133 Nevis Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
LESEAN TARUS COLLINS, N. 69269
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. NOV 2 2 2017
ETH A. DROWN
ikt Vit
S.
il
IEF DE • CLERK
Appeal from a judgment of conviction, pursuant a jury
verdict, of one count of murder and one count of robbery. Eighth Judicial
District Court, Clark County; Kathleen E. Delaney, Judge.
Affirmed.
David M. Schieck, Special Public Defender, and JoNell Thomas, Chief
Deputy Special Public Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE DOUGLAS, GIBBONS and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
A jury convicted Lesean Collins of robbery and first-degree
murder, for which he was sentenced to life in prison without the possibility
of parole. On appeal, Collins argues that his constitutional rights were
violated on the first day of trial when the district court barred him from the
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courtroom for disruptive conduct for a two-hour period, during which it
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excused individual jurors for hardship, statutory ineligibility, and language
barrier reasons. Collins also raises claims of evidentiary and instructional
error and challenges the sufficiency of the evidence to sustain his
convictions. Because none of these issues requires reversal, we affirm.
I.
Four days after Brandi Payton went missing, two ATV riders
discovered her decomposed body in a ravine. Drag marks led through the
dirt and brush to the body. No purse, wallet, cell phone, or means of
identification or transportation were found. Brandi's shirt was pulled up
over her head, and she was shoeless. Three of her acrylic fingernails had
broken off—two were found at the scene—and one of her pockets was inside
out. Some nearby rocks had blood on them.
Brandi's sister identified her body. Although identifiable, the
body had decomposed too much for the coroner to definitively state the cause
of death. The autopsy established that before she died Brandi sustained
three blows to her head from a rod-like instrument. While the blows did not
fracture Brandi's skull, they were strong enough to render her unconscious.
The coroner deemed Brandi's death consistent with asphyxiation or being
locked in the trunk of a car in southern Nevada's late summer heat.
Circumstantial evidence tied Collins to Brandi and to her
robbery and death. Collins and Brandi knew one another. Brandi
occasionally dealt drugs and used cell phones and rental cars to conduct
business. Cell phone records showed that Collins and Brandi exchanged
numerous calls and texts the day she disappeared. Brandi's phone received
its last call at 3:38 p.m., then shut off. Earlier, both Collins's and Brandi's
phones sent signals through a cell phone tower close to Collins's girlfriend's
house, where Collins often stayed during the day. That night, Collins's cell
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phone signals placed him in the remote area where Brandi's body was
found.
Collins's girlfriend testified that Collins picked her up from
work the day Brandi disappeared. He had jewelry with him he didn't have
before, including a necklace he later asked his girlfriend to pawn and a
Rolex bracelet (at trial the State proved both pieces of jewelry had been
Brandi's). When they got home, the girlfriend found a gold Hyundai parked
in the garage. The carpet in the house was soiled and something had
spattered on the laundry room walls. Collins told his girlfriend that Brandi
rented the car for him and that he had spilled oil on the carpet, which he
tried to clean with bleach. That night, Collins left in the Hyundai, returned,
washed the Hyundai, and fell asleep outside in the car. At some point, the
North Las Vegas police came by to check on the car and its occupant. Rather
than get out as asked, Collins sped off, eluding the police. Collins's girlfriend
found a long acrylic fingernail in her home, which Collins admitted to her
was Brandi's.
As part of their investigation, the police interviewed Brandi's
boyfriend, Rufus. They ruled him out as a suspect and focused on Collins.
Several weeks after finding Brandi's body, the police found the gold
Hyundai, minus its tires. Tests showed traces of blood belonging to Brandi
on the Hyundai's trunk mat. The police also tested the spatter on the walls
of Collins's girlfriend's home and confirmed it was Brandi's blood.
Collins was arrested for, charged with, and convicted of robbery
and first-degree murder. He appeals.
A criminal defendant has the right under the Confrontation
Clause of the Sixth Amendment and the Due Process Clauses of the Fifth
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and Fourteenth Amendments to be present at every stage of the trial.
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Illinois v. Allen, 397 U.S. 337, 338(1970); United States v. Gagnon,
470 U.S.
522, 526 (1985); see Nev. Const. art. I, § 8. Coffins complains that the
district court deprived him of this right when it excused him from the
courtroom for the last two hours of the first day of trial.
A.
While a defendant has the right to be present at every stage of
trial, that right is not absolute. Allen, 397 U.S. at 342-43. A defendant may
lose the right to attend trial if, after being warned, he persists in disrupting
the proceedings by engaging in conduct inimical to the dignity and decorum
required in a court of law. Id. at 343; see NRS 175.387(1)(c). A district
court's decision to remove a defendant from the courtroom for disruptive
behavior is reviewed under an abuse-of-discretion standard. United States
v. Hellems, 866 F.3d 856, 863-64 (8th Cir. 2017); cf. Tanksley v. State,
113
Nev. 997, 1001-02,
946 P.2d 148, 150 (1997) (holding in an analogous
context that "[a] defendant may be denied his right of self-representation if
he or she is unable or unwilling to abide by rules of courtroom procedure"
and that, because the trial court judge has "the opportunity to observe" the
defendant's "demeanor and conduct" first-hand, "[t]his court will not
substitute its evaluation for that of the district court judge's own personal
observations and impressions").
"[C]ourts must indulge every reasonable presumption against
the loss of constitutional rights." Allen, 397 U.S. at 343 (citing Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). But district court judges "confronted with
disruptive, contumacious, stubbornly defiant defendants must be given
sufficient discretion to meet the circumstances of each case. No one formula
for maintaining the appropriate courtroom atmosphere will be best in all
situations." Id.
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A defendant who is removed for courtroom misconduct
impliedly waives the right to be present. See United States v. Benabe, 654
F.3d 753, 768 (7th Cir. 2011). The waiver is implied, not explicit.
Id.
Though not amenable to a one-size-fits-all approach, the record supporting
waiver should demonstrate, at minimum, that the defendant understands
the right he is waiving and that the need to maintain the dignity of and
control over the proceedings justifies the defendant's removal. See Allen,
397 U.S. at 345-46. A district court faced with a disruptive defendant
should: (1) advise the defendant that his or her conduct is not acceptable;
(2) warn the defendant that persisting in the disruptive conduct will lead to
removal; (3) if the conduct persists, determine whether it warrants the
defendant's removal or a lesser measure will suffice; and (4) bring the
defendant back to court periodically to advise that he or she may return if
the defendant credibly promises to desist from the disruptive conduct.
Federal Judicial Ctr., Benchbook for U.S. Dist. Ct. Judges § 5.01 (2013)
(interpreting Fed. R. Crim, P. 43(c)); see NRS 175.387. Prejudice to the
defendant also factors into the removal decision and its review on appeal.
E.g., Foster v. Wainwright, 686 F.2d 1382, 1388 (11th Cir. 1982) ("Although
Illinois v. Allen does not expressly identify prejudice to the defendant as a
determinant of whether his removal from the courtroom is proper. . . the
potential prejudice to the defense of the accused from his absence from the
proceeding is, along with the degree of his misconduct and the adequacy of
the warnings previously given, a part of the context in which the trial judge
acts, and is therefore a factor to be considered in determining whether the
judge commits constitutional error when he orders a disruptive defendant
removed from the courtroom.").
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B.
Collins had a history of difficulties in district court. Trial was
delayed several times due to Collins's dissatisfaction with his lawyers. At
one pretrial hearing, he repeatedly interrupted the district judge and said,
referring to the prosecutor, that he was going to "knock this bitch-ass out of
the trial." At another pretrial conference, Collins, who was in prison for
another offense, indicated that he did not "want to dress out for trial but
[would] wear his regular prisoner clothing." At the final pretrial conference,
Collins objected to being in court at all and had his lawyer state on the
record that Collins "was not going to come to the trial."
Rather than excuse Collins, the district court ordered the
correction officers to bring Collins back to court on the first day of trial for
canvassing on his announced intention not to attend trial. That morning,
the officers reported that Collins refused to change out of jail clothes or to
allow them to remove his shackles and belly chains. While the jury pool
waited in the jury assembly room, the judge had the officers bring Collins
into court shackled and in jail clothes so she could address him directly
outside the presence of the jury. See Chandler v. State, 92 Nev. 299, 300,
550 P.2d 159, 159-60 (1976) (finding constitutional but harmless error in
the defendant having been brought into court in handcuffs in front of the
jury).
"Visible shackling undermines the presumption of innocence
and the related fairness of the factfinding process." Deck v. Missouri, 544
U.S. 622, 630 (2005); see Grooms a. State,
96 Nev. 142, 144,
605 P.2d 1145,
1146 (1980) ("The presumption of innocence is incompatible with the garb
of guilt.") (citing Estelle v. Williams, 425 U.S. 501, 504 (1976)). The district
judge explained to Collins that appearing in front of the jury in shackles
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and jail clothes undermined the dignity of the proceeding and created an
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unacceptable risk of juror prejudice. See Deck, 544 U.S. at 631 (noting that
"judges must seek to maintain a judicial process that is a dignified
process . . . , which includes respectful treatment of defendants" and that
"the use of shackles at trial affronts the dignity and decorum of judicial
proceedings that the judge is seeking to uphold") (quoting Allen, 397 U.S. at
344) (internal editing marks omitted); State v. McKay,
63 Nev. 118, 163,
165
P.2d 389, 409 (1946) ("we regard a trial with the prisoner in irons as
obnoxious to the spirit of our laws and all ideas of justice . .") (quotation
omitted). The judge advised Collins that, while "Wu certainly have the
right not to be compelled to be present for [ I trial," she would not "go down
the road. . . where we set a trial up before we even begin for appeal because
you are desiring to be present wearing a certain set of clothing and wearing
your chains." The judge noted on the record that Collins refused to look at
or acknowledge her. Pressed to explain why he insisted on wearing his jail
clothes and chains, Collins stated that they were "comfortable," that "I don't
wear other people's clothes," and that "[t]here is no such thing as
appropriate clothes."
With input from the lawyers, the court offered Collins three
options: remove the chains and change into civilian clothes, remove the
chains and remain in jail clothes but turn the shirt inside out so the jury
would not see "Clark County Detention Center" printed on it, or be deemed
to have waived his right to be present at trial. The court declared a recess
so defense counsel, who advised Collins on the record against appearing in
jail clothes and chains, could speak with Collins privately. After the recess,
Collins declared, "Your Honor, I decline all the options that you put forth.
If you have to force me to do something then you have to force me to do it."
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The court then ordered the officer to take Collins out of court,
remove the chains, and turn his shirt inside out. While the court and the
lawyers waited, they discussed voir dire logistics. Sometime later, the
officer returned to say he'd called his supervisor for help because Collins
was resisting removal of his chains and the officer "didn't want to escalate
the situation by forcing his chains off." The court again delayed the
proceedings for the supervisor, Sergeant Trotter, to arrive and speak with
Collins. Collins then returned to court with Sergeant Trotter, who removed
his chains in the court's presence. But, Collins refused to turn his shirt
inside out. The court questioned Collins about his understanding of the
options he had been given. The record shows no audible response from
Collins beyond him repeating that he was "comfortable." The district judge
then made the following record:
At this point in time it is a quarter to three
on Monday. It is very clear to me that we are going
to likely get no further in the course of jury
selection than identifying those who have
hardships and are unable to serve and that we are
very unlikely to get to any specific actual
discussion/inquiry with these individuals that
would impact Mr. Collins' opinion or [defense
counsels] ability to elicit Mr. Collins' opinion in the
event you should return tomorrow appropriately
dressed.
However, for today, I am not going to concede
the point that [the defendant has a right to appear
in jail clothes] that supersedes the concern that this
court has over the prejudice that would be
created. . . . I am not going to have a problem with
this trial before we even bring the first juror in this
courtroom and I am not going [to] allow the
defendant to decide how this courtroom and how
this trial proceeds.
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So I will have you removed from the
courtroom at this time. It's your choice because you
do not wish to select one of the three options that
the Court gave you, two of which would allow you
to remain in the courtroom, that you are
volitionally choosing to not remain in the courtroom
and I am going to remove you.
Tomorrow you will be given the same choice.
The officers escorted Collins out, and the court and counsel
turned to administrative voir dire. Individual jury pool members whose
questionnaire answers suggested hardship, exposure to pretrial publicity,
or language barriers were called in individually and excused if appropriate.
The remaining pool was brought in and sworn. The court admonished them
that Collins had the right not to attend, which he had exercised "for today's
purposes," and that they should not consider his absence "in any way." Cf.
Thomas v. State, 94 Nev. 605, 609,
584 P.2d 674, 677 (1978) (discussing the
"sound practice" of admonishing the jury in cases where a defendant
appears before the jury in restraints). The court and the lawyers then
introduced themselves, read the witnesses' names to the prospective jurors
to flag acquaintances, and excused pool members for whom serving
presented a family, medical, or employment hardship or who were ineligible
to serve because of a felony conviction.
The next day, Collins returned, again in jail clothes and chains.
The district court canvassed Collins about the prejudice his appearance
would cause and his right to appear shackle-free, in civilian clothes. See
Estelle v. Williams, 425 U.S. at 520-21. After consulting with defense
counsel, the district court allowed Collins to stay despite his renewed
refusal to allow his chains to be removed or to change clothes. See id. at 521
("To be sure, an accused may knowingly, voluntarily, and intelligently
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consent to be tried in prison garb."). On the third day and thereafter,
Collins appeared without incident wearing civilian clothes and no chains.
The district court did not abuse its discretion in removing
Collins from the courtroom for two hours on the first day of trial. While an
accused may waive the right not to be compelled to appear before the jury
in jail clothes, id., that does not give a defendant who does not present a
serious security threat the right to appear in court before the jury in belly
chains and shackles, see Deck, 544 U.S. at 631, or to waste court and jurors'
time by defying direct court orders calculated to preserve the dignity and
effectiveness of the proceedings. See United States v. Perkins, 787 F.3d
1329, 1339 (11th Cir. 2015) (upholding order excluding defendant from trial
who, "fd]isplaying disregard for the members of the venire who sat waiting
for jury selection to begin. . . refused to get dressed for trial and refused to
leave the holding cell").
With the prospective jurors waiting in the jury assembly room,
the district court devoted most of the first day of trial to counseling Collins
on his right to be present in civilian clothes—without shackles and cloaked
in the presumption of innocence—and warning Collins that he would lose
the right to be present if he did not follow the court's orders. Even though
Collins finally allowed Sergeant Trotter to approach and remove his chains,
Collins's removal was justified because he stubbornly refused to abide by
the court's other instructions. See United States v. Daniels, 803 F.3d 335,
349 (7th Cir. 2015) (upholding exclusion of defendant with history of
disruptive behavior who, "after being warned that he would forfeit his right
to attend trial. . . refused outright to be sworn in and assure the court that
his conduct would not continue during trial"); LaGon v. State, 778 S.E.2d
32, 41 (Ga. Ct. App. 2015) (upholding exclusion of defendant who "after
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being made aware of his right to be present and that the trial will proceed
forward in his absence" refused to change out of jail clothes and resisted
being brought into court). Also, the district court limited Collins's removal
to the end of the first day of trial, see Foster, 686 F.2d at 1389 n.3, during
which it conducted administrative and preliminary voir dire, to which
Collins had little to contribute. See Gagnon, 470 U.S. at 526 (declining to
find a due process violation in the defendant's exclusion from a brief inchambers voir dire and noting, in a situation in which "the defendant is not
actually confronting witnesses or evidence against him," the "presence of a
defendant is a condition of due process to the extent that a fair and just
hearing would be thwarted by his absence, and to that extent only") (quoting
Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934), overruled in part on
other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)); see also United States
v. Greer, 285 F.3d 158, 167-68 (2d Cir. 2002) ("holding that "routine
administrative procedures," including hardship questioning, are not part of
the true jury impanelment process that forms a "critical stage of the trial").
With one exception not relevant here, Collins attended the remainder of the
trial, including substantive voir dire, the exercise of peremptory challenges,
and trial. On this record, we do not find error amounting to an abuse of
discretion, much less the structural error Collins complains occurred. See
United States v. Riddle, 249 F.3d 529, 534-35 (6th Cir. 2001) (rejecting
argument that ineffective waiver of a defendant's right to attend inchambers portion of voir dire constituted structural error); Manning v.
State, 131 Nev., Adv. Op. 26, 348 P.3d 1015, 1019 (2015) (reviewing district
court's error in communicating with the jury outside the presence of the
defendant and his counsel for harmlessness).
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ilL
A.
A witness may not give a direct opinion on the defendant's guilt
or innocence in a criminal case. See Cordova v. State, 116 Nev. 664, 669,
6
P.3d 481, 485 (2000). The lead investigator in this case was Detective Mogg,
who testified that his investigation into Brandi's death led him to arrest
Collins for her murder. On appeal, Collins argues that this testimony
violated the rule against a witness giving an opinion on the defendant's
guilt. A district court's decision to admit or exclude evidence is reviewed on
appeal under an abuse-of-discretion standard. Ramet v. State, 125 Nev.
195, 198,
209 P.3d 268, 269 (2009).
The district court did not abuse its discretion in allowing Mogg
to testify that his investigation led to Collins's arrest. As suggested by the
extra-jurisdictional case law Collins cites, the rule is that a witness "may
not give a direct opinion on the defendant's guilt" United States v. Kinsey,
843 F.2d 383, 388 (9th Cir. 1988) (emphasis added), overruled on other
grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).
This does not mean that a witness may not give testimony from which an
inference of guilt—even, an inference that the witness is of the opinion the
defendant is guilty—may be drawn. See Ogden v. State, 34 P.3d 271, 277
(Wyo. 2001) ("Testimony that is otherwise admissible will not be excluded
unless it constitutes an actual conclusion about the guilt or innocence of the
accused party. An interpretation of the evidence by a witness, even though
that interpretation may be important in establishing an element of the
crime and thus leading to the inference of guilt, is not in the same category
as an actual conclusional statement on the guilt or innocence of the accused
party.") (quoting Saldana v. State, 846 P.2d 604, 616 (Wyo. 1993)).
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12
In one of the cases on which Collins relies, State ix Steadman,
855 P.2d 919, 922 (Kan. 1993), for example, the detective testified pointblank: "In my opinion [the defendant] killed [the victim]." Similarly, in
State v. Quaale, 340 P.3d 213, 215 (Wash. 2014), another case on which
Collins relies, the police officer was asked in a DUI case if he had an opinion
based on the eye-movement test he administered and his "training and
experience [as to] whether or not [the defendant's] ability to operate a motor
vehicle was impaired?" to which the officer answered, "Absolutely. There
was no doubt he was impaired." And in Bennett v. State, 794 P.2d 879, 882-
83 (Wyo. 1990), another of Collins's cases, the detective "told the jury that
in his opinion [the defendant] was a drug dealer because [the defendant]
committed the three charged drug transactions."
The problem in each of these cases was not that the police
officers testified to what they learned through investigation or what they
did based on what they learned. It lay in the officer directly declaring to
the jury that "in [his] opinion, the defendant was guilty of the crime."
Steadman, 855 P.2d at 924. See Bennett,
794 P.2d at 883 ("It is difficult to
see how jurors could have believed [the detective's direct statement] was
anything but an opinion concerning the defendant's guilt."); Quaale, 340
P.3d at 217 ("Impermissible opinion testimony regarding the defendant's
guilt may be reversible error because such evidence violates the defendant's
constitutional right to a jury trial, which includes the independent
determination of the facts by the jury."). While modern law permits opinion
testimony on ultimate issues, NRS 50.295; see Fed. R. Evid. 704, it deems a
direct opinion on guilt in a criminal case inadmissible because it is "of no
assistance to the trier of fact . . . [who is] as competent as the witness to
weigh the evidence and draw a conclusion on the issue of guilt." People v.
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Vang, 262 P.3d 581, 587 (Cal. 2011) (internal quotations omitted); Ogden,
34 P.3d at 277 ("Testimony that is otherwise admissible will not be excluded
unless it constitutes an actual conclusion about the guilt or innocence of the
accused party."); cf. Townsend v. State, 103 Nev. 113, 118,
734 P.2d 705, 708
(1987) (upholding admission of expert testimony that a child had suffered
sexual abuse but finding an abuse of discretion in allowing the expert to
give an opinion as to the identity of the abuser, which went beyond the
witness's expertise and into an area committed to jury determination).
Mogg's testimony that he arrested Collins based on the facts he
learned as the lead investigator into Brandi's death stopped there. He did
not offer or state a direct opinion on Collins's guilt. Doubtless, a juror might
infer from Collins's arrest that Mogg believed he had enough evidence for
Collins to be charged. See Gonzales v. Thaler, 643 F.3d 425, 431 (5th Cir.
2011) ("That the arresting officer thought he had his man is implicit in the
prosecution."). But that did not amount to an opinion, direct or implied,
that the jury should find Collins guilty—a determination that, as the jury
was instructed, requires proof beyond a reasonable doubt. See
Commonwealth v. Luciano, 944 N.E.2d 196, 202 (Mass. App. Ct. 2011)
(rejecting argument for reversal based on investigating officer's testimony
that he determined he had probable cause to arrest the defendant: "in view
of the judge's thorough instructions as to the jury's function, the
presumption of innocence, and the Commonwealth's obligation to prove the
defendants' guilt beyond a reasonable doubt, we are confident that the jury
would not have understood the officer's testimony that, at the time, he
believed that the lesser probable cause standard [to arrest] had been met,
as supplanting their responsibility as fact finders").
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Course-of-investigation testimony does not give carte blanche
to the introduction of unconfronted hearsay, see United States v. Silva, 380
F.3d 1018, 1020 (7th Cir. 2004), or evidence concerning matters irrelevant
to guilt or innocence, see Leonard v. State, 117 Nev. 53, 74 n.14,
17 P.3d 397,
410 n.14 (2001). Detective Mogg's testimony did not cross either line. For
the most part, Mogg's course-of-investigation testimony came after that of
the witnesses whose interviews he described; to the extent he alluded to
facts not yet in evidence, such evidence later came in. See also Clark County
Sheriff a Blasko, 98 Nev. 327, 330 n.2,
647 P.2d 371, 373 n.2 (1982)
(testimony explaining the reasons for police surveillance is not hearsay,
because not offered for the truth of the matter asserted). Finally, the
course-of-investigation testimony had relevance, since it rebutted Collins's
assertion that the police did not adequately investigate the crime or other
potential suspects, including Brandi's boyfriend, Rufus. Luciano, 944
N.E.2d at 202 (rejecting argument that the arresting officer's course-ofinvestigation testimony "was an impermissible comment on the defendants'
guilt; it was an explanation of the officer's actions, elicited to counteract the
defendants' claim from the inception of the trial that the police investigation
was inadequate and misdirected"); see United States a Holmes, 620 F.3d
836, 841 (8th Cir. 2010) (holding course-of-investigation evidence
admissible to explain a police investigation "when the propriety of the
investigation is at issue in the trial").
B.
Collins next argues that the district court abused its discretion
by refusing to instruct the jury on voluntary manslaughter. See Crawford
a State, 121 Nev. 744, 748,
121 P.3d 582, 585 (2005) ("The district court has
broad discretion to settle jury instructions, and this court reviews the
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district court's decision for an abuse of that discretion or judicial error.").
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The district court refused to instruct the jury on voluntary manslaughter
because it determined that no evidence supported the charge The district
court did not abuse its discretion in making this determination.
Our case law deems voluntary manslaughter a lesser-included
offense of murder. Williams v. State, 99 Nev. 530, 531,
665 P.2d 260, 261
(1983). 1 For voluntary manslaughter "there must be a serious and highly
provoking injury inflicted upon the person killing, sufficient to excite an
irresistible passion in a reasonable person, or an attempt by the person
killed to commit a serious personal injury on the person killing," NRS
200.050. "The killing must be the result of that sudden, violent impulse of
passion supposed to be irresistible." NRS 200.060; see NRS 200.040
(manslaughter is a voluntary killing "upon a sudden heat of passion, caused
by a provocation apparently sufficient to make the passion irresistible").
A defendant "is entitled to a jury instruction on a lesser-included offense as long as there is some evidence reasonably supporting
it." Rosas v. State, 122 Nev. 1258, 1265,
147 P.3d 1101, 1106 (2006),
abrogated on other grounds by Alotaibi v. State, 133 Nev., Adv. Op. 81, 2017
WL 5196409, at *4 (Nev. Nov. 9, 2017). But "if the prosecution has met its
burden of proof on the greater offense and there is no evidence at trial
'We apply the "elements test" from Blockburger v. United States, 284
U.S. 299 (1932), to determine whether an uncharged offense is a lesser-included offense of a charged offense. Barton v. State,
117 Nev. 686, 694,
30 P.3d 1103, 1108 (2001), overruled on other grounds by Rosas v. State,
122
Nev. 1258,
147 P.3d 1101 (2006). It may be questioned whether voluntary
manslaughter qualifies under the elements test as a lesser-included offense
of murder, given that murder does not have as one of its elements the
provocation and passion voluntary manslaughter requires. But, since
neither the State nor Collins raise this issue, we analyze Collins's
instructional error claim under existing case law, which treats voluntary
manslaughter as a lesser-included offense of murder.
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tending to reduce the greater offense, an instruction on a lesser-included
offense may properly be refused." Id. (quoting Lisby v. State,
82 Nev. 183,
188,
414 P.2d 592, 595 (1966)); see Crawford,
121 Nev. at 754,
121 P.3d at
589 (holding that, for the duty to instruct the jury on the State's burden to
prove the absence of heat of passion upon sufficient provocation to arise, at
least "some evidence" in the murder prosecution must "implicate f] the
crime of voluntary manslaughter"). The judicially imposed condition that
there be at least some evidentiary basis for the lesser-included instruction
"serves a useful purpose: preventing lesser-included instructions from being
misused as invitations to juries to return compromise verdicts without
evidentiary support." Rosas, 122 Nev. at 1106,
147 P.3d at 1265.
The district court did not abuse its discretion when it
determined that the record did not contain evidence to support a voluntary
manslaughter charge. The autopsy and other forensic evidence, the location
and condition of Brandi's body, Collins's possession of her jewelry and car,
the cell phone tower evidence, and Collins's statements and conduct after
the killing justified submitting the murder charges against Collins to the
jury. See § III.0 infra. But the record is devoid of evidence suggesting the
irresistible heat of passion or extreme provocation required for voluntary
manslaughter. While the serious and highly provoking injury (or attempt)
required by NRS 200.050 need not be a direct physical assault on the
accused, Roberts v. State, 102 Nev. 170, 174,
717 P.2d 1115, 1117 (1986),
neither "slight provocation nor an assault of a trivial nature will reduce a
homicide from murder to manslaughter." State v. Fisko, 58 Nev. 65, 75,
70
P.2d 1113, 1116 (1938), overruled on other grounds by Fox v. State,
73 Nev.
241, 247,
316 P.2d 924, 927 (1957). Here, the only evidence of provocation
and passion Collins identifies consists of his remark to a third party that
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Collins thought he should delete some text messages between him and
Brandi from his phone because the police might think, based on the
messages, that "he had something to do with" Brandi's disappearance. The
cryptic reference to a text-message exchange between a victim and her killer
does not reasonably suggest serious-enough provocation by the victim or
sufficient heat of passion in her killer for voluntary manslaughter.
The district court properly instructed the jury on first- and
second-degree murder; the willfulness, premeditation and deliberation
required by the former (absent a finding of felony murder); and the State's
burden of proof. Based on those instructions, the jury returned a verdict of
first-degree murder. In doing so, the jury found Collins guilty of felony
murder and/or that the State proved willfulness, premeditation, and
deliberation beyond a reasonable doubt. Without some evidence to support
a voluntary manslaughter charge, the district court did not abuse its
discretion in refusing to instruct on it and, even if it did, on this record, the
error was harmless. As neither an abuse of discretion nor harmful error
appears, we reject Collins's challenge to the district court's refusal to
instruct on voluntary manslaughter.
C.
Last, Collins challenges the sufficiency of the evidence to
support his conviction of first-degree murder and robbery. 2 The critical
inquiry in deciding a challenge to the sufficiency of the evidence is "whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
2 Collins raised a disqualification issue in his opening brief but later
withdrew it. We have considered and rejected all other claims of error
presented by him on this appeal.
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crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original); McNair v. State, 108 Nev. 53, 56,
825 P.2d
571, 573 (1992).
The State charged Collins with first-degree murder on two
theories: (1) that Collins's killing of Brandi was willful, deliberate, and
premeditated; and/or (2) that Collins killed Brandi during the commission
or attempted commission of a robbery. To prove murder, the State had to
demonstrate: "(1) the fact of death, and (2) that the death occurred by
criminal agency of another." West v. State, 119 Nev. 410, 415-16,
75 P.3d
808, 812 (2003). A specific cause of death is not required to show that the
death occurred by criminal agency. Id. at 418,
75 P.3d at 813; accord
Middleton v. State, 114 Nev. 1089, 1103,
968 P.2d 296, 306 (1998). And,
Iclircumstantial evidence alone may support a judgment of conviction."
Collman v. State, 116 Nev. 687, 711,
7 P.3d 426, 441 (2000).
Collins's argument that the evidence does not establish death
due to the criminal agency of another fails. In assessing the sufficiency of
corpus delicti evidence, "the court must consider and weigh all the evidence
offered which bears on the question of death by criminal agency."
Middleton, 114 Nev. at 1103,
968 P.2d at 306; see West,
119 Nev. at 418,
75
P.3d at 814. Here, similar to Middleton and West, the state of decomposition
of Brandi's body was too far advanced to determine the exact cause of death.
Even so, the ante-mortem head injuries Brandi sustained, the condition of
her body and its state of partial undress, the apparent good health she
enjoyed before she died, the remote location where her body was left, the
theft of her jewelry, and the blood found on her car's trunk mat and in
Collins's girlfriend's home provide proof sufficient to support a finding
beyond a reasonable doubt that her death occurred by criminal agency.
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Nor are we persuaded that the evidence was insufficient to
support that Collins was the perpetrator, that the killing was willful,
deliberate, and premeditated or committed in the course of—not as an
afterthought to—a robbery, and that Collins robbed Brandi. A court
reviewing the sufficiency of the evidence to support a criminal conviction
does not "ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Jackson, 443 U.S. at 318-19
(quotation omitted). Rather, it asks whether "any rational trier of fact"
could have so found. That standard was satisfied by the evidence in this
case.
We therefore affirm.
We concur:
Gibbons
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