Turner v. State

• Decision Date: 29 October 2014
• Docket Number: No. 62461,62461
• Parties: JOHN ELVIN TURNER, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

JOHN ELVIN TURNER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 62461

SUPREME COURT OF THE STATE OF NEVADA

October 29, 2014

An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of robbery. Eighth Judicial District Court, Clark County; Valerie Adair, Judge. Appellant raises eleven issues on appeal.

First, appellant contends that the evidence presented at trial was insufficient to support the jury's finding of guilt. Our review of the record on appeal, however, reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The evidence shows that while the victim stood near a bus station, appellant asked to use the victim's cell phone. The victim answered that his cell phone was not working. After which, appellant asked the victim for $1. The victim told appellant that he did not have a $1. Moments later, appellant struck the victim twice in the face with his closed fist. The victim fell to the ground and his cell phone landed on the ground a few feet from him. Appellant picked up the cell phone and grabbed the victim's work bag, emptied it, and perused through the contents. Appellant walked away with the victim's cell phone but tooknothing from the bag. He was apprehended a few blocks away based on the victim's description of the suspect. The victim's cell phone was found in appellant's short's pocket. After the victim identified appellant as the perpetrator in a show-up identification, appellant was arrested and ultimately convicted of robbery.

The jury could reasonably infer from the evidence presented that appellant was guilty of robbery. See NRS 200.380. It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).

Second, appellant argues that he was denied his statutory speedy trial right and that the district court made an inadequate record showing good cause for the delay in proceeding to trial. NRS 178.556 provides that a district court may dismiss a charging document if the defendant is not brought to trial within 60 days after arraignment. "A dismissal is mandatory only if the State cannot show good cause for the delay." Meegan v. State, 114 Nev. 1150, 1154, 968 P.2d 292, 294 (1998), abrogated on other grounds by Vanisi v. State, 117 Nev. 330, 22 P.3d 1164 (2001).

Here, appellant invoked his statutory right to a speedy trial at arraignment and the district court set trial five days outside the 60-day limit due to courtroom accommodation. Five days before trial was scheduled to commence, defense counsel requested a competency evaluation for appellant. On return from competency court, the district court set the trial for the next available court date 48 days later, onAugust 20, 2012. On August 16, 2012, defense counsel requested a 4-week continuance to investigate appellant's past medical treatment. The district court set trial for October 15, 2012, to which counsel agreed. The trial date was again continued to October 18, 2012, due to defense counsel's filing of a motion to suppress evidence. Based on this record, we conclude that appellant's statutory speedy trial right was not violated where the delay was aptly attributable to district court convenience, see Shelton v. Lamb, 85 Nev. 618, 619, 460 P.2d 156, 157 (1969) (recognizing "the well-settled law of this state that the condition of the calendar, the pendency of other cases, the public expense, the health of the judge, and even the convenience of the court are good causes for a continuance"), and appellant's pursuit of a competency evaluation and evidentiary challenge.

Third, appellant contends that the district court erred by denying his challenge for cause against a juror who expressed that he would "have an issue" if the defense "didn't do anything." The district court denied the for-cause challenge based on subsequent questioning of the juror, and appellant exercised a peremptory challenge to remove the juror. Even if the district court erred, appellant has not alleged or demonstrated that any jurors actually empanelled were unfair or not impartial.¹ See Weber v. State, 121 Nev. 554, 581, 119 P.3d 107, 125, (2005) ("Any claim of constitutional significance must focus on the jurors who were actually seated, not on excused jurors."). Therefore, no relief is warranted on this claim.

Fourth, appellant argues that the district court erred by denying his motion to suppress evidence obtained through an unlawful search of his person. We review the district court's decision as a mixed question of law and fact. Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131 (2008). The district court's factual findings are reviewed for clear error, but the legal consequences of those factual findings are reviewed de novo. Somee v. State, 124 Nev. 434, 441, 187 P.3d 152, 157-58 (2008). In particular, he contends that his detention by the police was not based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), because he did not match the description of the suspect the victim gave to the 911 operator. The victim described his attacker as a black male, 61 inches tall, 140 pounds, approximately 18 years old, and wearing a gray sweatshirt. Appellant was described at trial as a black male, 66 inches tall, 190 to 250 pounds, and "doesn't look like a teenager." When he was detained, appellant was wearing a gray sweatshirt and was found about three to four blocks away from the scene of the robbery shortly after it occurred, and was walking in the direction of travel described by the victim. In ruling on the motion, the district court acknowledged that there were "significant differences" between appellant and the suspect's description in terms of weight and height but that the general description of a black male wearing a gray sweatshirt in the vicinity of the robbery was sufficiently "specific and narrow" to support an investigative stop.

"In determining the reasonableness of a stop, the evidence is viewed under the totality of the circumstances and in the context of the law enforcement officer's training and experience." State v. Rincon, 122 Nev. 1170, 1173-74, 147 P.3d 233, 235 (2006). Although "[r]easonable suspicion is not a stringent standard," it requires "more than a policeofficer's hunch." Id. at 1173, 147 P.3d at 235. "A law enforcement officer has a reasonable suspicion justifying an investigative stop if there are specific, articulable facts supporting an inference of criminal activity." Id.; see United States v. Arvizu, 534 U.S. 266, 273 (2002) (concluding that while officers must have a particularized basis to detain an individual, they must be allowed "to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person" (internal quotation marks omitted)); United States v. Cortez, 449 U.S. 411, 417-18 (1981) (observing that reasonable suspicion is an "elusive concept," but it demands that the totality of the circumstances show that "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity"); NRS 171.123(1); Proferes v. State, 116 Nev. 1136, 1139, 13 P.3d 955, 957 (2000) (concluding that "[a] police officer may stop and detain a suspect for questioning regarding possible criminal behavior," but that "[t]here must be some objective information to support a reasonable suspicion connecting the person to criminal activity"), overruled on other grounds by Rosky v. State, 121 Nev. 184, 111 P.3d 690 (2005). While the victim's physical description of the suspect differs from appellant's appearance in some aspects, appellant matched the victim's description in terms of race, gender, clothing, and direction of travel. And appellant was found in the vicinity of the robbery, minutes after it occurred. Considering the totality of the circumstances, we cannot say that the district court erred by denying appellant's motion to suppress.

Appellant also argues that the cell phone recovered from his pocket should have been suppressed because he did not consent to asearch of his pocket and the police did not have a warrant to search the cell phone. Because appellant did not object to the admission of the cell phone based on these grounds, we review his claim for plain error. See Herman v. State, 122 Nev. 199, 204, 128 P.3d 469, 472 (2006), abrogated on other grounds by Nunnery v. State, 127 Nev. ___, 263 P.3d 235 (2011); Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007) ("To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record'" and the defendant must show that the error affected his substantial rights. (quoting Garner v. State, 116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002))). After Officer Gary Sittre detained and handcuffed appellant, he noticed a cell phone in appellant's shorts' pocket. He asked appellant if he could search appellant's pockets and appellant responded affirmatively. Because appellant did not challenge this matter below and therefore no factual findings were made, we cannot say from this limited record that the mere fact that appellant was handcuffed rendered his consent involuntary. See United States v. Watson, 423 U.S. 411, 424, (1976) ("[T]he fact of custody alone has never been enough in itself to...