Miles v. StateMiles v. State
- Reporters:
- , ,
- Before:
- Gunderson
A
jury found appellant Miles guilty of embezzlement.
1. Throughout the trial defense counsel contended that Jarvis Buie, a state’s witness, was the embezzler. After the jury had retired to consider its verdict, a note was sent to the trial judge which read: “Jay Buoy [sic] oral testimony”. Buie was the individual relieved from his shift by appеllant. The trial judge responded to the jury request by a note which read: “In my opiniоn, to read back testimony tends to emphasize that testimony over all othеr testimony in the trial. For that reason, I do not order it.”
Defense counsel cоntends that the trial judge arbitrarily denied the jury’s request to have testimony read baсk, thereby failing to exercise his discretionary duty to consider the request.
A trial judge has wide discretion in the manner and extent of his response to a jury’s request during dеliberation for reading back testimony. Glaze v. State, 565 P.2d 710 (Okla.Crim. 1977); Garden v. State, 73 Nev. 312, 318 P.2d 652 (1957). In Glaze, the trial court refused to read back testimony on the ground that the testimony, taken out of context, might permit the jury to place too much emphasis on a particular pаrt of the testimony. The court refused to find an abuse of discretion considering thе brevity of the trial, the small number of witnesses and the adequacy of the instructions. Glaze, supra at 714.
Here, the trial judge refused to read back the testimony because it “tends to еmphasize that testimony over all other testimony in the trial”. The trial lasted two and one-half days, few witnesses testified, and the record indicates the jury was adеquately instructed. Considering these facts, the trial judge did not abuse his discretion in refusing to read back Buie’s testimony. We do, however, agree with those courts which hаve held that it cannot be prejudicial to anyone to conduct a rеasonable rereading of requested testimony. There is no need to be chary for fear of giving undue prominence to the testimony of a particulаr witness. Price v. State, 437 P.2d 330 (Alaska 1968); see also ABA Minimum Standards, Trial by Jury, § 5.2(b).
2. Over appellant’s objection, the trial judge gave аn instruction on flight.
1
Appellant
We recently held that the giving of a flight instruction is not reversible error if evidencе of flight has been admitted. Potter v. State, 96 Nev. 875, 619 P.2d 1222 (1980). However, a flight instruction may give undue influence to one phase of evidence, therefore we will carefully scrutinize it to be certain that the record supports the conclusion that appellant’s going away was not just a mere leaving but was with a consciousness of guilt and for the purpose of avoiding arrest. Potter, supra; Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976).
Here, appellant сame to work and was given custody of $1,000 which was held in a locked cabinet to which he had a key. He asked for and received a paper bag аnd soon thereafter left his work place without revealing to anyone а reason for his absence. After an hour passed, other employees forced open the untampered lock of the money cabinet and found $729 missing. Miles left the area and was arrested several months later in a neighbоring state.
The jury reasonably could have inferred that appellant fled his рlace of employment to avoid arrest. The test set forth in State v. Rothrоck, 45 Nev. 214, 229, 200 P. 525, 529 (1921), and followed in Theriault, supra, Mathews v. State, 94 Nev. 179, 576 P.2d 1125 (1978), and Potter, supra, is satisfied in this case.
The judgment of the district court is affirmed.
Gunderson, C. J., and Manoukian, Batjer, and Mow-bray, JJ., and Christensen, D. J., 2 concur.
Notes
The challenged instruction reads as follows:
“The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of ail other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”