Sampson v. State

122 P.3d 1255 (2005) Willie SAMPSON, Appellant, v. The STATE of Nevada, Respondent. No. 41627. Supreme Court of Nevada. December 1, 2005. *1256 Philip J. Kohn, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant. *1257 George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Susan M. Pate, Deputy District Attorney, Clark County, for Respondent. Before BECKER, C.J., ROSE and PARRAGUIRRE, JJ. OPINION ROSE, J. Willie Sampson was sentenced to multiple life sentences after a jury convicted him of one count of first-degree kidnapping, two counts of lewdness with a minor under the age of fourteen, one count of attempted sexual assault on a minor under the age of fourteen, and one count of sexual assault on a minor under the age of fourteen. Sampson pleaded guilty to one count of possession of a firearm by an ex-felon. Sampson appeals his conviction, arguing that the district court erred by (1) refusing to allow him to introduce a new expert witness eight days into trial to testify regarding a mental disorder with which the victim was allegedly diagnosed, (2) permitting the prosecution to elicit testimony discussing Sampson's refusal to allow officers to search his home pursuant to his Fourth Amendment right to refuse to consent to a warrantless search, and (3) denying Sampson's motion for a mistrial based on police testimony that Sampson had invoked his Fifth Amendment right to remain silent and to be provided with counsel. We first conclude that the district court did not abuse its discretion when it denied Sampson's request to introduce a late-disclosed expert witness to discuss the victim's alleged mental disorder. Second, we join other courts in adopting the rule that a district court errs when it allows evidence or testimony during trial regarding a defendant's invocation of Fourth Amendment rights. However, this error is subject to a harmless error analysis, and where the evidence or testimony is merely a passing reference, the error is harmless and does not require reversal of a conviction. We conclude that the reference to Sampson's exercise of his Fourth Amendment rights was a mere passing reference and, thus, harmless error. Finally, we conclude that the district court did not err by denying Sampson's motion for a mistrial based on the testimony concerning his Fifth Amendment rights. We therefore affirm Sampson's conviction. FACTS The events giving rise to Sampson's conviction stem from an encounter where Sampson picked up the victim, a minor boy, and drove him first to McDonald's and then to Sampson's residence. Sampson's conviction was based primarily on the testimony of the minor boy, which drastically conflicted with Sampson's own testimony. At trial, the victim presented the following testimony. The victim said that he first saw Sampson when Sampson drove past him as he walked down the street. When he stopped to rest at a bus stop, Sampson turned his vehicle around and stopped next to the victim, asking the victim where the closest …