Palmer (Kenneth) v. State ( 2015 )

 Appellant argues that the judgment of conviction must be
reversed because his prosecution was barred by the Double Jeopardy
Clause after his first trial ended in a mistrial. Although he sought to
dismiss the charges before the second trial, appellant did not do so on
double jeopardy grounds. Therefore, his claim is reviewed for plain error
affecting his substantial rights. Dieudonne v. State, 127 Nev., Adv. Op. 1,
245 P.3d 1202, 1205 (2011). "To amount to plain error, an error must be
so unmistakable that it is apparent from a casual inspection of the record."
Id.
Appellant argues that double jeopardy precluded retrial
because the State caused him to seek a mistrial at the first trial. His
contention stems from the State's refusal to disclose the identity of a
confidential informant before the first trial. The State represented that it
did not intend to call the confidential informant to testify because he was
not a material witness and therefore his identity need not be disclosed. At
trial, the State sought to call the confidential informant in rebuttal to
impeach appellant's testimony. The trial court did not permit the
confidential informant to testify but allowed the State to recall a police
detective to testify about phone calls between appellant and the
confidential informant. Subsequently, the trial court granted appellant's
motion for a mistrial based on the cumulative effect of three
circumstances, including that appellant had no opportunity to cross-
examine the confidential informant before the police detective's rebuttal
testimony. The other two circumstances were not attributable to either
party. 2 We cannot say from a casual inspection of the record that the
2 The
two circumstances were (1) a group of school students wearing
DARE shirts attended the trial and (2) in attempting to secure a door, a
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State caused appellant to seek a mistrial such that double jeopardy
preluded retrial See Hylton v. Eighth Judicial Dist, Court, 103 Nev. 418,
743 P.2d 622 (1987).
Appellant next contends that the district court erred by
allowing a police officer to testify about phone calls between appellant and
a confidential informant where the confidential informant's identity was
not disclosed and the informant was not called as a witness or subjected to
cross-examination. Appellant was made aware of the confidential
informant's identity during the first trial, and the district court advised
appellant well before the second trial that he could designate the
confidential informant as a witness. Moreover, the police officer did not
testify to any statements by the confidential informant and appellant's
statements were admissible under NRS 51.035(3)(a). But even assuming
error, the evidence supporting appellant's guilt is overwhelming and
therefore he has not demonstrated prejudice. See Haywood v. State, 107
Nev. 285, 288, 809 P.2d 1272, 1273 (1991) ("When the evidence of guilt is
overwhelming, even a constitutional error can be comparatively
insignificant.").
Appellant next argues that a pat-down search violated his
Fourth Amendment rights. He concedes that he did not challenge the
search below. He requests that we not rule on the constitutionality of the
search but remand the matter to the district court for an evidentiary
hearing or dismiss the case. We decline to do so. Where there is no
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court officer "appeared to indicate that [appellant] was in custody and that
he was a danger."
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contemporaneous objection tendered to the district court, we need not
consider a claim of error. McKague v. State, 101 Nev. 327, 330, 705 P.2d
127, 129 (1985). Remanding this matter to the district court for an
evidentiary hearing at this juncture to develop a claim not considered
below is an inappropriate remedy.
Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED. 3
Saitta
J.
GibboTis Pickering
cc: Hon. Douglas W. Herndon, District Judge
Eric G. Jorgenson
Attorney GenerallCarson City
Clark County District Attorney
Eighth District Court Clerk
3 Wereject appellant's claim that the judgment of conviction must be
reversed based on cumulative error because he has demonstrated that
only one possible error occurred. Accordingly, there is no error to
cumulate.
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