Pressler v. State

• Docket Number: 84.794-COA
• Decision Date: 28 June 2023
• Parties: TONY ALLEN PRESSLER, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Court of Appeals

1

TONY ALLEN PRESSLER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 84.794-COA

Court of Appeals of Nevada

June 28, 2023

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

GIBBONS, C.J.

Tony Allen Pressler appeals from a judgment of conviction pursuant to a jury verdict, of principal to robbery principal to burglary, principal to grand larceny, and conspiracy to commit robbery. Fourth Judicial District Court Elko County; Steve L. Dobrescu, Judge.

On March 2, 2018, at approximately 7:00 a.m., a Dotty's casino in Elko was robbed. Surveillance video cameras captured the event. The robbery occurred during a "drop" where a two-person team swapped out cash-filled canisters in gaming machines for empty ones. In the middle of the drop, two men came into Dotty's, sprayed the drop team with a chemical spray (likely pepper spray) to disable them, and took the cart holding the cash-filled canisters. Pressler was the only patron inside Dotty's at the time of the robbery. The loss was estimated to be at least $10,000 and as high as $57,000.

Earlier that same morning, Pressler was seen on surveillance video observing a drop at a different Dotty's location. Pressler walked in with James Squires and Kenneth Cook, and the three began conversing. After Squires and Cook left. Pressler stayed behind and was seen using his cell phone during the drop, which was completed without incident. A few hours later, at approximately 6:25 a.m., Pressler walked alone into the subject Dotty's. He did not play any gaming machines and was observed using his cell phone on surveillance video and by witnesses. When the robbery occurred, Pressler did not move from the table where he was seated, and he continued using his phone. After the robbery, Pressler was picked up nearby in a silver Chevy Traverse and rode away as a passenger.

A few minutes after the robbery, law enforcement received a call about a vehicle on fire about a quarter mile away from the Dotty's that was robbed. Although the vehicle was significantly burned, officers from the Elko Police Department were able to read the license plate and determined it was registered to Kerri Dooley. When questioned by police, Dooley said that her vehicle had been stolen and that Squires had access to it. While police were talking to Dooley, Squires pulled up to Dooley's residence driving a silver Chevy Traverse, believed to be the same vehicle that picked up Pressler. At that point, Squires was arrested, and police seized his cell phone.

In the meantime, Elko detectives suspected that Pressler was also involved in the robbery based on their review of the surveillance video that showed him at both of the Dotty's locations during the drops. Pressler was subsequently arrested, and his phone was also seized. Pressler's booking sheet revealed that he provided a home phone number of 1-775-340-3451.

In the course of their investigation, detectives sought to extract data from Pressler's and Squires' respective cell phones. Pressler's phone extraction showed no recoverable data, and the phone had an activation time of 8:07 a.m., about an hour after the robbery. However, the extraction of Squires' cell phone revealed a lengthy text conversation between Squires and a contact labeled "Uncle Tony." Uncle Tony had a phone number of 1 -775-340-3451, which matched the number Pressler provided at booking.

The text conversation between Squires and Uncle Tony was active the morning of the robbery from 3:03 a.m. to 3:27 a.m. (encompassing the time of the earlier drop at the first Dotty's) and again from 6:05 a.m. to 7:16 a.m. (encompassing the time of the robbery at the subject Dotty's). The text messages that began at 6:05 a.m. showed Squires and Uncle Tony orchestrating the robbery, with Uncle Tony providing live updates as to the drop team's progress. In one message, Squires asked how many people were inside, and Uncle Tony responded, "Just me," at a time when Pressler was the only customer inside Dotty's. Uncle Tony texted Squires that "Nine are done" (referring to the number of full canisters on the cart) just before the robbery occurred. The text exchange had a nine-minute gap, during which the robbery took place. The next text message from Squires to Uncle Tony was "Erase your phone." In the same exchange, Uncle Tony texted Squires, asking Squires to pick him up. Squires responded, "I'm here," around the same time that Pressler left Dotty's and was picked up in the silver Chevy Traverse.

The matter proceeded to a six-day jury trial. During jury selection. Pressler moved to excuse two prospective jurors for cause, and the district court denied both requests. Both of those jurors were excused through Pressler's peremptory challenges. Pressler thereafter passed the remaining panel for cause.

The jury found Pressler guilty on all charges. He was sentenced to serve an aggregate prison term of 124-312 months (10.3-26 years). On appeal, Pressler raises five issues. He contends that the district court abused its discretion when it (1) refused to grant his challenges for cause, thereby forcing Pressler to use his peremptory challenges which caused a biased juror to remain on the jury; (2) admitted hearsay text messages without proper authentication; and (3) denied his requested jury instructions. Pressler also argues (4) there was insufficient evidence to support his conspiracy and grand larceny convictions, and (5) cumulative error warrants reversal. We disagree, and therefore affirm.

Pressler first argues the district court erroneously denied his request to dismiss two prospective jurors for cause, thereby forcing him to use his peremptory challenges which resulted in a third allegedly biased prospective juror, Juror Koch, being empaneled. Pressler contends Juror Koch was biased because he had a favorable opinion of Squires, a State witness, and therefore could not look at the evidence "with a blank slate." As to the first two jurors, we need not decide whether the district court should have stricken them for cause because they were excused through Pressler's peremptory challenges.

The United States Supreme Court has definitively held that the erroneous denial of a challenge for cause of a prospective juror, followed by a party's use of a peremptory challenge to remove that juror, does not deprive the party 'of any rule-based or constitutional right' so long as the jury that sits is impartial.

Jitnan v. Oliver, 127 Nev. 424, 434, 254 P.3d 623, 630 (2011) (quoting United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000)). Rather, Pressler must show that a juror who was empaneled on the jury was unfair or impartial. Blake v. State, 121 Nev. 779, 796, 121 P.3d 567, 578 (2005). Pressler attempts to do this by pointing to Juror Koch.

Express or actual juror bias exists when a "prospective juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (internal quotation marks omitted), overruled on other grounds by Farmer v. State, 133 Nev. 693, 698, 405 P.3d 114, 120 (2018); see also State v. Squaires, 2 Nev. 226, 230-31 (1866) (defining actual bias). If a juror's answers suggest actual bias, the trial court must "sufficiently question[ ]" the juror to determine if the juror "was unbiased and could be impartial." Sayedzada v. State, 134 Nev. 283, 289, 419 P.3d 184, 191 (Ct. App. 2018) (citing United States v. Moloney, 699 F.3d 1130, 1137-38 (9th Cir. 2012) (discussing cases where the jurors in question had experiences similar to the facts of the cases and the district courts' questioning of those jurors was sufficient to show their impartiality), overruled on other grounds by United States v. Moloney, 755 F.3d 1044 (9th Cir. 2014)). Although the "district court has broad discretion in ruling on challenges for cause," a "prospective juror who is anything less than unequivocal about his or her impartiality should be excused for cause." Preciado v. State, 130 Nev. 40, 42-44, 318 P.3d 176, 177-78 (2014).

However, in Sayedzada, this court held the following:

[A] defendant may waive subsequent challenges to the seating of a juror where the record demonstrates the defendant was aware of the particular facts [that established bias] below; the defendant consciously elected not to pursue, or abandoned, a challenge for cause based on these facts; and the defendant accepted the juror's presence on the jury.

134 Nev. at 286, 419 P.3d at 189. As we explained, "[p]arties should not be able to strategically place questionable jurors on the jury as a means of cultivating grounds for reversal should the verdict be unfavorable." Id. at 287, 419P.3dat 190.

Under these facts, we conclude that Pressler waived his claim that he was denied his constitutional right to an impartial jury because Juror Koch was empaneled. After Juror Koch revealed that he personally knew Squires, Pressler asked Juror Koch numerous follow-up questions to determine whether he could be impartial. During that questioning, Juror Koch indicated that he had a favorable opinion of Squires. Despite Juror Koch's failure to unequivocally affirm his impartiality Pressler never moved to challenge him for cause (unlike the prior two prospective jurors, both of whom Pressler moved to strike immediately after follow-up questioning). The district court also asked if Pressler passed the panel for cause, and Pressler responded in the affirmative. Given that Pressler was aware of Juror Koch's potential bias based on his own follow-up questions, chose not to strike him for cause, and subsequently passed the entire panel for cause, Pressler "accepted the juror's presence on the jury" and waived his challenge on appeal. Id. at 286,...