131 Nev., Advance Opinion 2.1e
IN THE SUPREME COURT OF THE STATE OF NEVADA
MALCOLM MANNING, A/K/A No. 63274
MALCOLM DENZEL MANNING,
Appellant, MED
vs.
THE STATE OF NEVADA, MAY 0 7 2015
Respondent.
Appeal from a judgment of conviction, pursuant to a jury
verdict, of burglary, battery with intent to commit a crime (victim 60 years
of age or older), and robbery (victim 60 years of age or older). Eighth
Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
Affirmed.
Philip J Kohn, Public Defender, and Deborah L. Westbrook, Deputy
Public Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Elana L. Graham, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDESTY, C.J., DOUGLAS and CHERRY, JJ.
OPINION
By the Court, CHERRY, J.:
In addition to other errors that are not issues of first
impression, this opinion addresses whether it is constitutional error for a
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district court to fail to notify and confer with the parties when the court
receives and responds to a note from the jury that it is deadlocked. We
hold that it is. We also hold that such error will be reviewed for
harmlessness beyond a reasonable doubt.
FACTS AND PROCEDURAL HISTORY
This case involves the robbery of an ABC Beer and Wine Store
in Las Vegas. A man entered the store where Luz Potente, a 64-year-old
Filipino cashier, who spoke primarily Tagalog, was working. Potente
recognized the man because she had seen him in the store two to three
times before. During one of his prior visits, he spoke to Potente about
selling either DVDs or CDs. When the man robbed the store, Potente
stated that he looked around the store and then proceeded around the
counter to where she stood behind the cash register. According to Potente,
the man roughly pushed her aside and went to a set of plastic drawers
where the store kept gaming money and receipts in envelopes, he took an
envelope, and he then left the store. The robbery took approximately one
minute to complete. Potente initially thought• that the man took an
envelope containing $500, but she later realized the cash was still there.
Three days• after the incident, a responding officer returned to
the convenience store with a six-person photo lineup. The officer showed
Potente the lineup and asked her if she saw anyone in it that she
recognized. Potente promptly identified Manning as the individual who
came into the store that day and took the envelope. Manning was arrested
after police discussed the case with Akeem Schafer, who was acquainted
with Manning. The State subsequently charged Manning with burglary,
battery with intent to commit a crime with a victim 60 years of age or
older, and robbery with a victim 60 years of age or older.
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The case proceeded to trial. The jury retired for deliberations
late in the day and, about an hour later, gave the court a note indicating
that it was deadlocked 10-2 in favor of conviction. The court instructed
the marshal to tell the jury to come back the next day and continue
deliberating. The court failed to inform the parties of the note until the
next day after the jury returned its verdict finding Manning guilty of all
charges.
After receiving the verdict and learning of the jury's note that
it was deadlocked, Manning filed a motion for a new trial. He argued inter
alia that a new trial was warranted because he did not receive notice that
the jury considered itself deadlocked, thus depriving him of his right to
request a mistrial. The court denied the motion because the jury's note
did not contain a question about law or evidence.
The district court entered a judgment of conviction, sentencing
Manning to 6 to 15 years in the Nevada Department of Corrections.
Manning appealed.
DISCUSSION
Manning argues that the district court's failure to notify and
seek input from the parties after receiving the jury's note that it was
deadlocked constitutes a constitutional error. Whether the district court's
actions in this case violated Manning's rights to counsel, to be present at
trial, to a fair trial, and to due process are constitutional issues that we
review de novo. See Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d
1274, 1277 (2012).
We have yet to address in a published opinion the
constitutional implications of a district court's failure to advise counsel
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about the existence of a jury note. 1 Numerous federal courts have
pondered this question. While these decisions do not bind us, they are
illuminating. Blanton v. N. Las Vegas Man. Court, 103 Nev. 623, 633,
748
P.2d 494, 500 (1987).
The Ninth Circuit has determined that a district court's
failure to notify defense counsel about a jury's inquiry during deliberations
violates the defendant's constitutional right to counsel during a critical
stage of trial. See Musladin v. Lamar que, 555 F.3d 830, 840-43 (9th Cir.
2009) (finding defendant had a constitutional right to participate in
district court's communication with the jury during deliberation); United
States v. Barragan-Devis, 133 F.3d 1287, 1289 (9th Cir. 1998) (finding a
constitutional right to participate in court's decision of whether to respond
to jury question during deliberation and the response itself); United States
v. Frazin, 780 F.2d 1461, 1468-69 (9th Cir. 1986) (finding a due process
violation where the district court (1) instructed the jury to continue
deliberating despite deadlock vote and (2) the court failed to advise
defendants or counsel).
In Frazin, the jury sent a note to the judge indicating that it
was hopelessly deadlocked. 780 F.2d at 1464. The district court, without
consulting counsel, ordered the marshal to instruct the jury that it was to
continue deliberations. Id. The Ninth Circuit explained that "Mlle failure
of the court to notify appellants or their counsel of the jury's deadlock vote,
and the court's ex parte message to the jury to continue its deliberations,
'We discussed the issue in Grimes v. State, Docket No. 62835 (Order
of Affirmance, Feb. 27, 2014), an unpublished disposition. See SCR 123
(unpublished dispositions shall not be cited as legal authority).
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violated appellants' [due process] constitutional rights" to be present at
every stage of trial. Id. at 1468-69.
The Ninth Circuit again explained the significance of
communications with a deliberating jury in Musladin: "[t]he delicate
nature of communication with a deliberating jury means that defense
counsel has an important role to play in helping to shape that
communication." 555 F.3d at 840. Accordingly, the presence of both the
defendant and his or her counsel is required when discussing questions
from the jury "because counsel might object to the instruction or may
suggest an alternative manner of stating the message—a critical
opportunity given the great weight that jurors give a judge's words. The
defendant's or attorney's presence may also be an important opportunity
to try and persuade the judge to respond." Id. at 841. The importance of
this opportunity is heightened when a court responds to a jury's note
indicating a deadlock:
A defendant's participation in formulating a
response to a deadlocked jury, whether through
his counsel or by his personal presence as well,
may be important to ensuring the fairness of the
verdict.... [Mlinority members of a deadlocked
jury are especially susceptible to pressure from the
majority to change their views. A defendant
should be afforded the opportunity to request that
the jury be reinstructed on the burden of proof or
on its members' duty to decide according to their
own consciences.
Id. (quoting Frazin,
780 F.2d at 1469). The Third Circuit agrees that this
is a constitutional violation. See United States v. Toliver, 330 F.3d 607,
616-17 (3d Cir. 2003) (holding that a criminal defendant's Fifth
Amendment right to be present at every critical stage of trial and Sixth
Amendment right to counsel are violated when a judge fails to inform
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counsel of a note from the jury and fails to allow counsel to argue prior to
responding to the jury). The Musladin court further explained that
Whe "stage" at which the deprivation of counsel
may be critical should be understood as the
formulation of the response to a jury's request for
additional instructions, rather than its delivery.
Counsel is most acutely needed before a decision
about how to respond to the jury is made, because
it is the substance of the response—or the decision
whether to respond substantively or not—that is
crucial.
555 F.3d at 842.
Like the Ninth Circuit and the Third Circuit, we believe that
due process gives a defendant the right to be present when a judge
communicates to the jury (whether directly or via his or her marshal or
other staff). A defendant also has the right to have his or her attorney
present to provide input in crafting the court's response to a jury's inquiry.
Accordingly, we hold that the court violates a defendant's due process
rights when it fails to notify and confer with the parties after receiving a
note from the jury. Therefore, we conclude that the district court erred in
this regard in Manning's case.
Manning argues that in such a case, the Ninth Circuit
requires automatic reversal; he is incorrect. The proposed rule of
automatic reversal that a panel of the Ninth Circuit put forth in Musladin
is dicta. Musladin, 555 F.3d at 842-43. Further, the Ninth Circuit has
since departed from this notion. See United States v. Mohsen, 587 F.3d
1028, 1032 (9th Cir. 2009) (stating, in reference to Musladin, that "[wile
never suggested that all errors regarding jury communications during
deliberations were subject to automatic reversal," and holding that a
court's error in responding to a jury's note without consulting the parties
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or counsel constitutes error that is reviewed for harmlessness beyond a
reasonable doubt). Accordingly, we hold that when a district court
responds to a note from the jury without notifying the parties or counsel or
seeking input on the response, the error will be reviewed to determine if it
was harmless beyond a reasonable doubt. 2
The Ninth Circuit provides three factors to determine the
harmlessness of the error in this context: (1) "the probable effect of the
message actually sent"; (2) "the likelihood that the court would have sent a
different message had it consulted with appellants beforehand"; and (3)
"whether any changes in the message that appellants might have obtained
would have affected the verdict in any way." United States v. BarraganDeuis, 133 F.3d 1287, 1289 (9th Cir. 1998); United States v. Frazin,
780
F.2d 1461, 1470 (9th Cir. 1986).
We conclude that the district court's error was harmless
beyond a reasonable doubt. In this case, at the end of the day, after only a
little more than an hour of deliberations, the jury's note informed the
district court that it was deadlocked 10-2. In response, the court told the
2 Manning further argues that we cannot determine whether the
district court's error was harmless because the district court failed to
make a record of the ex parte communication. However, we have
previously held that "[t]he burden to make a proper appellate record rests
on [the] appellant." Greene v. State, 96 Nev. 555, 558,
612 P.3d 686, 688
(1980). Under these circumstances, an adequate record will contain (1)
the contents of the note from the jury, (2) any argument from counsel
pertaining to the jury's note and the court's response, (3) the court's
instructions to its marshal regarding the response, and (4) the marshal's
actual response to the jury. In the event that the court fails to sua sponte
make a record or if the court fails to inform the parties of the note and its
response until after the jury returns its verdict, a party should make as
complete a record as possible once it learns of the ex parte
communications.
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marshal to excuse the jury for the day and instruct them to return the
next day to continue deliberations. The message that the court instructed
the marshal to give to the jury was simple and did not contain any legal
instructions. Although the court should have reconvened the proceedings
and, on the record, discussed the jury's note and conferred with counsel in
developing a response, we do not believe that the result here would have
been substantively different had it done so. It is unlikely that after only
an hour of deliberations the court would have proffered additional
instructions to the jury or required the jurors to continue deliberating past
5 p.m. Moreover, the court correctly directed its marshal to excuse the
jury and tell them to return the next day to continue deliberating. It is
unlikely that the marshal would have altered this simple instruction in
any meaningful or prejudicial manner.
Some courts have also assessed whether the statement to the
jury was inherently coercive. Frazin, 780 F.2d at 1470-71. The statement
to the jury in this case was not inherently coercive because it did not
inform the jury in any way that the court would not accept a deadlocked
jury. The Court simply informed the jury that it would need to continue
deliberations, which the jury did the next morning Accordingly, this error
does not warrant reversal.
We have reviewed Manning's remaining claims and conclude
that they lack merit.
First, Manning contends that the State violated his right to
equal protection when it used four out of its five peremptory challenges to
exclude females from the jury. We conclude that the trial court did not err
when it found that the State used its peremptory challenges as permitted
by the Constitution, and we decline to address Manning's additional
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arguments expanding this issue. See J.E.B. v. Alabama ex rel. T.B., 511
U.S. 127 (1994); Batson v. Kentucky,
476 U.S. 79 (1986).
Second, Manning argues that the district court violated his
rights under the Confrontation Clause when the court admitted evidence
of the State's efforts to locate Schafer, a nontestifying witness who made
out-of-court testimonial statements about Manning. We conclude that the
testimony from the district attorney's investigator concerning his attempt
to locate Schafer did not violate Manning's Confrontation Clause rights
because the investigator did not refer to any testimonial statement. See
Vega v. State, 126 Nev. 332, 339,
236 P.3d 632, 637 (2010) (holding that
"Mlle threshold question in evaluating a confrontation right .. . is whether
the statement was testimonial in nature").
Third, Manning also argues that his Confrontation Clause
rights to have Schafer testify were violated because the district court
admitted hearsay statements from prison phone calls indicating that
Manning did something wrong. He also argues that the calls were not
relevant and contained evidence of his prior bad acts and the prior bad
acts of others. We conclude that Manning waived his Confrontation Clause
argument and prior bad acts evidence arguments when he waived
redaction of the calls. Cf. United States v. Peeper, 685 F.2d 328, 329 (9th
Cir. 1982) (finding no confrontation clause violation when defense
counsel's failure to object resulted from a tactical decision).
Fourth, Manning argues that the district court erred in
admitting three phone calls he made from jail because the calls included
evidence of possible plea negotiations and were irrelevant and unfairly
prejudicial. We conclude that the district court properly admitted the
phone calls because they evidenced consciousness of guilt. See Abram v.
State, 95 Nev. 352, 356,
594 P.2d 1143, 1145 (1979) ("Declarations made
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after the commission of the crime which indicate consciousness of guilt, or
are inconsistent with innocence, or tend to establish intent may be
admissible.").
Fifth, Manning argues that prosecutors committed misconduct
by reminding the jury in closing arguments that officers arrested Manning
after speaking with Schafer and that the district attorney's investigator
searched for Schafer to have him testify. We conclude that the
prosecution's statements about Schafer during closing arguments did not
constitute plain error because the prosecution is entitled to make
inferences from the admitted testimony and evidence. See Jain v.
McFarland, 109 Nev. 465, 476,
851 P.2d 450, 457 (1993).
Sixth, Manning argues that the district court's error of
admitting the phone calls that referenced his desire to obtain his discovery
was compounded by the district court's refusal to proffer a curative
instruction when the prosecution repeatedly insinuated that Manning's
assertion of a legal right was evidence of guilt. Because we conclude that
the district court did not err in admitting the calls, we need not address
this issue.
Seventh, Manning contends that the victim's in-court
identification was unreliable because she only briefly viewed the suspect,
she was making a cross-racial identification, her anxiety decreased her
degree of attention, her prior description was vague, her prior
identification was unsure, and her in-court identification occurred several
months after the crime. The victim recognized Manning because he had
previously been in the store, she saw him during the robbery for
approximately one minute at very close range, and she also immediately
picked him out of a photo lineup. We conclude that the admission of the
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in-court identification was not erroneous. See Dieudonne v. State, 127
Nev., Adv, Op. 1, 245 P.3d 1202, 1205 (2011) (holding that "It] o amount to
plain error, an error must be so unmistakable that it is apparent from a
casual inspection of the record").
Eighth, Manning argues that the district court violated his
Confrontation Clause rights in allowing unnoticed expert testimony from
Eric Sahota, the forensic scientist who reviewed the fingerprints that
police took from the crime scene. He also argues that the district court
violated his rights to due process and a fundamentally fair trial when
Sahota was allowed to testify to matters outside his expertise. We
conclude that the district court did not abuse its discretion in allowing
Sahota to testify at trial because the defense acknowledged at calendar
call that it was on notice that the State might call a fingerprint expert to
testify. We also conclude that the district court did not abuse its
discretion in allowing Sahota to apply this testimony to the surveillance
video from the store. See NRS 50.275.
Ninth, Manning contends that because an officer testified that
police were "informed" that he was a possible suspect instead of stating
that police "developed" him as a possible suspect, the jury was improperly
left with unchallenged statements that individuals provided inculpatory
information about him. We conclude that because the officer could have
been informed in various ways that Manning was a possible suspect, this
testimony does not fall within the purview of the Confrontation Clause's
protections. See Vega, 126 Nev. at 339,
236 P.3d at 637.
CONCLUSION
We conclude that the district court's error in responding to the
note from the jury without notifying the parties or counsel was harmless
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beyond a reasonable doubt. Accordingly, we affirm the judgment of
conviction as to all counts.
J.
We concur:
, C.J.
Hardesty
Douglas
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