Sampson v. State

• Decision Date: 01 December 2005
• Docket Number: No. 41627.,41627.
• Citation: 122 P.3d 1255
• Parties: Willie SAMPSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

122 P.3d 1255

Willie SAMPSON, Appellant, v. The STATE of Nevada, Respondent.

No. 41627.

Supreme Court of Nevada.

December 1, 2005.

Philip J. Kohn, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Susan M. Pate, Deputy District Attorney, Clark County, for Respondent.

Before BECKER, C.J., ROSE and PARRAGUIRRE, JJ.

OPINION

ROSE, J.

Willie Sampson was sentenced to multiple life sentences after a jury convicted him of one count of first-degree kidnapping, two counts of lewdness with a minor under the age of fourteen, one count of attempted sexual assault on a minor under the age of fourteen, and one count of sexual assault on a minor under the age of fourteen. Sampson pleaded guilty to one count of possession of a firearm by an ex-felon. Sampson appeals his conviction, arguing that the district court erred by (1) refusing to allow him to introduce a new expert witness eight days into trial to testify regarding a mental disorder with which the victim was allegedly diagnosed, (2) permitting the prosecution to elicit testimony discussing Sampson's refusal to allow officers to search his home pursuant to his Fourth Amendment right to refuse to consent to a warrantless search, and (3) denying Sampson's motion for a mistrial based on police testimony that Sampson had invoked his Fifth Amendment right to remain silent and to be provided with counsel.

We first conclude that the district court did not abuse its discretion when it denied Sampson's request to introduce a late-disclosed expert witness to discuss the victim's alleged mental disorder. Second, we join other courts in adopting the rule that a district court errs when it allows evidence or testimony during trial regarding a defendant's invocation of Fourth Amendment rights. However, this error is subject to a harmless error analysis, and where the evidence or testimony is merely a passing reference, the error is harmless and does not require reversal of a conviction. We conclude that the reference to Sampson's exercise of his Fourth Amendment rights was a mere passing reference and, thus, harmless error. Finally, we conclude that the district court did not err by denying Sampson's motion for a mistrial based on the testimony concerning his Fifth Amendment rights. We therefore affirm Sampson's conviction.

FACTS

The events giving rise to Sampson's conviction stem from an encounter where Sampson picked up the victim, a minor boy, and drove him first to McDonald's and then to Sampson's residence. Sampson's conviction was based primarily on the testimony of the minor boy, which drastically conflicted with Sampson's own testimony. At trial, the victim presented the following testimony.

The victim said that he first saw Sampson when Sampson drove past him as he walked down the street. When he stopped to rest at a bus stop, Sampson turned his vehicle around and stopped next to the victim, asking the victim where the closest McDonald's was located. Sampson asked the victim if he wanted anything to eat from McDonald's. The victim replied that he did, and Sampson asked the victim to get into his car. Sampson took him to McDonald's, where he purchased food for the victim, and then took the victim to Sampson's residence to eat.

After the victim finished eating, Sampson told the victim that he would be right back because he needed to get his cell phone from his vehicle. Instead, Sampson returned with a gun, which he pointed at the victim and told the victim to do what he said. Sampson took the victim into the bathroom and told him to remove his clothing. Sampson put a white scarf around the victim's head to cover his eyes and ordered him to get into the bathtub and "wash up good." Sampson then got into the tub and sat face-to-face with the victim. Sampson washed the victim and touched the victim's penis and buttocks during the washing.

Afterwards, Sampson dried the victim off, took him to a back room, told him to lie down, and rubbed lotion on the victim. The victim was lying on his back, and Sampson slid underneath him, also lying on his back. Sampson put the victim's hand on his penis and asked the victim to masturbate him. The victim refused, and Sampson took the victim's hand, placed it on Sampson's penis and forced the victim to masturbate him until he ejaculated.

Sampson also placed his penis near the victim's face, touching the victim's nose and repeatedly instructing him to suck his penis. The victim refused. Afterward, the victim asked Sampson if he could watch television and also asked for his clothing back. Sampson did not return his clothing but, instead, gave the victim a pair of silver boxer shorts and a tee shirt to wear.

Sampson allowed the victim to watch television in his living room. The victim asked Sampson for some chips, and Sampson then made a list of items that the victim wanted from the grocery store. Sampson tied the victim up in a chair and left to go to the store. After Sampson left for the store, the victim freed himself from the ropes and returned to his own apartment.

Cross-examination of the victim and the additional testimony of other witnesses revealed several inconsistencies in the victim's testimony. During the preliminary hearing, the victim was asked if Sampson ever put his hand on the victim's private parts, to which the victim replied "no." There were also inconsistencies between the victim's trial testimony and the recorded statement he gave police following the incident. The inconsistencies concerned the color of the soap that Sampson washed the victim with, whether both Sampson and the victim ate their McDonald's meals, whether Sampson tied the victim up more than once, and whether the sexual assault occurred while the victim was tied up. Finally, in his recorded statement, the victim told officers that Sampson rubbed lotion on his crotch and identified where that was on his body. However, at trial the victim testified that he believed his crotch was his rectum and said that Sampson never put lotion on his penis.

There were also discrepancies between the victim's testimony and his mother's testimony. His mother testified that when he arrived at home he was hysterical and crying and he told her that a man kidnapped him and took him to the man's home. He told her that Sampson grabbed him and threw him into the car. However, the victim never told officers that Sampson grabbed him or threw him into his car. The victim also never told his mother about the trip to McDonald's, but he did tell her that he ate McDonald's food when he arrived at Sampson's house.

After the victim told his mother about the incident, his mother asked him to take her to Sampson's house. After he showed her where Sampson lived, his mother called the police from Sampson's neighbor's house. While the police interviewed the victim, Sampson pulled into the driveway of his residence.

Sampson allowed the police to search his vehicle, and the police found two grocery bags, which contained candy, cookies, and chips. Officers then asked Sampson for permission to search his residence, to recover the victim's clothing, and Sampson refused consent. Once a search warrant was obtained, officers searched Sampson's residence. They found garbage from McDonald's, a chair with yellow ropes on it, a bottle of lotion, a black revolver, boy's boxer shorts, green sweatpants, and a grocery-shopping list. Sampson was taken into custody and he requested an attorney.

Sampson's testimony differed greatly from the victim's testimony. He stated he noticed the victim at a bus stop and the victim waved for Sampson to stop. Sampson pulled over, stopped, and rolled down the car window. The victim apologized for stopping Sampson and told him that he thought Sampson was his best friend's father because the car Sampson drove looked similar.

Sampson testified that the minor boy asked him for a ride to McDonald's. Sampson purchased the McDonald's food and gave the victim two dollars of the change. Sampson said that he needed to go home to do some work, and the victim asked if he could come with him.

Sampson stated he did not push the boy and did not force him into the house. They both sat at the kitchen table and ate their meals. Sampson asked the victim to call home but the victim refused to call home and, instead, watched television while Sampson cleaned the kitchen.

Sampson testified that the victim smelled dirty and his clothes were filthy so he offered to wash the victim's clothes at his neighbor's house and told the victim that he should take a bath. Sampson testified that he did not bathe at his house, and he did not get into the tub with the victim.

According to Sampson, the victim put on clothes that Sampson offered to him to wear until he washed the victim's clothes. Sampson did not remain in the room while the victim changed clothes. When the victim was changing, the victim noticed a chair with ropes on it that Sampson used during sexual activities with a female acquaintance. The victim played with the ropes until Sampson told him to stop and to get away from the chair.

Sampson testified that he cooked chicken for the two to eat and then decided to go to the store. Sampson denied ever attempting to have sex with the boy or touching him in any way.

David Welch, a forensic chemist with the Las Vegas Metropolitan Police Department (LVMPD), testified as an expert for the State. He said that DNA testing on penile swabs from Sampson and the victim revealed no foreign DNA. The medical examination of the victim revealed no bodily fluids, bite marks, bruising, or evidence of sexual assault. Semen was found in a handkerchief inside Sampson's home, but towels found in the bathroom and Sampson's bedclothes were tested and failed to reveal the presence of any semen. These items were not tested to...