McNair v. State
| Decision Date | 24 February 2022 |
| Docket Number | 78871 |
| Parties | MICHAEL DEANGELO MCNAIR, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Supreme Court of Nevada |
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and carrying a concealed firearm or other deadly weapon.[1] Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge. Appellant mates seven claims on appeal.
Appellant first argues the district court erred by denying his fair-cross-section challenge to the venire. Appellant claimed the jury commissioner's non-compliance with NRS 6.045(3)-specifically, the requirement to "compile and maintain a list of qualified electors from information provided by . . . (c) [t]he Employment Security Division of the Department of Employment, Training and Rehabilitation [DETR]"-proved systematic exclusion of Hispanics from the venire. See Valentine v. State, 135 Nev. 463 465, 454 P.3d 709, 713 (2019) (). Appellant, however, did not show that Clark County systematically excludes Hispanics from the jury selection process as he made no allegation connecting the missing information from DETR to the underrepresentation of Hispanics in the venire. Accordingly, appellant did not establish a prima facie violation of the fair-cross-section requirement, and the district court did not err by denying his challenge.
Next appellant argues the district court erred by denying his Batson[2] objections to the State's use of peremptory challenges to dismiss three veniremembers. Courts resolve a Batson objection to a peremptory challenge using a three-step framework. See Batson, 476 U.S. at 93-98, Kaczmarek v. State, 120 Nev. 314, 332, 91 P.3d 16, 29 (2004); see also Williams u. State, 134 Nev. 687, 689-92, 429 P.3d 301, 305-07 (2018) (). "Because the district court is in the best position to rule on a Batson challenge, its determination is reviewed deferentially, for clear error." Williams, 134 Nev. at 689, 429 P.3d at 306.
Here, the State gave its race-neutral reasons for the peremptory challenges before the district court made a determination regarding step one of the analysis, so step one is moot. See id. at 690-91, 429 P.3d at 306-07. The State offered race-neutral reasons for the challenges (step two), and the district court gave a thoughtful and considered discussion about its conclusion that appellant had not shown purposeful racial discrimination (step three).[3] In accord with the race-neutral reasons offered by the State, the district court agreed that prospective Juror #50 said she distrusted police officers and would assess a uniformed officer's credibility differently than other witnesses, that prospective Juror #68 had family who had been incarcerated and viewed rehabilitation and incarceration issues differently because of that experience, and that prospective Juror #37 was "very, very quiet and reserved, kind of a more meek individual" who could cause concern because she "may just follow along with whatever the majority is."[4] See Matthews v. State, 136 Nev. 343, 345, 466 P.3d 1255, 1260 (2020) (). Because the district court made clear findings supported by the record, we perceive no clear error in the denial of appellant's Batson objections.
Third, appellant argues the State presented insufficient evidence to support his conviction for first-degree murder. "Murder of the first degree is murder which is perpetrated by means of any kind of willful, deliberate, and premeditated killing." By ford v. State, 116 Nev. 215, 236, 994 P.2d 700, 714 (2000); see also NRS 200.030(1)(a). Here, the State presented evidence that the victim and appellant had a verbal altercation, that the victim and appellant both walked away but appellant approached the victim two more times, that appellant pointed toward the location of the victim with a firearm in his hand, [5] and that appellant-the taller of the two men near the victim when he was murdered-shot the victim multiple times. A backpack containing a magazine addressed to appellant's residence was found with a gun inside it, and witnesses explained that the cartridge cases recovered at the scene were shot from that gun and that the gun contained a DNA profile from two contributors, one of which was appellant. The gun belonged to a relative of appellant's wife. Although appellant points to inconsistencies in the evidence presented, "[t]his court will not reweigh the evidence or evaluate the credibility of witnesses because that is the responsibility of the trier of fact." Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). And viewing the evidence in the light most favorable to the State, we conclude there is sufficient evidence from which a rational juror could find appellant guilty beyond a reasonable doubt of first-degree murder with the use of a deadly weapon. See id. (recognizing this court reviews a challenge to the sufficiency of the evidence in the light most favorable to the prosecution to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation marks omitted)); see also Jackson u. Virginia, 443 U.S. 307, 319 (1979).
Fourth, appellant argues the State committed prosecutorial misconduct during closing arguments. We consider whether the conduct was improper and, if so, whether it warrants reversal. See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). Appellant first argues the prosecutor disparaged defense counsel when he used an analogy about shooting or having defense counsel shot because the prosecutor was angry at defense counsel for objecting during closing argument to explain different theories of liability for murder. The district court sustained appellant's objection, noting its belief that the prosecutor did not intend to disparage counsel. Later, appellant moved for a mistrial based on the analogy. The district court expressed its concern about the analogy but ultimately denied appellant's motion for a mistrial. We agree with the district court that the prosecutor's analogy was improper. Cf. Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004) (recognizing it is improper "to disparage legitimate defense tactics"). But we conclude the improper analogy does not warrant reversal as it did not substantially affect the jury's verdict, given the overwhelming evidence establishing appellant's guilt. Valdez, 124 Nev. at 1188-89, 196 P.3d at 476 ( that, for error that "is not of constitutional dimension, [this court] will reverse only if the error substantially affects the jury's verdict");[6] cf. Jones v. State, 113 Nev. 454, 468-70, 937 P.2d 55, 64-65 (1997) (). Additionally, the district court told the jury the hypothetical was an improper and regrettable analogy; explained the jury should not hold objections against an attorney, as objections are a part of an attorney's legal and ethical responsibility to zealously represent a client; and ordered the jury to disregard the analogy in its entirety. Those actions further defused any potential that the prosecutor's improper analogy prejudiced the defense, See Valdez, 124 Nev. at 1192, 196 P.3d at 478 (). Based on the above, we further conclude appellant was not prejudiced to an extent that he was prevented from receiving a fair trial and therefore the district court did not abuse its discretion by denying the motion for a mistrial. See Jeffries v. State, 133 Nev. 331, 333, 397 P.3d 21, 25 (2017) (recognizing that it is within the district court's discretion to grant a motion for a mistrial and that such a motion may be granted "where some prejudice occurs that prevents the defendant from receiving a fair trial").
Appellant's second argument regarding prosecutorial misconduct relates to the prosecutor's use of an analogy about the changing lights on a traffic signal to explain premeditation and deliberation. Appellant objected, and the district court overruled the objection. We agree with the district court that there was no improper conduct, see People v. Wang, 260 Cal.Rptr.3d 343, 366-68 (Ct. App. 2020) (approving of prosecutor's analogy of the elements of premeditation and deliberation "to a driver's decision-making process in choosing whether to drive through a yellow traffic light or stop suddenly"); cf. People v. Avila, 208 P.3d 634, 665 (Cal. 2009); therefore, no relief is warranted.
Fifth appellant argues the district court abused its discretion by allowing the...
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