IN THE SUPREME COURT OF THE STATE OF NEVADA
KEITH MANNING SHORT, No. 80471
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILE
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of attempted grand larceny and two counts of burglary.'
Second Judicial District Court, Washoe County; Egan K. Walker, Judge.
A jury convicted appellant Keith Short of burglarizing the home
and vehicle of E.O. and M.B. in Reno. Short entered the home, removed
various items of property, and placed the property in the back of the victims'
vehicle. Short challenges the district court's denial of his two pretrial
suppression motions. "Suppression issues present mixed questions of law
and fact," State v. Beckman, 129 Nev. 481, 485,
305 P.3d 912, 916 (2013)
(internal quotation marks omitted), and we review the district court's
factual findings regarding suppression issues for clear error and review the
legal consequences of those findings de novo, see
id. at 486,
305 P.3d at 916.
Motion to suppress Short's statements
Short first argues that the district court erred by denying his
pretrial motion to suppress statements he made to law enforcement
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
IA,- girl 5"
because, under the circumstances, he could not hear the Miranda2
warnings. "To be constitutionally adequate, Miranda warnings must be
'sufficiently comprehensive and comprehensible when given a commonsense
reading."' Stewart v. State, 133 Nev. 142, 146, 393 13.3d 685, 688 (2017)
(quoting Florida v. Powell, 559 U.S. 50, 63 (2010)).
Here, in the midst of an active construction site, a police officer
read Short his Miranda rights while he sat detained in the back of a police
vehicle. Short contends that—with the vehicle door closed, the window only
partially down, and the ongoing construction work—the Miranda warnings
were incomprehensible, and thus he could not knowingly and voluntarily
waive them.
The district court held a suppression hearing and made the
following findings. Short affirmatively nodded while being read his rights,
and he responded to the officer's questions. Short's demeanor and actions
showed that he wanted to speak with the officer to relay his side of the story.
Short acknowledged his awareness of his rights and nothing indicated he
did not hear or understand them. Short knowingly, voluntarily, and
intelligently waived his rights and spoke with the officer. Testimony from
the police officer and body-camera footage depicting the encounter support
the district court's findings. Therefore, we conclude the district court's
findings are not clearly wrong, and the court did not err in denying Short's
pretrial suppression motion.
Motion to suppress show-up identification
Short argues that the district court erred by denying his motion
to suppress E.O.'s pretrial show-up identification, which he contends was
2Miranda v. Arizona, 384 U.S. 436 (1966).
SUPREME COURT
OF
NEVADA
2
(0) 1947A 44e?.co
unnecessarily suggestive and unreliable. A pretrial identification may be
constitutionally unsound if, based on the totality of the circumstances, the
identification was "unnecessarily suggestive and conducive to irreparable
mistaken identification." Taylor v. State, 132 Nev. 309, 320,
371 P.3d 1036,
1044 (2016) (internal quotation marks omitted). If the procedure is shown
to be unnecessarily suggestive, we must determine whether the
identification was otherwise reliable. Id.
The show-up procedure
A show-up identification "is inherently suggestive because it is
apparent that law enforcement officials believe they have caught the
offender." Jones v. State, 95 Nev. 613, 617,
600 P.2d 247, 250 (1979). Short
contends that no exigent circumstances justified the use of the process. See
Taylor, 132 Nev. at 321, 371 P.3d at 1044 C[T]he presence of exigent
circumstances [may] necessitate prompt identification."). "Examples of
exigencies sufficient to justify a show-up include: (1) ensuring fresher
memory; (2) exonerating innocent people by making prompt identifications;
and (3) ensuring that those committing serious or dangerous felonies are
swiftly apprehended." Id. (internal citations omitted). Here, exigent
circumstances did not justify the show-up identification because Short had
already been apprehended and positively identified by M.B. As a result,
E.O.'s identification had minimal effect on the initial investigation and
arrest of Short. Therefore, insufficient exigent circumstances justified
E.O.'s show-up identification given its inherent suggestiveness.
Reliability of the show-up identification
In assessing the pretrial identification procedure, the foremost
concern is reliability. See Jones, 95 Nev. at 617,
600 P.2d at 250. Reliability
is assessed using the following factors: "the opportunity of the witness to
view the criminal at the time of the crime, the witness degree of attention,
SUPREME COURT
OF
NEVADA
3
(0) I947A 444EA.
the accuracy of his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime and the
confrontation." Canada v. State, 104 Nev. 288, 294,
756 P.2d 552, 555
(1988) (quoting Manson v. Brathtvaite, 432 U.S. 98, 114 (1977)). Here, E.O.
testified that she observed Short walking down the middle of her residential
street in the early morning hours. E.O. took particular notice of Short
because he seemed out of place. While the encounter lasted only a few
seconds, Short came within five feet of E.O. and they made eye contact such
that she recognized his facial structure. Further, law enforcement
completed the show-up procedure approximately one hour after E.O.
observed Short while her recollection was still fresh, and E.O. stated that
she was one-hundred percent certain about her identification. Therefore,
we conclude E.O.'s identification was sufficiently reliable, and the district
court did not err by denying Short's motion to suppress. See Taylor, 132
Nev. at 320, 371 P.3d at 1044 CAs long as the identification is sufficiently
reliable, 'it is for the jury to weigh the evidence and assess the credibility of
the eyewitnesses."' (quoting Gehrke v. State, 96 Nev. 581, 584,
613 P.2d
1028, 1029 (1980))).
Moreover, any error in the district court's denial of Short's
motion to suppress E.O.'s identification was harmless. A constitutional
error is harmless when the State shows, "beyond a reasonable doubt, that
the error did not contribute to the verdict." Valdez v. State, 124 Nev. 1172,
1189,
196 P.3d 465, 476 (2008). Here, M.B. had more extensive contact with
Short and positively identified him before and during trial. Further, Short
did not present an identity defense. He testified that he entered the
residence, removed property, and put the property into the victims vehicle,
but claimed he did not intend to permanently deprive the victims of their
SUPRDAE COURT
OF
NEVADA
4
i947A adDr,
property when he did so. Thus, we are convinced beyond a reasonable doubt
that E.O.'s pretrial identification of Short did not affect the jtuy's verdict.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
.16k &61-4* , J.
Hardesty
J.
Cadish
cc: Hon. Egan K. Walker, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A
