SILAS HOWARD LAURSEN, Appellant, v. THE STATE OF NEVADA, Respondent
Laursen v. State
Fondi, D. J., and Manoukian, J., dissented.
SILAS HOWARD LAURSEN, Appellant, v. THE STATE OF NEVADA, Respondent.
SILAS HOWARD LAURSEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 11156
October 29, 1981
634 P.2d 1230
Fondi, D. J., and Manoukian, J., dissented.
William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public Defender, Washoe County, for Appellant.
Richard H. Bryan, Attorney General, Carson City; Calvin R. X. Dunlap, District Attorney and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
OPINION
By the Court,
Mowbray, J.:
Appellant Laursen planned to kill one of his sons-in-law; however, he missed his shot and killed another son-in-law. He was convicted of first degree murder. On the day of the homicide, appellant drank several beers. Approximately three hours after the shooting he gave a post-Miranda statement which was incriminating. Over objection, the trial judge found the statement to be voluntary, and admitted it into evidence. Appellant contends two errors: the trial judge failed to instruct the jury on the issue of whether the statement was voluntary; and, the trial court placed the burden of proving the voluntariness of the statement on the appellant.
1. After appellant's arrest the officers took him to the Washoe Medical Center for a blood alcohol test. There he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The appellant told the officers at the station:
. I fired two or three rounds and I never in my life missed anything, even a deer, but I missed that son-of-a-bitch I was after.
Question: Did you know what you were doing when you went down to Tom's house?
Answer: You bet, I was going to stomp ass, sure was.
Appellant claims the court erred in failing to instruct the jury on the voluntariness of this statement. Nevada follows the Massachusetts rule when the voluntariness of a defendant's statement is put in issue. Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968). Under this rule the trial judge receives evidence on the voluntariness of the statement and determines whether the statement was voluntary. If so, it is admitted. However, the court must later submit the issue by appropriate instruction to the jury. Carlson v. State, supra. In this case while the trial judge determined that the statement was voluntarily made, the court failed to submit the issue to the jury. Therefore, the court committed error.
We have held, however, that such error is subject to the harmless error rule, Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977); Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974). There is no constitutional mandate that voluntariness of such statements be determined by both judge and jury. Lego v. Twomey, 404 U.S. 477, 490 (1972). NRS 178.598 sets the standard for the harmless error rule: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." In the instant case the error was harmless. Here, as in Grimaldi, supra, the "question of guilt or innocence . is not a close one", 90 Nev. at 86, 518 P.2d at 617, and "[t]he proof . . . was so great that the confession could not have altered or affected the results of the trial." Id. at 87, 518 P.2d at 617.
The evidence against appellant was overwhelming. Besides the formal statement, appellant made a number of voluntary incriminating statements to officers. The record reflects a conscious decision by him to go to the trailer where the homicide was committed with two loaded large calibre rifles. It cannot be seriously contended the jury would have decided differently.
2. The trial court likewise erred by placing upon the appellant the burden of proving that the statement was involuntary. In Nevada, the state must prove by a preponderance of the evidence that a statement is voluntary. Scott v. State, 92 Nev. 552, 554 P.2d 735 (1976).
However, the evidence of voluntariness was such that, had the trial judge applied the proper standard of proof, the result would have been the same. Appellant did not offer any affirmative evidence that his statement was involuntary; he stated, when asked whether he would have made the statement had he not been drinking, that he "couldn't say one way or the other." There was testimony from one of the officers that he appeared sober, and there was evidence that his blood alcohol content, taken half an hour before the questioning, was .193, down from .223 an hour earlier. Given this state of the evidence, we find no prejudice resulting from the trial court's erroneous determination that appellant had the burden of proof.
Because appellant's other contentions are without merit, we affirm.
Gunderson, C. J., and Batjer, J., concur.