IN THE SUPREME COURT OF THE STATE OF NEVADA
PEYTON HEMINGWAY, No. 78605
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
SEP 1 8 2020
EUZABE111 A. aROWN
CLERK OF SUPREME COURT
BY 5.
DEptrrytitill"'"
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of second-degree rnurder with the use of a deadly weapon,
second-degree kidnapping, robbery, conspiracy to commit raurder,
conspiracy to commit kidnapping, and conspiracy to commit robbery.'
Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Appellant Peyton Hemingway, his codefendant Emilio Arenas,
and a third co-conspirator Theresa Allen participated in battering, robbing,
and murdering the victim. The two men stuffed the victim into a suitcase
after beating him and submerged it in a bathtub. After several minutes the
men rernoved the suitcase and placed it in Arenas vehicle. The victim's
body, still in the suitcase, was later discovered in a dumpster.
Fair-cross-section challenge
First, Hemingway argues that the district court should have
stricken the venire because it may not have been pulled in conformity with
NRS 6.045(3) and thus did not represent a fair cross section of the
community. A criminal defendant is entitled to "a venire selected from a
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
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fair cross section of the community." Williams v. State, 121 Nev. 934, 939,
125 P.3d 627, 631 (2005). To show a prima facie violation of that right, the
proponent must demonstrate that (1) the allegedly underrepresented group
is distinctive in the community, (2) that group is not fairly and reasonably
represented "in relation to the number of such persons in the community,"
and (3) the "underrepresentation is due to systematic exclusion of the group
in the jury-selection process." Id. at 940,
125 P.3d at 631 (internal quotation
marks and emphases omitted). To the extent Hemingway raised a fair-cross-section challenge below, he did not argue in the district court that
there was an underrepresentation of a distinctive group in the community.
Because Hemingway did not satisfy the first or second prongs for a fair-cross-section challenge, we decline to consider his argument on the third
prong. See Morgan v. State, 134 Nev. 200, 208,
416 P.3d 212, 222 (2018)
(providing that an appellant's failure to show underrepresentation "proves
fatar for a fair-cross-section claim and "analysis of the third prong is
unnecessary"). Therefore, we conclude Hemingway was not entitled to a
new venire. See Grey v. State, 124 Nev. 110, 117,
178 P.3d 154, 159 (2008)
(providing that de novo review applies to constitutional challenges).
Hemingway also contends the district court denied him the
ability to determine if the venire fairly and reasonably represented
distinctive groups in the community. Before trial, Hemingway joined
Arenas request that the district court poll the prospective jurors who either
marked their race as "othee or did not answer the jury questionnaire's
racial and ethnic identification inquiry. Although the district court declined
to poll those prospective jurors separately, it afforded Herningway the
opportunity to question them about their racial and ethnic identification, to
which he declined. See Carter v. State, 121 Nev, 759, 769, 121 P.3d 592, 599
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(2005) (A party who participates in an alleged error is estopped from
raising any objection on appeal."). Therefore, we conclude the district court
did not abuse its discretion. See Salazar v. State, 107 Nev. 982, 985,
823
P.2d 273, 274 (1991) C[B]oth the scope of voir dire and the rnethod by which
voir dire is pursued are within the discretion of the district court." (internal
citations and quotation marks omitted)); see also Jackson v. State, 117 Nev.
116, 120,
17 P.3d 998, 1000 (2001) ("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.").
Allen's accomplice testimony
Next, Hemingway argues that because Allen entered into a
guilty plea agreement with the State, her testimony should not have been
admitted. Because he did not object to the admission of Allen's testimony
below, Hemingway concedes that plain error review applies. See NRS
178.602 (providing the plain error standard); see also Martinorellan v. State,
131 Nev. 43, 49,
343 P.3d 590, 593 (2015) ([R]eversal for plain error is only
warranted if the error is readily apparent and the appellant demonstrates
that the error was prejudicial to his substantial rights.").
The prosecution may enter "into an agreement with a defendant
in which the defendant agrees to testify against another defendant in
exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a
lesser charge or for a recommendation of a reduced sentence." NRS
174.061(1). "[A]ny consideration promised by the State in exchange for a
witness's testimony affects only the weight accorded the testimony, and not
its admissibility." Sheriff v. Acuna, 107 Nev. 664, 669,
819 P.2d 197, 200
(1991). And when the State offers such testimony, district courts should
employ three safeguards: (1) ensure the terms of the plea agreement are
fully disclosed to the jury, (2) allow the defendant to fully cross-examine the
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witness concerning the plea agreement's terms, and (3) give the jury an
appropriate cautionary instruction. See id. The record here shows that all
three safeguards were followed. Further, we are unpersuaded by
Herningway's contention that the State improperly influenced Allen to
conform her testimony to "a predetermined formula" or to achieve "a
specified conclusion." See NRS 174.061(2). Rather, Allen testified that she
was not told what to say and was told to tell the truth. Therefore, we discern
no plain error in the admission of Allen's testimony.
Hemingway also argues that reversal is warranted because he
was improperly convicted based on Allen's uncorroborated accomplice
testimony. We disagree. Sufficient evidence—independent of Allen's
testimony—connected Herningway to the commission of the charged crimes,
including DNA evidence, fingerprints, other physical evidence, and
eyewitness testimony. See NRS 175.291 (prohibiting convictions based on
an accomplice's testirnony unless it is corroborated by other evidence that
independently connects the defendant to the crime); Cheatham v. State, 104
Nev. 500, 504-05,
761 P.2d 419, 422 (1988) ("Corroboration evidence also
need not in itself be sufficient to establish guilt, and it will satisfy the
statute if it merely tends to connect the accused to the offense."); see also
Heglemeier v. State, 111 Nev. 1244, 1250,
903 P.2d 799, 803 (1995)
(providing that corroborative evidence may be direct or circumstantial).
Accordingly, reversal is not warranted on this issue.2
2 To the extent Hemingway argues that the State negotiating a plea
agreement with Allen in exchange for her testimony constitutes improper
witness vouching, we conclude he did not cogently argue the issue. See
Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) (holding that it is
appellant's responsibility to provide cogent argument and relevant
authority).
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Sufficiency of the evidence
Finally, Hemingway argues that insufficient evidence supports
his conviction for second-degree kidnapping and the deadly weapon
enhancement. We disagree. This court will uphold a conviction if a rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, when viewing the evidence in a light most favorable to
the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Origel-Candido v. State, 114 Nev. 378, 381,
956 P.2d 1378, 1380 (1998).
Second-degree kidnapping conviction
Hemingway contends that insufficient evidence supports his
conviction for second-degree kidnapping because any restraint of the victim
was incidental to the crime of robbery. We disagree. Eyewitness testimony
and physical evidence showed that Hemingway and Arenas assaulted and
robbed the victirn in the kitchen area. Hemingway stated that the victim
CC won't die" so the two rnen put the victim into a suitcase and moved him to
the bathroom. The suitcase was then submerged underwater in the
bathtub. Given this evidence, a rational juror could have determined that
putting the victim in a suitcase and moving him to the bathroom after
completing the robbery "had independent significance apart from the
underlying robbery." Pascua v. State, 122 Nev. 1001, 1005,
145 P.3d 1031,
1033 (2006). Moreover, a rational juror could have determined that moving
the victim to the bathroom after completing the robbery created a risk of
danger "substantially exceeding that necessarily present in the crime of
robbery" or "substantially in excess of that necessary" to complete the
robbery. Mendoza v. State, 122 Nev. 267, 275,
130 P.3d 176, 181 (2006)
(holding that such increases in risks of danger support dual convictions for
robbery and kidnapping). Therefore, this argument does not warrant
reversal of Hemingway's kidnapping conviction.
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Deadly weapon enhancement
Hemingway also contends that insufficient evidence supports
the deadly weapon enhancement for his murder conviction. We disagree.
At trial, Allen testified that Hemingway grabbed a bottle of wine and struck
the victim in the head and that the victim was struck and strangled with a
belt. The victim's injuries, as well as physical evidence, supported this
testimony. While Hemingway argues that the medical examiner testified
that the victim's injuries could have been caused by other means, this court
has repeatedly held that "whenever conflicting testimony is presented, it is
for the jury to determine what weight and credibility to give to that
testimony." Allen v. State, 99 Nev. 485, 487,
665 P.2d 238, 240 (1983); see
also Harrison v. State,
96 Nev. 347, 351,
608 P.2d 1107, 1109-10 (1980)
(providing that witness "testimony regarding a weapon is sufficient to prove
the deadly weapon element"); NRS 193.165 (deadly weapon enhancement).
Thus, we conclude that a rational juror could find that Hemingway used a
deadly weapon during the commission of the murder. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
(12)
Parraguirre
/ , J.
Hardesty Cadish
cc: Hon. Michelle Leavitt, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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