Smith (Cordial) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CORDIAL LESHUN SMITH, No. 68213
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAY 09 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit robbery, conspiracy to commit
burglary, burglary while in possession of a firearm, assault with a deadly
weapon, and attempted robbery with use of a deadly weapon. Eighth
Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
Appellant first contends that the district court erred when it
admitted into evidence a still photograph showing a gun pointed in a
victim's face that was taken from a surveillance video after the court had
previously excluded the surveillance video because of its late disclosure.
The district court allowed the photograph to be admitted because
appellant's counsel had opened the door to the evidence during opening
statements by implying that a gun was never pointed in one of the victim's
faces. Appellant argues that his counsel did not open the door to this
evidence because her opening statement was not evidence and because her
statement regarding the victim's testimony went to whether the victim
feared for his life rather than whether the gun was pointed in his face.
Because the opening statement may have cast doubt as to whether the
gun was pointed in the victim's face, the district court did not abuse its
discretion in admitting the still photograph from the surveillance video.
SUPREME COURT
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NEVADA See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ("We
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review a district court's decision to admit or exclude evidence for an abuse
of discretion."); see also Cordova v. State, 116 Nev. 664, 670, 6 P.3d 481,
485 (2000) (explaining that a defendant may open the door, permitting the
State to introduce evidence that it could not otherwise offer); Bergeron, v.
State, 913 So. 2d 997, 1002 (Miss. Ct. App. 2005) (providing that "the
defendant may 'open the door' by mentioning during opening statements
the evidence which they are seeking to be excluded from the prosecution's
case-in-chief, thus giving the prosecution the opportunity to incorporate
the evidence into its case-in-chief').
Appellant next asserts that the district court erred in
admitting his jail phone call into evidence because the State failed to lay
the proper foundation establishing the identity of the other party and
because the statements made during the phone call were hearsay. The
State laid a proper foundation establishing that the person on the call was
appellant's coconspirator because the State demonstrated that it was the
coconspirator's phone number and the police detective testified that it was
the coconspirator's voice. See MRS 52.065 (providing that a voice is
sufficiently identified by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker"); see also
Thomas v. State, 114 Nev. 1127, 1148, 967 P.2d 1111, 1124 (1998)
(explaining that foundation is satisfied by "evidence sufficient to support a
finding that the matter in question is what its proponent claims" (quoting
U.S. v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996)). Because the
statements were made by the coconspirator and appeared to deal with
having a victim change his testimony, those statements were not hearsay
as they were made in furtherance of the conspiracy. NRS 51.035(3)(e)
(providing that a statement made by co-conspirator in furtherance of the
conspiracy is not hearsay); Crew v. State, 100 Nev. 38, 46, 675 P.2d 986,
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991 (1984) (explaining that "the duration of a conspiracy is not limited to
the commission of the principal crime, but extends to affirmative acts of
concealment"). Thus, the district court did not abuse its discretion in
admitting the jail phone call. Mclellan, 124 Nev. at 267, 182 P.3d at 109.
Lastly appellant contends that the district court abused its
discretion in overruling his objection to his codefendant arguing
prejudicial facts that were not in evidence during his closing argument.
Although the district court overruled appellant's objection, the court
nonetheless limited appellant's codefendant's closing argument to facts in
evidence. Thus, we conclude that the district court did not abuse its
discretion in overruling appellant's objection. See Glover v. Eighth
Judicial Dist. Court, 125 Nev. 691, 704, 220 P.3d 684, 693 (2009)
(explaining that this court reviews the latitude allowed counsel in a
closing argument for an abuse of discretion). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
Saitta Pickering
cc: Hon. Jessie Elizabeth Walsh, District Judge
Gregory & Waldo
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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