Samuell (Neill) v. State ( 2014 )

 district court's inquiry into request, and the timeliness of the defendant's
motion. Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004).
Our review of the record shows that the conflict between
appointed counsel and Samuell primarily stemmed from Samuell
repeatedly insisting on controlling the daily conduct of his defense and
refusing to cooperate with counsel based on his belief that counsel was
deficient because counsel declined to implement the tactics that he
wanted.' The defendant may not base a request to substitute court-
appointed counsel on a refusal to cooperate with counsel Gallego u. State,
117 Nev. 348, 363, 23 P.3d 227, 237 (2001), abrogated on other grounds by
Nunnery v. State, 127 Nev. , 263 P.3d 235 (2011). Nor can a
disagreement over tactical decisions give rise to an irreconcilable conflict
considering the general rule that counsel alone is entrusted with tactical
decisions concerning the day-to-day conduct of the defense. Cf. Rhyne v.
State, 118 Nev. 1, 8, 38 P.3d 163, 167 (2002) (recognizing the rule that the
trial lawyer alone is entrusted with tactical decisions concerning the day-
to-day conduct of the defense). We therefore agree with the district court's
assessment that Samuell's allegations did not reflect a legitimate conflict.
The record also shows that the district court provided an adequate inquiry
into Samuell's request when it held a hearing during which it considered
his memorandum alleging deficiencies in his representation and
statements from appointed counsel. Despite having timely sought
substitute counsel, we conclude that Samuell has not shown that good
cause mandated appointing substitute counsel and, accordingly, that the
1 Thedistrict court did not find Samuell's allegation that appointed
counsel used racial epithets credible.
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district court did not abuse its discretion in declining to substitute counsel:
Young, 120 Nev. at 963, 102 P.3d at 576. 2
Samuell argues that it was an abuse of discretion for the
district court to permit the State to join charges as to each victim because
the evidence would not have been cross-admissible and the State would
not be able to say that the offenses were committed in same way against
both victims. We disagree.
The district court's decision to join counts is reviewed for an
abuse of discretion. Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 589-
90 (2003). The appellant bears a heavy burden of showing that the district
court abused its discretion, and misjoinder warrants reversal only if the
joinder has a "substantial and injurious effect or influence in determining
the jury's verdict." Id. (quotation marks omitted). NRS 173.115(2)
permits joinder of two or more offenses where the offenses are based on
"two or more acts or transactions connected together or constituting parts
of a common scheme or plan." Two crimes are "connected together" if
evidence of either crime would be admissible in a separate trial for the
other. Weber v. State, 121 Nev. 554, 573, 119 P.3d 107, 120 (2005). A
2After
the district court denied the motion to substitute counsel,
Samuell sought to represent himself. The district court granted that
request after a Faretta canvass. Samuell now suggests that he was highly
prejudiced by his self-representation. He is not entitled to relief, as he
was properly canvassed and counseled about the risks of representing
himself. See Faretta v. California, 422 U.S. 806, 835-36 (1975); Arajakis
State, 108 Nev. 976, 980, 843 P.2d 800, 803 (1992). Samuell persisted
despite the district court's strong warning and is accordingly responsible
for the consequences of his decision. See Faretta, 422 U.S. at 834(recognizing that "although he may conduct his own defense ultimately to
his own detriment, his choice must be honored").
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common scheme" is a "design or plan formed to accomplish some
purpose," and a "plan" is a "method of design or action, procedure, or
arrangement for accomplishment of a particular act or object." Id.(quotation marks omitted).
In this case, joinder can be sustained on either ground set
forth in NRS 173.115(2). First, the offenses are connected together
because the evidence of each would be cross-admissible in a separate trial
for the other. The separate transactions are similar enough to prove
motive, intent, preparation, and plan and therefore would have been
relevant at separate trials; the separate transactions were proven by more
than clear and convincing evidence; and evidence of each would not be
unfairly prejudicial in a separate trial for the other offense. See Weber,
121 Nev. at 573, 119 P.3d at 120 (using test for admissibility of prior bad
act evidence under NRS 48.045(2) to determine whether two or more
offenses are cross-admissible and therefore connected together for
purposes of joinder). Second, the separate transactions reflect a common
scheme or plan. In particular, the evidence depicts a Irrilethod of putting
into effect an intention." Id. at 572, 119 P.3d at 120 (quoting Black's Law
Dictionary 796 (abr. 6th ed. 1991)). Samuell would steal from female
tourists using fake casino chips by talking about faith and religious
charity to elicit their trust, showing them large denominations of fake
casino chips, persuading them to show him large amounts of cash under
the promise that he would pay ten-to-one for each dollar shown to him,
and departing through the same bathroom on the Flamingo Hotel and
Casino floor after giving a large-denomination fake casino chip to the
women as security that he would return. Thus, we conclude that the
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district court did not abuse its discretion in granting the State's motion to
consolidate the charges against Samue11. 3
Samuell argues that it was an abuse of discretion to deny his
motion for a continuance when his investigator did not complete all of the
investigative tasks that Samuell had requested. We review the district
court's denial a request for a continuance for an abuse of discretion. Higgs
v. State, 126 Nev. , 222 P.3d 648, 653 (2010). There is no abuse of
discretion if the defendant fails to demonstrate that he was prejudiced by
the denial. Id. Samuell urges that his investigator did not have enough
time to complete the investigation, in particular to obtain phone records
that would allegedly corroborate his account of purchasing cocaine to use
with one of the victims, which he intended to use to impeach the victim's
testimony. It is unclear, however, that the phone records would further
his defense. Not only would this line of impeachment implicate him in
uncharged criminal conduct, but Samuell was able to pursue this line of
impeachment at trial without the phone records and there is no reason to
believe that the phone records would significantly corroborate his factual
account. Further, the evidence does not tend to exculpate him to any
degree. We conclude that Samuell has failed to show that he was
prejudiced by the district court's denial of his motion for a continuance.
Samuell argues that the district court abused its discretion in
sentencing him under the habitual criminal statute when all but one of hiS
prior felony convictions occurred more than thirty years ago. The
adjudication as a habitual criminal is "subject to the broadest kind of
3 Samuell's asserted wish to testify on one charge but not the other
does not warrant severance. See Honeycutt v. State, 118 Nev. 660, 669, 56
P.3d 362, 368 (2002).
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judicial discretion." Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148,
152 (1997) (internal quotation marks and citations omitted). Samuell's
arguments are not persuasive considering his history of recidivism,
including 13 prior felony convictions, several of which were for violent
offenses. Although many of the prior convictions were remote in time,
that is because Samuell spent much of the preceding three decades hi
prison in California and Florida. The remoteness of those convictions is
not particularly significant given that since his release, Samuell has been
convicted of felony pandering and four misdemeanors, including battery
and assault and battery. Nevada's habitual criminal statute was intended
to impose additional penalties in situations like this one. See NRS
207.010(1)(b); Tanksley, 113 Nev. at 1004, 946 P.2d at 152 ("The purpose
of the habitual criminal statute is to increase sanctions for the recidivist
and to discourage repeat offenders."); Odoms v. State, 102 Nev. 27, 33, 714
P.2d 568, 572 (1986) (noting that "society has the right to remove from its
ranks for a longer time those who refuse to conform to a lawful mode of
living" (internal quotation marks omitted)). Considering Samuell's
extreme recidivism, we conclude that the district court properly exercised
its discretion. See Tanksley, 113 Nev. at 1004, 946 P.2d at 152.
Samuell argues that it was cruel and unusual to sentence him
to two consecutive terms of life without parole under the large habitual
criminal statute for theft offenses. A sentence that is within the statutory
limits is not 'cruel and unusual punishment unless the statute fixing
punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience." Blume v.
State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v.
State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v.
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Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
that the Eighth Amendment does not require strict proportionality
between crime and sentence; it forbids only an extreme sentence that is
grossly disproportionate to the crime). The district court imposed a
sentence that accorded with the statutory limits for the offense of theft
and the large habitual criminal statute. NRS 205.0832; NRS
207.010(1)(b). Samuell does not argue that either statute is
unconstitutional. And in light of the seriousness and large number of
Samuell's prior felony convictions, we conclude that the sentence imposed
is not so grossly disproportionate to the crimes and Samuell's history of
recidivism as to constitute cruel or unusual punishment. See Ewing v.
California, 538 U.S. 11, 29 (2003) (plurality opinion); Sims v. State, 107
Nev. 438, 814 P.2d 63 (1991) (affirming a sentence of life without parole
for grand larceny involving the theft of a purse and wallet containing
$476, adjudicated under the habitual criminal statute).
Samuell argues that cumulative error warrants relief. Having
found no error by the district court, we conclude that Samuell has failed to
demonstrate any cumulative error.
Having considered Samuell's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
itta
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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