Clark v. State

Annotate this Case

513 P.2d 1224 (1973)

Tommy CLARK, Appellant, v. The STATE of Nevada, Respondent.

No. 6959.

Supreme Court of Nevada.

September 10, 1973.

Morgan D. Harris, Public Defender, and Brian L. Greenspun, Deputy Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.



Convicted of second degreee murder (NRS 200.010) and sentenced to a 10-year prison term, appellant asks us to reverse because of (1) insufficient evidence to sustain the conviction and, (2) prosecutorial misconduct.

We have examined the record and find sufficient evidence to sustain the jury verdict. See Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969).

The prosecutor attempted to impeach Charles Murrell, a witness for the defense, by interrogating him about a prior misdemeanor conviction. Defense counsel objected to that question and the trial judge sustained the objection. The appellant made no move for a mistrial, nor did he request to have the jury admonished, nor did he request any special instruction to the jury when the case was submitted.

As a general rule, the failure to move to strike, move for a mistrial, assign misconduct or request an instruction, will *1225 preclude appellate consideration. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). See Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961); Kelley v. State, 76 Nev. 65, 348 P.2d 966 (1960); O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); State v. Boyle, 49 Nev. 386, 248 P. 48 (1926); State v. Moore, 48 Nev. 405, 233 P. 523 (1925). Cf. Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968); Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967), and Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). See also, Baker v. State, supra.

Since appellant's contentions are grounded upon a statutory prohibition and not upon a constitutional question, and it is apparent from the record that the defense was conducted with a complete understanding of the charge and without any prejudice to any substantive rights of the appellant, we reject this assignment of error because appellant failed to move for a mistrial, or for an admonishment or special instruction to the jury concerning the prosecutor's questioning of the witness Charles Murrell.