MALCOLM MANNING, A/K/A 

MALCOLM DENZEL MANNING, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 63274 

MED 

MAY 0 7 2015 

131 Nev., Advance Opinion 2.1e 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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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. 1Numerous 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. BarraganDeuis, 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 

2Manning 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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J. 

beyond a reasonable doubt. Accordingly, we affirm the judgment of 

conviction as to all counts. 

We concur: 

, C.J. 

Hardesty 

Douglas 

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