Albitre v. State

OPINION

By the Court,

Steffen, J.:

A vehicular collision resulting in two deaths culminated in appellant Albitre’s conviction of two counts of felony driving under the influence of intoxicants, two counts of felony reckless driving and two counts of involuntary manslaughter. Our review of the record reveals a fair trial but redundant convictions. Accordingly, we affirm in part and reverse in part.

Every aspect of this case contributes to an overwhelming sense of tragedy. What began as a convivial wedding celebration, interspersed with festive drinking atypical of Albitre, ended in the violent death of an elderly couple.

Albitre, with her grandmother and six-year-old daughter, drove to a friend’s wedding reception at the Christmas Tree Inn, a restaurant located several miles from Reno on the mountainous Mt. Rose Highway. The trio arrived at the Inn at 1:00 p.m. on April 7, 1984, and left approximately three and one-half hours later when the reception concluded. Albitre drove her father’s pick-up truck to and from the place of celebration. Approximately one-half mile downhill from the Inn, Albitre sought to negotiate a sharp, 180-degree curve, but started losing control as the pick-up skidded to the outside and lightly scraped the guard rail for about forty feet. In apparent fear of going over the hill, Albitre overcompensated and turned the truck across the highway and into the path of an oncoming automobile occupied by the decedents. The elderly victims died at the scene; Albitre and her passengers suffered relatively minor injuries.

Commencing one and one-half hours after the accident, three blood samples were taken from Albitre at intervals of thirty minutes. The three samples reflected decreasing blood alcohol percentages of .163, .148 and .131.

The State produced both eyewitness and expert testimony tending to prove that Albitre either entered the curve too fast or started to turn too late, or both. Albitre called a number of witnesses who testified that she seldom drank and that she was not intoxicated at the time she left the reception. In addition to denying intoxication, Albitre contended that a brake defect was the cause of the accident.

Albitre’s first issue on appeal concerns allegations of prosecu-torial misconduct. The State conceded at oral argument that misconduct occurred, but maintained that it was not of a magnitude warranting reversal. We agree.

The two most serious of the prosecutor’s infractions involved announcing to the jury that “we don’t try people that we believe are innocent” and demeaning defendant’s expert witness as one who “goes to the highest bidder.” The former statement, insinuating guilt merely from the decision to prosecute, was soundly condemned by this court in McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984).¹ The latter, implying duplicity and corruption on the part of both defense counsel and the expert witness, has been similarly denounced in Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986). Neither of the referenced incidents drew an objection from defense counsel.

We have less difficulty in determining that this misbehavior was non-prejudicial than we do in understanding why it occurred. In both instances, the impropriety of the prosecutor’s conduct was beyond speculation. We therefore take little comfort from the fact that, in the context of this issue, Albitre’s trial, viewed in its entirety, conformed adequately to the due process standard of fairness. See United States v. Young, 470 U.S. 1 (1985). Suffice it to say that we are unwilling to forever encourage the perception that our admonitions are “as sounding brass or a tinkling cymbal.” We expect, and are moving inexorably to assure, that ethical trial conduct will prevail among all counsel in Nevada’s courts.

The second major thrust of Albitre’s appeal bears on the effectiveness of defense counsel. We have considered this issue with care and conclude that the cold record does not warrant deviation from this court’s firm preference for having issues of ineffective assistance of trial counsel decided initially in post-conviction proceedings before the trial court. See Lewis v. State, 100 Nev. 456, 686 P.2d 219 (1984).

Finally, Albitre urges reversal based upon four jury instructions assertedly infected with error. This contention is without merit. The instructions either correctly stated the law or, in any event, formed no basis for prejudicial error.

Notwithstanding our rulings on Albitre’s specified issues, we conclude that she is entitled to relief from redundant convictions that do not comport with legislative intent.

It is clear that Albitre was properly convicted of two counts of causing the death of another by driving a vehicle while intoxicated, a felony under NRS 484.3795. Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982). It is equally clear to this court that the remaining four felony convictions involving two counts of involuntary manslaughter and two counts of causing the death of another by reckless driving are redundant to the legitimate counts and therefore must be reversed.

The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating a vehicle in a reckless and unsafe manner due to her intoxication. The State has simply compounded the convictions by eliminating the aspect of alcohol from the four counts under question. We are convinced that the Legislature never intended to permit the State to proliferate charges as to one course of conduct by adorning it with chameleonic attire. Although charging to the limit may be justified to cover developing nuances of proof, the jury should have received an instruction limiting the number of conviction alternatives. The failure to do so was error.

We have carefully considered all other issues raised but not discussed and conclude that they are without merit.

The judgment of conviction for two counts of felony driving under the influence of intoxicants is affirmed; the remaining four convictions are reversed and the cause remanded for new sentencing.

Young and Mowbray, JJ., concur.

1 We note, however, that the prosecutor made the statement in response to defense counsel’s comment concerning Albitre’s innocence. The comments occurred during voir dire and under circumstances that ameliorate the character of the prosecutor’s conduct.