Sanders (Debaron) v. State ( 2013 )

 The jury heard testimony that Undrewent Evans drove
Sanders, Larry Bailey, and Gregory Boyd to a party in her car. When they
arrived, they encountered the two victims and asked whether the party
was over. The victims stated that the party ended after the police arrived
and they were leaving the area because they were carrying guns. The
victims walked away and Sanders, Bailey, and Boyd got back into Evans'
car. Boyd suggested that they should rob the victims of their guns. Evans
had given Bailey the keys to her car, so Sanders, Bailey, and Boyd used
her car to pursue the victims. Bailey drove past the victims and parked
the car ahead of their direction of travel. As the victims traveled past the
parked car, Boyd and Sanders got out and shot at the victims as they ran
away. Bailey urged Boyd and Sanders to get back in the car and then
drove to the Denny's restaurant where they were apprehended. Sanders
testified that Bailey was the getaway driver for the robbery and admitted
that he fired eight rounds at the back of a victim who was running away.
We conclude that a rational juror could reasonably infer from
this evidence that Sanders conspired with others to commit robbery and
murder and attempted to commit robbery with the use of a deadly weapon.
See NRS 193.165(1); NRS 193.200; NRS 193.330(1); NRS 199.480(1); NRS
200.010; NRS 200.380(1); Sharma v. State, 118 Nev. 648, 659, 56 P.3d 868,
874 (2002) ("Mntent can rarely be proven by direct evidence of a
defendant's state of mind, but instead is inferred by the jury from the
individualized, external circumstances of the crime, which are capable of
proof at trial."); Garner v. State, 116 Nev. 770, 780, 6 P.3d 1013, 1020
(1998) ("Evidence of a coordinated series of acts furthering the underlying
offense is sufficient to infer the existence of an agreement and support a
conspiracy conviction."), overruled on other grounds by Sharma, 118 Nev.
SUPREME COURT
OF
NEVADA
2
(0) 1947A 66.
111111 ,WISM.,TVAMVVafif;Sou 'W-111091t1-3,6P ' -;;',":sita 1 ft
at 655, 56 P.3d at 872. It is for the jury to determine the weight and
credibility to give conflicting testimony, and the jury's verdict will not be
disturbed on appeal where, as here, substantial evidence supports the
verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). We
further conclude that the district court acted within its discretion by not
issuing an advisory verdict. See NRS 175.381(1); Milton v. State, 111 Nev.
1487, 1493, 908 P.2d 684, 688 (1995).
Suppression motion
Sanders contends that the district court erred by denying his
pretrial motion to suppress his confession because it was not freely and
voluntarily given. He claims that because of the length of his detention,
food and sleep deprivation, his youth and lack of education, and the
detective's use of religious coercion, his will was overborne by the police
interrogation.
"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 P.2d 321, 322 (1987). "The question of the
admissibility of a confession is primarily a factual question addressed to
the district court: where that determination is supported by substantial
evidence, it should not be disturbed on appeal." Chambers v. State, 113
Nev. 974, 981, 944 P.2d 805, 809 (1997). In determining whether a
confession was made voluntarily, the court looks to the totality of the
circumstances, considering "the youth of the accused; his lack of education
or 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."
Passama, 103 Nev. at 214, 735 P.2d at 323.
SUPREME COURT
OF
NEVADA
3
(0) I947A
ziavots, 'ivtzt:-qo -twrzzwzez.ez. L
IAIS INS1110111
The district court conducted a suppression hearing, denied the
motion, and made the following factual findings on the record: (1) Sanders
was bright and articulate and did not have any deficiencies based on youth
that would justify suppressing the statement; (2) the uncontroverted
evidence was that God was not mentioned at all during the interview; (3)
the detective did not go out of his way to show the cross that was
embossed on his notebook or discuss its importance during the interview;
(4) the length of Sanders' detention did not raise concerns; (5) Sanders was
not subjected to repeated questioning and the interview lasted for about
20 minutes; and (6) Sanders "may have been up for some long period of
time, but it wasn't that the state agents kept him up forever then tried to
question him, or any other things that would. . . justify the suppression of
the confession." The district court's conclusion that Sanders' confession
was voluntary is supported by substantial evidence and is not clearly
wrong. Accordingly, Sanders has failed to demonstrate error in this
regard.
Batson challenge
Sanders contends that the district court erred by rejecting his
Batson challenge to the State's use of a peremptory challenge to remove an
African-American woman from the venire. See Batson v. Kentucky, 476
U.S. 79 (1986). He claims that the State's disparate questioning of the
venire and implausible explanations for striking juror 210 demonstrated
purposeful discrimination and the district court's decision to grant the
State's peremptory challenge deprived him of a fair trial by an impartial
jury.
A Batson challenge requires the district court to employ a
three-step analysis:
SUPREME COURT
OF
NEVADA
4
(0) 1947A
1177:10.15,1W-M1
(1) the opponent of the peremptory challenge must
make out a prima facie case of discrimination, (2)
the production burden then shifts to the proponent
of the challenge to assert a neutral explanation for
the challenge, and (3) the trial court must then
decide whether the opponent of the challenge has
proved purposeful discrimination.
Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006). Circumstantial
evidence may be relevant in determining whether the reasons offered for
the peremptory challenge of a minority prospective juror are pretext for
discrimination. Id. at 405, 132 P.3d at 578-79 (discussing factors to be
considered when determining whether a prosecutor's reasons for a
peremptory challenge are pretextual). "The trial court's decision on the
ultimate question of discriminatory intent represents a finding of fact of
the sort accorded great deference on appeal." Walker v. State, 113 Nev.
853, 867-68, 944 P.2d 762, 771-72 (1997) (internal quotation marks
omitted).
Sanders objected to the State's peremptory challenge of juror
210 because she was the only African American on the venire. The State
offered the following explanations for the challenge: (1) juror 210 did not
like the way the police responded when she reported a carjacking; (2) she
indicated in a visual manner that she was against the death penalty, juror
11 was also challenged when he expressed concerns about the death
penalty; (3) she and juror 189 reacted in a visual manner to a comment
about giving more credence to police officers than other individuals, juror
189 was also challenged; (4) she and juror 189 constantly talked to each
other during voir dire, raising concerns that she might not follow the trial
or would discuss the case before deliberations; and (5) she had a visual
reaction to juror 209's comment about self-defense, leaned over and looked
down at him, made a comment to juror 189, and then stated, "I have been
SUPREME COURT
OF
NEVADA
5
(0) I947A
EfilE• :k; - " MX,IT,TaTrf;c1F8T-AM-IlithenTAMOr
in martial arts for 20 years. You have a right to defend yourself." Sanders
disputed the State's explanations, stating that juror 210 affirmatively
asserted that she could be fair and impartial after learning that this was
not a capital case and her negative experience with law enforcement was
not a race-neutral reason for striking a juror because the vast majority of
African Americans have had negative experiences with law enforcement.
The district court determined that jurors 210 and 239 were the
only African Americans on the venire and juror 239 was excused for cause;
observed that a juror's visible reaction to questions may lead to more
questions and raise concerns as to whether the juror is answering the
question or meant the substance of his or her answer; and found that the
State's explanations for the challenge were not singular to juror 210 and
were race-neutral. Because "discriminatory intent is not inherent in the
State's explanation [s]" and the explanations are not "implausible or
fantastic," we Conclude that the district court did not clearly err in
rejecting Sanders' Batson challenge. Ford, 122 Nev. at 403, 404, 132 P.3d
at 578.
Proposed defense instruction
Sanders contends that the district court abused its discretion
by refusing to instruct the jury on voluntary manslaughter because
evidence was presented that he was scared and confused, did not know
what was going on, and shot at the victims in that state of mind.
"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005). "[A] defendant is entitled to a jury
instruction on a lesser-included offense if there is any evidence at all,
SUPREME COURT
OF
NEVADA
6
(0) 1947A •
RAMS INAZMAK111111111111111111EIBERI1
however slight, on any reasonable theory of the case under which the
defendant might be convicted of that offense." Rosas v. State, 122 Nev.
1258, 1264-65, 147 P.3d 1101, 1106 (2006) (internal quotation marks
omitted). Voluntary manslaughter is a lesser-included offense of murder,
Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 (1983), and is
described and defined by NRS 200.040, NRS 200.050, and NRS 200.060.
Some evidence was presented that would justify instructing
the jury on voluntary manslaughter. The jury heard testimony that the
victims were believed to possess guns, the victims appeared to reach for
these guns, Sanders thought the victims were going to shoot, Sanders
heard shots, and Sanders was scared for his life and reacted by shooting at
the victims. See NRS 200.050(1) (voluntary manslaughter requires "a
serious and highly provoking injury inflicted upon the person killing,
sufficient to excite an irresistible passion in a reasonable person, or an
attempt by the person killed to commit a serious personal injury on the
person killing" (emphasis added)). Although we conclude that the district
court erred by refusing to instruct the jury on voluntary manslaughter,
"we are convinced beyond a reasonable doubt that the jury's verdict was
not attributable to the error and that the error was harmless under the
facts and circumstances of this case." Crawford, 121 Nev. at 756, 121 P.3d
at 590.
Cumulative error
Sanders contends that cumulative error deprived him of a fair
trial. We conclude that there was one error, the error was harmless, and
Sanders was not deprived of a fair trial. See U.S. v. Sager, 227 F.3d 1138,
1149 (9th Cir. 2000) ("One error is not cumulative error."); Pascua v. State,
122 Nev. 1001, 1008 n.16, 145 P.3d 1031, 1035 n.16 (2006).
SUPREME COURT
OF
NEVADA
(0) 1947A
7
KIVA /BMW -V! '