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Manning v. State

Supreme Court of Nevada

May 7, 2015

MALCOLM MANNING, A/K/A MALCOLM DENZEL MANNING, Appellant,
v.
THE STATE OF NEVADA, Respondent

Page 1016

Appeal from a judgment of conviction, pursuant to a jury verdict, of burglary, battery with intent to commit a crime (victim 60 years of age or older), and robbery (victim 60 years of age or older). Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.

Philip J. Kohn, Public Defender, and Deborah L. Westbrook, Deputy Public Defender, Clark County, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Elana L. Graham, Deputy District Attorney, Clark County, for Respondent.

CHERRY, J. BEFORE HARDESTY, C.J., DOUGLAS and CHERRY, JJ.

OPINION

Page 1017

CHERRY, J.:

In addition to other errors that are not issues of first impression, this opinion addresses whether it is constitutional error for a district court to fail to notify and confer with the parties when the court receives and responds to a note from the jury that it is deadlocked. We hold that it is. We also hold that such error will be reviewed for harmlessness beyond a reasonable doubt.

FACTS AND PROCEDURAL HISTORY

This case involves the robbery of an ABC Beer and Wine Store in Las Vegas. A man entered the store where Luz Potente, a 64-year-old Filipino cashier, who spoke primarily Tagalog, was working. Potente recognized the man because she had seen him in the store two to three times before. During one of his prior visits, he spoke to Potente about selling either DVDs or CDs. When the man robbed the store, Potente stated that he looked around the store and then proceeded around the counter to where she stood behind the cash register. According to Potente, the man roughly pushed her aside and went to a set of plastic drawers where the store kept gaming money and receipts in envelopes, he took an envelope, and he then left the store. The robbery took approximately one minute to complete. Potente initially thought that the man took an envelope containing $500, but she later realized the cash was still there.

Three days after the incident, a responding officer returned to the convenience store with a six-person photo lineup. The officer showed Potente the lineup and asked her if she saw anyone in it that she recognized. Potente promptly identified Manning as the individual who came into the store that day and took the envelope. Manning was arrested after police discussed the case with Akeem Schafer, who was acquainted with Manning. The State subsequently charged Manning with burglary, battery with intent to commit a crime with a victim 60 years of age or older, and robbery with a victim 60 years of age or older.

The case proceeded to trial. The jury retired for deliberations late in the day and, about an hour later, gave the court a note indicating that it was deadlocked 10-2 in favor of conviction. The court instructed the marshal to tell the jury to come back the next day and continue deliberating. The court failed to inform the parties of the note until the next day after the jury returned its verdict finding Manning guilty of all charges.

After receiving the verdict and learning of the jury's note that it was deadlocked, Manning filed a motion for a new trial. He argued inter alia that a new trial was warranted because he did not receive notice that the jury considered itself deadlocked, thus depriving him of his right to request a mistrial. The court denied the motion because the jury's note did not contain a question about law or evidence.

The district court entered a judgment of conviction, sentencing Manning to 6 to 15 years in the Nevada Department ...


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