Raspperry v. State
| Decision Date | 16 November 2022 |
| Docket Number | 83894 |
| Citation | 519 P.3d 1265 (Table) |
| Court | Nevada Supreme Court |
| Parties | KEVIN PHILLIP RASPPERRY, Appellant, v. THE STATE OF NEVADA, Respondent, |
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of driving under the influence resulting in death or great bodily harm, four counts of reckless driving causing death or great bodily harm, one count of felony driving under the influence, and two counts of possession of a controlled substance. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge. Appellant Kevin Phillip Raspperry raises nine contentions on appeal.[1]
First appellant argues that his speedy trial rights were violated. We disagree. As to the statutory right to a speedy trial under NRS 178.556, there was good cause for the nearly 22-month delay. See Huebner u. State, 103 Nev. 29 31, 731 P.2d 1330, 1332 (1987) (). In particular, the delay in bringing appellant to trial was attributable to motion practice, the COVID-19 pandemic, and accommodating the district court's calendar. As to the constitutional right to a speedy trial the delay between arraignment and trial was sufficient to trigger a speedy-trial analysis, State v. Inzunza, 135 Nev. 513, 516-17, 454 P.3d 727, 731 (2019) ( that a delay approaching one year is sufficient to trigger constitutional speedy-trial analysis), but the relevant factors | weigh against a violation. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (). The reasons for the delay were valid and appropriate. Appellant litigated a motion to dismiss which was denied, then waived his speedy trial rights, and then agreed upon delays for this court to resolve pending cases relevant to that motion, and the remainder of the delay was compelled by the district court's calendar and other pandemic related delays. See id. at 531 ( that deliberate attempts to delay the trial by the State should weigh against the government, neutral factors like negligence or overcrowded courts should be weighted less heavily, and valid reasons may justify appropriate delay); cf. United States v. Olsen, 21 F.4th 1036, 1047 (9th Cir. 2022) (); United States v. Smith, 460 F.Supp.3d 981, 984 (E.D. Cal. 2020) ("Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time [from speedy-trial considerations] has arrived at the same answer: yes."). And appellant has not demonstrated prejudice. See Barker, 407 U.S. at 532 (). Appellant asserted that he faced a more aggressive prosecution due to the severity of the murder charge and suffered anxiety due to the length of the delay and severity of the murder charge. The record does not indicate that the prosecution assignment track prejudiced appellant. While the anxiety to the accused is a harm that the speedy trial right was designed to guard against, see Inzunza, 135 Nev. at 518, 454 P.3d at 732, as so much of the delay was a consequence of appellant's motion to dismiss the murder charge, we conclude that appellant has not demonstrated a violation of his constitutional right to a speedy trial.
Second, appellant argues that there was insufficient evidence adduced at trial to show that he was driving the car that collided with the victim's vehicles. He also argues that there was inadequate proof that he possessed the controlled substances in the backpack in the car.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a "rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981) (). Witnesses testified that a gray Toyota Avalon, registered to appellant's mother, careened through a red light at roughly 100 miles per hour. The Avalon struck an SUV in the intersection, causing the SUV to strike another car and a bus. The heavily damaged Avalon came to rest over 200 feet away from the collision. A medical technician testified that he extricated appellant from the driver's seat of the Avalon and saw no one else in the car. A responding officer also observed appellant being removed from the driver's side of the vehicle. Witnesses also testified that a backpack with containers of MDMA and methamphetamine was recovered from the Avalon. Testing showed appellant's blood alcohol content was .205 percent under two hours after the collision and revealed the presence of MDMA and marijuana. Based on this evidence, a rational juror could conclude beyond a reasonable doubt that appellant was impaired, drove recklessly through the intersection, and caused multiple collisions resulting in great bodily harm and death while in possession of controlled substances. See NRS 484C.110(1)(c) (); NRS 484C.430(1) (driving under the influence causing death or substantially bodily harm); NRS 484B.653(1) (reckless driving); NRS 453.336 (possession of a controlled substance).
Third, appellant argues that the district court erred in admitting blood alcohol evidence without an adequate foundation and chain of custody, pointing to a mistake in the documentation. We discern no abuse of discretion. See Mclellan u. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). The State established a chain of custody through the testimony of the officer who documented the blood draw and the phlebotomist who performed the blood draws. Nothing in the record suggests that the blood samples were not those obtained from appellant or that any discrepancy in the chain of custody rendered it unsound. See Sorce v. State, 88 Nev. 350, 352-53, 497 P.2d 902, 903 (1972). Although the documentation had errors in that the time of the blood draws was written into the "incident time" box on the form, testimony established that the samples shared the same event number as the police report for the collision investigation. Thus, any discrepancies in the documentation went to the weight of the evidence, not its admissibility. See Hughes v. State, 116 Nev. 975, 981, 12 P.3d 948, 952 (2000).
Fourth, appellant contends that the testimony of a witness through a teleconferencing application violated his right to confrontation, and the district court failed to make sufficient findings that it was necessary. We agree.
Courts may permit witnesses to appear by simultaneous audiovisual transmission at trial provided that such a presentation "is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Lipsitz v. State, 135 Nev. 131, 136, 442 P.3d 138, 143 (2019) (); see SCR Part IX-A(B) Rule 2. Simultaneous audiovisual transmission of testimony may "be used only after the trial court hears evidence and makes a case-specific finding that the procedure is necessary to further an important state interest." Lipsitz, 135 Nev. at 136-37, 442 P.3d at 143. Here, the district court noted that administrative orders related to the COVID-19 pandemic authorized teleconferenced testimony and that the method of transmission permitted the jury to see the witness and the defense to cross-examine him, ensuring reliability. See Craig, 497 U.S. at 845-46. However, the district court did not make the required case-specific findings that the witness who testified via audiovisual transmission was especially vulnerable to COVID-19 and therefore needed the accommodation. See Lipsitz, 135 Nev. at 136-37, 442 P.3d at 143.
Although the State has not argued that any error in this respect was harmless, we conclude that our sua sponte review for harmlessness is appropriate here.[2] See Belcher v State, 136 Nev. 261, 268, 464 P.3d 1013, 1024 (2020) (providing that where the State fails to argue that error is harmless, this court may still determine that an error was harmless after considering the following factors: "(1) the length and complexity of the record, (2) whether the harmlessness of an error is certain or debatable, and (3) the futility and costliness of reversal and further litigation."); Medina v. State, 122 Nev. 346, 355, 143 P.3d 471, 477 (2006) (); see also Chapman v. California, 386 U.S. 18, 23-24 (1967) (). The record in this case, which has only three days of testimony about the cause of a traffic collision, is not voluminous or complex. The harmlessness of the error is not debatable given that other witnesses provided similar testimony as the challenged witness-that they saw appellant in or being removed from the Avalon following the collision-and other evidence linked appellant to the Avalon-namely, the vehicle registration in his mother's name. See Medina, 122 Nev. at 355, 143 P.3d at 477 (...
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