Wells, Jr (Elvis) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ELVIS WELLS, JR., No. 68242
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
MAY 0 9 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit robbery, conspiracy to commit
burglary, burglary while in possession of a firearm, assault with a deadly
weapon, and attempted robbery with use of a deadly weapon. Eighth
Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
Appellant contends that the district court erred when it
admitted into evidence a still photograph taken from a surveillance video
after the court had previously excluded the surveillance video because of
its late disclosure. Appellant specifically argues that the statement made
by his codefendant's counsel in her opening statement could not open the
door to the inadmissible evidence because opening statements are not
evidence. Because the opening statement may have cast doubt as to
whether a gun was pointed in a victim's face, the district court did not
abuse its discretion in admitting a still photograph from the surveillance
video that demonstrated a gun was pointed in the victim's face. See
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ("We review
a district court's decision to admit or exclude evidence for an abuse of
discretion."); see also Cordova v. State, 116 Nev. 664, 670, 6 P.3d 481, 485
(2000) (explaining that a defendant may open the door, permitting the
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State to introduce evidence that it could not otherwise offer); .Bergeron v.
State, 913 So. 2d 997, 1002 (Miss. Ct. App. 2005) (providing that "the
defendant may 'open the door' by mentioning during opening statements
the evidence which they are seeking to be excluded from the prosecution's
case-in-chief, thus giving the prosecution the opportunity to incorporate
the evidence into its case-in-chief').
Appellant also argues that the district court abused its
discretion by giving the jury a flight instruction over his objection because
there was insufficient evidence of flight. "[A] district court may properly
give a flight instruction if the State presents evidence of flight and the
record supports the conclusion that the defendant fled with consciousness
of guilt and to evade arrest." Bosky v. State, 121 Nev. 184, 199, 111 P.3d
690, 699-700 (2005). While we review the district court's decision to issue
a jury instruction for an abuse of discretion, Ouanbengboune v. State, 125
Nev. 763, 774, 220 P.3d 1122, 1129 (2009), "[b]ecause of the possibility of
undue influence by [a flight] instruction, this court carefully scrutinizes
the record to determine if the evidence actually warranted the
instruction," Weber v. State, 121 Nev. 554, 582, 119 P.3d 107, 126 (2005).
The record demonstrates that there was evidence sufficient to
support at least an inference that appellant fled. Evidence was admitted
that appellant drove away from the area where the crime had occurred
without turning on his headlights. The officer who pulled appellant over
testified that he had to prompt appellant to pull over using his
loudspeaker multiple times before appellant complied, and that while
appellant had opportunities to pull over he took a longer-than-normal time
to do so. Additionally, appellant's codefendant was riding in the backseat,
which had access to the trunk that could not be opened from the outside,
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and evidence of the crime, including the gun, was located in the trunk of
the car. Therefore, the district court did not abuse its discretion by issuing
the flight instruction to the jury. Ouanbengboune, 125 Nev. at 774, 220
P.3d at 1129. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Ritn Satt J.
Hardesty..
Saitta
i) a.
J.
cc: Hon. Jessie Elizabeth Walsh, District Judge
Law Office of Benjamin Nadig, Chtd.
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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