IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIAM CAMRON BOGAN, No. 77605
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. OCT 1 5 2020
ELVABETH A. BROWN
CLERK OF SUPREME COURT
By
r
DEPUTY CLERK o
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of two counts of robbery with the use of a deadly weapon and
one count each of conspiracy to commit burglary, conspiracy to commit
robbery, burglary while in possession of a firearm, and first-degree murder
with the use of a deadly weapon. Eighth Judicial District Court, Clark
County; Valerie Adair, Judge. Appellant raises nine issues.
First, appellant claims the district court erred in denying the
motion to suppress his statement to police. He alleges that his statement
was not voluntarily given because he was coerced by undue pressure and
improper interview tactics, including empty promises, leading questions,
and suggestive facts. "To determine the voluntariness of a confession, the
court must consider the effect of the totality of the circumstances on the will
of the defendant." Passarna v. State, 103 Nev. 212, 214,
735 P.3d 321, 323
(1987); see also Rosky v. State, 121 Nev. 184, 190,
111 P.3d 690, 694 (2005)
(providing for de novo review of the voluntariness of a defendant's
confession). And here, we conclude the tactics used by the police were not
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted in this appeal.
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impermissibly coercive. The detective said he would talk to the prosecutor
and let him know of appellant's cooperation but also said no promises could
be made about punishment, see Passama, 103 Nev. at 215, 735 13.3d at 323
(finding it permissible to tell the person interrogated that his cooperation
would be communicated to the prosecutor), and the detective asked
appellant for his side of the story after outlining the theory of appellant's
involvement, cf. Silva v. State, 113 Nev. 1365, 1369,
951 P.2d 591, 594
(1997) (recognizing "a lie that relates to a suspect's connection to the crime
is the least likely to render a confession involuntary" (internal quotation
marks omitted) (emphasis omitted)). The nature of the questioning was not
excessively repetitive or prolonged as he was questioned for approximately
two and one-half hours and there is no indication he was deprived of food or
sleep. He was advised of his constitutional rights before questioning began.
And while appellant argues he was only 18 and the police knew he went to
a "special school,"2 nothing in the record suggests that appellant was of low
intelligence. Considering the totality of the circumstances and the factors
outlined in Passama, 103 Nev. at 214,
735 P.2d at 323, we conclude that the
State showed by a preponderance of the evidence that appellant's statement
was voluntary.
To the extent appellant argues that he did not knowingly and
intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436
(1966), we disagree. "We review the facts and circumstances of each
particular case weighing the totality of circumstances to determine whether
the Miranda warnings were properly given and whether the defendant
waived his Miranda rights." Koger v. State, 117 Nev. 138, 141,
17 P.3d 428,
2Appellant acknowledged he went to an adult education program
because he was behind on credits for graduation.
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430 (2001). The police advised appellant of his constitutional rights before
he was interrogated, went through the rights, and ensured appellant was
able to comprehend what was being said. Appellant indicated he
understood his rights and never expressed a desire not to speak to police.
See Mendoza v. State, 122 Nev. 267, 276,
130 P.3d 176, 182 (2006) (IA]
waiver may be inferred from the actions and words of the person
interrogated."). Based on the record before this court, we conclude appellant
knowingly and intelligently waived his Miranda rights. Therefore, the
district court did not err when it denied appellant's motion to suppress.
Second, appellant claims that his constitutional right to a jury
chosen from a fair cross section of the community was violated based on the
number of African Americans present in the venire. However, appellant
accepted factual representations made by the jury commissioner in another
case—representations that do not appear in the record—and made no
argument as to how the underrepresentation of African Americans was
inherent in the jury selection process or how the process systematically
excluded African Americans. See Valentine v. State, 135 Nev. 463, 465,
454
P.3d 709, 713-14 (2019) (outlining the three prongs a defendant must show
to establish a prima facie violation of the fair-cross-section requirement,
including a showing "that th[e] underrepresentation is due to systematic
exclusion of the [distinctive] group in the jury-selection procese (internal
quotation marks omitted) (emphasis omitted)). Without any argument to
satisfy the third prong, appellant failed to establish a prima facie violation
and thus is not entitled to relief. See Grey v. State,
124 Nev. 110, 117, 178
3
P.3d 154, 159 (2008) (providing for de novo review of constitutional
challenges).3
Third, appellant claims his right to a fair and impartial jury
was violated when the district court denied his challenge for cause to
prospective juror 26. However, prospective juror 26 was ultimately excused
from the venire. Because appellant has not established that any of the
empaneled jurors were not fair and impartial, his claim warrants no relief.
Blake v. State, 121 Nev. 779, 796,
121 P.3d 567, 578 (2005).
Fourth, appellant claims the district court abused its discretion
in precluding defense counsel from using a white board during jury selection
to write down partial responses to a certain topic. The district court
prohibited the use of the white board but stressed that counsel was not
prohibited from asking questions on the topic. We discern no abuse of
discretion in the district coures ruling. Lamb v. State, 127 Nev. 26, 37,
261
P.3d 700, 707 (2011) (Decisions concerning the scope of voir dire and the
manner in which it is conduct are reviewable only for abuse of discretion,
and draw considerable deference on appeal." (internal citation and
quotation marks omitted)).
3Appellant also asserts error in the exercise of peremptory challenges,
in violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986). Appellant did not
object below, and the record is insufficient for this court's review on appeal
in the first instance. We therefore decline to address appellant's Batson
argument. See McCullough v. State, 99 Nev. 72, 74,
657 P.2d 1157, 1158
(1983) (The general rule is that failure to object to asserted errors at trial
will bar review of an issue on appeal."); Wilkins v. State, 96 Nev. 367, 372,
609 P.2d 309, 312 (1980) (observing that while this court may consider
constitutional issues raised for the first time on appeal, "it will not do so
unless the record is developed sufficiently both to demonstrate that
fundamental rights are, in fact, implicated and to provide an adequate basis
for review").
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Fifth, appellant claims that the district court erroneously
allowed a detective to provide expert testimony regarding the victim's
wounds, ballistics, and pharmacology without being noticed or qualified as
an expert in these areas. We have held that "Mlle key to determining
whether testimony. . . constitutes lay or expert testimony lies with a
careful consideration of the substance of the testimony—does the testimony
concern information within the common knowledge of or capable of
perception by the average layperson or does it require some specialized
knowledge or skill beyond the realm of everyday experiencer Burnside v.
State, 131 Nev. 371, 382-83,
352 P.3d 627, 636 (2015).
Appellant first asserts that the detective provided expert
testimony about the victim's wounds. The detective testified that, after
observing the scene, the trajectory of the bullet hole through the car's
window, the victim's placement in the car, and the autopsy, it appeared the
victim had been shot by a single bullet while his left arm was more than
likely on the steering wheel. This testimony was rationally based on the
detective's perception and was proper lay witness testimony. See NRS
50.265 (stating that lay witness testimony "is limited to those opinions or
inferences which are . . . Hationally based on the perception of the
witness[ ] and . . . [h]elpful to a clear understanding of the testimony of the
witness or the determination of a fact in issue); cf. Lord v. State, 107 Nev.
28,
806 P.2d 548 (1991) (holding it was error for law enforcement to testify
regarding the victim's injuries in a case where the cause of injury was not
apparent). Furthermore, even assuming the detective proffered expert
testimony, the medical examiner testified that the victim had wounds from
different parts of a bullet—the jacket and the core—and that she essentially
recovered one bullet. The medical examiner further testified regarding the
5
entrance and trajectory of the victim's bullet wounds. Therefore, appellant
has not shown plain error affecting his substantial rights.4
Appellant next asserts that the detective provided two expert
opinions about ballistics—that the jacket and core of a bullet will separate
when shot through a window and that a match in the ballistics information
network, referred to as a NIBIN hit, would not occur unless cartridges were
fired from the same gun. We agree with appellant that the detective's
testimony required some specialized knowledge beyond the realm of
everyday experience and was thus expert testimony. I4owever, with regard
to the NIBIN hit—testimony to which appellant objected—appellant has
not explained what he would have done differently had the detective been
noticed as an expert as he presented his own expert who contradicted the
detective's conclusion that the cartridges were fired from the same gun
based solely on the preliminary match produced by the NIBIN hit. See
Burnside, 131 Nev. at 384, 352 P.3d at 637 (concluding that exclusion of
testimony based on the State's failure to properly notice it as expert
testimony would not have been the appropriate remedy where, among other
things, there was no explanation of what the defense "would have done
differently had proper notice been given"). Furthermore, we are not
convinced this aspect of the detective's testimony substantially affected the
jury's verdict considering testimony detailing appellant's part in the
robbery and appellant's statement to police, in which he admitted that he
4From the record it does not appear appellant objected to this
testimony based on the grounds raised on appeal. Therefore, we review for
plain error. See Perez v. State, 129 Nev. 850, 861,
313 P.3d 862, 869 (2013)
(applying plain error where the party fails to object at trial); Ford v.
Warden, 111 Nev. 872, 884,
901 P.2d 123, 130 (1995) (holding that the
theory underlying an assignment of error cannot be changed on appeal).
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fired three shots. With regard to testimony about a bullet separating when
shot through a window—testimony to which appellant did not object—
appellant has not shown plain error affecting his substantial rights.
Appellant further asserts that the detective provided expert
testimony about the composition of the substance "Lean." We are not
convinced this was expert testimony, as the detective identified the
controlled substance that was at the center of the robbery and explained
that "Lean" was a street name for the controlled substance. But even
assuming this was expert testimony, appellant has not shown plain error
affecting his substantial rights given the other evidence and the fact that
he was not charged with any crimes related to controlled substances.
Sixth, appellant claims the State committed prosecutorial
misconduct. "When considering claims of prosecutorial misconduct, this
court engages in a two-step analysis. First, we must determine whether the
prosecutor's conduct was improper. Second, if the conduct was improper,
we must determine whether the improper conduct warrants reversal."
Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008) (internal
footnotes omitted).
Appellant argues the first instance of prosecutorial misconduct
occurred when the State impermissibly shifted the burden of proof during
cross-examination of the defense's expert witness by suggesting the expert
failed to conduct testing of the ballistic evidence. On direct examination,
the expert witness opined that there was more than one shooter. On cross-examination, the State clarified with the expert witness that he could not
confirm his opinion without conducting certain testing of the evidence and
asked why such testing was not conducted to support his opinion. We
conclude the prosecutor's questioning was not improper because the
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prosecutor may examine the basis of an expert witness's opinion. Blake,
121 Nev. at 790,
121 P.3d at 574 ("It is a fundamental principle in our
jurisprudence to allow an opposing party to explore and challenge through
cross-examination the basis of an expert witness's opinion."); see also
Singleton v. State, 90 Nev. 216, 219,
522 P.2d 1221, 1222-23 (1974) (holding
that the credibility of a source used by an expert witness in arriving at an
opinion is an underlying fact properly pursued in cross-examination).
Appellant argues the second instance of prosecutorial
misconduct occurred when the State improperly disparaged the defense
expert in rebuttal argument. During closing argument, defense counsel
reminded the jury of the expert witness's testimony, during which the
expert said he could not ethically make the conclusion the detective had
made regarding ballistic evidence. Taken in context, the prosecutor's
comments during rebuttal argument did not disparage the defense but were
made in response to the expert's testimony and defense counsel's argurnent.
We conclude the prosecutor's argument was not improper.
Seventh, appellant claims that numerous unrecorded bench
conferences occurred, denying him meaningful appellate review and his
right to be present during discussions about jury questions. Save for the
bench conferences regarding jury questions, appellant does not specify the
subject matter of the other unrecorded bench conferences or explain their
significance. See Daniel v. State, 119 Nev. 498, 508,
78 P.3d 890, 897 (2003)
("[A]n appellant must demonstrate that the subject matter of the missing
portions of the record was so significant that the appellate court cannot
meaningfully review an appellant's contentions of error and the prejudicial
effect of any error."). Thus, no relief is warranted on this bare claim. As to
the bench conferences regarding jury questions, we agree that the district
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court abused its discretion by holding unrecorded bench conferences to
determine the admissibility of jury questions. See Knipes v. State, 124 Nev.
927, 933,
192 P.3d 1178, 1182 (2008) (establishing that "hearings regarding
the admissibility of juror questions [must] be conducted on the record").
However, we disagree with appellant that such error is structural, see id. at
934,
192 P.3d at 1183, and we decline his request to overturn precedent to
the contrary, see Arrnenta-Carpio v. State, 129 Nev. 531, 535,
306 P.3d
395,398 (2013) (recognizing this court "will not overturn precedent absent
compelling reasons for so doine). Rather, we conclude that the error was
harmless. Appellant does not argue that a jury question was erroneously
admitted based on the unrecorded bench conferences, and the evidence of
appellant's guilt was overwhelming, including his admissions to police,
testimony by another participant, and a document with appellant's name
discovered in the car used during the crimes. Therefore, the error did not
have a "substantial and injurious effect or influence in determining the
jury's verdict." Knipes, 124 Nev. at 935,
192 P.3d at 1183 (internal
quotation marks omitted).
With regard to appellant's claim that he was denied the right to
be present during critical stages of the proceeding when the admissibility of
the jury questions was discussed without him, "a defendant does not have
an unlimited right to be present at every proceeding." Gallegos v. State, 117
Nev. 348, 367,
23 P.3d 227, 240 (2001), abrogated on other grounds by
Nunnery v. State, 127 Nev. 749,
263 P.3d 235 (2011). Moreover, "[t]he right
to be present is subject to harmless error analysis," and "Nhe defendant
must show that he was prejudiced by the absence." Kirksey v. State, 112
Nev. 980, 1000,
923 P.2d 1102, 1115 (1996) (internal citation omitted).
Appellant has not shown how his absence from the unrecorded bench
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conferences about jury questions prejudiced him in any way, and thus he is
not entitled to relief on this claim.
Eighth, appellant claims that defense counsel improperly
conceded his guilt during closing argument without his consent.5 To the
extent counsel's statements can be viewed as a concession of guilt, appellant
does not demonstrate it was over his objection, see McCoy v. Louisiana, 138
S. Ct. 1500, 1505, 1509 (2018); cf. Florida v. Nixon,
543 U.S. 175, 189, 192
(2004) (holding there is no "blanket rule demanding the [capital]
defendanes explicit consene to counsel's concession strategy where
defendant is informed and is unresponsive to the strategy), or "undermined
[any] testimonial disavowal of guile by appellant, see Jones v. State,
110
Nev. 730, 739,
877 P.2d 1052, 1057 (1994) (reversing conviction based on
concession of guilt that "completely eroded any doubt that might have been
raised in the juror's mind by [the defendant's] protestations of innocence"
and that "made all of [the defendant's] testimony incredible). Accordingly,
no relief is warranted on this clalin.
Lastly, appellant claims cumulative error warrants relief. "The
cumulative effect of errors may violate a defendant's constitutional right to
a fair trial even though errors are harmless individually." Valdez, 124 Nev.
at 1195,
196 P.3d at 481 (internal quotation marks omitted). This court
considers three factors when considering a claim of cumulative error: "(1)
5Appellant also argues counsel's ineffectiveness on this same ground,
but "[t] his court has repeatedly declined to consider ineffective-assistanceof-counsel claims on direct appeal unless the district court has held an
evidentiary hearing on the matter or an evidentiary hearing would be
needless." Archanian v. State, 122 Nev. 1019, 1036,
145 P.3d 1008, 1020-
21 (2006). Because neither exception applies here, we decline to address
this claim.
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whether the issue of guilt is close, (2) the quantity and character of the
error, and (3) the gravity of the crime charged." Id. (internal quotation
marks omitted). While the charged crimes in appellant's case are serious
in nature, the State presented compelling evidence of appellant's guilt and
we conclude that the cumulative effect of the two identified errors—
admission of expert testimony and unrecorded bench conferences
surrounding jury questions—did not deprive appellant of his right to a fair
trial. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Al4c4..0 , J.
Stiglich
, J.
Silver
cc: Hon. Valerie Adair, District Judge
Karen A. Connolly, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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