Lewis v. State

¶1OPINION

¶2Appellants stand convicted, by jury verdict, of robbery (NRS 200.380) and having used a deadly weapon in the commission of that crime (NRS 193.165).1 Appellants contend we are compelled to reverse their convictions because (1) their constitutional rights to due process of law were violated; (2) the district court erred in instructing the jury; and, (3) the district court erred in denying their motions for a new trial. We disagree.

¶3*7291. Appellants contend (a) they were denied due process of law because the prosecuting attorney knowingly allowed perjured testimony to be admitted at trial and, (b) the prosecuting attorney suppressed material evidence which would have impeached the victim’s testimony. Appellants have failed to present any facts to support these contentions.

¶42. Appellants failed to object to the alleged improper instruction at the time it was given to the jury. Where, as here, the giving of an instruction to the jury does not constitute plain error, the failure to object precludes appellate consideration. Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977).

¶53. Finally, appellants contend they were entitled to a new trial because three jurors discussed the testimony and evidence adduced at trial before the case had been submitted to them for deliberation.

¶6At the hearing on the motion for a new trial, the three jurors each testified that his or her decision was based solely upon the evidence presented at trial. In addition, the record fails to indicate that the discussion either affected the jurors’ deliberations or otherwise prejudiced appellants’ right to a fair trial. Under these circumstances, we perceive no abuse of the trial court’s discretion in denying appellants’ motion for a new trial. See Atwell v. State, 354 So.2d 30 (Ala.Crim.App. 1977). Cf. Sorce v. State, 88 Nev. 350, 497 P.2d 902 (1972).

¶7The judgments are affirmed.