Raspperry (Kevin) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
KEVIN PHILLIP RASPPERRY, No. 83894
Appellant, we
VS. = 3 :
THE STATE OF NEVADA, . Fr L. E D
Respondent. : NOV 76 2022
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant toa
jury verdict, of four counts of driving under the influence resulting in death
or great bodily harm, four counts of reckless driving causing death or great
bodily harm, one count of felony driving under the influence, and two counts
of possession of a controlled substance. Eighth Judicial District Court,
Clark County; Tierra Danielle Jones, Judge. Appellant Kevin Phillip
Raspperry raises nine contentions on appeal.!
First, appellant argues that his speedy trial rights were
violated. We disagree. As to the statutory right to a speedy trial under NRS
178.556, there was good cause for the nearly 22-month delay. See Huebner
v. State, 103 Nev. 29, 31, 731 P.2d 1330, 1332 (1987) (stating that dismissal
is mandatory under NRS 178.556 only if no good cause is shown for the
delay). In particular, the delay in bringing appellant to trial was
attributable to motion practice, the COVID-19 pandemic, and
accommodating the district court’s calendar. As to the constitutional right
to a speedy trial, the delay between arraignment and trial was sufficient to
trigger a speedy-trial analysis, State v. Inzunza, 135 Nev. 513, 516-17, 454
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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P.3d 727, 731 (2019) (holding that a delay approaching one year is sufficient
to trigger constitutional speedy-trial analysis), but the relevant factors
weigh against a violation. See Barker v. Wingo, 407 U.S. 514, 530 (1972)
(identifying the factors to be balanced in deciding whether the right to a
speedy trial has been violated). The reasons for the delay were valid and
appropriate. Appellant litigated a motion to dismiss which was denied, then
waived his speedy trial rights, and then agreed upon delays for this court to
resolve pending cases relevant to that motion, and the remainder of the
delay was compelled by the district court’s calendar and other pandemic
related delays. See id. at 531 (explaining that deliberate attempts to delay
the trial by the State should weigh against the government, neutral factors
like negligence or overcrowded courts should be weighted less heavily, and
valid reasons may justify appropriate delay); cf. United States v. Olsen, 21
F.4th 1036, 1047 (9th Cir. 2022) (holding that “a global pandemic that has
claimed more than half a million lives in this country ... falls within such
unique circumstances to permit a court to temporarily suspend jury trials
in the interest of public health”); United States v. Smith, 460 F. Supp. 3d
981, 984 (E.D. Cal. 2020) (“Almost every court faced with the question of
whether general COVID-19 considerations justify an ends-of-justice
continuance and exclusion of time [from speedy-trial considerations] has
arrived at the same answer: yes.”). And appellant has not demonstrated
prejudice. See Barker, 407 U.S. at 532 (explaining that prejudice “should
be assessed in the light of the interests of defendants which the speedy trial
right was designed to protect”). Appellant asserted that he faced a more
aggressive prosecution due to the severity of the murder charge and
suffered anxiety due to the length of the delay and severity of the murder
charge. The record does not indicate that the prosecution assignment track
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prejudiced appellant. While the anxiety to the accused is a harm that the
speedy trial right was designed to guard against, see Inzwnza, 135 Nev. at
518, 454 P.3d at 732, as so much of the delay was a consequence of
appellant’s motion to dismiss the murder charge, we conclude that
appellant has not demonstrated a violation of his constitutional right to a
speedy trial.
Second, appellant argues that there was insufficient evidence
adduced at trial to show that he was driving the car that collided with the
victim’s vehicles. He also argues that there was inadequate proof that he
possessed the controlled substances in the backpack in the car.
Viewing the evidence in the light most favorable to the
prosecution, we conclude that a “rational trier of fact could have found the
essential elements of the crime[s] beyond a reasonable doubt.” McNair v.
State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)); see Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981) (holding that a jury’s verdict will not be disturbed on
appeal where substantial evidence supports it). Witnesses testified that a
gray Toyota Avalon, registered to appellant’s mother, careened through a
red light at roughly 100 miles per hour. The Avalon struck an SUV in the
intersection, causing the SUV to strike another car and a bus. The heavily
damaged Avalon came to rest over 200 feet away from the collision. A
medical technician testified that he extricated appellant from the driver’s
seat of the Avalon and saw no one else in the car. A responding officer also
observed appellant being removed from the driver’s side of the vehicle.
Witnesses also testified that a backpack with containers of MDMA and
methamphetamine was recovered from the Avalon. Testing showed
appellant’s blood alcohol content was .205 percent under two hours after the
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collision and revealed the presence of MDMA and marijuana. Based on this
evidence, a rational juror could conclude beyond a reasonable doubt that
appellant was impaired, drove recklessly through the intersection, and
caused multiple collisions resulting in great bodily harm and death while in
possession of controlled substances. See NRS 484C.110(1)(c) (driving under
the influence); NRS 484C.430(1) (driving under the influence causing death
or substantially bodily harm); NRS 484B.653(1) (reckless driving); NRS
453.336 (possession of a controlled substance).
Third, appellant argues that the district court erred in
admitting blood alcohol evidence without an adequate foundation and chain
of custody, pointing to a mistake in the documentation. We discern no abuse
of discretion. See Mcelellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109
(2008). The State established a chain of custody through the testimony of
the officer who documented the blood draw and the phlebotomist who
performed the blood draws. Nothing in the record suggests that the blood
samples were not those obtained from appellant or that any discrepancy in
the chain of custody rendered it unsound. See Sorce v. State, 88 Nev. 350,
352-53, 497 P.2d 902, 903 (1972). Although the documentation had errors
in that the time of the blood draws was written into the “incident time” box
on the form, testimony established that the samples shared the same event
number as the police report for the collision investigation. Thus, any
discrepancies in the documentation went to the weight of the evidence, not
its admissibility. See Hughes v. State, 116 Nev. 975, 981, 12 P.3d 948, 952
(2000).
Fourth, appellant contends that the testimony of a witness
through a teleconferencing application violated his right to confrontation,
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and the district court failed to make sufficient findings that it was
necessary. We agree.
Courts may permit witnesses to appear by simultaneous
audiovisual transmission at trial provided that such a presentation “is
necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured.” Lipsitz v. State, 135 Nev.
131, 136, 442 P.3d 138, 143 (2019) (applying the standard in Maryland v.
Craig, 497 U.S. 836 (1990), to two-way audiovisual communication); see
SCR Part IX-A(B) Rule 2. Simultaneous audiovisual transmission of
testimony may “be used only after the trial court hears evidence and makes
a case-specific finding that the procedure is necessary to further an
important state interest.” Lipsitz, 135 Nev. at 136-37, 442 P.3d at 143.
Here, the district court noted that administrative orders related to the
COVID-19 pandemic authorized teleconferenced testimony and that the
method of transmission permitted the jury to see the witness and the
defense to cross-examine him, ensuring reliability. See Craig, 497 U.S. at
845-46. However, the district court did not make the required case-specific
findings that the witness who testified via audiovisual transmission was
especially vulnerable to COVID-19 and _ therefore needed the
accommodation. See Lipsitz, 135 Nev. at 136-37, 442 P.3d at 143.
Although the State has not argued that any error in this respect
was harmless, we conclude that our sua sponte review for harmlessness is
appropriate here.? See Belcher v. State, 136 Nev. 261, 268, 464 P.3d 1013,
2The State’s argument that “[a]ppellant fails to explain who his
defense was in any way prejudiced by the use of live audio-visual
transmission[,]” does not meet its burden of proving that any error was
harmless beyond a reasonable doubt. See Medina, 122 Nev. at 355, 143 P.3d
at 477.
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1024 (2020) (providing that where the State fails to argue that error is
harmless, this court may still determine that an error was harmless after
considering the following factors: “(1) the length and complexity of the
record, (2) whether the harmlessness of an error is certain or debatable, and
(3) the futility and costliness of reversal and further litigation.”); Medina v.
State, 122 Nev. 346, 355, 143 P.3d 471, 477 (2006) (concluding that when
State can show beyond a reasonable doubt that Confrontation Clause error
did not contribute to the verdict, reversal is unnecessary); see also Chapman
v. California, 386 U.S. 18, 23-24 (1967) (adopting harmless error standard).
The record in this case, which has only three days of testimony about the
cause of a traffic collision, is not voluminous or complex. The harmlessness
of the error is not debatable given that other witnesses provided similar
testimony as the challenged witness—that they saw appellant in or being
removed from the Avalon following the collision—and other evidence linked
appellant to the Avalon—namely, the vehicle registration in his mother’s
name. See Medina, 122 Nev. at 355, 143 P.3d at 477 (recognizing that court
may consider the extent to which testimony is cumulative of other evidence
and strength of the State’s case in determining whether its admission was
harmless). Because we are confident that a rational jury would have found
appellant guilty without the remote testimony, it would be futile to reverse
and remand because another trial would reach the same result. See Brooks,
772 F.3d at 1172 (concluding that remand for retrial would be futile where
there is overwhelming evidence of guilt). Accordingly, we conclude that the
confrontation error due to the remote testimony was harmless beyond a
reasonable doubt. |
Fifth, appellant contends that the district court erred in
admitting evidence of uncharged conduct. He asserts testimony that the
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vehicle control module did not record the charged event because it was full
of data implied that he had caused other collisions. We discern no plain
error. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 94-95 (2003)
(reviewing unobjected-to error for plain error affecting substantial rights).
The reference to the module being full was not an unmistakable reference
to appellant’s prior bad acts as the record indicates that the car appellant
was driving was registered to his mother. See Paiterson uv. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) (“An error is plain if the error is so
unmistakable that it reveals itself by a casual inspection of the record.”
(internal quotation marks omitted)). Further, data about the event was
retrieved from one of the victim’s cars, which indicates that the data filling
the module on appellant’s vehicle may have included all events involving
that car regardless of who was at fault. Additionally, appellant did not
demonstrate substantial prejudice given the overwhelming evidence of
guilt.
Sixth, appellant contends that the district court erred in not
inquiring into juror bias when a juror informed the court that he knew a
witness during a break in that witness’s testimony. After being informed of
the juror’s statement, counsel for appellant acquiesced to the court’s plan to
question the juror but then did not object when the court failed to do so after
it reconvened. We conclude that appellant failed to demonstrate plain error
affecting his substantial rights. See Green, 119 Nev. at 545, 80 P.3d at 94-
_ 95; ef., Daly v. State, 99 Nev. 564, 568, 665 P.2d 798, 801 (1983) (recognizing
that a contemporaneous objection is necessary to preserve error related to
a court’s failure to enforce an earlier ruling); McCall v. State, 97 Nev. 514,
516, 634 P.2d 1210, 1211 (1981) (recognizing that the failure to object to an
unqualified juror when grounds for disqualification are known constitutes
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waiver). The failure to inquire into potential bias constituted error that was
plain from a casual inspection of the record. See Sanders v. Sears-Page, 131
Nev. 500, 507, 354 P.3d 201, 206 (Ct. App. 2015) (recognizing trial court’s
duty to question jurors when information suggesting actual bias arises).
However, appellant did not establish prejudice—i.e., that a biased juror
served on his jury. See Preciado v. State, 130 Nev. 40, 44, 318 P.3d 176, 178
(2014) (“A district court’s erroneous denial of a challenge for cause is
reversible error only if it results in an unfair empaneled jury.”); Blake v.
State, 121 Nev. 779, 796, 121 P.3d 567, 578 (2005) (concluding that
appellant not denied right to impartial jury so long as “the jury actually
seated [was] impartial”). The juror’s mere acquaintance with the witness
did not establish actual or implied bias. See United States v. Bradshaw, 787
F.2d 1385, 1390 (10th Cir. 1986) (concluding that, while a potential juror’s
acknowledgment that he was acquainted with government witnesses would
necessitate further inquiry, that fact in and of itself does not compel a
conclusion of bias); Tinsley v. Borg, 895 F.2d 520, 528-29 (9th Cir. 1990)
(noting that, absent actual bias, courts have declined to find implied bias
based on a juror’s personal acquaintance with a witness); see also Tomlin v.
State, 81 Nev. 620, 624-25, 407 P.2d 1020, 1022 (1965) (concluding that
district court did not err in retaining juror after she informed district
attorney’s office she knew a witness but assured court she could remain
impartial). Additionally, trial counsel for both parties did not appear
concerned that the relationship between the witness and juror was anything
more significant than a past work acquaintanceship. Under these
circumstances, we conclude that appellant has not demonstrated that the
trial court’s failure to question the juror affected his substantial rights.
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Seventh, appellant contends that comments made by the
prosecutor indicating that appellant was blaming the car or police
investigation constituted improper disparagement of legitimate defense
tactics. Appellant did not object to either argument, and we discern no plain
error, Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). A
prosecutor may not “ridicule or belittle the defendant or the case.” Earl v.
State, 111 Nev. 1304, 1311, 904 P.2d 1029, 1033 (1995); see Browning v.
State, 124 Nev. 517, 534, 188 P.3d 60, 72 (2008) (recognizing that a
prosecutor’s disparagement of defense counsel or the legitimate tactics of
defense counsel is improper). But here the challenged comments, when
considered in context, did not belittle the defense case or tactics. See Knight
v. State, 116 Nev. 140, 144-45, 993 P.2d 67, 71 (2000) (observing that “[a]
prosecutor’s comments should be viewed in context” when considering
whether a defendant should be afforded relief). Instead, the comments
responded to the substance of appellant’s cross-examination of State
witnesses, which sought to discredit the investigation or indicate a fault in
the vehicle may have caused the collision. That response was within the
bounds of permissible argument. See Greene v. State, 113 Nev. 157, 178,
931 P.2d 54, 67 (1997) (recognizing rebuttal arguments may permissibly
respond to issues raised by the defense’s closing), receded from on other
grounds by Byford 'v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000).
Eighth, appellant argues that his aggregate sentence was
excessive and disproportionate given the collision was the result of his drug
and alcohol addiction rather than malice.
We discern no abuse of discretion. See Martinez v. State, 114
Nev. 735, 737-38, 961 P.2d 148, 145 (1998) (recognizing that sentencing
courts have wide discretion in imposing sentence); Sims v. State, 107 Nev.
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438, 439, 814 P.2d 63, 64 (1991) (recognizing that the legislature and
sentencing courts are afforded great deference and a reviewing court “rarely
will be required to engage in extended analysis to determine that a sentence
is not constitutionally disproportionate” (quoting Solem v. Helm, 463 U.S.
277, 290 n.16 (1983))). 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.” Blume v. State, 112 Nev. 472, 475, 915
P.2d 282, 284 (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d
220, 221-22 (1979)). Appellant’s sentence falls within the parameters of the
relevant statutes, and he does not allege those statutes are
unconstitutional. See NRS 193.130(2)(d); NRS 453.336(2)(b); NRS
484B.653(9); NRS 484C.400(1)(c)} NRS 484C.430(1). The district court
sentenced him within the guidelines of NRS 176.035(1) to concurrent and
consecutive sentences, which was in the district court’s discretion, see
Pitmon v. State, 131 Nev. 128, 128-29, 352 P.3d 655, 659 (Ct. App. 2015),
and we conclude that the aggregate sentence imposed is not so grossly
disproportionate so as to shock the conscience and constitute cruel and
unusual punishment. See Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(plurality opinion) (explaining the Eighth Amendment does not require
strict proportionality between crime and sentence; it forbids only an
extreme sentence that is grossly disproportionate to the crime).
Lastly, appellant contends that the cumulative effect of errors
during trial warrants relief. “When evaluating a claim of cumulative error,
we consider the following factors: ‘(1) whether the issue of guilt is close, (2)
the quantity and character of the error, and (3) the gravity of the crime
charged.” Valdez, 124 Nev. at 1195, 196 P.3d at 481 (quoting Mulder v.
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State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000). Appellant has
demonstrated two errors: the erroneous admission of teleconferenced
testimony and the failure to question a juror regarding potential bias.
While the crimes charged were serious, the State presented overwhelming
evidence of appellant’s guilt. Further, the errors did not have significant
cumulative effect as the error admitting remote testimony was harmless
due to the cumulative nature of the testimony and the record did not
indicate that the juror was biased.
Having considered appellant’s contentions and concluding that
they do not warrant relief, we
ORDER the judgment of conviction AFFIRMED.*
Od xee Rep Od.
Parraguirre
Ab ofr t
Stiglich Gibbons
, ord.
cc: Hon. Tierra Danielle Jones, District Judge
Steven S. Owens
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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