Tillema v. State

914 P.2d 605, 112 Nev. 266, 1996 Nev. LEXIS 47

Opinions

OPINION

By the Court,

Shearing, J.:

Appellant James Tillema was arrested for a burglary of a vehicle on May 29, 1993, and was arrested again for another burglary of a vehicle and for a burglary of a store on June 16, 1993. As a result, he was charged with a total of three counts of burglary pursuant to NRS 205.060 as well as two counts of possession of burglary tools pursuant to NRS 205.080. Tillema’s case proceeded to trial, and he represented himself. The jury convicted Tillema on all counts. The district court sentenced Tillema under the habitual criminal statute, NRS 207.010, to three consecutive life sentences with the possibility of parole and to two concurrent one-year terms.

On appeal, Tillema asserts that the district court erred in denying his motion to sever the counts, admitting evidence of a prior crime, not striking evidence of his exercise of his right to remain silent, and finding him to be a habitual criminal. He further asserts that the prosecutor improperly commented on the prior crime in closing argument and that insufficient evidence supports his convictions. We conclude that all of these contentions lack merit and affirm the convictions and sentences.

Tillema first claims that the vehicle burglary counts were improperly joined with each other and with the store burglary count. He admits that the two vehicle burglaries were similar in that they both involved vehicle break-ins, but contends that the State did not establish any common scheme or plan to connect the two incidents to each other or to the store incident in order to make joinder proper.

NRS 173.115 provides that two or more offenses may be joined together in a separate count for each offense if the offenses charged are “[bjased on the same act or transaction,” “connected together” or constitute a “common scheme or plan.” In Mitchell v. State, 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989), we held that “if . . . evidence of one charge would be cross-admissible in evidence at a separate trial on another charge, then both charges may be tried together and need not be severed.” “It is the established rule in Nevada that joinder decisions are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.” Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 563 (1990), cert. denied, 499 U.S. 970 (1991).

We conclude that the district court did not abuse its discretion in allowing the two vehicle burglary counts and store burglary count to be joined together. The district court certainly could determine that the two vehicle burglaries evidenced a common scheme or plan. Both offenses involved vehicles in casino parking garages and occurred only seventeen days apart. Moreover, we conclude that evidence of the May 29th offense would certainly be cross-admissible in evidence at a separate trial on the June 16th offense to prove Tillema’s felonious intent in entering the vehicle. See NRS 48.045(2); Mitchell, 105 Nev. at 738, 782 P.2d at 1342.

Likewise, the store burglary could clearly be viewed by the district court as “connected together” with the second vehicle burglary because it was part of a “continuing course of conduct.” NRS 173.115(2); Rogers v. State, 101 Nev. 457, 465-66, 705 P.2d 664, 670 (1985), cert. denied, 476 U.S. 1130 (1986). On June 16th, a detective viewed Tillema’s burglary of a van in a casino parking garage and then observed Tillema immediately leaving the garage and walking south to a Woolworth’s store. Following on foot, the detective saw Tillema in the hardware section of the store, where Tillema remained for approximately five minutes. The detective did not see Tillema take anything or leave the store and did not know if he attempted to pay for any merchandise. The detective then saw Tillema go to a gas station a short distance away. Tillema sold a packaged lock, with “Woolworth’s” and “a price of four ninety-nine” on it, to a gas station attendant for two dollars.¹ We believe that Tillema’s acts on June 16th demonstrate that he had an intent to steal something, anything, that he could subsequently sell. Thus, the vehicle burglary and the store burglary were certainly “connected together” due to Tillema’s felonious intent and “continuing course of conduct.” Moreover, we conclude that most of the evidence of the June 16th vehicle burglary would be cross-admissible in evidence at a separate trial on the store burglary to prove Tillema’s felonious intent in entering the store. See NRS 48.045(2); Mitchell, 105 Nev. at 738, 782 P.2d at 1342; cf. Robins, 106 Nev. at 619, 798 P.2d at 563. Accordingly, we conclude that the vehicle burglary counts were properly joined with each other and with the store burglary count.

Tillema next claims that evidence of his conviction for a 1991 vehicle burglary was improperly admitted and prejudiced his case. We conclude that the evidence was admissible to show Tillema’s common plan or scheme and his intention to feloni-ously enter the vehicles on May 29th and June 16th. See NRS 48.045(2). Significantly, this common plan is evidenced by the fact that the 1991 vehicle burglary and the two vehicle burglaries in the instant case all occurred in casino parking garages. We further conclude that the district court did not abuse its discretion in determining that the probative value of this evidence outweighed its prejudicial effect. The decision to admit or exclude evidence, after balancing the prejudicial effect against the probative value, is within the discretion of the trial judge. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).

The district court instructed the jury that it could consider Tillema’s prior conviction for vehicle burglary only as evidence of Tillema’s intent, motive, and plan, and not as evidence of bad character. Tillema contends, however, that the prosecutor went beyond the limiting instruction in closing argument and improperly urged the jury to convict Tillema based on the fact that he had engaged in other wrongdoing in his life. After review of the prosecutor’s comments, we conclude that the prosecutor did not make improper character arguments but rather pointed out that the prior conviction was evidence of Tillema’s common scheme or plan and felonious intent to enter the vehicles.²

Tillema further claims that the district court erred in failing to declare a mistrial for, or at least strike the testimony and admonish the jury to disregard, a police witness’s reference to Tillema’s refusal to reply to interrogation following arrest and receipt of Miranda warnings. Miranda v. Arizona, 384 U.S. 436 (1966). After Tillema was arrested on May 29th and during a search of his person, a standard screwdriver with yellow paint on the blade was located in Tillema’s right front pants pocket. Officer Thomas Wagner testified that Tillema was asked what the screwdriver was used for and that Tillema refused to reply. Wagner casually made this comment regarding Tillema’s silence during a narrative and the prosecutor never emphasized it.

“It is constitutionally impermissible to admit evidence of a defendant’s invocation of his Fifth Amendment privilege to remain silent. We believe, however, that this issue is also governed by the harmless error standard.” Franklin v. State, 98 Nev. 266, 271, 646 P.2d 543, 546 (1982) (citations omitted). We conclude that the admission of the witness’s statement was harmless error beyond a reasonable doubt. “The prosecution did not emphasize the silence or use it to overtly foment an adverse inference of guilt in the minds of the jury.” Id.

Tillema also asserts that habitual criminal treatment pursuant to NRS 207.010 under the facts of his case is an abuse of discretion because his prior crimes were nonviolent and some were remote in time. He cites Sessions v. State, 106 Nev. 186, 789 P.2d 1242 (1990), to argue that three consecutive life sentences for entering into two unoccupied vehicles and stealing a lock constitute far too harsh a penalty. We disagree. Besides the judgments used to satisfy the habitual criminal requirements, the district court considered Tillema’s presentence report, detailing a career of criminal activity, including sixty-five arrests, nine felony convictions, and eighteen misdemeanor convictions. We note that “NRS 207.010 makes no special allowance for non-violent crimes or for the remoteness of convictions; instead, these are considerations within the discretion of the district court.” Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992). The record demonstrates that the district court did not abuse its discretion in adjudicating Tillema a habitual criminal.

Finally, Tillema claims that the evidence against him was insufficient to convict him of burglary and possession of burglary tools. Based on our review of the evidence, we conclude that the “jury, acting reasonably, could have been convinced of the defendant’s guilt beyond a reasonable doubt” as to all counts. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992).

The dissenting justices would have this court sua sponte raise the issue of the adequacy of Tillema’s canvass and conclude that Tillema did not intelligently and knowingly waive his right to counsel. We believe that Tillema’s convictions should not be reversed on the ground that he did not knowingly and intelligently waive his right to counsel. In this case, the record affirmatively shows that the requirements of Faretta v. California, 422 U.S. 806 (1975), were met. Cf. Graves v. State, 112 Nev. 118, 912 P.2d 234 (1996). The record further demonstrates that Tillema understood the disadvantages of self-representation, including the risks and complexities of his case as required by Arajakis, 108 Nev. at 980, 843 P.2d at 802-03. It is particularly inappropriate to reverse Tillema’s convictions when he fails to allege error in being allowed to represent himself.

We disagree with the dissenting justices’ conclusion that the record in Tillema’s case demonstrates that he did not appreciate the dangers and disadvantages of self-representation when he chose to represent himself. The judge corrected each of Tillema’s misunderstandings. Despite the fact that the judge pointed out to Tillema that he misunderstood a number of issues, Tillema insisted on representing himself.

For the foregoing reasons, we affirm Tillema’s judgments of conviction and sentences.

Steffen, C. J., and Young, J., concur.

Footnotes

1

After arresting Tillema, officers returned with Tillema to the Woolworth’s store and contacted the manager and each of the cashiers. None acknowledged having recently sold him the lock. None could identify him as having been in the store that day, and none had seen him shoplifting. (No Woolworth’s employees testified, and this testimony from the detective was received without objection.)

2

The prosecutor argued as follows:

You know, what a difference it makes between a person who, as far as you know, has no history of doing this kind of thing and is found in possession of property or seen to go into a vehicle. There’s all kind of explanations for that. And you might be inclined to give him a benefit of a doubt. You might say, well, maybe they were going in for an altruistic motive.

When you know it’s a person who does this as a regular basis, then that eliminates that doubt. It eliminates reasonable doubt. It eliminates giving the defendant any benefit of a doubt.

And all of the series of events that occurred in this case as well as the ones back in 1991 can be considered by you on this count as well. It makes it conclusive that the defendant, Mr. Tillema, as Detective Flaherty, the eyewitness said, did go into the vehicle. He didn’t have permission.

Entry into the vehicle without permission is something from which you may infer an intent to commit a larceny inside. But more than that, you can infer that — from his conduct and his whole history, that this is the kind of thing that he does.