Opinion
No. 76447-COA
10-31-2019
LEROY HALL MCCOY, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Leroy Hall McCoy appeals from an amended judgment of conviction, pursuant to a jury verdict, of first degree kidnapping, attempt murder with use of a deadly weapon, and battery with a deadly weapon resulting in substantial bodily harm constituting domestic violence. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
McCoy and the female victim had been in romantic relationship for over ten years and lived together. The victim ended the relationship and moved into the home of McCoy's sister. The victim texted McCoy and asked him to leave her alone. McCoy then broke into his sister's home in a rage and stabbed the victim in the nose, cheek, and back with a knife he brought. He then dragged her into the kitchen, raised a different knife above her head, and threatened to kill her. The victim grabbed the blade in a desperate effort to defend herself, nearly severing her finger. McCoy ran from the home and was arrested a few weeks later. A jury convicted him of the three most serious charges and acquitted him of two other charges.
On appeal, McCoy argues that during closing argument the prosecutor denied his right to a fair trial by (1) shifting the burden of proof and (2) vouching for the victim's credibility.
Burden shifting
McCoy argues that the State denied him. his constitutional right to a fair trial when the prosecutor commented on what evidence had been presented and not presented, thereby improperly implying that McCoy should have testified or presented evidence. We disagree.
If a defendant objects but fails to state specific grounds for the objection, the issue is not preserved for appeal and thus forfeited. See Rimer v. State, 131 Nev. 307, 332, 351 P.3d 697, 715 (2015). The Nevada Supreme Court has stated that before a forfeited error can be corrected on appeal, the "appellant must demonstrate that: (1) there was an 'error'; (2) the error is 'plain,' meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant's substantial rights." Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48, cert. denied ___ U.S. ___, 139 S. Ct. 415 (2018). "[A] plain error affects a defendant's substantial rights when it causes actual prejudice or a miscarriage of justice (defined as a grossly unfair outcome)." Id. at 51, 412 P.3d at 49 (internal quotations omitted). If there is overwhelming evidence of the defendant's guilt, the defendant's substantial rights have not been prejudiced. Green v. State, 119 Nev. 542, 548, 80 P.3d 93, 97 (2003).
Here, the prosecutor stated the following in her closing argument: "There has been no evidence presented that anybody else besides Leroy McCoy was the one that committed this crime. . . . There's no injuries on the defendant that have been presented . . . ." McCoy objected, however, he did not state his grounds. Thus, plain error review applies.
When a prosecutor's comments are an indirect reference to a defendant's decision not to testify, the comments are tested by determining "whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify." Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) (internal quotations omitted). The prosecutor's comments were not error because two of the State's witnesses, McCoy's sister and nephew, became adverse on the stand and claimed not to remember what had happened. Thus, the prosecutor's comments on what evidence had been presented were pointing out that none of the witnesses, including the ones that were adverse, provided any information that the person who attacked the victim was anyone other than McCoy, nor that McCoy was injured during the attack. Therefore, the jury would not have necessarily taken the prosecutor's comments to be directed at the defendant's failure to testify or present evidence.
Even if there was error, however, we conclude that McCoy's substantial rights were not prejudiced due to the overwhelming evidence of his guilt. Along with the victim's testimony, her injuries were documented by police officers. Also, the sister's testimony directly placed McCoy at her home right before the attack occurred. The State also offered incriminating text messages between McCoy and his sister that were sent immediately after the attack. Finally, the district court instructed the jury, making it clear that (1) the State had the burden of proof, (2) McCoy was presumed innocent, (3) he did not need to present any evidence, and (4) if he did not testify, the jury could not hold that against him.
In the first text, McCoy's sister said, "You need to turn yourself in. You was wrong for cutting Ashley." To which McCoy responded, "No. She was wrong leaving me in the cold and being closed door with Ronnie she did - she did played with my heart." He went on to say, "They're going to kill me before I turn myself in, trust that. I'm not stopping until she's dead."
Vouching
McCoy argues that the prosecutor improperly vouched for the victim's credibility two separate times during the State's closing argument. After each instance of vouching, McCoy objected and the district court sustained the objection. We do not see reversible error because the district court cured any harm caused by any vouching when it sustained the objection.
"The prosecution may not vouch for a witness; such vouching occurs when the prosecution places the prestige of the government behind the witness by providing personal assurances of [the] witness's veracity." Browning v. State, 120 Nev. 347, 359, 91 P.3d 39, 48 (2004) (alteration in original) (internal quotations omitted). The Nevada Supreme Court has cited federal caselaw indicating that vouching is an error of nonconstitutional dimension. See Valdez v. State, 124 Nev. 1172, 1189 n.40, 196 P.3d 465, 477 n.40 (2008) (citing United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006)). Normally, when error is not of a constitutional dimension, the court "will reverse only if the error substantially affects the jury's verdict." Id. at 1189, 196 P.3d at 476. Moreover, when the defendant immediately objects to an error at trial and the objection is sustained, the error generally does not constitute reversible error. See Hernandez v. State, 118 Nev. 513, 525, 50 P.3d 1100, 1109 (2002).
Under the facts of this case, because the district court sustained the objection, any error was cured by the district court. Moreover, the district court provided instructions that made clear to the jury that it was to determine witness credibility and disregard any evidence that pertained to a sustained objection. See Summers v. State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006) (stating there is a presumption that juries generally follow the district court's instructions). Additionally, due to the overwhelming evidence against McCoy, any improper vouching did not substantially affect the jury's verdict. Accordingly, we
ORDER the amended judgment of conviction AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. William D. Kephart, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk