Taylor v. State , 2016 NV 27 ( 2016 )

132 Nev., Advance Opinion 2.7
IN THE SUPREME COURT OF THE STATE OF NEVADA
DONALD TAYLOR, No. 65388
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. APR 2 1 2016
173AsstE K. LINDEMAN
HL Ft=
CHIEF DEPUTY CLERK
Appeal from a judgment of conviction, pursuant a jury
verdict, of burglary while in possession of a firearm, conspiracy to commit
robbery, robbery with the use of a deadly weapon, and murder with the
use of a deadly weapon. Eighth Judicial District Court, Clark County;
David B. Barker, Judge.
Affirmed.
Drummond Law Firm and Craig W. Drummond, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Nell E. Christensen, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDEST'?, SAITTA and PICKERING, JJ."
'Subsequent to the oral arguments held in this matter, The
Honorable James W. Hardesty, Justice, was administratively assigned to
participate in the disposition of this matter in the place and stead of The
Honorable Mark Gibbons, Justice. The Honorable James W. Hardesty,
Justice, has considered all arguments and briefs in this matter.
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OPINION
By the Court, SAITTA, J.:
This opinion addresses whether the State's warrantless access
of historical cell site location data obtained from a cell phone service
provider pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d),
violates the Fourth Amendment. We hold that it does not because a
defendant does not have a reasonable expectation of privacy in this data,
as it is a part of business records made, kept, and owned by cell phone
providers. Thus, the "specific and articulable facts" standard set forth at
18 U.S.C. § 2703(d) is sufficient to permit the access of historical cell
phone information, and probable cause is not required.
This opinion also addresses the alleged violations of appellant
Donald Taylor's right to due process of law and his right against self-
incrimination, as well as alleged insufficiency of the evidence and
cumulative error.
FACTUAL AND PROCEDURAL HISTORY
The robbery-murder
On November 18, 2010, at approximately 2 p.m., Michael
Pearson and his girlfriend's three-year-old son arrived at Angela
Chenault's apartment. Chenault is the mother of Pearson's girlfriend,
Tyniah Haddon. After taking her grandson to the bedroom, Chenault
went to the kitchen, where she cooked while she talked with Pearson.
Pearson told Chenault that he was meeting his friends at her apartment.
Pearson brought a black bag containing marijuana with him into the
apartment and placed it on top of the refrigerator. Chenault saw Pearson
sit on the couch and talk to someone on his phone.
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At some point, Pearson left the apartment and returned with
two men. Chenault never met either of these men before and neither
introduced themselves to her. One of the men walked around the
apartment and went toward the bedroom. To prevent the man from going
inside the bedroom where her grandson was watching television, Chenault
stood in front of the bedroom door. She momentarily stood face-to-face
with the man. He asked who was in the bedroom, and Chenault replied
that her grandson was in there. Chenault noticed that the man was
holding a gun During the trial, Chenault identified that man as Taylor.
Chenault returned to the kitchen stove and resumed cooking.
Pearson removed the black bag from the top of the refrigerator and placed
it on the kitchen table. He asked for money from the two men in exchange
for the black bag, but the men responded, "No, we taking this." Pearson
then said, "Take it." Chenault saw the men begin going through Pearson's
pockets and saw Pearson attempt to grab a gun on his waistband. During
this time, Chenault turned back to the stove. Shots were fired, and when
Chenault turned around, she found Pearson lying in a pool of blood and
saw that the men had fled with the black bag. Chenault did not observe
the actual shooting.
Incidents leading to Taylor's arrest
Las Vegas Metropolitan Police Detectives Christopher Bunn
and Marty Wildemann responded to the scene of the shooting. After
interviewing Chenault, Detective Wildemann interviewed Haddon.
Haddon told Detective Wildemann that Pearson was going to sell
marijuana to someone that she knew as "D." She also informed Detective
Wildemann that she had met "D" at one of Pearson's coworker's houses.
Detective Wildemann gave Pearson's cell phone number to the FBI and
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asked for their assistance regarding possible contacts that Pearson made
just before the murder occurred.
The FBI provided Detective Wildemann with a phone number
to which Pearson placed a call shortly before the murder. Homicide
detectives then processed the phone number through government records
and were able to link it to an individual named Jennifer Archer.
While conducting surveillance on Archer, Detective
Wildemann observed Archer exit her vehicle and enter a bar. When
Archer returned to her vehicle, she was accompanied by an unknown
male. After initiating a traffic stop of Archer's vehicle, Detective
Wildemann arrested the male passenger, who identified himself as Taylor.
Taylor gave Detective Wildemann his cell phone and cell phone number.
Detective Wildemann dialed the phone number given to him by the FBI.
Taylor's cell phone rang. Detective Wildemann then contacted Chenault
to come and identify Taylor.
The out-of-court identification procedure
Detective Wildemann arranged to meet with Chenault and
bring her to the parking lot where Taylor was being held to "conduct a
one-on-one." 2 The time was 11:45 p.m., and it was "[plitch black." The
lighting conditions were such that Detective Wildemann had to
"superimpose a bunch of lighting on [Taylor]" by pulling vehicles around
Taylor and lighting up the spot where Taylor was standing with a patrol
car spotlight. After explaining the process to Chenault, Detective
2A one-on-one, or show-up, is a procedure where the police officer
brings the witness to the location where the suspect is being held in order
to determine whether the witness can make a positive identification of the
suspect.
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Wildemann drove her about 15 to 20 yards from where Taylor was
standing. Detective Wildemann then drove closer so Chenault could see
Taylor more clearly.
Chenault told Detective Wildemann that "she [did not] think
that that's him; she just [did not] recognize that to be him." Detective
Wildemann pulled the vehicle around and asked Chenault again for her
thoughts. Chenault told Detective Wildemann that Taylor looked like the
man from the apartment, but believed that Taylor was thicker than the
man who was at the apartment. Chenault said that Taylor was "just a
bigger guy." Detective Wildemann asked Chenault to focus on Taylor's
face, and at that point Chenault said, "[lit looks like him"
After driving Chenault home, Detective Wildemann texted a
photograph of Taylor to Haddon. He asked Haddon to tell him if it was a
photograph of "D." Haddon immediately responded, "That's D, that's
him" Haddon then showed the photograph to Chenault, who told Haddon
that the man in the picture was the person who shot Pearson.
Taylor's indictment and conviction
On January 14, 2011, a Clark County grand jury indicted
Taylor on the following charges: burglary while in possession of a firearm,
conspiracy to commit robbery, robbery with the use of a deadly weapon,
and murder with the use of a deadly weapon. After a six-day jury trial,
the jury returned a verdict of guilty on all four counts. Taylor filed a
motion for a new trial, which was denied by the district court. The
judgment of conviction was filed on March 7, 2014 This appeal followed.
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DISCUSSION
The warrantless access and use of Taylor's historical cell phone location
data did not violate Taylor's Fourth Amendment rights
Taylor contends that a person has an objectively reasonable
expectation of privacy in the access to and the use of his or her historical
cell phone location data. He further contends that his Fourth Amendment
rights were violated because the State did not have a warrant for his
historical cell phone location data.
A search warrant is not required to obtain historical cell site location
information
Pursuant to a subpoena under the Stored Communications
Act, Sprint-Nextel provided the State with a call-detail record with cell
site information for Taylor's phone. 3 The records covered November 11,
2010, through November 18, 2010. Although they do not provide the
content of calls or text messages, the records do provide certain
information about those communications. For example, the records show
various incoming and outgoing calls. They also demonstrate the time and
dates of the calls or text messages, along with the duration for each, as
well as the location of the cell towers routing the calls.
3 "The [Stored Communications Act] was passed in 1986 as part of
the Electronic Communications Privacy Act of 1986" and is contained in 18
U.S.C. §§ 2701-2710. Kyle Malone, The Fourth Amendment and the
Stored Communications Act: Why the Warrantless Gathering of Historical
Cell Site Location Information Poses No Threat to Privacy, 39 Pepp. L.
Rev. 701, 716 & n.103 (2013). Section 2703(d) of the Stored
Communications Act allows for disclosure of private communications data
via court order "if the governmental entity offers specific and articulable
facts showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication, or the records or other
information sought, are relevant and material to an ongoing criminal
investigation." 18 U.S.C. § 2703(d) (2012).
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Generally, the phone seeks the cell tower emitting the
strongest signal, not necessarily the closest tower. This was relevant at
trial because the cell phone tower records indicated that a phone call was
made using Taylor's phone close to the time of the murder and the Sprint-
Nextel cell tower closest to the location of the murder routed the call.
There are two types of cell site location information (CSLI)
that law enforcement can acquire from cell phone companies. Kyle
Malone, The Fourth Amendment and the Stored Communications Act: Why
the Warrantless Gathering of Historical Cell Site Location Information
Poses No Threat to Privacy, 39 Pepp. L. Rev. 701, 710 (2013). Law
enforcement can either obtain records that a company has kept containing
CSLI, known as "historical CSLI," or it "can request to view incoming
CSLI as it is received from a user's cell phone in 'real time,' known as
"prospective CSLI." Id. Generally, courts have held that prospective CSLI
requires a warrant before disclosure may be granted. Id. However, only a
few courts have addressed the issue of whether historical CSLI requires a
warrant. Id.A warrant is not required under the Fourth Amendment to
obtain historical CSLI
The phone records received by the State were obtained based
on the "specific and articulable facts" standard set forth in 18 U.S.C.
§ 2703(d).4 Federal appellate courts that have reached this issue appear
to agree that this "specific and articulable facts" standard is sufficient for
4 Taylor does not dispute whether the State had "specific and
articulable facts" to obtain a subpoena under the Stored Communications
Act but, rather, argues that the standard for obtaining historical CSLI
should be probable cause.
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obtaining phone records. See In re Application of U.S. for an Order
Directing Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620
F.3d 304, 313 (3d Cir. 2010) (holding that "CSLI from cell phone calls is
obtainable under a § 2703(d) order and that such an order does not require
the traditional probable cause determination"); see also United States v.
Davis, 785 F.3d 498, 511 (11th Cir. 2015) (holding that CSLI data may be
constitutionally obtained without a warrant); In re Application of the U.S.
for Historical Cell Site Data, 724 F.3d 600, 612-13 (5th Cir. 2013) (holding
the same). However, the circuit courts are not consistent when defining
the types of phone records that are obtainable under the "specific and
articulable facts" standard.
For example, the United States Court of Appeals for the Third
Circuit in In re Application of United States for an Order Directing
Provider of Electronic Communication Service to Disclose Records to
Government held that magistrate judges have discretion to require a
warrant for historical CSLI if they determine that the location information
sought will implicate the suspect's Fourth Amendment privacy rights. 620
F.3d at 319. In reaching this conclusion, the court rejected the argument
that a cell phone user's expectation of privacy is eliminated by the service
provider's ability to access that information:
A cell phone customer has not "voluntarily"
shared his location information with a cellular
provider in any meaningful way. . . . [I]t is
unlikely that cell phone customers are aware that
their cell phone providers collect and store
historical location information. Therefore, [wthen
a cell phone user makes a call, the only
information that is voluntarily and knowingly
conveyed to the phone company is the number
that is dialed and there is no indication to the user
that making that call will also locate the caller;
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when a cell phone user receives a call, he hasn't
voluntarily exposed anything at all.
Id. at 317-18 (alteration in original) (internal quotations omitted).
However, the court also held that "CSLI from cell phone calls is obtainable
under a § 2703(d) order and that such an order does not require the
traditional probable cause determination." Id. at 313. Judge Tashima's
concurrence notes that "the majority . . . appears to contradict its own
holding." Id. at 320 (Tashima, J., concurring). Therefore, while the court
held that a cell phone user does not lose their expectation of privacy
simply by making or receiving a call, it is unclear whether the Third
Circuit's decision requires the specific-and-articulable-facts standard or
the more stringent probable cause standard, which would require a
warrant, before historical CSLI can be obtained.
In In re Application of United States for Historical Cell Site
Data, the United States Court of Appeals for the Fifth Circuit determined
that cell phone users, by and large, do not have an expectation of privacy
with regard to CSLI, as they are aware that their phones must emit CSLI
to cell phone providers in order to receive cell phone service but continue
to use their cell phones to place calls and, thus, voluntarily convey CSLI to
cell phone providers. 724 F.3d at 612-13. The Fifth Circuit stressed that
the telephone company, not the government, collects the cell tower
information for a variety of legitimate business purposes. Id. at 611-14.
The court explained that a cell phone user has no subjective expectation of
privacy because: (1) the cell phone user has knowledge that his or her cell
phone must send a signal to a nearby cell tower in order to wirelessly
connect the call; (2) the signal only happens when a user makes or receives
a call; (3) the cell phone user has knowledge that when he or she places or
receives a call, there are signals transmitted through the cell phone to the
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nearest cell tower and thus to the service provider; and (4) as such, the cell
phone user is aware that he or she is conveying cell tower location
information to the service provider and voluntarily does so when using a
cell phone for calls. Id. at 613-14.
In spite of this, the court's holding is limited. Id. at 615. The
court only decided the narrow issue of whether § 2703(d) "orders to obtain
historical cell site information for specified cell phones at the points at
which the user places and terminates a call [were] . . . unconstitutional."
Id. (emphasis omitted). The court held that § 2703(d) orders are not
unconstitutional, thereby allowing for the lesser standard of "specific and
articulable facts" in such cases. Id. The court did not address
orders requesting data from all phones that use a
tower during a particular interval, orders
requesting cell site information for the recipient of
a call from the cell phone specified in the order, or
orders requesting location information for the
duration of the calls or when the phone is idle
(assuming the data are available for these
periods). Nor do we address situations where the
Government surreptitiously installs spyware on a
target's phone or otherwise hijacks the phone's
GPS, with or without the service provider's help.
Id. Therefore, the court's decision implies that the specific-and-
articulable-facts standard is sufficient for historical CSLI, to the extent
that the information obtained relates to phone calls that were made and/or
terminated by the cell phone user specified in the order. 5
5The United States Court of Appeals for the Sixth Circuit has also
ruled on whether a person has a reasonable expectation of privacy in the
data transmitted from a cell phone, thereby requiring a probable cause
standard. United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012).
The court's holding implies that the probable cause standard is not
continued on next page...
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In United States v. Davis, the Eleventh Circuit Court of
Appeals held that a defendant "ha[s] no reasonable expectation of privacy
in business records made, kept, and owned by [his or her cell phone
provider]." 785 F.3d 498, 517 (11th Cir. 2015). These records included
telephone numbers of calls made by and to the defendant's phone; whether
the calls were incoming or outgoing; the date, time, and duration of the
calls; as well as historical cell site location information. Id. at 503. The
court noted that historical cell site location information reveals the precise
location of the cell phone towers that route the calls made by a person but
do not reveal the precise location of the cell phone or the cell phone user.
Id. at 504. The court rejected the argument that cell phone users retain
an expectation of privacy in the data because they do not voluntarily
convey their location information to the service provider. Id. at 517. The
court also held that "[t]he stored telephone records produced in this case,
and in many other criminal cases, serve compelling governmental
interests." Id. at 518.
Thus, while federal courts generally agree that probable cause
is not necessary for obtaining a cell phone user's historical CSLI, the
information that can be obtained without probable cause does vary from
circuit to circuit. The position taken by the Eleventh Circuit Court of
Appeals is persuasive, and we hold that the "specific and articulable facts"
standard under § 2703(d) is sufficient to obtain historical cell phone
information because a defendant has no reasonable expectation of privacy
...continued
required for a cell phone user's CSLI, at least where the cell phone user is
on a public thoroughfare. Id. at 781.
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in business records made, kept, and owned by his or her cell phone
provider.
Taylor's Fourth Amendment rights were not violated
Here, the police obtained a § 2703(d) order by meeting the
"specific and articulable facts" standard. The order allowed them to obtain
Taylor's historical CSLI, including his location—within 2 5 miles of the
murder scene—at the time he placed a call, shortly before the murder
occurred, and the call and text message records between his and Pearson's
cell phones leading up to the robbery-murder. Because Taylor does not
have a reasonable expectation of privacy in business records made, kept,
and owned by his provider, Sprint-Nextel, a warrant requiring probable
cause was not required before obtaining that information. Thus, we hold
that Taylor's Fourth Amendment rights were not violated.
The out-of-court and in-court identifications did not violate Taylor's
constitutional right to due process of law
Taylor challenges Chenault's identification of him during the
show-up as the person in her apartment during the crime, as well as her
positive identification of Taylor during trial."
"Although Taylor alludes to the impropriety of the photograph that
was sent to Haddon, he fails to argue in his appellate briefing that the
single photograph was unnecessarily suggestive and unreliable. Although
an argument can be made that the photograph was unnecessarily
suggestive and unreliable because Chenault was shown a single
photograph by her daughter that had been sent via text by Detective
Wildemann, see In re Anthony T., 169 Cal. Rptr. 120, 123 (Ct. App. 1980)
("[I]f appellant was wrongfully identified and convicted it matters not to
him whether the injustice was due to the actions of the private citizens or
the police."), Taylor does not cogently argue this claim or provide relevant
authority in support of it. Therefore, we need not reach the merits of this
issue. Browning v. State, 120 Nev. 347, 354, 91 P.3d 39, 45 (2004) (stating
that "an appellant must present relevant authority and cogent argument;
continued on next page...
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In deciding whether a pretrial identification is constitutionally
sound, the test is whether, considering the totality of the circumstances,
the identification procedure "was so unnecessarily suggestive and
conducive to irreparable mistaken identification that [appellant] was
denied due process of law." Banks v. State, 94 Nev. 90, 94, 575 P.2d 592,
595 (1978) (alteration in original) (quoting Stovall v. Denno, 388 U.S. 293,
302 (1967)). "First, the procedure must be shown to be suggestive[ I and
unnecessary [due to] lack of emergency or exigent circumstances." Id. If
the procedure is suggestive and unnecessary, "the second inquiry is
whether, under all the circumstances, the identification is reliable despite
an unnecessarily suggestive identification procedure." Id. "Reliability is
the paramount concern." Jones v. State, 95 Nev. 613, 617, 600 P.2d 247,
250 (1979). As long as the identification is sufficiently reliable, "it is for
the jury to weigh the evidence and assess the credibility of the
eyewitnesses." Gehrke v. State, 96 Nev. 581, 584, 613 P.2d 1028, 1029
(1980).
Exigent circumstances justified the show-up identification procedure
A show-up "is inherently suggestive because it is apparent
that law enforcement officials believe they have caught the offender."
Jones, 95 Nev. at 617, 600 P.2d at 250. However, countervailing policy
considerations may justify the use of a show-up. Id. Countervailing policy
considerations are related to the presence of exigent circumstances that
necessitate prompt identification. See Gehrke, 96 Nev. at 584 n.2, 613
P.2d at 1030 n.2. Examples of exigencies sufficient to justify a show-up
...continued
issues not so presented need not be addressed by this court" (internal
quotations omitted)).
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include: (1) ensuring fresher memory, Jones, 95 Nev. at 617, 600 P.2d at
250; (2) exonerating innocent people by making prompt identifications, id.;
and (3) ensuring that those committing serious or dangerous felonies are
swiftly apprehended, Banks, 94 Nev. at 95, 575 P.2d at 595. Where
exigencies such as these are absent, however, show-ups are not justified.
See Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
In this case, exigent circumstances justified the show-up
identification procedure. Specifically, the show-up was necessary to
quickly apprehend a dangerous felon. See Banks, 94 Nev. at 95, 575 P.2d
at 595-96. In Banks, the victim picked up hitchhikers who proceeded to
rob him at gunpoint. Id. at 92, 575 P.2d at 594. The court stated that lilt
was imperative for the police to have a prompt determination of whether
the robbery suspects had been apprehended or were still at large." Id. at
95, 575 P.2d at 596.
This case is similar to Banks. Here, two suspects who had just
committed a murder during the course of an armed robbery were at large
after fleeing Chenault's apartment. Like Banks, anyone near the suspects
was a potential victim. See id. at 95, 575 P.2d at 595-96. Furthermore,
the suspects took the marijuana from Chenault's apartment and thus
could have likely committed further illegal acts by either selling the
marijuana in their possession or committing additional robberies.
Therefore, it was essential for the suspects to be swiftly apprehended.
Since exigent circumstances existed in the present case, we hold that the
show-up identification procedure was justified.
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The show-up identification was unreliable
Nevertheless, when dealing with pretrial identification
procedures, "Meliability is the paramount concern." Jones, 95 Nev. at
617, 600 P.2d at 250. In deciding whether a show-up identification
procedure is reliable, we consider factors including: (1) the opportunity of
the witness "to view the [suspect] at the time of the crime," (2) the degree
of attention paid by the witness, (3) "the accuracy of [the witness's] prior
description of the [suspect]," (4) "the level of certainty demonstrated at the
[show-up]" by the witness, and (5) the length of time between the crime
and the show-up. Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
Here, although the record suggests that Chenault may have
had ample opportunity to view the suspects while they looked around her
apartment and conducted the drug deal, the record also suggests that she
may not have been paying sufficient attention to them. The record
suggests that Chenault appeared uncertain during the show-up, as her
description of the suspect was inaccurate with regard to Taylor.
Furthermore, the circumstances of the show-up—which occurred nearly
eight hours after the crime occurred—were highly suspect. Therefore, we
hold that the identification of Taylor was unreliable for purposes of a
show-up.
The in-court identification by Chenault was independently
reliable
The United States Supreme Court has held that even where
an unnecessarily suggestive pretrial procedure occurs that produces an
unreliable identification, subsequent in-court identification by the same
witness is not necessarily excluded where the in-court identification itself
is found to be independently reliable. Manson v. Brat hwaite, 432 U.S. 98,
112-14 (1977). The factors to be considered are identical to those
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enunciated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Id. This court
has adopted the same standard. Browning v. State, 104 Nev. 269, 273-74,
757 P.2d 351, 353-54 (1988).
Here, Chenault's observation of the suspects in her apartment
likely constituted a sufficient independent basis for her in-court
identification of Taylor. The suspects were in her apartment for some
time, and she got at least one good look at the suspect she identified as
being Taylor when they stood face-to-face. Indeed, we have held that
similar opportunities for observations constitute a sufficient independent
basis for an in-court identification. Banks, 94 Nev. at 96, 575 P.2d at 596.
In Banks, "a good look" at the suspects was enough to allow the in-court
identification. Id.; Boone v. State, 85 Nev. 450, 453, 456 P.2d 418, 420
(1969) (holding that "one good look" during a car chase was sufficiently
reliable). Similarly, in Riley v. State, 86 Nev. 244, 468 P.2d 11 (1970), an
observation of seven seconds or less of the suspects was sufficiently
reliable for the in-court identification.
The error was harmless
Where an error is preserved and is of a constitutional nature,
the prosecution must show, "beyond a reasonable doubt, that the error did
not contribute to the verdict." Valdez v. State, 124 Nev. 1172, 1189, 196
P.3d 465, 476 (2008).
Here, although the district court erred by allowing the out-of-
court identification into evidence, the error was cured by the later in-court
identification because it had a sufficient independent basis. Thus, it is
clear beyond a reasonable doubt that the error did not contribute to the
verdict.
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The prosecutorial conduct during closing arguments did not violate
Taylor's Sixth Amendment right to a fair trial or Fifth Amendment right
against self-incrimination
The PowerPoint slide with "GUILTY" superimposed on it did not
violate Taylor's right to a fair trial
The purpose of closing arguments is to "enlighten the jury,
and to assist. . . in analyzing, evaluating, and applying the evidence, so
that the jury may reach a just and reasonable conclusion." 23A C.J.S.
Criminal Law § 1708 (2006) (citations omitted). However, "counsel must
make it clear that the conclusions that he or she urges the jury to reach
are to be drawn from the evidence." Id. Importantly, a prosecutor may
not declare to a jury that a defendant is guilty. See Collier v. State, 101
Nev. 473, 480, 705 P.2d 1126, 1130 (1985). In the context of PowerPoints
used during trial, "a PowerPoint may not be used to make an argument
visually that would be improper if made orally." Watters v. State, 129
Nev., Adv. Op. 94, 313 P.3d 243, 247 (2013) (reversing where PowerPoint
slide with "Guilty" superimposed over defendant's image was displayed
extensively during opening statement). However, this court has held that
a photograph with the word "guilty" across the front shown during closing
arguments is not, on its own, sufficient for a finding of error. Artiga-
Morales v. State, 130 Nev., Adv. Op. 77, 335 P.3d 179, 182 (2014).
The State used the PowerPoint presentation to make an
improper oral argument visually—namely, to declare to the jury that
Taylor was guilty by superimposing "GUILTY" on a PowerPoint slide.
However, the slide was displayed briefly only at the very end of the
prosecutor's closing arguments, and the defense did not object to the slide.
Accordingly, the PowerPoint slide, on its own, was not sufficient for a
finding of error.
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The comments made during closing arguments did not violate
Taylor's Sixth Amendment right to a fair trial or Fifth Amendment
right against self-incrimination
Taylor argues that the prosecutor made comments during
closing arguments that could only be construed as the prosecutor's
improper personal opinion that Taylor was guilty. Taylor also argues that
the prosecutor impermissibly commented on his decision not to testify
during trial.
The prosecutor's comments during closing arguments were
permissible
The "injection of personal beliefs into the argument detracts
from the unprejudiced, impartial, and nonpartisan role that a prosecuting
attorney assumes in the courtroom." Collier, 101 Nev. at 480, 705 P.2d at
1130 (internal quotations omitted). Therefore, prosecutors are prohibited
from expressing their personal beliefs on the defendant's guilt. Id.However, Is] tatements by the prosecutor, in argument, indicative of his
opinion, belief, or knowledge as to the guilt of the accused, when made as a
deduction or conclusion from the evidence introduced in the trial, are
permissible and unobjectionable." Domingues v. State, 112 Nev. 683, 696,
917 P.2d 1364, 1373 (1996).
Here, one of the prosecutors stated, "The defense suggests that
it's not [Taylor's] phone. . . , [and] I would submit to you [that the defense
suggests this] because the person using that phone is guilty of the crimes
charged in this case. So he's got to distance himself from that phone. But
the evidence is overwhelming. He can't."
This statement was preceded by a review of the text messages
between the cell phone recovered from Taylor and Pearson's cell phone.
This was after the evidence tied Taylor to the phone number used to text
Pearson. Therefore, in this instance, the prosecutor's comments were
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reasonable conclusions based on the evidence presented and were not
improper. Id. Furthermore, the record substantiates the prosecutor's
statement that the phone was Taylor's and that Taylor texted Pearson
prior to the robbery-murder.
On rebuttal, the prosecutor said, "I submit to you that there's
at least one person in this room who knows beyond a shadow of a doubt
who killed. Pearson."7 Like the statement addressed above, this
statement followed a summation of evidence. The statement reflects the
prosecutor's conclusions based on the evidence regarding the cell phone
records and Archer's testimony regarding Taylor's behavior that day.
Therefore, we hold that the prosecutor's statement was not improper. Id.The prosecutor did not comment on Taylor's decision not to testify
The Fifth Amendment requires that the State refrain from
directly commenting on the defendant's decision not to testify. Griffin v.
California, 380 U.S. 609, 615 (1965); Harkness v. State, 107 Nev. 800, 803,
820 P.2d 759, 761 (1991). A direct comment on a defendant's failure to
testify is a per se violation of the Fifth Amendment. Harkness, 107 Nev.
at 803, 820 P.2d at 761. However, an indirect comment violates the
defendant's Fifth Amendment right against self-incrimination only if the
comment "was manifestly intended to be or was of such a character that
the jury would naturally and necessarily take it to be comment on the
defendant's failure to testify." Id. (internal quotations omitted).
Taylor contends that the prosecutor's statements were similar
to those made in Harkness and thus deprived him of his Fifth Amendment
7 The
first prosecutor handled the State's closing argument, and the
second prosecutor handled the State's rebuttal to the defense's closing
argument.
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rights. In Harkness, the defendant chose not to testify in his defense, and
the prosecution commented on gaps in the evidence, intimating that the
defendant was the only one who could resolve those gaps: "If we have to
speculate and guess about what really happened in this case, whose fault
is it if we don't know the facts in this case?" Id. at 802, 820 P.2d at 760(internal quotations omitted). This court held those comments to be
indirect references to the defendant's failure to testify. Id. at 804, 820
P.2d at 761. We also held that these comments violated the defendant's
Fifth Amendment rights because, when taken in full context, there was a
likelihood that the jury took those statements to be a comment on the
defendant's failure to testify. Id.In the present case, the prosecutor made the following
comments:
There has to be a rational explanation for
the evidence. . . I challenge you to come up with a
reasonable explanation of the truth if it does not
involve the guilt of Donald Lee Taylor.. . .
. . . I submit to you that there's at least one
person in this room who knows beyond a shadow
of a doubt who killed. .. Pearson. And I submit to
you if you're doing your duty and you're doing your
job, you'll go back in that room and you'll come
back here and you'll tell that person you know,
too.
Although the comments by the prosecutor indirectly
referenced Taylor's failure to testify, unlike the comments in Harkness
that blamed the defendant for the lack of information about what had
happened in that case, neither comment here "was manifestly intended to
be or was of such a character that the jury would naturally and
necessarily take it to be comment on the defendant's failure to testify." Id.SUPREME COURT
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(internal quotations omitted). Therefore, there was no error and Taylor's
Fifth Amendment right against self-incrimination was not violated.
There was sufficient evidence at trial to support the jury's finding of guilt
In reviewing the evidence supporting a jury's verdict, the
question is not "whether this court is convinced of the defendant's guilt
beyond a reasonable doubt, but whether the jury, acting reasonably, could
be convinced to that certitude by evidence it had a right to [consider]."
Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974).
"Moreover, a jury may reasonably rely upon circumstantial evidence; to
conclude otherwise would mean that a criminal could commit a secret
murder, destroy the body of the victim, and escape punishment despite
convincing circumstantial evidence against him or her." Wilkins v. State,
96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
The evidence here indicated that, prior to the murder, Taylor
and Pearson had discussed and planned a sale of marijuana. Chenault's
identification of Taylor placed him at the scene of the crime with a gun.
She also testified that Taylor stated that he and the other suspect were
"taking [the marijuana]" after Pearson demanded payment. Chenault
further testified that she heard gun shots and saw Pearson lying in a pool
of blood. Finally, Chenault testified that she saw the men take what she
believed to be the marijuana before fleeing the scene.
In addition to this evidence, cell phone records connected
Taylor and Pearson with calls and text messages prior to the offense and
placed Taylor near the crime scene around the time of the murder.
Evidence also showed that Taylor subsequently engaged in furtive
behavior after the offense, telling Archer to delete text messages, that "it's
all bad," and that he had to get out of the state.
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We conclude that the evidence was sufficient to establish that
Taylor entered Chenault's apartment with the intent to commit a felony,
that he conspired to commit a robbery, that he unlawfully took property
from Pearson by use of a deadly weapon, and that he committed the
unlawful killing of a human being during the commission of a robbery.
When viewed in the light most favorable to the State, there was sufficient
evidence for the jury, acting reasonably, to have been convinced beyond a
reasonable doubt that Taylor was guilty of these crimes. Edwards, 90
Nev. at 258-59, 524 P.2d at 331. 8
CONCLUSION
The district court did not err by allowing access to historical
cell phone information obtained without a warrant because a defendant
does not have a reasonable expectation of privacy in business records
made, kept, and owned by his provider. Thus, the "specific and articulable
facts" standard set forth in 18 U.S.C. § 2703(d) is sufficient to obtain
historical cell phone information. Although the district court erred by
admitting the out-of-court identification, the error was harmless beyond a
reasonable doubt and the subsequent in-court identification of Taylor had
a sufficient independent basis. Additionally, there was no prosecutorial
misconduct during closing arguments because the PowerPoint slide, on its
own, was not sufficient for a finding of error, and the prosecutors'
statements were reasonable conclusions based on the evidence presented
at trial. Furthermore, neither comment by the prosecutors was of such
character that the jury would naturally and necessarily take them to be
sBecause we hold that only one error was committed by the district
court, we do not reach the issue of whether there was cumulative error.
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comments on Taylor's failure to testify. Lastly, there was sufficient
evidence at trial to support the jury's finding of guilt. Accordingly, we
affirm the judgment of conviction.
, J.
We concur:
J.
J.
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