Burton v. State

• Decision Date: 01 June 2012
• Docket Number: No. 54170.,54170.
• Citation: 381 P.3d 597 (Table)
• Parties: Thayer Joseph BURTON, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

381 P.3d 597 (Table)

Thayer Joseph BURTON, Jr., Appellant,

v.The STATE of Nevada, Respondent.

No. 54170.

Supreme Court of Nevada.

June 1, 2012.

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with use of a deadly weapon. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.

The district court sentenced appellant Thayer Joseph Burton, Jr. to life in prison without the possibility of parole. Burton appeals on multiple grounds: (1) the district court's denial of his Batson v. Kentucky objections to two of the State's peremptory challenges, (2) improper references to a tip by the State and a State's witness, (3) admission of hearsay evidence, (4) admission of certain testimony from the State's expert witness, (5) inability to present a defense, (6) the State's improper comments regarding Burton's right to remain silent, (7) the district court's improper instructions to the jury on reasonable doubt, (8) the district court's refusal to allow his expert witness to testify during the penalty phase, (9) ineffective assistance of counsel, (10) his sentence amounts to cruel and unusual punishment, and (11) cumulative error.

Batson challenge

Burton contends that the district court erred in denying his objections pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to the State's use of peremptory challenges to remove two African–American prospective jurors because the State had a discriminatory basis for doing so. In evaluating a Batson challenge, this court “accord[s] great deference” to the district court's determination of whether the State exhibited discriminatory intent. Diomampo v. State, 124 Nev. 414, 422–23, 185 P.3d 1031, 1036–37 (2008). Indeed, such findings “will not be overturned unless clearly erroneous.” Kaczmarek v. State, 120 Nev. 314, 334, 91 P.3d 16, 30 (2004). In this case, we determine that the State provided race-neutral reasons for excusing the two prospective jurors, and we thus conclude that the district court's rejection of Burton's Batson challenge was not “clearly erroneous.”

Improper references to a tip

In its opening statement, the State commented that “[e]ventually the police receive a tip. That tip identified Thayer Burton as the murderer.” Then, during direct examination of Las Vegas Metropolitan Police Department (LVMPD) Detective Laura Andersen, the State asked her if she received information that led her to investigate Burton as a potential suspect, and she replied, “[y]es.” Burton argues that these references to a tip constituted prosecutorial misconduct and was inadmissible hearsay that violated his constitutional rights. We reject these arguments.¹

Prosecutorial misconduct

Burton argues that the State's opening statement comment about the tip amounted to prosecutorial misconduct because it was not proved at trial. “In general, the district attorney has a duty to refrain from stating facts in his opening statement that he cannot prove at trial.” Riley v. State. 107 Nev. 205, 212, 808 P.2d 551, 555 (1991). However, “[e]ven if the prosecutor overstates in his opening statement what he is later able to prove at trial, misconduct does not lie unless the prosecutor makes these statements in bad faith.” Rice v. State, 113 Nev. 1300, 1312–13, 949 P.2d 262, 270 (1997), abrogated on other grounds by Rosas v. State, 122 Nev. 1258, 1265 n. 10, 147 P.3d 1101, 1106 n. 10 (2006). After Burton objected to the comment, the State explained that it had a good faith belief that Detective Andersen would testify that the investigation continued because of the tip, which she did. We conclude that it was not misconduct for the State to reference the tip in its opening statement. See State v. Alexander, 875 P.2d 345, 348 (Mont.1994) (holding that opening statements “chronicl[ing] the development and investigation of the case” were permissible).

Admissibility of Detective Andersen's testimony

Burton argues that Detective Andersen's testimony regarding the tip was inadmissible hearsay and violated his constitutional rights because the tipster did not testify.² The Sixth Amendment's Confrontation Clause allows the accused to confront all witnesses against him. Chavez v. State, 125 Nev. 328, 337, 213 P.3d 476, 483 (2009). However, “[t]he Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59–60 n. 9 (2004). Moreover, “[i]t is well established that so long as a police officer does not testify to the substance and content of information he has received from a confidential source, it is permissible for him to testify that he acted pursuant to an informant's tip. ” State v. Williams, 569 So.2d 1031, 1033 (La.Ct.App.1990) ; see also State v. Brooks, 618 S.W.2d 22, 25 (Mo.1981) (“It is well established that [an officer's testimony that he received information from an informant] is admissible to explain the officer['s] conduct, supplying relevant background and continuity to the action.”).

Here, the State elicited testimony from Detective Andersen that she received a tip and that tip caused her to investigate Burton. The State did not ask, nor did Detective Andersen testify, about the substance or the content of the information received pursuant to the tip. Accordingly, we conclude that Detective Andersen's testimony regarding the tip was not hearsay nor did it violate Burton's constitutional rights. Furthermore, as the State contended, Detective Andersen's testimony regarding the tip was not offered to prove the truth of the matter, but rather to explain why Detective Andersen began investigating Burton. Cf. Weber v. State, 121 Nev. 554, 578, 119 P.3d 107, 124 (2005) (“[T]he hearsay rule does not exclude a statement ‘merely offered to show that the statement was made and the listener was affected by the statement.’ ”) (quoting Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) ).

Hearsay evidence

Burton makes several hearsay arguments regarding various statements that were admitted into evidence at trial. Relevant to each of Burton's arguments, hearsay is defined as an out-of-court “statement offered in evidence to prove the truth of the matter asserted.” NRS 51.035. A district court's decision to admit hearsay evidence will not be disturbed on appeal absent an abuse of discretion. Fields v. State, 125 Nev. 785, 795, 220 P.3d 709, 716 (2009). “Hearsay is inadmissible” absent a statutory exception to the hearsay rule. NRS 51.065.

Course-of-investigation testimony

Burton argues that Detective Andersen's testimony regarding the course of the investigation was an overall summary, much like a closing argument, and constituted hearsay. However, Burton does not identify any out-of-court statements testified to by Detective Andersen that were offered to prove the truth of the matter asserted. NRS 51.035. Furthermore, her testimony relating to the course of the investigation was permissible, because it was offered to rebut Burton's assertion that the police investigation was not sufficiently thorough. See U.S. v. Hawkins, 905 F.2d 1489, 1495 (11th Cir.1990). As such, we conclude that the district court did not abuse its discretion in admitting this evidence.³

Testimony regarding Lucia Reveles

Burton next argues that the State improperly elicited hearsay evidence about Lucia Reveles from Ashley Furniture employees.⁴ Specifically, Burton challenges separate exchanges between the State and two Ashley Furniture employees. First, he challenges the following exchange:

Q Ma‘am, once an arrest was made of Thayer Burton, did Lucia Reveles ever indicate to anybody at the store that she knew Thayer Burton?

A No Ma‘am.

And, second, he challenges the following exchange:

Q Okay. Did [Reveles] ever come forward and say she had information?

A No.

Q Okay. And, in fact, you learned that she was later identified as being the inside source; correct?

A Yes.

Reveles's denial that she knew Burton and her failure to offer information do not constitute statements. Nor does this conduct constitute an adoptive admission because her silence was not in response to an accusatory comment. Fields, 125 Nev. at 797, 220 P.3d at 717. Burton further argues that the State improperly characterized Reveles as a coconspirator; however, we note that the State did not proceed on a conspiracy theory.⁵ Rather, it offered the testimony about Reveles's non-statements to show that the perpetrator likely knew an Ashley Furniture employee. Therefore, the testimony of the Ashley Furniture employees was not hearsay, and the district court did not abuse its discretion in admitting this evidence.

Dying declaration

Finally, Burton argues that the district court erred in admitting statements from the deceased victim Robert Bills regarding a description of the assailant because such comments were inadmissible hearsay that did not qualify for the dying declaration exception, and they violated his Sixth and Fourteenth Amendment rights to confront witnesses. Nevada law recognizes a dying declaration exception to a defendant's constitutional confrontation right and to hearsay statements. See Bishop v. State, 92 Nev. 510, 517, 554 P.2d 266, 271 (1976) ; NRS 51.335. To qualify for this exception, the declarant must believe that his or her death is imminent. Bishop, 92 Nev. at 517, 554 P.2d at 271. In assessing whether a declarant believed death was imminent, a court may consider the surrounding circumstances, including the nature of the declarant's injury. Harkins v. State, 122 Nev. 974, 978–80, 143 P.3d 706, 709–10 (2006). A declarant's statement should be admitted “ ‘[i]f the declarant subjectively senses impending death without any hope of recovery.’ “ Id. at 980, 143 P.3d at 710 (quoting Bishop, 92 Nev. at 518, 554 P.2d at 271–72).

In this case, Bills sustained serious injuries before describing the assailant to the first responding LVMPD police officer. The officer testified that Bills...