Knight v. State
| Decision Date | 03 February 2000 |
| Docket Number | No. 31810.,31810. |
| Parties | Samuel KNIGHT, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Christopher R. Oram, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
BEFORE YOUNG, AGOSTI and LEAVITT, JJ.
FACTS
The facts underlying the instant prosecution are unusual. Prior to the charged incident, appellant Samuel Knight had confronted Matthew Minton, a resident of an apartment in Las Vegas, on at least two prior occasions. Appellant complained to Minton that someone in the apartment had taken his car.
On August 22, 1997, at approximately 8:30 a.m., appellant knocked on the door of the apartment where Minton was staying. Jenise Landolfa, another resident of the apartment, went to the door. Landolfa saw appellant through the peephole and told him that if he did not leave, she would call the police. Appellant yelled at Landolfa and proceeded to kick in the door. Appellant was carrying a steak knife and a fork.1 Landolfa later testified that appellant cut her hand with the knife.
Appellant entered the apartment. A guest in the apartment, Hiram Figgures, fled through a window. Appellant pursued Figgures to a convenience store.
Police apprehended appellant at the store. At that time, police found the fork and knife in appellant's back pockets. Appellant's shirt fully concealed both the knife and the fork from view. An officer observed that the knife appeared to have some food on it and that it looked like it had been used for "cutting steak or something like that."
The State charged appellant, by criminal complaint, with one count each of invasion of the home, battery with the use of a deadly weapon, and carrying a concealed weapon. The State specifically alleged that appellant carried "concealed upon his person, a deadly weapon, to-wit: a knife." The charge of battery with the use of a deadly weapon was dismissed following the preliminary hearing, but appellant was bound over on the other charges. Prior to trial, appellant obtained leave from the court to represent himself. Standby counsel from the public defender's office assisted appellant in subsequent proceedings.
Following the trial, the jury found appellant guilty of one count of trespass, a misdemeanor and lesser offense to invasion of the home. The jury also found appellant guilty of carrying a concealed weapon, a gross misdemeanor. On February 3, 1998, the district court entered the judgment of conviction. The court sentenced appellant to serve six months in the Clark County Detention Center for trespass and one year in the detention center for carrying a concealed weapon. This appeal followed.
State's motion to dismiss
On December 16, 1998, the State filed a motion to dismiss this appeal on the ground that expiration of appellant's sentence had rendered the matter moot. In response, appellant conceded that he had expired his sentence but opposed dismissal of this appeal. This court deferred its decision on the State's motion until the completion of briefing. We now rule that the instant appeal is not moot. Accordingly, we deny the State's motion to dismiss.
This court has concluded that an appeal in a misdemeanor or gross misdemeanor case was rendered moot by satisfaction of a fine or completion of a defendant's sentence. Bryan v. State, 78 Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); see also State v. Pray, 30 Nev. 206, 94 P. 218 (1908). This court concluded that no effective relief would accrue from reversal of the defendant's conviction if the fine had been paid or the sentence served. See Bryan, 78 Nev. at 39-40,
368 P.2d at 672; Cohen, 45 Nev. at 272-73, 201 P. at 1029; Pray, 30 Nev. at 220, 94 P. at 220.
910 P.2d at 255. Our recent holdings are consistent with the decisions of the United States Supreme Court which have recognized that it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (quoted in Spencer v. Kemna, 523 U.S. 1, 12, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)).
Consequently, we expressly overrule Bryan, Cohen, and Pray to the extent that they hold that satisfaction of a fine or completion of a sentence renders a timely appeal from a criminal conviction moot. We recognize, however, that completion of a defendant's sentence may render a challenge to the sentence itself moot. See generally Johnson v. Director, Dep't of Prisons, 105 Nev. 314, 316, 774 P.2d 1047, 1049 (1989)
(). We now turn to the merits of this appeal.
First, appellant claims that the prosecutor improperly commented on appellant's failure to testify. As previously noted, appellant represented himself at trial. In closing argument, the prosecutor lodged several objections to appellant's attempts to make factual assertions. On one occasion, the prosecutor stated, On this particular occasion, the court overruled the objection on the ground that appellant was explaining his theory of the case. Appellant complains that the prosecutor's objection was improper.
Appellant further complains that the prosecutor made additional improper comments during summation. The prosecutor told the jury that they should consider the testimony of the witnesses because each witness was placed under oath and subjected to cross-examination and possible impeachment. The prosecutor explained that this was to ensure reliable testimony. The prosecutor cautioned the jury that what appellant said in his opening statement and in closing argument was not evidence because appellant was acting in his capacity as counsel.
Considered in context, the prosecutor's comments in the instant case do not warrant reversal. The prosecutor did not directly comment on appellant's failure to testify.
When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's failure to testify is whether "the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify."
Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir.1968)). A prosecutor's comments should be viewed in context, and "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone...." United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Here, the prosecutor's comments are best understood as an attempt to dissuade the jury from relying on appellant's factual assertions, and to instead focus the jury's deliberation on the evidence adduced at the trial. Under these circumstances, the jury could not "naturally and necessarily" consider the prosecutor's comments as being directed at appellant's failure to testify.
Second, appellant claims that there was insufficient evidence to convict him of carrying a concealed weapon, pursuant to NRS 202.350(1)(b). The statute prohibits an individual from carrying, "concealed upon his person any: (1) Explosive substance, other than ammunition or any components thereof; (2) Dirk, dagger or machete; (3) Pistol, revolver or other firearm, or other dangerous or deadly weapon; or (4) Knife which is made an integral part of a belt buckle."2 Appellant asserts that a steak knife is not a weapon pursuant to the statute.3
In respondent's appendix, the State includes color photographs of the knife at issue. It is a common steak knife with a serrated blade. The knife is photographed next to a ruler. It appears that the handle of the knife is approximately four inches in length with a blade of roughly equivalent length.
Preliminarily, we note that the jury was not properly instructed. Jury Instruction No. 6 reads: "Every person found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of Carrying a Concealed Weapon." (Emphasis added). Prior to 1995, NRS 202.350(1)(b)(2) prohibited concealment of a "[d]irk, dagger or dangerous knife," but this court held that the term "dangerous knife" was unconstitutionally vague. Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 141 (1988). In 1995, the legislature replaced the term "dangerous knife" with "machete." 1995 Nev.Stat., ch. 713, § 13, at 2726.
Appellant did not object to the jury instruction in the district court or on appeal. Nonetheless, the instruction constitutes plain error readily apparent from our review of the record. See Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995)
. We further note, however, that reversal is not warranted if this error is harmless. See Donald v. State, 112 Nev. 348, 349-50, 913 P.2d 655, 656 (1996) ();...
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