Dickson v. State

¶1dissenting:

¶2Respectfully, I dissent.

¶3Appellant Kevin Dickson was lawfully arrested at a house trailer on an outstanding warrant. A “pat down” search revealed a small plastic tube containing a white powdery residue. Laboratory analysis later identified the residue as methamphetamine.

¶4In Watson v. State, 88 Nev. 196, 198, 495 P.2d 365, 366 (1972), this court concluded that minute quantities of a narcotic could not support the intent element of the crime of possession of a controlled substance. See also Beutler v. State, 88 Nev. 707, 709, 504 P.2d 699, 700 (1972). However, Watson was tried before the 1971 amendment to NRS ch. 453. Watsonat 198 N.2, 495 P.2d at 366 n.2.1 The current provisions of NRS 453.570 provide as follows:

Amount of controlled substance needed to sustain conviction for prohibited offense. The amount of a controlled *5substance needed to sustain a conviction of a person for an offense prohibited by the provisions of NRS 453.011 to 453.552, inclusive, is that amount necessary for identification as a controlled substance by a witness qualified to make such identification.

¶5In Sheriff v. Benson, 89 Nev. 160, 509 P.2d 554 (1973), this court interpreted NRS 453.570 in light of Watsonand reasoned that “[t]he quantity of controlled substance to support the intent necessary to establish the crime of possession is vital only in the absence of other evidence of intent.” Id. at 163, 509 P.2d at 556. The Bensoncourt then concluded:

When there is present in the record other evidence of intent to commit an offense prohibited by NRS ch. 453, then all that is needed to sustain a conviction is that amount of controlled substance necessary for identification. Where there is a total absence of other evidence to establish the intent to commit an offense prohibited by NRS ch. 453 then the rule announced in Watsonis controlling.

¶6Id.

¶7I conclude that the standard articulated in Bensonis the standard that should be followed in this case. I likewise believe that if Bensonis followed, Dickson’s conviction should be affirmed by this court.

¶8At trial, Dickson asserted that he did not intend to possess the methamphetamine. He testified that he had picked up a small tube — described as a pen barrel — while he was vacuuming the floor, and that he had placed it in his pocket without knowledge of its contents.

¶9However, Dickson’s friend testified on rebuttal that he had seen Dickson “involved” with methamphetamine in Dickson’s home. Further, Dickson admitted that he had seen the friend use a pen barrel to ingest methamphetamine. Therefore, it was reasonable for the jury to conclude that Dickson knew that the white powdery substance in the pen barrel was methamphetamine.

¶10Based on the above evidence, I strongly disagree with the majority’s conclusion to reverse this case simply because a prospective juror saw Dickson in chains outside the courtroom. The incident occurred as Dickson was being brought into the courthouse, prior to trial. When a juror later brought this to the attention of the court, the District Judge adequately admonished the jury.2 Dickson’s counsel had an opportunity to question the *6jurors on voir dire. Two jurors expressed sympathy for Dickson. One juror stated: “I feel bad for him if he’s not guilty which he’s already presumed not to be. . . .” There was no evidence indicating any prejudice against Dickson resulting from the incident. Consequently, I see no reason to depart from this court’s holding in Grooms v. State, 96 Nev. 142, 144-145, 605 P.2d 1145, 1147 (1980), wherein we concluded “that any prejudice that resulted from the viewing was cured by the scrupulous conduct of the district judge in ensuring that jurors were not influenced by the error.”

¶11I firmly support the view that “[i]t is a far-fetched conjecture that jurors under oath would spontaneously harbor prejudice immediately upon seeing a defendant brought to court in manacles.” State v. Hashimoto, 377, P.2d 728, 734 (Haw. 1962). Furthermore, I believe my honorable colleagues should adhere to the following counsel provided by the Washington Supreme Court:

In addition, we must indulge some presumptions in favor of the integrity of the jury. It is a branch of the judiciary, and if we assume that jurors are so quickly forgetful of the duties of citizenship as to stand continually ready to violate their oath on the slightest provocation, we must inevitably conclude that a trial by jury is a farce and our government a failure.

¶12State v. Grisby, 647 P.2d 6, 15, (1982), cert. denied, 459 U.S. 1211 (1983) (quoting State v. Pepoon, 114 P. 449, 453 (Wash. 1911)).

¶13An inadvertent incident where a juror sees a defendant outside a courtroom in handcuffs or chains cannot be anything more than harmless error, absent a showing of prejudice. See Hamrick v. People, 624 P.2d 1320, 1323 (Colo. 1981); State v. Pendergrass, 615 P.2d 201, 205 (Mont. 1980); Snyder v. State, 738 P.2d 548, 550 (Okla. 1987). As heretofore noted, the jurors expressed sympathy for Dickson and the record does not provide any evidence of prejudice. Furthermore, I cannot agree with my distinguished colleagues that the case against Dickson was “extremely close.” Upon hearing the testimony of Dickson and other witnesses, the jury returned a guilty verdict. The evidence is sufficient to support the jury’s conclusion that Dickson inten*7tionally possessed methamphetamine. Therefore, I would conclude that the error by the State was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967); see also Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976); NRS 177.255. Accordingly, I reject the majority’s conclusion to the contrary.