Lane (David) v. State ( 2015 )

 Our review of the record reveals no error regarding
suppression of the gun. When the deputy attempted to apprehend Lane,
Lane had been observed exiting a vehicle with a license plate number
matching that reported to the police of the suspect's getaway vehicle, the
suspect was sought for brandishing a gun in a restaurant, and Lane's
appearance was consistent with the witnesses' descriptions of the suspect.
Lane fled when told to stop, and the deputy entered Lane's residence when
Lane continued through the threshold after the deputy had grabbed
Lane's shirt We agree with the district court's determination that
probable cause existed to conduct a warrantless entry and arrest because
the record contains facts sufficient to show that police had reasonably
trustworthy information that would have warranted a person of
reasonable caution to believe that Lane had committed a felony when the
deputy apprehended and searched him. See Doleman, 107 Nev. at 413,
812 P.2d at 1289. The record reveals sufficient and articulable facts to
warrant a reasonably prudent officer to believe that the exigent
circumstance of a threat to public and officer safety was present. See
Hayes u. State, 106 Nev. 543, 550, 797 P.2d 962, 966 (1990), overruled on
other grounds by Ryan v. Eighth Judicial Dist. Court, 123 Nev. 419, 168
P.3d 703 (2007); Murray v. State, 105 Nev. 579, 583, 781 P.2d 288, 290
(1989). The deputy's warrantless entry of Lane's home was reasonable in
light of these circumstances. See Brigham City, Utah v. Stuart, 547 U.S.
398, 404 (2006). The deputy was justified in recovering the gun pursuant
to a search incident to arrest when it was found on his person after Lane
was handcuffed and searched. See Scott v. State, 110 Nev. 622, 629, 877
P.2d 503, 508 (1994).
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Lane also argues that the deputy's use of excessive force
justified suppression. We disagree. The deputy's use of force was
reasonable in light of the threat to the deputy's safety, 1 Lane's active
resistance, Lane's flight, and thefl severity of the crime. See Graham v.
Connor, 490 U.S. 386, 396 (1989). Accordingly, we conclude that the
district court did not err in refusing to suppress the gun.
Second, Lane argues that the district court abused its
discretion in denying his motion to suppress the witness identifications
when two witnesses 2 were driven to perform a show-up identification at
the site of his arrest and four witnesses identified Lane as the perpetrator
after being shown a single photograph of him. He argues that these
witnesses' subsequent in-court identifications were impermissibly tainted
by these suggestive actions.
A criminal defendant has been denied due process when a
pretrial identification procedure was so unnecessarily suggestive as to
provoke an irreparable mistaken identification. Stovall v. Denno, 388 U.S.
293, 302 (1967). Though show-up identifications are inherently suggestive
and identifications involving a single photograph may be unduly
suggestive, they are permissible when they are reliable in light of the
totality of the circumstances. Id.; United States v. Hanigan, 681 F.2d
1 We note that Lane repeatedly looked at his waistband in a manner
that suggested to the deputy that Lane had a gun there and was suspected
of committing assault with a deadly weapon.
2 0ne of the two witnesses never testified or provided a written
statement to police, and our review is limited to the testifying witness. We
note, however, that their joint identification contributed to the
suggestiveness of the identification procedure. See Gehrke v. State, 96
Nev. 581, 585-86, 613 P.2d 1028, 1031 (1980) (Mowbray, C.J., concurring).
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1127, 1133 (9th Cir. 1982); Jones v. State, 95 Nev. 613, 617, 600 P.2d 247,
250 (1979).
We conclude that the district court did not err in determining
that the show-up identification was suggestive when the witnesses were
taken together to the scene where Lane was presented alone, in handcuffs,
on the ground, bloodied, surrounded by police officers, and illuminated by
a police officer's flashlight. See Gehrke, 96 Nev. at 584, 613 P.2d at 1029-
30. Nevertheless, we agree, as well, with the district court's
determination that the show-up identification was reliable when the
witness previously saw the perpetrator in a well-lit restaurant, testified
that she saw him for three to four minutes and saw him clearly, identified
Lane within an hour of the crime, and had previously described his build,
height, hair color, lack of facial hair, clothing, and hat in her police
statement. See id. at 584, 613 P.2d at 1030. Likewise, we conclude that
the district court did not err in determining that the single-photograph
identifications were suggestive when police apparently presented
witnesses with a single "mugshot" of Lane, standing alone and wearing
jail attire. Nevertheless, we conclude that these identifications were
reliable, notwithstanding the suggestive procedure, as each of the four
witnesses observed the perpetrator before noticing that he was holding a
gun and that a crime was occurring, observed him in a well-lit location
and from a short distance, identified him by photograph within an hour
after the crime occurred, and had no doubt regarding the identification.
As the identification procedures were reliable despite their suggestiveness,
we conclude that the subsequent in-court identifications were not
irreparably tainted and that the district court did not err in denying
Lane's motion to suppress.
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Third, Lane argues that the justice court erred by compelling
him to attend the preliminary hearing and denying his motion for a
photographic line-up. In moving for a photographic line-up, Lane never
waived his right to attend the preliminary hearing, see State v. Sargent,
122 Nev. 210, 214, 128 P.3d 1052, 1054 (2006), the district court never
compelled his appearance when it denied the motion, and thus we perceive
no error. As Lane has not cited relevant authority demonstrating that the
justice court erred in denying his motion for a photographic line-up, we
decline to address that argument. See Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987).
Fourth, Lane argues that the district court abused its
discretion by considering impalpable and highly suspect evidence during
the sentencing hearing and that the district court demonstrated bias
against him by comparing his case to an unrelated active-shooter case. 3 A
trial judge is presumed to be impartial, and the challenger must
demonstrate sufficient facts to establish bias. Ybarra v. State, 127 Nev.
47, 51, 247 P.3d 269, 272 (2011). Having reviewed the record and noting
the district court's express reference to the trial testimony and the effects
that the crime had on the people in the restaurant, we conclude that Lane
has not shown that the district court closed its mind to the presentation of
the evidence, see Cameron v. State, 114 Nev. 1281, 1283, 968 P.2d 1169,
1170 (1998), nor that it relied solely on impalpable or highly suspect
evidence, see Denson v. State, 112 Nev. 489, 492, 915 P.2d 284, 286 (1996).
3 To the extent that Lane argues that the district court committed
error during the trial, we decline to address those arguments, as the
record contains no pertinent trial transcripts. See Greene v. State, 96 Nev.
555, 558, 612 P.2d 686, 688 (1980).
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Having considered Lane's contentions and concluded that they
are without merit, we
ORDER the judgment of conviction AFFIRMED.
, C.J.
Hardesty
J.
Parraguirrtai216r
/48 J.
Douglas
cc: Hon. James E. Wilson, District Judge
State Public Defender/Carson City
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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