Diomampo v. State

Decision Date12 June 2008
Docket NumberNo. 47224.,47224.
PartiesJose Noel DIOMAMPO, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Public Defenders, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and William Jake Merback, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.


By the Court, MAUPIN, J.:

In this case, we primarily consider whether the State's peremptory challenge of a prospective juror on the ground that he did not understand the English language violates the rule set forth in the United States Supreme Court decision in Batson v. Kentucky.1

A jury convicted appellant Jose Diomampo of mid-level trafficking in a controlled substance in violation of Nevada's Uniform Controlled Substances Act.2 On appeal, he argues that the State used its peremptory challenges in a discriminatory manner in violation of Batson. He also argues that the State commented on his post-Miranda3 silence at trial in violation of the Fifth Amendment, that the district court improperly admitted evidence of prior bad acts in violation of NRS 48.045(2), that police conducted an unreasonable vehicle inventory search in violation of his Fourth Amendment rights, and that the State presented insufficient evidence to sustain his conviction on appeal.

We conclude that the State violated Batson in exercising two of its peremptory challenges, that the State's witnesses improperly commented on Diomampo's post-Miranda silence at trial, and that the State improperly introduced evidence prejudicially suggesting that methamphetamine users generally resort to burglary to support their addictive behavior. Further, although the State also introduced prior bad act evidence without a requisite hearing under Petrocelli v. State,4 and failed to provide a contemporaneous explanatory instruction of that evidence in compliance with our decision in Tavares v. State,5 those procedural errors were not preserved for argument on appeal and do not ascend to plain error. We further conclude that the police conducted a proper vehicle inventory and that the State provided sufficient evidence upon which to convict. Nonetheless, the errors identified above compel reversal of Diomampo's conviction and a remand of this matter for a new trial.


At approximately 2 a.m. on May 19, 2004, Las Vegas Metropolitan Police Department (LVMPD) officers Paul Wojcik and Frank Gabron effected a routine traffic stop of an automobile driven by Diomampo. The officers noted that Diomampo and his passenger, Bernadette Olsen, made "furtive movements" while slowing down and that Diomampo continued to drive approximately 500-600 feet before bringing the vehicle to a stop. Officer Wojcik approached the driver's side of the vehicle and requested that Diomampo provide identification.

Diomampo was only able to produce a photocopy of his driver's license. The officers also determined that Olsen was in possession of a Nevada identification card but no driver's license. A check of Diomampo's record revealed outstanding warrants for his arrest, that his driver's license was suspended, and that he was not the registered owner of the vehicle. Accordingly, Officer Wojcik placed Diomampo under arrest. Officer Wojcik noted that Diomampo appeared to be "somewhat disorientated and sweating profusely," and he had difficulty articulating responses to routine inquiries. The officers made no attempt to contact the vehicle's registered owner.

Officer Gabron thereafter performed a search of Diomampo's fanny pack, which revealed an electronic scale that contained a "white, crystalline-type substance." The officers then placed Diomampo in their patrol car, impounded the vehicle and commenced an inventory search of the vehicle.6 The search revealed a black sunglass case, located under the floormat of the front passenger side of the vehicle, containing six plastic bags of a white, crystal-like substance, later determined to be methamphetamine. Officer Wojcik then read Diomampo his Miranda rights, in response to which Diomampo invoked his Fifth Amendment right to remain silent.

The inventory search also revealed a razor blade in the passenger seat and a partially damaged glass pipe between the driver's seat and the center console.7 Officer Wojcik labeled the sunglass case as "[n]arcotics kit with razor and broken smoking pipe" in his impound report, along with a cell phone charger, a car stereo, an "amp," speakers, three floor mats, a pair of pants, a social security card, a gift card, and two other plastic cards.

The State initially charged Diomampo with high-level felony trafficking in a controlled substance and a justice of the peace bound him over for trial on that charge in the district court. Based upon a reweighing of the methamphetamine, the State filed an amended information charging Diomampo with mid-level trafficking. The district court later denied a motion to suppress the contraband recovered from the vehicle and the matter proceeded to trial.

During the State's case in chief, Officer Wojcik testified that Diomampo remained silent after being read his Miranda rights:

A: ... I read both Olsen and Mr. Diomampo their Miranda rights with my department-issued Miranda rights card for the purpose of being able to ask them direct questions pertaining to the substance that I had found inside the vehicle.

. . . .

Q:.... Did Mr. Diomampo indicate that he understood his rights?

A: Yes.

Q: Did he say anything to you at that point in time?

A: He did not say anything to me.

Q: Okay.

MS. NGUYEN: Objection.... I think it's improper to comment on his right to remain silent.

The court overruled the objection. Later during trial, Officer Gabron stated that, "[o]nce [Diomampo] found out that he was under arrest ... and Miranda was read to him[,] ... he refused to speak to police any further." As to this comment, the district court determined that the appropriate remedy was to move on and not return to the topic.

In addition, Officer Wojcik testified at trial that he had training and experience with narcotics offenders and that, "with methamphetamine[,] normally in order for somebody to support their habit[,] they'll go out and commit robberies or burglaries."

The jury convicted Diomampo of mid-level trafficking in a controlled substance and the district court imposed a sentence of 24-60 months in the Nevada Department of Corrections. Diomampo appeals from the judgment entered upon the jury verdict.


On appeal, Diomampo contends that the State used its peremptory challenges in a discriminatory manner, that the State improperly commented on his post-Miranda silence, that the district court improperly admitted evidence of prior bad acts, that police conducted an unconstitutional inventory search of his vehicle in violation of the Fourth Amendment, and that the State presented insufficient evidence to sustain his conviction on appeal. We will address each argument in turn.

Batson challenge

During jury selection, the State used all four of its peremptory challenges to dismiss prospective jurors Ramirez, Nelson, Benitez, and Elliott, all members of recognized ethnic minorities.8 The district court denied Diomampo's Batson objections to these peremptory challenges.

Diomampo contends under Batson that the State, in using all of its peremptory challenges to excuse minority jurors, violated his constitutional rights to a fair trial and impartial jury and that potential jurors have a constitutionally protected right to sit on a jury.9 In this, Diomampo argues that the State's race-neutral reasons for its peremptory challenges were insufficient as to all four minority jurors, that a pattern of discrimination is not necessary to prove discrimination, and that striking a single juror for a discriminatory purpose warrants reversal.10 We conclude that Diomampo's Batson challenge as to two potential jurors has merit.

In Batson v. Kentucky,11 the United States Supreme Court held that the use of peremptory challenges to remove potential jurors on the basis of race is unconstitutional under the Equal Protection Clause of the United States Constitution.12 The Court has outlined the following three-pronged test for determining whether illegal discrimination has occurred: (1) the defendant must make a prima facie showing that discrimination based on race has occurred based upon the totality of the circumstances, (2) the prosecution then must provide a race-neutral explanation for its peremptory challenge or challenges, and (3) the district court must determine whether the defendant in fact demonstrated purposeful discrimination.13

In Purkett v. Elem, the United States Supreme Court further explained that "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible."14 The race-neutral explanation "is not a reason that makes sense, but a reason that does not deny equal protection."15 In addition, we stated in Ford v. State16 that "[w]here a discriminatory intent is not inherent in the State's explanation, the reason offered should be deemed neutral."17 However, "[a]n implausible or fantastic justification by the State may, and probably will, be found [under the third prong of Batson] to be pretext for intentional discrimination."18

In reviewing a Batson challenge, "`[t]he trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.'"19 Discriminatory jury selection in violation of Batson generally constitutes "structural" error that mandates reversal.20 We now turn to the individual challenges with which Diomampo takes issue.

A. Prospective juror Ramirez

The State advanced the following purported...

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