IN THE SUPREME COURT OF THE STATE OF NEVADA
TERRELL DURR, A/K/A TERRELL No. 77241
LAMOUNT DURR,
Appellant,
vs.
FILED
THE STATE OF NEVADA, JAN 1 5 2021
Res ondent.
ORDER OF AFFIRMANCE BY IEF DEPUTY CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of robbery. Eighth Judicial District Court, Clark County;
Douglas Smith, Judge.
Appellant Terrell Durr and an accomplice robbed the victim in
a retail parking lot. Subsequently, Durr and the victim engaged in a
shootout in a gas station parking lot. The State charged Durr with
conspiracy to commit robbery, robbery with the use of a deadly weapon,
three counts of assault with a deadly weapon, and three counts of
discharging a firearm.2 The jury found Durr guilty of robbery and acquitted
him on all remaining counts. Durr raises numerous issues on appeal.
The vietirn's testirnony
First, Durr argues that the district court erred in precluding
him from cross-examining the victim about a pending criminal charge.
Because the victim's pending criminal charge could show he had an
incentive to testify against Durr, we conclude the district court abused its
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
2The State also charged Durr with possession of a firearm by a
prohibited person but dismissed the charge during trial.
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discretion by restricting Durr's cross-examination on the subject. See
Lobato v. State, 120 Nev. 512, 519,
96 P.3d 765, 770 (2004) (providing that
"extrinsic evidence relevant to prove a witness's motive to testify in a certain
way, i.e., bias, interest, corruption or prejudice, is never collateral to the
controversy and not subject to the limitations contained in NRS 50.085(3));
Bushnell v. State,
95 Nev. 570, 572,
599 P.2d 1038, 1040 (1979) (providing
that "the trial court's discretion [to limit cross-examination] is more narrow
where bias is the object to be shown, and an examiner must be permitted to
elicit any facts which might color a witness's testimony").
Durr also argues the district court erred by releasing the victim
from a defense subpoena after the victim concluded his testimony in the
State's case-in-chief. While district courts must manage the practical
concerns of the courtroom during trial, see NRS 50.115(1) (providing that
"[t]he judge shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence"), the Sixth Amendment
provides a defendant "the right to offer the testimony of witnesses, and to
compel their attendance, if necessary." Taylor v. Illinois, 484 U.S. 400, 409
(1988) (quoting Washington v. Texas,
388 U.S. 14, 19 (1967)). In denying
Durr's request, the district court simply stated that "I've been doing this for
30 years and I can't remember one time that a judge allowed a subpoena for
a victim — for a defense attorney." Because the district court prohibited
Durr from calling the victim in his case-in-chief without providing a cogent
reason, we cannot conclude the district court acted within its discretion. See
Mclellan v. State,
124 Nev. 263, 267,
182 P.3d 106, 109 (2008) ("[A] district
court's decision to admit or exclude evidence [is reviewed] for an abuse of
discretion."); Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001)
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(An abuse of discretion occurs if the district court's decision is arbitrary or
capricious or if it exceeds the bounds of law or reason.").
While the district court erred, we also conclude the errors were
harmless in light of the overwhelming evidence adduced at trial, including
surveillance video of the robbery. See Valdez v. State, 124 Nev. 1172, 1189,
196 P.3d 465, 476 (2008) (providing that an error is harmless when it is
clear "beyond a reasonable doubt, that the error did not contribute to the
verdict"). Moreover, Durr challenged the victim's incentive and motive to
testify based on his being detained on a material witness warrant and the
State's grant of immunity for his participation in the subsequent shootout
with Durr. And the victim testified, outside the presence of the jury, that
he had not been given any consideration for his pending criminal charge
from the State. Additionally, Durr impeached the victim on cross-examination by showing he lied to law enforcement and provided
inconsistent testimony at a prior proceeding. Accordingly, we are convinced
that eliciting additional impeachment testimony by recalling the victim
would not have affected the outcome of the trial. See Bell v. State,
110 Nev.
1210, 1215,
885 P.2d 1311, 1315 (1994) (holding that the "exclusion of a
witness testimony is prejudicial if there is a reasonable probability that the
witness' testimony would have affected the outcome of the triar). Thus, we
the errors did not affect Durr's substantial rights. See NRS 178.598
(harmless error standard).
Motion to disrniss
Durr argues that the district court erred by denying his motion
to dismiss based on witnesses destroying evidence and the State's failure to
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collect that same evidence.3 First, Durr has not shown that the State is
accountable for the actions of non-state actors. See Maresca v. State, 103
Nev. 669, 673,
748 P.2d 3, 6 (1987) (holding that it is appellant's
responsibility to provide cogent argument and relevant authority). Second,
most of the evidence Durr cites relates to the charges for which he was
acquitted. Thus, Durr has not shown that the uncollected evidence was
material, i.e., that there was a reasonable probability that the result of the
trial would have been different. See Daniels v. State, 114 Nev. 261, 267,
956
P.2d 111, 115 (1998) (providing that a defendant must first show that the
uncollected evidence was material, "meaning that there is a reasonable
probability that, had the evidence been available to the defense, the result
of the proceedings would have been different."). And, despite finding the
evidence irrelevant and not material, the district court instructed the jury
that it could infer that unproduced evidence is unfavorable to the party who
fails to produce the evidence (here, the State), and Durr highlighted this
instruction during his closing argument. Therefore, we conclude the district
court did not abuse its discretion. See Hill v. State, 124 Nev. 546, 550,
188
P.3d 51, 54 (2008) (providing that a district court's decision to grant or deny
a motion to dismiss an indictment is reviewed for an abuse of discretion).
Prosecutorial misconduct
Durr argues that the prosecutor improperly referred to his
invocation of his right to remain silent. During trial, a prosecutor may not
3We have considered Durr's other claims of error in the district court's
denial of his motion to suppress evidence and discovery motion made during
trial and conclude that the district court did not abuse its discretion. See
NRS 174.125 (providing that motions to suppress evidence must be made
before trial); EDCR 3.20 (providing that the district court may decline to
consider untimely motions).
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comment on an accused's invocation of his right to remain silent. See Morris
v. State, 112 Nev. 260, 263,
913 P.2d 1264, 1267 (1996). However, Durr
introduced the invocation of his right to remain silent while cross-examining the interrogating officer, and the State addressed the issue on
redirect. Durr again raised the issue in his closing argument, and the State
responded to the argument in rebuttal. Thus, we conclude Durr has not
shown the prosecutor acted improperly. See Carter v. State, 121 Nev. 759,
769,
121 P.3d 592, 599 (2005) (A party who participates in an alleged error
is estopped from raising any objection on appeal."), Leonard v. State, 117
Nev. 53, 81,
17 P.3d 397, 414 (2001) (A prosecutor's comments should be
considered in context, and a criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone.")
(internal quotation marks omitted)).
Jury instruction
Durr argues that the district court erred in rejecting his
proffered jury instruction regarding an alleged conspiracy formed between
the victim and his girlfriend after the initial robbery. Even assuming the
district court erred in rejecting Durr's proffered instruction, we conclude
any error was harmless because the jury only convicted Durr of the initial
robbery. Therefore, we are convinced any error in instructing the jury did
not affect the jury's verdict. See Crawford v. State, 121 Nev. 744, 756,
121
P.3d 582, 590 (2005) (errors related to jury instructions are harmless if "we
are convinced beyond a reasonable doubt that the jury's verdict was not
attributable to the error and that the error was harmless under the facts
and circumstances of this case").
Expert testimony
Next, Durr argues that the district court abused its discretion
by admitting the expert testimony of a ZetX employee. The witness testified
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that ZetX provides a computer program that maps cell phone activity. He
explained that after the cell phone provider and cell phone user information
are input, the program provides a map showing where a cell phone has been
used over a specified tirne frame. We conclude the witness possessed
specialized experience and knowledge that fell outside that of a layperson,
and his testimony assisted the jury to understand the cell phone mapping
evidence presented by the State. See NRS 50.275 (providing that expert
testimony may be admitted to "assist the trier of fact to understand the
evidence or to determine a fact in issue"); Burnside v. State, 131 Nev. 371,
384,
352 P.3d 627, 637 (2015) (providing that expert testimony concerns
matters beyond the common knowledge of the average layperson).
Therefore, we conclude the district court did not abuse its discretion by
admitting the testimony. See Mulder v. State,
116 Nev. 1, 12-13,
992 P.2d
845, 852 (2000) (Whether expert testimony will be admitted, as well as
whether a witness is qualified to be an expert, is within the district court's
discretion, and this court will not disturb that decision absent a clear abuse
of discretion.").
Sufficiency of the indictment
Next, Durr argues that the indictment did not provide him
adequate notice to prepare his defense because the State alleged alternative
theories of criminal liability. Reviewing the sufficiency of the indictment de
novo, Rimer v. State, 131 Nev. 307, 325,
351 P.3d 697, 710 (2015), we
disagree. See NRS 173.075(1) (an information must notify a defendant by
"plain, concise and definite written statement of the essential facts
constituting the offense charged"). The indictment identified the relevant
statute for the charged offense and alleged the approximate time, the place,
and the conduct constituting the offense. Further, we are unpersuaded by
Durr's argument that the State pleading alternative theories of criminal
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liability under Barren v. State, 99 Nev. 661,
669 P.2d 725 (1983), resulted
in prejudice. See Randolph v. State,
117 Nev. 970, 978,
36 P.3d 424, 429
(2001) ([O]ur holding in Barren was aimed at preserving due process by
preventing the prosecution from concealing or vacillating in its theory of the
case to gain an unfair advantage over the defendant."). Thus, the
indictment "satisfies the constitutional and statutory notice requirements."
Rimer, 131 Nev. at 325, 351 P.3d at 710.
Sentencing
Next, Durr argues that the district court erred by considering
the charges the jury acquitted him of when imposing sentence. We disagree
because the record shows that the district court sentenced Durr based on
his criminal history and found he presented a danger to society. Therefore,
we conclude the district court did not abuse its discretion in imposing
sentence. See Silks v. State, 92 Nev. 91, 94,
545 P.2d 1159, 1161 (1976) (So
long as the record does not demonstrate prejudice resulting from
consideration of information or accusations founded on facts supported only
by impalpable or highly suspect evidence, this court will refrain from
interfering with the sentence imposed."); see also Tanksley v. State,
113 Nev.
997, 1004,
946 P.2d 148, 152 (1997) (providing that sentencing courts have
"very broad discretion in determining that a habitual criminal adjudication
would serve the purpose of discouraging [a] repeat offendee).
Durr further argues that his habitual criminal adjudication was
erroneous because the district court imposed the sentence rather than a
jury. We disagree. "Since an habitual criminal determination is only an
adjudication of status, not of guilt, the right to trial by jury does not attach."
Parkerson v. State, 100 Nev. 222, 224,
678 P.2d 1155, 1156 (1984); see also
O'Neill v. State,
123 Nev. 9, 16-17,
153 P.3d 38, 43 (2007) C[T]he plain
language of the [habitual criminal] statute dictates that should the district
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court elect not to dismiss the count, it must impose a sentence within the
range prescribed in NRS 207.010(1).). To the extent Durr urges this court
to ignore or depart from our prior rulings, we decline his invitation as he
did not demonstrate a compelling reason to do so. See Arrnenta-Carpio v.
State, 129 Nev. 531, 535,
306 P.3d 395, 398 (2013) r[U]nder the doctrine of
stare decisis, we will not overturn [precedent] absent compelling reasons for
so doing."' (alterations in original) (quoting Miller v. Burk,
124 Nev. 579,
597,
188 P.3d 1112, 1124 (2008) (footnoted omitted))). Therefore, we
conclude the district court did not err in adjudicating Durr a habitual
criminal.
Durr also argues that his sentence of life without the possibility
of parole constitutes cruel and unusual punishment in violation of the
Eighth Amendment. We conclude Durr's argument is unavailing. A
sentence imposed within the statutory limits is not "cruel and unusual
punishment unless the statute fixing punishment is unconstitutional or the
sentence is so unreasonably disproportionate to the offense as to shock the
conscience." Culverson v. State, 95 Nev. 433, 435,
596 P.2d 220, 222 (1979).
While Durr claims his sentence is disproportionate to his instant conviction
for robbery, the State introduced three prior violent felony convictions—
voluntary manslaughter, burglary, and robbery—to support adjudication as
a habitual criminal. The district court sentenced Durr within the statutory
guidelines, and Durr does not contend the statute is unconstitutional.
Therefore, we conclude Durr's sentence does not constitute cruel and
unusual punishment.
Cumulative error
Finally, Durr argues that cumulative error warrants reversal.
Having considered the relevant factors, we are not convinced that the
cumulative effect of the two identified errors or any others assumed above
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violated Durr's right to a fair trial. See Valdez v. State, 124 Nev. 1172, 1195,
196 P.3d 465, 481 (2008) (stating that the court considers three factors to
determine whether the cumulative effect of errors violated a defendant's
right to a fair trial: "(1) whether the issue of guilt is close, (2) the quantity
and character of the error, and (3) the gravity of the crime charge& (internal
quotation marks omitted)). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
J.
Stiglich
o
, J.
Silver
cc: Chief Judge, The Eighth Judicial District Court
Eighth Judicial District Court, Dept. 8
Legal Resource Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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