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Nevada Supreme Court

2014-10

Turner (John) v. State ( 2014 )

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                nothing from the bag. He was apprehended a few blocks away based on
the victim's description of the suspect. The victim's cell phone was found
in appellant's short's pocket. After the victim identified appellant as the
perpetrator in a show-up identification, appellant was arrested and
ultimately convicted of robbery.
The jury could reasonably infer from the evidence presented
that appellant was guilty of robbery.       See NRS 200.380. It is for the jury
to determine the weight and credibility to give conflicting testimony, and
the jury's verdict will not be disturbed on appeal where, as here,
substantial evidence supports the verdict. See Bolden v. State,

97 Nev. 71

,
73,

624 P.2d 20

, 20 (1981); see also McNair v. State,

108 Nev. 53

, 56,

825 P.2d 571

, 573 (1992).
Second, appellant argues that he was denied his statutory
speedy trial right and that the district court made an inadequate record
showing good cause for the delay in proceeding to trial. NRS 178.556
provides that a district court may dismiss a charging document if the
defendant is not brought to trial within 60 days after arraignment. "A
dismissal is mandatory only if the State cannot show goodS cause for the
delay." Meegan v. State,

114 Nev. 1150

, 1154,

968 P.2d 292

, 294 (1998),
abrogated on other grounds by Vanisi v. State,

117 Nev. 330

22 P.3d 1164

                (2001).
Here, appellant invoked his statutory right to a speedy trial
at arraignment and the district court set trial five days outside the 60-day
limit due to courtroom accommodation. Five days before trial was
scheduled to commence, defense counsel requested a competency
evaluation for appellant. On return from competency court, the district
court set the trial for the next available court date 48 days later, on
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August 20, 2012. On August 16, 2012, defense counsel requested a 4-week
continuance to investigate appellant's past medical treatment. The
district court set trial for October 15, 2012, to which counsel agreed. The
trial date was again continued to October 18, 2012, due to defense
counsel's filing of a motion to suppress evidence. Based on this record, we
conclude that appellant's statutory speedy trial right was not violated
where the delay was aptly attributable to district court convenience, see
Shelton v. Lamb,

85 Nev. 618

, 619, 460 P.2d. 156, 157 (1969) (recognizing
"the well-settled law of this state that the condition of the calendar, the
pendency of other cases, the public expense, the health of the judge, and
even the convenience of the court are good causes for a continuance"), and
appellant's pursuit of a competency evaluation and evidentiary challenge.
Third, appellant contends that the district court erred by
denying his challenge for cause against a juror who expressed that he
would "have an issue" if the defense "didn't do anything." The district
court denied the for-cause challenge based on subsequent questioning of
the juror, and appellant exercised a peremptory challenge to remove the
juror. Even if the district court erred, appellant has not alleged or
demonstrated that any jurors actually empanelled were unfair or not
impartial.'    See Weber v. State,

121 Nev. 554

, 581,

119 P.3d 107

, 125,
(2005) ("Any claim of constitutional significance must focus on the jurors
who were actually seated, not on excused jurors."). Therefore, no relief is
warranted on this claim.
'Appellant concedes that he did not allege below that any juror
actually empanelled was not impartial.
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Fourth, appellant argues that the district court erred by
denying his motion to suppress evidence obtained through an unlawful
search of his person. We review the district court's decision as a mixed
question of law and fact. Hernandez v. State,

124 Nev. 639

, 646,

188 P.3d 1126

, 1131 (2008). The district court's factual findings are reviewed for
clear error, but the legal consequences of those factual findings are
reviewed de novo. Somee v. State,

124 Nev. 434

, 441,

187 P.3d 152

, 157-58
(2008). In particular, he contends that his detention by the police was not
based on reasonable suspicion under Terry v. Ohio,

392 U.S. 1

(1968),
because he did not match the description of the suspect the victim gave to
the 911 operator. The victim described his attacker as a black male, 61
inches tall, 140 pounds, approximately 18 years old, and wearing a gray
sweatshirt. Appellant was described at trial as a black male, 66 inches
tall, 190 to 250 pounds, and "doesn't look like a teenager." When he was
detained, appellant was wearing a gray sweatshirt and was found about
three to four blocks away from the scene of the robbery shortly after it
occurred, and was walking in the direction of travel described by the
victim. In ruling on the motion, the district court acknowledged that there
were "significant differences" between appellant and the suspect's
description in terms of weight and height but that the general description
of a black male wearing a gray sweatshirt in the vicinity of the robbery
was sufficiently "specific and narrow" to support an investigative stop.
"In determining the reasonableness of a stop, the evidence is
viewed under the totality of the circumstances and in the context of the
law enforcement officer's training and experience."    State v. Rincort,

122 Nev. 1170

, 1173-74,

147 P.3d 233

, 235 (2006). Although "Heasonable
suspicion is not a stringent standard," it requires "more than a police
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officer's hunch."

Id. at 1173,

147 P.3d at 235. "A law enforcement officer
has a reasonable suspicion justifying an investigative stop if there are
specific, articulable facts supporting an inference of criminal activity."   Id.;
see United States v. Arvizu,

534 U.S. 266

, 273 (2002) (concluding that
while officers must have a particularized basis to detain an individual,
they must be allowed "to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative
information available to them that might well elude an untrained person"
(internal quotation marks omitted)); United States v. Cortez,

449 U.S. 411

,
417-18 (1981) (observing that reasonable suspicion is an "elusive concept,"
but it demands that the totality of the circumstances show that "the
detaining officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity"); NRS
171.123(1); Proferes v. State,

116 Nev. 1136

, 1139,

13 P.3d 955

, 957 (2000)
(concluding that "[a] police officer may stop and detain a suspect for
questioning regarding possible criminal behavior," but that "[t]here must
be some objective information to support a reasonable suspicion
connecting the person to criminal activity"), overruled on other grounds by
Rosky v. State,

121 Nev. 184

111 P.3d 690

(2005). While the victim's
physical description of the suspect differs from appellant's appearance in
some aspects, appellant matched the victim's description in terms of race,
gender, clothing, and direction of travel. And appellant was found in the
vicinity of the robbery, minutes after it occurred. Considering the totality
of the circumstances, we cannot say that the district court erred by
denying appellant's motion to suppress.
Appellant also argues that the cell phone recovered from his
pocket should have been suppressed because he did not consent to a
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search of his pocket and the police did not have a warrant to search the
cell phone. Because appellant did not object to the admission of the cell
phone based on these grounds, we review his claim for plain error.      See
Herman v. State,

122 Nev. 199

, 204,

128 P.3d 469

, 472 (2006), abrogated
on other grounds by Nunnery v. State, 127 Nev. ,

263 P.3d 235

(2011);
Nelson v. State,

123 Nev. 534

, 543,

170 P.3d 517

, 524 (2007) ("To be plain,
an error must be so unmistakable that it is apparent from a casual
inspection of the record" and the defendant must show that the error
affected his substantial rights. (quoting Garner v. State,

116 Nev. 770

,
783,

6 P.3d 1013

, 1022 (2000), overruled on other grounds by Sharma v.
State,

118 Nev. 648

56 P.3d 868

(2002))). After Officer Gary Sittre
detained and handcuffed appellant, he noticed a cell phone in appellant's
shorts' pocket. He asked appellant if he could search appellant's pockets
and appellant responded affirmatively. Because appellant did not
challenge this matter below and therefore no factual findings were made,
we cannot say from this limited record that the mere fact that appellant
was handcuffed rendered his consent involuntary.      See United States v.
Watson,

423 U.S. 411

, 424, (1976) ("[T]he fact of custody alone has never
been enough in itself to demonstrate a coerced confession or consent to
search."); Sparkman v. State,

95 Nev. 76

, 79-80,

590 P.3d 151

, 154 (1979)
(concluding that "the consent to search must be voluntarily given, and not
the product of deceit or coercion, express or implied" but that "Mlle mere
fact that the consent was given while appellant was in custody does not
render it involuntary"); McIntosh v. State,

86 Nev. 133

, 136,

466 P.2d 656

,
658 (1970) (concluding that the mere fact that a defendant consents to
search while in police custody does not render the consent involuntary).
As to appellant's claim that the police conducted a warrantless search of
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the cell phone, we conclude that he has not shown plain error because he
had no standing to claim the protection of the Fourth Amendment.         See
Harper v. State,

84 Nev. 233

, 236,

440 P.2d 893

, 895 (1968); see also
United States v. Stringer,

739 F.3d 391

, 396 (8th Cir. 2014) (concluding
that defendant did not have standing to challenge the search of a
passenger's cell phone because he had no reasonable expectation of
privacy, as "[t]he Fourth amendment protects the people against
unreasonable searches of 'their' effects").
Fifth, appellant contends that the district court erred by
allowing the admission of the victim's unduly suggestive show-up
identification of him. He concedes that he failed to preserve this matter
for review and therefore his claim is reviewed for plain error affecting his
substantial rights. See NRS 178.602; Mclellan v. State,

124 Nev. 263

, 267,

182 P.3d 106

, 109 (2008).
Because the pretrial identification preceded formal charges,
we consider the test set forth in Stovall v. Denno, which is whether, under
the totality of the circumstances, "the confrontation conducted in this case
was so unnecessarily suggestive and conducive to irreparable mistaken
identification that [the defendant] was denied due process of law."

388 U.S. 293

, 301-02 (1967); see Jones v. State,

95 Nev. 613

, 617,

600 P.2d 247

,
250 (1979) (acknowledging that "[a]n on-the-scene confrontation between
eyewitness and suspect is inherently suggestive because it is apparent
that law enforcement officials believe they have caught the offender" but
that countervailing policy concerns may justify the procedure); State v.
Delahunt,

401 A.2d 1261

, 1265-66 (R.I. 1979). "Short of that, it is for the
jury to weigh the evidence and assess the credibility of the eyewitnesses."
Gehrke v. State,

96 Nev. 581

, 584,

613 P.2d 1028

, 1029 (1980).
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Appellant argues that the identification procedure was
problematic because he did not match the victim's description of the
suspect, Officer Michael Wagner told the victim that appellant was "the
right man based on the initial 911 description given by the victim," and
Wagner did not read any special instructions to the victim. While the
victim's description of the suspect was not an exact match, his description
was consistent with aspects of appellant's appearance, including
appellant's race and clothing. Further, appellant overstates Officer
Wagner's comments. Officer Wagner testified, "I just let [the victim] know
that we were traveling to a location that somebody was stopped, a subject
had been detained that matched the description. And I just wanted to
know that if the subject that was detained was the person that robbed him
or not?" Wagner also acknowledged that he did not suggest to the victim
that appellant was the person who had robbed him And appellant does
not identify what instructions should have been given to the victim before
the show-up. Although show-ups are inherently suggestive, we cannot say
that the show-up was unnecessarily suggestive considering the totality of
the circumstances, see Banks v. State,

94 Nev. 90

, 94-96,

575 P.2d 592

,
595-96 (1978);

Jones, 95 Nev. at 617

, 600 P.2d at 250.
Even if the show-up was unnecessarily suggestive, the
question is whether the identification is nevertheless reliable. Manson v.
Braithwaite,

432 U.S. 98

, 114 (1977); Bias v. State,

105 Nev. 869

, 871,

784 P.2d 963

, 964 (1989);

Banks, 94 Nev. at 94

, 575 P.2d at 595. In assessing
the prejudicial effect from a suggestive procedure, we consider the
following factors: (1) the witness' opportunity to view the suspect at the
time of the offense, (2) the witness' degree of attention, (3) the accuracy of
the witness' prior description, (4) the witness' level of certainty at the
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show-up, and (5) the time between the crime and the show-up.           Neil v.
Biggers,

409 U.S. 188

, 199-200 (1972);

Gehrke, 96 Nev. at 584

, 613 P.2d at
1030. Here, the victim interacted with appellant for several minutes
before the robbery, the victim's description of the robbery subject did not
match appellant in some respects but was consistent with appellant's race,
gender, clothing, and direction of travel, the victim immediately
recognized appellant as the person who robbed him, and the show-up
occurred shortly after the robbery. Considering all of these factors, we
conclude that appellant has not shown that the victim's identification of
him was unreliable, and consequently, he has not demonstrated that the
district court plainly erred by admitting the show-up identification.      See
Patterson v. State,

111 Nev. 1525

, 1530,

907 P.2d 984

, 987 (1995) (An error
is plain if it "is so unmistakable that it reveals itself by casual inspection
of the record." (internal quotation marks omitted)).
Sixth, appellant argues that witnesses improperly commented
on his post-Miranda right to remain silent in violation of his due process
and Fifth Amendment rights. Specifically, he complains about Officer
Sittre's testimony that after he read appellant his Miranda rights, he
"tried to ask [appellant] a question but it's like he didn't even pay
attention to me" and Officer Wagner's testimony that he asked appellant if
appellant spoke Spanish and "at this point [appellant] didn't want to
answer any other questions or he became extremely uncooperative at this
point." Because he did not object to this evidence, his claim is reviewed for
plain error. See NRS 178.602;

Mclellan, 124 Nev. at 267

, 182 P.3d at 109.
"It is constitutionally impermissible to admit evidence of a
defendant's invocation of his fifth amendment right to remain silent."
Aesoph v. State,

102 Nev. 316

, 321,

721 P.2d 379

, 382 (1986). A "mere
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passing reference" to post-Miranda silence "without more, does not
mandate an automatic reversal."       Shepp v. State,

87 Nev. 179

, 181,

484 P.2d 563

, 564 (1971), overruled on other grounds by Stowe v. State,

109 Nev. 743

, 746,

857 P.2d 15

, 17 (1993). We conclude that the testimony
was only a passing reference to appellant's right to remain silent and was
not elicited by the prosecution, cf. Diomampo v. State,

124 Nev. 414

, 427-
28,

185 P.3d 1031

, 1040 (2008); Vipperman v. State,

92 Nev. 213

, 216,

547 P.2d 682

, 684 (1976). But even assuming error, appellant did not
establish that it affected his substantial rights considering the substantial
evidence pointing to his guilt.
Seventh, appellant argues that police officers' references to
SCOPE in their testimony and a prior booking violated his due process
rights because it suggested to the jury that he had engaged in prior
criminal activity. Reference to a defendant's prior criminal history
constitutes reversible error.     Witherow v. State,

104 Nev. 721

, 724,

765 P.2d 1153

, 1155 (1988). "The test for determining a reference to prior
criminal history is whether the jury could reasonably infer from the
evidence presented that the accused had engaged in prior criminal
activity."

Id. While we

are not convinced that the jury could reasonably
infer that appellant had a criminal history from the references to SCOPE,
Officer Sittre's reference to a prior booking reasonably could imply prior
criminal conduct. Nevertheless, we conclude that any error was harmless
beyond a reasonable doubt.        Chapman v. California,

386 U.S. 18

, 24
(1967); Medina v. State,

122 Nev. 346

, 355,

143 P.3d 471

, 477 (2006)
(applying Chapman).
Eighth, appellant contends that the district court erred by
refusing his request to instruct the jury that the prosecution's failure to
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produce the victim's cell phone at trial created an irrebuttable
presumption that the cell phone retrieved from appellant's person did not
belong to the victim. In this, he argues that the instruction• was
warranted because the police had a duty to collect the cell phone as
evidence. While 'police officers generally have no duty •to collect all
potential evidence from a crime scene,' that rule is not absolute.    Daniels
v. State,

114 Nev. 261

, 268,

956 P.2d 111

, 115 (1998) (quoting State v.
Ware,

881 P.2d 679

, 684 (N.M. 1994)). We use a two-part test to
determine whether the failure to collect evidence has resulted in an
injustice. A defendant must first show that the evidence at issue was
material, that is, "there is a reasonable probability that, had the evidence
been available to the defense, the result of the proceedings would have
been different" and second, if the evidence was material, that failure to
collect it was due to mere negligence, gross negligence, or a bad faith
attempt to prejudice the defendant's case.

Id. at 267,

956 P.2d at 115.
Gross negligence entitles the defense to a presumption that the evidence
would have been unfavorable to the prosecution; bad faith may result in
dismissal of the charges.

Id. Here, the

victim unequivocally identified the
cell phone as belonging to him and Officer Sittre testified that stolen
property that is claimed by a victim is generally not received into
evidence, especially if the property is something like a cell phone. We
conclude that appellant has not demonstrated that the cell phone was
material or that the failure to collect it was due to gross negligence or bad
faith and therefore the district court did not err by refusing appellant's
instruction.
Ninth, appellant argues that the district court abused its
discretion by refusing his proposed instruction that the jury must acquit
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him if the circumstances of the identification and any other evidence raise
reasonable doubt whether he was the person who committed the crime—
appellant's theory of defense was misidentification. "[T]he defense has the
right to have the jury instructed on its theory of the case as disclosed by
the evidence, no matter how weak or incredible that evidence may be," but
the district court may refuse such an instruction that misstates the law or
is substantially covered by other instructions.   Vallery v. State,

118 Nev. 357

, 372,

46 P.3d 66

, 76-77 (2002) (internal quotation marks omitted).
Here, the jury was instructed that the prosecution bore the burden of
proving beyond a reasonable doubt the offense and that appellant was the
person who committed the offense. The jurors were further instructed
that appellant was entitled to a not-guilty verdict if they had reasonable
doubt as to his guilt. We conclude that the proffered instruction was
substantially covered by other instructions and therefore the district court
did not err in this regard.
Tenth, appellant contends that the prosecutor committed
multiple instances of misconduct during voir dire and closing argument
where the prosecutor asked the jurors to align themselves with the
prosecution, indirectly suggested that appellant should have presented
evidence, appealed to the jurors as Nevada citizens, asked the jurors to be
fair to the victim, and misstated evidence. Because appellant did not
object to any of the occurrences he identifies, we review his claims for
plain error. See NRS 178.602; Valdez v. State,

124 Nev. 1172

, 1190,

196 P.3d 465

, 477 (2008). We have carefully considered all of the challenged
comments in the context in which they were made, see Rose v. State,

123 Nev. 194

, 208,

163 P.3d 408

, 418 (2007), and we conclude that appellant
has failed demonstrate plain error.
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Finally, appellant argues that cumulative error requires
reversal of his conviction. "The cumulative effect of errors may violate a
defendant's constitutional right to a fair trial even though errors are
harmless individually."      Hernandez v. State,

118 Nev. 513

, 535,

50 P.3d 1100

, 1115 (2002). When assessing a cumulative-error claim, we consider
"(1) whether the issue of guilt is close, (2) the quantity and character of the
error, and (3) the gravity of the crime charged." Mulder v. State,

116 Nev. 1

, 17,

992 P.2d 845

, 854-55 (2000). Considering these factors, we conclude
that any errors considered cumulatively were not of sufficient consequence
to warrant reversal of appellant's conviction.
Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
Douglas
J.
Cherry
HARDESTY, J., dissenting:
In my view, reversal of appellant's conviction based on
cumulative error is not justified.
The majority first concludes that the district court erred by
denying appellant's motion to suppress because his detention by the police
was not based on reasonable suspicion under Terry v. Ohio,