133 Nev., Advance Opinion 41
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL JOSEPH JEFFRIES, No. 68338
Appellant,
vs.
THE STATE OF NEVADA,
FH. D
Respondent. JUL 0 6 2017
El
BY ..)
CI LA a
L._ DU SO
Appeal from a judgment of conviction, pursuant t• a jury
verdict, of second-degree murder. Eighth Judicial District Court, Clark
County; J. Charles Thompson, Senior Judge.
Affirmed.
Gentile Cristalli Miller Armeni Savarese and Vincent Savarese III, Las
Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Binu G. Palal, Deputy District Attorney, Clark County,
for Respondent.
BEFORE DOUGLAS, GIBBONS and PICKERING, JJ.
OPINION
By the Court, DOUGLAS, J.:
In this appeal, we consider whether the district court abused
its discretion in denying appellant's motion for a mistrial based on
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prosecutorial misconduct and his motion for a new trial based on juror
misconduct, and whether the district court abused its discretion in
declining to provide the jury with a supplemental clarifying instruction on
malice aforethought. We conclude that appellant failed to establish any
prejudicial prosecutorial misconduct and that appellant's trial counsel
failed to adequately develop the record to assess whether he was
prejudiced by juror misconduct. We further conclude that because the
instructions on malice given to the jury were correct and appellant failed
to indicate what supplemental clarifying instruction the district court
should have provided, appellant fails to demonstrate error. Therefore, we
affirm the judgment of conviction.
We take this opportunity to provide guidance on two recent
cases. First, we provide guidance on the applicability of Bowman v. State,
132 Nev., Adv. Op. 74, 387 P.3d 202 (2016), regarding the district court's
duty to instruct the jury not to conduct independent research or
investigation. Second, we provide guidance on the scope of Gonzalez v.
State, 131 Nev., Adv. Op. 99, 366 P.3d 680 (2015), concerning the district
court's duty to provide additional instruction when a jury's questions
during deliberations suggest confusion or lack of understanding of
applicable law.
FACTS AND PROCEDURAL HISTORY
On October 22, 2011, appellant Michael Jeffries invited a few
guests to his house in Las Vegas, including his longtime friend, Eric Gore.
Jeffries' then live-in girlfriend Mandy and her 13-year-old daughter
Brittany were also present at the house that entire evening. Both Jeffries
and Gore were intoxicated when Gore became angry with one of the
guests. Jeffries took Gore outside in an effort to calm him down. The two
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then returned to the house and continued to drink, but Gore was still
upset. The other guests left as a result, but Gore refused to leave. An
altercation ensued, which prompted Jeffries to retrieve his gun from under
the mattress in his bedroom. As Jeffries exited his bedroom, an unarmed
Gore approached, and Jeffries fatally shot him once in the heart from a
distance of 2 to 3 feet.
Thefl only other eyewitness to the shooting, Brittany, recounted
the details of that night in statements to police and testimony at the
preliminary hearing. Her statements and testimony discredited the
defense theory that Gore ran aggressively toward Jeffries before Jeffries
shot him in self-defense. When the State called Brittany as its first
witness at trial, she could not remember many of the details she
previously recounted. In the State's rebuttal closing argument, the
prosecutor suggested that Jeffries might have indirectly influenced
Brittany's trial testimony and made statements regarding her credibility.
On this basis, Jeffries objected and later moved for a mistrial. The district
court denied Jeffries' motion.
During deliberations, the district court received three
questions from the jury presented in two notes. The first note indicated
that a juror had conducted outside research, which prompted the district
court to reinstruct the jury pursuant to both parties' request. The second
note inquired about the jury instructions; however, the district court did
not provide a supplemental clarifying instruction.
Ultimately, the jury returned a verdict of guilty of second-degree murder. Jeffries filed a motion for a new trial, which the district
court denied. The court then sentenced Jeffries to serve a prison term of
10 years to life for the• murder and a consecutive prison term of 1-6 years
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for the deadly weapon enhancement. Jeffries now appeals from the
judgment of conviction.
DISCUSSION
Prosecutorial misconduct
Jeffi les argues that the district court erred by denying his
motion for a mistrial based on prosecutorial misconduct. Jeffries contends
that the prosecutor engaged in misconduct by vouching for Brittany and
arguing that Jeffiies influenced Brittany's testimony at trial. Conversely,
the State argues that Jeffries raises his vouching argument for the first
time on appeal and that this claim does not constitute reversible plain
error. The State further denies that its argument concerning Jeffries'
influence on Brittany's trial testimony amounted to prosecutorial
misconduct because its rebuttal closing argument was appropriate based
on the evidence and a proper response to Jeffries' closing argument. We
agree with both of the State's contentions and therefore conclude that the
district court did not abuse its discretion by denying the motion for a
mistrial.
"A defendant's request for a mistrial may be granted. . . where
some prejudice occurs that prevents the defendant from receiving a fair
trial." Rudin v. State, 120 Nev. 121, 144,
86 P.3d 572, 587 (2004). This
court will not disturb a district court's decision to deny a motion for a
mistrial "absent a clear showing of abuse." Ledbetter v. State, 122 Nev.
252, 264,
129 P.3d 671, 680 (2006) (internal quotation marks omitted).
"To determine if prejudicial prosecutorial misconduct occurred,
the relevant inquiry is whether a prosecutor's statements so infected the
proceedings with unfairness as to make the results a denial of due
process." Butler v. State, 120 Nev. 879, 896,
102 P.3d 71, 83 (2004)
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(internal quotation marks omitted). Further, "[a] prosecutor's comments
should be considered in context, and a criminal conviction is not to be
lightly overturned on the basis of a prosecutor's comments standing
alone." Leonard v. State, 117 Nev. 53, 81,
17 P.3d 397, 414 (2001)
(internal quotation marks omitted).
Harmless-error review, however, only applies if the error was
preserved. Valdez v. State, 124 Nev. 1172, 1190,
196 P.3d 465, 477 (2008).
"Generally, to preserve a claim of prosecutorial misconduct, the defendant
must object to the misconduct at trial . . ." Id. Failure to preserve the
error requires this court to apply plain-error review. Id. Under plain-error review, reversal is not required unless the defendant shows that the
plain error caused "actual prejudice or a miscarriage of justice." Id.
(internal quotation marks omitted).
Whether the State improperly vouched for Brittany
Jeffries contends that the prosecutor inappropriately vouched
for Brittany's credibility during the following part of the rebuttal closing
argument:
So we now have three versions of statements
from Brittany. . .. And now we're here at trial,
and Brittany. . . doesn't remember anything. You
know,. . I really grew to like Brittany. . . during
this whole period that I've had this case. You
know why? You saw it.
Here's a wonderful young lady. She's a
wonderful young lady. And think about the
influences she has had. . . in her life that would
influence her testimony. She . .. has influences
now that she didn't have then. In 2011, there
wasn't this influence that—you know, the
[imminent] marriage of her mother to the man
that she watched shoot Eric Gore dead.
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That's a huge influence. She hasn't had—
back then, during her reliable statements that she
did remember, she didn't have the influence of
three-and-a-half years of being worked on by mom
and—perhaps indirectly, but certainly being
worked on—by Mike Jeffries.
(Emphases added.) Although Jeffries objected and moved for a mistrial
based on the lack of evidence to support the State's argument that Jeffries
influenced Brittany's testimony at trial, Jeffries' objection and subsequent
motion did not address the alleged improper vouching. Therefore, Jeffries
failed to raise the issue of vouching below, and we conclude that he fails to
demonstrate that plain error exists to warrant reversal.
Whether the State inappropriately argued that Jeffries influenced
Brittany's testimony
Jeffries contends that the prosecutor committed misconduct
when he suggested that Jeffries influenced Brittany's testimony at trial
because the prosecutor's assertion was not supported by the evidence. "A
prosecutor may not argue facts or inferences not supported by the
evidence." Williams v. State, 103 Nev. 106, 110,
734 P.2d 700, 703 (1987).
However, "the prosecutor may argue inferences from the evidence and
offer conclusions on contested issues." Miller v. State, 121 Nev. 92, 100,
110 P.3d 53, 59 (2005) (internal quotation marks omitted). Further,
"[e]xplaining to the jury why [the witness] might be lying is permissible
argument." Ross v. State, 106 Nev. 924, 927,
803 P.2d 1104, 1106 (1990).
Here, the prosecutor's argument that Jeffries might have
indirectly influenced Brittany's testimony was an appropriate comment on
the evidence presented. Brittany testified that she had not been in contact
with Jeffries since he shot Gore to ensure that she would be seen as a
reliable witness. Brittany also testified that her mother and Jeffries did
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not suggest how she should testify at trial. However, testimony also
revealed that Brittany's mother and Jeffries became engaged prior to trial,
and Brittany admitted that she did not want anything to happen to
Jeffries. Based on this testimony, an inference that Brittany's mother and
Jeffries indirectly influenced her trial testimony is relevant to explain why
Brittany failed to recall many of the details she recounted earlier.
Moreover, the prosecutor's rebuttal argument was a proper response to
Jeffries' closing argument, which inferred that Brittany's second
statement to police was influenced. Accordingly, it was proper for the
State to argue that Jeffries could have indirectly influenced her testimony
at trial. Because the prosecutor's argument was appropriate, we conclude
that the district court did not abuse its discretion by denying Jeffries'
motion for a mistrial.
Juror misconduct
Jeffries argues that the district court abused its discretion in
denying his motion for a new trial based on juror misconduct.' In
particular, Jeffries argues that the district court had a sua sponte
obligation to investigate whether actual prejudice attached as a result of
the juror misconduct. We disagree and take this opportunity to provide
guidance on Bowman v. State, 132 Nev., Adv. Op. 74, 387 P.3d 202 (2016).
'Jeffries alternatively argues that counsel was ineffective for failing
to challenge the juror misconduct. However, this claim is inappropriately
raised for the first time on direct appeal and therefore eludes judicial
review. See Pellegrini v. State, 117 Nev. 860, 883-84,
34 P.3d 519, 534-35
(2001) (stating that such a claim is appropriately raised for the first time
in a post-conviction petition). Further, after consideration of Jeffries'
additional arguments concerning juror misconduct, we conclude that they
lack merit.
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In order for a defendant to prevail on a motion for a new trial
based on juror misconduct, "the defendant must present admissible
evidence sufficient to establish: (1) the occurrence of juror misconduct, and
(2) a showing that the misconduct was prejudicial." Meyer v. State, 119
Nev. 554, 563-64,
80 P.3d 447, 455 (2003). With regard to the second
prong, "[p]rejudice is shown whenever there is a reasonable probability or
likelihood that the juror misconduct affected the verdict." Id. at 564,
80
P.3d at 455. In determining whether prejudice resulted, the district court
may consider a nonexhaustive list of factors, such as "how the material
was introduced to the jury," "the length of time it was discussed by the
jury," "the timing of its introduction," and "whether the information was
ambiguous." Id. at 566,
80 P.3d at 456. Analysis of the impact that the
misconduct had on the verdict must be objective with the relevant inquiry
being "whether the average, hypothetical juror would be influenced by the
juror misconduct." Id.
This court will uphold a district court's decision to deny a
motion for a new trial based on juror misconduct absent an abuse of
discretion. Id. at 561,
80 P.3d at 453. Further, this court will not disturb
the district court's factual findings absent clear error. Id. "However,
where the misconduct involves allegations that the jury was exposed to
extrinsic evidence in violation of the Confrontation Clause, de novo review
of a trial court's conclusions regarding the prejudicial effect of any
misconduct is appropriate." Id. at 561-62,
80 P.3d at 453.
The juror misconduct at issue here involved independent
research, and we recently addressed independent juror investigations in
Bowman v. State, 132 Nev., Adv. Op. 74, 387 P.3d 202. In Bowman, two
jurors conducted individual experiments testing the parties' theories
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before reentering deliberations. Id. at 204. Following the trial, the two
jurors revealed that they relied on their experiments in reaching a verdict.
Id. at 204-05. The defendant moved for a new trial based on this
revelation, and the district court subsequently held an evidentiary hearing
to investigate the prejudicial effect of the jurors' individual experiments.
Id. at 205. We ultimately concluded that the district court erred in
denying the defendant's motion for a new trial. Id. In reaching our
conclusion, we determined that prejudicial juror misconduct occurred after
applying the Meyer factors. Id. at 206. We further concluded that the
district court had a sua sponte obligation to give a jury instruction
prohibiting jurors from conducting independent research, investigations,
and experiments. Id.
Here, the district court received the following note from the
foreperson during jury deliberations: "One Juror openly stated they looked
up the consequence of a guilty plea and was against the penalty. What do
we do at this time?" Upon both parties' request, the district court provided
curative instructions admonishing the jury not to consider punishment.
This is evidenced by the fact that Jeffries' counsel stated: "I just wanted
the record to reflect that the Court's supplemental charge to the jury was
done after consultation with counsel." The district court further confirmed
that "it was the request of. . . both sides that [the district court] tell [the
jury] not to discuss punishment and go back and consider their verdict."
We take this opportunity to distinguish this case from
Bowman. Unlike Bowman, the district court provided the relevant jury
instructions prohibiting jurors from conducting independent research and
from considering the penalty. Further, the juror misconduct was revealed
before the jury reached a verdict, and thus, the district court was able to
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remedy any prejudice by admonishing the jury. Most notably, counsel for
both parties agreed upon a curative instruction, which the district court
provided. Therefore, the district court was not required to act sua sponte
to investigate whether actual prejudice attached as a result of the juror
misconduct. It was upon the defense counsel to make such a request. As a
result, the brief discussion that ensued concerning the juror note did not
reveal enough facts allowing for an objective consideration of the Meyer
factors. Because Jeffries' trial counsel did not adequately develop the
record to assess any prejudice, we conclude that he fails to demonstrate
prejudice that would warrant a new trial.
Supplemental clarifying jury instruction
Jeff' les argues that the district court abused its discretion in
refusing to provide a supplemental clarifying instruction to the jury after
the court received two jury notes expressing confusion regarding an
instruction. We disagree and clarify the scope of Gonzalez v. State, 131
Nev., Adv. Op. 99, 366 P.3d 680 (2015).
"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). "An abuse of discretion occurs if the district
court's decision is arbitrary or capricious or if it exceeds the bounds of law
or reason." Id. (internal quotation marks omitted). This same standard of
review applies when the trial judge refuses to answer jury questions
during deliberations. See Tellis v. State, 84 Nev. 587, 591,
445 P.2d 938,
941 (1968).
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In Tellis, we stated that "[i]f [the trial judge] is of the opinion
the instructions already given are adequate, correctly state the law and
fully advise the jury on the procedures they are to follow in their
deliberation, his refusal to answer a question already answered in the
instructions is not error." Id. Subsequently in Gonzalez, we determined
that Tellis did not go far enough in describing the district court's
obligation to answer the jury's questions during deliberations. 131 Nev.,
Adv. Op. 99, 366 P.3d at 683. Thus, we created an exception to the rule as
stated in Tellis by holding "that in situations where a jury's question
during deliberations suggests confusion or lack of understanding of a
significant element of the applicable law, the judge has a duty to give
additional instructions on the law to adequately clarify the jury's doubt or
confusion." Id. at 682. This holds true even when the jury is originally
given correct, complete, and clear instructions. See id. at 684. In
Gonzalez, the jury presented two questions to the trial judge. Id. at 683.
Although both parties agreed to an answer addressing both of the jury's
questions, the district court refused to answer either of the questions. Id.
Because the first jury question concerned conspiracy, which went to the
very heart of the offense at issue, we held that the district court abused its
discretion when it refused to clarify the jury's confusion by providing an
answer. Id. at 684.
Here, the jury asked the following three questions presented
in two notes during deliberations:
May we have more clarity/explanation on malice
aforethought.
Can we also get further understanding between
2nd degree vs. manslaughter.
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Does a conscious intent to cause death or great
harm BEFORE committing the crime fall into the
criteria of malice?
(Emphasis in original.) In response to these juror notes, the district court
informed the jury that the instructions in question are statutorily
provided. The court clarified that it could only give the jury the law,
which the jury must apply to the facts in order to reach a verdict.
The jury's questions suggested confusion concerning malice,
which is a significant element of murder. 2 See NRS 200.010. Unlike in
Gonzalez, however, neither Jeffries nor the State proffered any
supplemental instructions aimed at answering the jury's questions. Even
on appeal, Jeffries does not indicate what further instruction the district
court should have provided. We conclude that this distinction is
significant and clarify Gonzalez to the extent that a district court does not
abuse its discretion when it refuses to answer a jury question after giving
correct instructions if neither party provides the court with a proffered
instruction that would clarify the jury's doubt or confusion. Accordingly,
this case would fall outside of the scope of Gonzalez, leaving only the
2 It is undisputed that the submitted jury instructions adequately
and correctly stated the law.
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correct jury instruction on malice to review for error. Therefore, Jeffries
fails to demonstrate that the district court abused its discretion. 3
Having considered Jeffries' arguments and concluded that no
relief is warranted, we affirm the judgment of conviction.
J.
We concur:
J.
sLastly, Jeffries argues that cumulative error warrants reversal.
"The cumulative effect of errors may violate a defendant's constitutional
right to a fair trial even though errors are harmless individually."
Burnside v. State, 131 Nev., Adv. Op. 40, 352 P.3d 627, 651 (2015), cert.
denied, U.S. , 136 S. Ct. 1466 (2016) (internal quotation marks
omitted). Because there are no errors to cumulate, we conclude that
Jeffries is not entitled to relief based upon this claim.
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