Opinion
84864
06-24-2024
WENDELL DEMETRIUS MELTON, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER AFFIRMING IN PART, VACATING IN PART, AND REMANDING WITH INSTRUCTIONS
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon; child abuse, neglect, or endangerment with substantial bodily harm with the use of a deadly weapon; and child abuse, neglect, or endangerment. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
On November 2, 2017, following a visit to the apartment that G.M. lived in alone, appellant Wendell Demetrius Melton called 911, saying that he had shot his son but that he had had no choice. Melton later testified at trial that shooting G.M. was an accident. But because Melton had allowed his 14-year-old son to live alone in an apartment, Melton conceded guilt on the child abuse, neglect, or endangerment charge. The jury found him guilty of first-degree murder with the use of a deadly weapon; child abuse, neglect, or endangerment with substantial bodily harm with the use of a deadly weapon; and child abuse, neglect, or endangerment. At the sentencing hearing, the district court imposed deadly weapon enhancements on the first two counts but failed to mention or make findings on the record about the mandatory factors under NRS 193.165(1), the sentencing-enhancement statute, prior to imposing an aggregate prison term of 28 years to life.
Melton raises several challenges to his trial and sentencing on appeal. He argues that (1) he was deprived of his right to a representative cross section of the community on his jury venire, (2) the trial court abused its discretion by refusing to answer the jury's question about the felonymurder rule, (3) the trial court abused its discretion by failing to restrain G.M.'s mother's speech, (4) the prosecutor committed misconduct during closing arguments by mischaracterizing Melton's recorded statements, (5) potential State witnesses made prejudicial statements in front of the jury, and (6) the district court committed plain error by failing to make findings on the record with regard to the NRS 193.165(1) factors prior to imposing the deadly weapon sentence enhancements.
Melton fails to show plain error regarding his right to a representative cross section of the community on his jury venire
Defendants have the right under the Sixth and Fourteenth Amendments of the United States Constitution to a trial by a jury that is "selected from a representative cross-section of the community." Evans v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 274 (1996). When raising this issue, a defendant must establish a prima facie violation by showing that (1) a distinctive group was excluded, (2) the group's representation in the jury venire was not fair and reasonable compared to its representation in the community, and (3) the group was systematically excluded by the jury-selection process. Id. at 1186, 926 P.2d at 275. If a defendant does not object in district court, plain error review applies. Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005). Under that standard, an error is reversible if the defendant shows actual prejudice or a miscarriage of justice. Id. But if the failure to object below appears intentional, relief may be unavailable. See Jeremias v. State, 134 Nev. 46, 52-53, 412 P.3d 43, 50 (2018).
Here, Melton made a fair-cross-section challenge to the jury venire, and the district court announced it was prepared to hold a hearing with the jury commissioner. But Melton conceded that he could not establish the systematic exclusion of a distinctive group. He agreed that no evidentiary hearing was necessary. So the district court did not hold a hearing and concluded that there was nothing for it to rule on. Because Melton agreed that there was no evidence of systematic exclusion of a distinctive group, he failed to establish a prima facie case below. This deprived the district court of the opportunity to correct the error-if any-raised on appeal, and we conclude that relief is not warranted on this issue.
The district court abused its discretion by not answering the jury's question about the felony-murder rule
Generally, a district court may decline to answer a question that the jury instructions already answer. Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941 (1968). But if the jury asks a question that "suggests confusion or lack of understanding of a significant element of the applicable law/' then the court must "give additional instructions on the law to adequately clarify the jury's doubt or confusion." Gonzalez v. State, 131 Nev. 991, 996, 366 P.3d 680, 683-84 (2015). This exception applies even when jury instructions are "correct, complete, and clear." Jeffries v. State, 133 Nev. 331, 337, 397 P.3d 21, 28 (2017).
A district court's failure to answer a jury's question is reviewed for an abuse of discretion. Id. at 337, 397 P.3d at 27-28. If the jury's question concerns an issue that goes "to the very heart of the offense at issue," then a court's refusal to answer the question is an abuse of discretion. Id. at 337, 397 P.3d at 28. But if neither party proffers an instruction "that would clarify the jury's doubt or confusion," then the court does not abuse its discretion by refusing to answer. Id. at 338, 397 P.3d at 28.
In this case, Instruction 17 stated the following:
A killing which is committed in the perpetration or attempted perpetration of Child Abuse is deemed to be murder of the first degree, whether the killing was intentional or unintentional or accidental. This is called the Felony-Murder Rule.
In the context of the Felony Murder rule, Child Abuse means physical injury of a non-accidental nature to a child under the age of 18 years.
The State must prove beyond a reasonable doubt that the injury was of a non-accidental nature. If you believe the injury was the result of an accident, the Defendant is not guilty of First Degree Murder under the Felony-Murder Rule.
Shortly into deliberations, the jury asked, "[T]he first two sentences and last two [of Instruction 17J seem to contradict each other. Is an accident not guilty of first-degree murder under the felony murder rule?" The district court informed the parties about the jury's question and stated that it "never answer[s] a [jury] question, ever." The prosecutors and a defense attorney agreed that the court should point the jury to the instruction that told them to read all instructions as a whole. Another defense attorney suggested that the court tell the jury that the middle paragraph explained how the first and third paragraphs were not contradictory. Ultimately, the court responded to the question by telling the jury to refer to the jury instructions.
The district court abused its discretion by failing to answer the jury's question about the felony-murder rule. Although a correct statement of the law, Instruction 17 was confusing as to whether felony murder required a nonaccidental killing. It is essential that the jury, charged with determining a defendant's guilt or innocence, understands its instructions. The district court's statement that it never answered a jury's question reflects a misunderstanding of the district court's obligation. Basing its refusal to answer the question at least in part on a policy of never answering jury questions was inappropriate.
In this case, however, the record shows that the district court's error in refusing to answer the jury's question did not affect the verdict. See Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001) (explaining that when reviewing for nonconstitutional harmless error, the test "is whether the error had substantial and injurious effect or influence in determining the I jury's verdict.") (internal quotation marks omitted). Of note, the State did not argue harmless error. But see Belcher v. State, 136 Nev. 261, 268, 464 P.3d 1013. 1024 (2020) (stating the test that applies for determining when this court may consider harmlessness despite the State's failure to argue it). Assuming without deciding that Belcher applies to non-constitutional error, we find the error harmless. In addition to the guilty verdict for first-degree murder, the jury returned a guilty verdict for the underlying felony of child abuse, neglect, or endangerment with substantial bodily harm with the use of a deadly weapon. To find Melton guilty of the underlying felony, the jury necessarily concluded that the child abuse, neglect, or endangerment with substantial bodily harm was intentional. Accordingly, harmlessness does not appear debatable, and we will not reverse Melton's conviction of first-degree murder with the use of a deadly weapon on this ground.
The district court's refusal to restrain Victoria. Melton's speech was not an abuse of discretion
A court order that prevents parties from making statements about their case outside of court is a prior restraint, which is subject to strict scrutiny under the First Amendment. Johanson v. Eighth Jud. Dist. Ct., 124 Nev. 245, 251, 182 P.3d 94, 98 (2008). A court may issue a gag order only if "(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available." Id. (internal quotation marks omitted). Overbroad gag orders are not permissible. See id. at 252, 182 P.3d at 99 (concluding that a gag order preventing the parties, attorneys, and anyone associated with the parties from discussing the case with any other individual was not narrowly drawn). A "protected competing interest" is the Sixth Amendment right to a fair trial by an impartial jury. Levine u. U.S. Dist. Ct. for Cent. Dist. of Cal, 764 F.2d 590, 595 (9th Cir. 1985).
During jury selection, a marshal overheard G.M.'s mother, Veronica Melton, speaking in the hallway about the case. Veronica was also very active on social media, in political circles, and with news outlets, including an interview on Fox News in which she stated that Melton killed G.M. because G.M. was gay. One potential juror was excused because he stated that he saw the case on the news and believed that Melton was guilty. Melton points out that the court excused another potential juror on the second day after he told the court that he was "a homosexual" and that being ill the courtroom made him uncomfortable. But it is not apparent from the record that the juror saw or read news reports on this case-on the first day of trial, the State informed potential jurors that the victim was gay and asked whether they thought he deserved the same justice as everyone else.
The district court did not abuse its discretion by refusing to further restrain Veronica's speech beyond the prosecutor telling her not to communicate with jurors or potential jurors because to do so would cause a mistrial and the marshal cautioning her that she would be removed if she spoke about the case again in the building. There is no indication that any empaneled juror heard Veronica's courthouse hallway statements. The potential juror that saw the case on the news was excused. And the district court instructed the jury multiple times not to listen to, read, or watch outside accounts of the case, and juries are presumed to follow their instructions. Summers v. State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006). Further, when questioned as a group, no jurors indicated that they overheard any discussion of the case. Therefore, Melton is not entitled to relief on this claim.
The prosecutor's comments regarding recordings of Melton's statements do not warrant reversal
"[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." Leonard v. State, 117 Nev. 53, 81, 17 P.3d 397, 414 (2001) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). When considering whether a prosecutor's comments amount to misconduct, the court considers (1) whether the comments were improper, and (2) whether the improper comments warrant reversal. See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). At step one, a prosecutor's statements do not constitute misconduct "unless the prosecutor makes these statements in bad faith." Guidry v. State, 138 Nev. 390, 399, 510 P.3d 782, 792 (2022). Prosecutors may "assert inferences from the evidence and argue conclusions on disputed issues." Truesdell v. State, 129 Nev. 194, 203, 304 P.3d 396, 402 (2013). At step two, we consider whether any misconduct at step one was harmless error. Valdez, 124 Nev. at 1188, 196 P.3d at 476. But if the defendant failed to object at trial, review is for plain error and the defendant must show that the error caused "actual prejudice or a miscarriage of justice." Id. at 1190, 196 P.3d at 477 (internal quotation marks omitted). Actual prejudice occurs when a prosecutor's arguments go to the heart of a case, improperly focus the case on the prosecutor's personal views, and are not passing in nature such that the statements affect the defendant's substantial rights. Anderson, 121 Nev. at 517, 118 P.3d at 187-88.
Here, Melton argues that during closing arguments the prosecutor mischaracterized two of Melton's previous statements. First, Melton alleges the prosecutor represented that during a 911 call Melton referred to G.M. using a racial slur. Melton states that he provided a recording of the portion of the trial during which a prosecutor played the recording of that call, but one of the CDs provided contained a recording from the wrong portion of the trial, and the other CD was blank. See Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997) ("It is appellant's responsibility to make an adequate appellate record. We cannot properly consider matters not appearing in that record." (citation omitted)). Nevertheless, the transcript indicates that Melton's statement on the 911 call was ambiguous and shows that Melton did not argue below that the prosecutor made the representation in bad faith, instead characterizing the comments as a misinterpretation of Melton's ambiguous statement. On the limited record, we discern no misconduct.
Second, Melton argues that the prosecutor mischaracterized his statement to police that he "pointed at G.M." He contends the prosecutor stated repeatedly that Melton instead said he "pointed it [the gun] at G.M." (Emphasis added.) But Melton failed to object at trial, and our review is for plain error. Even if the prosecution mischaracterized this statement, reversal is not warranted. Melton's statement was played for the jury, and the jury could easily compare the prosecutor's argument against that evidence. See Anderson, 121 Nev. at 517, 118 P.3d at 188 (explaining a prosecutor's statements were problematic because they "clearly changed the focus of the case to [the prosecutor's] personal views, not the evidence"). Further, although Melton repeatedly denied telling the police that he pointed the gun at G.M., he also acknowledged that he may have made that statement. Melton fails to show that the prosecution's characterization of his statement to police created actual prejudice or a miscarriage of justice, and therefore the error, if any, does not require reversal.
Melton does not show prejudice arising from statements made by the State's potential witnesses
To prevail on a motion for a new trial because of a juror's exposure to a third-party's statements, the defendant must show both the exposure and that prejudice resulted. Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 447, 455 (2003). Prejudice arises if a reasonable probability exists that the juror misconduct affected the verdict. Id. at 566, 80 P.3d at 456. Not all contact between jurors and a third party requires a new trial. Roever v. State, 111 Nev. 1052, 1055, 901 P.2d 145, 147 (1995). The trial court may cure any prejudice by admonishing the jury, see Jeffries, 133 Nev. at 336, 397 P.3d at 27 (noting that the district court remedied prejudice caused by a juror's independent research by admonishing the jury), and we presume the jury follows the court's instructions, Summers, 122 Nev. at 1333, 148 P.3d at 783. Electing not to have the jury admonished may also vitiate any objection on appeal. See Leonard v. State, 114 Nev. 1196, 1213, 969 P.2d 288, 299 (1998) (citing Stickney v. State, 93 Nev. 285, 287, 564 P.2d 604, 605 (1977)).
Melton contends that he is entitled to a new trial because two potential State witnesses-Veronica and G.M.'s grandmother, Clara-made statements about the case within earshot of the jury. These include Veronica's statements and an incident during the proceedings in which Clara locked the wheels on her wheelchair and made statements against Melton while the marshal pushed Clara's locked wheelchair from the courtroom. Although Melton created a record regarding Veronica's and Clara's conduct in front of the jury, he did not ask for a new trial, so out-review is for plain error. Of. Jeremias, 134 Nev. at 55, 412 P.3d at 52 (stating that if "the objection below was on a different basis than the claim asserted on appeal, we review for plain error"). Here, Melton has not shown prejudice. The jury was repeatedly admonished not to listen to outside information about the case, and as addressed above the record does not support Melton's arguments regarding Veronica's actions and their effect on his case. As for Clara's outburst, Melton chose not to ask for any curative instructions. Melton therefore fails to show error that entitles him to a new trial.
The district court erred by failing to make findings under NRS 193.165(1) before imposing the deadly weapon sentence enhancement
Courts must consider several enumerated factors when determining the sentence enhancement for use of a firearm or other deadly weapon during the commission of a crime. NRS 193.165(1). These factors are "(a) [t]he facts and circumstances of the crime; (b) [t]he criminal history of the person; (c) [t]he impact of the crime on any victim; (d) [a]ny mitigating factors presented by the person; and (e) [a]ny other relevant information." Id. The district court must state on the record that it considered the factors and articulate findings regarding each factor before imposing the sentence enhancement. Mendoza-Lobos v. State, 125 Nev. 634, 644, 218 P.3d 501, 508 (2009). But if a defendant fails to object to a court's failure to articulate findings, plain-error review applies. Id. at 644, 218 P.3d at 507. Under that standard, if a defendant cannot show prejudice or a miscarriage of justice, the defendant is not entitled to relief. Id. at 644, 218 P.3d at 508.
Here, the district court did not make findings on any of the enumerated factors, nor did it state that it had considered the factors. Our precedent clearly requires that a sentencing court must articulate findings before imposing a sentence enhancement. Although Melton did not object, neither did the State, whose representative also should be aware of our clear precedent on this issue. On this record, we conclude that the district court's failure to make the NRS 193.165(1) findings necessary to support imposing the enhancement constitutes plain error. The failure both violated the statute's mandate and prejudiced Melton by resulting in a mechanical application of the sentencing enhancement without proper consideration of factors that could have rendered a different result. We therefore vacate the deadly-weapon enhancement on both the first-degree murder conviction and on the child abuse, neglect, or endangerment with substantial bodily harm conviction, and remand for findings with respect to the potential enhancement, and for resentencing in accordance with those findings.
Accordingly, we
ORDER the judgment of conviction AFFIRMED IN PART AND VACATED IN PART AND REMAND this matter to the district court for resentencing proceedings consistent with this order.
Stiglich, J. Pickering, J. Parraguirre, J.
Hon. Michelle Leavitt, District Judge