Johnson v. State

• Court: Nevada Court of Appeals
• Writing for the Court: By the Court, TAO, J.
• Citation: Johnson v. State, 354 P.3d 667, 131 Nev. Adv. Op. 58 (Nev. App. 2015)
• Decision Date: 30 July 2015
• Docket Number: No. 63737.,63737.
• Parties: Tabuta JOHNSON, a/k/a Tabudah Eugene Humes, Appellant, v. The STATE of Nevada, Respondent.

354 P.3d 667

131 Nev. Adv. Op. 58

Tabuta JOHNSON, a/k/a Tabudah Eugene Humes, Appellant

v.The STATE of Nevada, Respondent.

No. 63737.

Court of Appeals of Nevada.

July 30, 2015.

Lambrose Brown and William H. Brown, Las Vegas, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, TAO, J.:

Appellant Tabuta Johnson was convicted of various criminal offenses following a trial, during which the jury was permitted to hear testimony regarding an out-of-court “show-up” identification and the victims identified him in court as the perpetrator of the offenses. In the show-up, Johnson was handcuffed, placed in front of a police car, and illuminated with a spotlight to be viewed by witnesses who then identified him as the perpetrator of the crimes. Johnson did not object below but now asks this court to hold that the show-up was improperly conducted in violation of his constitutional due process rights. He also argues for the first time on appeal that he was improperly sentenced as a habitual criminal.

The Nevada Supreme Court has been presented with few opportunities to review the validity of such show-up identifications; the court last visited this area of the law in Bias v. State, 105 Nev. 869, 871, 784 P.2d 963, 964–65 (1989), in which it held that a show-up somewhat factually similar to the one in this case was unnecessarily suggestive and therefore improper. Under the particular facts of this case, we conclude that the trial court did not plainly err by admitting the identification testimony into evidence because the identification procedure used was not unnecessarily suggestive and the identification was reliable.

We also conclude that the sentencing court did not plainly err in adjudicating Johnson as a habitual criminal because the record does not demonstrate that the court operated under a misconception of the law regarding the discretionary nature of a habitual criminal adjudication. Accordingly, we affirm the judgment of conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

One evening, Christina Raebel and Albert Valdez were walking to a bar in downtown Las Vegas when they noticed two men, later identified as Johnson and his brother, Varian Humes, following them. Raebel viewed the two men directly as they approached for about “a second and a half” while Valdez saw them through his peripheral vision for “[o]ne second.” Suspicious, Raebel moved her purse from her hip to the front of her body with both hands.

Without warning, Humes punched Valdez in the head, causing him to fall to the ground. At the same time, Johnson grabbed Raebel from behind, covering her mouth with one hand and gesturing with the other to indicate he was carrying a firearm. Johnson removed Raebel's purse from her shoulder and pushed her to the ground. Raebel screamed as she fell and Johnson responded by punching her in the face. While both Raebel and Valdez lay helpless on the sidewalk, Humes demanded that Valdez “give [him] everything” and in response Valdez emptied his pockets, throwing his wallet and cell phone on the sidewalk. Valdez's wallet was unique and easily identifiable because it was constructed entirely out of duct tape. Johnson and Humes then tried to escape by running southbound. Raebel was bruised and Valdez was bleeding from a gash in his forehead. The entire incident lasted “about thirty seconds.”

Within minutes, police officers from the Las Vegas Metropolitan Police Department (LVMPD) arrived at the scene. Raebel and Valdez told the police they were attacked by two black males about six feet tall, with one slightly taller than the other, and described their clothing and the direction in which they fled. Based upon those descriptions, the police issued a radio broadcast to search for two black males about six feet tall wearing dark pants and hoodies who ran southbound from the scene, with the “taller male ... wearing a black hooded sweatshirt and the shorter of the males ... wearing a brown sweatshirt.” The broadcast also alerted officers to look for a stolen purse, wallet, and other property.

A few moments later, patrolling officers saw Johnson and his brother emerge from an alley two or three blocks south of the crime scene and jaywalk diagonally across an intersection. The other end of the alley was a dead end blocked by a chain-link fence and shrubbery. According to the officers, Johnson was wearing “a dark black sweatshirt with a hood on it and dark jeans,” while his brother was wearing “a black sweatshirt but it was faded so it actually looked brown in the light and he was also wearing jeans.”² Deciding that the duo “match[ed] the description to a tee” and suspicious as to what the two had been doing in a dead-end alley, the officers detained the men for questioning. When they looked in the alley, the officers saw Raebel's purse, car keys, some makeup containers, and Valdez's unique duct-tape wallet scattered on the ground. The officers handcuffed the two men and issued Miranda warnings to them. Officers later found Valdez's cell phone in Humes's pocket.

Approximately 20 to 30 minutes after the crime, officers informed Raebel and Valdez that they “found people that matched the description” and asked if they wanted to identity them. After agreeing, Raebel and Valdez were separately transported to where Johnson and his brother were held. On the way there, the police asked Raebel and Valdez to state if they recognized the people that would be shown to them, and instructed that “[a] person is just as innocent as they are guilty” and that it was “just as important to free an innocent man” as it was to identify a guilty one. While Raebel and Valdez took turns sitting inside a police car approximately 30 to 60 feet away, officers brought out Johnson and his brother one at a time in handcuffs and shined spotlights on them as they stood in front of another marked patrol car. Raebel and Valdez were separated from each other during this process to prevent them from influencing each other. Raebel immediately recognized both Johnson and his brother and informed the police that she was 100 percent certain they were the two perpetrators. Valdez felt approximately 90 percent certain about Johnson's identity but did not recognize Johnson's brother at all.

Johnson and Humes were charged with one count of conspiracy to commit robbery, two counts of robbery, and one count of battery with intent to commit a crime. Humes would later enter a plea of guilty to various charges, but Johnson chose to proceed to trial.

During the trial, the jury was apprised of the out-of-court “show-up” identification during which Johnson was affirmatively identified as one of the perpetrators by both Raebel and Valdez. Additionally, both Raebel and Valdez testified at trial and identified Johnson in court as one of the perpetrators. The jury convicted Johnson on all counts.

Following trial, the State sought to have Johnson adjudicated as a habitual criminal and submitted certified copies of six judgments of conviction reflecting prior felonies.³ At sentencing, the district court voiced concern about the violence of the crime, the randomness of the victims, and the “escalation of [Johnson's] willingness to go from nonviolent crimes to violent crimes.” The court adjudicated Johnson a habitual criminal and sentenced him to four sentences of a maximum of 25 years with minimum parole eligibility of 10 years, with two of those sentences to run consecutively.

ANALYSIS

On appeal, Johnson contends that the show-up identification was conducted in an unnecessarily suggestive and therefore unconstitutional manner, and the trial court should not have admitted either testimony describing the show-up identification or the victims' in-court identification of him during the trial. Johnson also argues that the sentencing court plainly erred in adjudicating him as a habitual criminal.

At trial, Johnson did not object to either the show-up identification or the trial testimony relating to it, nor did he object to his sentence when it was rendered. Consequently, the scope of our review is narrowly limited to determining whether plain error occurred.See NRS 178.602. In particular, we examine (1) whether there was error, (2) whether the error was plain or clear, and (3) whether the error affected the defendant's substantial rights. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). “An error is plain if [it] is so unmistakable that it reveals itself by a casual inspection of the record. At a minimum, the error must be clear under current law, and, normally, the defendant must show that an error was prejudicial in order to establish that it affected substantial rights.” Saletta v. State, 127 Nev. ––––, ––––, 254 P.3d 111, 114 (2011) (internal quotation marks and citations omitted).

Under the particular facts of this case, we conclude that neither the trial court nor the sentencing court committed plain error warranting reversal.

The validity of show-up identification procedures

When a witness testifies that he knows a particular suspect committed a crime because he personally saw the crime as it occurred and then at a different time and place recognized the suspect to be the same person he previously saw, he is said to have performed an “identification” of the suspect. Witnesses can be asked to identify a suspect either outside of the courtroom prior to the trial during the initial police investigation of the crime, or later during the trial itself (or both). Both in-court and out-of-court identifications can be challenged by the defendant.

Out-of-court pretrial identifications are typically conducted through a number of common methods, including asking the witness if the perpetrator is one of several people lined up together in the same room (commonly called a “physical line-up”); showing the witness an...