IN THE SUPREME COURT OF THE STATE OF NEVADA
GREGORY RICHARDSON, No. 79913
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. DEC 1 6 2020
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit burglary, burglary while in possession
of a firearm, conspiracy to commit robbery, two counts of attempted robbery
with the use of a deadly weapon, conspiracy to commit kidnapping, two
counts of first-degree kidnapping with the use of a deadly weapon, first-degree kidnapping with the use of a deadly weapon resulting in substantial
bodily harm, attempted murder with the use of a deadly weapon, and two
counts of battery with the use of a deadly weapon resulting in substantial
bodily harm. Eighth Judicial District Court, Clark County; William D.
Kephart, Judge.
First, appellant argues that the district court erred by denying
his motion for a mistrial based on improper communications between the
court marshal and Juror No. 5—the sole African-American male juror on
the panel—and the juror's ultimate excusal. We review for an abuse of
discretion, see McKenna v. State, 114 Nev. 1044, 1055,
968 P.2d 739, 746
(1998) CDenial of a motion for a mistrial is within the sound discretion of
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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the district court, and that ruling will not be reversed absent a clear
showing of abuse of discretion."), and disagree.
We conclude that the district court did not err in denying
appellant's motion for a mistrial because the marshal's communications
with the juror neither related to the evidence nor the marshal's opinion
regarding the case, but rather involved safety concerns that were within the
purview of the marshal's security duties. See NRS 3.310(3) (providing that
a court marshal is charged with "preserv[ing] order in the court," and with
other duties as required by the district court); Lamb v. State, 127 Nev. 26,
43-45,
251 P.3d 700, 711-13 (2011) (explaining the test for determining
whether a mistrial is warranted based on extrinsic communications with a
juror); see also United States v. Albert,
595 F.2d 283, 290-91 (5th Cir. 1979)
(holding that the district court did not abuse its discretion in refusing to
grant a new trial based on statements made between the United States
marshals and some jurors concerning the length of deliberations because
the statements did not relate to the evidence or the marshals view of the
evidence, the district court held a thorough hearing before making a
decision, and substantial evidence supported the district court's decision).
Further, appellant fails to demonstrate that the communications were the
ultimate basis for the juror requesting to be excused from the jury.
In a related claim, appellant argues that the district court erred
in denying his second motion for a mistrial based on the procedure the
district court used to excuse Juror No. 5. After individually questioning the
jurors as to whether they saw something in the courtroom that would affect
their impartiality, the district court excused Juror No. 5 in front of the other
jurors upon reconvening open court. Appellant asserts that the district
court should have then questioned the jurors after excusing Juror No. 5 to
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determine if the excusal ofJuror No. 5 affected them. Appellant argues that
these procedures tainted the jury. We review for an abuse of discretion, see
McKenna, 114 Nev. at 1055,
968 P.2d at 746, and disagree. Appellant fails
to support his argument with any caselaw requiring that each remaining
juror be questioned after another juror has been excused, 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."), and fails to demonstrate
any specific for-cause challenge to the remaining jurors, see NRS 16.050
(outlining the grounds for challenges for cause). Moreover, appellant has
not demonstrated that the procedures resulted in any partial juror
continuing to serve on the jury. See Weber v. State,
121 Nev. 554, 581,
119
P.3d 107, 125 (2005) (holding that a district court's error in denying
appellant's challenges for cause did not result in a due process violation
requiring reversal because these prospective jurors were not empaneled and
appellant failed to "establish that any of the jurors who [ultimately] sat in
judgment against him were not fair or impartial!), rejected on unrelated
grounds by Farmer v. State,
133 Nev. 693,
405 P.3d 114 (2017).
Second, appellant argues that the district court erred in
denying his third motion for a mistrial based on a detective's testimony
referencing appellant's record. We review for an abuse of discretion, see
McKenna, 114 Nev. at 1055,
968 P.2d at 746, and disagree. In testifying
that he found appellant through a records search, the detective merely
explained how authorities were able to find appellant. The detective did not
indicate the types of records he reviewed, and this point was not
emphasized. The jury could not reasonably infer from the brief testimony
that the detective was talking about appellant's criminal history. See
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Witherow v. State, 104 Nev. 721, 724,
765 P.2d 1153, 1155 (1988) (The test
for determining a reference to prior criminal history is whether the jury
could reasonably infer from the evidence presented that the accused had
engaged in prior criminal activity.").
Moreover, any error in allowing the testimony was harmless in
light of the overwhelming evidence adduced at trial, including appellant's
relationship to the deceased other suspect, cell phone records placing him
near the crime scene before and after the robbery attempt, and video
surveillance of the neighboring establishments showing a suspect making
calls at times that coincided with these phone records on a phone that
appellant conceded he possessed. And, other witnesses testified that they
spoke with appellant on that phone minutes after the robbery. Further, one
of the victims identified appellant as one of the perpetrators at trial. See
Newman v. State, 129 Nev. 222, 236,
298 P.3d 1171, 1181 (2013) (providing
erroneous admission of evidence harmless unless it had substantial and
injurious effect on verdict).
Third, appellant argues that the district court erred by
admitting a jail phone call that he made the night before voir dire where he
stated to a third party that he told his girlfriend that it was her right to
"plead the fifth." We review for an abuse of discretion, see McLellan v. State,
124 Nev. 263, 267,
182 P.3d 106, 109 (2008) (We review a district court's
decision to admit or exclude evidence for an abuse of discretion."), and we
conclude that the district court did not abuse its discretion by admitting the
evidence as consciousness of guilt because appellant's comments could be
interpreted as attempting to influence a witness. See Abram v. State, 95
Nev. 352, 356,
594 P.2d 1143, 1145 (1979) CDeclarations made after the
commission of the crime which indicate consciousness of guilt, or are
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inconsistent with innocence, or tend to establish intent may be
admissible."); see also United States v. Hammond, 781 F.2d 1536, 1540 (11th
Cir. 1986) ("Courts may consider evidence of attempts to influence a witness
as relevant in showing a consciousness of guilt.").
Fourth, appellant argues that there was plain error throughout
the trial because the State referred to the incident as a robbery and the
defendants as robbers. We conclude that the comments did not affect
appellant's substantial rights. See NRS 178.602 ("Plain errors or defects
affecting substantial rights may be noticed although they were not brought
to the attention of the court."). Arguably, the State misstated these terms
in a technical sense because the suspects did not complete the robbery;
however, the distinction is subtle and relatively minor in light of the fact
that appellant was charged with robbery-related crimes, and overwhelming
evidence supported those and the other crimes for which he was charged.
See Green v. State, 119 Nev. 542, 545,
80 P.3d 93, 95 (2003) (imposing a
burden on defendant to show "actual prejudice or a miscarriage of justice"
for plain error to exist); Bennett v. State, 111 Nev. 1099, 1105,
901 P.2d 676,
680 (1995) (finding that technical rnisstatements of evidence did not infect
the trial with unfairness sufficient to result in a due process violation).
Fifth, appellant argues plain error due to the States failure to
pause the surveillance video inside the store at the moment where the jury
could see a close-up of the suspect's face when he fled the crime scene.
Appellant fails to demonstrate any error that is clear from "a casual
inspection of the record," Patterson v. State, 111 Nev. 1525, 1530,
907 P.2d
984, 987 (1995), and resulted in "actual prejudice or a miscarriage of
justice," Green, 119 Nev. at 545,
80 P.3d at 95. The surveillance video was
admitted and played at times during the trial to show what happened, not
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to identify appellant as the perpetrator shown on the video. Other evidence
and eyewitness testimony was used to identify appellant as one of the two
perpetrators. And appellant had the opportunity to address the contents of
the video during the trial, including whether appellant could be identified
from the video. Appellant has not demonstrated plain error.
Sixth, appellant argues that the sentence imposed by the
district court on Count 9 was excessively harsh, so as to shock the
conscience. We review for an abuse of discretion, see Martinez v. State, 114
Nev. 735, 737-38,
961 P.2d 143, 145 (1998) (The sentencing judge is
accorded wide discretion in imposing a sentence; absent an abuse of
discretion, this court will not disturb the district court's determination on
appeal."), and disagree. In sentencing appellant, the judge considered the
sentencing memorandum and letters to the court provided by the victims;
the violent nature of the crime, with multiple victims receiving lifethreatening bullet wounds; that this was not appellant's first violent
robbery attempt; and appellant's lack of remorse. See Silks v. State,
92 Nev.
91, 93-94,
545 P.2d 1159, 1161 (1976) (noting that "Mlle sentencing
proceeding is not a second trial and the court is privileged to consider facts
and circumstances which clearly would not be admissible at triar so long
as such information is not founded "on facts supported only by impalpable
or highly suspect evidence"); Denson v. State,
112 Nev. 489, 492,
915 P.2d
284, 286 (1996) (Possession of the fullest information possible concerning
a defendant's life and characteristics is essential to the sentencing judge's
task of determining the type and extent of punishment."). Moreover,
appellant's sentence for Count 9 was within statutory parameters for this
offense, see NRS 200.320 (providing the penalties for first-degree
kidnapping), and such sentences typically do not constitute cruel and
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unusual sentences, see Glegola v. State, 110 Nev. 344, 348,
871 P.2d 950,
953 (1994) (noting that this court does not encroach lightly on the
Legislature's domain to determine punishments for crimes, and thus, a
sentence within statutory parameters does not normally qualify as cruel
and unusual punishment); Solem v. Helm,
463 U.S. 277, 289-90 (1983)
(noting that outside the context of capital punishment cases, challenges to
the proportionality of sentences rarely succeed). Having considered
appellant's claims and concluded that no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.2
C.J.
, J.
Stiglich
cc: Hon. William D. Kephart, District Judge
Lowe Law LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 We need not address appellant's cumulative-error argument, as
there were not multiple errors. See Big Pond v. State, 101 Nev. 1, 3,
692
P.2d 1288, 1289 (1985) (analyzing cumulative error); see also United States
v. Sager,
227 F.3d 1138, 1149 (9th Cir. 2000) (noting that cumulative error
requires more than one error).
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