Wilcock (Patrick) v. State ( 2015 )

 testimony and evidence. He also argues that dismissal is mandated due to
the violation of his right to a speedy trial; there was insufficient evidence
to support the convictions for first-degree murder, burglary, and robbery;
the district court erroneously instructed the jury on robbery and the
presumption of innocence; and the convictions for possession of stolen
property violate the Double Jeopardy Clause. Wilcock contends that these
errors, cumulatively, are sufficient to warrant a new trial.
Todd House's testimony
Wilcock asserts that the district court erred when it denied his
motion to exclude Todd House's testimony and subsequently allowed
House to testify at trial. According to Wilcock, the district court should
have excluded House's testimony based on the attorney-client privilege,
because (1) House and Wilcock had an attorney-client relationship, (2)
Wilcock reasonably believed that he was consulting with an attorney, and
(3) Wilcock sought and received legal services from House.
We review de novo a lower court's decision regarding the
proper scope of the attorney-client privilege. Las Vegas Sands Corp. v.
Eighth Judicial Dist. Court, 130 Nev. Adv. Op. 69, 331 P.3d 905, 910
(2014).
Here, both parties acknowledge that House is not an attorney
authorized to practice law. Accordingly, the attorney-client privilege could
only protect confidential communications between Wilcock and House if
Wilcock held a reasonable belief that House was an attorney authorized to
practice law. See NRS 49.065; NRS 49.095.
Essentially, Wilcock argues that he believed that House was
an attorney because House so informed him. However, this argument only
shows that Wilcock believed that House was an attorney, not that such a
belief was reasonable. See Strong v. State, 773 S.W.2d 543, 549 (Tex.
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Crim. App. 1989) (holding that invoking the attorney-client privilege
"requires more than a mere belief that the individual consulted is a
licensed attorney; that belief must be 'reasonable").
To determine whether Wilcock's belief was reasonable, we
would need evidence of the characteristics of an attorney-client
relationship. None exist. Wilcock failed to support his assertion with any
evidence that, for example, House informed Wilcock that he had attended
a certain law school, that he was licensed in a certain jurisdiction, or that
he practiced in a certain area of law. Wilcock's contention that House
provided legal services is also belied by the record. House testified that he
never reviewed any of the documents or pleadings in Wilcock's case.
Moreover, House's description of the conversations between
himself and Wilcock (wherein Wilcock made hypothetical statements and
spoke in the third person) similarly demonstrate that Wilcock did not
reasonably believe that an attorney-client relationship existed. Lastly,
Wilcock could not have reasonably believed that House could have
represented him because at the time of their conversations House was
incarcerated at CCDC awaiting sentencing for felony convictions.
We therefore conclude that Wilcock failed to prove that he
reasonably believed that House was an attorney and, consequently, the
attorney-client privilege does not protect Wilcock's communications with
House. Accordingly, we conclude that the district court properly admitted
House's testimony at trial.
Wilcock additionally argues that the court erred by failing to
conduct an evidentiary hearing before denying his motion to exclude
House's testimony. Wilcock did not request an evidentiary hearing or
object to the district court's denial of his motion without having conducted
an evidentiary hearing. Therefore, we review for plain error. See
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Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122, 1129 (2009).
While the Eighth Judicial District Court Rules allow a criminal defendant
to file motions in limirte, see EDCR 3.28, evidentiary hearings are not
required as a matter of course, Cohen v. United States, 378 F.2d 751, 760
(9th Cir. 1967). At the hearing on Wilcock's motion, the district court
determined that even if the district court accepted Wilcock's assertions as
true, his mistaken belief was not reasonable. Therefore, because the court
found that there was not a dispute regarding any fact underlying its
decision, we conclude that the court was not required to conduct an
evidentiary hearing.
Admitted evidence
Wilcock argues that the district court erred by admitting
certain evidence, including words from his cellular phone's user text
dictionary and the tables of contents from several books Wilcock owned.
A district court's decision to admit evidence is reviewed for an
abuse of discretion. See Holmes v. State, 129 Nev. Adv. Op. 59, 306 P.3d
415, 418 (2013). The district court has considerable discretion to admit
evidence and its determination will only be reversed if it is manifestly
wrong. Id.
The dynamic text dictionary from Wilcock's cellular phone
Wilcock argues that the words from the dynamic text
dictionary of his cellular phone, without context, were irrelevant, unfairly
prejudicial, and invited speculation.
Because the State claims that Wilcock entered the words into
the phone, and thereby the phone's dictionary, it must provide
authentication that Wilcock authored the words typed into the phone. See
NRS 52.015. In Rodriguez v. State, 128 Nev. Adv. Op. 14, 273 P.3d 845,
849 (2012), we held that "when there has been an objection to
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admissibility of a [cellular] text message, the proponent . . . [must] provide
sufficient direct or circumstantial corroborating evidence of authorship in
order to authenticate the text message as a condition precedent to its
admission" (citations omitted). We based our conclusion on the reasoning
that 'cellular telephones are not always exclusively used by the person to
whom the phone number is assigned.' . . . Thus, some additional evidence,
'which tends to corroborate the identity of the sender, is required." Id.
(quoting Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011).
In this case, the authorship of the phone's dictionary listings is
as unclear as the authorship of the text messages in Rodriguez. The State
did not present any evidence that Wilcock was the person who entered the
words into his phone; it merely established that the words in the
dictionary were at one time entered into the phone by "the user." But the
State did not establish the user's identity for any given entry. Likewise,
the State did not offer the circumstantial evidence suggested in Rodriguez,
such as "the context and content of the text." Id. at 849. We therefore
conclude that the district court abused its discretion by admitting this
evidence without sufficient authentication.
Nevertheless, we conclude that the district court's error was
harmless beyond a reasonable doubt. See Cortinas v. State, 124 Nev.
1013, 1023-24, 195 P.3d 315, 322 (2008) (holding that constitutional trial
errors occurring during the presentation of the case to the jury may be
reviewed for harmless error). The words were used to show that Wilcock
may have researched murder methods on his phone. This proof could just
as easily have been established by the books found in Wilcock's home or
the books on his computers. Therefore, the trial court's error does not
merit reversal. See id. 1027, 195 P.3d 324 (error is harmless where "it
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appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained" (internal quotations omitted)).
The Anarchist Cookbook and The CIA Book of Dirty Tricks
Wilcock argues that the court violated his rights under the
First, Sixth, and Fourteenth Amendments when it admitted portions of
The Anarchist Cookbook and The CIA Book of Dirty Tricks. He contends
that the books contain prejudicial and irrelevant material. Wilcock also
asserts that the prosecution used the books as improper character
evidence.
Generally, evidence is admissible if it is relevant. NRS
48.025. Evidence is relevant if 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.
However, relevant evidence "is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury." NRS 48.035(1).
We have previously held that books that are relevant are
admissible. See Surianello v. State, 92 Nev. 492, 502, 553 P.2d 942, 948-
49 (1976) (upholding admissibility of one book due to its relevance in
establishing defendant's proximity to crime scene, but relevance of
another book questionable when used to show motive or intent to commit
certain acts). Further, other courts have held that The Anarchist
Cookbook is admissible to show that a defendant was capable of
committing the crime at issue. See, e.g., People v. Mertz, 842 N.E.2d 618,
654 (Ill. 2005) ("The defendant's possession of Pipe and Fire Bomb Designs
and The Anarchist's Cookbook is sufficiently related to defendant's act of
arson to support admission."); State v. Adamson, 665 P.2d 972, 982 (Ariz.
1983). And the Ninth Circuit, in United States v. Ellis, 147 F.3d 1131,
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1135-36 (9th Cir. 1998), noted that The Anarchist Cookbook may be
relevant to show intent, specifically, intended use of a weapon.
Here, giving due deference to the district court, the books
appear to be relevant to whether Wilcock possessed the capability to start
the fire in LaCella's condominium and to cover up his acts, as the books
contain information on how to start fires without getting caught.
Although the books contain other content that may be prejudicial, the
books were not admitted into evidence in their entirety; only the tables of
contents were admitted. In that sense, this case is similar to Holmes, 129
Nev. Adv. Op. 59, 306 P.3d at 420, where this court stressed that the
admission of only a single, relevant stanza of a song, with a proper
limiting instruction, alleviated the prejudice that could have been caused
by admitting the entire song. Therefore, we conclude that the district
court did not abuse its discretion by admitting portions of the books.
Other issues
We have reviewed Wilcock's remaining claims and conclude
that none of them warrant reversal.
Wilcock claims that the district court erred in denying his
motion for dismissal due to a violation of his right to a speedy trial. We
conclude that dismissal was not warranted because a five-month delay due
to a congested court calendar is not presumptively prejudicial and Wilcock
failed to demonstrate the type of prejudice that the rule is intended to
prevent. See Barker v. Wingo, 407 U.S. 514, 530-32 (1972) (discussing the
necessary considerations in a claim of violation of the right to speedy
trial).
Wilcock also asserts that insufficient evidence existed to
support his convictions for first-degree murder, burglary, and robbery.
Wilcock's argument is actually an argument against the jury's
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interpretation of the evidence and the jury's inferences based upon the
evidence. Because the jury may make inferences based upon the evidence,
Wilcock's argument lacks merit. See State v. Green, 81 Nev. 173, 176, 400
P.2d 766, 767 (1965).
Wilcock next argues that the district court instructed the jury
that robbery was a general intent crime when robbery should instead be a
specific intent crime. Therefore, Wilcock argues the district court's
instruction was erroneous. Wilcock thus urges this court to overrule
Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981), disapproved of on
other grounds by Talancon v. State, 102 Nev. 294, 301, 721 P.2d 764, 768-
69 (1986), and its progeny. Because Wilcock does not present any novel
argument to persuade us that we should overturn Litteral, and because
the district court properly instructed the jury, we affirm the trial court's
instruction.
Further, Wilcock also objected to the court's presumption of
innocence instruction because the jury was not instructed as to which
elements were material. We have steadfastly affirmed the instruction
language that the district court used in the instant case for the
presumption of innocence, see, e.g., Nunnery v. State, 127 Nev. Adv, Op.
69, 263 P.3d 235, 259-60 (2011), and we therefore conclude that the
district court did not abuse its discretion in its instruction.
Wilcock additionally asserts that his "rights to due process of
law, equal protection, a fair trial and right against Double Jeopardy were
violated by the district court's imposition of sentences for two counts of
possession of stolen property." Because the district court convicted and
sentenced Wilcock for robbery, he claims that he should not be convicted
and sentenced for possessing the very same property. A conviction for
robbery requires proof of force or the threat of force, which is not required
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for a conviction for possession of stolen property. See NRS 200.380; NRS
205.275; see also Barton v. State, 117 Nev. 686, 692-94, 30 P.3d 1103,
1107-08 (2001) (holding that this court uses the test from Blockburger v.
United States, 284 U.S. 299 (1932), to determine whether separate
offenses exist for double jeopardy purposes), overruled on other grounds by
Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006). Thus, because the
offenses of robbery and possession of stolen property constitute separate
offenses, the charges against Wilcock did not violate double jeopardy. See
Jackson v. State, 128 Nev. Adv. Op. 55, 291 P.3d 1274, 1280 (2012) (noting
that offenses with separate elements are considered separate offenses and
do not invoke double jeopardy's protection from multiple punishments for
the "same offense").
Lastly, Wilcock claims that he is entitled to a new trial based
upon the cumulative effect of several trial errors. However, we conclude
that the only error at trial was the admission of the dynamic text
dictionary from Wilcock's cellular phone, which we found to be harmless.
Therefore, we conclude that Wilcock is not entitled to a new trial.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
42 4-xa—ato
Parraguirre
J.
c—D--ti-<, hi J.
Douglas
, J.
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cc: Hon. Douglas W. Herndon, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth Judicial District Court Clerk
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