Mcnair (Michael) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL DEANGELO MCNAIR, No. 78871
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
FEB 2 4 2022
EL i Ã. EIROWN
CLE UPREME COURT
ORDER OF AFFIRMANCE CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with the use of a deadly weapon and
carrying a concealed firearm or other deadly weapon. Eighth Judicial
District Court, Clark County; Douglas W. Herndon, Judge. Appellant
makes seven claims on appeal.
Appellant first argues the district court erred by denying his
fair-cross-section challenge to the venire. Appellant claimed the jury
commissioner's non-compliance with NRS 6.045(3)—specifically, the
requirement to "compile and maintain a list of qualified electors from
information provided by . . . (c) Mlle Employment Security Division of the
Department of Employment, Training and Rehabilitation [DETR]"—proved
systematic exclusion of Hispanics from the venire. See Valentine v. State,
135 Nev. 463, 465, 454 P.3d 709, 713 (2019) (listing the three showings
required for a prima facie fair-cross-section violation, including that the
allegedly excluded group be "a distinctive group in the community.. . that
the representation of this group in venires . . . is not fair and reasonable in
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
SUPREME COURT
OF
NEVADA
(01 1947A atarro
2_2--0610S-
relation to the number of such persons in the community" and that the
"systematic exclusion of the group in the jury-selection procese caused the
underrepresentation (quotation marks omitted)). Appellant, however, did
not show that Clark County systematically excludes Hispanics from the
jury selection process as he made no allegation connecting the missing
information from DETR to the underrepresentation of Hispanics in the
venire. Accordingly, appellant did not establish a prima facie violation of
the fair-cross-section requirement, and the district court did not err by
denying his challenge.
Next, appellant argues the district court erred by denying his
Batson2 objections to the State's use of peremptory challenges to dismiss
three veniremembers. Courts resolve a Batson objection to a peremptory
challenge using a three-step framework. See Batson, 476 U.S. at 93-98,
Kaczmarek v. State, 120 Nev. 314, 332, 91 P.3d 16, 29 (2004); see ctlso
Williams v. State, 134 Nev. 687, 689-92, 429 P.3d 301, 305-07 (2018)
(explaining the three-step framework as the opponent making a prima facie
showing of impermissible discrimination, the proponent offering a neutral,
permissible explanation for the strike, and the opponent proving purposeful
discrimination). "Because the district court is in the best position to rule on
a Batson challenge, its determination is reviewed deferentially, for clear
error." Williams, 134 Nev. at 689, 429 P.3d at 306.
Here, the State gave its race-neutral reasons for the peremptory
challenges before the district court made a determination regarding step
one of the analysis, so step one is moot. See id. at 690-91, 429 P.3d at 306-
07. The State offered race-neutral reasons for the challenges (step two), and
2Batson v. Kentucky, 476 U.S. 79 (1986).
SUPREME COURT
OF
NEVADA
2
(0) 1447A 40F.
the district court gave a thoughtful and considered discussion about its
conclusion that appellant had not shown purposeful racial discrimination
(step three).3 In accord with the race-neutral reasons offered by the State,
the district court agreed that prospective Juror #50 said she distrusted
police officers and would assess a uniformed officer's credibility differently
than other witnesses, that prospective Juror #68 had family who had been
incarcerated and viewed rehabilitation and incarceration issues differently
because of that experience, and that prospective Juror #37 was "very, very
quiet and reserved, kind of a more meek individuar who could cause
concern because she "may just follow along with whatever the majority is."4
See Matthews v. State, 136 Nev. 343, 345, 466 P.3d 1255, 1260 (2020)
(recognizing that step-three conclusions "often turn[ ] upon . . . the
demeanor of the juror being struck" and that demeanor determinations "lie
3We disagree with appellant's contention that the district court
precluded him from arguing the States race-neutral reasons for the
challenges were pretextual. Our review of the record shows that, after the
State gave its race-neutral reasons, the district court asked "[a]nything
further from the Defense," and appellant gave further argument regarding
his Batson objections.
4Appel1ant focuses on comparative juror analysis, pointing to
prospective Juror #77, who was not struck by the State and who described
himself as timid and shy, to show the district court erred with respect to
prospective Juror #37. We have acknowledged the difficulties associated
with conducting a comparative juror analysis for the first time on appeal,
see Nunnery v. State, 127 Nev. 749, 784 n.17, 263 P.3d 235, 258 n.17 (2011),
but nevertheless consider appellant's argument and find it is without merit.
As prospective Juror #77 indicated he felt comfortable voicing his opinion
in front of others, in contrast to prospective Juror #37's affirmation that she
would "just kind of go with the majority and stay quiet," comparative juror
analysis does not support a conclusion that the State's explanation was a
pretext for racial discrimination.
3
uniquely within the province of the district judge (quotation marks
omitted)). Because the district court made clear findings supported by the
record, we perceive no clear error in the denial of appellant's Batson
objections.
Third, appellant argues the State presented insufficient
evidence to support his conviction for first-degree murder. "Murder of the
first degree is murder which is perpetrated by means of any kind of willful,
deliberate, and premeditated killing." Byford v. State, 116 Nev. 215, 236,
994 P.2d 700, 714 (2000); see also NRS 200.030(1)(a). Here, the State
presented evidence that the victim and appellant had a verbal altercation,
that the victim and appellant both walked away but appellant approached
the victim two more times, that appellant pointed toward the location of the
victim with a firearm in his hand,5 and that appellant—the taller of the two
men near the victim when he was murdered—shot the victim multiple
times. A backpack containing a magazine addressed to appellant's
residence was found with a gun inside it, and witnesses explained that the
cartridge cases recovered at the scene were shot from that gun and that the
gun contained a DNA profile from two contributors, one of which was
appellant. The gun belonged to a relative of appellant's wife. Although
appellant points to inconsistencies in the evidence presented, "[t]his court
will not reweigh the evidence or evaluate the credibility of witnesses
5A1though extensive video surveillance was introduced at trial,
including video surveillance of appellant pointing toward the location of the
victim with a firearm in his hand, appellant did not ask that any video
evidence be transmitted to this court as part of the record on appeal. See
Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to
make a proper appellate record rests on appellant"); see also NRAP
10(b)(1)-(2); NRAP 30(b)(3); NRAP 30(d).
SUPREME COURT
OF
NEVADA
4
(C1) 1947A 4411435
because that is the responsibility of the trier of fact." Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008). And viewing the evidence in the
light most favorable to the State, we conclude there is sufficient evidence
from which a rational juror could find appellant guilty beyond a reasonable
doubt of first-degree murder with the use of a deadly weapon. See id.(recognizing this court reviews a challenge to the sufficiency of the evidence
in the light most favorable to the prosecution to determine whether "any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt" (quotation marks omitted)); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Fourth, appellant argues the State committed prosecutorial
misconduct during closing arguments. We consider whether the conduct
was improper and, if so, whether it warrants reversal. See Valdez v. State,
124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). Appellant first argues the
prosecutor disparaged defense counsel when he used an analogy about
shooting or having defense counsel shot because the prosecutor was angiy
at defense counsel for objecting during closing argument to explain different
theories of liability for murder. The district court sustained appellant's
objection, noting its belief that the prosecutor did not intend to disparage
counsel. Later, appellant moved for a mistrial based on the analogy. The
district court expressed its concern about the analogy but ultimately denied
appellant's motion for a mistrial. We agree with the district court that the
prosecutor's analogy was improper. Cf. Butler v. State, 120 Nev. 879, 898,
102 P.3d 71, 84 (2004) (recognizing it is improper "to disparage legitimate
defense tactice). But we conclude the improper analogy does not warrant
reversal as it did not substantially affect the jury's verdict, given the
overwhelming evidence establishing appellant's guilt. Valdez, 124 Nev. at
SUPREME COURT
OF
NEVADA
5
(0) 1947A ctgag
1188-89, 196 P.3d at 476 (explaining that, for error that "is not of
constitutional dimension, [this court] will reverse only if the error
substantially affects the jury's verdice);6 cf. Jones v. State, 113 Nev. 454,
468-70, 937 P.2d 55, 64-65 (1997) (concluding no relief was warranted based
on the overwhelming evidence of guilt where the prosecutor made a
demeaning and unprofessional comparison of the defendant to a rabid
animal). Additionally, the district court told the jury the hypothetical was
an improper and regrettable analogy; explained the jury should not hold
objections against an attorney, as objections are a part of an attorney's legal
and ethical responsibility to zealously represent a client; and ordered the
jury to disregard the analogy in its entirety. Those actions further defused
any potential that the prosecutor's improper analogy prejudiced the
defense. See Valdez, 124 Nev. at 1192, 196 P.3d at 478 (concluding that a
comment was improper but "that there was no prejudice because the district
court sustained [the] objection and instructed the jury to disregard the
commene). Based on the above, we further conclude appellant was not
prejudiced to an extent that he was prevented from receiving a fair trial and
therefore the district court did not abuse its discretion by denying the
motion for a mistrial. See Jeffries v. State, 133 Nev. 331, 333, 397 P.3d 21,
25 (2017) (recognizing that it is within the district court's discretion to grant
a motion for a mistrial and that such a motion may be granted "where some
prejudice occurs that prevents the defendant from receiving a fair triar).
6Even were we to view this as misconduct of a constitutional
dimension, as appellant urges, the State demonstrates beyond a reasonable
doubt that the misconduct did not contribute to the verdict, and therefore
no relief is warranted. See Valdez, 124 Nev. at 1188-89, 196 P.3d at 476-77.
SUPREME COURT
OF
NEVADA
6
(01 1947A AB*.
Appellant's second argument regarchng prosecutorial
misconduct relates to the prosecutor's use of an analogy about the changing
lights on a traffic signal to explain premeditation and deliberation.
Appellant objected, and the district court overruled the objection. We agree
with the district court that there was no improper conduct, see People v.
Wang, 260 Cal. Rptr. 3d 343, 366-68 (Ct. App. 2020) (approving of
prosecutor's analogy of the elements of premeditation and deliberation "to
a driver's decision-making process in choosing whether to drive through a
yellow traffic light or stop suddenly"); cf. People v. Avila, 208 P.3d 634, 665
(Cal. 2009); therefore, no relief is warranted.
Fifth, appellant argues the district court abused its discretion
by allowing the State's investigator to testify about the credibility and
character of three witnesses. Appellant first contends the investigator
erroneously testified about his interactions with K.S., an unavailable
witness, by saying K.S. had been uncooperative and inebriated on multiple
occasions when the investigator encountered him. After the State asked the
investigator about the difficulties in locating homeless individuals for court
hearings, the investigator testified as to the difficulties he had in obtaining
K.S.'s presence for a previous court hearing and in locating K.S. for trial.
We conclude this testimony was proper as it explained to the jury K.S.'s
absence from the trial. See NRS 51.325 (outlining the use of former
testimony where declarant is unavailable as a witness). And to the extent
a single question and answer about K.S.'s previous inebriation were
improper, we conclude appellant has not shown plain error affecting his
substantial rights given the overwhelming evidence of appellant's guilt. See
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (holding unobjected-
to error is reviewed for plain error); see also NRS 178.602. Appellant also
SUPREME COURT
OF
NEVMSA
7
(0) 1947A aleep
contends the investigator erroneously testified regarding R.R.'s
uncooperativeness about attending court hearings, thus discrediting R.R.'s
trial testimony. Appellant acknowledges that R.R.'s trial testimony and his
previous statements about the incident contained multiple contradictions
and that the jury could see R.R. was agitated during his testimony. We are
not convinced that the investigator's testimony regarding R.R.'s general
reluctance to cooperate and testify was improper, particularly where the
investigator did not imply that appellant engaged in witness intimidation.
See Lay v. State, 110 Nev. 1189, 1193-94, 1198, 886 P.2d 448, 450-51, 453
(1994) (recognizing a witness's reluctance to become involved in a criminal
investigation could explain inconsistencies in the witness's "statements at
different stages of an investigation or proceedine); see also NRS 50.085(1)
(allowing "[o]pinion evidence as to the character of a witness . . . to attack
or support the witness's credibility" provided that the evidence is "limited
to truthfulness or untruthfulness" and that evidence of truthfulness only
comes in after "other evidence impugning the witness's character for
truthfulness"). And even were we to conclude the testimony was improper,
appellant has not shown plain error affecting his substantial rights given
the overwhelming evidence of his guilt.
Appellant further alleges the investigator improperly testified
about statements M.J. made in the presence of the investigator and the
prosecutor during a pretrial interview. First, appellant argues that the
State violated the spirit of NRS 174.235 by not giving him any notes or
evidence of M.J.'s previous statement from the pretrial interview, but
appellant's argument fails based on a plain reading of the statute. M.J.'s
pretrial interview was neither written nor recorded, and the State had no
obligation to disclose what he said. Next, appellant argues that the
SUPREME COURT
OF
NEVADA
8
(0) I 947A ADD
investigator's testimony regarding M.J.'s previous statement was hearsay.
However, on direct examination M.J. denied telling the prosecutor that he
turned around and saw the victim fall to the ground or the shooter. The
investigator's testimony, that M.J. said he turned around, saw the victim
fall, and saw appellant with a gun in his hand, was properly offered as a
prior inconsistent statement under NRS 51.035(2)(a). Accordingly, the
district court did not abuse its discretion by overruling appellant's objection
and by admitting the investigator's testimony. See Thomas v. State, 122
Nev. 1361, 1370, 148 P.3d 727, 734 (2006) (It is within the district court's
sound discretion to admit or exclude evidence, and this court reviews that
decision for an abuse of discretion or manifest error." (quotation marks
oinitted)).
Sixth, appellant argues the district court abused its discretion
by denying his proposed jury instruction for the crime of voluntary
manslaughter. IA] defendant is entitled to a jury instruction on his theory
of the case, so long as there is evidence to support it, regardless of whether
the evidence is weak, inconsistent, believable, or incredible." Newson v.
State, 136 Nev. 181, 188, 462 P.3d 246, 251 (2020) (quotation marks and
emphasis omitted); see also id. at 185, 462 P.3d at 250 (recognizing
voluntary manslaughter as a lesser-included offense of murdee). For
voluntary manslaughter, there must be "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." Id. (quoting NRS
200.050(1)). The evidence at trial was that appellant and the victim got in
a verbal altercation about appellant turning down his music but that they
both walked away. Appellant, along with M.J., later walked over to where
SUPREME COURT
Of
NEVADA
9
(01 1947A cga?44
the victim was sitting. M.J. testified that the victim got to his feet as M.J.
and appellant approached and that the victim "got too close." Because the
victim's actions of standing up and getting "too close" to the men could be
viewed as an attempt to seriously injure, the district court should have
instructed the jury on appellant's theory of voluntary manslaughter. See
id. at 186-88, 462 P.3d at 250-52. However, given the overwhelming
evidence of first-degree murder, we are confident that the "verdict was not
attributable to the error," and thus the error is harmless. See Honea v.
State, 136 Nev. 285, 289-90, 466 P.3d 522, 526 (2020).
Lastly, appellant argues that cumulative error warrants relief.
See Valdez, 124 Nev. at 1195, 196 P.3d at 481 (providing the relevant factors
to consider for a claim of cumulative error). We disagree. Although
appellant's crimes are serious, the State presented overwhelming evidence
of his guilt and the few errors we have discussed are minor. Accordingly,
we
ORDER the judgment of conviction AFFIRMED.
J.
eidett tLtp , J.
Pickering
cc: Chief Judge, Eighth Judicial District Court
Department 3, Eighth Judicial District Court
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEYPEM
10
101 I947A 04/41.