IN THE SUPREME COURT OF THE STATE OF NEVADA
MAJUNIQUE BROWN, No. 78671
Appellant,
vs. FILE
THE STATE OF NEVADA,
Respondent. DEC 1 4 2020
ELIZABETH A. BROWN
CLERK OF SUPREME caw
BY •Y
ORDER OF AFFIRMANCE DEPL=s,--1ERK I
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit kidnapping, conspiracy to commit
robbery, first-degree murder with the use of a deadly weapon, first-degree
kidnapping with the use of a deadly weapon, and robbery with the use of a
deadly weapon.. Eighth Judicial District Court, Clark County; Douglas W.
Herndon, Judge.
Jason Byes was stabbed in the parking lot of a Las Vegas
apartment complex. Soon after the stabbing, a security guard at the
complex observed Appellant Manjunique Brown and Marcus Bowden
loading Byes into Byes's own car. Brown and Bowden proceeded to drive
Byes's car to Louisiana. On the way to Louisiana, Brown and Bowden
stopped in Arizona and disposed of Byes's body. Brown and Bowden were
subsequently located in Louisiana in possession of Byes's car and other of
his personal effects. Brown and Bowden were returned to Nevada and
charged with kidnapping, robbery and murder. Bowden pleaded guilty to
murder, while Brown proceeded to a jury trial. The jury convicted Brown
on five charges: conspiracy to commit kidnapping, conspiracy to commit
robbery, first-degree murder with the use of a deadly weapon, first-degree
426- 4150120
kidnapping with the use of a deadly weapon, and robbery with the use of a
deadly weapon. Brown appeals, alleging several trial errors.
The district court did not abuse its discretion in limiting one expert's
testimony
First, Brown alleges the district court improperly restricted one
of her experts testimony. A district court's decisions regarding expert
testimony and an expert's qualifications are not disturbed absent a clear
abuse of discretion. Mulder v. State, 116 Nev. 1, 12-13,
992 P.2d 845, 852
(2000). The district court found the proposed biomechanics expert qualified
to testify regarding the biomechanics—but not medical causation—of the
stab wounds. The district court properly considered the proposed opinion
and determined the expert was not qualified to testify as to medical
causation of the stab wounds on the grounds that he was not a medical
expert, testimony diagnosing the cause of a wound was outside of his
biomechanics expertise, and that he had no experience testifying in criminal
cases as to the cause of wounds. As such, the district court did not abuse
its discretion in limiting this testimony only to the biomechanics of the
wounds.1
1Brown further argues this limitation interfered with her right to
present her chosen defense. We review this argument for plain error
because Brown only objected at trial to the district court's determination
that the testimony must be limited based upon the expert's lack of
qualifications. See Martinorellan v. State, 131 Nev. 43, 48,
343 P.3d 590,
593 (2015). Under plain error review, reversal is not warranted "unless
the defendant demonstrates that the error affected his or her substantial
rights, by causing 'actual prejudice or a miscarriage of justice.'" Valdez v.
State,
124 Nev. 1172, 1190,
196 P.3d 465, 477 (2008) (quoting Green v. State,
119 Nev. 542, 545,
80 P.3d 93, 95 (2003)). Here, since another expert
testified to the exact opinion that district court limited, we conclude Brown
2
Mr. Bowden validly asserted his Fifth Amendment right not to testify
Brown alleges the district court erred in permitting Bowden to
assert a Fifth Amendment right not to testify. The validity of a witness's
assertion of the Fifth Amendment privilege against self-incrimination is
reviewed de novo. McCaskill v. State, 127 Nev. 1158,
373 P.3d 940 (2011).
The privilege requires "more than a vague and subjective fear of
prosecution." Jones v. State,
108 Nev. 651, 657,
837 P.2d 1349, 1352 (1992).
In Jones, we held that it was error to permit a witness to claim the
protection of the privilege against self-incrimination after he had pleaded
guilty.
Id. at 657,
837 P.2d at 1353. However, there was no indication in
Jones that the witness was still subject to prosecution by other sovereigns.
This case involved criminal acts in multiple states for which the statutes of
limitation had not yet expired.2 Accordingly, although Bowden had pleaded
guilty in Nevada, he still was subjected to a legitimate fear of prosecution
by other states or by the federal government. The district court therefore
did not err in permitting Bowden's claim of Fifth Amendment protection.
The court correctly excluded Mr. Bowden's statements
Brown further argues the district court improperly denied her
offer to introduce Bowden's statements to an investigating officer through
presented her chosen defense on this point, and thus there was no plain
error.
2 Specifically, Bowden's counsel told the court he had advised his
client that he could face federal charges for kidnapping under 18 U.S.C. §
1201 (2006), which carries the death penalty and has no statute of
limitations under
18 U.S.C. § 3281 (1994). In addition, he advised Bowden
of potential charges in states like New Mexico and Texas, and that both
those states toll statute of limitations when the defendant is not present in
the state.
3
hearsay exceptions for an unavailable declarant (either as a declaration
against interest under NRS 51.345 or under NRS 51.315s general
exception). This court reviews evidentiary decisions by a district court for
an abuse of discretion. Farmer v. State, 133 Nev. 693, 702,
405 P.3d 114,
123 (2017). Bowden was an unavailable declarant due to his invocation of
the Fifth Amendment privilege. See NRS 51.055(1)(a). However, Brown
attenipted to introduce Bowden's statements while arguing that they were
mostly untrue. Brown never argued that, either below or on appeal, the
statements were not hearsay because they were not offered for their truth.
See Wallach v. State,
106 Nev. 470, 473,
796 P.2d 224, 226-27 (1990)
(providing that the hearsay rule does not apply if the statement is not
offered 'to prove the truth of the matter asserted). Both of the statutes
Brown argues support admission of these statements, NRS 51.315 and NRS
51.345, require assurances of accuracy and trustworthiness of the hearsay
statement. See Woods v. State,
101 Nev. 128, 136,
696 P.2d 464, 469 (1985).
(The 'assurances of trustworthiness required by NRS 51.345, the more
specific statute, should not be measured by a more restrictive standard than
the 'assurances of accuracy' necessary to fall within [NRS 51.315].). Brown
mistakenly argues that these requirements are met when the hearsay
statements may be recounted accurately. We disagree: both these statutes
focus on the trustworthiness of the content of the statements being
admitted, and Brown did not provide assurances of accuracy for Bowden's
statements. Thus, the district court did not abuse its discretion in refusing
to admit Bowden's statements through unavailable-declarant hearsay
exceptions.
4
The State committed prosecutorial misconduct, but reversal is not warranted
Brown further argues that the State's statements during its
rebuttal argument comparing Brown to a salesperson trying to "selr the
jury on her story were prosecutorial misconduct. In considering claims of
prosecutorial misconduct, this court utilizes a two-step analysis: (1)
determining whether the prosecutor's conduct was improper, and (2)
determining whether the improper conduct warrants reversal. Valdez v.
State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). Under the second
step, harmless error review applies if the statement was objected to at trial.
Id.
We first conclude that the error was preserved, despite Brown
not objecting at trial. Immediately after the "salesperson" analogy was
made, the district court interjected sua sponte and told the jury to disregard
the inappropriate statements. We conclude that counsel below was not
required to object after the district court itself essentially had preserved the
issue. See Baker v. State, 906 A.2d 139, 148 (Del. 2006) (finding the issue
of prosecutorial misconduct preserved if a trial court intervened sua
sponte). Since the error was preserved, we review for harmless error.
We agree with the district court's determination that the
salesperson analogy was inappropriate. A prosecutor may not attempt to
inflame the jury against the defendant. However, it did not impermissibly
comment on Brown's exercise of a constitutional right or "so infect[ ] the
trial with unfairness as to make the resulting conviction a denial of due
process." Id. at 1189, 196 P.3d at 477. As such, this court "will reverse only
if the error substantially affects the jury's verdict."
Id. at 1189,
196 P.3d at
476. Here, the district court quickly admonished the jury to disregard the
improper statements. While this statement was improper, its substance
5
went to the credibility of Brown as a testifying witness—something the jury
was bound to consider. Given the timely admonishinent and the weight of
the evidence in this case, the error did not substantially affect the verdict
and accordingly it does not warrant reversal.
The district court erred by not allowing a voluntary manslaughter
instruction, but the error was harmless
Brown argues that the district court erred in denying her
request to give the jury an instruction regarding the lesser-included offense
of voluntary manslaughter. A district court has "broad discretion to settle
jury instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744,
748,
121 P.3d 582, 585 (2005). "The failure to instruct the jury on a
defendanes theory of the case that is supported by the evidence warrants
reversal unless the error was harmless." Newson v. State,
136 Nev., Adv.
Op. 22,
462 P.3d 246, 250-52 (2020) (finding it was error to not give
voluntary manslaughter instruction, even though only circumstantial
evidence supported it, when it was the defense theory of the case).
Since the jury was permitted to find Brown guilty of the charged
offenses on either aider-and-abettor or direct-participation grounds, she
was entitled to argue for lesser-included instructions that would be
available to the alleged principal actor (here, Bowden). See Sharma v. State,
118 Nev. 648, 652,
56 P.3d 868, 870 (2002) (Nevada law does not
distinguish between an aider or abettor to a crime and an actual perpetrator
of a crime; both are equally culpable."). Brown testified that preceding the
killing, there was an argument in the apartment between Bowden and Byes
that turned into a physical altercation where Byes wielded a knife. Brown
further testified that Byes left the apartment after the altercation and
6
Bowden followed him outside where Byes was ultimately killed. Brown
posits that circumstantial evidence suggests that Bowden may have been
provoked by Byes outside, precipitating the killing. As such, Brown argues
she was entitled to a manslaughter instruction. A defendant is entitled to
a requested instruction on their theory of the case "so long as there is
evidence to support it, regardless of whether the evidence is weak,
inconsistent, believable, or incredible." Hoagland v. State, 126 Nev. 381,
386,
240 P.3d 1043, 1047 (2010). Despite the evidence in this rnatter
supporting a voluntary manslaughter instruction being weak, it was
nevertheless sufficient and the district court erred in denying the
instruction.
However, we conclude this error was harmless. The improper
exclusion of a jury instruction is harmless error "when it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the error." Wegner v. State, 116 Nev. 1149, 1155-56,
14 P.3d 25, 30
(2000), overruled on other grounds by Rosas v. State, 122 Nev, 1258, 147
P.3d 1101 (2006) (internal quotation marks omitted). Here, the jury was
offered three alternative theories of first-degree murder: felony murder,
robbery; felony murder, kidnapping; and willful and premeditated murder.
The jury w as not required to agree on a single theory to convict on first-degree murder grounds. The verdict forms here reflect that in addition to
first degree murder the jury also found Brown guilty beyond a reasonable
doubt of robbery and of kidnapping in the first degree. Accordingly, any
error by the district court in failing to give a voluntary manslaughter
instruction is harmless under these facts. We therefore conclude that, while
the district court should have granted Brown's request for a voluntary
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manslaughter jury instruction, in light of the above, the denial was
harmless error. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Stiglich
0_4 0 J.
Silver
cc: Hon. Douglas W. Herndon, District Judge
The Almase Law Group LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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