(holding that the 60-day statute is intended "to prevent arbitrary, willful,
or oppressive delays"), and Warren has not demonstrated that he was
prejudiced by the delays, see Browning v. State, 104 Nev. 269, 271, 757
P.2d 351, 352 (1988). 1
We also reject Warren's constitutional challenge because the
post-accusation delay of 286 days was not presumptively prejudicial.
Doggett v. United States, 505 U.S. 647, 651-52 (1992) ("[T]o trigger a
speedy trial analysis, an accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary from
presumptively prejudicial delay." (internal quotation marks omitted)); see
also Barker v. Wingo, 407 U.S. 514, 530 (1972) (identifying four factors to
consider when a deprivation-of-speedy-trial claim is made but recognizing
the first factor, the length of delay, as a triggering mechanism); Doggett,
505 U.S. at 652 n.1 (noting that generally post-accusation delays are
presumptively prejudicial as they approach the one-year mark). 2
'To the extent Warren references pre-indictment delay (the delay
between his arrest and the filing of the criminal complaint), he fails to
provide any relevant authority, and we therefore decline to consider this
issue. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
2 While Warren cites to Sheriff v. Berman, 99 Nev. 102, 659 P.2d 298
(1983), and State v. Robles-Nieves, 129 Nev., Adv. Op. 55, 306 P.3d 399
(2013), for his proposition that the period of delay was from his arrest
until trial began, this case is distinguishable in that Warren was not held,
either in custody or under indictment, on this matter for the period
between June 1, 2011, and February 28, 2012. See United States v. Loud
Hawk, 474 U.S. 302, 310 (1986) ("[T]he time during which defendants are
neither under indictment nor subject to any restraint on their liberty
continued on next page . . .
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Moreover, even considering the four Barker factors, we conclude that
Warren did not suffer a deprivation of his constitutional right to a speedy
trial. See Barker, 407 U.S. at 530; Bailey v. State, 94 Nev. 323, 324, 579
P.2d 1247, 1248 (1978) (concluding that a 224-day delay between
arraignment and trial was not a violation of appellants' rights to a speedy
trial when there was no evidence that the delay was intentional and when
there was no prejudice from the delay).
Second, Warren claims that the district court abused its
discretion by granting the State's first motion to continue because the
motion failed to conform to local court rules and was not made in good
faith and because the State failed to exercise any diligence in securing the
missing witness's presence. The district court found that goodS cause
existed for the continuance when the State represented that a chemist
who analyzed Warren's blood was unavailable, and Warren has not
demonstrated that the delay was the particular fault of the State or for an
improper purpose. See Lord v. State, 107 Nev. 28, 42, 806 P.2d 548, 557
(1991). We conclude that the district court did not abuse its discretion by
granting the continuance. See Sparks v. State, 96 Nev. 26, 28, 604 P.2d
802, 804 (1980) ("[The failure to file a motion and supporting affidavits]
. . continued
should be excluded—weighed not at all—when considering a speedy trial
claim.").
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will rarely be the basis for finding an abuse of discretion where the trial
court has determined good cause exists for granting a continuance.").
Third, Warren claims that the district court erred in refusing
to give a jury instruction on reckless driving, his theory of defense, and
cites to Johnson v. State, 111 Nev. 1210, 1214-15, 902 P.2d 48, 50-51
(1995), for the proposition that reckless driving is closely related to DUI.
This claim lacks merit for two reasons. First, Johnson is distinguishable.
We held the instruction should have been given in Johnson because the
only evidence of DUI were breath test results of 0.11 and 0.10 percent
blood alcohol content (BAC), so close to the (then) legal limit of 0.10
percent that they easily could have been erroneous. Id. In contrast, all of
Warren's blood tests resulted in BAC readings over 0.20 percent, too far
above the legal limit of 0.08 percent for there to be a potential error
requiring an instruction under Johnson. Second, while a defendant is
entitled to a jury instruction on his theory of the case if some evidence
supports it, Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06
(1990), we have held since Johnson that a defendant is not entitled to an
instruction on uncharged lesser-related offenses, Peck v. State, 116 Nev.
840, 845, 7 P.3d 470, 473 (2000), overruled on other grounds by Rosas v.
State, 122 Nev. 1258, 147 P.3d 1101 (2006). An instruction on the crime of
reckless driving would incorrectly suggest that the jury could find him
guilty of a crime that was neither charged nor tried by the State.
Accordingly, we conclude that the district court did not err by refusing to
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give the instruction. Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582,
585 (2005).
Fourth, Warren claims that the State failed to comply with its
discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), in that
it failed to disclose information that the chemist who originally analyzed
Warren's blood had been dismissed under circumstances involving an
allegation of possible evidence tampering or gross negligence in handling
evidence. Warren contends that, while he learned of this information
prior to trial, he did not have enough time to fully investigate and perhaps
present evidence that the blood sample was contaminated. "'[T]here are
three components to a Brady violation: the evidence at issue is favorable to
the accused; the evidence was withheld by the state, either intentionally
or inadvertently; and prejudice ensued, i.e., the evidence was material."
Browning v. State, 120 Nev. 347, 369, 91 P.3d 39, 54 (2004) (quoting
Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000)).
The information regarding the original chemist was otherwise
available to the defense, and Warren had the information before trial. See
Steese v. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998) ("Brady does
not require the State to disclose evidence which is available to the
defendant from other sources, including diligent investigation by the
defense."). Additionally, Warren fails to demonstrate a reasonable
possibility that the information would have affected the outcome at trial,
see Jimenez v. State, 112 Nev. 610, 619, 918 P.2d 687, 692 (1996)
(explaining materiality showing for Brady violation), as he was able to
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cross-examine the second chemist who analyzed his blood and introduce
evidence that the original chemist had been involved in a DNA sample
switch ten years earlier that resulted in a false identification. Therefore,
Warren fails to demonstrate a Brady violation.
Fifth, Warren claims that the district court erred by failing to
conduct an evidentiary hearing on his motion to suppress, in which he
alleged that the trooper made misrepresentations in his report in order to
obtain Warren's blood and analogized the situation to Franks u. Delaware,
438 U.S. 154, 171-72 (1978). This claim lacks merit for two reasons. First,
Franks examines the validity of a search warrant, whereas the trooper in
this case conducted a warrantless search pursuant to Nevada's implied
consent law. Second, even assuming the district court should have held an
evidentiary hearing on the motion, Warren fails to demonstrate that his
substantial rights were affected as he was able to cross-examine the
trooper at trial regarding any discrepancies and alleged
misrepresentations. See NRS 178.598.
Sixth, Warren claims that the district court erred by denying
his motion for a new trial based on Missouri v. McNeely, 569 U.S. , 133
S. Ct. 1552 (2013) (plurality opinion), and the trooper's use of Nevada's
implied consent law to obtain his blood without a warrant. We have
recently held that the warrantless, nonconsensual search provided for in
NRS 484C.160(7) is unconstitutional but that the good-faith exception to
the exclusionary rule applies when an officer reasonably and in good faith
relied on the statute. Byars v. State, 130 Nev., Adv. Op. 85, 336 P.3d 939,
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942, 947 (2014). In denying the motion, the district court determined that
the trooper acted in good faith when relying on the implied consent law;
therefore, the district court did not abuse its discretion by denying
Warren's motion for a new trial. See State v. Carroll, 109 Nev. 975, 977,
860 P.2d 179, 180 (1993) ("[T]his court will not set aside a district court
new trial ruling absent an abuse of discretion.").
Seventh, Warren claims that cumulative error entitles him to
relief. Because we have only found one error, there are no errors to
cumulate. See United States V. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
We conclude that no relief is warranted, and we
ORDER the judgment of conviction AFFIRMED. 3
CITE , „ J.
Saitta
J.
Pickering
3 We deny Warren's objection to ex parte hearing for and demand to
rescind, appointment of appellate counsel, filed pro se on January 24,
2014. See Blandino v. State, 112 Nev. 352, 356, 914 P.2d 624, 627 (1996)
("Appellant has neither a statutory right to self-representation on appeal
nor a First Amendment right to proceed in proper person on appeal.").
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cc: Hon. Valorie J. Vega, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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