*1 DICKSON, Aрpellant, KEVIN THE STATE Respondent. NEVADA, OF
No. 20972 January Reno, E.
Hager Logan, Appellant. & Mausert and Gordon General, Papa, Attorney Del Carson Keith City; Frankie Sue Estes, Loomis, and Robert District Attorney Deputy District County, Respondent. Attorney, Lyon
OPINION Per Curiam: conviction, a of judgment pursuant
This is an from to a appeal verdict, of possession of one count of a controlled substance. jury NRS 453.336. The district court sentenced appellant eighteen in the Nevada State Prison. months Wynands On Sheriff Jeroen went to April Deputy other deputies purpose trailer with two of arresting appel- warrant. Officer outstanding Wynands lant on an knocked on the trailer, the door. appellant opened Appellant door of the and gave falsely name to the and stated that the man deputies they a false for was not at the trailer. looking Appellant were consented to a the The located deputies search of trailer. a woman inside the correctly appellant trailer who identified as “Kevin.” Appellant identification, but when initially having any denied Officer noticed a wallet in Wynands appellant’s pants, appellant admitted Wynands placed that he was Kevin Dickson. Officer appellant arrest, with a proceeded “pat under and down” search. As а search, Wynands Officer found a small plastic result of tube barrel) (a on plastic pen appellant’s pocket. Based his training, believed that the Wynands plastic Officer tube was of the type to inhale controlled substances into the typically used nose. any symptoms being did not exhibit under the Appellant influence of methamphetamine. the trailer was John In Montagano.
The owner of March of been arrested on a drug charge John’s son Jeff had at the trailer where was found. Jeff lived in the trailer for very appellant about months in 1988 and 1989. Jeff had eight drug paraphernalia included five or six barrels that Jeff pen at the trailer which had ingesting methamphetamine. broken or cut in half to use for Jeff that he identified the tube as a barrel had modified for plastic pen ingestion methamphetamine. the Smith, County criminalist for the Washoe Sher- Richard A. tube with a dilute solution of plastic washed the Department, iff’s An infrared test on the solution indicated acid. sulfuric of a of metham- gram of less than one one-hundredth presence phetamine. he was arrested he had been day testified that on the
Appellant barrel along and had with picked up the trailer cleaning they and screws so would not be sucked change up sоme loose cleaner. the vacuum courthouse, to the at least one of transported As was appellant This fact brought saw him chains. the prospective district court’s examination of the during prospective out of the prоspective jurors. and was discussed in front all jurors, were admonished not to allow the incident The prospective made further of the appellant inquiry to affect them. Counsel they this incident and two indicated that felt jury regarding because he had been to court in brought sorry appellant be weigh One indicated that would “hard” to chains. because of this incident. Both sides fairly passed
evidence jurors answering for cause. Because the are not questions *3 it is not to determine from the transcript, possible identified in the who saw in chains any juror appellant record whether was challenge. Appellant’s as a result of a motion peremptory excused mistrial was denied. for a concedes, contends, and the state that it was error to
Appellant
to see
in chains. We
“A criminal
appellant
agree.
allow the
right
appear
jurors
has the
...
before his
clearly
defendant
State,
innocent
Grooms v.
person.”
clad in the
of an
apparel
1145,
142, 144,
(1980) (citations omitted);
605 P.2d
see,
Allen,
(1970) (the sight
Illinois v.
The state infringes rights, in a trial on defendant’s constitutional an error only harmless if the tribunal is may appellate error be deemed harmless a reasonable beyond a belief that was “able to declare California, (1967). 386 U.S. doubt.” Chapman appeal, review of the record on we cannot Based on our beyond in this case was harmless that the error conclude juris- the dissent cites cases from other doubt. While reasonable Grooms, dictions, in Nеvada. In to follow the law we are bound case, willing this court was to con- type governs which on a review of the entire was harmless based clude that the error however, case, the error is more egregious, the instant record. In closer, than in Grooms. against appellant and the case First, appellant by were informed that was seen jurors all of the While not all of the actually in chains. juror at least one chains, was discussed at length the incident saw appellant abоve, dire. As noted at least one in voir front of all the weigh would be “hard” to the evidence indicated that it they incident. Other indicated that because of this fairly seeing because of him in chains. sympathy appellant felt seeing in chains had no sаy appellant we cannot Accordingly, on the jury. effect
Further, against note that the evidence appellant we methamphetamine The amount of found extremely close. At oral the state conceded argument, was minuscule. barrel pen anyone been without scientific impossible that it would have that there was inside methamphetamine to have known equipment admittedly property The barrel was pen barrel. circumstances, user. Under these we drug a known Montagano, beyond the error was harmless a reasonable cannot conclude that reverse the of conviction.1 judgment we Accordingly, doubt. Mowbray, J., dissenting: C.
Respectfully, I dissent. Kevin
Appellant lawfully Dickson was arrested at a house outstanding trailer on an warrant. A down” search “pat revealed containing a small tube a white plastic powdery residue. Labora- tory analysis later identified the residue as methamphetamine.
In Watson v. 88 Nev. 495 P.2d (1972), this court concluded that minute quantities of a narcotic could not the intent element of the support crime of possession of a controlled substance. See also Beutler v. However, (1972). Watson was tried N.2,
before the 1971 amendment to NRS ch. 453. Watson at 198 *4 P.2d at n.2.1 The current provisions of NRS 453.570 provide as follows:
Amount of controlled substance needеd to sustain convic-
prohibited
tion for
offense. The amount of a controlled
light
appeal,
disposition
1 In
of our
of this
we decline to
appel
consider
jury’s
lant’s contention that there was insufficient evidence to sustain the
verdict.
(1972),
Nеv.
In Sheriff v. (1973), court NRS in interpreted light 453.570 of Watson and reasoned quantity of controlled substance to support “[t]he the intent necessary to establish the crimе of possession is only vital in the absence of other evidence of intent.” Id. at P.2d at 556. The Benson court then concluded: there
When is in the present record other evidence of intent to commit an prohibited by offense NRS ch. then all that is nеeded to sustain a conviction is that amount of controlled substance necessary for identification. Where there is a total absence of other evidence to establish the intent to commit an offense prohibited by NRS ch. 453 then the rulе announced in Watson is controlling.
Id.
I conclude that the standard articulated in Benson is the stand- be ard that should followed in this case. I likewise believe that if followed, Benson is Dickson’s conviction should be affirmed by this court. trial,
At Dickson asserted that hе did not intend to possess the He testified that he methamphetamine. had picked up a small tube—described as a pen barrel —while he vacuuming the floor, and that he had placed his pocket without knowledge its contents.
However, Dickson’s friend testified on rebuttal that he had seen Dickson “involved” with methamphetamine Dickson’s home. Further, Dickson admitted that he had seen the friend use a pen Therefore, barrel to ingest methamphetamine. it was reasonable to conclude that Dickson knew that the white pow- in the dery substance barrel was methamphetamine. evidence,
Based on the above I strongly disagree with the to majority’s conclusion reverse this case simply because a pro- spective juror sаw Dickson in chains outside the courtroom. The being brought incident occurred as Dickson was into the court- house, to trial. When a prior juror later brought this to the court, attention of the Judge District adequately admonished the jury.2 Dickson’s counsel had an opportunity question judge explained: “Many 2 The times defendant will be arrested and not bail, able to and that’s a fact of finances. And if he can’t make make bail he’s jail, nothing that has guilt to do with his [sic] or innocence.” At the trial, judge conclusion of the the trial further admonished:
6 for Dickson. sympathy jurors expressed Two on voir dire.
jurors if not which he’s guilty “I feel bad for him he’s stated: juror One no . .” There was evidence not to be. . already presumed from the inci- resulting Dickson against indicating any prejudicе to from court’s reason this depart I see no Consequently, dent. 144-145, 142, 605 P.2d v. in Grooms 96 holding 1145, any “that (1980), prejudice wherein we concluded 1147 by the viewing scrupulous the was cured resulted from that not jurors that were judge ensuring of the district conduct the error.” by influenced is conjecture the view that a far-fetched firmly support “[i]t
I harbor spontaneously prejudice oath would under that to mana- seeing brought defendant court in immediately a upon 377, 728, (Haw. 1962). Hashimoto, P.2d 734 State v. cles.” Furthermore, should to my colleagues I believe honorable adhere by Washington Supreme the provided counsel following the Court: addition, must some in favor of indulge presumptions
In we a branch the and if judiciary, of the It is of jury. the integrity of quickly forgetful are so the duties we assume that to their continually ready to violate as stand citizenship inevitably we must con- slightest provocation, oath on the government is a farce and our a by jury that a trial clude failure. denied, 15, 6, (1982), P.2d cert. U.S. v. 647 459 Grisby,
State (Wash. P. 453 (1983) Pepoon, State v. 114 (quoting 1211 1911)). a a defendant outside incident where sees
An inadvertent anything or chains cannot be more than in handcuffs a courtroom error, a See Hamrick v. showing prejudice. absent harmless (Colo. 1981); State v. Pendergrass, 624 P.2d People, (Mont. 1980); Snyder v. P.2d noted, 1987). (Okla. jurors expressеd As heretofore the record not provide any and the does for Dickson sympathy Furthermore, I agree my cannot with of prejudice. evidence the case Dickson was against that distinguished colleagues testimony the of Dickson and “extremely Upon hearing close.” witnesses, verdict. The evidence guilty returned other inten- conclusion Dickson support jury’s sufficient to is your As duty it is exclusive to questions decide all of fact you submitted purpose determining the effect and value of performing duty, you evidence. In must not be by influenced pity for by the defendant or passion prejudice or against him. You must against not be biased defendant because he has been arrested for this offense brought or because he has been to trial. Thеrefore, I would con- methamphetamine. tionally possessed by beyond clude that the error State was “harmless California, Chapman reasonable doubt.” 386 U.S.
(1967); see also Hendee v. (1976); reject NRS 177.255. I Accordingly, majori- contrary. to the conсlusion
ty’s NARDOZZI, Appellant, v. CLARK COUNTY LINDA J. DISTRICT, a Political Subdivision SCHOOL Respondent. County, Nevada, Clark State
No.
January February denied [Rehearing 1992] Santoro, Jimmerson, Vegas, Appellant. Las Davis & Greg W. DeLanoy, Jemison & List and Beckley, Singleton, F, Haight, H. Las Donald Polsenberg, Vegas; Daniel Marsh and District, Vegas; Las Counsel, School County Clark General Atkin, Las Edwards, Hunt, Vegas, Trevor Hansen and Hale & Respondent.