Williams (Christian) v. State ( 2013 )

 witness testified that he heard Williams calling the victim a "snitch" and
referencing statements the victim made while testifying against a fellow
gang member. Other testimony indicated that Williams pointed a gun at
the back of the victim's head and told him to empty his pockets for
Williams' gang and that the victim emptied his pockets, turned, and shot
at the same time as Williams. The medical examiner testified that the
path of the bullet and powder marks on the victim's neck demonstrated
that he was shot from behind at close range. This testimony was
consistent with statements given to police shortly after the incident. We
conclude that a rational juror could have found the essential elements of
the crimes beyond a reasonable doubt. See NRS 193.165(1); NRS
193.168(1); NRS 200.010(1); NRS 200.030(b); NRS 200.380(1).
Second, Williams argues that the prosecution committed
misconduct during opening statements by quoting gangster John Gotti
and by showing an image during its PowerPoint presentation of one figure
executing another next to the words "stop snitching." We agree.
Although quotes are appropriate in opening statements, the selection of
this particular quote and attribution of it to "the head of the Gambino
crime family," effectively compared Williams to John Gotti and was
improper. Valdez v. State, 124 Nev. 1172, 1191, 196 P.3d 465, 478 (2008)
(internal quotation marks omitted). However, we conclude that the
misconduct was harmless and no relief is warranted because the district
court sustained the defense's objection to the attribution of the quote and
the jury had been instructed moments before to disregard statements to
which an objection was sustained. See Kazmarek v. State, 120 Nev. 314,
340, 91 P.3d 16, 34 (2004) (presuming that jurors follow the instructions
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they are given). We also conclude that the prosecutor committed
misconduct by displaying the execution image, and the district court erred
by overruling Williams' objection to the image, because it was unnecessary
to demonstrate the prosecution's theory of the case and served no purpose
other than to inflame the jury. We conclude that this misconduct was also
harmless. See Valdez, 124 Nev. at 1189-92, 196 P.3d 476-79. Although we
conclude that each instance of misconduct was harmless on its own, we
condemn the prosecutor's actions in this case and conclude that the
misconduct contributed to the cumulative error which warrants reversal of
Williams' judgment of conviction.
Third, Williams argues that the district court erred by denying
his motion to suppress his statement to police because it was a result of a
custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436(1966). A suspect is in custody under Miranda if a reasonable person
would not feel free "to terminate questioning and leave." J.D.B. v. North
Carolina, 564 U.S. , 131 S. Ct. 2394, 2402 (2011). We give
deference to a district court's factual findings regarding the circumstances
surrounding the interaction between the suspect and law enforcement
which are not clearly erroneous and review de novo the district court's
ultimate determination of whether the suspect was in custody. Avery v.
State, 122 Nev. 278, 286-87, 129 P.3d 664, 670 (2006).
We disagree with the district court's conclusion that Williams
was not in custody. See id. at 287, 129 P.3d at 670 ("Important
considerations in deciding whether or not [a defendant] was in custody
include the site of the interrogation, whether the investigation has focused
on the subject, whether the objective indicia of arrest are present, and the
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length and form of the questioning."). Witnesses at the scene told law
enforcement that Williams was the shooter and law enforcement clearly
considered him to be the primary suspect because they escorted him
directly from the hospital to the police station to be interrogated.
Although Williams had access to personal belongings, the door to the
interrogation room was open, and his mother was present, other objective
factors were indicative of an arrest. See id. And, Williams was only
sixteen years old at the time. See J.D.B., 564 U.S. at , 131 S. Ct. at
2406 (holding that a minor's age is a relevant factor in a Miranda custody
analysis). Considering the totality of the circumstances, a reasonable
person would not feel free to terminate questioning and leave and
therefore Miranda warnings should have been given. See Avery, 122 Nev.
at 286, 129 P.3d at 669. Although we conclude that the admission of
Williams' statement was harmless beyond a reasonable doubt, see Arizona
v. Fulminante, 499 U.S. 279, 295 (1991), we conclude that it also
contributed to the cumulative error which warrants reversa1. 1
Fourth, Williams argues that the district court erred by
admitting into evidence a witness' entire statement to police. "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).
The district court admitted the statement because it was inconsistent with
'Williams also argues that the district court erred by admitting only
a portion of his statement to police. Because Williams' entire statement
was ultimately admitted, we conclude that this claim lacks merit.
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the witness' testimony at trial and refuted his claim that he was coerced
by law enforcement to implicate Williams. NRS 51.035(2)(a)-(b). Williams
does not establish which portions of the statement he believes were
prejudicial or contained hearsay and did not do so below when the district
court indicated a willingness to redact the statement as necessary. We
conclude that the district court did not abuse its discretion in admitting
the statement.
Fifth, Williams argues that the district court erred by
excluding the testimony of an unnoticed witness. We review "a district
court's decision whether to allow an unendorsed witness to testify for
abuse of discretion." Mitchell v. State, 124 Nev. 807, 819, 192 P.3d 721,
729 (2008). Although the right to present testimony is not absolute and
must be balanced against "countervailing public interests," Taylor v.
Illinois, 484 U.S. 400, 414 (1988), a strong presumption exists in favor of
allowing late-disclosed witnesses to testify, see Sampson v. State, 121 Nev.
820, 827, 122 P.3d 1255, 1260 (2005). Here, at 4:30 p.m. on the last day of
trial, the defense attempted to call an alleged eyewitness to corroborate
Williams' version of events. The district court excluded the witness and
rejected counsel's explanation that he had inadvertently noticed a man
named Marcus Collins instead of Marquis Clemons. Although the record
makes clear that the State did not, and could not have, anticipated the
witness because his name never appeared in any witness statement and
no testimony, including the defendant's, placed him at the scene of the
crime, we conclude that the district court abused its discretion because the
witness' testimony went to "the heart of the case," see id., and the district
court did not explicitly find that the defense acted in bad faith, see NRS
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174.234(3)(a). While harmless on its own, the error contributed to the
cumulative error which warrants reversal.
Sixth, Williams argues that the district court erred by
allowing prior bad act testimony. The district court conducted a hearing
and concluded that evidence of Williams' gang affiliation and conviction
for discharging a firearm into a vehicle were supported by clear and
convincing evidence, were relevant to prove motive and support the gang
enhancement, and were not substantially more prejudicial than probative.
See Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997),
holding modified by Bigpond v. State, 128 Nev. , 270 P.3d 1244,
1249-50 (2012). Because Williams' prior conviction, which was gang
related, set the stage for the retaliatory killing which preceded the instant
offense, we conclude that the district court did not abuse its discretion in
admitting evidence of Williams' prior conviction and gang affiliation. See
Butler v. State, 120 Nev. 879, 889, 102 P.3d 71, 79 (2004) (evidence of gang
affiliation in murder prosecution "provided the common thread that
connected the story of events" and was therefore admissible to show
motive).
Seventh, Williams argues that cumulative error entitles him
to relief. We agree. Although the evidence of guilt was sufficient, it was
not overwhelming, and the charges were undoubtedly grave. See Valdez,
124 Nev. at 1195, 196 P.3d at 481. Importantly, "[t]his court must ensure
that harmless-error analysis does not allow prosecutors to engage in
misconduct by overlooking cumulative error in cases with substantial
evidence of guilt." Id. Here, the errors were numerous and involved
misconduct concerning both prosecutors and police officers. We thereby
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conclude that cumulative error warrants reversal of Williams' judgment of
conviction, and we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
04.4.0t
Parraguirre
J.
cc: Hon. Michael Villani, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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