92 Nev. 749 557 P.2d 717

GARY HAROLD KRUEGER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 8784

December 30, 1976

557 P.2d 717

Morgan D. Harris, Clark County Public Defender, and Stephen L. Huffaker, Deputy, Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; George E. Holt, Clark County District Attorney, H. Leon Simon and Elliott A. Sattler, Deputy District Attorneys, Clark County, for Respondent.

*750OPINION

By the Court,

Mowbray, J.:

Gary Harold Krueger, the appellant, was tried to a jury and found guilty of first-degree murder. He has appealed from his judgment of conviction, asserting several assignments of error, which we reject as meritless. We therefore affirm.

1. The Facts.

On March 5, 1975, at approximately 2:00 a.m., passersby discovered a car containing a man’s body off an embankment of East Lake Mead Boulevard in Clark County, Nevada. The highway patrol was summoned. From his examination of the scene, the car’s condition, and the multiple injuries to the body, the patrolman concluded that the victim’s death could not have been caused by a traffic accident. The car was removed from the scene and processed for fingerprints. An autopsy was performed on the deceased. It revealed that death had been caused by multiple blows to the head, made with great force by a heavy instrument. The victim was identified as James King. A tracer on the car revealed the owner resided at a local trailer park. Early on March 5, police detectives visited the address and found the decedent’s wife. They also found Krueger, who had been living at the same address. The detectives inquired whether Mrs. King or Krueger knew the whereabouts of King. They replied that he had left the premises about 11:00 o’clock the previous evening, in a drunken condition. The detectives then told them that King had been found dead, and asked them to come to the police station to give statements.

Krueger and Mrs. King agreed to come to the detectives’ headquarters at the Las Vegas Metropolitan Police Department on March 11 for the purpose of giving statements. On that date, Mrs. King telephoned the detectives and advised that she and Krueger would be late for their appointment because of car trouble. Detective Gary Barlow, who was in charge of investigating the crime, offered to furnish a police car for their transportation. The offer was accepted, and the couple arrived at about 11:00 a.m. Detective Barlow and Ken Cook interviewed Krueger. He denied any implication in the crime and gave the detectives a written statement to that effect. He was *751excused and returned to the hallway leading into the detectives’ headquarters, to wait for Mrs. King. The open hallway is furnished with chairs and serves as a waiting area. Detectives Barlow and Cook left for lunch. In the meantime, Detective Charles Lee was interviewing Mrs. King. Her attorney was present. A polygraph examination was administered by Detective Lee. Mrs. King told Lee how the murder had occurred— that Krueger had axed her husband to death and then disposed of his body out on the highway. With this information, Detective Lee returned to the waiting area and asked Krueger if he would return to the interrogation room. Lee also sent word for Barlow and Cook to return immediately. Lee then advised Krueger of his constitutional rights under Miranda.1 Krueger said he understood them. Lee then advised Krueger that he had received new information about the death of Mr. King, and he asked Krueger if he wanted to make any changes in the statement he had previously given. Krueger replied that he had already given his statement. Lee then stated that he had information indicating that Krueger had killed King with an ax, whereupon Krueger responded that was the way it happened.2

*752Detectives Barlow and Cook, in response to Lee’s message, returned immediately and continued the questioning. Barlow again gave Krueger a full Miranda warning and had him sign a “Rights of Prisoner-Arrest Card” that sets forth the Miranda warnings. Thereafter, Krueger gave a detailed statement regarding the killing and the disposition of the body. The statement was typed, and Krueger signed it.3

*7532. The Admission of Krueger’s Statement.

Krueger’s principal contention on this appeal is focused on the admission of the written confession which he gave Detective Barlow on March 11. He claims that he did not waive his right to remain silent, and he requested and was denied assistance of counsel. These same arguments were presented before and during trial, and motions to suppress the incriminating evidence were properly denied.

The State has suggested that the detectives were not required to give the Miranda warnings because Kreuger was not subjected to custodial interrogation. The State argues that at the time Krueger made the incriminating statements he was not under arrest and had voluntarily appeared for the interview. We do not agree. The record supports the argument as to Krueger’s status when he first came to the police station. However, by the time the incriminating statements were made, Krueger’s status had changed. When Mrs. King implicated *754Krueger, he then became the focus of the investigation, rather than a mere suspect. From then on, he was in custody and entitled to the protection established by Miranda. See People v. White, 446 P.2d 993 (Cal. 1968).

Having concluded that Krueger was subjected to custodial interrogation, we turn to consider whether he was denied his rights under Miranda. Krueger admits that he waived his right to remain silent at the beginning of the interrogation. He contends on appeal that he revoked that waiver when the detective confronted him with the incriminating evidence received from Mrs. King. The record simply does not support Krueger’s contention. He was given the full Miranda warning by Lee, and he signed a card and acknowledged that he understood the same. When he was asked if he wished to change his previous statement, he replied in the negative, but he never stated that he did not wish to be questioned by the officers. When Lee, in response to Krueger’s statement, said that he (Lee) had information indicating that Krueger had killed King with an ax, Krueger readily responded that was the way it happened. When Detective Barlow returned and resumed the inquiry, Krueger was given another full Miranda warning and signed a card acknowledging that he understood the warning and waived his right to remain silent before giving his confession. Krueger did not testify at trial, but he did so at the pretrial hearing on the motion to suppress, and that testimony corroborated Barlow’s testimony.4

*755Under the factual position of this case, we cannot say that Krueger’s rights under the Fifth and Fourteenth Amendments were violated.

3. The Instructions.

Additionally, Krueger urges that the court’s failure to instruct the jury on the elements of manslaughter constituted reversible error. This argument is wholly meritless. An instruction must be given only if there is evidence to support it. Williams v. State, 91 Nev. 533, 539 P.2d 461 (1975); Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969). In the instant case, there is no evidence to support any theory of manslaughter. Manslaughter requires “. . . a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.” NRS 200.050. There is no such evidence in the record before us. The court did not err in instructing the jury.

4. The Prosecutor’s Closing Argument.

Krueger’s final assignment of error involves improprieties in the prosecutor’s closing statement, which he claims prejudiced him. Only two of the alleged improprieties were objected to at trial and may be considered on appeal. Walker v. State, 89 Nev. 568, 516 P.2d 739 (1973); Clark v. State, 89 Nev. *756392, 513 P.2d 1224 (1973). Prosecutorial misconduct is a ground for reversal only if it prejudices the substantial rights of the accused. Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964). We have reviewed the remarks complained of, and they clearly were not of sufficient magnitude to prejudice Krueger or distract the jury.

The judgment of conviction is affirmed.

Gunderson, C. J., and Batjer, Zenoff, and Thompson, JJ., concur.

Krueger v. State
92 Nev. 749 557 P.2d 717

Case Details

Name
Krueger v. State
Decision Date
Dec 30, 1976
Citations

92 Nev. 749

557 P.2d 717

Jurisdiction
Nevada

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