IN THE SUPREME COURT OF THE STATE OF NEVADA
WALTER KANEEKI CLARK, No. 80018
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUN 3 0 2021
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ORDER OF AFFIRMANCE
This is an NRAP 4(c) direct appeal from a judgment of
conviction, pursuant to a jury verdict, of first-degree murder with the use of
a deadly weapon and attempted murder with the use of a deadly weapon.
Eighth Judicial District Court, Clark County; Jerome T. Tao, Judge.
Appellant Walter Kaneeki Clark argues that (1) the district
court erred by failing to administer a required oath before asking jurors
questions; (2) the district court committed misconduct by not properly
curing the remarks of a prospective juror; (3) the State committed
prosecutorial misconduct during cross-examination; (4) the State
committed prosecutorial misconduct in its closing argument; (5) the district
court erred in instructing the jury on voluntary manslaughter; (6) the
district court erred in instructing the jury on flight; (7) the State presented
insufficient evidence of premeditation or deliberation to support either of
his convictions; (8) the district court erred in admitting a preliminary
hearing transcript; and (9) cumulative error warrants reversal.
First, Clark argues that the district court erred by failing to
administer the oath NRS 16.030(5) requires before asking jurors
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preliminary questions. Because he did not object, we review for plain error.
See Martinorellan v. State, 131 Nev. 43, 48,
343 P.3d 590, 593 (2015)
(explaining that this court reviews "all unpreserved errors . . . for plain
error"). For reversal upon plain-error review, the "appellant must
demonstrate that: (1) there was an error; (2) the error is plain, meaning that
it is clear under current law from a casual inspection of the record; and (3)
the error affected the defendant's substantial rights." Jeremias v. State,
134
Nev. 46, 50,
412 P.3d 43, 48 (2018) (internal quotation marks omitted). "[A]
plain error affects a defendant's substantial rights when it causes actual
prejudice or a miscarriage of justice (defined as a grossly unfair outcome)."
Id. at 51,
412 P.3d at 49 (internal quotation marks omitted).
"Before persons whose names have been drawn are examined
as to their qualifications to serve as jurors, the judge or the judge's clerk
shall administer an oath or affirmation to them . . . ." NRS 16.030(5)
(emphasis added). We have held that "a district court commits structural
error when it fails to administer the oath to potential jurors pursuant to
NRS 16.030(5)." Barral v. State, 131 Nev. 520, 525,
353 P.3d 1197, 1200
(2015). However, "R]he failure to preserve an error, even an error that has
been deemed structural, forfeits the right to assert it on appeal," Jerernias,
134 Nev. at 50,
412 P.3d at 48, and instead we review for plain error.
The district court plainly erred by failing to administer the NRS
16.030(5) oath before asking jurors four preliminary questions. However,
because overwhelming evidence supports the verdict, Clark failed to show
that the error caused actual prejudice or a miscarriage of justice. See Green
v. State, 119 Nev. 542, 548,
80 P.3d 93, 97 (2003) (explaining that an error
does not affect a defendant's substantial rights if the State presents
overwhelming evidence of the defendant's guilt). Specifically, four
witnesses testified that Clark shot the victims in a manner inconsistent
2
with Clark's contention that he acted in self-defense. Moreover, Clark shot
one victim in the buttocks, suggesting that the victim was retreating and
therefore was not the first aggressor. Finally, Clark shot each victim
multiple times, further negating the inference that he was attempting to
impede the victim's purported aggression. Given the overwhelming
strength of this evidence, Clark has not shown that this error affected his
substantial rights.
Second, Clark contends that the district court committed
misconduct by failing to cure a prospective juror's comment during voir dire.
Clark did not object. We apply plain-error review to unpreserved claims of
judicial misconduct. Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 368,
892 P.2d 588, 590 (1995). "The influence of the trial judge on the jury is
necessarily and properly of great weight and his lightest word or intimation
is received with deference, and may prove controlling." Quercia v. United
States, 289 U.S. 466, 470 (1933) (internal quotation marks omitted). Thus,
we have explained that "[w]hat may be innocuous conduct in some
circumstances may constitute prejudicial conduct in a trial setting." Parodi,
111 Nev. at 367,
892 P.2d at 589. Under NCJC Canon 2.8(B), "[a] judge
shall be patient, dignified, and courteous to . . . jurors."
During voir dire, the district court asked the venire whether
any of them knew the parties' proposed witnesses. One prospective juror
said that he worked as a custodian at the police department and heard
about Clark's case. Upon further inquiry from the district court, the juror
responded frankly, "Well, the impression I got was [Clark]'s guilty as can
'Although Clark argues that contradictory evidence shows that he
acted in self-defense, we find the strength of evidence presented against him
to be overwhelming.
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be." The district court properly dismissed the prospective juror and
admonished the remaining venire to disregard the juror's comments. In
doing so, however, the district court—in the presence of other prospective
jurors—threatened to "call the sheriff and "put [the juror] in jair for his
statements. The district court further stated, "I'm going to think very hard
about whether I ought to call the sheriff and don't think he's not going to
take my call about this." We are concerned that the district court's
impatient and uncourteous comments to the prospective juror could have
had a chilling effect on other prospective jurors. As we have explained,
district courts "should exercise restraint over judicial conduct and
utterances." Azucena v. State, 135 Nev. 269, 273,
448 P.3d 534, 538 (2019)
(quoting State v. Miller, 49 P.3d 458, 467 (Kan. 2002)). Here, the district
court's conduct fell short of the high standards imposed on our district
judges and constitutes judicial misconduct. Nonetheless, given the
overwhelming evidence supporting the verdict, we conclude that the district
court's misconduct does not warrant reversal.2
Third, Clark argues that the prosecutor committed misconduct
by asking him improper questions during cross-examination. When
reviewing a claim of prosecutorial misconduct, we apply a two-step analysis.
Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). Our first
inquiry is whether the State's conduct was improper. Id. A client's
confidential communications with counsel are privileged. Manley v. State,
115 Nev. 114, 120,
979 P.2d 703, 707 (1999). "Where a client voluntarily
reveals portions of the communications with the attorney, those revelations
amount to a waiver of the attorney-client privilege as to the remainder of
2We have also reviewed Clark's arguments about Juror 2, and
conclude that they are meritless and do not warrant reversal.
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the conversation or communication about the same subject matter." Id.
(internal quotation marks omitted). "However, for waiver to occur, the
witness's answers must be wide enough in scope and deep enough in
substance to constitute a significant part of the communication."
Id.
(internal quotation marks omitted). "Merely acknowledging the fact that
the witness discussed a subject with his attorney does not waive the
privilege."
Id. at 121,
979 P.2d at 707 (internal quotation marks omitted).
On direct examination, Clark's attorney asked him why he did
not report the shootings to police. Clark answered that he reported the
shootings to his attorney. On cross-examination, the prosecutor asked
Clark, "[W]hat specific things has [your attorney] helped you with legally?"
Clark answered that "one time I went to jail in North Las Vegas for
having . . . my gun permit." Clark further explained that his attorney got
the charge "kicked out."
Clark did not disclose a significant part of his communications
with his attorney on direct-examination; he merely stated that he discussed
the shootings with his attorney. Because Clark did not waive the attorney-client privilege, the prosecutor improperly inquired into Clark's
communications with his attorney during cross-examination. Therefore,
the prosecutor committed misconduct by eliciting Clark's testimony.
Having concluded that the State's conduct was improper, we
turn to the next step of our analysis. Valdez, 124 Nev. at 1188,
196 P.3d at
476 ([I]f the conduct was improper, we must determine whether the
improper conduct warrants reversal."). However, plain-error review applies
if, as here, the prosecutorial misconduct is unpreserved because the
defendant did not object.
Id. at 1190,
196 P.3d at 477. Here, the State
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presented overwhelming evidence of Clark's guilt, so we conclude that the
prosecutorial misconduct did not prejudice his substantial rights.3
Fourth, Clark alleges that the State committed prosecutorial
misconduct during its closing argument. We first determine whether the
State committed prosecutorial misconduct. Valdez, 124 Nev. at 1188,
196
P.3d at 476. "We have held that the prosecutor calling a witness a liar is
improper and even asserting that the defendant is lying is equally
impermissible." Rowland v. State, 118 Nev. 31, 39,
39 P.3d 114, 119 (2002)
(footnote omitted). In the States rebuttal closing argument, it quoted Jury
Instruction 38, which stated, "If you believe that a witness has lied about
any material fact in the case, you may disregard the entire testimony of that
witness . . . ." The State then insinuated that Clark was lying. Likewise,
the State insinuated during closing arguments that Clark was lying about
the victims monikers. While an argument can be made that these
statements were improper, Clark did not object.
Turning to the second step of this analysis, we apply plain-error
review because Clark did not object. Valdez, 124 Nev. at 1190,
196 P.3d at
477. In light of the overwhelming evidence of Clark's guilt, we conclude that
this alleged misconduct did not prejudice Clark's substantial rights.
3C1ark further argues that the State committed prosecutorial
misconduct by objecting to his testimony that one of the victims "came over
to my house . . . [and] he told me he got out of prison . . . [and] was selling
stolen firearms for a living." (Emphasis added.) The district court sustained
the objection and admonished the jury to disregard the statement. Clark
separately argues that striking his testimony barred him from presenting a
defense. Clark did not object, so we review for plain error. Hearsay is
inadmissible without a qualifying exception, see NRS 51.065(1), and Clark
failed to argue on appeal that any hearsay exception applied to his
testimony describing the victim's out-of-court statement. Thus, Clark has
not shown a plain error affecting his substantial rights.
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Fifth, Clark argues that the district court gave erroneous
manslaughter instructions because they failed to inform the jury that the
State has the burden to prove that the victim's death was not the result of
provocation. As Clark did not object, we will review for plain error.
Martinorellan, 131 Nev. at 48, 343 P.3d at 593. In Crawford v. State, we
explained, "[T]he State has the burden of proving beyond a reasonable doubt
that the defendant did not act in the heat of passion caused by the requisite
legal provocation." 121 Nev. 744, 755,
121 P.3d 582, 589 (2005) (emphasis
omitted). We clarified, however, that the district court should provide such
an instruction "upon [the defendant's] request." Id. at 754,
121 P.3d at 589.
Clark maintained that he killed the victim in self-defense and did not
request an instruction setting forth the State's burden to prove the absence
of provocation insofar as manslaughter was at issue. Thus, Clark has not
shown that the manslaughter instructions were plainly erroneous or
affected his substantial rights.
Sixth, Clark contends that the district court gave an erroneous
flight instruction because there was not an unbroken chain of inferences to
show that he fled. He suggests that he left the scene of the crime to get
medical attention for one of the victims. He did not object, so we review for
plain error. Martinorellan v. State, 131 Nev. 43, 48,
343 P.3d 590, 593
(2015). A flight instruction is proper if admitted evidence shows "that the
defendant fled with consciousness of guilt and to evade arrest." Rosky v.
State, 121 Nev. 184, 199,
111 P.3d 690, 700 (2005). Also, "[Might
instructions are valid only if there is . . . a chain of unbroken inferences
from the defendant's behavior to the defendant's guilt of the crime charged."
Jackson v. State, 117 Nev. 116, 121,
17 P.3d 998, 1001 (2001).
Clark's testimony created an evidentiary basis for a flight
instruction because he testified that after he shot the victims, he drove one
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of them to the hospital, left the victim outside, walked away, and checked
into a motel under his friend's name. This evidence would allow a jury to
conclude that Clark fled the scene of the crime consciously aware of his guilt
and to evade arrest. Insofar as Clark argues that he fled only to get medical
attention for one victim, which purportedly broke the chain of inferences
warranting a flight instruction, he does not explain why he left that victim
outside of the hospital and walked away. Thus, Clark has not shown that
the flight instruction was a plain error affecting his substantial rights.
Seventh, Clark alleges that the State presented insufficient
evidence to prove first-degree murder. When reviewing the sufficiency of
the evidence, we determine "whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). "Murder of the first
degree is murder which is perpetrated by means of any kind of willful,
deliberate, and premeditated killing." Byford v. State,
116 Nev. 215, 236,
994 P.2d 700, 714 (2000) (explaining that the State must prove all three
elements beyond a reasonable doubt to convict of first-degree murder); see
also NRS 200.030(1). "Willfulness is the intent to kill."
Id. "Deliberation
is the process of determining upon a course of action to kill . . . ."
Id. "A
deliberate determination may be arrived at in a short period of time."
Id.
"Premeditation is a design, a determination to kill, distinctly formed in the
mind by the time of the killing." Id. at 237,
994 P.2d at 714.
Viewing the evidence in the light most favorable to the State, a
rational trier of fact could have found that Clark acted (1) willfully because
he shot the victim four times, showing that he intended to kill the victim;
(2) deliberately because he fired a shot in the air, paused for several seconds,
and then shot the victim, showing that, after reflection, he chose to kill the
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victim; and (3) with premeditation because he shot the victim in the face,
showing that his actions were designed to kill the victim, rather than
impede the victim's alleged aggression. Thus, the State presented sufficient
evidence for a rational trier of fact to find the essential elements of first-degree murder beyond a reasonable doubt.4
Eighth, Clark argues that the district court violated his
Confrontation Clause rights by admitting a transcript containing a
witness's testimony proffered at the preliminary hearing of Clark's
codefendant. The Confrontation Clause guarantees defendants the right to
confront witnesses that testify against them. U.S. Const. amend. VI. "In
accordance with that right, prior testimony from a witness unavailable at
trial is admissible only if the defendant had 'a prior opportunity for cross-examination."' State v. Eighth Judicial Dist. Court (Baker), 134 Nev. 104,
106, 412 P.3d 18, 21 (2018) (emphasis added) (quoting Crawford v.
Washington, 541 U.S. 36, 68 (2004)). NRS 51.055, which defines
,c
unavailab[ility] as a witness," plainly does not apply when the witness
testifies at trial. Here, Clark was not present at his codefendant's
preliminary hearing, but the witness testified at both the codefendant's
preliminary hearing and Clark's trial. Because the witness testified at
4 C1ark separately argues that insufficient evidence supported his
conviction for the attempted murder of the second victim. "Attempted
murder is the performance of an act or acts which tend, but fail, to kill a
human being, when such acts are done with express malice, namely, with
the deliberate intention unlawfully to kill." Keys v. State, 104 Nev. 736, 740,
766 P.2d 270, 273 (1988). Because Clark shot the second victim three times,
a rational trier of fact could have found that he intended unlawfully to kill
the second victim, rather than to impede the victim's alleged aggression.
Thus, sufficient evidence supported Clark's conviction for attempted
murder.
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Clark's trial and Clark cross-examined the witness, the admission of the
preliminary transcript did not violate Clark's Confrontation Clause rights.
Thus, this argument is meritless.
Clark further argues that the preliminary-hearing transcript°
was inadmissible because written transcripts are not statements, so they
are hearsay and not admissible under the prior-consistent-statements
hearsay exception. However, NRS 51.045(1) provides that written or oral
assertions are statements for the purpose of NRS 51.035, which defines
hearsay. Accordingly, if a written statement in a transcript meets the
criteria of a prior consistent statement, see Runion v. State, 116 Nev. 1041,
1052,
13 P.3d 52, 59 (2000), it may be admissible.° Thus, we conclude that
this argument is meritless.
Ninth, Clark asserts that cumulative error warrants reversal.
"The cumulative effect of errors may violate a defendant's constitutional
right to a fair trial even though errors are harmless individually." Valdez
v. State, 124 Nev. 1172, 1195,
196 P.3d 465, 481 (2008) (internal quotation
marks omitted). This court considers three factors when considering a
claim of cumulative error: "(1) whether the issue of guilt is close, (2) the
quantity and character of the error, and (3) the gravity of the crime
charged." Id. (internal quotation marks omitted).
Here, the district court plainly erred by failing to administer
the oath under NRS 16.030(5). The district court also committed
°The district court admitted only a brief portion of the preliminary
hearing transcript to show the witness's prior consistent statement.
°Clark does not separately argue that the transcript was inadmissible
as a prior consistent statement. Thus, our analysis does not reach the issue
of whether the statements in the transcript were ultimately admissible as
prior consistent statements.
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misconduct by improperly threatening a prospective juror. Finally, the
State committed prosecutorial misconduct during cross-examination and
perhaps closing arguments. Although we find these errors occurred and
Clark was convicted of grave crimes, the overwhelming strength of evidence
presented against Clark supports the verdict and negates the inference that
he was prejudiced. Cf. United States v. Frederick, 78 F.3d 1370, 1381 (9th
Cir. 1996) ([W]here the government's case is weak, a defendant is more
likely to be prejudiced by the effect of cumulative errors."); see also Lutwak
v. United States, 344 U.S. 604, 619 (1953) ("A defendant is entitled to a fair
trial but not a perfect one."). As described above, overwhelming evidence
shows that Clark committed first-degree murder and attempted murder.
Thus, we conclude that cumulative error does not warrant reversal.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Parraguirre
A4Zsg.:A-0
Stiglich
J.
Silver
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cc: Chief Judge, Eighth Judicial District Court
Eighth Judicial District Court, Department 20
James J. Ruggeroli
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
