district court abused its discretion by admitting prior bad act evidence, (5)
the State improperly commented on Marquez's refusal to provide a DNA
sample and his request for an attorney, (6) the district court abused its
discretion in denying Marquez's proffered jury instruction regarding
opinion evidence, and (7) cumulative error warrants reversal of the
judgment of conviction. We conclude that each of Marquez's arguments
lacks merit, and therefore, we affirm the judgment of conviction. The
parties are familiar with the facts and procedural history of this case, and
we do not recount them further except as is necessary for our disposition.
The district court properly denied Marquez's motion to dismiss counsel
Marquez argues that the district court erred in denying his
motion to dismiss his counsel, Robert Lucherini, and appoint substitute
counsel and that a full evidentiary hearing should have been conducted to
determine Lucherini's effectiveness. Marquez also argues that the district
court erred by not discharging his counsel due to a lack of communication
during the pretrial phase." We disagree.
At a hearing on July 21, 2010, three weeks prior to the
scheduled jury trial, the district court heard Marquez's motion to
substitute counsel. The district court expressed concern regarding the
timeliness of Marquez's motion and explained that granting Marquez's
motion would result in a delay of trial. Nonetheless, the district court
agreed to review Marquez's exhibits and render a decision at the August 4,
'Because Marquez appeals the district court's denial of his motion to
substitute counsel, his ineffective assistance of counsel concerns are not
properly before this court. The proper vehicle for ineffective assistance of
counsel claims is through a timely post-conviction petition for a writ of
habeas corpus. Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 507 (2001).
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2010, calendar call. After two weeks of consideration, the district court
denied the motion for substitution of counsel. Due to court scheduling
conflicts and defense counsel's notification that CPS documents still
needed to be analyzed and supplied to the State, the trial was continued.
We review a district court's denial of a motion to dismiss
counsel for an abuse of discretion. Garcia v. State, 121 Nev. 327, 337, 113
P.3d 836, 843 (2005). "[A] defendant in a criminal trial does not have an
unlimited right to the substitution of counsel." Id. at 337, 113 P.3d at 842.
To demonstrate a Sixth Amendment violation, a defendant must show
sufficient cause. Id. (noting that sufficient cause would be "a complete
collapse of the attorney-client relationship"). When reviewing a denial of a
motion to substitute counsel, we consider the following three factors: "(1)
the extent of the conflict between the defendant and his or her counsel, (2)
the timeliness of the motion and the extent to which it will result in
inconvenience or delay, and (3) the adequacy of the court's inquiry into the
defendant's complaints." Id. at 337, 113 P.3d at 842-43 (citing Young v.
State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004)).
As to the extent of the conflict, Marquez argues that
Lucherini's pretrial investigations were inadequate and that Lucherini
failed to communicate with him for six months. However, Marquez does
not argue that a complete collapse in the attorney-client relationship
occurred, and it does not appear that such a collapse existed. Lucherini's
pretrial investigation does not appear to be wholly inadequate. The record
indicates that Lucherini did conduct investigation, as he alluded to
discovery his investigator obtained from CPS at the August 2010 calendar
call. Further, Marquez failed to specify what relevant evidence he
believed would have resulted from a more thorough investigation.
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Lucherini also does not appear to have ignored Marquez's attempts to
communicate. The record reveals at least five instances of contact
between Marquez and his attorney. Additionally, Marquez did not
indicate any dissatisfaction with his representation until he filed his
motion a few weeks before trial, despite his allegation that Lucherini had
not communicated with him for six months. See Garcia at 337-38, 113
P.3d at 843 (where the defendant made allegations of, among other things,
failure to communicate and failure to investigate, but same was belied by
the record, denying the motion to substitute counsel was proper).
As for the timeliness of the motion and the chances of trial
delay, Marquez's motion was presented three weeks before trial. Granting
Marquez's motion would have resulted in inconvenience and delay. We
also note that this was the first time Marquez alleged any problems
between he and his counsel. This too is factually similar to Garcia. See id.
at 338-39, 113 P.3d at 843 (where the defendant brought his motion to
substitute counsel at calendar call and never alleged a problem with
counsel in the time between appointment and trial, defendant's motive
was held suspect and the motion was denied as it would have resulted in
inconvenience or delay).
Although the district court's oral inquiry was brief, we
conclude it was adequate. A review of the record reveals that the
"attorney log" attached to Marquez's motion, which was expressly taken
under advisement by the district court judge, was very in-depth and
provided the same information that would have been provided at a
hearing. Since Marquez admitted in this "attorney log" to at least five
occasions of attorney contact, including discussions regarding plea
bargains and a conversation with an investigator, it was reasonable for
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the district court to deny Marquez's motion. See id. at 339, 113 P.3d at
843-44 (an in camera hearing may be unnecessary given the particular
circumstances of a case, such as where communication between attorney
and client is established by other means).
Further, the actual start date of trial, six months later,
alleviated any prejudice regarding the alleged lack of communication and
investigation. This appears confirmed by the fact Marquez never renewed
his motion for substitution. See Young, 120 Nev. at 969, 102 P.3d at 576
(the extent of conflict was evidenced, in part, by defendant filing multiple
motions to substitute counsel). Accordingly, the district court did not
abuse its discretion in denying Marquez's motion to dismiss counsel and
for appointment of alternate counsel.
The district court did not abuse its discretion in refusing to permit
Marquez to recall V.V. and Pamela
Marquez argues that the district court did not have discretion
to prevent him from recalling principal State witnesses V.V. and Pamela,
and that doing so denied his rights to present a defense and to a fair trial.
Marquez insists that he needed to recall V.V. and Pamela after the
testimonies of V.V.'s biological father and stepfather. We disagree.
The district court has discretion to deny a party's request to
recall a witness for additional cross-examination when the party already
had an "abundant opportunity to draw out his case." Collins v. State, 88
Nev. 9, 13-14, 492 P.2d 991, 993 (1972). We will not reverse the district
court's decision unless there was an abuse of discretion. Id. at 14, 492
P.2d at 993.
On the assumption that the State intended to call V.V. and
Pamela early in its case-in-chief, before the presentation of evidence by
either side even began, Marquez requested that the court allow him to
5
1
question Pamela and V.V. again following the testimony of V.V.'s father
and stepfather. The district court denied this request, instead allowing
Marquez abundant leeway to exceed the scope of direct during cross-
examination and recross-examination of both V.V. and Pamela.
A trial judge has broad authority to manage his or her
courtroom to ensure that business is conducted efficiently and fairly. NRS
50.115(1). We conclude that the district court judge was properly
managing the courtroom when he denied Marquez's requests to recall the
witnesses and that the decision to do so did not infringe on Marquez's
right to present a defense. This is true for two reasons. First, Pamela
actually testified following V.V.'s father and stepfather. Thus, any
argument as to the need to recall her was moot, since Marquez was given
an abundant opportunity to draw out his theories of defense during her
cross-examination. Second, as for V.V., we note that Marquez presented
multiple reasons, before trial even started, why he believed he needed to
recall V.V. after the testimony of her biological father and stepfather. The
district court gave Marquez significant leeway and an abundant
opportunity to develop his speculative defense theories during V.V.'s cross-
examination. That these theories never came to fruition does not equate
to Marquez being denied the right to present a defense. Additionally, the
district court clearly articulated that it sought to protect V.V. from
harassment, and therefore we conclude that the district court properly
exercised its discretion by not requiring V.V., a minor child, to return the
next day. Therefore, the district court did not abuse its discretion or
preclude Marquez from presenting his defense.
Marquez failed to demonstrate judicial bias
Marquez argues that the district court exceeded its proper role
as the governor of the trial. Specifically, Marquez alleges that the district
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court judge revealed bias to the jury by his actions and words, which
prejudiced him and denied him due process. We disagree.
Marquez did not object to judicial bias at trial, so we review
the district court's conduct for plain error. See Green v. State, 119 Nev.
542, 545, 80 P.3d 93, 95 (2003). Marquez must show the asserted error
affected his substantial rights, by causing "actual prejudice or a
miscarriage of justice." Id. We presume a judge's impartiality, and the
party asserting judicial bias must establish sufficient grounds for
disqualification based on facts rather than speculation. Rippo v. State,
113 Nev. 1239, 1248, 946 P.2d 1017, 1023 (1997).
Although some of the comments made by the district court
may not have been necessary, we conclude that none of the district court's
comments demonstrated judicial bias. The district court's comments did
not show that it had closed its mind to the evidence. See Cameron v.
State, 114 Nev. 1281, 1283, 968 P.2d 1169, 1171 (1998) ("[R]emarks of a
judge made in the context of a court proceeding are not considered
indicative of improper bias or prejudice unless they show that the judge
has closed his or her mind to the presentation of all the evidence.").
Rather, the district court simply maintained order in its courtroom and
protected witnesses. In reviewing the trial record as a whole, we conclude
that the district court's actions did not affect Marquez's substantive rights
and were not of such magnitude to create an unfair trial ambience. See
McNair v. State, 108 Nev. 53, 62, 825 P.2d 571, 577 (1992) (improper
judicial actions must be "so pervasive and of such a magnitude that the
trial ambiance is discernibly unfair to the defendant when viewed from
the cold record on appeal").
7
The district court did not abuse its discretion in permitting Pamela to
testify to prior domestic violence
Marquez argues that the wrongful admission of irrelevant,
prejudicial, and uncharged other crimes as bad act evidence deprived him
of his due process and violated his right to a fair trial. Marquez argues
that he was "blindsided" by Pamela's testimony about battery, domestic
violence, and threats to her life. We disagree.
Marquez failed to preserve the argument that Pamela's
domestic violence testimony was impermissible bad act evidence, and only
objected to the line of questioning as being unfairly prejudicial. Therefore,
we only review the issue for plain error. See Green 119 Nev. at 545, 80
P.3d at 95; Merica v. State, 87 Nev. 457, 462, 488 P.2d 1161, 1163-64
(1971) (the defendant's failure to specifically object on the grounds urged
on appeal precluded appellate consideration of those grounds).
Generally, evidence of prior bad acts is inadmissible for the
purpose of showing that a person acted in conformity with the previous
bad act. NRS 48.045(1). However, a district court may admit evidence of
other crimes, wrongs, or acts "for any relevant nonpropensity purpose,"
when certain procedural requirements and criteria are met. See Bigpond
v. State, 128 Nev. at „ 270 P.3d 1244, 1249 (2012); NRS 48.045(2).
Even if the district court does not conduct a Petrocelli hearing to review
bad act evidence outside the presence of the jury, reversal is not mandated
where: "(1) the record is sufficient for this court to determine that the
evidence is admissible under the test for admissibility" established by
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997); or (2)
"the result would have been the same if the trial court had not admitted
the evidence." Rhymes v. State, 121 Nev. 17, 22, 107 P.3d 1278, 1281
(2005) (internal quotations omitted).
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One of Marquez's defense theories involved attacking Pamela's
character as a mother and V.V.'s home environment. Pamela admitted
that at first, she did not believe V.V.'s allegations. Outside the presence of
the jury, the State discussed how Pamela's disbelief may have been
attributable to Marquez's manipulation of Pamela through domestic
abuse. The State informed the district court of its intention to stay away
from Marquez's past physical and mental abuse on direct examination,
however, the State cautioned the defense about the fine line they were
walking "before they open [the] door" about why Pamela initially
disbelieved her daughter. Prior to eliciting the domestic violence
testimony, the State even warned Marquez that it would attempt to admit
the domestic violence testimony if Marquez attempted to question
Pamela's belief. As such, Marquez was not "blindsided" by Pamela's
responses.
Despite the bench conference, during Marquez's recross-
examination of Pamela, his counsel asked a question to which Pamela
answered with a disclosure of the domestic violence. Following this
exchange, the State requested another bench conference seeking a ruling
allowing the domestic violence evidence since Marquez's counsel opened
the door. Marquez claimed such evidence was unfairly prejudicial because
the abuse was uncorroborated. The district court permitted the State to
follow up on Marquez's questions. After the State's questioning regarding
the domestic violence evidence, Marquez's counsel attempted to attack
Pamela's credibility with questions designed to show that she never called
the police and that no one else heard the abuse despite the fact she lived
in apartments and hotels.
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We conclude that Marquez opened the door to the domestic
violence testimony and thus, invited any error. Marquez was aware of
domestic violence allegations and clearly provoked Pamela's answer
during his line of questioning. Further, he reiterated the allegations by
attacking lack of corroboration. See Pearson v. Pearson, 110 Nev. 293,
297, 871 P.2d 343, 345 (1994) (holding plain error does not exist when the
complaining party contributed to the error because a defendant "will not
be heard to complain on appeal of errors which he himself induced or
provoked the court or the opposite party to commit" (citation and internal
quotation omitted)). The State properly expounded on the testimony in an
attempt to rehabilitate Pamela's credibility. See Rippo v. State, 113 Nev.
at 1253, 946 P.2d at 1026 (holding that where defense counsel opened the
door on cross-examination in an attempt to portray a witness as mentally
unstable, the State properly attempted to rehabilitate his credibility); see
also Wesley v. State, 112 Nev. 503, 513, 916 P.2d 793, 800 (1996) (holding
that defense counsel opened the door to the prosecutor's comments on
cross-examination, which attempted to rehabilitate the witness's
credibility). Additionally, even if the domestic violence allegation was
impermissible bad act evidence, we conclude that there was no plain error
because this short segment of testimony did not change the outcome of the
case. See Rhymes, 121 Nev. at 22, 107 P.3d at 1281.
The State did not improperly comment on Marquez's refusal to submit to a
DNA test
Marquez argues that the State improperly commented on his
valid constitutional privileges by questioning him about his refusal to
provide a DNA sample, which violated his Fifth and Sixth Amendment
rights and denied him due process. We disagree.
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Marquez failed to object to the State's questioning regarding
his refusal to submit to a DNA test, and even agreed to such questioning
on three separate occasions. Marquez also consented to the admission of
the DNA consent form, which showed Marquez's refusal to submit his
DNA. Therefore, we review for plain error. Green, 119 Nev. at 545, 80
P.3d at 95.
We conclude that Marquez opened the door to the DNA
questioning by discussing DNA while attacking the thoroughness of the
police investigation. The State's reference to Marquez's refusal to provide
a DNA sample was meant to rebut Marquez's own testimony that police
failed to complete a thorough investigation, inclusive of testing suspects'
DNA. See Wesley v. State, 112 Nev. at 513, 916 P.2d at 800 (holding that
defense counsel opened the door to the prosecutor's comments on cross-
examination); see also U.S. v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.
1988) ("Under the rule of curative admissibility, or the 'opening the door'
doctrine, the introduction of inadmissible evidence by one party allows an
opponent, in the court's discretion, to introduce evidence on the same issue
to rebut any false impression that might have resulted from the earlier
admission."). Therefore, since Marquez invited any error, there was no
actual prejudice to him, and the DNA questioning did not affect his
substantive rights. See Green, 119 Nev. at 545, 80 P.3d at 95.
The State did not improperly comment on Marquez's invocation of his
right to counsel during its closing
Marquez also argues that his request for an attorney should
not have been used against him at a later court proceeding. Marquez
claims the prosecutor emphasized his invocation of his Fifth and Sixth
Amendment privileges in closing rebuttal argument. We disagree.
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Generally, we employ a two-step analysis to review claims of
prosecutorial misconduct. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d
465, 476 (2008). The first step requires this court to ascertain whether the
prosecutor's conduct was improper. Id. If we determine that the conduct
was improper, the second step requires review for harmless error and to
"determine whether the improper conduct warrants reversal." Id.
However, harmless error review only applies if a defendant has preserved
the error for appeal by objecting to the prosecutor's conduct at trial.
Valdez, 124 Nev. at 1190, 196 P.3d at 477. The purpose of objecting to
misconduct at trial is so that the district court can "rule upon the
objection, admonish the prosecutor, and instruct the jury." Hernandez v.
State, 118 Nev. 513, 525, 50 P.3d 1100, 1109 (2002). See also Parker v.
State, 109 Nev. 383, 391, 849 P.2d 1062, 1067 (1993) ("[T]o preserve the
issue of prosecutorial misconduct for appeal, the defendant must raise
timely objections and seek corrective instructions."). When an objection is
not preserved, we instead review for plain error. Valdez, 124 Nev. at 1190,
196 P.3d at 477.
Marquez did not object during the State's closing rebuttal
argument when mention was made that he sought to invoke counsel; thus,
we review for plain error. Id. In context, the State's comment only
pointed out inconsistencies between Marquez's testimony and the police
interview transcript for impeachment purposes. See Leonard v. State, 117
Nev. 53, 81, 17 P.3d 397, 414 (2001) ("[A] criminal conviction is not to be
lightly overturned on the basis of a prosecutor's comments standing
alone." (quoting United States v. Young, 470 U.S. 1, 11 (1985))). The
comment did not imply guilt from Marquez's request for counsel.
Furthermore, Marquez was the one who first mentioned asking for an
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attorney multiple times during his testimony. Marquez's counsel also
consented to questions regarding invoking the right to an attorney.
Because the brevity of the comment, in the context of closing,
was not unfairly prejudicial, we conclude that the State's comment does
not constitute plain error. See Pacheco v. State, 82 Nev. 172, 179-80, 414
P.2d 100, 104 (1966) (concluding that the prosecutor's objectionable
rebuttal remark regarding rehabilitation did not warrant reversal when
defense counsel initiated the subject of rehabilitation).
The district court did not abuse its discretion in denying Marquez's jury
instruction regarding opinion evidence
Marquez argues that the district court erred in denying his
proposed jury instruction concerning opinion evidence. Marquez also
argues that the State's admitted instruction on opinion evidence did not
highlight the extreme importance of factual evidence in this case. We
disagree.
"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005). "Jury instructions that tend to confuse
or mislead the jury are erroneous." Carver v. El-Sabawi, 121 Nev. 11, 14,
107 P.3d 1283, 1285 (2005). A party has "no right to have requested
instructions given when they do not correctly state the law." Harris v.
State, 83 Nev. 404, 407, 432 P.2d 929, 931 (1967). The district court may
"refuse an instruction when the law in that instruction is adequately
covered by another instruction given to the jury." Rose v. State, 123 Nev.
194, 205, 163 P.3d 408, 415 (2007) (internal quotations omitted).
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Marquez's denied instruction stated:
Opinion evidence cannot be used as factual
evidence. The jury can only use factual evidence
in their deliberation of the case. The opinion
evidence can help people unfamiliar with these
issues understand, but opinion evidence cannot be
used as fact and cannot be used as factual
evidence, and therefore opinion evidence cannot be
used as factual evidence to make your decision. It
can make you understand the components
position, but cannot be used to decide the outcome
of the case only factual evidence can do that.
Marquez's counsel wrote this instruction himself and was unable to cite
any caselaw or statute to support it. The instruction also does not
delineate between lay opinion and expert opinion.
First, we concur with the district court that the proposed
instruction is confusing, and conclude that it likely would have confused
the jury. It does not establish whether it speaks to lay opinions or expert
opinions. It also contains needless repetition, and we are unsure what is
meant by "components." As such, it would have been error to give.
Second, the proposed instruction fails to state correct law. Specifically,
the language "Mlle jury can only use factual evidence in their
deliberation" is incorrect, as NRS 50.265 establishes limited circumstances
where lay opinion can be introduced and considered, while the admission
and consideration of expert opinion is codified in NRS 50.275 et seq.
Third, Instruction 9 adequately set forth the correct law governing expert
witness opinion, while Instruction 7 discussed direct evidence and
circumstantial evidence, which would include opinions. Therefore, we
conclude the district court did not abuse its discretion by denying
Marquez's proposed instruction.
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Cumulative error does not warrant reversal
This court will reverse a conviction when the cumulative effect
of errors violates a defendant's right to a fair trial. Rose, 123 Nev. at 211,
163 P.3d at 419. We conclude that any errors do not cumulate to violate
Marquez's right to a fair tria1. 2
Based on the above, we conclude that each of Marquez's
arguments lack merit. Accordingly, we
ORDER the judgment of the district court AFFIRMED
illi
• i
*
ires,. . .vi J.
Gibbons
cc: Hon. Doug Smith, District Judge
Terrence M. Jackson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We have considered Marquez's remaining arguments and conclude
they are without merit.
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