White (Lee) v. State ( 2013 )

 Insufficient evidence
White contends that the evidence presented at trial was
insufficient to support his convictions. Our review of the record reveals
sufficient evidence, when viewed in the light most favorable to the
prosecution, to establish guilt beyond a reasonable doubt as determined by
a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
The jury could reasonably infer from the evidence presented that White
committed robbery and conspiracy to commit robbery. See NRS 199.480;
NRS 200.380. It is for the jury to determine the weight and credibility to
give conflicting testimony, and the jury's verdict will not be disturbed on
appeal where, as here, substantial evidence supports the verdict. See
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v.
State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Hearsay
White argues that hearsay testimony was erroneously
admitted in two instances and violated the Confrontation Clause of the
Sixth Amendment. The first instance occurred when Officer Lee began to
testify about what he had confirmed when speaking with Sifford. White
objected to the testimony as hearsay, and the district court sustained the
objection. The State clarified with the officer that it was only asking if
anything was confirmed, as opposed to what was confirmed, to which the
officer replied "yes." The State then asked the officer what he did after
speaking with Sifford. The testimony was offered to show how the officer
was affected by Sifford's statements and to explain his actions during the
course of his investigation, and therefore was admissible as non-hearsay.
See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) (holding
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that "[a] statement merely offered to show that the statement was made
and the listener was affected by the statement, and which is not offered to
show the truth of the matter asserted, is admissible as non-hearsay"); see
also Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004) ("The
[Confrontation] Clause also does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.").
The second instance involved the testimony of Detective
Spiotto. The State asked Detective Spiotto if he, in speaking with Sifford,
was able to confirm ownership of the puppy, to which he responded "yes."
The State then asked if Sifford had confirmed Hernandez's story in her
voluntary statement, to which Detective Spiotto answered in the
affirmative. Sifford was not called as a witness at trial. Although White
failed to object at trial, we review for constitutional or plain error. Grey v.
State, 124 Nev. 110, 120, 178 P.3d 154, 161 (2008). "[A]n error that is
plain from a review of the record does not require reversal 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) (internal quotation
marks omitted). Even though the testimony impermissibly introduced
Sifford's statements through Detective Spiotto, White has failed to
demonstrate how his substantial rights were affected. The State
presented ample evidence that White, along with another individual,
removed the puppy from Hernandez's person and against his will. See
State v. Ah Loi, 5 Nev. 99, 101-02 (1869) (holding that the victim of a
robbery is not limited to the real owner of the property taken but also to
individuals who have a general or special right in, or a right to the
possession of, the property taken). Additionally, the State introduced
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documentation that Sifford sold the puppy to Hernandez. We conclude
that this error does not warrant reversal.'
Cross-Examination
White claims that the prosecutor committed misconduct by
forcing him to comment on the credibility of other witnesses during cross-
examination. Prosecutors are prohibited from "asking a defendant
whether other witnesses have lied or from goading a defendant to accuse
other witnesses of lying, except where the defendant during direct
examination has directly challenged the truthfulness of those witnesses."
Daniel v. State, 119 Nev. 498, 519, 78 P.3d 890, 904 (2003). The rule does
not prohibit the prosecutor from asking a defendant whether the
testimony of other witnesses is inconsistent with that of the defendant's.
Id. We conclude that the prosecutor did not violate the rule announced in
Daniel when he questioned White about his version of events and clarified
the discrepancies between his version and the testimony of other
witnesses. However, when the prosecutor violated the rule and asked
White whether two prior witnesses lied, counsel objected and the district
court properly sustained the objection. Accordingly, we discern no error.
White further argues that the prosecutor's questions created a
false dichotomy that belief in White's version of events required a rejection
of the other witnesses' versions. Additionally, White claims that the
prosecutor, through his questions, injected his personal belief in the
"To the extent that White argues that the detective's testimony
impermissibly vouched for Hernandez's story, we discern no plain error.
See Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005)
(reviewing instances of vouching for plain error where defendant fails to
object at trial).
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veracity of Hernandez's story and the falsity of White's. We discern no
misconduct by the prosecutor in attempting to clarify the inconsistencies
between the different versions and accordingly conclude that there was no
plain error.
Closing argument
White alleges that the prosecutor committed misconduct by
impermissibly shifting the burden of proof to the defense when, in rebuttal
summation, the prosecutor argued that White had failed to present
corroborative evidence for his version of events. As no objection was made
at trial, we review for plain error. Valdez, 124 Nev. at 1190, 196 P.3d at
477. "[IA is generally improper for a prosecutor to comment on the
defense's failure to produce evidence or call witnesses as such comment
impermissibly shifts the burden of proof to the defense." Whitney v. State,
112 Nev. 499, 502, 915 P.2d 881, 883 (1996). However, if the prosecutor
does not comment on the defendant's decision not to testify, it is
permissible for the prosecutor to comment on the fact that the defendant
failed to substantiate his theory of the case with supporting evidence.
Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 513 (2001); see also
Leonard v. State, 117 Nev. 53, 81, 17 P.3d 397, 415 (2001). We conclude
that the prosecutor's statements remarked on the state of the evidence as
presented to the jury and attempted to demonstrate that White did not
substantiate his version of events, and therefore did not constitute
misconduct.
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White also claims that the prosecutor committed misconduct
when he used a pizza analogy 2 and when he referred to part of White's
testimony as a red herring, thereby disparaging White's defense. We
review for plain error as White did not object at trial. Valdez, 124 Nev. at
1190, 196 P.3d at 477. We have repeatedly warned prosecutors not to
"disparage legitimate defense tactics." See, e.g., Pickworth v. State, 95
Nev. 547, 550, 598 P.2d 626, 627 (1979) (holding that the State's
characterization of the defendant's theory of the case as a red herring
constituted misconduct); Barron v. State, 105 Nev. 767, 780, 783 P.2d 444,
452 (1989). "Disparaging comments have absolutely no place in a
courtroom, and clearly constitute misconduct." McGuire v. State, 100 Nev.
153, 157, 677 P.2d 1060, 1064 (1984). While the use of the pizza analogy
may not have been improper because the prosecutor, throughout the
analogy, stated the evidence that would allow the jury to infer that
White's version of events was incredible, see Ross v. State, 106 Nev. 924,
927, 803 P.2d 1104, 1106 (1990), referring to White's testimony as a red
herring was plain error. However, considering the strength of the
evidence against him, we conclude that the error did not cause actual
prejudice or a miscarriage of justice and relief is not warranted.
Jury instructions
White argues that the district court erred by refusing to give
an instruction on disorderly conduct. The district court enjoys broad
2 The prosecutor compared the state of the evidence to a pizza,
arguing that the jury should not "eat around" or "pick off' certain toppings
and likening the toppings to inconsistencies between White's version of
events and the testimony of other witnesses.
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discretion in settling jury instructions, and we review its decision for an
abuse of that discretion or judicial error. Crawford v. State, 121 Nev. 744,
748, 121 P.3d 582, 585 (2005). While a defendant is entitled to a jury
instruction on his theory of the case if some evidence supports it, Harris v.
State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990), we have held that
a defendant is not entitled to an instruction on lesser-related offenses,
Peck v. State, 116 Nev. 840, 845, 7 P.3d 470, 473 (2000), overruled on other
grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006), nor is a
defendant entitled to instructions that are "misleading, inaccurate or
duplicitous," Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005).
An instruction on the crime of disorderly conduct, a lesser-related offense
as argued by White, would be misleading and inaccurate because it would
incorrectly suggest that the jury could find him guilty of a crime that was
neither charged nor tried by the State. Accordingly, we conclude that the
district court did not err by refusing to give the proffered instruction. 3
White also claims that the district court erred by refusing to
proffer his "two reasonable interpretations" jury instruction. We review
for an abuse of discretion or judicial error. Crawford, 121 Nev. at 748, 121
P.3d at 585. When a jury has been properly instructed on reasonable
doubt, it is not error to refuse to give an additional instruction on the
issue. Hall v. State, 89 Nev. 366, 371, 513 P.2d 1244, 1247-48 (1973);
Holland v. United States, 348 U.S. 121, 139-40 (1954). We conclude that
the jury was properly instructed on reasonable doubt and that the district
court did not err by refusing to give the proposed instruction.
3 Weare not convinced by White's argument that we should break
from our holding in Peck.
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Cumulative error
White argues that cumulative error precluded a fair trial in
violation of his Fifth Amendment rights and warrants reversal of his
convictions. Having balanced the relevant factors, see Valdez, 124 Nev. at
1195, 196 P.3d at 481 (setting forth the relevant factors to consider when
deciding whether cumulative error warrants reversal), we conclude that
the cumulative effect of the errors did not deprive White of a fair trial and
does not warrant reversal.
Having considered White's claims and concluded that no relief
is warranted, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
J.
Douglas
J.
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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