Simmons (Kenneth) v. State ( 2013 )

 date of the crimes. The jury found Simmons guilty of all the crimes listed
in the judgment of conviction.
Simmons now appeals, arguing that (1) the district court erred
in overruling his objection to the racial composition of the jury venire,
where two of sixty-five prospective jurors were African-American; (2) the
district court violated NRS 175.061(5) and committed reversible error in
selecting the alternate jurors at the end of trial by means of a lottery
system; and (3) cumulative error warrants reversal. We conclude that
cumulative error warrants reversal because Simmons' constitutional right
to a fair and impartial jury was compromised when the district court gave
inadequate consideration to Simmons' objection to the jury venire and
inhibited Simmons' statutory right to assert peremptory challenges.
Because of the cumulative error, we reverse the judgment of conviction. 1
1 Simmons also contests that (1) the district court erred in providing
a video playback of testimony and abused its discretion in playing part of
the witnesses' testimony without admonishing the jury as to how to
consider it; (2) the district court erred by giving various jury instructions;
(3) the district court abused its discretion in admitting a DNA report into
evidence, denying Simmons' motion for a mistrial because of this evidence,
precluding Simmons from admitting into evidence photographs of his
genitalia, admitting testimony about him being in foster care, and
precluding him from cross-examining Smith about a sexually transmitted
disease; (4) the district court erred in admitting Smith's testimony on
Simmons' statements about being in a gang and getting away with murder
and rape; (5) the district court engaged in prejudicial ex parte
communications with the jury and abused its discretion in denying a
motion for an evidentiary hearing and a new trial because of these
communications; (6) the district court erred in allowing a nurse to give her
opinion that Smith's injuries were consistent with the reported sexual
assault; (7) the district court erred in violating NRS 193.165(1) by failing
to state on the record its basis for imposing the additional penalties for
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As the parties are familiar with the facts of this case, we do
not recount them further except as necessary for our disposition.
Simmons' objection to the racial composition of the jury venire
Noting that two of the sixty-five prospective jurors were
African-American, Simmons objected to the venire's racial composition,
asserting that there was a violation of his Sixth Amendment right to a
venire that included a fair cross-section of the community. Without asking
the State for its response or asking Simmons if he could make a showing of
a constitutional violation, the district court overruled the objection after
stating that the selection process for the venire was random. As this issue
implicates a constitutional right to a venire that is selected from a fair
cross-section of the community, we review the issue de novo. See Grey v.
State, 124 Nev. 110, 117, 178 P.3d 154, 159 (2008) (providing that de novo
review applies to constitutional challenges).
A defendant "is entitled to a venire selected from a fair cross
section of the community under the Sixth and Fourteenth Amendments of
the United States Constitution." Williams v. State, 121 Nev. 934, 939, 125
P.3d 627, 631 (2005). The Constitution mandates that the "'venires from
. . . continued
Simmons' use of a deadly weapon; (8) the district court erred in requiring
Simmons to pay $250 to the indigent defense fund without a hearing on
his ability to pay that amount; (9) the district court erred in denying
Simmons' pretrial writ of habeas corpus; and (10) there was insufficient
evidence for a verdict against him. As discussed later in this order within
our cumulative error analysis, we conclude that the State presented
sufficient evidence for the jury's verdict. But, we do not reach the
remaining issues because we reverse on other grounds.
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which juries are drawn must not systematically exclude distinctive groups
in the community and thereby fail to be reasonably representative
thereof." Id. at 939-40, 125 P.3d at 631 (quoting Evans v. State, 112 Nev.
1172, 1186, 926 P.2d 265, 274 (1996)). In contesting the venire's
composition, the defendant has the burden of proof and must show a
prima facie violation of the fair-cross-section requirement by exhibiting
(1) that the group alleged to be excluded is a
"distinctive" group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation
is due to systematic exclusion of the group in the
jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
Simmons objected to the venire's racial composition, which
implicated his Sixth Amendment rights. Rather than giving due
consideration to the objection, the district court was inattentive to the
possibility of a constitutional right being violated. The district court did
not ask Simmons if he could make a prima facie showing of a violation of
the Constitution's fair-cross-section requirement, nor did it seek a
response from the State. It noted the objection, stated that the selection of
the jury venire was random, and moved on without developing a record
that would permit this court to address the constitutional issue. As a
result, the district court denied Simmons an opportunity for a meaningful
review of whether his constitutional rights were violated. We do not
address whether the district court's err was reversible error on its own
because we conclude that it contributed to the cumulative error that
requires reversal, as discussed below.
4
Simmons' right to use a peremptory challenge under NRS 175.061(5)
The district court decided that the alternate jurors would be
selected by a lottery system at the conclusion of closing arguments.
Simmons objected, arguing that the lottery system prevented him from
knowing the alternates' identities in advance, thereby hindering his right
to use a peremptory challenge against them under NRS 175.061(5).
Relying on Moore v. State, 122 Nev. 27, 126 P.3d 508 (2006), the district
court determined that the jury selection process did not affect Simmons'
substantial rights and overruled the objection.
On appeal, Simmons argues that the district court abused its
discretion and committed reversible error in using a lottery system to
select alternate jurors at the end of trial. He asserts that the system
prevented him from knowing the identity of the alternate jurors in time to
use the peremptory challenge that NRS 175.061(5) provides for such
j urors . 2
We review the use of the lottery system for abuse of discretion.
See United States v. Springfield, 829 F.2d 860, 863-64 (9th Cir. 1987)
(reviewing a district court's process for the selection of jurors and the use
of peremptory challenges for abuse of discretion). Yet, our review of the
statutes that govern juror selection is de novo. See State v. Lucero, 127
2 Simmons,
in passing and without pertinent authority, concludes
that this abuse of discretion was a violation of his Fourteenth Amendment
due process rights. We do not address this constitutional argument
because Simmons does not cogently argue the purported constitutional
violation of NRS 175.061(5), see Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987) (providing that this court need not address arguments
that have not been cogently made), and because we consider the violation
of NRS 175.061(5) as part of the cumulative error that requires reversal.
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Nev. 249 P.3d 1226, 1228 (2011) ("[W]e review questions of
statutory interpretation de novo."). In interpreting a statute, we
effectuate the Legislature's intent, which is first ascertained from the
statute's plain meaning. Id. In so doing, we do not go beyond the statute's
language when it is clear and unambiguous. Id.NRS 175.061(5) clearly provides for a peremptory challenge
against an alternate juror and limits the use of that challenge to removing
an alternate juror. It states that "[e]ach side is entitled to one peremptory
challenge in addition to those otherwise allowed by law if one or two
alternate jurors are to be impaneled." Id. It further states that this
"additional peremptory challenge[ ] may be used against an alternate juror
only." Id. (emphasis added).
In Moore, the district court violated NRS 175.061(5) when it
used a blind-alternate system for selecting alternate jurors that left the
alternate jurors' identities unknown until jury selection ended. 122 Nev.
at 36, 126 P.3d at 514. Without knowledge of the alternates' identities,
the defendant's right to use a peremptory challenge under NRS 175.061(5)
was inhibited. Id. But because the defendant did not object, the Moore
court reviewed the statutory violation for plain error and concluded that
the blind-alternate system did not violate any of the defendant's
substantial rights. Id. at 37, 126 P.3d at 514.
Here, much like the blind-alternate system in Moore, the
lottery system impaired Simmons' right to use a peremptory challenge
against an alternate juror under NRS 175.061(5). But, unlike the
defendant in Moore, Simmons objected. The district court's demand that
Simmons state a substantial right that was being harmed likely arose
from its misapprehension as to why the Moore court focused on
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substantial rights in its disposition—plain error review applied to the
issue because of the absence of an objection. See id. at 36-37, 126 P.3d at
514. Moreover, the district court overlooked the Moore court's conclusion
that the use of blind alternates violated NRS 175.061(5). See id. at 37, 126
P.3d at 514. Hence, the district court's decision here to use its lottery
system, despite knowing that it violated NRS 175.061(5), was an abuse of
discretion. We do not address whether this abuse of discretion was
reversible error on its own because we conclude that it contributed to the
cumulative error requiring reversal, as addressed below.
Cumulative error
The cumulative effect of errors, which alone could be
harmless, "may violate a defendant's constitutional right to a fair trial."
Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). In
evaluating cumulative error, we consider "(1) whether the issue of guilt is
close, (2) the quantity and character of the error, and (3) the gravity of the
crime charged." Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55
(2000).
The issue of guilt
In determining whether the issue of guilt is close, we start by
resolving whether there was sufficient evidence for the jury's verdict. To
assess the sufficiency of the evidence, we ask "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." Nolan v. State, 122 Nev. 363, 377, 132 P.3d 564, 573
(2006) (alteration in original) (internal quotations omitted).
Battery and battery with the intent to commit sexual assault
Under both the battery statute and the battery with the intent
to commit sexual assault statute, battery is defined as "any willful and
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unlawful use of force or violence upon the person of another." NRS
200.400(1)(a); NRS 200.481(1)(a). 3 The term "use" is singular, thereby
signifying that each single use of force or violence is subject to punishment
as a battery; the term "any" modifies the word "use," thereby expanding
the types of force and violence that are punishable as a battery. See NRS
200.400(1)(a); NRS 200.481(1)(a). Hence, the battery statutes' language
permits the separate punishment for each unlawful use of force or violence
that occurs during a criminal episode.
Smith's and Bolt's testimonies identify two separate acts of
battery—one at the crib and one on the bed. Smith and Bolt each testified
that Simmons put his hand around Smith's throat and forcibly held her
against the crib. This was an unlawful use of force. Thus, Smith's and
Bolt's testimonies provided sufficient evidence to support Simmons'
conviction of battery. According to Smith's testimony, Bolt broke up this
violent altercation, after which the second battery occurred on the bed.
Smith testified that after Bolt ended the first altercation, he showered,
during which time Simmons forced Smith onto the bed, wrapped his hands
around Smith's neck, made her undress, and sexually assaulted her.
Thus, after a temporal break that followed the first battery, Simmons
committed another unlawful use of force on the bed, which was followed by
the sexual assault. Thus, there was sufficient evidence to sustain
Simmons' conviction of battery with the intent to commit sexual assault.
3 The 2013 Legislature amended NRS 200.481. 2013 Nev. Stat., ch.
343, § 137, at 80. While the amended language does not appear to change
the court's analysis, the appeal is governed by the pre-amendment version
of NRS 200.481. See NRS 200.481 (2012).
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Sexual assault with the use of a deadly weapon and first-
degree kidnapping with the use of a deadly weapon
One commits sexual assault with the use of a deadly weapon if
he or she "subjects another person to sexual penetration, or. . . forces
another person to make a sexual penetration on himself or
herself. . . against the will of the victim," NRS 200.366(1), and does so by
using a deadly weapon. NRS 193.165(1), (5). One commits first-degree
kidnapping with the use of a deadly weapon if he or she "willfully seizes,
confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries
away a person by any means whatsoever with the intent to hold or detain,
or who holds or detains, the person. . . for the purpose of committing
sexual assault," NRS 200.310, and does so by using a deadly weapon.
NRS 193.165(1), (5). A deadly weapon is an instrument that is "readily
capable of causing substantial bodily harm." NRS 193.165(6)(b). Using a
deadly weapon includes "conduct which produces a fear of harm or force by
means or display of a deadly weapon." Carr v. Sheriff, Clark Cnty., 95
Nev. 688, 690, 601 P.2d 422, 424 (1979).
As to sexual assault with a deadly weapon, Smith testified
that Simmons threw her on the bed and threatened to kill her. She
further testified that Simmons waived a knife to her face while
threatening to use it against her and that she saw Simmons bend over the
bed with the knife and resurface without it—thus appearing to have
placed the knife under the mattress. The knife was six to eight inches
long and was deeply serrated. According to Smith's testimony, despite her
not consenting, Simmons sexually penetrated her with his penis. Smith's
testimony provided sufficient evidence for the jury to conclude that
Simmons displayed a knife to Smith just prior to the nonconsensual sex,
thereby using a knife to overcome her will as part of the sexual assault.
Thus, there was sufficient evidence for Simmons' conviction of sexual
assault with a deadly weapon.
As to first-degree kidnapping with the use of a deadly weapon,
Smith testified that before Simmons' first act of battery, she attempted to
leave the studio, but Simmons grabbed her arm and stopped her. She
tried numerous times to leave, but Simmons continued to physically
prevent her from doing so. Bolt testified that just before the first act of
battery, she overheard Simmons threaten to use the knife on Smith. She
also testified that the knife was in plain sight because it was on a table.
Smith's and Bolt's testimonies provided enough evidence for the jury to
conclude that Simmons threatened Smith with a knife that was visible to
Smith while Simmons physically kept Smith inside the studio, so as to
sexually assault her. Hence, Smith's and Bolt's testimonies provided
sufficient evidence to support Simmons' conviction of first-degree
kidnapping with the use of a deadly weapon.
The evidence was not overwhelming
Although the evidence of guilt was sufficient for the jury's
verdict, it was not overwhelming. Smith's testimony provided much of the
evidence of Simmons' guilt. Yet, with respect to how long Smith stayed in
Bolt's studio, the people who stayed there, Smith's relationship with
Simmons, and the timing and order of events, Smith's testimony conflicted
with the testimonies of other witnesses. Of particular significance, while
Smith denied using methamphetamines when at the studio, Bolt and
others testified that Smith used methamphetamines on numerous
occasions during that span of time. This use of drugs may account for why
there were contradictions between Smith's testimony and the testimony of
others. For the purpose of assessing the sufficiency of the evidence for the
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verdict, we do not weigh the inconsistencies and credibility of Smith's
testimony, as that was the province of the jury. See Nolan, 122 Nev. at
377, 132 P.3d at 573. But, in concluding that the evidence of guilt was not
overwhelming, we acknowledge these inconsistencies and the possibility
that Smith's ability to recall the events may have been inhibited by the
use of methamphetamines while at the studio.
The quantity and character of the errors and the gravity of the crimes
A criminal defendant has a constitutional right to be tried by a
fair and impartial jury. U.S. Const. amend. VI; U.S. Const. amend. XIV, §
1; Nev. Const. art. 1, § 3. Hence, the errors below that affected the process
for empaneling a fair and impartial jury are concerning.
Peremptory challenges are a "means to the constitutional end
of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42,
57 (1992). Here, the district court's lottery process clearly violated the law
that governs the use of peremptory challenges against prospective
alternate jurors. See NRS 175.061(5). The district court denied Simmons
his statutory right to use a peremptory challenge against alternate jurors
and, incidentally, affected his ability to make informed peremptory
challenges. See id. Thus, the process for empaneling a fair and impartial
jury was compromised.
The United States Constitution provides for a defendant's
right to a "venire selected from a fair cross section of the community."
Williams v. State, 121 Nev. 934, 939, 125 P.3d 627, 631 (2005). In this
matter, the district court gave inadequate consideration to this
constitutional right when Simmons objected to the jury venire's racial
composition. This dismissive attitude toward Simmons' objection resulted
in a poorly developed record, which precluded a meaningful review of an
issue regarding Simmons' constitutional right. We refuse to ignore the
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possibility that Simmons' objection had merit and, if the district court had
given him the opportunity, that Simmons could have shown such merit on
the record.
Although the crimes charged against Nelson were grave, the
evidence was not overwhelming, and the errors that compromised the
process for selecting a fair and impartial jury were cumulatively
substantial. Because Simmons' right and ability to use his peremptory
challenges were compromised, and due to the poorly developed record that
prevents us from concluding that the selection of the jury venire did not
violate Simmons' constitutional rights, we cannot state with confidence
"that the verdict would have been the same in the absence of [these]
error[s]." Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985).
Thus, we conclude that the cumulative effect of the error requires a
reversal of the conviction and warrants a new trial.
For the foregoing reasons, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Gibbons
-- . J.
Douglas
J.
Saitta
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cc: Hon. Doug Smith, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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