Morgan v. State

• Decision Date: 03 May 2018
• Docket Number: No. 70424,70424
• Citation: 416 P.3d 212
• Parties: John Demon MORGAN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

416 P.3d 212

John Demon MORGAN, Appellant,

v.The STATE of Nevada, Respondent.

No. 70424

Supreme Court of Nevada.

FILED MAY 03, 2018

Howard Brooks, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City, Steven B. Wolfson, District Attorney, and Krista D. Barrie, Chief Deputy District Attorney, Clark County, for Respondent.

BEFORE DOUGLAS, C.J., GIBBONS and PICKERING, JJ.

OPINION

By the Court, DOUGLAS, C. J.:

In this appeal, we consider whether the district court made multiple errors from the time it held the competency hearing for appellant John Demon Morgan to when it entered a judgment of conviction. In particular, after first considering whether the district court erred with respect to Morgan’s competency hearing, we consider whether the delay in Morgan’s subsequent transfer to a psychiatric facility for the purpose of restoring competency to stand trial warranted dismissal of the charges. Next, we consider whether the district court erred with respect to jury selection and closing arguments. Finally, we consider whether there was sufficient evidence for Morgan’s conviction. We conclude that the district court did not commit any error during the time frame at issue and there was sufficient evidence for Morgan’s conviction.¹ Furthermore, with respect to jury selection, although the district court properly overruled Morgan’s challenge to the State’s strike of a prospective juror, we take this opportunity to hold that striking a prospective juror based on sexual orientation is impermissible under the United States and Nevada Constitutions. Accordingly, we affirm Morgan’s conviction.

FACTS AND PROCEDURAL HISTORY

On October 30, 2014, Maria Verduzco was working as a manager at an AM/PM convenience store when she saw a man grab a package of mixed nuts and put them into his pocket. Maria approached the man while he was at the checkout counter trying to pay for another item and asked him if he could please take out what he had placed into his pocket. The man told Maria to "get the f ___ out of [his] face," and as she backed up in response, he approached and hit her in the chest.² Maria fell to the ground, got up, and hit the man’s backpack with a stick as he left the store. The man’s backpack ripped and containers of soup fell out. Maria called the police and indicated where the man departed. Police detained the man and identified him as Morgan. The State then charged Morgan by way of criminal complaint and information with one count of robbery and one count of battery with intent to commit a crime.

On December 1, 2014, Morgan was removed from his initial arraignment hearing for spitting, and a competency hearing was set for later that month. However, because the two court-appointed competency examiners reached opposite conclusions, the district court ordered a third evaluation and continued the competency hearing. After the third examiner found Morgan competent, he challenged his competency by requesting another hearing.

In February 2015, at the competency hearing, Morgan called only one witness to testify—the single examiner who had found him incompetent. Although the other two examiners who had found Morgan competent did not testify at the hearing, neither Morgan nor his counsel requested their presence. The district court relied on the evaluations from the two court-appointed examiners who were not present at the hearing to find Morgan competent to proceed with trial proceedings.

Thereafter, Morgan pleaded not guilty to both counts. Morgan’s counsel subsequently requested another competency evaluation, and thus, the matter was sent back to competency court. Because two examiners then found Morgan incompetent to proceed with adjudication, the district court ordered that he be transferred to Lake’s Crossing Center for the purposes of treatment and restoring competency to stand trial.

While waiting over 100 days in the Clark County Detention Center for his scheduled transfer to Lake’s Crossing Center, Morgan filed a motion to dismiss due to the delay of his transfer. The district court denied his motion, despite the fact that all agreed that the time frame to transfer Morgan to Lake’s Crossing Center had not been met.

In February 2016, a three-day trial ensued. During jury selection, Morgan moved to strike the jury venire and requested an evidentiary hearing because there were only 3 African–Americans in the 45–person venire. The district court denied Morgan’s motion. Morgan renewed his motion for an evidentiary hearing after the district court discovered that one of the African–American veniremembers was ineligible to serve on the jury. The district court initially denied Morgan’s renewed motion but subsequently held a hearing to determine the merits of his motion, and the district court again denied Morgan’s motion.

In conducting voir dire, the district court explained that it would first ask the jury panel general questions before the parties could request to strike jurors for cause. The district court further explained that it would then seat 13 of the remaining individuals from this panel inside the jury box and the parties would take turns asking questions. If both parties passed for cause after questioning, a party could chose to exercise a peremptory challenge on their turn. However, the district court stated that the parties would lose their peremptory challenge if they decided not to use it. Morgan opposed this "use or lose" method of exercising peremptory challenges, to no avail. Subsequently, the State used a peremptory challenge to strike juror no. 24, one of the two identifiable gay veniremembers.³ Morgan challenged the State’s strike based on sexual orientation because the State asked juror no. 24 whether he said "boyfriend, girlfriend or married," in response to the juror’s reply when asked about relationship status. The State justified its strike by explaining that juror no. 24 expressed an approval of the media’s criticism towards police. Morgan contended that other jurors shared the same view on police criticism in the media, but that these individuals served on the jury because they were heterosexual. The district court, however, denied Morgan’s challenge.

In the opening statements, Morgan asked the jury to find him guilty of misdemeanor battery only, but not robbery. The defense theory was that, although Morgan inexcusably hit Maria, he had no intent to rob the convenience store because he tried to pay. During closing arguments, the district court required Morgan to correct his statement that Maria was still a manager at the AM/PM convenience store because of the lack of evidence validating his statement of fact.

Ultimately, the jury found Morgan guilty of robbery and misdemeanor battery. The district court sentenced Morgan to serve his two counts concurrently for a maximum of 120 months with a minimum parole eligibility of 26 months and 533 days’ credit for time served. Morgan now appeals.

DISCUSSION

The district court did not err with respect to Morgan’s competency hearing

Morgan contends that the district court violated his constitutional right to due process and his statutory right to cross-examine the two examiners who had initially found him competent.⁴ We disagree. We point out that the district court subsequently found Morgan incompetent prior to trial and conviction, as he desired, and we further conclude that because Morgan failed to object below, the court-appointed competency examiners were not required to testify at the competency hearing.

Because Morgan never objected at his competency hearing that the two examiners who had found him competent were not present, we review the alleged error for plain error. See Calvin v. State, 122 Nev. 1178, 1184, 147 P.3d 1097, 1101 (2006) (stating that failure to object to the exclusion of witness testimony at a competency hearing elicits plain error review).

"In conducting a plain-error analysis, we must consider whether error exists, if the error was plain or clear, and if the error affected the defendant’s substantial rights." Id. at 1184, 147 P.3d at 1101. In considering whether error exists, "[i]t is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial." Olivares v. State, 124 Nev. 1142, 1147, 195 P.3d 864, 868 (2008) (internal quotation marks omitted).

Nevada has provided that "[i]f the court finds that further competency proceedings are warranted, it ‘shall appoint two [certified] psychiatrists, two psychologists, or one psychiatrist and one psychologist, to examine the defendant.’ " Scarbo v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 125 Nev. 118, 122, 206 P.3d 975, 978 (2009) (quoting NRS 178.415(1) ).⁵ Following the completion of the examinations, "at a hearing in open court, the court that orders the examination must receive the report of the examination." Id. at 123, 206 P.3d at 978 (quoting NRS 178.415(2) ). After the court receives the reports of the examinations, it "shall permit counsel for both sides to examine the person or persons appointed to examine the defendant." Id. (quoting NRS 178.415(3) ). This requirement "does not compel the participation of the court-appointed competency examiners at the competency hearing." Id. at 123 n.5, 206 P.3d at 978 n.5. However, the parties may subpoena the court-appointed examiners to require their appearance at the competency hearing. See id. Moreover, "[b]y providing counsel for both sides with full and complete copies of the competence examination reports [prior to the competency hearing], the prosecuting attorney and the defense counsel will be afforded a meaningful opportunity to be heard during the competency hearing." Id. at 125, 206 P.3d at 979. At the competency hearing, "[t]he court shall [ ] permit counsel to introduce other evidence and cross-examine one another’s witnesses." Id. at 123,...