Mitchell (Dehru) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DEHRU MITCHELL, No. 67107
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAR 1 7 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of one count of battery with intent to commit robbery and one
count of robbery. Eighth Judicial District Court, Clark County; Michelle
Leavitt, Judge.
Appellant Dehru Mitchell contends that the district court
erred when it denied his motion for a new venire, in violation of the Sixth
and Fourteenth Amendments to the United States Constitution. We
review the district court's decision de novo. Grey v. State, 124 Nev. 110,
117, 178 P.3d 154, 159 (2008) ("This court applies a de novo standard of
review to constitutional challenges."). A defendant has a constitutional
right to "a venire selected from a fair cross section of the community"
Williams v. State, 121 Nev. 934, 939, 125 P.3d 627, 631 (2005). The
process for selecting venires "must not systematically exclude distinctive
groups in the community." Id. at 939-40, 125 P.3d at 631 (quoting Evans
v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 274 (1996)). However, there is
no constitutional right to a venire that mirrors the composition of the
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community.' Id. at 939, 125 P.3d at 631. A defendant contesting the
venire's composition bears the burden of proof and must show a prima
facie violation of the fair-cross-section requirement by demonstrating
(1) that the group alleged to be excluded is a
"distinctive" group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation
is due to systematic exclusion of the group in the
jury-selection process.
Evans, 112 Nev. at 1186, 926 P.2d at 275 (emphasis omitted) (quoting
Duren v. Missouri, 439 U.S. 357, 364 (1979)). In objecting to the venire
composition below, Mitchell failed to allege that any underrepresentation
of African Americans was due to systematic exclusion in the jury-selection
process, and he failed to present any evidence of systematic exclusion or to
request an evidentiary hearing in order to inquire into the process. We
therefore conclude that the district court did not err in denying his motion
for a new venire.
Mitchell next contends that he is entitled to a new trial
because the State introduced hearsay evidence. A responding police
officer testified that as he was approaching the accident area, a man
flagged the officer down to say that someone had just asked him for a ride
'For this reason, we deny Mitchell's request for a declaration that
whenever a distinctive group is underrepresented in a venire, the trial
court should immediately dismiss the venire and produce a new one
"which statistically represents a reasonable cross-section of the
community."
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and tried to climb into his vehicle. Mitchell's claim fails for several
reasons. First, Mitchell argues that the statements were offered in order
to explain why officers approached him when he had not been seen leaving
the accident. If Mitchell's argument is correct, then the statement was not
hearsay since it was not offered for the truth of the matter asserted. See
NRS 51.035. Second, insofar as Mitchell suggests some improper conduct
on the part of the prosecutor, the testimony was an unsolicited statement
made after the witness had answered the question posed by the
prosecutor. Third, insofar as Mitchell suggests the trial court abused its
discretion in admitting the evidence, we note that the district court
sustained Mitchell's objection to the testimony. The jury had been
instructed to disregard such evidence, and Mitchell offers no reason for
this court to depart from its practice of presuming that the jury follows its
instructions. See Hymon v. State, 121 Nev. 200, 211, 111 P.3d 1092, 1100
(2005).
Mitchell next contends that the jury was not properly
instructed on the meaning of reasonable doubt. Because Mitchell failed to
object below, we review his claim for plain error. See Green v. State, 119
Nev. 542, 545, 80 P.3d 93, 95 (2003). The reasonable-doubt instruction
was taken directly from NRS 175.211(1) and is the only instruction that
the district court may give. NRS 175.211(2). Accordingly, Mitchell fails to
demonstrate any error that is plain from a review of the record. See
Mendoza-Lobos v. State, 125 Nev. 634, 644, 218 P.3d 501, 507 (2009)
(explaining requirements to demonstrate plain error).
Mitchell next contends that he is entitled to a new trial
because the prosecutor's use of the words "possible" and "probable" in
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rebuttal argument confused the standard as to the State's burden of proof.
As Mitchell did not object below, we review his claim for plain error. See
Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). At the
end of his rebuttal, the prosecutor argued,
And finally, down here, doubt to be reasonable
must be actual, not mere possibility or
speculation. So when [defense counsel] comes up
and he argues and he says you got the wrong
person. Okay. Is it possible, is it possible that
this is the wrong person? Sure. Anything is
possible. Right. It's possible that this building
could just fall over right now. Right? It's possible
that those things can happen. Is it probable that
this wasn't him? No. Is it reasonable doubt?
Absolutely not.
This argument is not error plain from the record. The prosecutor took
" possibility" directly from the reasonable-doubt jury instruction and was
arguing where the evidence showed that Mitchell fell on a continuum
between possibly and beyond a reasonable doubt. Mitchell fails to explain
how this was confusing. Even if this were error plain from the record,
Mitchell could not demonstrate that it affected his substantial rights
where the jury was properly instructed on reasonable doubt. CI Randolph
v. State, 117 Nev. 970, 981, 36 P.3d 424, 431 (2001) ("We have
nevertheless consistently deemed incorrect explanations of reasonable
doubt to be harmless error as long as the jury instruction correctly defined
reasonable doubt.").
Finally, Mitchell contends that he is entitled to a new trial
because of the cumulative effect of the errors. See Big Pond v. State, 101
Nev. 1, 3, 692 P.2d 1288, 1289 (1985) (setting out the cumulative-error
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factors). As Mitchell has failed to demonstrate any error, he has
necessarily failed to demonstrate that the cumulative effect of errors
entitles him to a new trial. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
ai
Saitta
J.
cc: Hon. Michelle Leavitt, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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