Brown (Tony) v. State ( 2013 )

 error that warrants reversal of the judgment of conviction. We conclude
that Brown's contentions lack merit, and we affirm the judgment of
conviction.
Denial of Brown's request to dismiss jury venire and his Batson challenge
Brown argues that the district court denied him his right to a
fair trial by an impartial jury both when it refused to dismiss the entire
venire and when it denied his challenge under Batson v. Kentucky, 476
U.S. 79 (1986). Brown contends that the entire venire was "tainted" by
negative comments made by some prospective jurors. Brown insists that
although the jurors that expressed a bias were dismissed, the jurors that
remained were prejudiced by the bias of the dismissed jurors. We
disagree.
In reviewing claims of juror bias, deference is given to the trial
court, and a finding of impartiality will only be overturned for manifest
error. Skilling v. United States, 561 U.S. , 130 S. Ct. 2896, 2903
(2010). Thus, this court reviews decisions of jury impartiality using an
abuse of discretion standard. Blake v. State, 121 Nev. 779, 795-96, 121
P.3d 567, 578 (2005).
Although there is a constitutional requirement that a
defendant receive a panel of impartial, indifferent jurors, it is sufficient if
the jurors can lay aside their impressions or opinions and render a verdict
based on the evidence presented at trial. Bishop v. State, 92 Nev. 510,
515, 554 P.2d 266, 269 (1976); Shilling, 561 U.S. at , 130 S.Ct. at 2925.
Here, Brown does not allege that any members of the selected jury
actually expressed bias at any point. Rather, he merely argues that the
dismissed prospective jurors must have prejudiced the remaining jury
pool. However, there is no evidence that any of the selected jurors had
preconceived notions that they were unable to set aside. Moreover, the
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selected jurors gave the constitutionally required assurances of
impartiality. Id. Therefore, we conclude that the district court did not
abuse its discretion in denying Brown's motion to strike the entire venire.
This court also reviews denials of Batson challenges under an
abuse of discretion standard. Nunnery v. State, 127 Nev. , 263 P.3d
235, 258 (2011). To address Brown's argument that the district court
should have required the prosecutor to give his reasons for both striking
one African-American juror and making preemptory-challenge decisions
that kept a second African-American juror off the final panel, we look to
the United States Supreme Court's three-point test for Batson challenges
that this court adopted in Doyle v. State, 112 Nev. 879, 887, 921 P.2d 901,
907-08 (1996), and expanded in Kaczmarck v. State, 120 Nev. 314, 333, 91
P.3d 16, 29 (2004). Under that test, the opponent of a peremptory
challenge must first make a prima facie case of racial discrimination. Id.To do this, the opponent must demonstrate that the "totality of the
relevant facts give rise to an inference of discriminatory purpose." Batson,
476 U.S. at 94. Relevant facts that this court will consider in determining
the existence of a discriminatory purpose include whether there was a
pattern of strikes against jurors, the prosecutor's questions and
statements during voir dire, and how a prosecutor uses his challenges.
Libby v. State, 113 Nev. 251, 255, 934 P.2d 220, 222-23 (1997).
Here, Brown did not show any conduct by the State that
supports an inference of discriminatory purpose. Brown merely points to
the fact that the preempted juro r was one of three po tential African-
American jurors and, that by waiving their last two peremptory
challenges, another African American was dismissed along with the rest of
the prospective jury panel. However, the dismissal of one African-
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American juror is not sufficient to demonstrate a pattern when the State
waived its last two peremptory challenges instead of using another to
excuse the remaining African American from the jury. Therefore, we
conclude that the district court did not abuse its discretion in denying
Brown's Batson challenge.
Inclusion of pictures during opening statement not yet introduced into
evidence
Brown argues that the district court erred when it allowed the
State to use photographs not yet introduced into evidence in its opening
statement PowerPoint. Moreover, Brown insists that he was prejudiced by
the existence of these photographs in the opening statement. We disagree.
A district court has great discretion in evidentiary decisions;
thus, its decision will not be overturned unless the court abused its
discretion. Crowley v. State, 120 Nev. 30, 34, 83 P.3d 282, 286 (2004).
Although it is the duty of counsel while making an opening statement to
avoid overstating facts, there is not misconduct unless the prosecutor
makes statements in bad faith. Rice v. State, 113 Nev. 1300, 1312-13, 949
P.2d 262, 270 (1997), abrogated on other grounds by Rosas v. State, 122
Nev. 1258, 1265 n.10, 147 P.3d 1101, 1006 n.10 (2006).
Here, it appears the prosecutor had a good faith belief that the
photographs would be admissible. Indeed, during trial, the three
surveillance videos from which the prosecutor took the photographs were
admitted and discussed. In response to the motion for a mistrial, the
district court held that the prosecutor did not include anything that was
not allowed, and noted that even if she did, there was no due process
violation as a result. Therefore, we conclude that the prosecutor used the
photographs in good faith.
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Allowance of witness identification
Brown argues that the district court erred in denying his
motions to suppress evidence of a photographic lineup and the subsequent
in-court identification of him by certain witnesses. Brown contends that
the photographic lineup was unduly suggestive, and thus rendered the
pretrial and in-court identifications unreliable, because he was the only
subject in the lineup with a thin face and his complexion was darker than
that of at least three others in the lineup. We disagree.
Because this is an evidentiary decision, we will only overturn
it if the district court abused its discretion. Crowley, 120 Nev. at 34, 83
P.3d at 286. Pretrial identifications are inadmissible if the procedures
used are unnecessarily suggestive and if the identification is consequently
unreliable. Thompson v. State, 125 Nev. 807, 813, 221 P.3d 708, 713
(2009). This court has held that a district court should set aside a
photographic lineup "only if the photographic identification procedure was
so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification." Cunningham v. State, 113 Nev. 897, 904,
944 P.2d 261, 265 (1997) (internal quotations omitted).
In reviewing the record, we hold that Brown's arguments lack
merit, as there is no obvious substantial likelihood of misidentification.
Furthermore, because a reliability analysis under Thompson only needs to
occur if the identification procedure is impermissibly suggestive, we need
not analyze further. Thompson, 125 Nev. at 813, 221 P.3d at 713.
Therefore, we conclude that the district court did not abuse its discretion
in denying Brown's motions to suppress the lineup and subsequent in-
court identification.
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Introduction of alleged bad act evidence
Brown argues that the district court erred when it denied his
motion for a mistrial because a detective's testimony introduced evidence
of alleged bad acts that were clear ly more prejudicial than probative.
Brown maintains that the district court improperly allowed Detective
Penny to testify that (1) Penny identified Brown by his tattoos, which were
registered in a criminal database, implying that Brown was a gang
member; and (2) Brown provided Penny with false information about his
identity, and the false identity Brown elected to provide was for that of a
registered sex offender. We disagree.
The decision to determine whether a mistrial is warranted
rests within the discretion of the district court. Rudin, 120 Nev. at 142, 86
P.3d at 586. Moreover, we will not overturn the district court's
evidentiary decisions unless there is an abuse of discretion. Crowley, 120
Nev. at 34, 83 P.3d at 286.
Normally, a "[deference to past criminal history is reversible
error." Walker v. Fogliani, 83 Nev. 154, 157, 425 P.2d 794, 795 (1967).
The test for deciding whether a statement does elicit an inference of a
criminal past is "whether the jury could reasonably infer from the
evidence presented that the accused had engaged in prior criminal
activity." Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155
(1988).
Here, Detective Penny merely referenced a database with
tattoos and never explicitly mentioned any word or phrase that alluded to
Brown's previous incarcerations or criminal past. Although it is possible
that an uninformed jury could make the assumption that any database a
police officer has access to only tracks criminals, such an unsubstantiated
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possibility is not enough to draw a reasonable inference. Thus, the district
court's decision to admit Detective Penny's reference to a tattoo database
was not an abuse of discretion. See Reese v. State, 95 Nev. 419, 422, 596
P.2d 212, 215 (1979).
To address Brown's argument that it was improper to allow
Detective Penny to testify that Brown provided false identifying
information, this court has held that evidence of uncharged bad acts may
be admitted for several purposes, including as proof of 'motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident." Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128,
1131 (2001) (quoting NRS 48.045(2)). This court has stated that
"declarations made after the commission of the crime which indicate
consciousness of guilt, or are inconsistent with innocence, or tend to
establish intent may be admissible." Bellon v. State, 121 Nev. 436, 444,
117 P.3d 176, 181 (2005) (internal quotations omitted). However, bad act
evidence is presumed inadmissible unless "(1) the incident is relevant to
the crime charged; (2) the act is proven by clear and convincing evidence;
and (3) the probative value of the evidence is not substantially outweighed
by the danger of unfair prejudice." Tavares, 117 Nev. at 731, 30 P.3d at
1131 (internal quotations omitted).
That Brown lied about his identity and was even willing to
identify himself a sex offender to hide his identity is very probative to
consciousness of guilt. The probative value highly outweighs any
prejudicial harm Brown may have experienced as a result of telling the
jury that he lied to a police officer. Further, Brown's action of
misidentifying himself to police was noticed by way of police report in the
State's Motion to Admit Other Bad Acts and was discussed in a hearing
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outside the presence of the jury the morning before trial, and the court
agreed to allow said testimony. See Bigpond v. State, 128 Nev. , 270
P.3d 1244, 1250 (2012). Thus, the introduction of testimony that Brown
lied to a police officer was admissible as evidence of consciousness of guilt
and that the district court did not abuse its discretion in allowing its
admission.
Therefore, we conclude that the district court did not abuse its
discretion in denying Brown's motion for mistrial.
Denial of Sanborn jury instruction and finding of no prosecutorial
misconduct
Brown argues that the district court improperly denied his
proposed Sanborn jury instruction informing the jury that the police failed
to collect material evidence, specifically, a message left on a detective's
answering machine and fingerprint evidence from the improperly secured
crime scene. Sanborn v. State, 107 Nev. 399, 408, 812 P.2d 1279, 1286
(1991) (requiring a curative jury instruction in a new trial instructing the
jury that failure to test a firearm for blood and fingerprints presumes that
the victim and not the defendant fired the weapon). Further, Brown
contends that the prosecutor made improper comments in closing
arguments, which unfairly emphasized his other bad acts and led the jury
to believe Brown was a sex offender. We disagree with both contentions.
"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). To establish that a due process violation
occurred from the loss or destruction of evidence, a defendant must show
either that the state acted in bad faith or that the loss unduly prejudiced
the defendant's case and that the evidence possessed an exculpatory value
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that was apparent before the evidence was destroyed. Sheriff v. Warner,
112 Nev. 1234, 1239-40, 926 P.2d 775, 778 (1996). To show undue
prejudice, the defendant must demonstrate that it could be reasonably
anticipated that the evidence sought would be exculpatory and material to
the defense. Id. at 1240, 926 P.3d at 778.
Here, it appears that the loss of answering machine message
and fingerprint evidence was not an act of bad faith because it would have
added little value to the police investigation given that the victim of the
crime had significant interaction with the defendant, took his
identification, and was able to visually identify him. Furthermore, the
loss of the evidence was not material or of exculpatory value prior to its
destruction, and Brown's case was not unduly prejudiced by the loss; the
police already had video surveillance, an identification card, and a witness
testify to prove Brown's identity. Because the lost evidence was not
material, the loss did not unduly prejudice Brown's case. Therefore, we
conclude that the district court did not abuse its discretion when it denied
Brown's request for Sanborn jury instructions.
This court generally only hears issues of prosecutorial
misconduct if the party raising the issue on appeal objected to the remarks
at the time they were made. Riley v. State, 107 Nev. 205, 218, 808 P.2d
551, 559 (1991). When a party failed to raise an issue below, we may elect
to address that error when it rises to the level of plain error, affecting a
defendant's substantial rights. Mclellan v. State, 124 Nev. 263, 269, 182
P.3d 106, 110 (2008). Here, Brown failed to object to the prosecutor's
closing statement during trial and has failed to show how his substantial
rights were affected. This claim has no merit.
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Improper sentencing as a habitual criminal
Brown argues that his sentence should be vacated both
because he should have been provided a jury trial for the enhancements
under NRS 207.010 and 207.012 and because his sentence amounts to
cruel and unusual punishment. We disagree.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United
States Supreme Court held that any fact that increases a penalty for a
crime must be submitted to a jury and proved beyond a reasonable doubt,
unless that fact is a prior conviction. Id. at 490. With regards to NRS
207.010, this court has held that statute constitutional so long as the
district court only uses prior convictions as a factor in its determination
and considers any other evidence for the sole purpose of deciding whether
to use its discretion to dismiss the count. O'Neill v. State, 123 Nev. 9, 15,
153 P.3d 38, 42 (2007). Similarly, NRS 207.012 leaves no discretion
whatsoever to either the prosecution or the district court, and there is no
opportunity for the district court to weigh any fact other than the
existence of a conviction.'
Because the only evidence to support habituality presented by
State were the six Nevada judgments of conviction for felonies, Brown did
not have a right to a jury trial for a habitual criminal enhancement,
under either NRS 207.010 or NRS 207.012. Therefore, we conclude that
the district court's determination to add a habitual criminal enhancement
"Brown asks this court to revisit and overturn O'Neill given recent
United States Supreme Court decisions distinguishing Apprendi. We
decline to do so as Brown has provided no case law suggesting that
Apprendi has been overruled.
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to Brown's sentence did not violate Brown's right to a jury trial under the
Sixth Amendment of the United States Constitution.
To address Brown's argument that the enhancement of his
sentence under NRS 207.012 amounts to cruel and unusual punishment,
this court reviews sentencing using an abuse of discretion standard.
Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009). "The Eighth
Amendment of the United States Constitution ,does not require strict
proportionality between the crime and sentence but forbids only an
extreme sentence that is grossly disproportionate to the crime." Id. at
347-48, 213 P.3d at 489. Consequently, "[r] egardless of its severity, a
sentence that is within the statutory limits is not cruel and unusual
punishment unless the statute fixing punishment is unconstitutional or
the sentence is so unreasonably disproportionate to the offense as to shock
the conscience." Id. at 348, 213 P.3d at 489 (internal quotations omitted).
Here, Brown's sentence is within the statutory limits of NRS
207.012. See NRS 207.012. Moreover, Brown's punishment of concurrent
life sentences without the possibility of parole is not disproportionate to
his offenses, as he was convicted of three counts of burglary, three counts
of robbery, and had been convicted of similar charges six times in the past.
Therefore, the district court's punishment does not constitute cruel and
unusual punishment under the Eighth Amendment of the United States
Constitution.
Indigent Defense Fund payment
Brown argues that the district court erred by ordering him to
pay $250 to the Indigent Defense Fund without making findings as to his
ability to pay. We disagree.
Brown failed to raise this issue at district court. When a party
fails to object below, appellate review is precluded unless it rises to the
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level of plain error. Mclellan, 124 Nev. at 269, 182 P.3d at 110. Plain
error exists when the error was clear and it affects a defendant's
substantial rights. Id.A district court may order the defendant to pay all or part of
the state's expenses; however, it must consider the defendant's financial
resources. Truesdell v. State, 129 Nev. „ P.3d , (Adv.
Op. No. 20, Apr. 4, 2013) (citing NRS 178.3975(1)). Even where a district
court does not make specific findings when ordering a defendant to pay
the Indigent Defense Fund, a defendant must demonstrate how the
payment affects his or her substantial rights. Id.Here, Brown has failed to show how his substantial rights
were affected. Therefore, we conclude that the district court did not
commit plain error by requiring Brown to pay $250 to the Indigent
Defense Fund.
Cumulative error
Finally, Brown argues that if individual error is not enough to
reverse, the cumulative effect of all the errors warrants reversal. We
disagree. "Relevant factors to consider in evaluating a claim of cumulative
error are (1) whether the issue of guilt is close, (2) the quantity and
character of the error, and (3) the gravity of the crime charged." Mulder v.
State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000). Here, the issue of guilt
was not close on the offenses, some of which were violent, and there are no
erros to cumulate. Therefore, we conclude that this claim of cumulative
error has no merit.
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Having considered all of Brown's arguments, we conclude that
they lack merit as set forth above. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
Saitta
cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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