134 Nev., Advance Opinion 6•4
IN THE SUPREME COURT OF THE STATE OF NEVADA
DVONTAE DSHAWN RICHARD, No. 70542
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. AUG 2 3 2018
ETH A.i'.0ROWN
0
BY
i Li DE.nyCLER.t.
Appeal from a judgment of conviction, pursuant to.eijury
verdict, of two counts of conspiracy to commit robbery and one count each
of burglary while in possession of a firearm, grand larceny of a firearm,
grand larceny, robbery with use of a deadly weapon, attempted robbery, and
battery with intent to commit a crime. Eighth Judicial District Court, Clark
County; Ronald J. Israel, Judge.
Affirmed.
Brent D. Percival, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
John L. Giordani, III, Deputy District Attorney, Clark County,
for Respondent.
BEFORE CHERRY, PARRAGUIRRE and STIGLICH, JJ.
OPINION
By the Court, STIGLICH, J.:
We take this opportunity to clarify the definition of statutory
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nonhearsay pursuant to NRS 51.035. In order for a statement to be
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excluded from the definition of hearsay either as a prior inconsistent
statement or a prior identification made soon after perceiving a person, the
declarant must have testified and have been subject to cross-examination
concerning the out-of-court statement. Although we determine that
hearsay statements were improperly admitted, such errors were harmless
in light of other evidence in the case.
Richard also challenges the admission of his two statements to
police. We conclude that substantial evidence supports the district court's
determination that both statements were voluntary.
FACTUAL AND PROCEDURAL HISTORY
Appellant Dvontae Richard was convicted of crimes he
committed during two incidents that occurred four days apart. Only the
facts surrounding the second incident are relevant to this appeal.
On the date of the second incident, Kirsten Kinard and his
cousin, Eric Blake, were having IKinard's car cleaned at a car wash in Las
Vegas. Kinard was wearing a Cuban link gold necklace with an estimated
value of $45,000. Richard, walking with an unidentified man, approached
Kinard and grabbed Kinard's necklace with enough force to pull him down
by the neck. Blake reacted by drawing and discharging his firearm 17
times. Richard's accomplice returned fire. A number of people were hit
amidst the chaotic shooting, including Kinard and, according to Blake, a
person wearing a red hood.
Police responded to the car wash and, by following a blood trail
and the directions of witnesses, found Richard. The officers described
Richard as an African-American male wearing a sweatshirt with a red hood
who had been shot in the leg. Richard was treated and taken to the
emergency room at University Medical Center (UMC) where Kinard was
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also being treated for his gunshot wounds.
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Detectives from the Las Vegas Metropolitan Police Department
(LVMPD) interviewed Kinard as a victim and Richard as a suspect. Soon
after the shooting, Richard made two statements, one to Detective Weirauch
and another to Detective Spiotto, in which he made a number of inculpatory
remarks. Both statements were audio-recorded, transcribed, and made
after both detectives separately advised Richard of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966).
While at UMC for treatment of his gunshot wounds, Kinard
described his attacker to Detective Weirauch. Additionally, as Richard was
being wheeled by Kinard's room, Kinard flagged down Detective Weirauch
and identified Richard as the man who tried to take his necklace.
Before trial, Richard moved to suppress his prior statements to
police. After conducting an evidentiary hearing on the motion, the district
court found that the State had met its burden to show, by a preponderance
of the evidence, that Richard's statements were voluntary and made after
he was properly given his Miranda warnings. Accordingly, the court denied
the motion and permitted the State to present testimony regarding
Richard's statements.
By the time of trial, Kinard was in custody on unrelated charges
and was an unwilling witness for the State. Kinard testified in broad terms,
but when asked if he could identify Richard as the person who "snatched"
his chain, he simply stated "No." Kinard was never asked about his prior
identification of Richard at the hospital and was never asked whether he
had ever been able to identify Richard as the man who grabbed his chain.
Following the jury trial, Richard was convicted of two counts of
conspiracy to commit robbery and one count each of burglary while in
possession of a firearm, grand larceny of a firearm, grand larceny, robbery
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with use of a deadly weapon, attempted robbery, and battery with intent to
commit a crime.' Additionally, he pleaded guilty to the bifurcated charge of
ownership or possession of a firearm by a prohibited person.
Richard raises two primary arguments on appeal: (1) that
Kinard's prior description and identification of Richard, which were elicited
during the testimony of Detective Weirauch, were inadmissible hearsay,
admission of which violated his right to confrontation; and (2) that
admission of Richard's inculpatory statements at trial violated the
Fourteenth Amendment because his statements to police in the hospital
were involuntary.
DISCUSSION
Detective Weirauch's testimony
Richard argues that the district court erred in permitting the
State to present hearsay testimony by Detective Weirauch regarding
Kinard's statements in the hospital describing and identifying Richard as
the man who grabbed his gold chain. Richard also contends that both the
description and subsequent identification violated his Sixth Amendment
right to confront Kinard as a witness against him.
NRS 51.035 defines "hearsay" as "a statement offered in
evidence to prove the truth of the matter asserted," but exempts certain
statements from that broad definition. A statement is not hearsay if: "[t]he
declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is: (a) Inconsistent with the
declarant's testimony." NRS 51.035(2)(a). We review the admission of
Kinard's description and identification for an abuse of discretion.
'The jury acquitted Richard of first-degree kidnapping with use of a
deadly weapon.
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Kinard's description of his attacker
Although Kinard was willing to speak in general terms about
the attempted robbery, he was unwilling to testify about the identifying
characteristics of his attacker. The following exchange between the State
and Kinard is representative of his testimony:
Q: Okay. Now, I want to be upfront. Did you ever
see the person's face that snatched your chain?
A: No, I didn't, he had a hood on.
Q: Okay. Do you remember the color of the hood?
A: Nope, it happened so fast.
Q: All right. So if I were to ask you to identify him,
do you see that person in the courtroom today, what
would your response be?
A: No.
On direct examination, the State did not ask Kinard about his
prior statements to Detective Weirauch. However, on cross-examination,
Richard asked Kinard: "Do you remember giving a tape recorded voluntary
statement to the police about this incident?" When Kinard claimed that he
did not remember doing so, Richard showed him the transcript of his
statement. Kinard confirmed that the document helped refresh his memory
that he had made such a statement to police.
Kinard's statements to Detective Weirauch regarding the
perpetrators were raised for the first time on redirect by the State, but they
focused on Kinard's description of the other man, the shooter who
accompanied Richard. The State asked about Kinard's prior description of
that accomplice, referencing his race, skin tone, and haircut, but the State
did not ask about Kinard's physical description of the man in the sweatshirt
with a red hood. However, the State referenced Kinard's description of the
hood when it asked:
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Q: Okay. Do you recall telling Detective Weirauch
on the day you were in the hospital that it was a
reddish hoodie?
A: No, I don't remember that.
Q: Okay.
Q: Page five of the voluntary statement. Do you
see here where you say—right here, "Do you
remember what color the hoodie was"—
A: Yeah.
Q: —is the question asked to you and you say,
"Like reddish or something. My cousin probably
seen him more because, you know"—
A: Yeah.
Kinard further testified that although he did not remember making that
statement, he did not dispute that portion of the transcript. The relevant
portion of Weirauch's testimony, to which Richard now takes issue, reads
as follows:
Q: And did you ask him, as far as identification
was, of the person who took his—or attempted to
take his chain?
[Weirauch]: Yes.
Q: Did he give you a description of that person?
[Weirauch]: He said he was a black male adult
wearing a hoodie.
Q: Did he give you the color of that hoodie?
[Weirauch]: He said red.
Richard did not object to this testimony at trial; therefore, we
review for plain error. See Green v. State, 119 Nev. 542, 545,
80 P.3d 93, 95
(2003). "In conducting plain error review, we must examine whether there
was 'error,' whether the error was 'plain' or clear, and whether the error
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affected the defendant's substantial rights. Additionally, the burden is on
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the defendant to show actual prejudice or a miscarriage of justice." Id.
(footnote omitted).
The State argues that Weirauch's testimony that Kinard
described his attacker as "a black male adult wearing a [red] hoodie" was
properly admitted pursuant to NRS 51.035(2)(a) because Kinard testified,
he was subject to cross-examination, and his trial testimony was
inconsistent with that statement to Weirauch. However, Kinard was never
asked about the race of the man who grabbed his chain; he was only asked
about the race of the second man, the one who drew a gun.
Because Kinard did not provide any testimony that was
inconsistent with his prior description of his attacker as a black male, we
conclude that Weirauch's testimony regarding that racial description
should not have been admitted pursuant to NRS 51.035(2)(a). However, as
discussed below, Richard admitted to grabbing Kinard's chain, so the
testimony regarding Richard's race did not cause him actual prejudice.
Regarding the statement about the color of the attacker's hood,
Kinard testified that he did not remember telling Weirauch the color of the
hood. When presented with the transcript of his voluntary statement, he
did not dispute having said that. We previously held that "the failure of
recollection constitutes a denial of the prior statement that makes it a prior
inconsistent statement pursuant to• NRS 51.035(2)(a). The previous
statement is not hearsay and may be admitted both substantively and for
impeachment." Crowley v. State, 120 Nev. 30, 35,
83 P.3d 282, 286 (2004).
Pursuant to Crowley, Kinard's memory lapse was akin to a denial of his
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prior statement, and the State could properly present his prior inconsistent
statement. 2
Kinard's identification
Richard argues that the district court erred in permitting
Detective Weirauch to testify about Kinard's statements to him in the
hospital wherein he identified Richard as the man who grabbed his chain.
The disputed testimony occurred during the State's examination of the
detective:
Q: And was there a point in the interview or after
the interview where [Kinard] made some
identification of the defendant?
A: Yes, there was.
Q: And explain that to the ladies and gentlemen of
the jury.
A: While Mr. Kinard or Kirsten Kinard was laying
in his bed he kind of flagged me down and he says
that he saw the suspect that tried to grab—
At that point, Richard objected to the testimony as hearsay. The court ruled
that "Iplursuant to 50.1352 I'm going to allow it." 3
The State continued:
Q: Officer, when you were at the hospital with
Kirsten Trevon Kinard was there a point in time
where he identified the defendant as being the
person who pulled off his gold chain?
2 By the time the State introduced IKinard's statements through
Weirauch, Blake had already testified that the man who grabbed Kinard's
chain was wearing a sweatshirt with a red hood. Because that testimony
regarding the color of Richard's hood was duplicative of other evidence in
the case, we conclude that its admission was not error at all, much less plain
error, as Richard's substantial rights were not harmed.
3 The district court was presumably referring to NRS 50.135(2).
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A: Yes, there was.
Q: Tell me exactly how that went.
A: Mr. Kinard kind of flagged me down while he
was in his hospital bed and said, hey, I saw the guy
get wheeled by and that's the one that actually tried
to pull my chain off. And he points towards the
gurney that the suspect's in.
Q: The person he's pointing towards was the
person that you just identified in court today as the
defendant?
A: Yes.
Before the district court, the State argued that this testimony
was proper impeachment as a prior inconsistent statement. On appeal, in
addition to its argument that it was properly admitted as a prior
inconsistent statement, the State alleges that the statement was also
admissible as an identifying statement pursuant to NRS 51.035(2)(c). We
address the State's contentions separately.
Prior inconsistent statement
The State's first theory of admissibility is that Kinard's prior
statement was properly admitted as a prior inconsistent statement. The
district court allowed Weirauch to testify about Kinard's alleged
identification of Richard pursuant to NRS 50.135(2), which provides in
relevant part that
[e]xtrin sic evidence of a prior contradictory
statement by a witness is inadmissible unless:
(b) The witness is afforded an opportunity to
explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the
witness thereon.
This statute is consistent with NRS 51.035(2)(a), discussed above, as it
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permits the admission of an out-of-court statement offered for the truth of
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n,
the matter asserted if " [tihe declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is:
[iInconsistent with the declarant's testimony." (Emphasis added.)
In this case, Kinard was never asked about his statement to
Weirauch identifying Richard as the man wheeled by on a stretcher. The
State asked Kinard whether he saw the face of the man who snatched his
chain, what his response would be if he were asked to identify that man in
court, and a number of questions about Kinard's prior descriptions of the
other man who accompanied the one who grabbed his chain. Kinard's reply
that he did not get a good look at his attacker because the events happened
quickly and that he would say "No" to identifying the man in court are
arguably inconsistent with telling Weirauch that he saw his attacker
wheeled by on a stretcher in the hospital soon after the attempted robbery.
If we accept that Kinard's trial testimony was inconsistent with
his statements to Weirauch, the out-of-court statements still fail to meet the
requirements for admission under NRS 51.035(2)(a) and NRS 50.135(2)(b)
because the State never asked Kinard about his identification of Richard in
the hospital; therefore, he was never "subject to cross-examination
concerning the statement" as required by NRS 51.035(2) (emphasis added)
or "afforded an opportunity to explain or deny the statement" as required
by NRS 50.135(2)(b). Additionally, because the State never asked Kinard
about that prior statement, Richard did not have "an opportunity to
interrogate [Kinard]" about his out-of-court statement as is required before
extrinsic evidence of a prior contradictory statement by a witness can be
admitted into evidence. NRS 50.135(2)(b).
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Therefore, Kinard's alleged identification of Richard in the
hospital through Weirauch's testimony was not properly admitted as a prior
inconsistent statement pursuant to NRS 50.135(2).
Prior identification
The State's second theory of admissibility is that the relevant
portion of Weirauch's testimony was properly admitted as an identifying
statement pursuant to NRS 51.035(2)(c). NRS 51.035(2)(c) provides that an
out-of-court statement is not hearsay if: "ltihe declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement, and
the statement is . . . folne of identification of a person made soon after
perceiving the person." (Emphasis added.) The State argues that
"identifying statements made by a declarant who testifies and is subject to
cross examination are not hearsay."
The State relies upon Jones v. State, 95 Nev. 154,
591 P.2d 263
(1979), to support its assertion that when a "declarant identifies the
defendant out-of-court, soon after perceiving the defendant, the identifying
statement may be admitted as an exception to hearsay." That reliance on
Jones is misplaced, however, because there, this court referenced the same
statute and affirmed the admission of a prior identification when "Whe
declarant testified at trial, and was subject to cross-examination concerning
the statement." Id. at 156,
591 P.2d at 264 (emphasis added). The State
recognizes that in order for a prior statement of identification to be
admissible, the declarant must have been subject to cross-examination, as
Kinard was, but ignores that the declarant must be subject to cross-examination concerning the relevant statement, which Kinard was not.
The State could have asked Kinard if he told Weirauch that he
had seen his attacker in the hospital; the State could have asked if he had
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identified Richard as the man who had grabbed his chain. Had they done
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so, and received a negative response, then the State could have permissibly
presented Weirauch's account of the identification. Since the State did not
ask Kinard about that prior identification, Kinard was not subject to cross-examination about the statement. Therefore, it was not admissible
pursuant to NRS 51.035(2)(c).
Based on the foregoing, we conclude that the district court
abused its discretion by admitting Weirauch's testimony about Kinard's
hearsay statement identifying Richard as the man who grabbed his chain.
The statement was not properly admitted either as a prior inconsistent
statement or as a prior identification. See Crowley, 120 Nev. at 34,
83 P.3d
at 286 ("An appellate court should not disturb the trial court's ruling absent
a clear abuse of that discretion." (internal quotations marks omitted)).
Although the district court abused its discretion, we conclude
that this error was harmless. Hearsay "errors are subject to harmless error
analysis." Franco v. State, 109 Nev. 1229, 1237,
866 P.2d 247, 252 (1993).
Because Richard identified himself as the man who grabbed Kinard's
chain,4 the erroneous admission of Kinard's statement attesting to the same
was merely duplicative evidence. Therefore, the district court's error was
harmless . 5
As discussed below, we deny Richard's claims asserting error in the
4
admission of his statements.
5Additionally, Richard argues that the admission of Kinard's
description through Weirauch's testimony violated his Sixth Amendment
right to confront Kinard regarding the description and identification of
Richard. Unlike the statutes discussed above, the plain language of the
Sixth Amendment only requires that a defendant have the opportunity to
confront the witnesses against him, but it does not explicitly require that
the defendant be availed of the opportunity to confront the witness
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Richard's inculpatory statements
Richard argues that the admission of his inculpatory
statements to police violated his Fourteenth Amendment rights because the
circumstances rendered those statements involuntary. In particular,
Richard takes issue with the fact that he made both statements while he
was still in the hospital after being shot and in the midst of receiving
medical treatment. Richard now appeals the district court's determination
that his statements were voluntary and made after he was properly given
Miranda warnings.
"A confession is inadmissible unless freely and voluntarily
given." Chambers v. State, 113 Nev. 974, 981,
944 P.2d 805, 809 (1997).
"The question of the admissibility of a confession is primarily a factual
question addressed to the district court: where that determination is
supported by substantial evidence, it should not be disturbed on appeal."
Id. In order to assess whether a confession was made voluntarily, we
consider the totality of the circumstances, including such factors as: "the
youth of the accused; his lack of education or his low intelligence; the lack
of any advice of constitutional rights; the length of detention; the repeated
and prolonged nature of questioning; and the use of physical punishment
such as the deprivation of food or sleep." Id. (internal quotations omitted).
Because Richard sought to exclude statements to both Detective Weirauch
and Detective Spiotto, we discuss them individually.
concerning a prior statement. See Crawford v. Washington, 541 U.S. 36, 59
n.9 (2004) ("[W]hen the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior
testimonial statements."). We summarily reject this claim.
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Richard's statement to Detective Weirauch
At the time he gave a statement to Detective Weirauch, Richard
had recently been shot in the back of his calf, broke his leg, and lost enough
blood to completely soil his clothes and leave a bloody trail in his wake.
Richard was lying in a hospital gurney in the emergency room when
Detective Weirauch arrived, and Weirauch interviewed Richard without
speaking to a treating physician about Richard's injuries or learning about
his treatment or medication. Richard contends that these circumstances
render this interview involuntary and that his statements should not have
been admitted. Richard also argues that some of his answers were
incoherent and, as an example, he points to the following exchange that
occurred after Richard affirmatively answered Weirauch's question
whether this was "all over a stolen necklace":
Q: Somebody stole your necklace or was it a
friend's necklace?
A: I got robbed a couple weeks ago.
Q: Did you file a report? Okay, and you thought
that was your necklace?
A: Nah, I thought he had some of my jewelry.
Furthermore, Richard would not identify the man he was with, and he
argues on appeal that the discussion on that topic indicates that he was not
understanding the questions or responding appropriately.
Richard's attempts to rely on the circumstances of his injury
and medical treatment to undermine the validity of his Miranda waiver and
statement to Weirauch are unavailing. We previously affirmed a district
court's admission of statements when an appellant argued "that his
statements were not voluntarily given in light of the fact that he was
questioned for four hours after having been stabbed, that he was not well
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rested, and that he was intoxicated." Chambers, 113 Nev. at 980, 944 P.2d
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at 809. There, the court considered the totality of the circumstances,
including the fact that Chambers was "relatively coherent" and that he
appeared "to have had an understanding of what was going on, often talking
legalese with police." 6 Id. at 982,
944 P.2d at 809-10 (internal quotation
marks omitted). Similarly, we have affirmed a district court's admission of
a confession made about an hour and a half after the defendant shot himself
in the face; the defendant made the statement from a hospital gurney
surrounded by police, bleeding, and without any medication. Wallace v.
State, 84 Nev. 603, 605,
447 P.2d 30, 31 (1968). 7
Weirauch testified that he read the Miranda warning from a
card while his audio-recorder was on and that Richard "shook his head" to
indicate that he understood his rights, waived them, and was willing to
speak with Weirauch. The entire interview lasted a minute and a half to
two minutes before the interview had to be cut short to allow medical
personnel to treat Richard. Although Richard's answers were not directly
responsive to the detective's questions, they do not necessarily indicate that
Richard was confused or in an altered state of consciousness. Considering
the holdings of Chambers and Wallace, the circumstances surrounding
Richard's statement, including his calm demeanor, support the voluntary
nature of his answers. We conclude that substantial evidence supports the
district court's determination that Richard received a proper Miranda
6 "Chambers' blood alcohol level was 0.27 percent right after
questioning, and four hours later it was 0.19 percent and descending." Id.
at 980, 944 P.2d at 808.
7 We note that unlike in this case, Wallace signed a written
acknowledgment of his rights, read the written form back to the officers,
and stated that he understood what he had read. Id. at 605, 447 P.2d at 31.
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warning and that his statement to Weirauch was voluntary. Therefore, the
district court did not err in denying the motion to suppress Richard's
statement to Detective Weirauch.
Richard's statement to Detective Spiotto
Detective Spiotto, the lead detective assigned to investigate the
shooting at the car wash, spoke with Richard at the hospital on the day after
the shooting. Spiotto testified that he advised Richard of his Miranda
rights, and that Richard acknowledged those rights and agreed to speak
with him. Richard argues that the information gathered by Detective
Spiotto during his interrogation "was not the product of a rational intellect
and a free will and was involuntary." Richard's argument lists the details
of that interview in an attempt to demonstrate how Richard's statement
was not voluntary.
In sum, Richard argues that all of the circumstances
surrounding his statement—the fact that the interview took place at 10:30
p.m., his injuries, his location and previous treatment at the hospital, the
need of the medical staff to have sole access to him, and the fact that he had
undergone surgery—established that his statement to Detective Spiotto
was not voluntary. Richard does not allege that anything within the
statement itself indicates that he was making an involuntary statement.
Considering the circumstances surrounding Richard's second
custodial statement, there is nothing in the record that would undermine
the district court's determination that Richard's statement to Detective
Spiotto was voluntary. See Chambers, 113 Nev. at 981,
944 P.2d at 809.
Because we conclude substantial evidence supports the district court's
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determination, we affirm the district court's decision to deny Richard's
motion to suppress his statement to Detective Spiotto. 8
CONCLUSION
We clarify that in order for an out-of-court statement to be
excluded from the definition of hearsay as a prior inconsistent statement or
as a prior identification, the declarant must have testified and have been
subject to cross-examination concerning that out-of-court statement.
Although the admission of some of Kinard's prior statements was error, the
errors were harmless. We also affirm the district court's admission of
Richard's statements to Detectives Weirauch and Spiotto as voluntary
statements.
Accordingly, we affirm the judgment of conviction.
• •
J.
Stiglich
We concur:
Parraguirre
8 In his opening brief, Richard also challenged the sufficiency of the
Miranda warning, but at oral argument, appeared to withdraw this
argument. Regardless of that withdrawal, we have considered the validity
of the Miranda warning and see no basis to reverse the district court's
determination that it was sufficient.
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MaiNia HEW
