Bailey, Iv (Jesse) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
JESSE BAILEY, IV, No. 82111
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
FEB 4 2022
À. 6WN
CLE FREmE. couKr
ORDER OF AFFIRMANCE BY
Y CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of second-degree murder with the use of a deadly weapon.
Second Judicial District Court, Washoe County; David A. Hardy, Judge.
Appellant Jesse Bailey argues that (1) insufficient evidence
supports his second-degree murder conviction, (2) the district court erred by
rejecting his proposed instructions on witness credibility and circumstantial
evidence, (3) the district court abused its discretion by denying his motion
to substitute counsel, (4) the district court erred by denying his motion to
suppress evidence of the gun found in his locked backpack, (5) the district
court abused its discretion by admitting evidence of a .22-caliber shell
casing, (6) the district court plainly erred by instructing the jury on
confessions, (7) the district court plainly erred by issuing a pretrial order
that had a chilling effect on supplemental voir dire, (8) the district court's
decision to grant the State's request for a continuance violated his speedy-
trial rights, (9) his sentence violates the Eighth Amendment as cruel and
unusual punishment, and (10) cumulative error warrants reversal. We
disagree and affirm the judgment of conviction.
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First, Bailey argues that insufficient evidence supports his
second-degree murder conviction because the State failed to prove malice
and relied on circumstantial evidence. In reviewing the sufficiency of the
evidence, we determine "whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." McNair v.
State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (internal quotation marks
omitted). This court does not reweigh evidence or reassess the credibility of
witnesses, id., and "circumstantial evidence alone may sustain a
conviction," Deveroux u. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980).
Second-degree murder "requires a finding of implied malice without
premeditation and deliberation." Desai v. State, 133 Nev. 339, 347, 398 P.3d
889, 895 (2017); see also NRS 200.030(2). "Malice shall be implied
when . . . the circumstances of the killing show an abandoned and
malignant heart." NRS 200.020(2). We have explained that an abandoned
and malignant heart exists "when a killer acts with a reckless disregard for
human life." Byford v. State, 116 Nev. 215, 234, 994 P.2d 700, 713 (2000).
The State presented evidence showing (1) Andrea Faulkner was
fatally shot in the head by another person, (2) a .22-caliber expended
cartridge with a "C" stamp found at the crime scene was fired by the pistol
that Bailey bought and possessed, (3) Bailey bought and possessed .22-
caliber ammunition with a "C" stamp, and (4) Bailey—like the person
captured in security footage near the vicinity of the killing at roughly the
same time—was male, had a ponytail, and had similar clothing and a
lanyard. Viewing this evidence in the light most favorable to the State, a
rational juror could have found implied malice because shooting someone in
the head with a gun shows a reckless disregard for human life that amounts
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to an abandoned and malignant heart. Thus, we conclude Bailey's
conviction of second-degree murder is supported by sufficient evidence.2
Insofar as Bailey argues that the State failed to present
sufficient evidence to identify him as the killer, we disagree. As we
discussed, the State presented security footage of Bailey near the crime
scene at roughly the same time of the killing. Crucially, officers also found
an expended .22-caliber shell cartridge at the crime scene that matched the
ammunition that was found in Bailey's possession. Viewing this evidence
in the light most favorable to the State, a rational juror could have
concluded that Bailey was present at the crime scene at the time Faulkner
was murdered. Cf. Newman v. Metrish, 543 F.3d 793, 797 (6th Cir. 2008)
'Bailey also asserts that officers invaded the province of the jury by
testifying that he was the person in the security footage. We are
unpersuaded. Officers had a sufficient basis to identify Bailey as the
suspect in the security footage given that they (1) interviewed him after
viewing the footage and observed that he looked like the suspect, and (2)
found clothing in his bedroom that matched the suspect's clothing. See
Rossana v. State, 113 Nev. 375, 380, 934 P.2d 1045, 1048 (1997) ("Generally,
a lay witness may testify regarding the identity of a person depicted in a
surveillance photograph if there is some basis for concluding that the
witness is more likely to correctly identify the defendant from the
photograph than is the jury." (internal quotation marks omitted)).
2Insofar as Bailey argues that circumstantial evidence is insufficient
to support his conviction, we have held the opposite. Deveroux, 96 Nev. at
391, 610 P.2d at 724. Bailey also suggests that Melvin Wendell, a witness
at trial, killed Faulkner because he was previously convicted of murder.
However, "[w]here a defendant fails to present an argument below and the
district court has not considered its merit, we will not consider it on appeal."
McKenna v. State, 114 Nev. 1044, 1054, 968 P.2d 739, 746 (1998). Bailey
fails to cite any portion of the record to show that this evidence was
admitted at trial, and based on our review of the record, Bailey never argued
below that Wendell killed Faulkner. Thus, this argument is meritless.
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(concluding that circumstantial evidence was insufficient to support a
conviction for murder because the prosecution presented no evidence
placing the defendant at the scene of the crime). Thus, we reject this
argument.3
Second, Bailey argues that the district court abused its
discretion by rejecting his jury instructions on circumstantial evidence and
witness credibility. "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 not entitled to any jury instruction
that is "inaccurate or duplicitous." Carter v. State, 121 Nev. 759, 765, 121
P.3d 592, 596 (2005). We conclude that the district court's instructions on
witn.ess credibility and circumstantial evidence were consistent with
Nevada law, and Bailey sought duplicative instructions that were properly
rejected.4 Thus, the district court did not abuse its discretion.
3We recognize that Bailey's conviction is supported by circumstantial
evidence and that no direct evidence proves that he killed Faulkner.
Nonetheless, sufficiency-of-the-evidence review is a deferential standard of
review that asks whether "any rational [juror] could have found the
essential elements of the crime beyond a reasonable doubt." McNair, 108
Nev. at 56, 825 P.2d at 573 (internal quotation marks omitted). The
evidence that was presented at trial, although circumstantial, was
sufficient to sustain Bailey's conviction.
4We have considered and reject Bailey's remaining claims of
instructional error. The district court gave separate instructions on
circumstantial evidence and witness credibility which accommodated his
theory of defense. His other claims were either improperly raised for the
first time in his reply brief or not supported by Nevada law. See Maresca v.
State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (It is appellant's
responsibility to present relevant authority and cogent argument; issues not
so presented need not be addressed by this court.").
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Third, Bailey argues that the district court abused its discretion
by denying his motion for substitute counsel, which he made at the end of
the State's case-in-chief during trial. This court reviews the denial of a
motion to substitute appointed counsel for an abuse of discretion. Young v.
State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004). In this review, we
consider "(1) the extent of the conflict; (2) the adequacy of the inquiry; and
(3) the timeliness of the rnotion." Id. (internal quotation marks omitted).
The timeliness factor balances the defendanf s "right to counsel against the
inconvenience and delay that would result from the substitution of counsel."
Id. at 969-70, 102 P.3d at 577.
In light of our review of the Young factors, we conclude the
district court did not abuse its discretion. First, the record shows that
Bailey and his counsel disagreed over strategic decisions such as what
evidence to present to the jury. See Rhyne v. State, 118 Nev. 1, 8, 38 P.3d
163, 168 (2002) (stating that counsel may make strategic decisions "even in
the face of his client's incomprehension or even explicit disapproval"
(internal quotation marks omitted)). Second, the district court held a Young
hearing to inquire into the conflict and determined that Bailey's
disagreement with counsel pertained to strategic decisions. Third, and
crucially, Bailey's motion was filed after the State already rested its case-
in-chief with an impaneled jury; the inconvenience and delay that would
have resulted from the substitution of counsel was substantial. See Young,
120 Nev. at 969-70, 102 P.3d at 577. As the district court found, substitution
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of counsel would have required releasing the jury. For these reasons, we
conclude that this argument is meritless.5
Fourth, Bailey argues that the district court erred by denying
his motion to suppress the contents of his locked backpack. He contends
that officers needed a separate search warrant to open the locked backpack
found when executing a valid search warrant of his bedroom. Bailey claims
that he had an expectation of privacy in his locked backpack. This court
reviews the denial of a motion to suppress as a mixed question of law and
fact. State v. Beckman, 129 Nev. 481, 485, 305 P.3d 912, 916 (2013).
Findings of fact are reviewed for clear error, but the reasonableness of a
search is reviewed de novo. Id. at 486, 305 P.3d at 916. The Supreme Court
has explained, "a warrant that authorizes an officer to search a home for
illegal weapons also provides authority to open . . . containers in which the
weapon might be found." United States v. Ross, 456 U.S. 798, 821 (1982).
Here, the parties agree on the facts: while executing a search
warrant of Bailey's bedroom, officers found Bailey's locked backpack and,
without obtaining a separate warrant, opened it using a key that was on top
of the backpack. Inside the backpack, officers found a .22-caliber pistol.
Thus, we review the reasonableness of the search de novo. Because the
search warrant allowed officers to search Bailey's bedroom for weapons,
officers did not need a separate warrant to search his locked backpack found
5Bai1eyconcedes that he voluntarily withdrew a previous motion to
substitute counsel. Insofar as Bailey argues that his previous motion shows
an irreconcilable conflict with counsel requiring substitution during trial,
we are unpersuaded, especially given that Bailey made his motion to
substitute counsel near the end of trial. And although Bailey argues that
his counsel coerced him not to testify, he stated on the record that it was his
sole decision.
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within his bedroom for those items. Bailey's briefs fail to address Ross—
which the district court relied upon—and therefore we decline his invitation
to address other nonbinding caselaw. Thus, the district court did not err by
denying Bailey's motion to suppress.
Fifth, Bailey argues that the district court abused its discretion
by admitting evidence of a .22-caliber expended cartridge that was found at
the scene of the crime roughly five days after the killing and three days after
the officers searched his bedroom. "[A] district court's decision to admit or
exclude evidence [is reviewed] for an abuse of discretion." Mclellan v. State,
124 Nev. 263, 267, 182 P.3d 106, 109 (2008). "[R]elevant evidence is
inadmissible 'if its probative value is substantially outweighed by the
danger of unfair prejudice."' State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 933, 267 P.3d 777, 781 (2011) (quoting NRS
48.035(1)). Unfair prejudice is "an appeal to the emotional and sympathetic
tendencies of a jury," id. (internal quotation marks omitted), that leads the
jury to find "guilt on a ground different from proof specific to the offense
charged," id. at 934, 267 P.3d at 781 (quoting Old Chief v. United States,
519 U.S. 172, 180 (1997)). The passage of time in discovering evidence "goes
to [its] weight rather than the admissibility." Bishop v. State, 92 Nev. 510,
521, 554 P.2d 266, 273 (1976).
The district court did not abuse its discretion by finding that
this evidence was admissible. Evidence of the expended cartridge found at
the crime scene after police executed the search warrant in Bailey's
bedroom was unlikely to appeal to the emotions or sympathies of the jury
and tended to show that Bailey committed murder. Moreover, the district
court correctly found that the jury should weigh the credibility of this
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evidence after Bailey cross-examined officers regarding the five-day delay
between the killing and the discovery of the expended cartridge.6
Sixth, Bailey argues that the district court plainly erred by
instructing the jury on a defendant's voluntary statements even though
Bailey never asked for this instruction. He contends that this instruction
erroneously led the jury to conclude that he confessed to murder. For relief
under plain-error review, Bailey must show "(1) there was an error; (2) the
error is plain, meaning that it is clear under current law from a casual
inspection of the record; and (3) the error affected the defendant's
substantial rights." Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48
(2018) (internal quotation marks omitted). We conclude that Bailey has not
shown plain error because he cites no legal authority—other than the
standard for plain-error review—to show that this instruction was
improper.7 See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987)
6Bai1eyalso argues that officers were grossly negligent in their second
search of the crime scene in which they discovered the expended cartridge,
which mandates a new trial. Bailey did not raise this argument in the
district court, so we review it for plain error. See Martinorellan v. State,
131 Nev. 43, 48, 343 P.3d 590, 593 (2015) (stating that "all unpreserved
errors are to be reviewed for plain error"). The authority Bailey relies upon
for relief analyzes an officer's failure to gather potentially exculpatory—
rather than inculpatory—evidence. See Randolph u. State, 117 Nev. 970,
987, 36 P.3d 424, 435 (2001). Because officers did gather the expended
cartridge, the jury was responsible for determining whether the delay in
discovering it affected its credibility. Thus, we conclude that Bailey's
argument does not amount to plain error warranting reversal.
7Insofaras Bailey argues that the Second Judicial District Court
erroneously gives this instruction in every case in which the defendant
makes a statement to police, he did not include any information in the
record for this court to verify this contention. And again, he cites no legal
authority to show that such an instruction is erroneous.
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(stating that an appellant has a duty to present legal authority in support
of their arguments). Moreover, the instruction plainly stated that the jury
could construe his statements as "confessions, admissions, or neither," and
therefore we cannot conclude that this instruction led the jury to believe
Bailey confessed to murder or otherwise affected his substantial rights.
Seventh, Bailey argues that the district court's pretrial order
prescribing procedures for voir dire was erroneous and had a chilling effect
on voir dire. Because Bailey stated on the record that he had no objections
to the voir dire order, we review for plain error. Based on our review of the
record, the district court's voir dire order did not amount to plain error. See,
e.g., Lamb v. State, 127 Nev. 26, 37, 251 P.3d 700, 707-08 (2011) (holding
that a district court does not abuse its discretion by prohibiting questions
to indoctrinate); Hogan v. State, 103 Nev. 21, 23, 732 P.2d 422, 423 (1987)
(holding that a district court does not abuse its discretion by prohibiting
repetitive questions).
Bailey fails to demonstrate that the order caused prejudice or
chilled voir dire. Counsel extensively questioned the venire. Bailey adds
that venire members—who were not impaneled—demonstrated bias
because they stated that they expected him to testify and should have been
struck for cause. Bailey argues that either his counsel or the district court
had a duty to instruct the venire that his decision not to testify could not be
used as an inference of guilt. The record shows that counsel twice explained
to jurors that they could not use his silence as an inference of guilt.
Critically, counsel also stated on the record during the settling of jury
instructions that he was not seeking an instruction that Bailey's decision
not to testify could not be used as an inference of guilt. Thus, we conclude
that Bailey's arguments challenging voir dire do not establish plain error.
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Eighth, Bailey argues that his speedy-trial rights were violated
because his trial occurred 37 days after NRS 174.511s 60-day deadline
between arraignment and trial. He further argues that the delay allowed
the State to gain more evidence to use against him, and that the district
court abused its discretion by granting the State's request for a continuance.
Insofar as Bailey argues that his speedy-trial rights were violated, we are
unpersuaded. "[T]o trigger [a] speedy-trial analysis, the length of the delay
must be presumptively prejudicial." State v. Inzunza, 135 Nev. 513, 516,
454 P.3d 727, 731 (2019). "A post-accusation delay meets this standard 'as
it approaches one year."' Id. (quoting Doggett v. United States, 505 U.S. 647,
652 n.1 (1992)); see also Byford, 116 Nev. at 230, 994 P.2d at 711 (Unless
the delay is long enough to be presumptively prejudicial, inquiry into the
other [speedy-trial] factors is not necessary."). Bailey's trial occurred 37
days after NRS 174.511s 60-day deadline, which does not come close to
approaching one year. Because this delay was not presumptively
prejudicial, we conclude that Bailey's speedy-trial rights were not violated.
To the extent that Bailey argues that the district court abused
its discretion by granting the State's motion for a continuance, we disagree.
"The decision to grant or deny trial continuances is within the sound
discretion of the district court and will not be disturbed absent a clear abuse
of discretion." Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799 (1996).
In the context of NRS 178.556, we have explained that the district court
must dismiss an information if the State fails to meet its burden to show
that there is good cause for the delay. Anderson v. State, 86 Nev. 829, 834,
477 P.2d 595, 598 (1970). Here, the State argued that it needed time to
process evidence and that Bailey would need time to review thousands of
pages of discovery. Defense counsel stated that the original trial date would
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be "a very short period of time to prepare for e murder trial but did not
seek dismissal of the charges. Based on this record, and the fact that Bailey
was facing a charge of open murder, we cannot conclude that the district
court abused its discretion by concluding that there was good cause for the
delay. Thus, we reject this argument.
Ninth, Bailey argues that his sentence violates the Eighth
Amendment as cruel and unusual punishment because he has diabetes,
mental health issues, and is unlikely to reoffend. "[A] sentence that is
within the statutory limits is not cruel and unusual punishment unless the
statute fixing punishment is unconstitutional or the sentence is so
unreasonably disproportionate to the offense as to shock the conscience."
Harte v. State, 132 Nev. 410, 415, 373 P.3d 98, 102 (2016) (internal
quotation marks omitted). A second-degree murder sentence may be life
with parole eligibility after 10 years. NRS 200.030(5)(a). The sentencing
range for the deadly weapon enhancement is a consecutive 1 to 20 years.
NRS 193.165(1). Bailey received a life sentence with possibility of parole
beginning at 10 years for second-degree murder and a consecutive 7-year
minimum to 20-year maximum sentence for the deadly weapon
enhancement. Thus, Bailey's aggregate total sentence is 17 years to life.
Bailey's sentence falls within the statutory limits for his conviction and is
not unreasonably disproportionate to the offense of murder in the second
degree with the use of a deadly weapon. Further, Bailey does not argue that
the sentencing statutes are unconstitutional. Therefore, we conclude that
Bailey's sentence does not violate the Eighth Amendment.
Insofar as Bailey argues that the district court abused its
discretion by imposing a sentence that was unreasonable in light of the
mitigating facts presented, we disagree. "The sentencing judge has wide
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discretion in imposing a sentence, and that determination will not be
overruled absent a showing of abuse of discretion." Houk v. State, 103 Nev.
659, 664, 747 P.2d 1376, 1379 (1987). The district court considered the facts
underlying the murder of Faulkner, as well as the mitigating facts
presented by Bailey, and ultimately concluded that an aggregate sentence
of 17-years to life was warranted. Given that this sentence is within the
statutory limits, and that the district court considered the facts Bailey
submitted in mitigation, we conclude that the district court did not abuse
its discretion. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(stating that the relevant inquiry when reviewing for an abuse of discretion
is not whether the appellate court would come to the same conclusion, but
"whether the district court's decision was tenable (internal quotation
m arks omitted)). Thus, this argument is meritless.
Tenth, Bailey argues that cumulative error warrants reversal.
Because we have not found any meritorious claims of error, "there is nothing
to cumulate." Belcher v. State, 136 Nev. 261, 279, 464 P.3d 1013, 1031
(2020). Therefore, Bailey's contention is without merit. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Silver
0 , J.
, J. J.
Cadish
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1*5.4 •rg-
cc: Hon. David A. Hardy, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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