Jefferson (Brandon) v. State ( 2014 )

 the testimony of Jefferson's wife and son as to C.J.'s statements; (6) the
district court erred in denying his request for a hearing pursuant to
Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), to determine
whether C.J. had prior sexual experiences; (7) there was insufficient
evidence to support the jury's verdict; (8) his two consecutive life sentences
constitute cruel and unusual punishment; (9) the district court abused its
discretion in failing to give his proposed jury instructions; (10) the district
court abused its discretion in denying his motion to dismiss counsel and
appoint new counsel; and (11) cumulative error. Because we conclude that
any error that occurred in this case was harmless, we affirm the judgment
of conviction.
The district court did not err in denying Jefferson's motion to suppress his
confession
Jefferson argues that the district court erred in denying his
motion to suppress the statements he made to law enforcement. He
argues that his confession was involuntary because he was subjected to
repeated and prolonged questioning, as well as deceptive interrogation
techniques.
"A confession is admissible only if it is made freely and
voluntarily, without compulsion or inducement." Passama v. State, 103
Nev. 212, 213, 735 P.2d 321, 322 (1987). "To determine the voluntariness
of a confession, the court must consider the effect of the totality of the
circumstances on the will of the defendant." Id. at 214, 735 P.2d at 323.
Factors relevant to voluntariness include: "the youth of the accused; his
lack of education or his low intelligence; the lack of any advice of
constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the
deprivation of food or sleep." Id. "On appeal, if substantial evidence
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
supports the district court's finding that the confession was voluntary,
then the district court did not err in admitting the confession." Brust v.
State, 108 Nev. 872, 874, 839 P.2d 1300, 1301 (1992).
We conclude that substantial evidence supports the district
court's conclusion that Jefferson's confession was voluntary. Jefferson, an
adult, does not claim that he misunderstood what was happening; he
responded cogently to the detectives' questions; his interrogation began
with an explanation of his Miranda rights; it took place at a reasonable
time (9:00 p.m.) and lasted only 45 minutes; and, while one of his hands
was handcuffed to a bar, he was free to leave any time for water or to use
the restroom.
Additionally, Jefferson's argument that his confession was
rendered involuntary by the detectives' deceptive interrogation techniques
is unavailing. Jefferson argues that the detectives misrepresented DNA
evidence by exaggerating what DNA evidence could reveal to them and the
time frame in which they would learn the information. However, "an
officer's lie about the strength of the evidence against the defendant is, in
itself, insufficient to make the confession involuntary." Sheriff, Washoe
Cnty. v. Bessey, 112 Nev. 322, 325, 914 P.2d 618, 619 (1996). The question
is whether the tactics "interject[ed] the type of extrinsic considerations
that would overcome [Jefferson's] will by distorting an otherwise rational
choice of whether to confess or remain silent." Id. at 325, 914 P.2d at 620
(quoting Holland ix McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992)). In
this case, such tactics would not likely overcome Jefferson's will because, if
Jefferson was truly innocent, he would not be concerned that DNA
evidence would implicate him. Rather, he would know that it would
SUPREME COURT
OF
NEVADA
3
(0) 1947A
exonerate him. Thus, nothing about the detectives' tactics appears
coercive or likely to produce a false confession.
Jefferson's arguments that the detectives impermissibly
implied that the prosecutor would be informed that he refused to
cooperate, and threatened to take away his children are equally
unavailing. The detectives indicated that if the DNA showed something
different than what Jefferson had told them, then the DA would be aware
of the discrepancy, which would likely be bad for Jefferson. But that is not
the equivalent of a threat to inform the DA that Jefferson was not
cooperating. Likewise, the detectives told Jefferson that, given the
allegations against him, he might not be able to be around his children for
a while. However, this statement was only made in response to Jefferson's
own questions regarding his children. This was not a coercive tactic to get
Jefferson to confess, but merely a true statement of the current situation.'
'Jefferson's argument to this court appears to conflate two separate
legal issues—waiver of his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966), and whether his statement was voluntary. To the extent
that Jefferson is also arguing that his waiver of his Miranda rights was
not voluntary, we conclude that argument lacks merit. "A valid waiver of
rights under Miranda must be voluntary, knowing, and intelligent."
Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181 (2006). "[T]he
question of whether a waiver is voluntary is a mixed question of fact and
law that is properly reviewed de novo." Id. In this case, detectives
explained to Jefferson that he was in their custody and that they were
trying to clear up an investigation. They then read him his Miranda
rights, and asked him if he understood, to which he replied yes. The
detectives began asking him questions, and he responded without further
prompting. Thus, the circumstances show Jefferson voluntarily waived
Miranda.
SUPREME COURT
OF
NEVADA
4
(0) 1947A agea,
Prosecutorial misconduct does not warrant reversal
Jefferson argues that the prosecutor committed numerous acts
of misconduct that warrant reversal of his conviction. In assessing claims
of prosecutorial misconduct, this court must first determine whether the
prosecutor's conduct was improper, and, if so, the court must then
determine whether such conduct warrants reversal. Valdez v. State, 124
Nev. 1172, 1188, 196 P.3d 465, 476 (2008). Reversal is not warranted if
the misconduct is determined to be harmless error. Id. Under harmless-
error review, errors that are not of a constitutional dimension will only
warrant reversal if they substantially affected the jury's verdict. Id. at
1188-89, 196 P.3d at 476.
Jefferson argues that the prosecutor improperly argued with
the defense's expert, Dr. Chambers, and denigrated his credibility by
offering the personal opinion that he was not qualified to opine as to how
police interrogation techniques can lead to false confessions. Because it is
improper for the prosecutor to state his or her own distrust of the
testimony of the expert, Yates v. State, 103 Nev. 200, 204-05, 734 P.2d
1252, 1255 (1987), we conclude the prosecutor committed misconduct
when she stated, "I have not heard one citation of any study, of any
documentation, of any conference. . . nothing that you've done that has
allowed you to come in and make the generalizations, and educate the jury
as you have today." However, we conclude the error was harmless because
the court sustained the objection to that comment, and the State's case did
not rely entirely on Jefferson's confession.
Jefferson also argues that the prosecutor committed
misconduct by referencing testimony from Jefferson's son that his father
beat his mother. On cross-examination, when asked by the defense if his
parents fought, Jefferson's son stated for the first time that his father beat
SUPREME COURT
OF
NEVADA
5
(0) 1947A
his mother. The defense then questioned him further, which ultimately
resulted in him admitting that he never saw his father beating his mother.
The defense also questioned him about why he never told this to the
prosecutors. On redirect, the prosecution questioned Jefferson's son about
why he had never mentioned the beatings before. We conclude that the
prosecutor did not commit misconduct because the prosecutor did not
solicit the comment, and only brought it up in an attempt to rehabilitate
the witness from the defense's attempt to discredit him. Furthermore, any
misconduct or prejudice to Jefferson was remedied by the fact that the
court gave a curative instruction to the jury which stated that "[a]ny
allegations of domestic abuse between the defendant and [his wife] . . . are
not matters for your consideration, and shall not be considered by you in
any way." 2
The district court abused its discretion in admitting evidence of jail phone
calls between Jefferson and his wife
Jefferson argues that the district court abused its discretion
when it admitted recordings of phone calls between him and his wife
during the time he was incarcerated because the calls held minimal
relevance, were highly prejudicial and contained inadmissible hearsay.
The State argues that the calls were relevant to the family dynamic, which
the defense put at issue, and more importantly, they contained admissions
from Jefferson regarding the charged crimes. The State admitted into
evidence and played for the jury four calls between Jefferson and his wife,
three of which had been redacted, but the fourth was played in its
entirety, over Jefferson's objection.
We conclude that Jefferson's remaining contentions of prosecutorial
2
misconduct lack merit and we decline to address them.
SUPREME COURT
OF
NEVADA
6
(0) 1947A
A district court's decision to admit or exclude evidence is
reviewed for an abuse of discretion. Ramet v. State, 125 Nev. 195, 198,
209 P.3d 268,269 (2009). We conclude that while certain portions of the
calls were relevant and admissible, the district court erred in allowing the
jury to hear conversations that held little relevance, were highly
prejudicial, and contained statements that constituted inadmissible
hearsay. For example, the jury heard the following statements from
Jefferson's wife: "you touched her, it can't be fixed," "you were planning on
doing this for the rest of her life, was she your little back up?" and
"remember when you said she's gonna be hot one day, she needs to start
shaving her legs." These statements were not necessary to give context to
Jefferson's admissions, as the State argues, because Jefferson did not
respond to them with any admissions.
Furthermore, those statements, as well as other portions of
the calls, were highly emotional and inflammatory. In all four calls,
Jefferson's wife was clearly distraught and repeatedly expressed that
Jefferson had ruined her and her children's lives. She also used
inflammatory language, calling Jefferson a pedophile and stating he would
do it again. Thus, we conclude that the district court erred in admitting
certain portions of the phone calls because the prejudicial value
substantially outweighed the probative value. Nevertheless, we conclude
the error was harmless given the other evidence against Jefferson;
specifically, Jefferson's confession and C.J.'s testimony.
The district court abused its discretion in admitting expert testimony from
Dr. Vergara as to the behavior of perpetrators
Jefferson next argues that the district court abused its
discretion when it allowed the State's medical expert, Dr. Vergara, to offer
testimony that vouched for the victim and improperly speculated as to
SUPREME COURT
OF
NEVADA
7
(0) 1947A
why a sexual assault victim might have normal physical findings. Dr.
Vergara testified that her examination of C.J. revealed no abnormal
results, but that "normal is normal" with child sex abuse victims, meaning
that a normal examination is typical even though a child has been abused.
Because Jefferson did not object to that particular testimony at trial, we
review it for plain error. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d
465, 477 (2008). We conclude that the district court did not commit plain
error in allowing the testimony.
NRS 50.345 provides that "[in any prosecution for sexual
assault, expert testimony is not inadmissible to show that the victim's
behavior or mental or physical condition is consistent with the behavior or
condition of a victim of sexual assault." Thus, Dr. Vergara's testimony
that child victims of sexual assault often have normal findings was proper.
This in no way vouched for C.J.'s credibility. See Marvelle v. State, 114
Nev. 921, 931, 966 P.2d 151, 157 (1998) (holding that an expert may not
testify to the veracity of another witness), abrogated on other grounds by
Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000).
Jefferson also argues that it was improper for Dr. Vergara to
speculate as to how a sexual assault might occur without physical trauma.
Specifically, she stated: "[I]f I was going to approach a child with my
intentions, I can't hurt that child. Because if I make that child cry, I will
never have a chance or opportunity to approach that child again. So, the
initial encounter with a child and their perpetrator could be hugging,
kissing, rubbing." Jefferson objected to this testimony as improper
speculation, and the objection was overruled. We conclude that this
testimony was outside the scope of NRS 50.345. It went beyond a
discussion of how C.J.'s normal findings were consistent with those of
SUPREME COURT
OF
NEVADA
8
(0) Y47A
other sexually abused children and became speculation on the behavior of
perpetrators in general. However, we conclude that given the other
evidence in the case, this was harmless error that did not "substantially
affectO the jury's verdict." Valdez, 124 Nev. at 1189, 196 P.3d at 476.
The district court did not abuse its discretion in admitting the testimony of
C.J.'s mother and brother as to C.J.'s statement that her father abused her
Jefferson also argues that the district court abused its
discretion when it denied his motion in limine to preclude hearsay
testimony from his wife regarding C.J.'s statement to her that her father
was sexually abusing her. Pursuant to NRS 51.385, hearsay evidence
regarding the statement of a child describing sexual conduct is admissible
if "Nile court finds . . . that the time, content and circumstances of the
statement provide sufficient circumstantial guarantees of trustworthiness"
and "Nile child testifies at the proceeding." NRS 51.385(1)(a)-(b). In
determining the trustworthiness of the statement, the court shall
consider, without limitation, whether: "(a) The statement was
spontaneous; (b) The child was subjected to repetitive questioning; (c) The
child had a motive to fabricate; (d) The child used terminology unexpected
of a child of similar age; and (e) The child was in a stable mental state."
NRS 51.385(2)(a)-(e).
In this case, C.J. was not subject to repetitive questioning
regarding sexual abuse, but rather made the statement to her mother
after her mother told the children that she might be leaving their father,
and that they should not have any secrets between them. Thus, because
C.J. was the one to raise the issue of sexual abuse and it was spontaneous,
we conclude that the district court did not err in admitting the statement
because there were "sufficient circumstantial guarantees of
trustworthiness." NRS 51.385(1)(a).
SUPREME COURT
OF
NEVADA
9
(0) 1947A eto
Jefferson argues it was also impermissible to allow C.J.'s
brother to testify about C.J.'s statement to her mother. Her brother was
also present in the room when she told her mother about the alleged
abuse. However, we conclude that C.J.'s brother's testimony as to C.J.'s
statement is admissible pursuant to NRS 51.385, for the same reasons
C.J.'s mother's testimony as to C.J.'s statement was admissible, and the
district court did not abuse its discretion in admitting the brother's
testimony.
The district court did not err in denying Jefferson's request for a hearing
pursuant to Summitt v. State, to determine whether C.J. had prior sexual
experiences
Jefferson argues that the district court committed reversible
error when it refused to grant him a hearing pursuant to Summitt v.
State, 101 Nev. 159, 697 P.2d 1374 (1985), so he could determine if there
was another basis for C.J.'s knowledge of sexual matters. In Summit& the
district court denied the defendant's request to introduce a specific
incident of prior sexual contact involving the six-year-old victim in order to
explain why the child victim had "prior independent knowledge" of sexual
matters. 101 Nev. at 160, 697 P.2d at 1375. This court determined that
the defendant, upon motion, "must be afforded the opportunity to show, by
specific incidents of sexual conduct, that the [alleged victim] has the
experience and ability" to fabricate the crime. Id. at 164, 697 P.2d at 1377
(quoting State v. Howard, 426 A.2d 457, 462 (N.H. 1981) (emphasis
added)).
In this case, Jefferson moved for a hearing pursuant to
Summitt, in order to determine whether C.J. had any prior experiences
that might explain her knowledge of sexual matters. We conclude that the
district court did not err in denying Jefferson's request because Sumrnitt is
SUPREME COURT
OF
NEVADA
10
(0) 1947A
entirely distinguishable and inapplicable to this situation. The premise of
Summitt is that the defense already has knowledge of this evidence and
believes it is constitutionally entitled to present it to the jury. See 101
Nev. at 162-63, 697 P.2d at 1376-77. Here, Jefferson sought a hearing to
learn whether such evidence existed. Therefore, the district court properly
denied the motion.
There was sufficient evidence to support the jury's verdict
Jefferson next argues that there was insufficient evidence to
support the jury's verdict. The standard of review for a challenge to the
sufficiency of the evidence is "whether, 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." Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414 (2007)
(internal quotations omitted). In rendering its decision, the jury is tasked
with "assess[ing] the weight of the evidence and determin[ing] the
credibility of witnesses." Id. at 202-03, 163 P.3d at 414 (internal
quotations omitted). Furthermore, in a sexual assault case, "the victim's
testimony alone is sufficient to uphold a conviction" and need not be
corroborated so long as the victim testifies "with some particularity
regarding the incident." Id. at 203, 163 P.3d at 414 (quoting LaPierre v.
State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992)).
In this case, C.J. testified with specificity as to four separate
occasions of sexual abuse—three in Jefferson's bedroom, and one in her
bedroom. She testified that on each of the three occasions in the master
bedroom, Jefferson put his penis in her mouth, vagina, and anus, and on
the fourth occasion, in her bedroom, he put his penis in her mouth and
vagina. Finally, Jefferson's own confession also supports the lewdness and
sexual assault charges as he stated that on different occasions C.J. rubbed
SUPREME COURT
OF
NEVADA
11
(0) 1947A
her vagina against his penis, touched his penis, and put his penis in her
mouth. Therefore, we conclude there was sufficient evidence supporting
the jury's conviction because in viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have found
Jefferson guilty of three counts of sexual assault and one count of
lewdness beyond a reasonable doubt. Rose, 123 Nev. at 202, 163 P.3d at
414; see NRS 200.366(1); NRS 201.230.
Jefferson's sentences do not constitute cruel and unusual punishment
Jefferson contends that his sentence amounts to cruel and
unusual punishment because it constitutes the remainder of his natural
life for conduct that did not result in the loss of human life or permanent
physical damage.
This court reviews constitutional issues de novo. Jackson v.
State, 128 Nev. „ 291 P.3d 1274, 1277 (2012). "A sentence does not
constitute 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." CuIverson v.
State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979). A punishment is
unconstitutionally excessive "if it (1) makes no measurable contribution to
acceptable goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering; or (2) is grossly
out of proportion to the severity of the crime." Pickard v. State, 94 Nev.
681, 684, 585 P.2d 1342, 1344 (1978) (quoting Coker v. Georgia, 433 U.S.
584, 592 (1977)).
In this case, Jefferson's only argument is that his punishment
is harsher than a murderer would receive. However, given the fact
Jefferson was convicted of repeatedly sexually assaulting his five-year old
SUPREME COURT
OF
NEVADA
12
(0) 1947A )4Ap1;m.
daughter, we conclude that the punishment is not so disproportionate to
the severity of the crimes as to shock the conscience. Moreover, the
punishment serves the purpose of protecting C.J. and other young children
from being subjected to sexual assault, and thus accomplishes an
acceptable goal of punishment. Therefore, we conclude that Jefferson's
sentences do not constitute cruel and unusual punishment.
The district court did not abuse its discretion in failing to give Jefferson's
proposed jury instructions
Jefferson argues that the district court erred in rejecting his
proposed jury instructions. Jefferson sought to have the jury instructed on
attempted sexual assault, as well as the possible redundancy of the
lewdness and sexual assault counts.
"The district court has broad discretion to settle jury
instructions," and its decisions will be reviewed for abuse of discretion or
judicial error. Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000
(2001). "This court evaluates appellate claims concerning jury
instructions using a harmless error standard of review." Barnier v. State,
119 Nev. 129, 132, 67 P.3d 320, 322 (2003).
Jefferson first argues that the district court was required to
instruct the jury on his theory of attempt because of the lack of physical
findings and C.J.'s ambiguous testimony. We conclude that this argument
lacks merit and that the district court did not abuse its discretion by
refusing to give this instruction. Although the defense has a right to have
the jury instructed on its theory of the case, here the defense's theory was
that C.J. fabricated the story and Jefferson falsely confessed; thus attempt
is actually inconsistent with the defense's theory and the evidence
presented. CI Margetts v. State, 107 Nev. 616, 619, 818 P.2d 392, 394
(1991). As such, Jefferson was not entitled to have the jury so instructed.
SUPREME COURT
OF
NEVADA
13
(0) 1947A 4g1liz•
Jefferson also argues that the district court was required to
give his proposed instruction explaining that the State bears the burden of
proving any acts of lewdness were not incidental to the sexual assault, and
thus, if the jury finds lewdness charges to be redundant, then it must
return the verdict of not guilty. We conclude the district court abused its
discretion in failing to give the instruction; however, the error was
harmless. While the defense was entitled to the redundancy instruction
as part of its theory of the case and it was a proper statement of law, the
jury only convicted Jefferson of two of the lewdness counts. The
prosecution ultimately agreed to dismiss one of those counts as redundant.
Therefore, while the district court erred in failing to give the instruction,
the error was harmless. 3
Jefferson further argues that the district court abused its
discretion in giving jury instruction no. 12, which stated that the jury
must consider whether the State proved that Jefferson's confession was
voluntary by "a preponderance of the evidence." This instruction was an
accurate statement of the law. See Falcon v. State, 110 Nev. 530, 534, 874
P.2d 772, 775 (1994). Moreover, jury instruction no. 11 made it clear that
the State needed to prove every element of the charged crimes beyond a
3 Jefferson also argues the district court erred in rejecting his
proposed instruction on deliberation, which informed the jury that the
verdict needed to be unanimous and each juror must decide the case for
themselves. We conclude that this was not an error because the
instruction was not related to the defense's theory of the case and it was
redundant to other instructions given to the jury. See Earl v. State, 111
Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995) (stating that it is not
reversible error to refuse a jury instruction that is "substantially covered
by other instructions").
SUPREME COURT
OF
NEVADA
14
(0) 1.947A Ter,
reasonable doubt. Therefore, we conclude the district court did not abuse
its discretion in allowing this instruction.
The district court did not abuse its discretion in denying Jefferson's motion
to dismiss counsel and appoint new counsel
Jefferson argues the district court erred when it denied his
motion to dismiss counsel and appoint new counsel. This court reviews a
district court's "denial of a motion for substitution of counsel for abuse of
discretion." Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004).
This court considers the following three factors when reviewing a district
court's decision: "(1) the extent of the conflict; (2) the adequacy of the
inquiry; and (3) the timeliness of the motion." Id. (quoting United States
v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)).
In this case, the district court conducted an inquiry into
Jefferson's request. The court determined that Jefferson was unhappy
because he believed his counsel had not provided to him everything
obtained through discovery, and his counsel had not obtained his work
records. Jefferson's attorney explained that the work records were not
relevant and that leaving the records with a client in custody is risky
because nothing is private in jail; however, he further expressed that he
would provide anything Jefferson requested up to that point. We conclude
that based on the factors above, the district court did not err in denying
the motion. The district court's inquiry demonstrates the conflict was
minimal and could easily be resolved. Furthermore, Jefferson's request
was untimely as it was made only a few days prior to trial.
Cumulative error does not warrant reversal
Finally, Jefferson contends that cumulative error violated his
right to a fair trial. Cumulative error may deny a defendant a fair trial
even if the errors, standing alone, would be harmless. Valdez v. State, 124
SUPREME COURT
OF
NEVADA
15
(0) 1947A
Nev. 1172, 1195, 196 P.3d 465, 481 (2008). "When evaluating a claim of
cumulative error, we consider the following factors: (1) whether the issue
of guilt is close, (2) the quantity and character of the error, and (3) the
gravity of the crime charged." Id. (internal quotations omitted).
In this case, while Jefferson was charged with very serious
crimes, the issue of guilt was not close given the overwhelming evidence
presented by the State. Furthermore, despite the number of errors
Jefferson alleges, the majority of his contentions are meritless, and the
cumulative effect of the few errors committed did not amount to the denial
of a fair trial. Therefore, after reviewing the entire record, we conclude
that Jefferson's cumulative error challenge is unavailing.
Having considered Jefferson's contentions and concluded that
they do not warrant reversal, we
ORDER the judgment of the district court AFFIRMED.
J.
Hardesty
cc: Hon. Valorie J. Vega, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
16
(0) 1947A