Gardner (Carlton) v. State

Gardner argues that the district court was required to conduct a subsequent Farettal canvass before his second trial. Gardner contends that the rule established by this court in Wayne v. State, 100 Nev. 582, 585, 691 P.2d 414, 416 (1984) (holding that the failure to canvass is not, per se, reversible error if "the record otherwise indicates that the waiver was knowingly and intelligently made") is not applicable in this case. Gardner further contends that Wayne and its progeny should be overruled because those cases were decided prior to the adoption of Nevada Supreme Court Rule (SCR) 253, which provides district courts with a formulary to ensure that a defendant is well aware of the risks related to self- representation, and that SCR 253 has the same effect as any law enacted by the Legislature and must be strictly adhered to by the district courts. We agree with Gardner that the district court was required to conduct a subsequent Faretta canvass before Gardner's second trial. However, we conclude that the record in this matter demonstrates that Gardner knowingly and intelligently waived his right to counsel. See Wayne, 100 Nev. at 585, 691 P.2d at 416. Thus, we conclude that the district court's failure to conduct a subsequent Faretta canvass was harmless and reversal is not warranted. See Patterson v. State, 129 Nev., Adv. Op. 17, 298 P.3d 433, 439 (2013) (explaining that errors in the trial process "are subject to harmless-error review"); NRS 178.598 (providing that an error is harmless if it "does not affect [a defendant's] substantial rights"). The district court conducted a Faretta canvass prior to Gardner's first trial, and, while we overturned the district court's denial of Gardner's

request for self-representation, there is no evidence of a change in circumstance in Gardner's status between that Faretta canvass and the second trial. Moreover, at a hearing prior to his second trial, Gardner clearly indicated that it was again his desire to represent himself, which the district court permitted with stand-by council available to assist Gardner if needed. Furthermore, Gardner participated in his first trial, which resulted in his conviction on the two burglary charges, and it appears he has been incarcerated since being sentenced following his first trial. Thus, Gardner should have fully understood the disadvantages and associated risks of self-representation. Having considered Gardner's contentions 2 and concluded that they do not warrant reversal, we ORDER the judgment of the district court AFFIRMED.

cc: Hon. Valorie J. Vega, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A e

Footnotes

[1] Faretta v. California, 422 U.S. 806 (1975). SUPREME COURT OF NEVADA 2 (0) 1947A 74Wito , J. 11HHHHHHuu..::: Douglas. 2Gardner raises the following additional arguments on appeal: (1) the district court erred by refusing to sever the two counts of burglary, (2) the district court erred in denying his motion to suppress the surveillance video, (3) prosecutorial misconduct, (4) his convictions were not supported by sufficient evidence, (5) the district court erred by failing to adequately instruct the jury on the elements of burglary and by rejecting his proffered petty larceny instruction, and (6) cumulative error warrants reversal. After careful consideration of these arguments, we conclude that they lack merit. SUPREME COURT OF NEVADA 3 (D) 1947A