Carty v. State

• Docket Number: 85494-COA
• Decision Date: 30 November 2023
• Parties: BRIAN DAVID CARTY, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Court of Appeals

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BRIAN DAVID CARTY, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 85494-COA

Court of Appeals of Nevada

November 30, 2023

UNPUBLISHED OPINION

Monique A. McNeill Attorney General/Carson City

ORDER OF AFFIRMANCE

Brian David Carty appeals from a judgment of conviction, pursuant to a jury verdict, of leaving the scene of an accident involving personal injury.^[1] Eighth Judicial District Court, Clark County; Mark Gibbons, Senior Judge.^[2]

On March 30, 2020, law enforcement responded to reports of a life-threatening situation that occurred at 4200 West Charleston Boulevard in Las Vegas at approximately 2:30 p.m. Law enforcement arrived at the scene of a motorcycle crash where the motorcycle driver had suffered severe injuries.^[3] Law enforcement located camera surveillance from a business across the street from where the crash occurred and spoke to witnesses who saw a Hummer abruptly pull in front of the motorcycle, causing the motorcycle to crash, and then drive away from the scene. The motorcycle driver, Eric Twitty, sustained brain damage, a collapsed lung, and a lacerated liver. Shortly thereafter, law enforcement received a call from

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Shawn Spencer, a co-owner of Carty's employer, who identified Carty's vehicle and stated that Carty may have been involved in an incident earlier that day. Law enforcement spoke with Carty, and he acknowledged that he was at the scene of the crash and was the driver of a Hummer, but he said that he did not see the motorcycle crash. However, based on law enforcement's investigation, Carty's vehicle was positioned so that the crash was in his "field of view."

Subsequently, Carty was charged with one count of violating NRS 484E.010(1) (duty to stop at the scene of a crash involving death or personal injury). Carty's jury trial began in July 2022. During its opening statement, the State played the video surveillance of the motorcycle crash, which was admitted into evidence without objection. The State called multiple lay witnesses, who were present at the time of the crash, to testify. The witnesses uniformly testified that they observed Carty's Hummer abruptly switch lanes from the center lane into the right lane the motorcycle was driving in, thus causing the motorcycle to crash. The witnesses also testified that they saw the driver of the Hummer drive away from the scene without stopping. Twitty could not remember anything about the crash but testified that he now stuttered and had limited mobility.

The State also called the other co-owner of Carty's employer, Scott Flanigan, to testify about incriminating statements Carty had made on the day of the crash. Flanigan testified that Carty returned from lunch and began pacing back and forth in the hallway. When Flanigan asked Carty what was going on, Carty told him he had been in an "incident" while driving and that, after he went to pull in, a motorcycle "wrecked" behind him. Flanigan testified that Carty appeared "worried" during their conversation and that he believed Carty should have called the police. Flanigan also testified that he and Carty were the only people in the office that day.

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Carty indicated that he was going to testify on his own behalf during trial. He acknowledged the district court's warning that he could be questioned about any prior felony conviction for impeachment purposes during cross-examination. The State indicated it would cross-examine Carty about his driver's license being suspended at the time of the crash. The State explained that, even though driving with a suspended license was only a misdemeanor, it would ask Carty about his suspended license for impeachment purposes because it showed motive for leaving the scene of the crash. When Carty stated his intention to object to that line of questioning, the State noted that Carty had admitted to having a suspended driver's license during a recorded interview with detectives. The district court indicated that because evidence of Carty's suspended driver's license was relevant to his motive for leaving the scene, it was not improper propensity evidence. The district court then asked Carty if this changed his decision as to whether he wanted to testify, to which Carty responded, "[n]o."

Carty testified that he did not know that his vehicle crashed into Twitty's motorcycle and that he did not see the crash in his rear-view mirror. Instead, Carty claimed that he learned about the accident when he got back to work and a co-worker told him about it. He thus testified that he did not knowingly leave the scene of the crash. On direct examination, in response to a question by his own attorney, Carty acknowledged that, at the time of the crash, his driver's license was suspended because of a prior DUI. The jury ultimately returned a guilty verdict. Subsequently, Carty was sentenced to a maximum of 15 years imprisonment with a minimum parole eligibility after 6 years. This appeal followed.

On appeal, Carty argues that the State committed prosecutorial misconduct at trial. Specifically, Carty argues that the State introduced inadmissible and inflammatory evidence, disparaged the defense, engaged in

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improper burden shifting, improperly used propensity evidence, and improperly commented on Carty's exercise of his Fifth Amendment right to assert his innocence at the time of sentencing. Carty further argues that the district court erred at sentencing because the court was influenced by Carty's refusal to admit guilt at trial. Conversely, the State denies that it committed prosecutorial misconduct. It further argues that it did not improperly comment on Carty's rights at sentencing and that the district court properly sentenced Carty because his sentence was within the statutory limits. We address Carty's arguments in turn.

Carty has not identified any prosecutorial misconduct that warrants reversal for plain error

When analyzing claims of prosecutorial misconduct, the appellate court engages in a two-step analysis. "First, [the appellate court] must determine whether the prosecutor's conduct was improper. Second, if the conduct was improper, we must determine whether the improper conduct warrants reversal." Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008) (footnote omitted). Prosecutorial misconduct may also be of a constitutional dimension if the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted).

Carty concedes that he did not object below, and therefore his claim on appeal is forfeited unless Carty can demonstrate plain error. Before this court will correct a forfeited error, an appellant must demonstrate that (1) there was an "error"; (2) the error was "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." Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks omitted). Additionally,

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"we will consider prosecutorial misconduct, under plain error review, if the error either: (1) had a prejudicial impact on the verdict when viewed in context of the trial as a whole, or (2) seriously affects the integrity or public reputation of the judicial proceedings." Rose v. State, 123 Nev. 194, 208-09, 163 P.3d 408, 418 (2007) (internal quotation marks omitted). The State's alleged emotional appeal to the jury Carty alleges the State committed misconduct when the prosecutor asked lay witnesses if they would have stayed at the scene of the crash. He argues that this was an inappropriate, inflammatory attempt to appeal to the sympathies of the jury that was irrelevant to the crime charged. For the same reasons, Carty contends that the State committed misconduct by asking Flanigan what he thought Carty should have done after the accident. Carty argues that the State used the witnesses' answers to these questions to suggest that the people who stopped "did the right thing" and were "reasonable" people from the community.^[4]

The Nevada Supreme Court has previously considered whether a prosecutor's alleged emotional appeal to the jury was prejudicial to a defendant, thereby denying the defendant the right to a fair trial. See Mears v. State, 83 Nev. 3, 12, 422 P.2d 230, 235 (1967) (holding that a prosecutor's emotional appeal to consider the victim's family was improper); see also McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060, 1064 (1984) (holding the prosecutor's closing argument "that the jurors should place themselves in the position of the victim" was "exceedingly improper").

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The State's question to lay witnesses about what they would have or should have done in Carty's circumstances was arguably improper. It went beyond explaining how the crash...