Thompson v. State

• Decision Date: 10 December 2009
• Docket Number: No. 51162.,51162.
• Citation: 221 P.3d 708
• Parties: Luqris THOMPSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

221 P.3d 708

Luqris THOMPSON, Appellant, v. The STATE of Nevada, Respondent.

No. 51162.

Supreme Court of Nevada.

December 10, 2009.

Ciciliano & Associates, LLC, and G. Luke Ciciliano, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Peggy M. Samples, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

By the Court, SAITTA, J.

In this appeal, we consider whether the State's election to dismiss one of two charging documents and to proceed on the other constitutes "another prosecution" under NRS 178.562(1). Specifically, we address whether the 1997 amendment to NRS 178.562(1) affects our holding in Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971). We hold that it does not and conclude that neither this issue, nor the other issues that appellant Luqris Thompson raises on appeal, warrants reversal of Thompson's conviction and sentence. Therefore, we affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Renee Coppola returned to her apartment one night, parked her car, and retrieved some bags from the back seat. With the back door still open, Coppola turned around with her bags and saw two men standing in front of her—one of the men was later identified as Thompson. Thompson grabbed Coppola and pushed her back into the car. Struggling against him, Coppola managed to escape and ran to a post that she clung to as Thompson and the other assailant forcibly pulled her off and pushed her back into the car. Hearing one of the men ask for her keys, Coppola threw the keys and her purse onto the floor of the car. The other assailant tried to start the car as Thompson lay on top of Coppola in the back seat. Coppola continued struggling and managed to exit the car and escape.

After escaping, Coppola ran to a neighbor's apartment and someone called 911. Coppola spoke to the police and completed a voluntary statement in which she described the attack and her assailants. That night, Coppola used the special training that she had learned as an art student to help her remember Thompson's appearance.

Thompson was arrested, and the State charged him by criminal complaint with conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto. A preliminary hearing was held; Thompson was bound over on the charges, and an information was filed in the district court. Shortly thereafter, the State presented the case before a grand jury, which ultimately returned an indictment against Thompson for the same crimes as charged in the pending information.

Upon obtaining the grand jury indictment, the State moved to dismiss the information. The district court granted the State's motion in a minute order. Thompson then moved to dismiss the indictment. A hearing on the motion was held and, without citing authority, the district court denied the motion.¹

Thompson also moved to preclude Coppola from identifying him as her assailant at trial. The district court denied Thompson's motion.² At trial, Coppola testified that 19 days after the attack, the police showed her three photographic lineups. She identified Thompson from the third lineup. While Coppola testified that she had only been 90 percent certain she had identified the correct man when she viewed the photographic lineup, she was 100 percent sure at the time of trial. Over Thompson's objection, Coppola also testified about the artist techniques that she had used to recall his appearance. Additionally, Coppola testified about the injuries she suffered in the attack, and photographs of her injuries were admitted.

Further, security guard Elven Bailey testified that he was on duty at Coppola's apartment complex the night of the attack. Bailey testified that he saw two African-American men, one of whom he identified at trial as Thompson, walking towards the back of the complex just before the attack.

The jury found Thompson guilty on all counts, and the district court sentenced him to prison terms of 18 to 48 months for conspiracy to commit a crime, 24 to 84 months for burglary, 48 to 120 months for robbery, 5 to 15 years for first-degree kidnapping, and 12 to 48 months for attempted grand larceny auto, with the conspiracy to commit a crime and first-degree kidnapping sentences to run consecutively and the remaining sentences to run concurrently. This appeal followed.

DISCUSSION

On appeal, Thompson raises five issues. He asserts that NRS 178.562(1) barred the State from prosecuting him under the grand jury indictment, and therefore, the district court erred in denying his motion to dismiss the indictment. Thompson further contends that the district court abused its discretion in denying his motion to suppress Coppola's pretrial photographic identification. Additionally, he argues that the district court abused its discretion when it allowed Coppola to testify regarding the artist techniques she used to remember his appearance. Thompson also asserts that the district court abused its discretion when it admitted photographs of Coppola's injuries. Lastly, Thompson contends that the State presented insufficient evidence at trial to support the verdict. We address each contention in turn.

NRS 178.562

Thompson argues that NRS 178.562(1) precluded the State from proceeding on the grand jury indictment after the information was dismissed. We disagree.

Because the issue of whether NRS 178.562(1) precluded the State from prosecuting Thompson under the grand jury indictment is purely a legal question, we review it de novo. See Camacho v. State, 119 Nev. 395, 399, 75 P.3d 370, 373 (2003).

In Nevada, a criminal prosecution may be commenced by criminal complaint, which results in the filing of an information if the defendant is bound over for trial after a preliminary hearing, or by grand jury indictment. NRS 173.015. This court has repeatedly held that "there is no jurisdictional defect in dual proceedings against an accused consisting of a grand jury indictment for the same offense which has been previously charged in a pending complaint or information." Sheriff v. Dhadda, 115 Nev. 175, 183, 980 P.2d 1062, 1067 (1999). Further, as a general matter, there is no "prejudice to an accused when one of two pending vehicles for prosecution is dismissed, leaving him accused by only one." Turpin v. Sheriff, 87 Nev. 236, 238, 484 P.2d 1083, 1085 (1971). The question presented in Turpin, and again in this case, is whether NRS 178.562(1) precludes the State from prosecuting a defendant when it has elected between two pending forms of prosecution and dismissed the one under which it has elected not to prosecute.

NRS 178.562(1) states: "[e]xcept as otherwise provided in NRS 174.085,[³] an order for the dismissal of the action, as provided in NRS 178.554[⁴] and 178.556,[⁵] is a bar to another prosecution for the same offense." The exception under NRS 174.085 in NRS 178.562 was added to the statute in 1997. See 1997 Nev. Stat., ch. 504, § 2, at 2393. Although NRS 178.562(1) was amended in 1997, after our 1971 decision in Turpin, we conclude that this amendment does not affect our holding in Turpin, which is the only Nevada case expressly discussing NRS 178.562(1).

In Turpin, the defendant was first charged by criminal complaint and the State filed an information following the preliminary hearing. 87 Nev. at 237, 484 P.2d at 1084. The State also obtained an indictment from a grand jury. Id. The State elected to proceed solely on the grand jury indictment and moved to dismiss the information, which the district court did. Id. at 237-38, 484 P.2d at 1084. This court held that "the state's election to proceed on one of two pending and viable forms of prosecution, and its dismissal of the proceeding under which it has elected not to prosecute, is not in violation of the provisions of NRS 178.562(1)." Id. at 238, 484 P.2d at 1085. In contrast, this court observed that because the indictment on which the State chose to proceed did not include one of the charges that had been in the information, "[t]he dismissal of the information without another pending vehicle for the prosecution [of that charge], runs afoul of the provisions of NRS 178.562(1), and bars further prosecution of the [defendant] on that charge." Id. at 238-39 n. 4, 484 P.2d at 1085 n. 4. Therefore, the key to Turpin was that the term "another prosecution for the same offense" in NRS 178.562(1) addressed only subsequent prosecutions for the same offense, and thus the State's dismissal of the information while there was another pending vehicle for prosecution of those offenses did not run afoul of NRS 178.562(1). See id. at 238, 484 P.2d at 1085.

The 1997 amendment to NRS 178.562(1) did not affect the "another prosecution for the same offense" language. See 1997 Nev. Stat., ch. 504, § 2, at 2393. Rather, the amendment identified NRS 174.085 as an exception to the bar against another prosecution for the same offense following dismissal of an action where there is no other information or indictment pending for that offense. Therefore, we conclude that our holding in Turpin remains: dual proceedings for the same offenses are proper, and the State may elect to proceed on one of two pending proceedings and dismiss the proceeding under which it has elected not to prosecute without running afoul of NRS 178.562(1). See Turpin, 87 Nev. at 237, 484 P.2d at 1085; Dhadda, 115 Nev. at 183-84, 980 P.2d at 1067. In this case, just as in Turpin, there were two proceedings pending against Thompson for the same offenses when the State moved to voluntarily dismiss the information. By choosing to pursue the grand jury indictment, the State was not bringing another prosecution following dismissal of an action. Thus, the State did not violate NRS 178.562(1). Further, because the State's election to pursue the grand jury indictment did not constitute "ano...