                                                     131 Nev., Advance Opinion 2.1e
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                  MALCOLM MANNING, A/K/A                                 No. 63274
                  MALCOLM DENZEL MANNING,
                  Appellant,                                                   MED
                  vs.
                  THE STATE OF NEVADA,                                          MAY 0 7 2015
                  Respondent.



                              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.
                              Affirmed.


                  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.




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


                                                   OPINION

                  By the Court, CHERRY, J.:
                              In addition to other errors that are not issues of first
                  impression, this opinion addresses whether it is constitutional error for a
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                 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.

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                            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 of Corrections.
                Manning appealed.
                                                DISCUSSION
                            Manning argues that the district court's failure to notify and
                seek input from the parties after receiving the jury's note that it was
                deadlocked constitutes a constitutional error. Whether the district court's
                actions in this case violated Manning's rights to counsel, to be present at
                trial, to a fair trial, and to due process are constitutional issues that we
                review de novo.      See Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d
                1274, 1277 (2012).
                            We have yet to address in a published opinion the
                constitutional implications of a district court's failure to advise counsel



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                about the existence of a jury note. 1 Numerous federal courts have
                pondered this question. While these decisions do not bind us, they are
                illuminating. Blanton v. N. Las Vegas Man. Court, 103 Nev. 623, 633, 748
                P.2d 494, 500 (1987).
                            The Ninth Circuit has determined that a district court's
                failure to notify defense counsel about a jury's inquiry during deliberations
                violates the defendant's constitutional right to counsel during a critical
                stage of trial. See Musladin v. Lamar que, 555 F.3d 830, 840-43 (9th Cir.
                2009) (finding defendant had a constitutional right to participate in
                district court's communication with the jury during deliberation); United
                States v. Barragan-Devis, 133 F.3d 1287, 1289 (9th Cir. 1998) (finding a
                constitutional right to participate in court's decision of whether to respond
                to jury question during deliberation and the response itself); United States
                v. Frazin, 780 F.2d 1461, 1468-69 (9th Cir. 1986) (finding a due process
                violation where the district court (1) instructed the jury to continue
                deliberating despite deadlock vote and (2) the court failed to advise
                defendants or counsel).
                            In Frazin, the jury sent a note to the judge indicating that it
                was hopelessly deadlocked. 780 F.2d at 1464. The district court, without
                consulting counsel, ordered the marshal to instruct the jury that it was to
                continue deliberations. Id. The Ninth Circuit explained that "Mlle failure
                of the court to notify appellants or their counsel of the jury's deadlock vote,
                and the court's ex parte message to the jury to continue its deliberations,




                      'We discussed the issue in Grimes v. State, Docket No. 62835 (Order
                of Affirmance, Feb. 27, 2014), an unpublished disposition. See SCR 123
                (unpublished dispositions shall not be cited as legal authority).
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                violated appellants' [due process] constitutional rights" to be present at
                every stage of trial. Id. at 1468-69.
                            The Ninth Circuit again explained the significance of
                communications with a deliberating jury in Musladin: "[t]he delicate
                nature of communication with a deliberating jury means that defense
                counsel has an important role to play in helping to shape that
                communication." 555 F.3d at 840. Accordingly, the presence of both the
                defendant and his or her counsel is required when discussing questions
                from the jury "because counsel might object to the instruction or may
                suggest an alternative manner of stating the message—a critical
                opportunity given the great weight that jurors give a judge's words. The
                defendant's or attorney's presence may also be an important opportunity
                to try and persuade the judge to respond." Id. at 841. The importance of
                this opportunity is heightened when a court responds to a jury's note
                indicating a deadlock:
                                   A defendant's participation in formulating a
                            response to a deadlocked jury, whether through
                            his counsel or by his personal presence as well,
                            may be important to ensuring the fairness of the
                            verdict.... [Mlinority members of a deadlocked
                            jury are especially susceptible to pressure from the
                            majority to change their views. A defendant
                            should be afforded the opportunity to request that
                            the jury be reinstructed on the burden of proof or
                            on its members' duty to decide according to their
                            own consciences.
                Id. (quoting Frazin, 780 F.2d at 1469). The Third Circuit agrees that this
                is a constitutional violation.   See United States v. Toliver, 330 F.3d 607,
                616-17 (3d Cir. 2003) (holding that a criminal defendant's Fifth
                Amendment right to be present at every critical stage of trial and Sixth
                Amendment right to counsel are violated when a judge fails to inform
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                counsel of a note from the jury and fails to allow counsel to argue prior to
                responding to the jury). The Musladin court further explained that
                             Whe "stage" at which the deprivation of counsel
                            may be critical should be understood as the
                            formulation of the response to a jury's request for
                            additional instructions, rather than its delivery.
                            Counsel is most acutely needed before a decision
                            about how to respond to the jury is made, because
                            it is the substance of the response—or the decision
                            whether to respond substantively or not—that is
                            crucial.
                555 F.3d at 842.
                            Like the Ninth Circuit and the Third Circuit, we believe that
                due process gives a defendant the right to be present when a judge
                communicates to the jury (whether directly or via his or her marshal or
                other staff). A defendant also has the right to have his or her attorney
                present to provide input in crafting the court's response to a jury's inquiry.
                Accordingly, we hold that the court violates a defendant's due process
                rights when it fails to notify and confer with the parties after receiving a
                note from the jury. Therefore, we conclude that the district court erred in
                this regard in Manning's case.
                            Manning argues that in such a case, the Ninth Circuit
                requires automatic reversal; he is incorrect. The proposed rule of
                automatic reversal that a panel of the Ninth Circuit put forth in Musladin
                is dicta. Musladin, 555 F.3d at 842-43. Further, the Ninth Circuit has
                since departed from this notion.    See United States v. Mohsen, 587 F.3d
                1028, 1032 (9th Cir. 2009) (stating, in reference to Musladin, that "[wile
                never suggested that all errors regarding jury communications during
                deliberations were subject to automatic reversal," and holding that a
                court's error in responding to a jury's note without consulting the parties
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                 or counsel constitutes error that is reviewed for harmlessness beyond a
                 reasonable doubt). Accordingly, we hold that when a district court
                 responds to a note from the jury without notifying the parties or counsel or
                 seeking input on the response, the error will be reviewed to determine if it
                 was harmless beyond a reasonable doubt. 2
                             The Ninth Circuit provides three factors to determine the
                 harmlessness of the error in this context: (1) "the probable effect of the
                 message actually sent"; (2) "the likelihood that the court would have sent a
                 different message had it consulted with appellants beforehand"; and (3)
                 "whether any changes in the message that appellants might have obtained
                 would have affected the verdict in any way." United States v. Barragan-
                 Deuis, 133 F.3d 1287, 1289 (9th Cir. 1998); United States v. Frazin, 780
                 F.2d 1461, 1470 (9th Cir. 1986).
                             We conclude that the district court's error was harmless
                 beyond a reasonable doubt. In this case, at the end of the day, after only a
                 little more than an hour of deliberations, the jury's note informed the
                 district court that it was deadlocked 10-2. In response, the court told the


                       2 Manning    further argues that we cannot determine whether the
                 district court's error was harmless because the district court failed to
                 make a record of the ex parte communication. However, we have
                 previously held that "[t]he burden to make a proper appellate record rests
                 on [the] appellant." Greene v. State, 96 Nev. 555, 558, 612 P.3d 686, 688
                 (1980). Under these circumstances, an adequate record will contain (1)
                 the contents of the note from the jury, (2) any argument from counsel
                 pertaining to the jury's note and the court's response, (3) the court's
                 instructions to its marshal regarding the response, and (4) the marshal's
                 actual response to the jury. In the event that the court fails to sua sponte
                 make a record or if the court fails to inform the parties of the note and its
                 response until after the jury returns its verdict, a party should make as
                 complete a record as possible once it learns of the ex parte
                 communications.
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                    marshal to excuse the jury for the day and instruct them to return the
                    next day to continue deliberations. The message that the court instructed
                    the marshal to give to the jury was simple and did not contain any legal
                    instructions. Although the court should have reconvened the proceedings
                    and, on the record, discussed the jury's note and conferred with counsel in
                    developing a response, we do not believe that the result here would have
                    been substantively different had it done so. It is unlikely that after only
                    an hour of deliberations the court would have proffered additional
                    instructions to the jury or required the jurors to continue deliberating past
                    5 p.m. Moreover, the court correctly directed its marshal to excuse the
                    jury and tell them to return the next day to continue deliberating. It is
                    unlikely that the marshal would have altered this simple instruction in
                    any meaningful or prejudicial manner.
                                Some courts have also assessed whether the statement to the
                    jury was inherently coercive. Frazin, 780 F.2d at 1470-71. The statement
                    to the jury in this case was not inherently coercive because it did not
                    inform the jury in any way that the court would not accept a deadlocked
                    jury. The Court simply informed the jury that it would need to continue
                    deliberations, which the jury did the next morning Accordingly, this error
                    does not warrant reversal.
                                We have reviewed Manning's remaining claims and conclude
                    that they lack merit.
                                First, Manning contends that the State violated his right to
                    equal protection when it used four out of its five peremptory challenges to
                    exclude females from the jury. We conclude that the trial court did not err
                    when it found that the State used its peremptory challenges as permitted
                    by the Constitution, and we decline to address Manning's additional

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                 arguments expanding this issue. See J.E.B. v. Alabama ex rel. T.B., 511
                 U.S. 127 (1994); Batson v. Kentucky, 476 U.S. 79 (1986).
                              Second, Manning argues that the district court violated his
                 rights under the Confrontation Clause when the court admitted evidence
                 of the State's efforts to locate Schafer, a nontestifying witness who made
                 out-of-court testimonial statements about Manning. We conclude that the
                 testimony from the district attorney's investigator concerning his attempt
                 to locate Schafer did not violate Manning's Confrontation Clause rights
                 because the investigator did not refer to any testimonial statement.       See
                 Vega v. State, 126 Nev. 332, 339, 236 P.3d 632, 637 (2010) (holding that
                 "Mlle threshold question in evaluating a confrontation right .. . is whether
                 the statement was testimonial in nature").
                              Third, Manning also argues that his Confrontation Clause
                 rights to have Schafer testify were violated because the district court
                 admitted hearsay statements from prison phone calls indicating that
                 Manning did something wrong. He also argues that the calls were not
                 relevant and contained evidence of his prior bad acts and the prior bad
                 acts of others. We conclude that Manning waived his Confrontation Clause
                 argument and prior bad acts evidence arguments when he waived
                 redaction of the calls. Cf. United States v. Peeper, 685 F.2d 328, 329 (9th
                 Cir. 1982) (finding no confrontation clause violation when defense
                 counsel's failure to object resulted from a tactical decision).
                             Fourth, Manning argues that the district court erred in
                 admitting three phone calls he made from jail because the calls included
                 evidence of possible plea negotiations and were irrelevant and unfairly
                 prejudicial. We conclude that the district court properly admitted the
                 phone calls because they evidenced consciousness of guilt.        See Abram v.
                 State, 95 Nev. 352, 356, 594 P.2d 1143, 1145 (1979) ("Declarations made
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                after the commission of the crime which indicate consciousness of guilt, or
                are inconsistent with innocence, or tend to establish intent may be
                admissible.").
                              Fifth, Manning argues that prosecutors committed misconduct
                by reminding the jury in closing arguments that officers arrested Manning
                after speaking with Schafer and that the district attorney's investigator
                searched for Schafer to have him testify. We conclude that the
                prosecution's statements about Schafer during closing arguments did not
                constitute plain error because the prosecution is entitled to make
                inferences from the admitted testimony and evidence.           See Jain v.
                McFarland, 109 Nev. 465, 476, 851 P.2d 450, 457 (1993).
                              Sixth, Manning argues that the district court's error of
                admitting the phone calls that referenced his desire to obtain his discovery
                was compounded by the district court's refusal to proffer a curative
                instruction when the prosecution repeatedly insinuated that Manning's
                assertion of a legal right was evidence of guilt. Because we conclude that
                the district court did not err in admitting the calls, we need not address
                this issue.
                              Seventh, Manning contends that the victim's in-court
                identification was unreliable because she only briefly viewed the suspect,
                she was making a cross-racial identification, her anxiety decreased her
                degree of attention, her prior description was vague, her prior
                identification was unsure, and her in-court identification occurred several
                months after the crime. The victim recognized Manning because he had
                previously been in the store, she saw him during the robbery for
                approximately one minute at very close range, and she also immediately
                picked him out of a photo lineup. We conclude that the admission of the

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                 in-court identification was not erroneous.    See Dieudonne v. State, 127
                 Nev., Adv, Op. 1, 245 P.3d 1202, 1205 (2011) (holding that "It] o amount to
                 plain error, an error must be so unmistakable that it is apparent from a
                 casual inspection of the record").
                             Eighth, Manning argues that the district court violated his
                 Confrontation Clause rights in allowing unnoticed expert testimony from
                 Eric Sahota, the forensic scientist who reviewed the fingerprints that
                 police took from the crime scene. He also argues that the district court
                 violated his rights to due process and a fundamentally fair trial when
                 Sahota was allowed to testify to matters outside his expertise. We
                 conclude that the district court did not abuse its discretion in allowing
                 Sahota to testify at trial because the defense acknowledged at calendar
                 call that it was on notice that the State might call a fingerprint expert to
                 testify. We also conclude that the district court did not abuse its
                 discretion in allowing Sahota to apply this testimony to the surveillance
                 video from the store. See NRS 50.275.
                             Ninth, Manning contends that because an officer testified that
                 police were "informed" that he was a possible suspect instead of stating
                 that police "developed" him as a possible suspect, the jury was improperly
                 left with unchallenged statements that individuals provided inculpatory
                 information about him. We conclude that because the officer could have
                 been informed in various ways that Manning was a possible suspect, this
                 testimony does not fall within the purview of the Confrontation Clause's
                 protections. See Vega, 126 Nev. at 339, 236 P.3d at 637.
                                                CONCLUSION
                             We conclude that the district court's error in responding to the
                 note from the jury without notifying the parties or counsel was harmless

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                  beyond a reasonable doubt. Accordingly, we affirm the judgment of
                  conviction as to all counts.




                                                                           J.




                  We concur:




                                                 ,   C.J.
                  Hardesty




                  Douglas




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