limited them to choosing black, white, or Asian, stating that only those
three races existed. As a result, several Hispanic venirepersons were told
that they could not identify as such and were reclassified as one of the
three races specified by the district court. Gardner claims that this
required Hispanic venirepersons to violate their oaths to be truthful and
"skewed" the racial make-up of the venire to make it appear that there
were more African Americans. Primarily, we note that race is a social
construct, not a biological one, and that the district court's understanding
of race is outdated and inaccurate. See Saint Francis College v. Al-
Khazraji, 481 U.S. 604, 610 n.4 (1987); see also Lisa K. Pomeroy,
Restructuring Statistical Policy Directive No. 15: Controversy over Race
Categorization and the 2000 Census, 32 U. Tol. L. Rev. 67, 69 (2000).
Regardless, a fair cross section challenge is not limited to racial
classifications. See Williams, 121 Nev. at 940, 125 P.3d at 631; Berghuis
v. Smith, 559 U.S. 314„ 130 S. Ct. 1382, 1388, (2010) (noting that a
defendant need only show that the group alleged to be excluded is a
distinctive group in the community). While we are concerned by the
district court's actions in this case, we discern no cognizable error from the
record and conclude that no relief is warranted.
Third, Gardner argues that the district court abused its
discretion when it denied his request to represent himself. Although a
criminal defendant has the right to represent himself, a district court
must first "ensure that the defendant is competent and that the waiver of
counsel is knowing, voluntary, and intelligent." Hvmon v. State, 121 Nev.
200, 212, 111 P.3d 1092, 1101 (2005). We give deference to a district
court's determination of whether a defendant fully understands the
disadvantages and attendant risks of self-representation. Graves v. State,
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112 Nev. 118, 124, 912 P.2d 234, 238 (1996) ("Through face-to-face
interaction in the courtroom, the trial judges are much more competent to
judge a defendant's understanding than this court."). Considering the
record as a whole, and giving deference to the findings of the district court,
we conclude that the district court did not abuse its discretion in denying
Gardner's request. See Gallego v. State, 117 Nev. 348, 362, 23 P.3d 227,
236-37 (2001).
Fourth, Gardner argues that the district court abused its
discretion by denying his request for the appointment of new counsel.
Absent a showing of adequate cause, a defendant is not entitled to reject
his court-appointed counsel and request substitution of other counsel at
public expense. Garcia v. State, 121 Nev. 327, 337, 113 P.3d 836, 842
(2005), holding modified on other grounds by Mendoza v. State, 122 Nev.
267, 274, 130 P.3d 176, 180 (2006). In this case, the district court inquired
into Gardner's reasons for wanting to dismiss counsel and determined that
none had merit. See id. at 337-38, 113 P.3d at 842-433 (an irreconcilable
conflict or significant breakdown requires more than a client's
unsubstantiated allegations of inattention or failure to follow the client's
wishes). Having considered the extent of the alleged conflict between
Gardner and his counsel, the timeliness of his motion, and the adequacy of
the district court's inquiry into his complaints, we conclude that the
district court did not abuse its discretion in denying Gardner's request. Id.
Fifth, Gardner claims that the district court violated his right
to due process by denying his request for a mistrial when a police officer
testified that Gardner had been arrested before. Gardner notes, and the
State concedes, that the district court applied the incorrect standard in
denying his motion for a mistrial. While the district court erroneously
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applied the manifest necessity standard, we conclude the district court did
not abuse its discretion in denying the motion. See Rudin v. State, 120
Nev. 121, 142-43, 86 P.3d 572, 586 (2004). To determine whether a
reference to prior criminal activity necessitates a mistrial, a court may
consider "(1) whether the remark was solicited by the prosecution; (2)
whether the district court immediately admonished the jury; (3) whether
the statement was clearly and enduringly prejudicial; and (4) whether the
evidence of guilt was convincing." Geiger v. State, 112 Nev. 938, 942, 920
P.2d 993, 995-96 (1996). Here, the statement was spontaneously given in
response to a question from the defense, the defense asked that the
district court instruct the jury to disregard the statement before
deliberations, and the statement was not enduringly prejudicial.
Moreover, there was overwhelming evidence that Gardner entered the bar
on two occasions with the intent to commit larceny. See Sherman v. State,
114 Nev. 998, 1008, 965 P.2d 903, 910 (1998); NRS 205.060. The bar area
of the establishment was obviously closed to the public, and, in order to
gain access, Gardner had to enter through an employee doorway and crawl
under the bar. Gardner brought with him an empty duffle bag and
immediately left on a bicycle positioned directly outside the nearest exit
but far from any entrance. The thefts were caught on videotape and
witnessed by security officers. Accordingly, we conclude that Gardner is
not entitled to relief on this claim.
Sixth, Gardner claims that the district court abused its
discretion by refusing his proposed negatively-phrased jury instruction.
The district court denied his instruction on the grounds that it was
cumbersome and that it was substantially covered by other instructions.
We disagree. "A positive instruction as to the elements of the crime does
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not justify refusing a properly worded negatively phrased position or
theory instruction." Brooks v. State, 124 Nev. 203, 211, 180 P.3d 657, 662
(2008) (internal quotation marks and alternation omitted). "[T]he district
court is ultimately responsible for not only assuring that the substance of
the defendant's requested instruction is provided to the jury, but that the
jury is otherwise fully and correctly instructed." Crawford v. State, 121
Nev. 744, 754-55, 121 P.3d 582, 589 (2005). Here, Gardner's instruction
was an accurate statement of the law which clearly informed jurors if they
were to find that he formed the intent to steal after he entered the bar he
was not guilty of the crime. Thus, the district court should have given the
instruction or a version thereof. See id. However, because there was
overwhelming evidence of his guilt, we conclude that any error in failing to
give the instruction was harmless beyond a reasonable doubt. See Allred
v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250 (2004).
Seventh, Gardner argues that the district court violated his
right to due process by sentencing him as a habitual offender based on ten
prior convictions when it was only presented with nine. Because Gardner
failed to object below, we review for plain error affecting his substantial
rights. See NRS 178.602; Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481,
482-83 (2000). Because the district court and defense counsel indicated
that the correct number of prior convictions were presented at the time of
sentencing, and Gardner failed to demonstrate otherwise, we conclude
that the district court did not plainly err. See Patterson v. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) ("An error is plain if the error is so
unmistakable that it reveals itself by a casual inspection of the record."
(all quotation marks omitted)). Moreover, even assuming that a prior
conviction was missing from the packet at the time of sentencing, any
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error was harmless because the district court was presented with far more
than the requisite number of prior convictions to sentence Gardner as a
habitual offender and its comments at sentencing indicate that the
sentence would not have been different. See NRS 207.010(1)(a).
Eighth, Gardner argues that cumulative error entitles him to
relief. Having considered Gardner's claims, we conclude that no relief is
warranted. See Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289
(1985) (relevant considerations "include whether the issue of innocence or
guilt is close, the quantity and character of the error, and the gravity of
the crime charged"). Accordingly, we
ORDER judgment of conviction AFFIRMED.
J.
Gibbons
I ‘44 J.
J.
Saitta
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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