Warren (David) v. State ( 2013 )

 Suburban on a public road, determined that the license plates had expired
and belonged on a different vehicle, and initiated a traffic stop. The officer
investigated Warren for driving under the influence after observing his
appearance and behavior and detecting the odor of an alcoholic beverage.
Warren refused to perform the standard field sobriety tests and was
transported to the Clark County Detention Center. A blood draw
performed within two hours of the traffic stop revealed that Warren had a
blood alcohol concentration of .174. We conclude that a rational trier of
fact could reasonably infer from this evidence that Warren was driving the
Suburban while under the influence of alcohol. See NRS 484C.110(1)(c).
It is for the trier of fact to determine the weight and credibility to give
conflicting testimony, and its verdict will not be disturbed on appeal
where, as here, substantial evidence supports the verdict. See McNair v.
State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Evidentiary decisions
Warren contends that the district court made four evidentiary
errors. "We review a district court's decision to admit or exclude evidence
for abuse of discretion." Mclellan v. State, 124 Nev. 263, 267, 182 P.3d
106, 109 (2008).
First, Warren claims that the district court erred by allowing
the arresting officer to speculate about what might happen during a traffic
stop of a vehicle displaying the wrong license plates. Warren argues that
"speculation about what might have happened amounts to inflammatory
and prejudicial commentary not based on the evidence." Warren did not
object to this testimony and we conclude he has not demonstrated plain
error. See id. (discussing plain-error review).
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Second, Warren claims that the district erred by admitting
testimony describing the standard field sobriety tests because these tests
were not administered. We fail to see how descriptions of these tests were
relevant and conclude that the district court abused its discretion by
admitting them into evidence. See NRS 48.015 (evidence is relevant if it
has "any tendency to make the existence of any fact that is of consequence
to the determination of the action more or less probable than it would be
without the evidence"). Nonetheless, we conclude that the error was
harmless. See Valdez v. State, 124 Nev. 1172, 1188-89, 196 P.3d 465, 476
(2008) (discussing harmless-error review).
Third, Warren claims that the district court erred by
admitting evidence regarding the second blood draw because it was made
more than two hours after he had driven the vehicle. The district court
determined that the result of the second blood draw was not relevant to
the State's per se theory of liability, but may be relevant to the State's
other theories of liability. See NRS 484C.110(1) (providing three
alternative ways the offense of driving under the influence of intoxicating
liquor may be committed). We conclude that Warren has not
demonstrated that the district court abused its discretion in this regard.
Fourth, Warren claims that the district court erred by
rejecting an exhibit that set forth the federal definition of "motor vehicle"
because it supported his theory of the case. See 18 U.S.C. § 31(a)(6).
Warren was not charged with violating a federal law, and we conclude
that the district court did not abuse its discretion in determining that this
exhibit was irrelevant.
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Proposed jury instructions
Warren contends that the district court erred by rejecting
proposed instructions on his theory of the case. "The district court has
broad discretion to settle jury instructions, and this court reviews the
district court's decision for an abuse of that discretion or judicial error."
Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). "A
defendant in a criminal case is entitled, upon request, to a jury instruction
on his theory of the case so long as there is some evidence, no matter how
weak or incredible, to support it." Harris v. State, 106 Nev. 667, 670, 799
P.2d 1104, 1105-06 (1990) (internal quotation marks and alteration
omitted). However, a defendant is not entitled to instructions that are
"misleading, inaccurate or duplicitous." Carter v. State, 121 Nev. 759, 765,
121 P.3d 592, 596 (2005). Here, Warren's proposed jury instructions
included excerpts from the Declaration of Independence, the U.S.
Constitution, the Articles of Confederation, the constitutions of various
states, the federal code, Nevada's DUI penalty statutes, and the case law
of various jurisdictions. The State objected to Warren's proposed
instructions because they were factoids and not really instructions, the
subject of penalty and punishment was not appropriate for jury
consideration, and the case law excerpts seemed to ask for jury
nullification and for the jurors to take the law into their own hands. The
district court determined that the instructions were not relevant and
sustained the State's objections. We have reviewed the proposed
instructions and conclude that the district court did not abuse its
discretion in this regard.
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Cross-examination
Warren contends that the district court abused its discretion
by limiting his cross-examination of the arresting officer. The district
court has wide latitude to restrict cross-examination "based on concerns
[of] harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant." Bridges v.
State, 116 Nev. 752, 761, 6 P.3d 1000, 1007 (2000) (quotation marks
omitted). Here, the district court sustained the State's relevance
objections to questions as to whether the arresting officer knew what
branch of government he worked for, remembered his oath of office, had
read the U.S. Constitution, and understood the Supremacy Clause of the
U.S. Constitution. We conclude that the district court did not abuse its
discretion in this regard.
Brady violation
Warren contends that the State violated Brady v. Maryland,
373 U.S. 83 (1963), by failing to disclose a Detention Booking Voucher that
showed he was booked under the wrong penal statute. Warren argues
that this document was highly relevant to his theory of the case, would
have undermined the arresting officer's claim that the error on the
Temporary Custody Record was a single mistake, and may have
buttressed his theory that the officer was biased against him. "Brady and
its progeny require a prosecutor to disclose evidence favorable to the
defense when that evidence is material either to guilt or to punishment."
Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000). Evidence that
was not requested or requested generally "is material [only] if there is a
reasonable probability that the result would have been different if the
evidence had been disclosed." Id. The Detention Booking Voucher
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SIMPARISIM
appears to be nothing more than a computer-generated duplicate of the
Temporary Custody Record that Warren received as part of his discovery.
Accordingly, we conclude that Warren has not demonstrated a reasonable
probability that the trial outcome would have been different if this
evidence had been disclosed.
Right of allocution
Warren contends that the district court improperly limited his
right of allocution at sentencing. However, Warren failed to preserve this
issue for appeal, the record does not support his claim that his allocution
was improperly limited, and we conclude that he has not demonstrated
plain error. See NRS 176.015(2)(b)(1); Mendoza-Lobos v. State, 125 Nev.
634, 644, 218 P.3d 501, 507-08 (2009) (applying plain-error review to
alleged sentencing error); see also Homick v. State, 108 Nev. 127, 133-35,
825 P.2d 600, 604-05 (1992) (limiting right of allocution to facts in
mitigation or pleas for leniency).
App rendi violation
Warren contends that the district court violated his due
process rights by failing to conduct a jury trial on the felony enhancement
for a third DUI offense. However, Warren failed preserve this issue for
appeal, the record reveals that the only fact not submitted to the jury was
the existence of prior convictions, and we conclude that he has not
demonstrated plain error. See NRS 484C.400(1)(c); Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt"); Mendoza-Lobos, 125 Nev. at 644, 218 P.3d at 507-08(applying plain-error review to alleged sentencing error).
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HEIMM3Y1VMMINIREZ§10
Cumulative error
Warren contends that cumulative error deprived him of a fair
trial. However, we have found only one error, which was harmless. "One
error is not cumulative error." United States v. Sager, 227 F.3d 1138, 1149
(9th Cir. 2000); see also Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir.
1997) ("Cumulative-error analysis applies where there are two or more
actual errors."); State v. Perry, 245 P.3d 961, 982 (Idaho 2010) ("[A]
necessary predicate to the application of the doctrine [of cumulative error]
is a finding of more than one error.").
Having concluded that Warren is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED. 2
j.
Hardesty
erry
cc: Hon. Valorie J. Vega, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
David Thomas Warren
2 We direct the clerk of this court to file s Warren's proper person
motion received August 31, 2012. We decline to reconsider our order
denying Warren's motion to represent himself on appeal. See Martinez v.
Court of Appeal of Cal., 528 U.S. 152 (2000); Blandino v. State, 112 Nev.
352, 914 P.2d 624 (1996). The motion therefore is denied.
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