IN THE SUPREME COURT OF THE STATE OF NEVADA
SCHEMAJ GRAY, A/K/A WILLIE GRAY, No. 79797
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. DEC 14 2020
EUZABETH A. BROWN
CLERK OFjUPREM COURT
ORDER OF AFFIRMANCE BY Y
a'AT.E
DEPUTY C .....t
Ri
This is an appeal from a judgment of conviction, pursuant to a
jury verdict. Eighth Judicial District Court, Clark County; Valerie Adair,
Judge.
BACKGROUND
Appellant Schemaj Gray was charged with conspiracy to
commit robbery, robbery with use of a deadly weapon, first degree
kidnapping with use of a deadly weapon, possession of stolen property,
burglary, and obtaining money under false pretenses as the result of a series
of events involving victim Christopher Prechtl.1 Prechtl alleged two
strangers had falsely claimed to be Uber drivers and robbed him of his Rolex
watch at gunpoint. The "strangers" were later identified as Gray and his
cousin Joseph Wallace. Gray's defense was that he and Prechtl were not in
fact strangers. Gray claimed that he regularly sold drugs to Prechtl.
Although Gray admitted to pawning the Prechtl's Rolex watch, he claimed
that Prechtl gave him the watch as collateral for drug debts. At trial, the
jury found Gray guilty of burglary and obtaining money under false
pretenses. Gray was acquitted of the remaining charges. The district court
1We do not recount the facts except as necessary to our disposition.
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sentenced Gray as a habitual criminal, pursuant to NRS 207.010(1)(a), to a
term of 60 to 150 months on each count, to run concurrent.
DISCUSSION
The State committed prosecutorial misconduct in closing arguments, but it
was harmless error
Gray first argues that the State committed prosecutorial
misconduct during its closing arguments. At closing argument, the State
referenced Wallace, Gray's cousin and original codefendant, who had
pleaded guilty prior to trial. The State did not mention that plea. However,
the prosecutor said: "As you've probably imagined, Mr. Wallace isn't here.
He hasn't been with us all week. That for the purposes of Mr. Gray's guilt
or not guilt doesn't matter. You can't speculate as to why he's not here. You
don't know if he's pled guilty. You don't know if he's never charged. You
don't know—." At this point the defense objected, and the district court
sustained the objection and admonished the jury to disregard the
comments.
In reviewing claims of prosecutorial misconduct, this court
determines whether the prosecutor's conduct was improper and, if so,
whether the conduct warrants reversal. Valdez v. State, 124 Nev. 1172,
1188,
196 P.3d 465, 476 (2008). If the error is preserved and of a
constitutional dimension—that is, if it involves impermissible comment on
a constitutional right or, "so infected the trial with unfairness as to make
the resulting conviction a denial of due procese—this court will reverse
unless the State demonstrates beyond a reasonable doubt that the error did
not contribute to the verdict.
Id. at 1189-90,
196 P.3d at 476-77 (internal
quotation marks omitted). If the misconduct is not of a constitutional
dimension, this court will reverse "only if the error substantially affects the
jury's verdict." Id. at 476.
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,
'
It was illogical and improper for the State to tell the jury that
they should not consider any potential progression of any case against
Wallace in determining Gray's guilt, and then mention options of what,
exactly, could be the progression (or lack of progression) of any case against
Wallace. This was not permissible commentary on the evidence, but rather
the improper outlining of hypotheticals on matters that were not admitted
into evidence, followed by instructions to the jury to disregard them. As
such, we find it was misconduct. However, we conclude that the error was
not of a constitutional dimension. Gray argues the statement raised
Confrontation Clause implications which make it error of a constitutional
dimension. This argument fails. Merely mentioning the existence of a
former codefendant does not constitute testimony of a former codefendant
in violation of Gray's Confrontation Clause rights. Cf. Bruton v. United
States, 391 U.S. 123, 137 (1968); see Byford v. State,
116 Nev. 215, 229,
994
P.2d 700, 710 (2000). Further, we find the statement did not so infect the
proceedings as to constitute a denial of due process or substantially affect
the verdict. The district court's admonishment cured any prejudice caused
by the statement, especially coupled with the instruction that they were not
to consider any other party's guilt or innocence in the matter. See Valdez,
124 Nev. at 1195,
196 P.3d at 480; Rose v. State,
123 Nev. 194, 209,
163 P.3d
408, 418 (2007).
Gray further argues that the State committed prosecutorial
misconduct at trial by mischaracterizing evidence and being argumentative
while cross-examining Gray. We disagree. We conclude this was not
misconduct, and certainly not misconduct sufficient to infect the
proceedings with unfairness, because defense counsel made timely
objections, sustained by the district court, which limited argumentative or
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conclusory questioning by the prosecutor. See Valdez, 124 Nev. at 1192, 196
P.2d at 478-79 (finding no prejudice or "infect[ion]" when the district court
sustained the defendant's objection and instructed the jury to disregard the
improper comment).
Gray next argues the State committed prosecutorial misconduct
in rebuttal by characterizing jail call evidence as prior inconsistent
statements rather than as substantive rebuttal evidence. We conclude this
was not misconduct, because, at closing argument, a prosecutor may
comment upon the testimony and ask the jury to draw inferences from the
evidence, and has the right to state fully his views as to what the evidence
shows." Bridges v. State, 116 Nev. 752, 762,
6 P.3d 1000, 1008 (2000)
(quoting State v. Green,
81 Nev. 173, 176,
400 P.2d 766, 767 (1965)). In
addition, even if the statements were improper, the district court sustained
Gray's objection at trial, and allowed the prosecutor to qualify the
statement.
The district court did not admit prejudicial and irrelevant evidence
Gray alleges on appeal that several forms of evidence were
improperly admitted by the district court because they were prejudicial and
irrelevant. A district court's decision "to admit or exclude evidence is
reviewed by this court for an abuse of discretion. Mclellan v. State, 124 Nev.
263, 267,
182 P.3d 106, 109 (2008); see also Byford, 116 Nev. at 231,
994
P.2d at 711. Here, we review the evidence Gray alleges was improperly
admitted, and conclude whether or not there was any abuse of discretion by
the district court.
Gray argues the district court improperly admitted prejudicial
evidence. He argues the introduction of recorded calls from jail unfairly
prejudiced him by referencing his incarceration. In the calls, Gray raises
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doubts about whether the victim would have recognized him at the
preliminary hearing had he not been sitting with counsel at the defendant's
table. The recorded jail telephone calls were probative towards resolving
differing testimony regarding whether the victim and Gray knew each other
before the night of the alleged robbery. See NRS 48.015 (defining "relevant
evidence). We thus conclude that the calls were relevant to the jury's task
of weighing the credibility of that competing testimony. See Walker v. State,
91 Nev. 724, 726,
542 P.2d 438, 438-39 (1975). The probative value of this
evidence is not substantially outweighed by any unfair prejudice resulting
from the jury knowing Gray had been incarcerated, particularly since the
jail calls did not reference Gray's incarceration status at the time of trial.
See NRS 48.035(1); cf. Haywood v. State, 107 Nev. 285, 288,
809 P.2d 1272,
1273 (1991) (providing that a district court must protect a defendant's right
to the "indicia of innocence!' by not informing the jury that the defendant is
incarcerated, which may "have the same prejudicial effect as bringing a
shackled defendant into the courtroom"). As such, we conclude the district
court acted within its discretion in admitting the calls. See Byford, 116 Nev.
at 231, 994 P.2d at 711. (reviewing district court's admission of evidence for
abuse of discretion).
Gray next argues the district court permitted improper cross-examination about his past drug sales, which was irrelevant and
prejudicial. The State cross-examined Gray about his participation in drug
sales that were not directly related to selling drugs to the victim. "Cross-examination is limited to the subject matter of the direct examination and
matters affecting the credibility of the witness." NRS 50.115. On direct
examination, Gray testified regarding selling drugs to the victim and
others. He testified that the victim owed him a debt as a result of those
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sales and that he had not typically extended similar credit to other buyers.
We conclude that this testimony on direct examination opened the door to
the State questioning Gray about selling drugs during cross-examination.
The district court did not abuse its discretion in overruling Gray's objection
to the cross-examination. See Byford, 116 Nev. at 231, 994 P.2d at 711.
Gray next argues the district court improperly allowed
prejudicial and irrelevant evidence regarding Gray's car ownership to be
presented to the jury. On direct examination, Gray testified that he did not
own or use a car matching the description provided by the victim and that
he drove a different car that night. He argues the court improperly allowed
his probation officer (although their relationship was not named in front of
the jury) to testify that Gray did not, to the officer's knowledge, own the car
Gray testified to driving on the night of the alleged offenses. Here, the
officer's testimony was relevant to rebut Gray's testimony, and it was not
an abuse of discretion to allow the prosecution to impeach that testimony.
See NRS 48.025(1). The district court took precautions to ensure the jury
did not learn anything about the nature of the officer's and Gray's
relationship, only allowing testimony regarding how long they had known
and seen one another. Therefore, we find the evidence was not substantially
more prejudicial or misleading than it was probative to the credibility of
Gray's account of his interactions with the victim. It was within the district
court's discretion to admit this evidence to impeach Gray's testimony. See
Byford, 116 Nev. at 231, 994 P.2d at 711.
The district court properly limited Gray's closing argument comments
regarding reasonable doubt
Gray next argues the district court improperly restricted his
right to assistance of counsel by cutting short his counsel's argument
regarding reasonable doubt. We disagree. NRS 175.211 does not allow
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counsel to redefine "reasonable doubt." "This court has repeatedly
cautioned [both] district courts and attorneys not to attempt to quantify,
supplement, or clarify the statutorily prescribed standard for reasonable
doubt." Evans v. State, 117 Nev. 609, 631,
28 P.3d 498, 514 (2001), overruled
on other grounds by Lisle v. State,
131 Nev. 356, 366 n.5,
351 P.3d 725, 732
n.5 (2015). In short, because Gray's argument was an attempt to clarify the
reasonable doubt instruction through paraphrase and commentary and
because the jury was otherwise properly instructed on reasonable doubt, we
cannot conclude the district court erred by foreclosing counsel's argument
in this regard.
The district court properly adjudicated Gray under the habitual criminal
statute
The district court sentenced Gray according to the "small"
habitual criminal statute. NRS 207.010(1)(a).2 This court reviews
sentencing determinations for an abuse of discretion. Lloyd v. State, 94
Nev. 167, 170,
576 P.2d 740, 742 (1978). Gray correctly notes that "it may
be an abuse of discretion for the court to enter a habitual criminal
adjudication when the convictions used to support the adjudication are
nonviolent and remote in time." Clark v. State,
109 Nev. 426, 428,
851 P.2d
426, 427 (1993). However, his arguments that the past convictions were too
stale, related to one another, or nonviolent to justify the enhanced sentence
were carefully considered below and found lacking. . The district court
concluded, and we agree, that the State demonstrated twice the number of
statutorily required felonies necessary to sentence Gray under the small
2The State presented four qualifying felonies. At the time of his trial
and sentencing, NRS 207.010(1)(a) required only two prior felony
convictions under the statute, rather than the current five. See 2009 Nev.
Stat., ch. 156, § 1, at 567.
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habitual criminal statute. In so doing, the court made a reasoned, nonautomatic decision to impose its sentence. See id. (The decision to
adjudicate a person as a habitual criminal is not an automatic one."). We
conclude that here, the district court properly exercised its direction in
applying the habitual criminal statute.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
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Gibbonr
/414G4,0 J.
Stiglich
J.
Silver
cc: Hon. Valerie Adair, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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