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Runion v. State12/4/2000
f the shooting and was accused of fabricating his testimony concerning self-defense. However, when defense counsel later called Helton as a witness and attempted to elicit testimony from her that Runion had told her that he saw a gun in Goldman's car, i.e., that he shot in self-defense, the district court sustained the State's hearsay objection, precluding Helton from testifying to Runion's prior statement. In sustaining the State's objection, the district court stated that the testimony was inadmissible hearsay because Runion testified that he told Helton on the evening of the incident that he shot in self-defense whereas Helton recalled Runion making the statement to her approximately three or four days after the shooting.
The record reveals that, although the statement was materially consistent with Runion's trial testimony that he shot in self-defense, it was not made at a time when Runion had no motive to fabricate. While he had not yet been arrested, Runion, as the shooter, had a motive to fabricate as soon as the shooting occurred. Accordingly, we conclude that the statement was not admissible as a prior consistent statement and that the district court did not err in refusing to allow Helton to testify concerning the statement on this ground.
However, we further conclude that the district court erred in allowing the State to emphasize the effect of its ruling concerning the admission of the statement to the jury. Over defense objections, the prosecutor stated during closing arguments that Runion's self-defense theory lacked corroboration, highlighting that the defense promised in opening statements that Helton would corroborate Runion's story but that Helton offered no such testimony at trial. The prosecutor urged the jury to infer that Runion's testimony was fabricated and to disregard it.
A criminal conviction is not lightly overturned on the basis of a prosecutor's comments standing alone. See United States v. Young, 470 U.S. 1, 11 (1985). However, if the issue of guilt or innocence is close, prosecutorial misconduct may be considered prejudicial. See Garner v. State, 78 Nev. 366, 373, 374 P.2d 525, 530 (1962).
In this case, because Runion did not deny shooting at Goldman's vehicle, the jury was faced with the difficult task of determining his mental state at the time. Because the evidence adduced at trial was conflicting, this case became largely a contest of credibility. Accordingly, we conclude that allowing the prosecutor to emphasize in closing arguments the failure of Runion to present Helton's corroborating testimony, which failure resulted from the district court's ruling on hearsay, resulted in an improper and prejudicial advantage to the State.
This conduct alone would not warrant reversal. However, the prosecutor's comments, together with the inability of defense counsel to argue apparent danger to the jury where a specific apparent danger instruction was requested and rejected, denied Runion a fair trial. See Libby v. State, 109 Nev. 905, 918-19, 859 P.2d 1050, 1059 (1993) (this court will reverse a conviction when the cumulative effect of errors results in the denial of a fair trial). Upon retrial, the district court is instructed not to allow such comments by the prosecutor if the Helton testimony is not admitted.
CONCLUSION
We conclude that, given the facts in this case, the improper comments made by the prosecutor during closing arguments, in the absence of a specific instruction on apparent danger or any argument by defense counsel on apparent danger, denied Runion a fair trial. Accordingly, we reverse Runion's convictions for first-degree murder and attempted murder and remand this case to the distri
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