McMichael v. StateMcMichael v. State
- Reporters:
- , ,
- Before:
- Manoukian
By the Court,
Manoukian, J.:Elko Police were notified on September 24, 1975, by a twelve-year-old male youth that while in Lamoille Canyon, Elko County, he witnessed appellant orally copulating a young boy. An arrest warrant issued incident thereto, and on October 16, 1975, appellant was arrested in California on the warrant. Shortly thereafter on October 20, 1975, appellant was taken into custody by the FBI on a federal Dyer Act charge. On January 20, 1976, Elko authorities issued a formal request to obtain custody of appellant which was granted by the federal authorities in March, 1976.
Trial was held on February 22-23,1977, and the judgment of conviction of one count of the infamous crime against nature, a felony, was entered on March 21, 1977. 1 This appeal followed.
Appellant raises the following issues for our consideration. (1) The trial court erred in admitting evidence of appellant’s past and subsequent similar crimes and acts; (2) the trial court erred in refusing appellant’s attempt to impeach a witness; (3) the trial court erred in refusing appellant’s proffered jury instructions; (4) appellant was denied his constitutional right to a speedy trial; and (5) appellant was not given proper credit for time served. We turn to treat these questions.
1. Admission of Similar Crimes.
During respondent’s case-in-chief, the court admitted into evidence testimony of the thirteen-year-old victim that he and appellant had recently engaged in similar proscribed oral copulation both prior and subsequent to the incident leading to appellant’s arrest. The trial court admitted this testimony to prove intent or the absence of mistake or accident. 2 We agree.
The general rule is that proof of character to evidence particular criminal conduct is inadmissible unless and until the accused gives evidence of his good character.
McCormick on Evidence,
§ 190 (2nd ed. 1972); State v. Henley, 557 P.2d 33 (Or.App. 1976);
compare,
Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968). The rule prohibiting proof of prior misconduct is an application of the general rule. Such evidence is admissible only if it is relevant for some purpose other than to show the accused probably committed the crime because he is of a criminal character.
See,
Demmert v. State, 565 P.2d 155 (Alas. 1977);
see also,
Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976).
Moreover, in sex crimes generally a more liberal judicial attitude exists in admitting evidence of prior and subsequent proscribed sexual conduct. See, 77 ALR2d 841. Upholding in a prosecution for fellatio, case-in-chief testimony of boys other than those with whom defendant was charged with having committed the acts, the court in State v. McDaniel, 298 P.2d 798 (Ariz. 1956), said:
Certain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration. The fact that in the near past one has given way to unnatural proclivities has a direct bearing upon the ultimate issue whether in the case being tried he is guilty of a particular unnatural act of passion. The importance of establishing this fact far outweighs the prejudicial possibility that the jury might convict for general rather than specific criminality. Even granting the general rule of inadmissibility of evidence of independent crimes to prove the offense charged, many courts recognize a limited exception in the area of sex crimes to prove the nature of the accused’s specific emotional propensity.
Id. at 802-03. Accord, State v. Miller, 564 P.2d 1246 (Ariz.App. 1977); State v. McFarlin, 517 P.2d 87 (Ariz. 1973); People v. Covert, 57 Cal.Rptr. 220 (App. 1967); compare, Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976).
Appellant contends that liberalization of the general rule of exclusion as to him results in undue prejudice because its probative value was substantially outweighed by the danger of prejudice. Here, the trial court only admitted evidence of sexual conduct between the appellant and the victim.
See,
People v. Stanley, 433 P.2d 913 (Cal. 1967);
see also,
State v. Waites, 490 P.2d 188 (Or.App. 1971);
cf.
People v. Kelley, 424 P.2d 947 (Cal. 1967). Admission of the evidence involved the trial court’s discretionary determination in balancing the prejudicial effect of proffered testimony against its probative value.
The high degree of relevancy, less prejudice to the accused and the general difficulty of proving such crimes are factors which have contributed to the development of this narrow exception to the general rule.
See, McFarlin, supra.
Because of the dangers of creating assumptions of guilt in the minds of the triers of fact, the risks attendant to compelling the accused to meet collateral charges and possible confusion of the issues, this exception mandates proof of similar offenses which are near in time to the principal offense and which do not apply to mere criminal propenstities in general but rather to specific sexual proclivities. The evidence should be received with extreme caution, and if its relevancy is not clear, the evidence should be excluded.
Kelley, supra;
Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959); State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918). Whenever a confrontation occurs between relevancy and the general rule that protects the accused against prejudice likely to follow admission of such evidence, the trial court must, as was done in the instant case, weigh the probative value of the proffered
In the instant case, we find no abuse in the admission of the testimony, Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964); State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963), since the acts were similar, were committed within a period immediately preceding and following the instant offense, and involved sexual aberration.
2. Attempt to Impeach Witness.
Appellant next contends error in the trial court’s refusal to permit him to impeach a prosecution witness for bias. Although the record is vague, it appears appellant was attempting to show bias since appellant had testified for the prosecution in a federal court against a relative of the witness. On objection, the court rejected such evidence as irrelevant.
We have held that great latitude in cross-examination is allowed to test a witness’s motives, interests, animus, accuracy, and veracity. Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969), cert. denied, 398 U.S. 932; State v. Boyle, 49 Nev. 386, 248 P. 48 (1926). In State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948), this Court conceded that a cross-examiner would be entitled to impeach any witness for bias or interest which may tend to color his testimony. Rejecting appellant’s contention of error, however, we stated that impeachment for bias must be controlled by the sound discretion of the trial court. On this record, we will presume that the trial court reasonably exercised its discretion in excluding the evidence.
3. Proffered Jury Instructions.
Appellant contends error in the trial court’s refusal to give certain jury instructions. The proffered jury instructions dealt with the crime of lewdness with a child and provided that such crime was necessarily included as a lesser crime within the infamous crime against nature with which appellant was charged.
In support of this argument, appellant cites State v. Wall, 248 P.2d 222 (Idaho 1952), which held that lewd and lascivious conduct is a necessarily included crime within the infamous crime against nature. The Idaho statute, however, is distinguishable from the Nevada statute in that the Nevada law expressly excepts from the crime of lewd and lascivious conduct with a child the acts constituting the infamous crime against nature.
4. Denial of Speedy Trial. ■
Appellant contends that he was neither timely brought before a magistrate (
Appellant was detained only three days in a California jail on the Nevada charge until federal jurisdiction attached, at which time he was charged with violations of federal law and placed in federal custody. The claimed delay was minimal and in no way caused by the State. Furthermore, appellant demonstrates no prejudice.
See,
United States v. Bandy, 421 F.2d 646 (8th Cir. 1970);
cf.
Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969). The proscription in
Similarly without merit is appellant’s claim that incarceration from the arrest on October 16, 1975, to the Nevada arraignment on March 26, 1976, denied him his right to a speedy trial. From October 20, 1975, to March 24, 1976, appellant was in a federal correctional facility. Appellant relies on Smith v. Hooey, 393 U.S. 374 (1969), as authority that the state must nevertheless bring to trial an individual incarcerated in a federal prison. That case is distinguishable from the instant case. There, the federal prisoner made repeated unsuccessful demands to be tried by the state. In the instant case, appellant made no such demand and was in fact substantially responsible for any claimed delay. Respondent nevertheless requested his release from federal custody pursuant to the Agreement on Detainers in order that appellant could stand trial on the state charge. Thus the State fulfilled its obligation to give appellant a speedy trial.
5. Credit for Time Served.
Appellant contends that he was not given proper credit for his presentence time served in jail. The trial court gave appellant 374 days credit for jail time served from October 16, 1975, though October 20, 1975, and from March 24, 1976, through March 31, 1977. Appellant claims, however, that he is entitled to credit against his state sentence for time served in federal incarceration on federal charges.
Appellant premises his claim on Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974), which hejd that an accused who remains in custody because of his inability to post a bond must be credited with the time served during such confinement. Appellant contends that he was unable to post bond to secure his release on bail and therefore remained continuously in custody since his arrest. He distinguishes his predicament from that of the defendant in Dearing v. State, 90 Nev. 297, 525 P.2d 601 (1974), who after having been arrested and subsequently released on bail was rearrested for a foreign parole violation. The
Dearing
court denied credit on the first charge for time served pursuant
Our statute cannot be interpreted to grant our judiciary the right to give credit for time spent in federal custody for non-state purposes. Only incarceration pursuant to a charge for which sentence is ultimately imposed can be credited against that sentence. See, Anglin, supra; Dearing, supra.
The assignments of error being without merit, the judgment of conviction is affirmed.
Batter, C. J., and Mowbray, Thompson, and Gun-derson, JJ., concur.
Notes