abeyance a count for which the defendant cannot be convicted or
sentenced. See NRS 176.105(2). We conclude that the district court
abused its discretion, and on remand the district court must dismiss the
mayhem count and enter an amended judgment of conviction.
Second, Davis argues that the district court abused its
discretion by denying his request for a hearing regarding the
voluntariness of his statement to law enforcement. See Jackson v. Denno,
378 U.S. 368, 380 (1964). We disagree. Although Davis asked for a
hearing, he agreed with the district court that due to the nature of his
claim it was appropriate to rule based on a review of the transcript
without taking testimony from witnesses. See Carter v. State, 121 Nev.
759, 769, 121 P.3d 592, 599 (2005) (a defendant cannot object to an error
he participated in). And Davis did not provide this court with a transcript
of his statement. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980) ("The burden to make a proper appellate record rests on
appellant."). We conclude that Davis failed to demonstrate that the
district court abused its discretion.
Third, Davis argues that the district court erred by failing to
dismiss the entire venire panel because it did not accurately represent the
diversity of the community. Because Davis failed to establish that the
method of selecting jurors from the community systematically excluded
members of minority groups, we conclude that he is not entitled to relief
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on this claim. See Williams v. State, 121 Nev. 934, 939-40, 125 P.3d 627,
631 (2005).
Fourth, Davis argues that the district court abused its
discretion by failing to grant his request for a mistrial after a police officer
stated that he spoke with Davis after "rebooking" him, which Davis
asserts implied that he was already in custody on a prior offense. A
request for a mistrial may be granted where "prejudice occurs that
prevents the defendant from receiving a fair trial," and we review a
district court's determination of whether a mistrial is warranted for an
abuse of discretion. Rudin v. State, 120 Nev. 121, 142, 144, 86 P.3d 572,
586, 587 (2004). We conclude that the district court did not abuse its
discretion by denying Davis' request for a mistrial because the police
officer's comment did not imply that Davis engaged in prior criminal
activity, see Manning v. Warden, 99 Nev. 82, 86, 659 P.2d 847, 850 (1983),
and even assuming the comment was improper, any error was harmless,
see Hardison v. State, 104 Nev. 530, 533, 763 P.2d 52, 54 (1988).
Fifth, Davis claims that the prosecutor inappropriately
vouched for the victim's credibility by referring to him as "our tiny Tony."
Because Davis did not object to the statement, we review for plain error.
See Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118 (2002). The record
reveals that the prosecutor in this case was not using a term of
endearment to vouch for the victim's credibility but rather was comparing
the size of the victim to the defendant. We conclude that the prosecutor
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did not commit misconduct. See id. at 39-40, 39 P.3d at 119 (discussing
the distinction between inappropriate vouching and appropriate
argument).
Having considered Davis' contentions, we conclude that he is
only entitled to the relief granted herein, and we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
,J.
Hardesty
eJtit
Parraguirre
cc: Hon. Jerome T. Tao, District Judge
Law Office of Betsy Allen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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