Burns v. State

• Decision Date: 23 September 2021
• Docket Number: No. 80834,80834
• Citation: 495 P.3d 1091
• Parties: David James BURNS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

495 P.3d 1091

David James BURNS, Appellant,

v.The STATE of Nevada, Respondent.

No. 80834

Supreme Court of Nevada.

FILED SEPTEMBER 23, 2021

Resch Law, PLLC, dba Conviction Solutions, and Jamie J. Resch, Las Vegas, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Pamela C. Weckerly and Alexander G. Chen, Chief Deputy District Attorneys, Clark County, for Respondent.

BEFORE THE SUPREME COURT, HARDESTY, C.J., STIGLICH and SILVER, JJ.

OPINION

By the Court, STIGLICH, J.:

In this appeal, we consider the scope of a mid-trial waiver of appellate rights. During a capital trial, appellant David Burns stipulated to a sentence of life without the possibility of parole if the jury found him guilty and to waive his right to appeal issues "stemming from the guilt phase of the trial." In exchange, the State agreed to withdraw its notice of intent to seek the death penalty. The jury found Burns guilty, and the court, sitting without a jury, sentenced him to life without the possibility of parole. He now appeals, raising errors related to a pretrial motion to suppress, jury selection, closing arguments, jury deliberations, and sentencing.

We hold that Burns did not waive any errors that occurred during closing arguments because oral representations made to the court and reflected in the record indicate that the parties did not intend to extend the waiver to such errors. Further, we hold that Burns did not waive any errors that occurred during sentencing because sentencing was clearly not part of "the guilt phase of the trial." It is less clear on these facts whether voir dire is encompassed within "the guilt phase of trial," and so we construe the waiver against the government and conclude that Burns did not waive the claim relating to jury selection. But we hold that Burns waived the other alleged errors, even those that may have arisen after the agreement was executed. While unrelated to the appellate waiver portion of his agreement, we also conclude that Burns’ stipulation to the sentence the court imposed precludes his argument on appeal that the sentence is unreasonable and unconstitutional. Because we conclude that there was no reversible error in jury selection or closing arguments, we affirm the judgment of conviction.

BACKGROUND

Appellant David Burns was charged with conspiracy to commit robbery, conspiracy to commit murder, burglary while in possession of a firearm, two counts of robbery with the use of a deadly weapon, murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, and battery with the use of a deadly weapon. The charges stemmed from a home robbery in which a woman was shot and killed and her 12-year-old daughter was shot but survived. Although several individuals were involved, Burns was prosecuted as the shooter. The State filed a notice of intent to seek the death penalty, and the case proceeded to a bifurcated jury trial with a guilt phase and a penalty phase.

On the twelfth day of trial, Burns and the State presented a Stipulation and Order (Agreement) for the district court's approval. This Agreement contained two related provisions. In the first, Burns agreed to waive a penalty hearing before the jury and stipulated to a sentence of life without the possibility of parole if the jury found him guilty of first-degree murder. In the second, the State agreed to withdraw the notice of intent to seek the death penalty in exchange for Burns’ waiver of "all appellate rights stemming from the guilt phase of the trial." When the parties presented the Agreement to the district court, the State was still presenting its case-in-chief. Burns’ codefendant did not waive his appellate rights, and Burns’ attorneys told the court that the codefendant's presence would provide a safeguard against future misconduct despite Burns’ appeal waiver.

During discussion of the Agreement, Burns’ attorney explained that "for purposes of further review down the road, we are not waiving any potential misconduct during the closing arguments. We understand that to be a fertile area of appeal." The State did not contest that statement and implied that the defense attorney's recounting of the Agreement was correct. The district court approved the Agreement.

The jury found Burns guilty on all charges. Burns filed a sentencing memorandum detailing a report of mitigating factors, including Burns’ age at the time of the crime, a diagnosis of fetal alcohol syndrome, and other cognitive issues. The district court sentenced Burns to life without the possibility of parole for the first-degree murder conviction.

Burns’ counsel declined to file a direct appeal because of the waiver, asserting that Burns would have a better likelihood of success in a postconviction habeas proceeding. However, on appeal from a district court order denying Burns’ subsequent postconviction habeas petition, this court held that Burns’ trial counsel was ineffective for not filing a direct appeal when Burns desired to do so. See Toston v. State , 127 Nev. 971, 979, 267 P.3d 795, 801 (2011) ("[T]rial counsel has a duty to file a direct appeal when the client's desire to challenge the conviction or sentence can be reasonably inferred from the totality of the circumstances ...."). Accordingly, Burns was permitted to file this untimely direct appeal under NRAP 4(c). Burns v. State , Docket No. 77424 (Order Affirming in Part, Reversing in Part and Remanding, Jan. 23, 2020).

DISCUSSION

In this appeal, we consider the scope of Burns’ mid-trial waiver of appellate rights and then the merits of the nonwaived claims. The State contends that Burns waived all the claims brought in this appeal, and Burns disagrees. Burns’ claims on the merits include error in admitting evidence, a wrongly denied Batson¹ objection, prosecutorial misconduct, error in allowing the jury to review video of trial testimony, and an unreasonable and unconstitutional sentence.

Burns’ waiver covered all allegations of error except those related to voir dire, closing arguments, and sentencing

The State claims that Burns waived the right to appellate review of every error he raises in this appeal because they all fall within the scope of "the guilt phase of the trial" referenced in the Agreement. In contrast, Burns argues that "the guilt phase of the trial" only refers to the State's case-in-chief.² Burns does not challenge the validity of the appeal waiver in this case, only its scope.

This court has held that contract principles apply when analyzing a written guilty plea agreement. See, e.g., State v . Crockett , 110 Nev. 838, 842, 877 P.2d 1077, 1079 (1994). The same principles apply here. Although the Agreement at issue did not include a guilty plea, it is a contract to the same extent as a written plea agreement. Similar to a written guilty plea agreement, the Agreement here involved a bargained-for exchange between a defendant and the State, with both parties relinquishing a known right. Applying contract principles, we must construe the Agreement from its plain language and enforce it as written. See Canfora v. Coast Hotels & Casinos , Inc ., 121 Nev. 771, 776, 121 P.3d 599, 603 (2005) ("[W]hen a contract is clear on its face, it ‘will be construed from the written language and enforced as written.’ " (quoting Ellison v. Cal. State Auto. Ass'n, 106 Nev. 601, 603, 797 P.2d 975, 977 (1990) )). But any ambiguities must be construed against the State. See United States v . Under Seal , 902 F.3d 412, 418 (4th Cir. 2018) ; United States v. Andis , 333 F.3d 886, 890 (8th Cir. 2003).

The Agreement stated as follows:

[T]he parties hereby stipulate and agree to waive the separate penalty hearing in the event of a finding of guilt on Murder In the First Degree and pursuant to said Stipulation and Waiver agree to have the sentence of LIFE WITHOUT THE POSSIBILITY OF PAROLE imposed by the Honorable Charles Thompson, presiding trial judge.

FURTHER, in exchange for the State withdrawing the Notice of Intent to Seek the Death Penalty, Defendant agrees to waive all appellate rights stemming from the guilt phase of the trial.

Although the Agreement does not explain what constitutes "the guilt phase of the trial," this phrase is typically used to distinguish between the parts of a bifurcated criminal trial when guilt is determined versus when a sentence is determined. "The first phase of a bifurcated capital case may be referred to as the ‘guilt phase’ as a convenient abbreviation, rather than using awkward terms such as the ‘guilt or innocence phase’ or ‘determination of guilt or innocence’ phase." State v. Mason , 82 Ohio St.3d 144, 694 N.E.2d 932, 948 (1998) ; see also NRS 175.552(1) (providing that guilt phase and penalty phase in capital cases are separate proceedings for murder of the first degree); Harte v. State , 132 Nev. 410, 411, 373 P.3d 98, 99-100 (2016) (distinguishing the "guilt phase of trial" and the "penalty hearing" when discussing admissibility of certain forms of evidence). It is fairly clear when the guilt phase of a trial ends—when a verdict is returned as to the defendant's guilt. Thus, Burns’ claim on appeal that his sentence was unconstitutional is not waived by this provision, since sentencing occurred after the guilt phase of the trial finished.

It is much less clear when the guilt phase of a trial begins. Does it begin with the swearing in of the venire from which the jury is selected or the swearing in of the impaneled jurors? Black's Law Dictionary defines "guilt phase" as "[t]he part of a criminal trial during which the fact-finder determines whether the defendant committed a crime." Guilt Phase , Black's Law Dictionary (11th ed. 2019). That definition contemplates the fact-finder already being in place when the guilt phase begins. In jury trials, the fact-finder is the impaneled jury—which categorically does not exist until voir dire is completed. This suggests that the guilt phase begins after voir dire. Other...