Turcios (David) v. State ( 2015 )

 Self-representation
Turcios argues that the district court abused its discretion
when it granted his motion for self-representation. He claims he decided
to represent himself under duress due to a conflict with the public
defender, although he does not explain• the substance of this alleged
conflict. He also argues his decision to waive counsel was neither knowing
nor intelligent. We disagree.
A defendant has a constitutional right to self-representation.
See Faretta v. California, 422 U.S. 806, 807 (1975); see also Nev. Const.
art. 1, § 8. On review, this court defers to the trial court's decision.
Graves v. State, 112 Nev. 118, 124, 912 P.2d 234, 238 (1996) (noting that
Itihrough face-to-face interaction in the courtroom, the trial judges are
much more competent to judge a defendant's understanding than• this
court"). "In order for a defendant's waiver of the right to counsel to
withstand constitutional scrutiny, the judge need only be convinced that
the defendant made his decision with a clear comprehension of the
attendant risks." Id.
This court looks at "the facts and circumstances of each case,
including the defendant's background, experience, and conduct" in
assessing the waiver of counsel. Hooks v. State, 124 Nev. 48, 54, 176 P.3d
1081, 1084 (2008). For a waiver to be effective, this court has held that it
must be "knowingly, intelligently, and voluntarily" made. Id. at 53-54,
176 P.3d at 1084. Trial courts must examine whether the defendant is
competent "to choose self-representation, not his ability to adequately
defend himself." Vanisi v. State, 117 Nev. 330, 341, 22 P.3d 1164, 1172
(2001) (internal quotations omitted).
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The trial court record reveals that Turcios clearly did not have
the requisite skill to competently defend himself at trial. However, this
courtS will not overturn a district court's decision allowing self-
representation based on the defendant's performance at trial. See id. The
relevant concern is whether the defendant waived that right freely,
intelligently, and voluntarily. Hooks, 124 Nev. at 53-54, 176 P.3d at 1084.
We conclude that he did. First, the record shows that
Turcios's decision to represent himself was not based solely on an
unresolved conflict with his public defender. Instead, the record shows
that Turcios also did not want a long continuance, that he wanted to bring
certain issues to the court's attention, and that he believed he would be
acquitted. Second, despite the complexity of the case, the district court did
not abuse its discretion in granting Turcios's request. Turcios informed
the court that he could read and write English well, had sufficient
education to understand the proceedings, and knew the State's burden of
proof. The district court also repeatedly admonished Turcios that he could
jeopardize his case by representing himself, but Turcios said that he
nonetheless wished to waive the right to counsel. Third, the timeliness of
his request does not invalidate the waiver. Although Turcios now claims
that the court should have denied his request to represent himself because
he had just a little more than one week to prepare his defense, this
argument is not persuasive. Turcios sought to represent himself, in part,
to prevent additional trial delays and he fails to explain how his defense
would have been enhanced had he been allowed additional time to
prepare. Accordingly, we conclude that the district court did not abuse its
discretion when it granted Turcios's motion to waive his right to counsel.
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Admissibility of statement to police
Turcios argues that the district court erred when it admitted
his statement to police at trial. He first argues that his statement was
inadmissible because he did not knowingly and intelligently waive his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). He claims
that the police ambiguously responded when he said he did not
understand the warnings and that the detective's responses undercut the
warnings and their magnitude. Next, Turcios argues that his statement
was inadmissible because police used coercive tactics to make him confess.
We will address the validity of the Miranda waiver and the voluntariness
of the confession in turn.
Validity of Miranda waiver
Whether a defendant knowingly and intelligently waived his
or her Miranda rights "is a question of fact, which is reviewed for clear
error. However, the question of whether a waiver is voluntary is a mixed
question of fact and law that is properly reviewed de novo." Mendoza v.
State, 122 Nev. 267, 276, 130 P.3d 176, 181 (2006).
For a defendant's Miranda waiver to be effective, the waiver
must be "voluntary, knowing, and intelligent." Id. For the statement to
be admissible at trial, the State must show that the defendant waived his
or rights by a preponderance of the evidence. See Berghuis v. Thompkins,
560 U.S. 370, 384 (2010). The State must also establish that law
enforcement informed the defendant of his or her Miranda rights, the
defendant understood the warnings, and the defendant then provided
admissions without coercion. Id. at 384-85. But if law enforcement
"threatened, tricked, or cajoled" the defendant into a waiver, it is not
voluntary. Miranda, 384 U.S. at 476.
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In the instant case, a police detective testified that he read the
Miranda warnings to Turcios directly from a card prepared by the police
department. The detective also testified that Turcios initially had
questions about the language in the warnings, but the detective said he
explained them and Turcios then confirmed he understood and agreed to
continue speaking. We are not persuaded by Turcios's argument that his
waiver was not voluntary because the detective inappropriately suggested
that only some of the statements, not all of the statements, could be used
against him. During the interrogation, Turcios said to the detective, "So if
I speak, everything will be against me or, or will be used against me." The
detective responded, "It can be. It depends on what you tell me." The
detective's response was not coercive; it was both straightforward and
honest. The response also did not undermine the significance of the
warnings. Thus, we conclude that Turcios knowingly, intelligently, and
voluntarily waived his Miranda rights.
Voluntariness of confession
"Moluntariness determinations present mixed questions of
law and fact subject to this court's de novo review." Rosky v. State, 121
Nev. 184, 190, 111 P.3d 690, 694 (2005). This court will not impose its
judgment in place of the district court's so long as the district court's
ruling is based on substantial evidence. Steese v. State, 114 Nev. 479, 488,
960 P.2d 321, 327 (1998). "Substantial evidence is that which a
reasonable mind might consider adequate to support a conclusion." Id.
"[F]indings of fact in a suppression hearing will not be disturbed on appeal
if supported by substantial evidence." State v. McKellips, 118 Nev. 465,
469, 49 P.3d 655, 658-59 (2002) (alteration in original) (internal quotations
omitted).
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A confession is only admissible as evidence at an accused's
trial "if it is made freely, voluntarily, and without compulsion or
inducement." Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732, 734
(1980). The defendant's Fourteenth Amendment right to due process of
law is violated "if his conviction is based, in whole or in part, upon an
involuntary confession, . .. even if there is ample evidence aside from the
confession to support the conviction." Passama v. State, 103 Nev. 212,
213, 735 P.2d 321, 322 (1987). Voluntariness is determined by "the
totality of the circumstances." Blackburn v. Alabama, 361 U.S. 199, 206
(1960) (quoting Fikes v. Alabama, 352 U.S. 191, 197 (1957)). Specifically,
we will look to the Passama factors, see Passama, 103 Nev. 212, 735 P.2d
321, and whether the police used intrinsic or extrinsic falsehoods to secure
the confession, see Sheriff, Washoe Cnty. v. Bessey, 112 Nev. 322, 914 P.2d
618 (1996).
Passama factors
This court has held that "[t]he question [of voluntariness] in
each case is whether the defendant's will was overborne when he
confessed." Passama, 103 Nev. at 214, 735 P.2d at 323. The trial court
must consider factors such as "the youth of the accused; his lack of
education or his low intelligence; the lack of any advice of constitutional
rights; the length of detention; the repeated and prolonged nature of
questioning; and the use of physical punishment such as the deprivation of
food or sleep." Id.
Based on Passama, we conclude that the totality of the
circumstances shows that the police did not coerce Turcios during the
interrogation.
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First, Passama requires that the court examine "the youth of
the accused." Id. The record shows that Turcios was 46-years-old at the
time he spoke with police. Therefore, the police did not coerce Turcios by
taking advantage of his youth.
Second, the court considers the education and intelligence of
the accused. Id. The record shows that Turcios progressed to the ninth
grade in school and the record does not indicate that his intellect was
below average. Turcios also subsequently informed the court that he had
sufficient education to understand the proceedings. Therefore, the police
did not overbear Turcios by taking advantage of him through a lack of
education or intelligence.
Third, the court assesses whether the accused was advised of
his constitutional rights. Id. As we explained previously, Turcios received
his Miranda warnings, indicated that he understood the warnings, and
expressly waived his rights. Therefore, the police did not 'overbear'
Turcios's will by failing to advise him of his constitutional rights.
Fourth, the court looks at "the length of detention." Id. The
detective testified that police contacted Turcios at his residence and then
transported him to police headquarters for questioning. Nothing in the
record suggests that Turcios was detained between the times that police
detained him at his home and transported him to the police station. The
record also does not suggest that Turcios was detained between the time
he arrived at the police headquarters and the time the interrogation
began. Therefore, the police did not overbear Turcios's will through a
lengthy detention.
Fifth, the court must determine whether the questioning was
"repeated and prolonged." Id. Police detectives questioned Turcios on
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only one occasion, so the questioning was not repeated. Also, the
transcript of the voluntary statement shows that Turcios's interrogation
began at 8:53 p.m. and concluded at 9:56 p.m.—just an hour and three
minutes later. Therefore, this was not a prolonged interrogation.
Lastly, the court must decide whether police inflicted "physical
punishment such as the deprivation of food or sleep" upon the accused to
secure a confession. Id. The record does not reflect that police mistreated
Turcios; in fact, Turcios said that the detectives were polite and respectful
to him during the entire interview and that they did not threaten him in
any way. Therefore, the police did not use physical punishment to
overbear Turcios's will and coerce a statement.
Accordingly, Turcios's will was not overborne when he made
his statement to the police.
Police deception
This court has held that trial courts should also consider police
deception in evaluating the voluntariness of a confession. Sheriff, Washoe
Cnty. v. Bessey, 112 Nev. 322, 325, 914 P.2d 618, 619 (1996). Police
deception does not automatically render a confession involuntary. Id.
Police subterfuge is permissible if "the methods used are not of a type
reasonably likely to procure an untrue statement." Id. at 325, 914 P.2d at
620. This court has distinguished between intrinsic falsehoods and
extrinsic falsehoods. Id. at 325-26, 914 P.2d at 620. Intrinsic falsehoods
imply the existence of implicating evidence and are more likely to secure a
truthful confession from a defendant. Id. at 326, 914 P.2d at 620.
Extrinsic falsehoods involve issues that are collateral to the crime and are
more likely to overbear a defendant's will and secure a false confession or
"a confession regardless of guilt." Id.; see also Lynumn v. Illinois, 372 U.S.
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528, 534 (1963) (concluding that a confession was coerced when police
threated a defendant that "state financial aid for her infant children would
be cut off, and her children taken from her, if she did not 'cooperate").
Deceptions that are likely to produce a false confession are not permissible
and render a confession involuntary. Bessey, 112 Nev. at 326, 914 P.3d at
620. 2
2 1n Bessey, we provided examples of both intrinsic and
extrinsic falsehoods:
Examples of intrinsic falsehoods would include
misrepresentations regarding the existence of
incriminating evidence such as placement of the
defendant's vehicle at the crime scene, physical
evidence linked to the victim in the defendant's
car, presence of defendant's fingerprints at the
crime scene or in the getaway car, positive
identification by reliable eyewitnesses, and
identification of the defendant's semen in the
victim or at the crime scene. Examples of
extrinsic falsehoods of a type reasonably likely to
procure an untrue statement or to influence an
accused to make a confession regardless of guilt
would include the following: assurances of divine
salvation upon confession, promises of mental
health treatment in exchange for confession,
assurances of more favorable treatment rather
than incarceration in exchange for confession,
misrepresenting the consequences of a particular
conviction, representation that welfare benefits
would be withdrawn or children taken away
unless there is a confession or suggestion of harm
or benefit to someone.
112 Nev. at 326, 914 P.2d at 620-21 (emphasis omitted) (citation omitted).
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Turcios cites three specific lies the police used to secure his
confession: (1) he needed to confess in order for the judge and jury to hear
his side of the story; (2) he needed to confess before the police received the
results of the DNA tests; and (3) he needed to confess, like the co-
defendant in a hypothetical scenario that detectives posed, so that the
court would be lenient with him. He claims that these deceptions tricked
him into confessing and that his statement was therefore involuntary and
inadmissible. We are not persuaded by this argument.
Turcios first complains that the detectives implied that a
judge and jury would not hear his side of the story unless he confessed.
However, this implication is not an extrinsic falsehood which constitutes
coercion. By implying that a confession would allow his side of the story to
be heard, police sought to induce a truthful confession—not a confession
regardless of his guilt. Cf. Bessey, 112 Nev. at 326, 914 P.2d at 620. We
conclude that the police employed a permissible tactic when they
encouraged Turcios to tell his side of the story so that a judge and jury
would not solely rely upon the victim's allegations. See id. at 325-26, 914
P.2d at 620. The implication of the detectives' statement focused Turcios's
attention on the intrinsic facts of the victim's allegations; the implication
did not divert Turcios's attention to issues extrinsic to the allegations.
Next, Turcios complains that false representations about DNA
evidence and the need to confess before the results were received
constitute extrinsic falsehoods and unlawfully coerced his confession.
Turcios is incorrect. This court has determined that misrepresentations
about DNA evidence are intrinsic falsehoods and permissible in obtaining
a confession. Id. at 326, 914 P.2d at 620. Telling Turcios that DNA
evidence existed and that the results of DNA tests would prove whether he
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touched the victim and with which parts of his body he touched her would
only motivate Turcios to confess if he had indeed committed the alleged
acts. The threat of DNA evidence and the need to confess before police
received results would not motivate Turcios to make a false admission,
especially after the detective told Turcios that "no two people in the
history of human beings have had the same DNA." The threat of
conclusive DNA evidence would cause Turcios to consider "his own beliefs
regarding his actual guilt or innocence, his moral sense of right and
wrong, and his judgment regarding the likelihood that the police had
garnered enough valid evidence linking him to the crime." See Holland v.
McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992). Additionally, telling
Turcios that he needed to confess before they received the results is an
intrinsic falsehood, not an extrinsic, because the statement was not
collateral to the crime or one that was "likely to procure an untrue
statement or to influence an accused to make a confession regardless of
guilt." See Bessey, 112 Nev. at 326, 914 P.2d at 620. Had he not
committed the crime and believed that the condemning evidence was
forthcoming, the deception would not have motivated him to confess.
Accordingly, we conclude the detectives' use of intrinsic falsehoods
regarding DNA evidence did not render Turcios's confessions involuntary
or inadmissible.
Lastly, Turcios complains that the police deceived him by
suggesting that the court would be lenient if he confessed. A detective
posed a hypothetical scenario to Turcios in which video surveillance at a
convenience store shows two men stealing milk. The first man claims that
the court cannot prove he committed the crime. The second individual
confesses, explains he did not have the money to purchase the milk for his
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baby, and expresses remorse. The detective then asked Turcios which of
the two thieves, the one •who is defiant or the one who is remorseful, a
court would likely treat better. In response to the detective's question,
Turcios asked if they would be merciful with him if he admitted guilt.
Rather than telling Turcios that an admission would lead to favorable
treatment, the detective corrected Turcios and said that this was his
opportunity to explain whether the victim exaggerated or minimized the
actual crimes committed. However, the record does not reflect that the
police made any promises of leniency to Turcios, explicit or implicit. Thus,
we do not believe that the hypothetical scenario was deceitful or that it
rendered the confession involuntary or inadmissible.
Because all of the misrepresentations that Turcios complains
of are either intrinsic falsehoods, which we have determined are
permissible, see Bessey, 112 Nev. at 325-26, 914 P.2d at 620, or are not
falsehoods at all, we conclude that the police did not coerce Turcios's
statement and that the district court correctly concluded that the
statement was admissible.
Accordingly, we find that Turcios' statement was voluntary
and that the detectives' use of deception did not overbear his will.
Other arguments
Prosecutorial misconduct
Turcios alleges that several incidences of prosecutorial
misconduct prejudiced him and denied his right to due process.
Prosecutorial misconduct occurs when "a prosecutor's statements so
infected the proceedings with unfairness as to make the results a denial of
due process." Thomas v. State, 120 Nev. 37, 47-48, 83 P.3d 818, 825
(2004). "Reversal, however, is unnecessary if the prosecutor's [comments]
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are harmless beyond a reasonable doubt." Anderson v. State, 121 Nev.
511, 516, 118 P.3d 184, 187 (2005).
Comments regarding P.B.'s demeanor and the heinous
nature of the crime
Turcios claims that the prosecutors' comments about P.B.'s
demeanor on the witness stand and the heinousness of the crime inflamed
the jurors and prejudiced them against him. The prosecutor merely
related her observations of the victim and this does not constitute
misconduct. Likewise, the prosecutor's statement about the heinous
nature of sexual assault of a minor under 14 can be objectively verified by
reading NRS 200.366(2). Accordingly, a new trial is not warranted
because the statements did not "infect[ ] the proceedings with unfairness."
Thomas, 120 at 47; 83 P.3d at 825; see also Anderson, 121 Nev. at 516, 118
P.3d at 187 (finding prosecutorial misconduct sufficiently prejudicial to
warrant new trial).
Bolstering witness testimony
Turcios also argues that the State impermissibly bolstered
P.B.'s testimony. We agree that the State impermissibly bolstered the
victim's testimony. The State erred by describing one of P.B.'s friends,
who testified at trial for the State, as a "hero," a "knight in shining armor,"
and a "36-year-old trapped in a 14-year-old's body." See DeChant v. State,
116 Nev. 918, 926, 10 P.3d 108, 113 (2000) (concluding the prosecutor
committed reversible error by paraphrasing a witness's stricken
testimony, that the defendant's claim of a mob hit, was a "fairytale"). The
State also erred by eliciting testimony from this witness that she acted
appropriately by telling the school dean about P.B.'s sexual abuse and
P.B.'s trustworthy nature. However, we conclude that these errors were
harmless. See NRS 178.598. The State further erred when it elicited
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testimony from McIlvaine, P.B.'s former school counselor, that P.B. was
good person, but this error was not plain. See Patterson v. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) (holding that this court's review is
generally precluded when a party fails to object at trial but it may review
for plain error, which occurs when the error is "so unmistakable that it
reveals itself by a casual inspection of the record" (internal citation
omitted)). Consequently, reversal is not warranted.
Leading witnesses during direct examination
Turcios argues that the State committed misconduct by asking
P.B. and her friend from school leading questions during direct
examination. We conclude that admission of the leading questions was
not plainly erroneous from a casual inspection of the record. See id. See
also Anderson v. Berrum, 36 Nev. 463, 470, 136 P. 973, 976 (1913) (noting
that "[w]hether leading questions should be allowed is a matter mostly
within the discretion of the trial court, and any abuse of the rules
regarding them is not ordinarily a ground for reversal"); Barcus v. State,
92 Nev. 289, 291, 550 P.2d 411, 413 (1976) (concluding that the district
court did not abuse its discretion or prejudice the defendant when it
allowed the prosecuting attorney to ask eight- and nine-year-old witnesses
leading questions during direct examination). Accordingly, reversal is not
warranted.
Introduction of hearsay testimony
Turcios argues that the district court erred when it admitted
evidence that P.B. allegedly made prior disclosures that Turcios assaulted
her. We conclude that the district court properly admitted the testimony
as evidence of the victim's prior, consistent statements. See NRS
51.035(2)(b).
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Discovery motion
Turcios contends that the district court erred when it denied
his pre-trial discovery motion for production of P.B.'s mental health and
counseling records. We reject this argument. Because the records are
protected by state law, Turcios is not entitled to P.B.'s counseling records.
See NRS 174.235(2)(b). We also reject his argument that the State
committed a Brady violation by withholding this evidence because Turcios
did not show that P.B.'s mental health and counseling records would
benefit him. See Brady v. Maryland, 373 U.S. 83 (1963).
Motion for an independent psychological examination
Turcios argues that the district court erred in denying his
motion for an independent psychological examination of P.B. We conclude
that Turcios did not prove a compelling need for P.B. to be independently
examined. See Abbott v. State, 122 Nev. 715, 725-27, 138 P.3d 462, 469-70
(2006); Koerschner v. State, 116 Nev. 1111, 1116-17, 13 P.3d 451, 455
(2000).
Recalling the complaining witness
Turcios alleges that the court's denial of his motion to recall
P.B. prevented him from presenting a defense and violated his federal
constitutional rights under the due process and compulsory process
clauses. We conclude that the district court did not abuse its discretion
when it denied Turcios's motion because Turcios had a full opportunity to
cross-examine the victim when she testified for the State and Turcios did
not demonstrate that he was prejudiced by the inability to recall P.B. See
Collins v. State, 88 Nev. 9, 13-14, 492 P.2d 991, 993 (1972).
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Sufficiency of the evidence
Turcios argues that the evidence was insufficient to sustain
his convictions. We disagree. This court will not reverse a jury's verdict
"[w]here there is substantial evidence to support" it. LaPierre v. State, 108
Nev. 528, 530, 836 P.2d 56, 57 (1992)). In sexual assault cases, this court
has "repeatedly held that the testimony of a sexual assault victim alone is
sufficient to uphold a conviction," so long as "the victim[ ] testif[ies] with
some particularity regarding the incident." Id. at 531, 836 P.2d at 58
(emphasis in original). At trial, P.B. testified with particularity regarding
incidences of sexual assault and lewdness. Moreover, because the district
court properly admitted Turcios's voluntary statement to police, his
confession corroborates P.B.'s testimony. A rational trier of fact could
determine that any supposed inconsistencies in P.B.'s testimony or lapses
in P.B.'s recollection of the incidents were excusable because Turcios's
confession supports the material elements. Accordingly, the State
produced sufficient evidence for a rational trier of fact to convict Turcios.
Cruel and unusual punishment
Turcios asserts that the statutorily mandated sentence the
court imposed is cruel and unusual because it is more severe than the
sentence for first-degree murder and requires that he serve a minimum of
105 years before he will be eligible for parole. We are not persuaded that
his sentence is cruel or unusual under the United States or Nevada
Constitutions. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379
(1987); Lloyd v. State, 94 Nev. 167, 170, 576 P.2d 740, 743 (1978).
Cumulative error
Lastly, Turcios contends that even if any of the individual
errors of which he complains do not warrant reversal, the cumulative
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effect of those errors warrants reversal. We disagree. The only errors
were the prosecution's vouching for P.B.'s friend from school and eliciting
testimony from the friend and the school counselor about P.B.'s
trustworthiness. These errors are few and minor. Also, the evidence
against Turcios was overwhelming. Although the crimes of which he was
accused are grave, we conclude as a matter of law that reversal is not
warranted. See Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465, 481
(2008) (discussing the factors for determining whether cumulative errors
require reversal).
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/ Leo 45- .0 .J
Hardesty
gausike‘algi
Parraguirre
tn
Saitta
Gibbons
cc: Hon. Valorie J. Vega, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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