McDaniel (Phillip) v. State ( 2014 )

 large cup, which was recovered from the victim's car and contained his
DNA. The victim identified McDaniel as the suspect in a photo lineup and
in court.
We conclude that the jury could reasonably infer from the
evidence presented that McDaniel committed the charged crimes. See
NRS 199.480(3) (conspiracy); NRS 200.380(1) (robbery); NRS 205.060(1)
(burglary); NRS 205.2715(1) (unlawful taking of vehicle). "[I]t is the
function of the jury, not the appellate court, to weigh the evidence and
pass upon the credibility of [a] witness," Walker v. State, 91 Nev. 724, 726,
542 P.2d 438, 439 (1975), and the jury's verdict will not be disturbed
where, as here, it is supported by sufficient evidence, see Bolden v. State,
97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev.
53, 56, 825 P.2d 571, 573 (1992).
Second, McDaniel contends that the district court erred by
denying his race-based Batson challenges.' When a defendant raises a
Batson challenge, he must first make out a prima facie case of
discrimination. Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006).
To establish a prima facie case, the defendant 'must show that the
totality of the relevant facts gives rise to an inference of discriminatory
purpose." Watson v. State, 130 Nev. „ P.3d. (Adv. Op.
No. 76, October 2, 2014, at 10) (quoting Batson, 476 U.S. at 93-94). This
standard is not onerous, but requires that a defendant present sufficient
evidence to permit the trier of fact "to draw an inference that
'Batson v. Kentucky, 476 U.S. 79 (1986).
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discrimination has occurred." Johnson v. California, 545 U.S. 162, 170
(2005).
McDaniel argues that he raised an inference of racial
discrimination because the State used four of its five peremptory strikes
on "minorities and/or females" and disparately questioned an African-
American venireperson. The district court considered the challenges "in
total and [ ] in isolation," and concluded that McDaniel failed to establish
a prima facie case of racial discrimination. See Watson, 130 Nev. at ,
P.3d. at , slip op. at 4 (considering race-based Batson challenges
and gender-based Batson challenges separately). McDaniel fails to
demonstrate that the district court abused its discretion. See Diomampo
v. State, 124 Nev. 414, 422-23, 185 P.3d 1031, 1036-37 (2008) (explaining
that the district court's determination regarding the question of
discriminatory purpose is given "great deference" on appeal). McDaniel
did not make an adequate record of the racial makeup of the venire and
fails to demonstrate a disproportionate use of race or gender-based
challenges. See Watson, 130 Nev. at , P.3d at , slip op at 6
("[T]he raw number of peremptory challenges used against targeted-group
members is meaningless without some point of reference." (internal
quotation marks omitted)). Moreover, the record supports the finding that
there was not disparate questioning sufficient to raise an inference of
racial discrimination. We conclude that no relief is warranted on this
claim.
Third, McDaniel contends that the district court erred by
dismissing a juror for cause based upon his "fear of public speaking." We
disagree. During voir dire, a venireperson gave a note to the marshal.
The court excused the remainder of the panel and spoke with the man,
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who revealed that he had a condition which caused him to be extremely
nervous when speaking in public. He explained that his condition caused
him to get "choked up" for reasons he could not control. He also explained
that, although he could be fair to both sides, he did not believe he would
voice his opinion during deliberation if he disagreed with the other jurors.
The district court dismissed the juror for cause. McDaniel fails to
demonstrate that the district court abused its discretion. See NRS
175.036(1) (the court may remove a juror "for any cause or favor which
would prevent the juror from adjudicating the facts fairly"); see also Blake
v. State, 121 Nev. 779, 795, 121 P.3d 567, 577 (2005) ("Because such
rulings involve factual determinations, the district court enjoys broad
discretion in ruling on challenges for cause.").
Fourth, McDaniel contends that the district court erred by
denying his request to record all bench conferences. McDaniel concedes
that his claim does not withstand this court's recent holding in Preciado v.
State, 130 Nev. „ 318 P.3d 176, 178 (2014), but he urges us to
modify Preciado and hold that placing the contents of a sidebar on the
record at a break in the proceedings violates due process. We decline to do
so and conclude that the district court did not err.
Fifth, McDaniel contends that the prosecutor committed
misconduct during closing and rebuttal argument. When reviewing
allegations of prosecutorial misconduct, we first consider whether the
prosecutor's conduct was improper, and then determine whether any
improper conduct warrants reversal. Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). During closing argument, the prosecutor told
the jury to infer that Cervantes did not have any prior felony convictions
because she had not been impeached with them. The defense objected and
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the district court instructed the prosecutor to move on. During rebuttal,
the prosecutor began to mention that there had been a media release in
the case, which many witnesses had mentioned. The defense immediately
objected and the district court instructed the jury to disregard the
statement. Even assuming that these comments constituted misconduct,
we conclude that they were harmless in light of the evidence presented
and the district court's instructions to the jury; therefore, no relief is
warranted. Id. at 1189, 196 P.3d at 476 (errors that are not of a
constitutional nature do not warrant reversal unless they "substantially
affect[ed] the jury's verdict"); Leonard v. State, 117 Nev. 53, 66, 17 P.3d
397, 405 (2001) (explaining that jurors are presumed to follow their
instructions). To the extent McDaniel contends that the district court
abused its discretion by denying his motion for a mistrial based upon these
comments, we disagree. See Rudin v. State, 120 Nev. 121, 142, 86 P.3d
572, 586 (2004) ("The trial court has discretion to determine whether a
mistrial is warranted, and its judgment will not be overturned absent an
abuse of discretion.").
Having considered McDaniel's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
, J.
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cc: Hon. Elizabeth Goff Gonzalez, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk