                                                   132 Nev., Advance Opinion    2.7
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DONALD TAYLOR,                                        No. 65388
                Appellant,
                vs.                                                          FILED
                THE STATE OF NEVADA,
                Respondent.                                                   APR 2 1 2016
                                                                           173AsstE K. LINDEMAN
                                                                          HL Ft=
                                                                            CHIEF DEPUTY CLERK
                            Appeal from a judgment of conviction, pursuant              a jury
                verdict, of burglary while in possession of a firearm, conspiracy to commit
                robbery, robbery with the use of a deadly weapon, and murder with the
                use of a deadly weapon. Eighth Judicial District Court, Clark County;
                David B. Barker, Judge.
                            Affirmed.

                Drummond Law Firm and Craig W. Drummond, Las Vegas,
                for Appellant.

                Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                Nell E. Christensen, Deputy District Attorney, Clark County,
                for Respondent.




                BEFORE HARDEST'?, SAITTA and PICKERING, JJ."



                      'Subsequent to the oral arguments held in this matter, The
                Honorable James W. Hardesty, Justice, was administratively assigned to
                participate in the disposition of this matter in the place and stead of The
                Honorable Mark Gibbons, Justice. The Honorable James W. Hardesty,
                Justice, has considered all arguments and briefs in this matter.

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                                                 OPINION

                 By the Court, SAITTA, J.:
                             This opinion addresses whether the State's warrantless access
                 of historical cell site location data obtained from a cell phone service
                 provider pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d),
                 violates the Fourth Amendment. We hold that it does not because a
                 defendant does not have a reasonable expectation of privacy in this data,
                 as it is a part of business records made, kept, and owned by cell phone
                 providers. Thus, the "specific and articulable facts" standard set forth at
                 18 U.S.C. § 2703(d) is sufficient to permit the access of historical cell
                 phone information, and probable cause is not required.
                             This opinion also addresses the alleged violations of appellant
                 Donald Taylor's right to due process of law and his right against self-
                 incrimination, as well as alleged insufficiency of the evidence and
                 cumulative error.
                                     FACTUAL AND PROCEDURAL HISTORY
                 The robbery-murder
                             On November 18, 2010, at approximately 2 p.m., Michael
                 Pearson and his girlfriend's three-year-old son arrived at Angela
                 Chenault's apartment. Chenault is the mother of Pearson's girlfriend,
                 Tyniah Haddon. After taking her grandson to the bedroom, Chenault
                 went to the kitchen, where she cooked while she talked with Pearson.
                 Pearson told Chenault that he was meeting his friends at her apartment.
                 Pearson brought a black bag containing marijuana with him into the
                 apartment and placed it on top of the refrigerator. Chenault saw Pearson
                 sit on the couch and talk to someone on his phone.



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                            At some point, Pearson left the apartment and returned with
                two men. Chenault never met either of these men before and neither
                introduced themselves to her. One of the men walked around the
                apartment and went toward the bedroom. To prevent the man from going
                inside the bedroom where her grandson was watching television, Chenault
                stood in front of the bedroom door. She momentarily stood face-to-face
                with the man. He asked who was in the bedroom, and Chenault replied
                that her grandson was in there. Chenault noticed that the man was
                holding a gun During the trial, Chenault identified that man as Taylor.
                            Chenault returned to the kitchen stove and resumed cooking.
                Pearson removed the black bag from the top of the refrigerator and placed
                it on the kitchen table. He asked for money from the two men in exchange
                for the black bag, but the men responded, "No, we taking this." Pearson
                then said, "Take it." Chenault saw the men begin going through Pearson's
                pockets and saw Pearson attempt to grab a gun on his waistband. During
                this time, Chenault turned back to the stove. Shots were fired, and when
                Chenault turned around, she found Pearson lying in a pool of blood and
                saw that the men had fled with the black bag. Chenault did not observe
                the actual shooting.
                Incidents leading to Taylor's arrest
                            Las Vegas Metropolitan Police Detectives Christopher Bunn
                and Marty Wildemann responded to the scene of the shooting. After
                interviewing Chenault, Detective Wildemann interviewed Haddon.
                Haddon told Detective Wildemann that Pearson was going to sell
                marijuana to someone that she knew as "D." She also informed Detective
                Wildemann that she had met "D" at one of Pearson's coworker's houses.
                Detective Wildemann gave Pearson's cell phone number to the FBI and

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                asked for their assistance regarding possible contacts that Pearson made
                just before the murder occurred.
                            The FBI provided Detective Wildemann with a phone number
                to which Pearson placed a call shortly before the murder. Homicide
                detectives then processed the phone number through government records
                and were able to link it to an individual named Jennifer Archer.
                            While conducting surveillance on Archer, Detective
                Wildemann observed Archer exit her vehicle and enter a bar. When
                Archer returned to her vehicle, she was accompanied by an unknown
                male. After initiating a traffic stop of Archer's vehicle, Detective
                Wildemann arrested the male passenger, who identified himself as Taylor.
                Taylor gave Detective Wildemann his cell phone and cell phone number.
                Detective Wildemann dialed the phone number given to him by the FBI.
                Taylor's cell phone rang. Detective Wildemann then contacted Chenault
                to come and identify Taylor.
                The out-of-court identification procedure
                            Detective Wildemann arranged to meet with Chenault and
                bring her to the parking lot where Taylor was being held to "conduct a
                one-on-one." 2 The time was 11:45 p.m., and it was "[plitch black." The
                lighting conditions were such that Detective Wildemann had to
                "superimpose a bunch of lighting on [Taylor]" by pulling vehicles around
                Taylor and lighting up the spot where Taylor was standing with a patrol
                car spotlight. After explaining the process to Chenault, Detective


                      2A one-on-one, or show-up, is a procedure where the police officer
                brings the witness to the location where the suspect is being held in order
                to determine whether the witness can make a positive identification of the
                suspect.


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                   Wildemann drove her about 15 to 20 yards from where Taylor was
                   standing. Detective Wildemann then drove closer so Chenault could see
                   Taylor more clearly.
                               Chenault told Detective Wildemann that "she [did not] think
                   that that's him; she just [did not] recognize that to be him." Detective
                   Wildemann pulled the vehicle around and asked Chenault again for her
                   thoughts. Chenault told Detective Wildemann that Taylor looked like the
                   man from the apartment, but believed that Taylor was thicker than the
                   man who was at the apartment. Chenault said that Taylor was "just a
                   bigger guy." Detective Wildemann asked Chenault to focus on Taylor's
                   face, and at that point Chenault said, "[lit looks like him"
                               After driving Chenault home, Detective Wildemann texted a
                   photograph of Taylor to Haddon. He asked Haddon to tell him if it was a
                   photograph of "D." Haddon immediately responded, "That's D, that's
                   him" Haddon then showed the photograph to Chenault, who told Haddon
                   that the man in the picture was the person who shot Pearson.
                   Taylor's indictment and conviction
                               On January 14, 2011, a Clark County grand jury indicted
                   Taylor on the following charges: burglary while in possession of a firearm,
                   conspiracy to commit robbery, robbery with the use of a deadly weapon,
                   and murder with the use of a deadly weapon. After a six-day jury trial,
                   the jury returned a verdict of guilty on all four counts. Taylor filed a
                   motion for a new trial, which was denied by the district court. The
                   judgment of conviction was filed on March 7, 2014 This appeal followed.




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                                                 DISCUSSION
                 The warrantless access and use of Taylor's historical cell phone location
                 data did not violate Taylor's Fourth Amendment rights
                                Taylor contends that a person has an objectively reasonable
                 expectation of privacy in the access to and the use of his or her historical
                 cell phone location data. He further contends that his Fourth Amendment
                 rights were violated because the State did not have a warrant for his
                 historical cell phone location data.
                       A search warrant is not required to obtain historical cell site location
                       information
                                Pursuant to a subpoena under the Stored Communications
                 Act, Sprint-Nextel provided the State with a call-detail record with cell
                 site information for Taylor's phone. 3 The records covered November 11,
                 2010, through November 18, 2010. Although they do not provide the
                 content of calls or text messages, the records do provide certain
                 information about those communications. For example, the records show
                 various incoming and outgoing calls. They also demonstrate the time and
                 dates of the calls or text messages, along with the duration for each, as
                 well as the location of the cell towers routing the calls.

                       3 "The [Stored Communications Act] was passed in 1986 as part of
                 the Electronic Communications Privacy Act of 1986" and is contained in 18
                 U.S.C. §§ 2701-2710. Kyle Malone, The Fourth Amendment and the
                 Stored Communications Act: Why the Warrantless Gathering of Historical
                 Cell Site Location Information Poses No Threat to Privacy, 39 Pepp. L.
                 Rev. 701, 716 & n.103 (2013). Section 2703(d) of the Stored
                 Communications Act allows for disclosure of private communications data
                 via court order "if the governmental entity offers specific and articulable
                 facts showing that there are reasonable grounds to believe that the
                 contents of a wire or electronic communication, or the records or other
                 information sought, are relevant and material to an ongoing criminal
                 investigation." 18 U.S.C. § 2703(d) (2012).

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                            Generally, the phone seeks the cell tower emitting the
                strongest signal, not necessarily the closest tower. This was relevant at
                trial because the cell phone tower records indicated that a phone call was
                made using Taylor's phone close to the time of the murder and the Sprint-
                Nextel cell tower closest to the location of the murder routed the call.
                            There are two types of cell site location information (CSLI)
                that law enforcement can acquire from cell phone companies. Kyle
                Malone, The Fourth Amendment and the Stored Communications Act: Why
                the Warrantless Gathering of Historical Cell Site Location Information
                Poses No Threat to Privacy, 39 Pepp. L. Rev. 701, 710 (2013). Law
                enforcement can either obtain records that a company has kept containing
                CSLI, known as "historical CSLI," or it "can request to view incoming
                CSLI as it is received from a user's cell phone in 'real time,' known as
                "prospective CSLI." Id. Generally, courts have held that prospective CSLI
                requires a warrant before disclosure may be granted. Id. However, only a
                few courts have addressed the issue of whether historical CSLI requires a
                warrant. Id.
                            A warrant is not required under the Fourth Amendment to
                            obtain historical CSLI
                            The phone records received by the State were obtained based
                on the "specific and articulable facts" standard set forth in 18 U.S.C.
                § 2703(d).4 Federal appellate courts that have reached this issue appear
                to agree that this "specific and articulable facts" standard is sufficient for


                      4 Taylor  does not dispute whether the State had "specific and
                articulable facts" to obtain a subpoena under the Stored Communications
                Act but, rather, argues that the standard for obtaining historical CSLI
                should be probable cause.

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                 obtaining phone records.       See In re Application of U.S. for an Order
                 Directing Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620
                 F.3d 304, 313 (3d Cir. 2010) (holding that "CSLI from cell phone calls is
                 obtainable under a § 2703(d) order and that such an order does not require
                 the traditional probable cause determination"); see also United States v.
                 Davis, 785 F.3d 498, 511 (11th Cir. 2015) (holding that CSLI data may be
                 constitutionally obtained without a warrant); In re Application of the U.S.
                 for Historical Cell Site Data, 724 F.3d 600, 612-13 (5th Cir. 2013) (holding
                 the same). However, the circuit courts are not consistent when defining
                 the types of phone records that are obtainable under the "specific and
                 articulable facts" standard.
                             For example, the United States Court of Appeals for the Third
                 Circuit in In re Application of United States for an Order Directing
                 Provider of Electronic Communication Service to Disclose Records to
                 Government held that magistrate judges have discretion to require a
                 warrant for historical CSLI if they determine that the location information
                 sought will implicate the suspect's Fourth Amendment privacy rights. 620
                 F.3d at 319. In reaching this conclusion, the court rejected the argument
                 that a cell phone user's expectation of privacy is eliminated by the service
                 provider's ability to access that information:
                                    A cell phone customer has not "voluntarily"
                             shared his location information with a cellular
                             provider in any meaningful way. . . . [I]t is
                             unlikely that cell phone customers are aware that
                             their cell phone providers collect and store
                             historical location information. Therefore, [wthen
                             a cell phone user makes a call, the only
                             information that is voluntarily and knowingly
                             conveyed to the phone company is the number
                             that is dialed and there is no indication to the user
                             that making that call will also locate the caller;
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                            when a cell phone user receives a call, he hasn't
                            voluntarily exposed anything at all.
                Id. at 317-18 (alteration in original) (internal quotations omitted).
                However, the court also held that "CSLI from cell phone calls is obtainable
                under a § 2703(d) order and that such an order does not require the
                traditional probable cause determination." Id. at 313. Judge Tashima's
                concurrence notes that "the majority . . . appears to contradict its own
                holding." Id. at 320 (Tashima, J., concurring). Therefore, while the court
                held that a cell phone user does not lose their expectation of privacy
                simply by making or receiving a call, it is unclear whether the Third
                Circuit's decision requires the specific-and-articulable-facts standard or
                the more stringent probable cause standard, which would require a
                warrant, before historical CSLI can be obtained.
                            In In re Application of United States for Historical Cell Site
                Data, the United States Court of Appeals for the Fifth Circuit determined
                that cell phone users, by and large, do not have an expectation of privacy
                with regard to CSLI, as they are aware that their phones must emit CSLI
                to cell phone providers in order to receive cell phone service but continue
                to use their cell phones to place calls and, thus, voluntarily convey CSLI to
                cell phone providers. 724 F.3d at 612-13. The Fifth Circuit stressed that
                the telephone company, not the government, collects the cell tower
                information for a variety of legitimate business purposes.     Id. at 611-14.
                The court explained that a cell phone user has no subjective expectation of
                privacy because: (1) the cell phone user has knowledge that his or her cell
                phone must send a signal to a nearby cell tower in order to wirelessly
                connect the call; (2) the signal only happens when a user makes or receives
                a call; (3) the cell phone user has knowledge that when he or she places or
                receives a call, there are signals transmitted through the cell phone to the
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                   nearest cell tower and thus to the service provider; and (4) as such, the cell
                   phone user is aware that he or she is conveying cell tower location
                   information to the service provider and voluntarily does so when using a
                   cell phone for calls. Id. at 613-14.
                               In spite of this, the court's holding is limited. Id. at 615. The
                   court only decided the narrow issue of whether § 2703(d) "orders to obtain
                   historical cell site information for specified cell phones at the points at
                   which the user places and terminates a call [were] . . . unconstitutional."
                   Id. (emphasis omitted). The court held that § 2703(d) orders are not
                   unconstitutional, thereby allowing for the lesser standard of "specific and
                   articulable facts" in such cases. Id. The court did not address
                               orders requesting data from all phones that use a
                               tower during a particular interval, orders
                               requesting cell site information for the recipient of
                               a call from the cell phone specified in the order, or
                               orders requesting location information for the
                               duration of the calls or when the phone is idle
                               (assuming the data are available for these
                               periods). Nor do we address situations where the
                               Government surreptitiously installs spyware on a
                               target's phone or otherwise hijacks the phone's
                               GPS, with or without the service provider's help.
                   Id.   Therefore, the court's decision implies that the specific-and-
                   articulable-facts standard is sufficient for historical CSLI, to the extent
                   that the information obtained relates to phone calls that were made and/or
                   terminated by the cell phone user specified in the order. 5


                         5The United States Court of Appeals for the Sixth Circuit has also
                   ruled on whether a person has a reasonable expectation of privacy in the
                   data transmitted from a cell phone, thereby requiring a probable cause
                   standard. United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012).
                   The court's holding implies that the probable cause standard is not
                                                                   continued on next page...
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                            In United States v. Davis, the Eleventh Circuit Court of
                Appeals held that a defendant "ha[s] no reasonable expectation of privacy
                in business records made, kept, and owned by [his or her cell phone
                provider]." 785 F.3d 498, 517 (11th Cir. 2015). These records included
                telephone numbers of calls made by and to the defendant's phone; whether
                the calls were incoming or outgoing; the date, time, and duration of the
                calls; as well as historical cell site location information. Id. at 503. The
                court noted that historical cell site location information reveals the precise
                location of the cell phone towers that route the calls made by a person but
                do not reveal the precise location of the cell phone or the cell phone user.
                Id. at 504. The court rejected the argument that cell phone users retain
                an expectation of privacy in the data because they do not voluntarily
                convey their location information to the service provider. Id. at 517. The
                court also held that "[t]he stored telephone records produced in this case,
                and in many other criminal cases, serve compelling governmental
                interests." Id. at 518.
                            Thus, while federal courts generally agree that probable cause
                is not necessary for obtaining a cell phone user's historical CSLI, the
                information that can be obtained without probable cause does vary from
                circuit to circuit. The position taken by the Eleventh Circuit Court of
                Appeals is persuasive, and we hold that the "specific and articulable facts"
                standard under § 2703(d) is sufficient to obtain historical cell phone
                information because a defendant has no reasonable expectation of privacy



                ...continued
                required for a cell phone user's CSLI, at least where the cell phone user is
                on a public thoroughfare. Id. at 781.

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                 in business records made, kept, and owned by his or her cell phone
                 provider.
                              Taylor's Fourth Amendment rights were not violated
                              Here, the police obtained a § 2703(d) order by meeting the
                 "specific and articulable facts" standard. The order allowed them to obtain
                 Taylor's historical CSLI, including his location—within 2 5 miles of the
                 murder scene—at the time he placed a call, shortly before the murder
                 occurred, and the call and text message records between his and Pearson's
                 cell phones leading up to the robbery-murder. Because Taylor does not
                 have a reasonable expectation of privacy in business records made, kept,
                 and owned by his provider, Sprint-Nextel, a warrant requiring probable
                 cause was not required before obtaining that information. Thus, we hold
                 that Taylor's Fourth Amendment rights were not violated.
                 The out-of-court and in-court identifications did not violate Taylor's
                 constitutional right to due process of law
                              Taylor challenges Chenault's identification of him during the
                 show-up as the person in her apartment during the crime, as well as her
                 positive identification of Taylor during trial."


                        "Although Taylor alludes to the impropriety of the photograph that
                 was sent to Haddon, he fails to argue in his appellate briefing that the
                 single photograph was unnecessarily suggestive and unreliable. Although
                 an argument can be made that the photograph was unnecessarily
                 suggestive and unreliable because Chenault was shown a single
                 photograph by her daughter that had been sent via text by Detective
                 Wildemann, see In re Anthony T., 169 Cal. Rptr. 120, 123 (Ct. App. 1980)
                 ("[I]f appellant was wrongfully identified and convicted it matters not to
                 him whether the injustice was due to the actions of the private citizens or
                 the police."), Taylor does not cogently argue this claim or provide relevant
                 authority in support of it. Therefore, we need not reach the merits of this
                 issue. Browning v. State, 120 Nev. 347, 354, 91 P.3d 39, 45 (2004) (stating
                 that "an appellant must present relevant authority and cogent argument;
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                               In deciding whether a pretrial identification is constitutionally
                   sound, the test is whether, considering the totality of the circumstances,
                   the identification procedure "was so unnecessarily suggestive and
                   conducive to irreparable mistaken identification that [appellant] was
                   denied due process of law." Banks v. State, 94 Nev. 90, 94, 575 P.2d 592,
                   595 (1978) (alteration in original) (quoting Stovall v. Denno, 388 U.S. 293,
                   302 (1967)). "First, the procedure must be shown to be suggestive[ I and
                   unnecessary [due to] lack of emergency or exigent circumstances."       Id. If
                   the procedure is suggestive and unnecessary, "the second inquiry is
                   whether, under all the circumstances, the identification is reliable despite
                   an unnecessarily suggestive identification procedure." Id. "Reliability is
                   the paramount concern." Jones v. State, 95 Nev. 613, 617, 600 P.2d 247,
                   250 (1979). As long as the identification is sufficiently reliable, "it is for
                   the jury to weigh the evidence and assess the credibility of the
                   eyewitnesses."   Gehrke v. State, 96 Nev. 581, 584, 613 P.2d 1028, 1029
                   (1980).
                         Exigent circumstances justified the show-up identification procedure
                               A show-up "is inherently suggestive because it is apparent
                   that law enforcement officials believe they have caught the offender."
                   Jones, 95 Nev. at 617, 600 P.2d at 250. However, countervailing policy
                   considerations may justify the use of a show-up. Id. Countervailing policy
                   considerations are related to the presence of exigent circumstances that
                   necessitate prompt identification.    See Gehrke, 96 Nev. at 584 n.2, 613
                   P.2d at 1030 n.2. Examples of exigencies sufficient to justify a show-up

                   ...continued
                   issues not so presented need not be addressed by this court" (internal
                   quotations omitted)).


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                  include: (1) ensuring fresher memory, Jones, 95 Nev. at 617, 600 P.2d at
                  250; (2) exonerating innocent people by making prompt identifications, id.;
                  and (3) ensuring that those committing serious or dangerous felonies are
                  swiftly apprehended, Banks, 94 Nev. at 95, 575 P.2d at 595. Where
                  exigencies such as these are absent, however, show-ups are not justified.
                  See Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
                              In this case, exigent circumstances justified the show-up
                  identification procedure. Specifically, the show-up was necessary to
                  quickly apprehend a dangerous felon. See Banks, 94 Nev. at 95, 575 P.2d
                  at 595-96. In Banks, the victim picked up hitchhikers who proceeded to
                  rob him at gunpoint. Id. at 92, 575 P.2d at 594. The court stated that lilt
                  was imperative for the police to have a prompt determination of whether
                  the robbery suspects had been apprehended or were still at large." Id. at
                  95, 575 P.2d at 596.
                              This case is similar to Banks. Here, two suspects who had just
                  committed a murder during the course of an armed robbery were at large
                  after fleeing Chenault's apartment. Like Banks, anyone near the suspects
                  was a potential victim. See id. at 95, 575 P.2d at 595-96. Furthermore,
                  the suspects took the marijuana from Chenault's apartment and thus
                  could have likely committed further illegal acts by either selling the
                  marijuana in their possession or committing additional robberies.
                  Therefore, it was essential for the suspects to be swiftly apprehended.
                  Since exigent circumstances existed in the present case, we hold that the
                  show-up identification procedure was justified.




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                      The show-up identification was unreliable
                            Nevertheless, when dealing with pretrial identification
                procedures, "Meliability is the paramount concern."        Jones, 95 Nev. at
                617, 600 P.2d at 250. In deciding whether a show-up identification
                procedure is reliable, we consider factors including: (1) the opportunity of
                the witness "to view the [suspect] at the time of the crime," (2) the degree
                of attention paid by the witness, (3) "the accuracy of [the witness's] prior
                description of the [suspect]," (4) "the level of certainty demonstrated at the
                [show-up]" by the witness, and (5) the length of time between the crime
                and the show-up. Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
                            Here, although the record suggests that Chenault may have
                had ample opportunity to view the suspects while they looked around her
                apartment and conducted the drug deal, the record also suggests that she
                may not have been paying sufficient attention to them. The record
                suggests that Chenault appeared uncertain during the show-up, as her
                description of the suspect was inaccurate with regard to Taylor.
                Furthermore, the circumstances of the show-up—which occurred nearly
                eight hours after the crime occurred—were highly suspect. Therefore, we
                hold that the identification of Taylor was unreliable for purposes of a
                show-up.
                            The in-court identification by Chenault was independently
                            reliable
                            The United States Supreme Court has held that even where
                an unnecessarily suggestive pretrial procedure occurs that produces an
                unreliable identification, subsequent in-court identification by the same
                witness is not necessarily excluded where the in-court identification itself
                is found to be independently reliable. Manson v. Brat hwaite, 432 U.S. 98,
                112-14 (1977). The factors to be considered are identical to those
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                 enunciated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Id. This court
                 has adopted the same standard. Browning v. State, 104 Nev. 269, 273-74,
                 757 P.2d 351, 353-54 (1988).
                              Here, Chenault's observation of the suspects in her apartment
                 likely constituted a sufficient independent basis for her in-court
                 identification of Taylor. The suspects were in her apartment for some
                 time, and she got at least one good look at the suspect she identified as
                 being Taylor when they stood face-to-face. Indeed, we have held that
                 similar opportunities for observations constitute a sufficient independent
                 basis for an in-court identification. Banks, 94 Nev. at 96, 575 P.2d at 596.
                 In Banks, "a good look" at the suspects was enough to allow the in-court
                 identification.   Id.; Boone v. State, 85 Nev. 450, 453, 456 P.2d 418, 420
                 (1969) (holding that "one good look" during a car chase was sufficiently
                 reliable). Similarly, in Riley v. State, 86 Nev. 244, 468 P.2d 11 (1970), an
                 observation of seven seconds or less of the suspects was sufficiently
                 reliable for the in-court identification.
                       The error was harmless
                              Where an error is preserved and is of a constitutional nature,
                 the prosecution must show, "beyond a reasonable doubt, that the error did
                 not contribute to the verdict." Valdez v. State, 124 Nev. 1172, 1189, 196
                 P.3d 465, 476 (2008).
                              Here, although the district court erred by allowing the out-of-
                 court identification into evidence, the error was cured by the later in-court
                 identification because it had a sufficient independent basis. Thus, it is
                 clear beyond a reasonable doubt that the error did not contribute to the
                 verdict.



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                  The prosecutorial conduct during closing arguments did not violate
                  Taylor's Sixth Amendment right to a fair trial or Fifth Amendment right
                  against self-incrimination
                        The PowerPoint slide with "GUILTY" superimposed on it did not
                        violate Taylor's right to a fair trial
                               The purpose of closing arguments is to "enlighten the jury,
                  and to assist. . . in analyzing, evaluating, and applying the evidence, so
                  that the jury may reach a just and reasonable conclusion." 23A C.J.S.
                  Criminal Law § 1708 (2006) (citations omitted). However, "counsel must
                  make it clear that the conclusions that he or she urges the jury to reach
                  are to be drawn from the evidence." Id. Importantly, a prosecutor may
                  not declare to a jury that a defendant is guilty.   See Collier v. State, 101
                  Nev. 473, 480, 705 P.2d 1126, 1130 (1985). In the context of PowerPoints
                  used during trial, "a PowerPoint may not be used to make an argument
                  visually that would be improper if made orally."      Watters v. State, 129
                  Nev., Adv. Op. 94, 313 P.3d 243, 247 (2013) (reversing where PowerPoint
                  slide with "Guilty" superimposed over defendant's image was displayed
                  extensively during opening statement). However, this court has held that
                  a photograph with the word "guilty" across the front shown during closing
                  arguments is not, on its own, sufficient for a finding of error.     Artiga-
                  Morales v. State, 130 Nev., Adv. Op. 77, 335 P.3d 179, 182 (2014).
                               The State used the PowerPoint presentation to make an
                  improper oral argument visually—namely, to declare to the jury that
                  Taylor was guilty by superimposing "GUILTY" on a PowerPoint slide.
                  However, the slide was displayed briefly only at the very end of the
                  prosecutor's closing arguments, and the defense did not object to the slide.
                  Accordingly, the PowerPoint slide, on its own, was not sufficient for a
                  finding of error.

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                       The comments made during closing arguments did not violate
                       Taylor's Sixth Amendment right to a fair trial or Fifth Amendment
                       right against self-incrimination
                                 Taylor argues that the prosecutor made comments during
                 closing arguments that could only be construed as the prosecutor's
                 improper personal opinion that Taylor was guilty. Taylor also argues that
                 the prosecutor impermissibly commented on his decision not to testify
                 during trial.
                             The prosecutor's comments during closing arguments were
                             permissible
                                 The "injection of personal beliefs into the argument detracts
                 from the unprejudiced, impartial, and nonpartisan role that a prosecuting
                 attorney assumes in the courtroom." Collier, 101 Nev. at 480, 705 P.2d at
                 1130 (internal quotations omitted). Therefore, prosecutors are prohibited
                 from expressing their personal beliefs on the defendant's guilt.             Id.
                 However, Is] tatements by the prosecutor, in argument, indicative of his
                 opinion, belief, or knowledge as to the guilt of the accused, when made as a
                 deduction or conclusion from the evidence introduced in the trial, are
                 permissible and unobjectionable." Domingues v. State, 112 Nev. 683, 696,
                 917 P.2d 1364, 1373 (1996).
                                 Here, one of the prosecutors stated, "The defense suggests that
                 it's not [Taylor's] phone. . . , [and] I would submit to you [that the defense
                 suggests this] because the person using that phone is guilty of the crimes
                 charged in this case. So he's got to distance himself from that phone. But
                 the evidence is overwhelming. He can't."
                             This statement was preceded by a review of the text messages
                 between the cell phone recovered from Taylor and Pearson's cell phone.
                 This was after the evidence tied Taylor to the phone number used to text
                 Pearson. Therefore, in this instance, the prosecutor's comments were
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                reasonable conclusions based on the evidence presented and were not
                improper.     Id.   Furthermore, the record substantiates the prosecutor's
                statement that the phone was Taylor's and that Taylor texted Pearson
                prior to the robbery-murder.
                              On rebuttal, the prosecutor said, "I submit to you that there's
                at least one person in this room who knows beyond a shadow of a doubt
                who killed. Pearson."7 Like the statement addressed above, this
                statement followed a summation of evidence. The statement reflects the
                prosecutor's conclusions based on the evidence regarding the cell phone
                records and Archer's testimony regarding Taylor's behavior that day.
                Therefore, we hold that the prosecutor's statement was not improper. Id.
                      The prosecutor did not comment on Taylor's decision not to testify
                              The Fifth Amendment requires that the State refrain from
                directly commenting on the defendant's decision not to testify.       Griffin v.
                California, 380 U.S. 609, 615 (1965); Harkness v. State, 107 Nev. 800, 803,
                820 P.2d 759, 761 (1991). A direct comment on a defendant's failure to
                testify is a per se violation of the Fifth Amendment.     Harkness, 107 Nev.
                at 803, 820 P.2d at 761. However, an indirect comment violates the
                defendant's Fifth Amendment right against self-incrimination only if the
                comment "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." Id. (internal quotations omitted).
                              Taylor contends that the prosecutor's statements were similar
                to those made in Harkness and thus deprived him of his Fifth Amendment

                      7 The
                          first prosecutor handled the State's closing argument, and the
                second prosecutor handled the State's rebuttal to the defense's closing
                argument.


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                rights. In Harkness, the defendant chose not to testify in his defense, and
                the prosecution commented on gaps in the evidence, intimating that the
                defendant was the only one who could resolve those gaps: "If we have to
                speculate and guess about what really happened in this case, whose fault
                is it if we don't know the facts in this case?" Id. at 802, 820 P.2d at 760
                (internal quotations omitted). This court held those comments to be
                indirect references to the defendant's failure to testify.    Id. at 804, 820
                P.2d at 761. We also held that these comments violated the defendant's
                Fifth Amendment rights because, when taken in full context, there was a
                likelihood that the jury took those statements to be a comment on the
                defendant's failure to testify. Id.
                             In the present case, the prosecutor made the following
                comments:
                                  There has to be a rational explanation for
                            the evidence. . . I challenge you to come up with a
                            reasonable explanation of the truth if it does not
                            involve the guilt of Donald Lee Taylor.. . .
                                   . . . I submit to you that there's at least one
                            person in this room who knows beyond a shadow
                            of a doubt who killed. .. Pearson. And I submit to
                            you if you're doing your duty and you're doing your
                            job, you'll go back in that room and you'll come
                            back here and you'll tell that person you know,
                            too.
                            Although the comments by the prosecutor indirectly
                referenced Taylor's failure to testify, unlike the comments in Harkness
                that blamed the defendant for the lack of information about what had
                happened in that case, neither comment here "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." Id.

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                      (internal quotations omitted). Therefore, there was no error and Taylor's
                      Fifth Amendment right against self-incrimination was not violated.
                      There was sufficient evidence at trial to support the jury's finding of guilt
                                  In reviewing the evidence supporting a jury's verdict, the
                      question is not "whether this court is convinced of the defendant's guilt
                      beyond a reasonable doubt, but whether the jury, acting reasonably, could
                      be convinced to that certitude by evidence it had a right to [consider]."
                      Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974).
                      "Moreover, a jury may reasonably rely upon circumstantial evidence; to
                      conclude otherwise would mean that a criminal could commit a secret
                      murder, destroy the body of the victim, and escape punishment despite
                      convincing circumstantial evidence against him or her." Wilkins v. State,
                      96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
                                  The evidence here indicated that, prior to the murder, Taylor
                      and Pearson had discussed and planned a sale of marijuana. Chenault's
                      identification of Taylor placed him at the scene of the crime with a gun.
                      She also testified that Taylor stated that he and the other suspect were
                      "taking [the marijuana]" after Pearson demanded payment. Chenault
                      further testified that she heard gun shots and saw Pearson lying in a pool
                      of blood. Finally, Chenault testified that she saw the men take what she
                      believed to be the marijuana before fleeing the scene.
                                   In addition to this evidence, cell phone records connected
                      Taylor and Pearson with calls and text messages prior to the offense and
                      placed Taylor near the crime scene around the time of the murder.
                      Evidence also showed that Taylor subsequently engaged in furtive
                      behavior after the offense, telling Archer to delete text messages, that "it's
                      all bad," and that he had to get out of the state.

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                              We conclude that the evidence was sufficient to establish that
                  Taylor entered Chenault's apartment with the intent to commit a felony,
                  that he conspired to commit a robbery, that he unlawfully took property
                  from Pearson by use of a deadly weapon, and that he committed the
                  unlawful killing of a human being during the commission of a robbery.
                  When viewed in the light most favorable to the State, there was sufficient
                  evidence for the jury, acting reasonably, to have been convinced beyond a
                  reasonable doubt that Taylor was guilty of these crimes.      Edwards, 90
                  Nev. at 258-59, 524 P.2d at 331. 8
                                                CONCLUSION
                              The district court did not err by allowing access to historical
                  cell phone information obtained without a warrant because a defendant
                  does not have a reasonable expectation of privacy in business records
                  made, kept, and owned by his provider. Thus, the "specific and articulable
                  facts" standard set forth in 18 U.S.C. § 2703(d) is sufficient to obtain
                  historical cell phone information. Although the district court erred by
                  admitting the out-of-court identification, the error was harmless beyond a
                  reasonable doubt and the subsequent in-court identification of Taylor had
                  a sufficient independent basis. Additionally, there was no prosecutorial
                  misconduct during closing arguments because the PowerPoint slide, on its
                  own, was not sufficient for a finding of error, and the prosecutors'
                  statements were reasonable conclusions based on the evidence presented
                  at trial. Furthermore, neither comment by the prosecutors was of such
                  character that the jury would naturally and necessarily take them to be



                        sBecause we hold that only one error was committed by the district
                  court, we do not reach the issue of whether there was cumulative error.

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                 comments on Taylor's failure to testify. Lastly, there was sufficient
                 evidence at trial to support the jury's finding of guilt. Accordingly, we
                 affirm the judgment of conviction.




                                                                               ,   J.




                 We concur:


                                                J.




                                                J.




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