Hayward (Lashana) v. State ( 2013 )

 jumping through a window. He then ran across the street to the shopping
center and alerted the police of the crimes. After the fire was put out,
police discovered Heckard's burnt body. Heckard's cause of death was
determined to be blunt force trauma to the head.
Nelson, Scott, and Hayward were eventually arrested and
indicted by a grand jury. Hayward's indictment was based solely on
conspiracy and accomplice theories of liability. She and Nelson were tried
together and convicted of all of the charges brought against them.
Hayward now appeals. The issues on appeal are: (1) whether the district
court abused its discretion in denying Hayward's motion to sever her trial
from that of her codefendant and (2) whether the State presented
sufficient evidence to support the jury's verdict.'
Motion to sever
Hayward argues that the district court abused its discretion in
denying her motions to sever her trial from that of her codefendant.
Hayward contends that severance was necessary because her and Nelson's
defenses were antagonistic and because there was a great disparity in the
evidence presented against her and Nelson. 2
'Hayward also argued that the district court abused its discretion
(1) in allowing a detective to testify about letters that Hayward sent while
incarcerated and (2) by excluding testimony that Hayward contends was
exculpatory and could have helped her impeach the State's witnesses. We
determine that these contentions lack merit.
2 Hayward also argues that severance was necessary because
Nelson's charges included the death penalty, where hers did not.
Hayward, however, fails to cite to any relevant authority that supports her
assertion. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987)
("It is appellant's responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
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We review the district court's denial of severance for an abuse
of discretion. Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185
(2008). We will not reverse on appeal "unless the appellant carries the
heavy burden of showing that the trial judge abused his discretion." Id.(quoting Buff v. State, 114 Nev. 1237, 1245, 970 P.2d 564, 569 (1998))
(other internal quotation marks omitted). Further, any error "is subject to
harmless-error review." Id. at 765, 191 P.3d at 1185.
It is a prima facie rule that when codefendants are charged
together, they should also be tried together. United States v. Gay, 567
F.2d 916, 919 (9th Cir. 1978); see also NRS 173.135. In order for Hayward
to satisfy her burden to prove that there was substantial prejudice
requiring reversal, she must show that the joint trial "prevented the jury
from making a reliable judgment regarding [her] guilt or innocence."
Marshall v. State, 118 Nev. 642, 648, 56 P.3d 376, 380 (2002). One basis
for granting reversal is when the antagonistic defenses are so conflicting
that "'there is danger that the jury will unjustifiably infer that this conflict
alone demonstrates that both are guilty." Chartier, 124 Nev. at 765, 191
P.3d at 1185 (quoting Marshall, 118 Nev. at 646, 56 P.3d at 378). There is
no prejudice in cases where one defendant introduces relevant and
competent evidence that would have otherwise been admissible in the
codefendant's trial had it been severed. Marshall, 118 Nev. at 647, 56
P.3d at 379 (citing Zafiro v. United States, 506 U.S. 534, 540 (1993)).
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Further, the jury was instructed not to consider the subject of punishment
in rendering its verdict. See Leonard v. State, 117 Nev. 53, 66, 17 P.3d
397, 405 (2001) (stating that it is presumed that a jury will always follow
the instructions given).
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•
Furthermore, severance is not warranted simply because it would have
made acquittal more likely. Id.Hayward relies on Ducksworth v. State, 113 Nev. 780, 942
P.2d 157 (1997), in arguing that severance was necessary. In that case,
Ducksworth and a codefendant were convicted of murder. Id. at 789, 942
P.2d at 163. On appeal, the codefendant argued that his trial should have
been severed from Ducksworth's. Id. at 794, 942 P.2d at 166. This court
noted that the evidence against the codefendant was "largely
circumstantial and was much less convincing than was the evidence
against Ducksworth." Id. It further determined that because Ducksworth
made several confessions that referenced an unnamed accomplice, and
because Ducksworth could not be cross-examined regarding those
statements, the likelihood of prejudice to the codefendant was too high.
Id. at 794-95, 942 P.2d at 166-67. In Ducksworth, we reasoned that
Ducksworth's confession referring to an accomplice would necessarily
inculpate his codefendant, who would not have the opportunity to
challenge Ducksworth. Id. The codefendant's conviction was therefore
reversed. Id. at 795, 942 P.2d at 167.
Hayward contends that the instant matter is analogous to
Ducksworth because Frenchwood testified that she heard Nelson say, "[lit
didn't go right," that he "was only supposed to rob him," and that he had
killed a man. However, the statements admitted against Nelson are not
the same as this court was concerned with in Ducksworth. In that case,
this court was concerned with statements made by one codefendant that
either implicitly or specifically referred to the other codefendant.
Ducksworth, 113 Nev. at 795, 942 P.2d at 167. See also Stevens v. State,
97 Nev. 443, 444-45, 634 P.2d 662, 663-64 (1981) (reversing Stevens'
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conviction because of improperly admitted statements made by his
codefendant in which Stevens' name was redacted out of the statement but
still read into the record); Bruton v. United States, 391 U.S. 123, 136
(1968) (concluding that it was improper for the district court to allow the
confession of a codefendant to be admissible because it referenced the
petitioner and was a violation of his Sixth Amendment right to
confrontation); Douglas v. Alabama, 380 U.S. 415, 417-18 (1965)
(concluding that it was a violation of the petitioner's Sixth Amendment
right to confrontation for the district court to allow the confession of a
coconspirator that implicated petitioner). Here, Nelson's statements do
not implicate Hayward or even •an unnamed conspirator. Therefore,
severance was unnecessary because Nelson's statements did not reference
Hayward's involvement in the crime.
Hayward also repeatedly argues that severance was necessary
because the evidence presented against Nelson greatly outweighed the
evidence presented against her. While it is true that the great weight of
the evidence presented was against Nelson, this is because he was the
individual charged with actually carrying out the crimes. All of Hayward's
charges were based on conspiracy and accomplice liability. Thus,
necessarily, the State focused the majority of its case on the actual crimes
committed against Heckard, with a smaller portion of its case devoted to
proving that Hayward had entered into a conspiracy with Nelson and that
she aided and abetted in the crimes. Therefore, it is of no import that a
greater quantity of evidence was presented against Nelson than against
Hayward. See Lisle v. State, 113 Nev. 679, 690, 941 P.2d 459, 466 (1997),
overruled on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9,
968 P.2d 296, 315 n.9 (1998) (holding that a defendant is not entitled to
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severance where the evidence against a codefendant is more damaging
than the evidence against the defendant).
Ultimately, this issue rests in balancing the State's interest in
avoiding the extra time and expense of trying multiple cases with
Hayward's right to a fair trial. Here, the State's interest outweighs
Hayward's allegations of prejudice. First, Hayward has not specifically
provided relevant authority and analysis to satisfy her burden of proving
that the district court abused its discretion in denying severance. See
Chartier, 124 Nev. at 764, 191 P.3d at 1185. Second, Hayward's
contentions that all of the evidence supported Nelson's verdict but not hers
and that any evidence admitted against her was uncorroborated is belied
by the record. Further, the evidence that was presented was properly
admissible against both defendants and could have been presented against
Hayward had she been awarded severance. Marshall, 118 Nev. at 647, 56
P.3d at 379. Finally, Hayward's defenses were not as antagonistic to
Nelson's defenses as she believes. Because she was tried as a
coconspirator and an accomplice, if Nelson was acquitted, then Hayward
would also have been acquitted, as there would be no crime for which she
could be convicted as a principal. We, therefore, conclude that the district
court did not abuse its discretion in denying Hayward's motions to sever
her trial from Nelson's.
Sufficiency of the evidence
Although sufficient evidence was presented to support
Hayward's other convictions, her conviction on the kidnapping charge
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raises some concern. 3 In order to determine "whether a verdict was based
on sufficient evidence to meet due process requirements, this court will
inquire '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." Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008) (alteration in original) (quoting
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)); see also Jackson
v. Virginia, 443 U.S. 307, 319 (1979). "This court will not reweigh the
evidence or evaluate the credibility of witnesses because that is the
responsibility of the trier of fact." Mitchell, 124 Nev. at 816, 192 P.3d at
727. Further, a conviction may be upheld solely by circumstantial
evidence. Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112
(2002).
In Bolden v. State, this court concluded that a conspirator
cannot be held vicariously liable for a crime that is a natural and probable
consequence of the object of the conspiracy where the crime charged was a
specific intent crime and the defendant did not have the specific intent to
commit the crime. 121 Nev. 908, 922-23, 124 P.3d 191, 201 (2005), receded
from on other grounds by Cortinas v. State, 124 Nev. 1013, 1026-27, 195
P.3d 315, 324 (2008). Kidnapping is a specific intent crime. Id. at 923,
124 P.3d at 201; NRS 200.310.
We conclude there was sufficient evidence to support
Hayward's convictions for burglary while in the possession of a deadly
weapon, first-degree murder, conspiracy to commit robbery, and robbery.
3 It
is also important to note that although Hayward argues that she
cannot be held liable for the arson or theft of Heckard's car, she was never
charged with arson or grand theft of a motor vehicle.
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However, there is nothing in Frenchwood's testimony, other witness
testimony, or in Hayward's letters to support a finding that Hayward had
the specific intent to kidnap Heckard or to even restrain him. The
evidence supports Hayward's intent that Nelson and Scott gained entry to
Heckard's home and that they robbed him. However, there was
insufficient evidence for a rational jury to determine that Hayward had
the specific intent to commit kidnapping. We therefore conclude that
Hayward's first-degree kidnapping conviction must be reversed. For the
foregoing reasons we,
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART.
Gibbons
cc: Hon. Douglas W. Herndon, District Judge
Lizzie R. Hatcher
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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