Harlan (Kody) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
KODY W. HARLAN, No. 80318
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED .a
FEB I 7 2022
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
fre
RK f
C/EPt ClE
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with the use of a deadly weapon, robbery
with the use of a deadly weapon, and accessory to murder with the use of a
deadly weapon. Eighth Judicial District Court, Clark County; Douglas W.
Herndon, Judge. Appellant Kody Harlan raises six contentions on appeal.
First, appellant argues that the district court should have
severed his trial from his codefendant Jaiden Caruso because the State
relied on testimony about Caruso's statements planning a robbery and
acknowledging that he committed a robbery and murder. Severance is
appropriate "only if there is serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence." Marshall v. State,
118 Nev. 642, 647, 56 P.3d 376, 379 (2002). Contrary to appellant's
assertion, Caruso's statements implicating him in planning and carrying
out the robbery and murder would have been admissible in a separate trial.
See NRS 51.035(3)(e) (providing that "[a] statement by a coconspirator of a
party during the course and in furtherance of the conspiracy" does not
constitute hearsay). Both appellant and Caruso were charged with murder
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and robbery with the use of a deadly weapon under the theories that they
participated as principals, aided and abetted in the crimes, and conspired
to commit the crimes. And Caruso's statements indicating that he and
appellant murdered and robbed someone would have been admissible as
they were made in appellant's presence and were of such a nature that
"dissent would have been expected if the communications were incorrect."
Maginnis v. State, 93 Nev. 173, 175, 561 P.2d 922, 923 (1977) (recognizing
that both an accusatory statement implicating a defendant and that
defendant's silence, where not relying on the Fifth Amendment, may be
offered as an adoptive admission of guilt); see NRS 51.035(3)(b) (providing
that an adoptive admission of a party does not constitute hearsay).
Therefore, the district court did not abuse its discretion in denying the
motion to sever. See Chartier v. State, 124 Nev. 760, 763-64, 191 P.3d 1182,
1184-85 (2008) (reviewing denial of motion to sever for abuse of discretion).
Second, appellant argues that, pursuant to Garner v. State, 116
Nev. 770, 6 P.3d 1013 (2000), overruled on other grounds by Sharma v.
State, 118 Nev. 648, 56 P.3d 868 (2002), the district court should have sua
sponte instructed the jury that it needed to find appellant engaged in an
overt act in furtherance of the conspiracy and that appellant could not be
found guilty based on his mere presence during the crime. We discern no
plain error. See Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700
(1996) ("Failure to object or to request an instruction precludes appellate
review, unless the error is patently prejudicial and requires the court to act
sua sponte to protect a defendant's right to a fair trial."); see also Jerernias
v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (providing that plain error
is shown by demonstrating clear error that affected a defendant's
substantial rights). Appellant did not demonstrate that the district court
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erred in not issuing either instruction. The State was not required to prove
that appellant committed an overt act in furtherance of the conspiracy to
convict appellant under that theory of liability. Moore v. State, 117 Nev.
659, 662, 27 P.3d 447, 450 (2001). Additionally, the "mere presence"
instruction was not supported by the evidence at trial. See Allen v. State,
97 Nev. 394, 398, 632 P.2d 1153, 1155 (1981) ("The test for the necessity of
instructing the jury is whether there is any foundation in the record for the
defense theory."). Testimony showed that appellant discussed a robbery
with Caruso, transported the victim to the location where he was killed, and
rifled through the victim's pockets after the shooting. See Garner, 116 Nev.
at 780, 6 P.3d at 1020 ("Conduct occurring after a crime may be relevant to
proving the commission of the crime."). Law enforcement also apprehended
appellant after a high-speed chase ending in a car accident and a foot chase.
Under these circumstances, appellant has not demonstrated that the
absence of these instructions was so patently prejudicial that the district
court was required to give them to protect his right to a fair trial.
Third, appellant argues that the prosecutor argued facts not in
evidence when he attributed a codefendant's words to appellant. See
Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (A prosecutor
may not argue facts or inferences not supported by the evidence."). We
disagree because the challenged comments are supported by the
examination of the witness to whom they were attributed. Therefore, the
district court's failure to address the comments did not amount to plain
error. See eferemias, 134 Nev. at 50, 412 P.3d at 48.
Fourth, appellant argues that the district court erred in
permitting improper hearsay. We discern no abuse of discretion. See Fields
v. State, 125 Nev. 785, 795, 220 P.3d 709, 716 (2009) (reviewing district
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court's hearsay determination for abuse of discretion). Appellant's and
Caruso's statements contemplating robbery constituted statements against
interest under NRS 51.345 and statements of a party opponent under NRS
51.035(3)(a), and therefore were not inadmissible hearsay. Although the
witness heard about Caruso and appellant's conversation from another
individual who did not testify at trial, her testimony indicated that she also
personally overheard the conversation.
Fifth, appellant argues that the district court erred in denying
a defense motion for a mistrial based on a witness mentioning the
defendants involvement in uncharged conduct (being in possession of a
stolen car). We disagree. The prosecution did not elicit the witness's brief
mention that the defendants drove a stolen car,' and after a brief discussion
with counsel, the district court admonished the jury to disregard any
allegation that the car was stolen. See Carter v. State, 121 Nev, 759, 770,
121 P.3d 592, 599 (2005) ("A witness's spontaneous or inadvertent
references to inadmissible material, not solicited by the prosecution, can be
cured by an immediate admonishment directing the jury to disregard the
statement." (internal quotation marks omitted)); see also Glover v. Dist. Ct.,
125 Nev. 691, 727, 220 P.3d 684, 708 (2009) (Cherry, J., dissenting)
(Curative instructions present a particularly strong alternative to a
mistrial given that, as this court has stated numerous times, we presume
that a jury will follow jury instructions."). We therefore conclude the district
court did not abuse its discretion in denying the motion for a mistrial. See
'During Detective Wayne Nichols' cross-examination about why
forensic examiners did not analyze the victim's wallet, Nichols stated that
further analysis was not considered crucial because the wallet had been
found "in the stolen Mercedes in the back seat."
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McKenna v. State, 114 Nev. 1044, 1055, 968 P.2d 739, 746 (1998) (reviewing
the denial of a motion for a mistrial for an abuse of discretion).
Sixth, appellant argues that the district court erred in denying
the motion for a new trial based on juror misconduct in considering the
testimony about uncharged conduct involving the stolen car. "A jury's
failure to follow a district court's instruction is intrinsic juror misconduct,"
Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008), which, "only
in extreme circumstances[j will . . . justify a new trial," Meyer v. State, 119
Nev. 554, 565, 80 P.3d 447, 456 (2003). Testimony by a juror about the
effect of anything on the jury's deliberative process is generally not
admissible to impeach a verdict. NRS 50.065(2). Nevertheless, the district
court held an evidentiary hearing to determine the extent to which the jury
followed the district court's instructions regarding the uncharged conduct
testimony. The testimony in that hearing established that any discussion
of the stolen vehicle during deliberations was brief because the foreperson
immediately admonished the jurors that they could not consider whether
the car was stolen, per the court's instructions. See Summers v. State, 122
Nev. 1326, 1333, 148 P.3d 778, 783 (2006) (presuming that the jurors follow
the district court's instructions). Accordingly, the district court did not
abuse its discretion in denying the motion. See Meyer, 119 Nev. at 561, 80
P.3d at 453 (reviewing the denial of a motion for a new trial based on juror
misconduct for an abuse of discretion).
Seventh, appellant argues that cumulative error warrants
reversal. See Valdez v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008)
(providing the relevant factors to consider for a claim of cumulative error).
Appellant has not demonstrated the existence of any error. Thus, there is
nothing to cumulate. See Lipsitz v. State, 135 Nev. 131, 139 n.2, 442 P.3d
5138, 145 n.2 (2019) (concluding that errors did not cumulate as there was
only one error). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
1 , J.
Hardesty
cc: Chief Judge, Eighth Judicial District Court
Department 3, Eighth Judicial District Court
Jean J. Schwartzer
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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