Miranda (1985)

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At trial and again on appeal, Miranda argues that the district court should have admitted Anderson's statements pursuant to NRS 51.315(1). This statute permits a district court to admit the out-of-court statement of a non-testifying party, when the declarant is not available to testify at trial and when the nature of the statement itself and/or the special circumstances under which it was made offer strong assurances of accuracy. See also Woods v. State, 101 Nev. 128, 696 P.2d 464 (1985); Johnstone v. State, 92 Nev. 241, 548 P.2d 1362 (1976).

At trial and again on appeal, Miranda contends that the district court should have admitted the transcribed statements under the \"business records\" exception to the hearsay rule contained in NRS 51.135(1).[1] The business records exception to the hearsay rule generally permits a party to introduce into evidence reports made during the regularly conducted course of business. Therefore, the police report itself, which was made when Fernando gave his statement to police, would have been admissible as substantive evidence to demonstrate such things as the date on which the report was made or the fact that the statement was actually taken. See United States v. Smith, 521 F.2d 957, 964 (D.C. Cir.1975). Nevertheless, the business records exception does not itself permit a party to introduce into evidence the actual contents of an out-of-court statement given to police by a witness to a crime concerning the events of the crime itself. Id.; see Frias v. Valle, 101 Nev. 219, 698 P.2d 875 (1985). Any statement given by a witness to a police officer is itself hearsay and must itself be independently admissible under a separate and distinct exception to the hearsay rule. See United States v. Smith, supra; see also NRS 51.365 (hearsay included within hearsay is not excluded under the hearsay rule if each part of the statement is independently admissible under an exception to the hearsay rule).

Miranda alternatively contends that the state nevertheless should not have been permitted to use the existence of the robbery *1126 as an aggravating circumstance, because the robbery had been used as the underlying felony in the guilt phase of his trial to obtain his first degree murder conviction under a felony-murder theory of guilt. As we recently held in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), however, under Nevada law, the underlying felony in a felony-murder case does not merge with the murder conviction, and it is therefore permissible for the state to use the underlying felony as an aggravating circumstance in the penalty phase of the defendant's trial.

Citing United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S. Ct. 1584, 1592 n. 14, 71 L. Ed. 2d 816 (1982), the U.S. Supreme Court in United States v. Young, 470 U.S. ___, 105 S. Ct. 1038, 1047, 84 L. Ed. 2d 1 (1985), declared that \"the plain error exception to the contemporaneous objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'\" Moreover, the Young court said that \"[r]eviewing courts are not to use the plain error doctrine to consider trial court errors not meriting appellate review absent timely objection a practice which we have criticized as `extravagant protection.'\" Id., 105 S. Ct. at 1047 (citation and footnote omitted).

In considering the prosecutor's conduct in approaching the subject of executive clemency, we note that Miranda's trial occurred prior to our decision in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). We therefore view this issue from the more broad perspective of California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983), rather than the narrower constraints of Petrocelli. Under either case, however, a jury may be instructed on the possibility of executive clemency without offending constitutional or statutory principles. We expect, however, that the prospective standard enunciated in Petrocelli will eliminate prosecutorial comments of the type presented here. Under Petrocelli, a jury may be given the executive clemency instruction authorized by that decision and none other. The latter instruction directs the jury not to speculate as to whether a sentence once given may later be changed by operation of the processes of executive clemency. In the instant case, the prosecutor sought to focus the jury's attention on Miranda's prospects for executive clemency by referring to the presidential pardon accorded Richard Nixon. While disapproving of the prosecutor's attempt to thus influence the jury, we do not view the remark to be of sufficient gravity to warrant review under the category of plain error. Defense counsel was not provoked to the point of objecting to the comment and indeed, may have concluded that reference to the nonviolent behavior involved in Nixon's pardon would provide the jury with no impetus for imposing the ultimate sentence on Miranda's crime of violence and murder. Again, the Young court, quoting with approval from a concurring opinion in Johnson v. United States, 318 U.S. 189, 202, 63 S. Ct. 549, 555, 87 L. Ed. 704 (1943) observed that:

Miranda's position concerning the failure of the district court to submit a special verdict form to the jury is without merit. We have previously held that the absence of such a form, without more, does not constitute reversible error. See Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985).

The facts elicited at trial reveal that Miranda violently stabbed his victim and thereafter, wearing gloves, went about taking the victim's property. Considering the circumstances of Miranda's crime and the lack of any mitigating factor upon which a determination of disproportionality might *1128 be based, we conclude that the sentence of death was fairly imposed. See Wilson v. State, 101 Nev. ___, 705 P.2d 151 (1985); Snow v. State, 101 Nev. ___, 705 P.2d 632 (1985); Farmer v. State, 101 Nev. ___, 705 P.2d 149 (1985); McKenna v. State, 101 Nev. ___, 705 P.2d 614 (1985).

211-212 (1966). To resolve all inferences in the defendant's favor, Campbell, supra at 398, we will assume that the victim's advances constituted reasonable provocation and that there was some continuing threat to the defendant's well being. The same inferences, however, are insufficient to warrant an involuntary manslaughter instruction. By his own admissions, the defendant deliberately and repeatedly struck the victim, even while the victim was subdued and lying on his back. \"The unlawful battery was quite `likely to endanger life,' and hence could not be classified [as] . . . involuntary manslaughter. Plainly the result of the [blows], i.e., physical injury to the deceased, was intended as much as the [blows themselves]. Hence, it cannot be termed merely a `disregard of probable harmful consequences.'\" Commonwealth v. Hicks, 356 Mass. 442, 445 (1969). Having concluded that the defendant was not entitled to an involuntary manslaughter instruction, any deficiencies in the judge's charge on this issue cannot be considered prejudicial. Cf. Commonwealth v. Puleio, 394 Mass. 101, 105-107 (1985) (failure to define \"malice\" coupled with an erroneous but more favorable instruction on first degree murder not prejudicial).

Miranda (1985) is an Italian erotic comedy that tells the story of a landlady (Serena Grandi) who owns a tavern in a quiet, peaceful town. After her husband dies in WW2 she spends a year trying out a new man each season as she searches for a new lover. 781b155fdc