IN THE SUPREME COURT OF THE STATE OF NEVADA
KURTIS RAY RICHARDS, No. 78196
Appellant,
VS. Fl f.le
THE STATE OF NEVADA,
Respondent. SEP 1 8 2020
ELIZA3Eitt. BROA174
CLER,I;);› -
BY ,;
CXEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of murder with the use of a deadly weapon. Eighth Judicial
District Court, Clark County; Valerie Adair, Judge. Appellant Kurtis
Richards raises three contentions on appeal.
First, Richards argues that the district court denied him his
constitutional right to have his case heard by a fair cross section of the
community because there were no African Americans in the venire. After
de novo review, we disagree. See Grey v. State, 124 Nev. 110, 117,
178 P.3d
154, 159 (2008) (providing that de novo review applies to constitutional
challenges). The burden of dernonstrating a prima facie violation of the fair-cross-section requirement rested with Richards to show (1) that the group
allegedly excluded is "distinctive"; (2) that the representation of that group
in the venire was not fair and reasonable in relation to the number of such
people in the cominunity; and (3) that the "underrepresentation is due to
systematic exclusion of the group in the jury-selection process." Evans u.
State, 112 Nev. 1172, 1186,
926 P.2d 265, 275 (1996) (internal quotation
marks and emphases omitted). Richards met prong one and two because
African Americans are a distinctive group and no African Americans being
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on the venire equates to a 100% coinparative disparity.' See Valentine v.
State, 135 Nev. 463, 465,
454 P.3d 709, 714 (2019) (recognizing African
Americans as a "distinctive group"); Williams v. State,
121 Nev. 934, 940
n.9,
125 P.3d 627, 631 n.9 (2005) (concluding that comparative disparities
of more than 50% show likely unfair and unreasonable representation). But
Richards made no specific allegations about the jury selection process or
how it systematically excluded African Americans to satisfy the third prong
or to warrant a hearing. See Valentine, 135 Nev. at 466, 454 P.3d at 714
C[Aln evidentiary hearing is warranted on a fair-cross-section challenge
when a defendant makes specific allegations that, if true, would be
sufficient to establish a prima facie violation of the fair-cross-section
requirement."). Richards argument that the district court had to hold a
hearing with new testimony by the jury commissioner also lacks merit
where he did not request a hearing;2 appears to have accepted the State's
and district court's representations about past jury commissioner testirnony
on the issue, asking the court to admit that past transcript into the record
'Given that there were no African-Ainerican venirernembers, this
calculation can be completed without knowing the size of the venire or the
representation of African Americans in the community.
2The record does not support Richards' contention that the district
court refused to hold a hearing on his fair-cross-section argument unless
Richards could show that the jury commissioner's past testimony did not
address all of Richards' questions regarding jury selection. Rather, the
district court told hirn, "if you think there's something that wasn't covered
in that presentation or testimony . . . then we can have [the jury
commissioner] come up and do it again."
2
without reviewing it;3 and told the court, "I don't believe that we need to
have a hearing." See Jones v. State, 95 Nev. 613, 617,
600 P.2d 247, 250
(1979) (recognizing that where a defendant participates in the alleged error,
he is estopped from raising any objection on appeal). Thus, Richards fair-cross-section challenge fails. See Williams, 121 Nev. at 941,
125 P.3d at 632
(Even in a constitutional jury selection system, it is possible to draw
venires containing no (0%) . . . African American in a forty-person venire.").
Second, Richards argues that the district court erred by not
granting his oral motion to continue on the morning of trial to secure the
attendance of an alibi witness. A continuance request made to obtain an
absent witness requires showing that the witness's testimony is material,
that no negligence occurred in obtaining the testimony, and that the witness
can be procured for trial. Schnepp v. State, 92 Nev. 557, 562-63, 554 P-2d
1122, 1125 (1976). Here, the record supports that the alleged alibi witness
was not with Richards during the entire relevant time such that the
witness's testirnony was not material. And it did not appear that Richards
could procure the witness for a later trial as his investigator represented
that, despite her best efforts, she could not relocate the witness after he was
released from local custody because he was transient and his last known
residence had been condernned.4 Further, Richards was negligent in
3The district court's failure to enter the transcript into the record is,
at most, harmless error where Richards did not make any specific
allegations of systematic exclusion in the jury-selection process.
Richards informed his investigator 30 minutes before the start of
trial that the witness may be in federal custody, information Richards
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obtaining the testimony because he did not subpoena the witness when he
knew the witness's location (in custody). Accordingly, we conclude that the
district court did not abuse its discretion in denying Richards continuance
request.5 See Wesley u. State, 112 Nev. 503, 511,
916 P.2d 793, 799 (1996)
(reviewing a district court's decision on a motion to continue for an abuse of
discretion).
Third, Richards argues that the district court erred in denying
his motion for a new trial based on juror misconduct. He contends that two
jurors considered that he did not testify or present an alibi witness in their
deliberations, showing a disregard of the jury instructions regarding the
presumption of innocence and the State's burden. "A jury's failure to follow
a district court's instruction is intrinsic juror misconduct," Valdez u. State,
124 Nev. 1172, 1186,
196 P.3d 465, 475 (2008), which, "only in extreme
circumstancesH will . . . justify a new trial," Meyer v. State, 119 Nev. 554,
565,
80 P.3d 447, 456. We conclude that the district court did not abuse its
discretion in determining that this situation did not rise to such a level. See
id. at 561,
80 P.3d at 453 (reviewing the denial of a rnotion for a new trial
based on alleged juror misconduct for an abuse of discretion). The jurors'
comments may have shown a disregard for the coures instructions, but such
interactions amongst jurors are generally not admissible to impeach a
conceded below was purely speculative. The record contains no further
information about the witness's federal custody status.
5 Richards' argument that the district court should have granted him
a continuance because it granted one for the State is unavailing, as each
request for a continuance is viewed separately. See Higgs v. State, 126 Nev.
1, 9,
222 P.3d 648, 653 (2010) ("Each case turns on its own particular facts,
and much weight is given to the reasons offered to the trial judge at the
time the request for a continuance is made.").
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verdict. See NRS 50.065(2) (prohibiting the admission of testimony,
affidavits, or evidence of any statement by a juror indicating an effect on
the jury's deliberative process); Meyer, 119 Nev. at 562,
80 P.3d at 454
(explaining that jurors improperly considering a defendant's failure to
testify is an example of an intrinsic influence or improper discussion
amongst jurors that is inadmissible to denunciate a verdict). Given the
evidence of Richards guilt (two eye witnesses and subsequent acts against
one witness inferring guilt); that all jurors were polled and individually
affirmed the verdict; and that the cornplaining juror gave no indication that
hers or others' votes were affected by the misconduct, Richards fails to
demonstrate a "reasonable probability or likelihood that the juror
misconduct affected the verdict." See Meyer, 119 Nev. at 564,
80 P.3d at
455.
Having considered Richards' contentions and concluded that
they lack rnerit, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
n , J.
tEn-a
f-i ardesty Cadish
cc: Hon. Valerie Adair, District Judge
Brian S. Rutledge
Attorney General/Carson CityClark County District Attorney
Eighth District Court Clerk
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