Fondo (Steven) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
STEVEN FONDO, No. 65277
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JAN 1 5 2016
ulE
OEPUT
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of one count each of burglary, robbery, first-degree
kidnapping, and unlawful taking of a motor vehicle. Eighth Judicial
District Court, Clark County; Douglas W. Herndon, Judge.
Appellant Steven Fondo first contends that the district court
erred when it excluded his prescription-medication records from trial,
admitted his statements to the victim, and admitted a recording of a
phone call he placed from jail. "We review a district court's decision to
admit or exclude evidence for an abuse of discretion." Mclellan v. State,
124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Evidence is relevant—and
thus generally admissible, NRS 48.025(1)—when it has "any tendency to
make the existence of any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence."
NRS 48.015.
First, Fondo argues that the district court violated his rights
to due process and a fair trial by excluding his prescription-medication
records, because the records went to his anticipated defense of voluntary
intoxication. "[V]oluntary intoxication may negate specific intent," Nevius
TX State, 101 Nev. 238, 249, 699 P.2d 1053, 1060 (1985), and a defendant is
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entitled to admit evidence in support of his defense so long as that
evidence comports with the rules of evidence, Rose u. State, 123 Nev. 194,
205 n.18, 163 P.3d 408, 416 n.18 (2007). The mere fact that Fondo was
prescribed medications does not make it any more or less probable that he
was able to form the intent necessary to be convicted of the specific-intent
crimes with which he was charged. To be relevant, Fondo would have also
needed to introduce evidence that his medications impaired his ability to
form intent, that he had taken the medications, and that he was suffering
the aforementioned effects at the time of the crimes. Cf. Nevius, 101 Nev.
at 249, 699 P.2d at 1060 (holding it was not error to refuse a voluntary-
intoxication jury instruction because there was no evidence of intoxication
at the time of the crime). Nor did the district court abuse its discretion in
not allowing Fondo's grandmother to lay the necessary foundation,
because the offer of proof did not include any claim that the grandmother
could testify to having observed Fondo ingest the medications and the
subsequent effects thereof or connect them to Fondo's state of mind at the
time he committed the charged crimes.
Second, Fondo argues that the district court abused its
discretion in admitting statements he made to the victim because they
were irrelevant and the statement regarding having shot someone
constituted evidence of a prior bad act without the benefit of a hearing
pursuant to Petrocelli u. State, 101 Nev. 46, 692 P.2d 503 (1985), or a
limiting instruction pursuant to Tavares v. State, 117 Nev. 725, 30 P.3d
1128 (2001). While the victim was driving at what he believed to be
gunpoint, Fondo told him, "I shot somebody yesterday. I've got nothing to
lose. I'm suicidal." The statements were relevant to and probative of the
robbery charge, an element of which is that Fondo took property "by
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means of force or violence or fear of injury." NRS 200.380(1). Defense
counsel's concession at trial that Fondo was guilty of robbery did not
render the evidence irrelevant, because the concession did not relieve the
State of its burden to prove every element beyond a reasonable doubt.
Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395, 397-98
(2013). Further, Fondo's statement that he shot someone was neither
unfairly prejudicial nor a prior bad act as the statement was not offered
"to prove the character of a person in order to show that the person acted
in conformity therewith." NRS 48.045(2). Accordingly, Fondo was not
entitled to a Pet rocelli hearing or a Tavares instruction.
Third, Fondo argues that the district court should not have
admitted a phone call that Fondo made from jail and/or should have
redacted from it all references to the Clark County Detention Center
(CCDC), because the call's contents and jail reference were more
prejudicial than probative. "[E]vidence is not admissible if its probative
value is substantially outweighed by the danger of unfair prejudice." NRS
48.035(1). During the call, Fondo said that he needed money and was
"broke," "on the street," and "getting desperate." The conversation was
probative of Fondo's motive and intent, and Fondo has not demonstrated
that it was unfairly prejudicial. Further, the call contained no reference to
the CCDC, jail, or anything else that would have indicated Fondo was
incarcerated. But even if it had, any error would have been harmless
beyond a reasonable doubt as there was overwhelming evidence of Fondo's
guilt. See Haywood v. State, 107 Nev. 285, 287-88, 809 P.2d 1272, 1273
(1991).
Fondo next contends that the district court erred in denying
his NRS 175.381(1) motion to advise the jury to acquit him of the
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kidnapping charge as there was insufficient evidence to support it. We
review the district court's decision for an abuse of discretion. Milton v.
State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995). A defendant may be
convicted of both robbery and kidnapping arising out of the same course of
events where any movement or restraint necessary for kidnapping is
"substantially in excess of that necessary to" complete the robbery.
Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176, 181 (2006). Sufficient
evidence supports a conviction when, "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." Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380
(1998) (internal quotation marks omitted). When Fondo brandished what
the victim believed to be a gun, the victim told Fondo to take the cab and
leave him behind. Fondo instead ordered the victim to drive, and after
seven minutes, he ordered the victim to pull over and get out of the cab, at
which point Fondo drove off in the cab. Any rational juror could find that
forcing the victim to drive for several more minutes before finally taking
the offered cab was substantially in excess of any movement necessary to
complete the robbery. We therefore conclude the district court did not
abuse its discretion in refusing to give the advisory verdict.
Fondo next contends that the district court erred in finding
that he voluntarily waived his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966). The voluntariness of Fondo's waiver presents mixed
questions of law and fact and is thus subject to de novo review. Mendoza,
122 Nev. at 276, 130 P.3d at 181. A waiver is voluntary where, "under the
totality of the circumstances, [it] was the product of a free and deliberate
choice rather than coercion or improper inducement." Id. at 276, 130 P.3d
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at 181-82. Fondo alleges no coercion or improper inducement, but instead
argues that he was so intoxicated, his waiver was involuntary. Police
officers testified at trial that Fondo exhibited no signs of intoxication:
Fondo was not driving erratically, and after an initial delay in exiting the
cab, Fondo followed all instructions, including walking backwards and
kneeling with his hands in the air. An officer further testified that after
waiving his Miranda rights, Fondo provided clear and accurate answers
when asked his name, birthdate, and social security number; he recited a
story about having borrowed the cab from a friend; and he repeated the
story after the officer broke off the interview to speak with the victim. The
totality of the circumstances indicate that Fondo's waiver of Miranda
rights was voluntary.
Fondo next contends that the district court erred in finding
that statements he made to the arresting officer were voluntary. As with
the waiver, the voluntariness of Fondo's statements present mixed
questions of law and fact and are thus subject to de novo review. Rosky v.
State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). Fondo again argues
that he was so intoxicated, his statements were involuntary. As discussed
above, the totality of the circumstances indicate that Fondo was not
intoxicated. Further, upon consideration of the voluntariness factors
outlined in Rosky, Fondo has failed to demonstrate that his will was
overborne such that his statement was involuntary. Id. at 193-94, 111
P.3d at 696. Fondo was not youthful, he had been Mirandized, the
detention was not lengthy and he was not subject to repeated or prolonged
questioning, he had not alleged any deprivation of food or sleep, and he
had prior experience with law enforcement. See id. We therefore conclude
the district court did not err in admitting his statements.
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Fondo next contends that the district court erred in giving
certain jury instructions and in refusing to give others. "The 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). Whether
an instruction was an accurate statement of law is reviewed de novo.
Davis v. State, 130 Nev., Adv. Op. 16, 321 P.3d 867, 871 (2014).
First, Fondo argues that the district court abused its
discretion in instructing the jury on burglary (nos. 6-9) and that first-
degree kidnapping does not require the completion of robbery (no. 16)
because they were unnecessary and confusing in light of defense counsel's
concession that Fondo was guilty of burglary and robbery. The
instructions were necessary because the concession did not relieve the
State of its burden of proof. See Armenta-Carpio, 129 Nev., Adv. Op. 54,
306 P.3d at 397-98. Further, he offers no explanation for his claim that
instruction nos. 6-9 were duplicative, where no other burglary instructions
were given. "It is appellant's responsibility to present relevant authority
and cogent argument; issues not so presented need not be addressed by
this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
Second, Fondo argues that the district court abused its
discretion in rejecting his proposed instruction defining beyond a
reasonable doubt, which was the same as that given (no. 25) but with
additional language taken directly from this court's decision in Randolph
v. State, 117 Nev. 970, 980-81, 36 P.3d 424, 431 (2001). We have
recognized that any instruction beyond the statutory definition, which was
given here, is not permissible. See Garcia v. State, 121 Nev. 327, 340, 113
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P.3d 836, 844 (2005), holding modified on other grounds by Mendoza, 122
Nev. at 274, 130 P.3d at 180.
Third, Fondo argues that the district court abused its
discretion in its instruction on circumstantial evidence (no. 26) and in
refusing Fondo's version of it as well as an instruction for when there are
two reasonable interpretations of evidence. Fondo has not alleged that the
circumstantial-evidence instruction given was an incorrect statement of
law, and he acknowledges that this court has held that his proposed
instructions are permissible but not required to be given where, as here,
the jury was properly instructed on reasonable doubt. See Deveroux v.
State, 96 Nev. 388, 391-92, 610 P.2d 722, 724 (1980); Bails v. State, 92
Nev. 95, 96-97, 545 P.2d 1155, 1155-56 (1976). Further, Fondo's reliance
on Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005) is misplaced.
Crawford does not, as Fondo claims, hold that a defense instruction may
not be refused just because "other instructions cover similar material," but
rather recognizes that they should not be refused "on the ground that the
legal principle it provides may be inferred from other instructions." Id. at
754, 121 P.3d at 588 (emphasis added).
Fourth, Fondo argues that the district court abused its
discretion in rejecting his proposed instruction regarding witness
credibility in favor of the State's (no. 27) where Fondo's version was more
"expansive." "Mt is not error to refuse to give an instruction when the law
encompassed therein is substantially covered by another instruction given
to the jury." Ford v. State, 99 Nev. 209, 211, 660 P.2d 992, 993 (1983).
Fondo's version contained more examples of what the jury could consider,
but it was substantially covered by the instruction given.
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Fifth, Fondo argues that the district court abused its
discretion when it instructed the jurors that they must use their common
sense and judgment and that the district court diluted the State's burden
of proof by requiring jurors to look to personal experiences as well as the
evidence (no. 28). Fondo misstates the instruction given. The jurors were
instructed that they were "to consider only the evidence in the case in
reaching a verdict," (emphasis added) but that they "may draw reasonable
inferences from the evidence which [they] feel are justified in the light of
common experience." Fondo acknowledges that this court has approved of
the law as stated in the instruction given. See Meyer v. State, 119 Nev.
554, 568-72, 80 P.3d 447, 457-60 (2003). We decline Fondo's suggestion to
reconsider Meyer.
Finally, Fondo argues that the district court abused its
discretion in instructing the jury on consent as a defense to kidnapping,
because the instruction was irrelevant. Fondo's argument is a bare claim
devoid of any analysis. Accordingly, we do not address it. See Maresca,
103 Nev. at 673, 748 P.2d at 6.
Fondo next contends that the district court erred in refusing to
prohibit the State from mentioning Fondo's prior convictions in its post-
trial communications with jurors, because the knowledge could potentially
taint future jury pools. In essence, Fondo seeks declaratory relief for the
benefit of future defendants. Where the Legislature has not provided a
statutory right to seek relief, this court has long required "an actual
justiciable controversy as a predicate to judicial relief." Stockmeier v.
Nevada Dep't of Corr. Psychological Review Panel, 122 Nev. 385, 393, 135
P.3d 220, 225 (2006) (internal quotation marks omitted), abrogated on
other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224,
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181 P.3d 670 (2008). To demonstrate an actual controversy, a litigant
must satisfy the "standing requirements of injury, causation, and
redressability." Id. at 392, 135 P.3d 225 (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992)). Fondo fails to demonstrate standing as he
has failed to demonstrate that he has suffered an actual injury from the
Stat's post-trial discussion or that a favorable ruling would redress any
injury. See Lujan, 504 U.S. at 560-61. In his reply, Fonda argues that
courts have implicitly recognized that criminal defendants have inherent
standing to challenge such communications. However, the cases Fondo
relies upon are inapposite as in each case, the defendant had standing by
virtue of some other mechanism than simply being the defendant. See
United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985) (on appeal from
convictions in a second trial after the first trial resulted in a hung jury and
discussing whether the government should have been able to discuss trial
results with the first trial's jury in order to prepare for the second trial);
Haeberle v. Texas Int'l Airlines, 739 F.2d 1019, 1021-22 (5th Cir. 1984) (on
appeal from order denying attorney requests to interview jurors); United
States v. Moten, 582 F.2d 654, 665-67 (2d Cir. 1978) (on appeal from ruling
on discovery motions regarding a claim of juror misconduct); Miller v.
United States, 403 F.2d 77, 82 (2d Cir. 1968) (on appeal from an order
prohibiting defendant from questioning the jurors who convicted him);
Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir. 1948) (on appeal
from a motion for new trial based on juror misconduct); Commonwealth v.
Fidler, 385 N.E.2d 513, 520 (Mass. 1979) (on appeal from denial of a
motion for new trial based on juror misconduct); United States v. Narciso,
446 F. Supp. 252, 325 (E.D. Mich. 1977) (on appeal from rulings on
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discovery motions where government attorneys admitted they had spoken
extensively with jurors).
Fondo next contends that the district court erred in denying
his motion to record all bench conferences. He acknowledges that we
recently held that it is sufficient to allow counsel the opportunity to make
a record of the bench conference after the fact. See Preciado v. State, 130
Nev., Adv. Op. 6, 318 P.3d 176, 178 (2014). We decline Fondo's suggestion
to reconsider Preciado. Further, Fondo does not allege that any error
occurred in any bench conference or that he was prejudiced by the lack of
recording.
Finally, Fondo contends that cumulative error entitles him to
relief. Fondo has not identified any error and, accordingly, there are no
errors to cumulate, and Fondo has failed to demonstrate that he is entitled
to relief.
Having considered Fondo's claims and concluding they are
without merit, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
J. J.
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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