify Harris was p.m. not allowed to 9:00 but was before 5:00 and after p.m. p.m. at 6:00 was at home state that left alone or that Luffman Noel when the took robbery place. p.m. (1) this appeal: two issues are addressed on Essentially introduction allowed the erroneously the trial Whether offense; (2) Whether April to the regard testimony testimony to disallow the alibi discretion an abuse of Harris. that evidence held frequently previous has
1. This court
and then
limited
only
purposes,
be admitted
may
offenses
value
probative
effect is
its
outweighed by
if its
only
prejudicial
127, 412
82 Nev.
Tucker
achieving
purpose.
41, 334
State, 75 Nev.
P.2d
(1966); Nester v.
P.2d
(1905).
Roberts,
P. 100
(1959);
Nev.
establishing the
substantially
evidence
there was other
Because
value
testimony
identity,
probative
element of
properly
offense was diminished
State, supra.
ordered excluded. Tucker
referred to the “unusual”
repeatedly
Though
prosecution
nowhere in the
meeting,
of the April
“unfortunate” nature
examination
did it elicit a
Keough
descrip-
Mr.
course of the
Therefore, no damaging
occurred.
tion of the offense which
the rule pro-
was introduced and
previous-offense
was not violated.
the introduction of such
scribing
503,
only testimony trial; by alibi district 1 NRS 174.087: Notice before defendant of investigation attorney provide statement results to with of alibi defense. to his defense evidence to estab- a defendant intends offer in 1. If alibi, attorney notice he shall the district written thereof lish an day arraignment days the or 10 before not more than 3 after trial, spe- Such date set for whichever is later. notice shall include the place to have been at as to the where he claims the cific information notice, alleged the In default of such evidence of such time of offense. court, good shown, the cause shall not be received unless alibi otherwise orders. 169 of defense counsel to questioning elicited as direct response as basis of error. be the defendant a raised may by are merit. Founts by The other asserted errors raised must be Therefore, with to Founts respect the conviction affirmed. 174.087(1)
2.
require
Statutes such as NRS
are
contemplated
to the
an
defense is
when
alibi
prosecution
Annot.
“Good situation pre- and the particular factors variety shown State, 161 be considered. Gray each case sented must (Wis. 1968). factors considered are Some of N.W.2d 893 states, including, other courts of reflected in decisions of to be introduced at sought Whether example: adjourn- an of the trial that even in the course such a late time cure the prejudice would not investigation ment for 130, Woodard, 246 A.2d state, (NJ.Super.App. State omission, 1968); excuse shown for the Div. an whether 1970); (Ariz. whether Adair, 469 P.2d of the crime with the occurrence failed describe information enable the accused prepare specificity sufficient 1969); (Kan. 429, 434 454 P.2d defense, Bush v. value probative substance as have
whether the alibi had such Martin, defense, 410 P.2d 137 (Ariz.App. *5 relevant, Also by analogy, are cases the effect of discussing state’s failure notice with required regard it intends to is witnesses Often produce. emphasized factor of and surprise its effect consequent prejudicial upon defendant’s investigation and cross-examination witnesses. (Alaska 1967); Battese State, P.2d 606 People 208, (Ill. 1968); N.E.2d Speck, Jackson v. 1969). 259 A.2d Also are (Md.App. considered why reasons notice was not the value of the given, offered testimony, the prejudicial effect either side admission or nonadmission of feasibility and Miner, (Vt. A.2d postponement. 1969). case,
In the instant we feel that an overview the situation leads to the that presented conclusion there was cause for good allowing with NRS despite noncompliance 174.087(1). The excluded alibi did at witness up” “pop hour, the eleventh so the state cannot claim to have been sur- prised Moreover, in its prejudiced investigation. made an offer of as at trial to what the alibi proof witness testify. would The importance of this was evident since directly contradicted that sole witness against Luffman. case This Shider, thus similar Commonwealth v. there, A.2d As the court held we (Pa.Super. hold on the facts requiring strict presented, compliance with the statute would defeat the justice ends of and play fair which is the policy underlying the statute. Founts;
Affirmed as regards reversed Appellant and new trial ordered as regards Appellant Luffman.
Mowbray, Thompson, JJ., Gunderson, concur. J., Batjer, concurring part part: dissenting majority’s I concur in the opinion regards as to appellant agree Founts and that the judgment of the lower should I affirmed. dissent from the respectfully majority’s opinion regards Luffman. appellant Luffman, without the written giving required by 174.087, roommate, to have his sought Edward testify were at they together their place of residence the time robbery. the alleged An offer proof made outside the The trial presence jury. Harris judge precluded giv- from ing testimony establish an alibi for Luffman. a few days1 been notified orally It the state had appears to offer intended
before the
that Luffman
began
*6
that
the trial court
of Harris. Luffman contends
the alibi testimony
its
when it precluded
abused
discretion
Luffman’s
this court
with
agrees
and the
majority
Luffman maintains
contention. As a
contention
companion
as alibi evidence
that the
of Harris was offered not
Noel, who
but as
the
witness
impeachment
prosecution
the
and after the time of
with Founts before
placed Luffman
had the
might of
alleged robbery.
Harris’
Although
dual
read “evi-
Noel we
nevertheless
effect
must
impeaching
placing
dence to
to
any testimony
establish an alibi”
mean
State ex
the robbery.
Luffman somewhere else at the time of
(Wis.
Burke,
1968).
rel.
Cf. State
Simos v.
NRS 174.087 is a statute. notice of that provides forceful. It unambiguous, positive given must be to establish an alibi intent offer evidence to trial, and it days before attorney to the district writing notice, evidence of that default of such further provides “[I]n court, upon good be received unless the such alibi shall not orders.” cause shown otherwise to 174.087(1) notice require as NRS
Statutes such are is contemplated when an defense prosecution construed. must be strictly law and derogation of the common in the majority out Ovitt, pointed State As supra. v. is with purpose opinion, compliance compelled strict witnesses the eleventh of alibi up” preventing “popping investigate to will be unable hour when the prosecution testimony, the trial is recessed for of the alibi unless veracity (1953). that Annot. A.L.R.2d purpose. notice, alibi, can evidence Whether of such discretion trial court. entirely is within the received 1955); 174.087; Selbach, (Wis. 68 N.W.2d State Woodard, 246 A.2d (NJ.App. (1965), this P.2d In Brown v. 81 Nev. in the trial reposed judge court the discretion said: “Of course will the lower unlimited, respect but court is an appellate See also manifestly wrong.” view unless court’s Lewis, 212, 50 Nev. P. Harris
No Luffman witness why reason was proffered the lack of notice. testify despite should have been permitted (2) period probably of time was two 1 Therecord indicates that days. there The trial found was no reason or court that specifically excuse for given by required Luffman his failure finding. only and the record this basis supports abuse in the of dis- appearing majority opinion, finding court, cretion is the that a the trial fact few before trial the attorney for advised the district orally Luffman attor- ney Luffman, Harris would be called an alibi for supply together prior with fact that state had information that Harris are lived Luffman. These facts not sufficient to that the trial support finding wrong. manifestly Selbach, In the of State case it was admitted supra, no written notice was the district given attorney pursuant However, a statute. attorney given the trial stated he had attorney the district shortly oral notice thereof before the trial and in his statement at trial he had reference opening made testimony. There proposed claimed *7 that this was sufficient the notice under statute and amounted “good cause shown” as the statute. The provided Wis- consin Court held that statute Supreme language was unambiguous. and plain Any notice thereunder must be given in and cause writing whether is shown for good permitting alibi receipt in absence of a written notice is a matter within discretion of the trial court.2
Here the indictment
found
Luffman and
against
was
filed on
22,
January
1970. In the indictment Luffman was accused of
the crime
or
committing
robbery
September
on
about
1969. The
the grand
were
on
proceedings
jury
filed
Jan-
27, 1970,
uary
in that
testified
transcript
victim
that
before
robbery
just
September 9,
took
6:00
place
p.m. on
1969. In that
transcript Wayne
Noel,
same
a
Richard
who
claimed to have been an
acquaintance
Luffman for
period
months,
of several
that he
testified
came Luffman’s residence
9, 1969;
on
that at about 4:00
September
of that
he
p.m.
day
loaned his automobile to
that
Luffman and
went
they
down-
Reno, Nevada,
town
he got
where
out of the automobile and
Luffman and Founts drove off. Noel further testified that he
returned to
Luffman’s residence
about 6:30
evening
p.m.
Luffman,
and found
Eddie
Founts and two other people.
Burke,
(cited
supra,
majority’s
2 Cf. State ex rel.
v.
Simos
in the
opinion)
precluded
testifying
where the
was
from
that he
place
at
was
a location other than the
of the accident because he had
given
applicable
notice
an alibi under the
Wisconsin statute
pertinent parts
very
similar to NRS 174.087. See
State
also
Rider,
(Kan. 1965);
Taylor,
v.
564
v.
P.2d
State
Here we do not have or any vagueness a situation where or alleged time of commission of crime for the first time discovered of an alibi witness is identity reason of investigation, because of a last minute alibi trial, we have proposed but instead all known of time period about a specific place roommate Luffman, two before trial com- months his approximately menced on 1970. March constitutionality, about the any
If there real question 174.087, question as notice-of-alibi statutes such Florida, 399 U.S. to rest in the case of Williams v. put said: (1970)3 when Court “We Supreme the United States has conclude, however, court which every apparently has against considered the that the self-incrimination issue privilege is not that the defendant requirement violated aby of an alibi defense and disclose alibi witnesses.” his where exception, jurisdictions
Almost
refused
accept
exercised their discretion and
courts have
with the notice-of-
testimony because of non-compliance
State
statute,
found no abuse.
v.
courts have
appellate
1969);
Selbach,
(Fla.App.
v.
Cox
So.2d
supra;
1966);
Dodd,
(Ariz.
v. Wil-
People
P.2d
State v.
Woodard,
1968);
liams,
(Mich.App.
160 N.W.2d
(Wis.
Cf.
State, 161
State
N.W.2d
Gray
supra;
1969),
(Kan.
451 P.2d
Ovitt,
In
supra.
Sharp,
of a
of alibi
that a notice
plea
statute required
applicable
not less than seven days
be served
the county attorney
not more than five
notice was served
before trial. The
not been
lower
held that there had
com-
before trial. The
*8
to grant
and refused
statutory requirement
with the
pliance
Court
of Kansas
Supreme
for late service and
permission
did
abuse its discretion
such
held that the lower court
(Kan. 1948),
trial court allowed a witness The appellate been timely given. written notice had not the trial court. and reversed court found abuse of discretion High Florida, supra, Court 3 In footnote 14 of Williams emphasize question case does not noted: “We that this involve sanction, validity petitioner had chosen not the threatened comply and to what extent a notice-of-alibi rule. Whether discovery against a State can enforce rules defendant who fails relevant, comply, by excluding probative raising question evidence is explore.” we Sixth Amendment issues which have no occasion opinion majority all destroying effectiveness of NRS 174.087 and it If it is a rendering nugatory. manifest abuse Luff- judge of discretion for the refuse relieve the effect 174.087, man then is hard to image of NRS where situation a trial could enforce the statute without judge committing error. merit,
His other of error assignments being judg- ment Luffman should be against affirmed. BROOKS, Appellants, Respondent.
JAMES A. BROOKS and LOIS JENSEN, v. MINNIE
No. 6264