IN THE SUPREME COURT OF THE STATE OF NEVADA
LEONARD RAY WOODS, No. 78816
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
NOV 0 3 2020
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
BY SY
ORDER OF AFFIRMANCE DEPU=lc IRK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with use of a deadly weapon, two counts
of capturing an image of the private area of another person, open or gross
lewdness, and two counts of ownership or possession of a firearm by a
prohibited person. Eighth Judicial District Court, Clark County; Douglas
W. Herndon, Judge.
Appellant Leonard Ray Woods argues that (1) the district court
committed structural error during voir dire, (2) he did not knowingly and
intelligently waive his right to counsel, (3) the district court abused its
discretion in denying his motion to substitute counsel, (4) the State
committed prosecutorial misconduct, (5) the district court erred in denying
Woods's motion to suppress, (6) the district court allowed erroneous opinion
testimony from a lay witness, (7) the district court failed to instruct the jury
on all elements under NRS 202.360, and (8) cumulative error warrants
reversal. We disagree and affirm the judgment of conviction.
The district court did not abuse its discretion or commit structural error by
modifying Woods's proposed voir dire questions
Woods argues that the district coures modification or rejection
of three of his proposed questions for the potential jurors was an abuse of
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discretion. We review voir dire decisions for an abuse of discretion. Morgan
v. State, 134 Nev. 200, 210,
416 P.3d 212, 223 (2018).
Woods proposed, among others, the following voir dire
questions: (1) "What are your views on the [S]tate having no physical
evidence for convictionr; (2) "Do you believe someone who falsely accuses
another should also be punishedr; and (3) "Do you believe officers who
tamper with evidence or lie in trial should be punishedr The district court
rejected the first question, reasoning that asking the prospective jurors
their view on the State's evidence before trial commenced was improper.
Further, the district court found that Woods's questions about punishment
were irrelevant because the punishment of others did not pertain to his
trial. Nonetheless, the court modified his proposed questions as follows:
"Anybody have any disagreement with the statement that police officers
could potentially do inappropriate things with evidence in a caser and
"Anybody have any disagreement with the statement that witnesses
sometimes could lie or not be honest or falsely accuse people of things?"
Woods has presented no legal authority to show that the district
court improperly rejected or modified his proposed questions, so he has not
shown that the district court abused its discretion. See Maresca v. State,
103 Nev. 669, 673,
748 P.2d 3, 6 (1987) ("It is appellant's responsibility to
present relevant authority and cogent argument; issues not so presented
need not be addressed by this court."). Regardless, the record shows that
Woods did not suffer prejudice because the district court asked the modified
versions of Woods's questions. Moreover, the record belies Woods's claim
that the district court did not ask all jurors what they thought about false
accusations: it asked all 32 jurors whether they had ever been falsely
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accused of a crime. Thus, we conclude that the district court did not abuse
its discretion or commit structural error.
Woods knowingly and intelligently waived his right to counsel
Woods argues that his conviction requires reversal because he
did not knowingly and intelligently waive his right to counsel in violation of
Faretta v. California, 422 U.S. 806, 835 (1975). He specifically contends
that the district court did not advise him that he would waive his right to
supplemental voir dire.
We review a district court's decision on a defendant's right to
self-representation for an abuse of discretion. Vanisi v. State, 117 Nev. 330,
341,
22 P.3d 1164, 1171 (2001). We also "defer[] to the district court's
decision to allow the defendant to waive his right to counsel." Hooks v.
State,
124 Nev. 48, 55,
176 P.3d 1081, 1085 (2008).
To knowingly, intelligently, and voluntarily waive
the right to counsel, the defendant should, [during
a Faretta canvass,] . . . "be made aware of the
dangers and disadvantages of self-representation,
so that the record will establish that he knows what
he is doing and his choice is made with eyes wide
open."
Id. at 54,
176 P.3d at 1084 (quoting Faretta,
422 U.S. at 835 (internal
quotation marks omitted)).
Here, during the Faretta canvass, the district court explained
to Woods the difficulties and nuances of jury selection and asked Woods
whether he understood. He responded that he did. The district court also
ITo the extent Woods is arguing that the district court erred by not
asking other questions of prospective jurors who were eventually dismissed,
he has not coherently explained how he was prejudiced by those alleged
errors.
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found that Woods was intelligent and capable of representing himself.
Further, it explained to him the dangers and disadvantages of self-representation with respect to voir dire—and with self-representation in
general—and he knowingly and intelligently waived his right to counsel.
And contrary to Woods's contention, the district court at no point told him
that he would be unable to conduct supplemental voir dire. Thus, we
conclude that allowing Woods to represent himself was not an abuse of
discretion.2
The State relied upon facts not in evidence but this misconduct was harmless
Woods contends that the State committed prosecutorial
misconduct by relying upon facts not in evidence. We agree, but conclude
that this misconduct was harmless.
We apply a two-step analysis to review prosecutorial
misconduct claims. Valdez u. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476
(2008). "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." Id. (footnote omitted). "With
respect to the second step of this analysis, this court will not reverse a
conviction based on prosecutorial misconduct if it was harmless error." Id.
2Woods adds that the district court abused its discretion by denying
his motion for substitution of counsel. We conclude that the district court
did not abuse its discretion by denying Woods's motions because he did not
show good cause for substitution of counsel, and his requests were based on
the subjective belief that he and his attorney had a breakdown in
communication. See Gallego v. State, 117 Nev. 348, 363,
23 P.3d 227, 237
(2001) (recognizing that good cause to establish a substitution of counsel is
not determined by the defendant's subjective perceptions), abrogated on
other grounds by Nunnery v. State, 127 Nev. 749, 776 n.12,
263 P.3d 235,
253 n.12 (2011).
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"It is improper for the State to refer to facts not in evidence." Rose v. State,
123 Nev. 194, 209,
163 P.3d 408, 418 (2007).
Here, on cross-examination, the State asked a witness whether
Woods was the only person who knew that Josie Jones's assailant drove a
Ford Taurus, and the witness answered in the affirmative. Two previous
witnesses, however, had testified that the assailant drove away from the
murder scene in a Ford Taurus. Moreover, the State's closing argument
misstated the precise testimony of D.L. and D.L.'s friend about threats
Woods made to Jones, and the State mischaracterized D.L.'s testimony
about Woods observing D.L. from a bathroom window while she undressed.
Thus, by mischaracterizing the testimony, the State relied upon facts not in
evidence, which constitutes misconduct.
"[T]his court will not reverse a conviction based on prosecutorial
misconduct if it was harmless error." Valdez, 124 Nev. at 1188,
196 P.3d at
476. "If the error is not of constitutional dimension, we will reverse only if
the error substantially affects the jury's verdict." Id. at 1189,
196 P.3d at
476. "The level of misconduct necessary to reverse a conviction depends
upon how strong and convincing is the evidence of guilt. If the issue of guilt
or innocence is close, if the [S]tate's case is not strong, prosecutor
misconduct will probably be considered prejudicial." Gaxiola v. State, 121
Nev. 638, 654,
119 P.3d 1225, 1236 (2005).
The evidence of Woods's guilt was overwhelming. Crucially,
Woods made a phone call from jail stating that he "did something to [Jones],
but I don't think she's gonna make it." The jury listened to the audio
recording of this call, and had the opportunity to compare Woods's voice
with the person who made the phone call. Moreover, the phone number
Woods dialed from jail was a contact in his cell phone. Three eyewitnesses
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identified Woods as the perpetrator of Jones's murder, including D.L., who
exclaimed during and after Jones's stabbing that Woods was the
perpetrator. Two police officers testified that Woods approached them and
admitted involvement with an incident at the same location where Jones
was murdered. Thus, we conclude that the overwhelming strength of this
evidence renders any prosecutorial misconduct harmless.
The district court did not err by denying Woods's motion to suppress
Woods contends that the district court erred by failing to
suppress the contents of his cell phone. He avers that the State's 21-day
delay between seizing his cell phone and applying for a warrant to search it
was unreasonable under the Fourth Amendment.
"Suppression issues present mixed questions of law and fact.
This court reviews findings of fact for clear error, but the legal consequences
of those facts involve questions of law that we review de novo. The
reasonableness of a seizure is a matter of law reviewed de novo." State v.
Beckman, 129 Nev. 481, 485-86,
305 P.3d 912, 916 (2013) (citation omitted)
(internal quotation marks omitted). The United States Court of Appeals for
the Ninth Circuit has held that a 21-day delay between seizing an item and
obtaining a search warrant was reasonable pursuant to the Fourth
Amendment. United States v. Sullivan,
797 F.3d 623, 635 (9th Cir. 2015).
In Sullivan, the defendant was on parole and filmed a
pornographic video with a 14-year-old victim. Id. at 628. During a parole
search, officers seized the defendant's laptop, digital camera, and cell phone.
Id. at 629. Officers, however, did not obtain a search warrant for the laptop
until 21 days later, partially because they needed to transfer the laptop to
a forensic investigator.
Id. at 629-30, 635. The defendant cited United
States v. Mitchell,
565 F.3d 1347 (11th Cir. 2009) (holding that a 21-day
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delay between seizure and application for a search warrant was
unreasonable), to argue that the 21-day delay was unreasonable. Sullivan,
797 F.3d at 634. In rejecting the defendant's argument based on Mitchell,3
the Ninth Circuit reasoned as follows:
During the entire time period when the laptop was
retained by the government, [the defendant] was in
custody on eight parole violation charges. He does
not claim that he could have made use of the laptop
while incarcerated or that he sought return of his
laptop to himself or a third party. Where
individuals are incarcerated and cannot make use
of seized property, their possessory interest in that
property is reduced.
Id. at 633 (citing Segura v. United States,
468 U.S. 796, 813 (1984) (plurality
opinion)); see also United States v. Johns, 469 U.S. 478, 487 (1985) (holding
that defendants who "never sought return of the property" failed to identify
how "the delay in the search . . . adversely affected legitimate interests
protected by the Fourth Amendmena The Ninth Circuit also held that the
21-day delay was reasonable because the police needed to transfer the
computer to a forensic investigator. Sullivan, 797 F.3d at 635. Thus, the
Ninth Circuit held that evidence found on the laptop was properly admitted.
Id.
30ther courts have declined to extend the holding in Mitchell. See
United States u. Christie, 717 F.3d 1156, 1162-64 (10th Cir. 2013) (holding
that a five-month delay was reasonable after an investigator obtained
property lawfully "and retain[ed] it without objection"); United States v.
Stabile, 633 F.3d 219, 235-36 (3d Cir. 2011) (holding that a three-month
delay was reasonable under the totality of the circumstances).
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Here, officers seized Woods's cell phone and 21 days later
obtained a warrant to search it. The district court found that Woods never
requested the return of his cell phone,4 and that police officers initially
seized the phone and then transferred it to detectives who performed a
forensic investigation. Moreover, an officer declared in an affidavit that
Woods's cell phone was impounded for transfer to detectives. The district
court also found that Woods was in custody for four days following the
seizure of his cell phone. He was arrested again following Jones's murder,
which occurred before officers obtained the warrant to search his cell phone.
As in Sullivan, Woods's in-custody status for five days during
the delay—and more importantly his failure to request the return of his cell
phone—significantly reduced his possessory interest in it. Id. at 633; see
also Christie, 717 F.3d at 1163 (holding that the defendant's failure to
request the return of the property reduced his possessory interest in it).
Also as in Sullivan, the delay here was partially because officers had to
transfer the cell phone to detectives for a forensic examination. See 797
F.3d at 635. Thus, we conclude that the district court did not err by denying
Woods's motion to suppress the contents of his cell phone.
The district court did not abuse its discretion by allowing lay testimony
Woods argues that an officer testified to an improper legal
conclusion by affirming the State's question, "Is it illegal for someone who
is a felon to possess firearms?"
4A1though Woods stated that he had asked for the cell phone to be
returned, the district court noted that Woods never alleged that in his
written motions.
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We review the decision to admit opinion testiinony for an abuse
of discretion. See Watson v. State, 94 Nev. 261, 264,
578 P.2d 753, 756 (1978)
("The admissibility and competency of opinion testimony, either expert or
non-expert, is largely discretionary with the trial court . . . ."). "Testimony
in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the
trier of fact." NRS 50.295. "[A] direct opinion on guilt in a criminal case [is]
inadmissible . . . ." Collins v. State, 133 Nev. 717, 725,
405 P.3d 657, 665
(2017).
Here, the officer's testimony was not an improper legal
conclusion, specifically because the testimony did not express a direct
opinion on the guilt or innocence of Woods. The officer merely affirmed that
the law prohibits a felon from possessing a firearm, so we conclude that the
district court did not abuse its discretion by admitting his testimony.
The district court properly instructed the jury on NRS 202.360s elements
Woods argues that the district court failed to instruct the jury
on an essential element of possession of a firearm by a prohibited person
under NRS 202.360. He contends that the United States Supreme Court
has held that, to secure a conviction for possession of a firearm by an exfelon, the prosecution "must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category
of persons barred from possessing a firearm." Rehaif v. United States,
U.S. „ 139 S. Ct. 2191, 2200 (2019). Woods contends that we adopted
all the elements of illegal firearm possession as articulated by Rehaif in
Hager v. State, 135 Nev. 246,
447 P.3d 1063 (2019), and that the district
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court did not instruct the jury on whether Woods knew he belonged to the
class of persons barred from possessing a firearm.
review de novo whether a particular [jury]
instruction . . . coinprises a correct statement of the law." Cortinas u. State,
124 Nev. 1013, 1019,
195 P.3d 315, 319 (2008).
In Rehaif, the Supreme Court concluded that a conviction for
illegal firearm possession under 18 U.S.C.A. § 922(g) (West 2015) and
U.S.C.A. § 924(a)(2) (West 2018) required the prosecution to prove that the
defendant knew he possessed a firearm and that he knew he was barred
from possessing a firearm." U.S. at
139 S. Ct. at 2200. In Hager,
we explained the following with respect to Nevada's felon-in-possession
statute:
Similar to its federal counterpart, illegal
firearm possession under NRS 202.360 has three
main elements: (1) a status element (the defendant
falls within one of the categories of person the
statute prohibits from possessing a firearm); (2) a
possession element ("[a] person shall not . . . have
in his or her possession"); and (3) a firearms
element (ally firearm").
135 Nev. at 249, 447 P.3d at 1066 (emphasis added).
The district court did not err by not instructing the jury that
Woods had to know that he belonged to the relevant category of persons
barred from possessing a firearm. Hager did not interpret NRS 202.360 as
requiring the State to prove an element of knowledge. Id. Further, unlike
the federal statute, NRS 202.360 does not require the State to prove the
defendant "knowingly" possessed a firearm during sentencing. Compare
18
U.S.C.A. § 924(a)(2) (West 2018), with NRS 202.360(1). Based on the record,
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we conclude that the district court properly instructed the jury on the
elements of NRS 202.360(1).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.5
Parraguirre
Hardesty
J.
5Woods also raises other issues pertaining to supplemental voir dire,
the State's opening statement and use of PowerPoint, golden-rule
arguments, references to his in-custody status and criminal history, and the
State's use of leading questions—but he failed to preserve these issues with
objections at trial, or objected but did not state the specific grounds, so we
review them for plain error. Vega v. State, 126 Nev. 332, 338,
236 P.3d 632,
636 (2010); see also NRS 47.040(1)(a) (stating that parties must state the
specific ground for an objection). Under plain-error review, the "appellant
must demonstrate that: (1) there was an error; (2) the error is plain,
meaning that it is clear under current law from a casual inspection of the
record; and (3) the error affected the defendant's substantial rights."
Jeremias v. State,
134 Nev. 46, 50,
412 P.3d 43, 48 (internal quotation
marks omitted), cert. denied, U.S. ,
139 S. Ct. 415 (2018). Woods has
not shown that any of the alleged errors affected his substantial rights, so
he fails to prove any plain error. Further, none of the alleged errors would
have affected his substantial rights because, as we discussed, overwhelming
evidence supported the verdict. Green v. State,
119 Nev. 542, 548,
80 P.3d
93, 97 (2003). Thus, we conclude that none warrant relief under the plain-error rule.
Finally, Woods contends that cumulative error warrants reversal. We
disagree because, consistent with the foregoing analysis, the State
presented overwhelming evidence of Woods's guilt,
11
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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