McKnight (Adrian) v. State

 (3) a pretrial ruling which precluded him alone from implicating Smith or
other third party violated his due process rights.'
'We have reviewed the remaining issues that McKnight raised and
determine they are without merit for the following reasons: (1) McKnight
was not deprived of his right to a jury selected from a fair cross section of
the community because there is no evidence the venire process
systematically excluded African-Americans or that the district court
selected the jury panel unfairly, see Williams v. State, 121 Nev. 934, 939-
40, 125 P.3d 627, 631 (2005) ("The Sixth Amendment does not guarantee a
jury or even a venire that is a perfect cross section of the community."); (2)
even though the State committed improper conduct by showing the jury an
inflammatory photograph, the error does not warrant reversal because
similar photographs were later admitted into evidence without McKnight's
objection, Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008)
(explaining the two-step process this court utilizes when considering
claims of prosecutorial misconduct); (3) prior-bad-act evidence did not
deprive McKnight of his right to a fair trial because the result of the trial
would have been the same without admission of the improper statement.
Newman v. State, 129 Nev. 13 .3d _ (Adv. Op. No. 24, Apr. 18,
2013) (reviewing erroneous admission of evidence for harmless error)
McNelton v. State, 115 Nev. 396, 406, 990 P.2d 1263, 1271 (1999) (same);
(4) the district court did not err in refusing to give a proposed jury
instruction because another jury instruction gave an accurate statement of
the law regarding malice as an element of premeditated murder, Guy v.
State, 108 Nev. 770, 776, 839 P.2d 578, 582 (1992) (explaining that jury
instructions must correctly state existing law); furthermore, the error, if
any, was harmless because McKnight was charged with open murder and
the jury was properly instructed on felony murder, which the record
supports, as discussed infra; (5) McKnight's sentence is not cruel and
unusual punishment because it conforms to statutory limits, Allred v.
State, 120 Nev, 410, 420, 92 13 .3d 1246, 1253 (2004); (6) cumulative error
did not deny McKnight's right to a fair trial because the issue of guilt was
not close and there was overwhelming admissible evidence of his guilt,
Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465, 481 (2008); and (7) the
State presented sufficient evidence to support McKnight's convictions
because a rational trier of fact could have found the essential elements of
the crimes beyond a reasonable doubt, McNair v. State, 108 Nev. 53, 56,
825 P.2d 571, 573 (1992).
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McKnight argues that he did not voluntarily waive his
Miranda rights when he gave a statement to detectives ., and therefore the
district court should have suppressed the statement. Specifically, he
maintains that detectives coerced him into making the statement and that
the detectives used an improper question-first technique by obtaining an
unwarned confession before giving the Miranda warnings.
"'Suppression issues present mixed -questions of law and fact.
While this &mit reviews the -legal questions de novo, it reviews the district
court's factual • determinations for sufficient evidence." Camacho . v.- State ;
119 Nev. 395, 399, 75 P.3d 370, 373 (2003) (quoting Johnson v. State, 118
Nev. 787, 794, 59 P.3d 450,- 455 (2002), overruled on other grounds by
Nunnery v. State;127- Nev. - • , 263 R3c1 235,-250-51 (2011)).
Under the Fifth Amendment, Miranda warnings are required
prior to custodial- interrogation or the •accused's statement is inadmissible.
...Hernandez v. State, • 124 Nev: 978, 988,. 194 P:3d 1235, 1242 (2008); Rosky
State ; 121 Nev. 184, 191, 111 R3.61 690,. 695 (2005). A waiver of
Miranda rightsmust be voluntary.- Missouri v. Seibert, - 542 U.S. 600, 608,-
612-14(2004).: • •
Here,_ the detectives gave McKnight Miranda warnings at the
start of his recorded interview, he Waived his rights and •agreed to talk to
the detecti v es. - is - unclear what occurred before the recordedinterview,
but ' the 'diStriCt - -.Cdurt- found that coercion • did •' - net occur •during the
discussion. in fact, the court -found that the 'video showed what appeared
to be "a' .vei°.y . • congenial conversation.' We have reviewed- . the record and
conclude that the .district court's finding of fact that coercion -did not occur
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is supported by sufficient evidence, including the recorded interview and
witness testimony.
McKnight is correct that Miranda warnings given after an
unwarned confession are ineffective. Seibert, 542 U.S. at 612-14. The
record also supports his argument that he and the detectives had a short
conversation before the recorded interview. However, based on
McKnight's testimony, it appears that neither an interrogation nor
confession took place before the recorded interview. Instead, McKnight
testified that the detective threw down a binder and lied about McKnight's
attorney. These actions, if they occurred, would likely be unlawful, but
would not be considered coercion. See Collazo v. Estelle, 940 F.2d 411,
416-18 (9th Cir. 1991) (discussing types of coercion, such as discouraging a
defendant from speaking with an attorney). And as discussed above,
sufficient evidence supports the district court's finding that detectives did
not coerce McKnight into making a statement. Thus, McKnight's
allegations do not support his argument that the detectives used a
question-first tactic.
Accordingly, because the record supports neither of
McKnight's arguments, the district court did not abuse its discretion by
denying McKnight's motion to suppress.
Next McKnight argues that the district court deprived him of
a fair trial by refusing to sever co-defendant Smith from the tria1. 2 Citing
Ducksworth v. State, 114 Nev. 951, 953-54, 966 P.2d 165, 166-67 (1998), he
2 McKnight also moved to sever his case from co-defendant Gibson,
but this is a non-issue because Gibson pleaded guilty pursuant to a plea
agreement with the state before trial.
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explains that an incriminating statement by a co-defendant in a joint trial
violates the Confrontation Clause of the Sixth Amendment unless the
statement can be redacted to remove references to the other defendants.
He then claims that the district court could not redact co-defendant
Smith's statements as required by Ducksworth.
"The decision to sever a joint trial is vested in the sound
discretion of the district court and will not be reversed on appeal unless
the appellant ``cardies] the heavy burden' of showing that the trial judge
abused his discretion." Buff v. State, 114 Nev. 1237, 1245, 970 P.2d 564,
569 (1998) (quoting Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359
(1990)). Reversal is only justified if refusal to sever a joint trial had "a
substantial and injurious effect on the verdict." Marshall v. State, 118
Nev. 642, 647, 56 P.3d 376, 379 (2002)).
In the first Ducks worth appeal, this court held that the district
court erred in refusing to grant a severance where introduction of one
defendant's unredacted confession probably inculpated his co-defendant.
Ducksworth v. State, 113 Nev. 780, 794-95, 942 P.2d 157, 166-67 (1997).
We explained that a Confrontation Clause violation does not automatically
require reversal, id. at 795, 942 P.2d at 167, and we held that the district
court's failure to grant a severance was reversible error because the
admissible evidence against the defendant was largely circumstantial and
the State relied heavily on the co-defendant's inculpatory statement. Id.
at 794, 942 P.2d at 166.
This case differs from Ducksworth in two important ways.
First, the record disproves McKnight's claim that Smith's statement could
not be redacted because the parties successfully did so during trial.
Second, the State had more than circumstantial evidence against
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McKnight, including the testimony of Gibson, fingerprints, and DNA
evidence, plus the admission by McKnight that he participated in the
second robbery. Because of these distinctions, McKnight cannot meet his
burden of proving that the joint trial had a substantial and injurious effect
on the verdict that warrants reversal.
IV.
McKnight's last argument is that the district court violated his
due process rights by ordering that he could not implicate Smith or
another third party in the crimes. McKnight further argues that the
district court compounded its mistake because it did not apply a similar
ruling to Smith, who could and did implicate McKnight in the crimes.
Although the presiding judge reversed the pretrial order on the fifth day of
the trial, McKnight contends that he suffered harm because he had
limited his opening argument and questioning of the State's witnesses to
comply with his interpretation of the pretrial order.
As a threshold matter, we note that McKnight failed to make
a contemporaneous objection on the record to the pretrial ruling. The
defense excluded the State from the off-the-record discussion that
produced the ruling. Furthermore, the limited record that was made of
the ruling differs from the ruling McKnight claims in his opening brief,
without record citation, was made.
Generally, a failure to object precludes appellate review.
Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997) (citing
Garner v. State, 78 Nev. 366, 372-73, 374 P.2d 525, 529 (1962)). McKnight
points to his pretrial motion to sever, which he describes as "continuing,"
but in this case, the motion to sever is not an adequate substitute. We
recognize that, "where an objection has been fully briefed, the district
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court has thoroughly explored the objection during a hearing on a pretrial
motion, and the district court has made a definitive ruling, then a motion
in limine is sufficient to preserve an issue for appeal." Richmond v. State,
118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002). But because McKnight did
not properly object to the pretrial ruling and the limited record available
does not establish the ruling McKnight contends was made, we are unable
to conclude, under Richmond, that McKnight adequately preserved the
issue for purposes of appeal.
Even assuming an adequate objection by McKnight, his
argument for reversal of his first-degree murder conviction based on the
later-rescinded pretrial ruling still fails. McKnight argues that the
district court's pretrial ruling violated his due process right to advance his
theory of the case—that although he was present at the second robbery, he
never touched the deceased victim. See Vipperman v. State, 96 Nev. 592,
596, 614 P.2d 532, 534 (1980) (citing United States v. Nixon, 418 U.S. 683,
711 (1974); State v. Fouquette, 67 Nev. 505, 514, 221 P.2d 404, 409 (1950))
(the due process clauses of the Nevada and United States Constitutions
" assure an accused the right to introduce into evidence any testimony or
documentation which would tend to prove the defendant's theory of the
case"). In reviewing claims of constitutional error, we determine whether
the district court erred, and if so, "we must reverse unless the error is
harmless beyond a reasonable doubt, i.e., reversal is unwarranted if we
conclude 'without reservation that the verdict would have been the same
in the absence of error." Diomampo v. State, 124 Nev. 414, 428, 185 P.3d
1031, 1040 (2008) (quoting Schoels v. State, 115 Nev. 33, 35, 975 P.2d
1275, 1276 (1999)). See also Chapman v. California, 386 U.S. 18, 21-24
(1967) (holding that a constitutional claim is reviewed for harmless error).
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The error McKnight asserts as to the later-rescinded pretrial
ruling—assuming the objection was adequately preserved—was harmless
beyond a reasonable doubt. We reach this conclusion for several reasons.
First, the record does not support McKnight's position that the pretrial
ruling precluded him from implicating Smith or another third party in any
manner at any stage of the trial. On the contrary, as stated by the district
court, its ruling only prevented McKnight if he took the stand from being
asked to identify Smith as the third party at the Nievo robbery. 3 Then,
days before McKnight had to finally choose whether to testify or not, the
trial judge rescinded the pretrial ruling, freeing McKnight to implicate
Smith by name. The harm McKnight claims to have suffered thus differs
significantly from that the record supports.
Second, McKnight was charged with open murder. The jury
could find McKnight guilty of first-degree murder on the basis of either
premeditation or felony murder. See Holmes v. State, 114 Nev. 1357, 972
P.2d 337 (1998) ("[P]remeditation and felony-murder are alternate
theories upon which the State may rely in its attempt to establish the
mens rea element of the crime of first degree murder.").
The State provided strong evidence supporting felony murder.
Through a forensic pathologist's testimony, the State proved that the
3 The limited record of the ruling appears at 3 A.A. 744: "If Mr.
Smith should take the stand, he cannot be questioned as to the identity of
a third party, arguably Mr. Smith . . . . This is not unlike the issue [of]
redacting documents where another individual would use the neutral
phraseology of, 'another person with me,' that kind of thing. That can be
allowed because it's going to come out that there are three people involved,
in all likelihood. But Mr. McKnight cannot be asked about the identity of
the third party, Mr. Smith."
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injuries Mr. Nieva sustained during the robbery caused his death. The
evidence also showed that McKnight participated in the second robbery.
McKnight's co-defendant Gibson testified to this and McKnight admitted
to detectives that he participated in the robbery, though he denied
injuring Mr. Nieva. Even assuming McKnight did not personally slam Mr.
Nieva to the ground, for purposes of the felony murder rule, it is irrelevant
which co-felon actually kills the deceased because a cohort involved in the
commission of the principal crime may also be charged with murder. See 2
Wayne R. LaFaye, Substantive Criminal Law § 14.5(c) (2d ed. 2003). See
also Echauarria v. State, 108 Nev. 734, 748, 839 P.2d 589, 599 (1992)
(upholding felony murder conviction predicated upon robbery where
accused acted as getaway driver). The State's evidence supporting felony
murder did not depend on which defendant performed which acts, but
rather, that a killing occurred as a result of the perpetrators' planned
robbery. Cf. Cortinas u. State, 124 Nev. 1013, 1028-29, 195 P.3d 315, 325
(2008) (concluding that an instructional error with respect to felony-
murder theory was harmless beyond a reasonable doubt where the record
established premeditation-based conviction of first degree murder). Thus,
the district court's error was harmless beyond a reasonable doubt
We, therefore, affirm.
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cc: Eighth Judicial District Court Dept. 14
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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