*109 OPINION
Aрpellant murdered his wife, Toy Williams, by shooting her six times with a handgun. Prior to the shooting, he had obtained a $150,000 insurance policy on her life, in addition to $70,000 in previously existing insurance. Appellant had also attemрted to hire an assassin; in the process, he explained precisely how he wanted his wife’s murder eifectuated. 1
Although there were no witnesses to the shooting itself, several people arrivеd at the scene in time to see the gunman flee. One witness saw a shadowy figure standing over Toy’s body and pointing a gun at it. Another witness followed that figure down the alley where the shooting occurred, and noted that the man was carrying a bag or purse. Then Richard Priesing, a motorist, saw a man whom he later identified as appellant leave the alley carrying a bag or purse. Appellant was arrested, convicted and sentenced to life imprisonment without possibility of parole. We affirm.
The principal issue on this appeal is whether prosecutorial misconduct necessitates reversal of appellant’s conviction. Unfortunately, the prosecutor’s conduct was far from ideal. For example, his closing argument included the following:
She didn’t meet him for dinner, did she? That’s because Mr. Williams had something else in mind. What he had in mind was not a date for dinner. It was a date for death. Happy Valentine’s Day from Oscar to Toy with malice. Cupid uses arrows. Mr. Williams used bullets on February the 12th, 1982.
It is quite clear that “holiday” arguments are inappropriate; they have no purpose other than to arouse the jurors’ emotions. Dearman v. State,
[Something caused her to turn back around to where she is shot and discovered in the position where she is found. Perhaps her name or a voice she recognized. In any event, she turned around. Can you imagine what she must have felt when she saw that it was the defendant and he had a gun?
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The prosecutor also used testimony, twice ruled inadmissible, that a policeman thought apрellant’s chief alibi witness was lying. Worse yet, he contended that appellant purchased the alibi testimony although there was no evidence from which to draw such an inference. A prosecutоr may not argue facts or inferences not supported by the evidence. Collier v. State,
Conduct of this nature implicates many of the rules governing members of the Nevada bar. 3 A prosecutor’s primary duty is not to convict, but to see that justice is done. SCR 181(3) (1985). Lawyers (including prosecutors) may not state facts which are not in evidence, or use inflammatory arguments. SCR 195(3), 198(2) (1985). Their conduct should at all times be characterized by honesty, candor and fairness. SCR 198(1) (1985). They must not make statements intended improperly to influence the outcome of a case. SCR 198(4) (1985). And, as previously noted, lawyers are to try their cases in the courts, not in the media. Prosecutorial zeal is both natural and commendable, but it must be confined to well-defined norms in order to convict fairly under the aegis of state authority. Moreover, while prosecutors may “give no quarter” in the presentation of the State’s case, they must nevertheless steel themselves against inappropriate conduct stemming from the “heat of battle,” the vile nature of the crime or other stimuli. We state the obvious because allegations of prosecutorial misconduct are becoming standard fare in criminal appeals and we are unwilling — indeed, not at liberty — to see the criminal justice system unnecessarily encumberеd and extended by inappropriate behavior on behalf of the State. SCR 199 (1985). Accordingly we are constrained to again emphasize that those who violate these rules do so at their peril. SCR 102, 163 (1985).
It does not necessarily follow, however, that the conviction must be reversed. In order to preserve for appellate consideration *111 allegations of misconduct in a closing argument, the accused must make a timely objection, obtain a ruling, and request an admonition of counsel and an appropriate instruction to the jury. Moser, supra. In the case at bar, this simply was not done. Further, evеn if appellant had preserved the issue for review, the evidence of his guilt was so overwhelming that the misconduct simply cannot be considered a factor in the outcome of the case. We have noted in the past that we will not reverse where the case is free from doubt. Id. And although cases must be tried in the courtroom rather than in the media, the trial court ruled that in this case the jury was not affected by the broadcast which utilized the prosecutor’s remarks. Since the misconduct was harmless, it does not justify reversal. NRS 178.598.
Before leaving the issues of misconduct, we desire to dispel any notion that this court views the subject exclusively as a prosecutor’s problem. We are not unaware that defense counsel may perceive some incentive for trial misbehavior. If misconduct by defense counsel produces an acquittal, there is no right of appeal by the State; if the misconduct precipitates a basis for review and reversal, defense counsel may still assess thе result as positive. In those instances where the prosecutor is convinced that such misconduct is occurring, we strongly urge a timely objection and the making of a specific record outside the presence of the jury. If an appeal is taken in the case, the State may appropriately direct this court’s attention to the misconduct by defense counsel for our consideration. Where appeals are not taken, and the magnitude of misconduct by the defense is sufficiently serious, reference should be made to the appropriate disciplinary authority of the state bar with evidentiary support from the record. In brief, the objective is to free Nevada criminal trials from the taint of misconduct, irrespective of the source.
Appellant raises several other issues concerning two of the State’s witnesses: Gary Smith, the person whom appellant attempted to hire as an assassin, and Willie Normand, an acquaintance through whom appellant made contact with the prospective killer. The trial court did not err in allowing the two to testify that appellant attempted to hire Smith; since the attempt was unsuccessful, this is not a matter of allowing the State to proceed on dual theories of procuring and actually committing the murder.
Nor did the court err in admitting into evidence clandestine recordings of encounters between аppellant, Normand and Smith
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after the latter two men had decided to assist the authorities. Recording the conversations did not violate the right to counsel, for appellant was not in custody and had not requested an opportunity to speak with counsel. Escobedo v. Illinois,
Further, we cannot conclude that the probative value of the recordings was so slight and the risk of jury confusion so greаt as to render their admission manifestly erroneous. The tapes were difficult to understand, but they did clearly demonstrate that appellant and the informants shared a secret concerning Toy Williams’ death, which appellant wanted Normand and Smith to keep confidential.
Finally, although the court erred in refusing to give a specific jury instruction concerning the credibility of the informants’ testimony,
5
the error must be deemed harmless under Buckley v. State,
We have examined appellant’s many other assignments of error and conclude that they are meritless. Accordingly, we affirm. 6
Notes
The prospective assassin declined the task because of inadequate financial inducement.
Apрellant alleges several other instances of misconduct, but those allegations lack merit.
In this opinion we shall cite to the rules in effect at the time of trial.
Appellant also claims the “body-bugging” of these police informants violated Nevada statutes. He is mistaken. Summers v. State,
Such an instruction is favored, Crowe v. State,
This court has previously declared that, as one approach to curbing the problem of attorney misconduct, in appropriate cases we will impose monetary sanctions upon offending counsel.
See, e.g.,
McGuire v. State,