573 (2006) (internal quotation marks omitted). "Circumstantial evidence
alone can certainly sustain a criminal conviction. However, to be
sufficient, all the circumstances taken together must exclude to a moral
certainty every hypothesis but the single one of guilt." Buchanan v. State,
119 Nev. 201, 217, 69 P.3d 694, 705 (2003) (footnote omitted).
The jury heard testimony that Reed, Deyundrea Holmes, and
Jaffar Richardson conspired to rob Kristopher Mo Nelson, a drug dealer
who was known to carry a large amount of cash. Their plan was to lure
Nelson to his recording studio with a telephone call and then rob him as
he left the studio. They executed their plan on the evening of November 4,
2003.
When Nelson and Kenneth Clark exited the recording studio
they were confronted by two armed men. The men were dressed in black
and their faces were concealed by ski masks. They separated Nelson from
Clark. The man controlling Nelson carried a long-barreled, stainless-steel
revolver. He battered Nelson with the revolver and demanded Nelson's
money. When Nelson failed to produce the money, the man pulled off his
ski mask, announced that he was going to shoot Nelson, and then shot
Nelson.
Several people saw men near the crime scene and provided
descriptions of these men to the police. Jennifer Windle saw two men
loitering by a vacant apartment near Nelson's recording studio when she
returned home from work at about 8:30 pm. She believed that they were
wearing jackets and beanies, they were average-sized black males, and
one had lighter colored skin than the other. She led the police to the spot
where the men had been standing and the police discovered a freshly
discarded cigarette butt.
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Randy Pethtel was walking his dog at about 10:30 pm when he
heard yelling and a gunshot, observed two men running, and saw that one
of them was carrying a silver handgun with a six- to eight-inch barrel. He
noticed that they were dressed in black, they were wearing hoodies and
puffy-type jackets, and one of the jackets had white lettering on the back.
Although he did not get a good look at their faces, he believed that they
were Hispanic 15- or 16-year-olds. He also testified that one of them could
have weighed as much as 200 pounds.
Lisa Schell happened to be looking outside her daughter's
window at about 10:30 pm when she saw two men running. She noticed
that they were wearing dark clothing and ski masks and that one of them
carried a gun She described them as appearing slender, being less than
six feet tall, and weighing less than 200 pounds.
Jenny Morse heard a loud bang and looked out the living room
window. She saw a man covered with blood stumble and fall and another
man, who appeared to be scared and nervous, talking on a telephone.
When the man with the telephone got into a vehicle and drove away, she
called the police and provided the vehicle's license plate number.
The license plate number led the police to Kenneth Clark. The
police determined that Clark was a victim and not a suspect. Clark was
able to get a good look at the man controlling Nelson, but he was unable to
see much of the man controlling him Clark described his controller as a
light-skinned black man with Asian-looking eyes and a wide nose. The
man stood about five-foot-eight and weighed between 160 and 170 pounds.
The police were unable to identify the suspects from the
eyewitness accounts, but their investigation suggested that Reed,
Richardson, and someone named Kali were involved in murder. There
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was no additional information for several years and the case went cold
until Holmes was convicted of a felony. Holmes' DNA profile was entered
into CODIS and was matched to the DNA sample taken from the
discarded cigarette butt found at the crime scene. After the police
determined that Holmes was known by the moniker "Kali," that Holmes
and Reed had grown up together, and that Holmes was the man that
Clark saw at the crime scene, their investigation gained momentum and
the case against Reed, Holmes, and Richardson came together.
Richardson pleaded guilty to conspiracy to commit robbery
and testified at Reed's preliminary hearing. He identified Reed in the
justice court, disclosed that they planned the Nelson robbery in advance,
and admitted to luring Nelson to the studio where Reed and Holmes lay in
wait. His preliminary hearing testimony was read into evidence for the
jury to hear.
Reed's girlfriend, Loren Torres, testified that Reed left the
apartment on the night of the murder dressed in black and carrying a
silver handgun with a "spinny" thing. She said that Reed had a black
puffy coat with "Adidas" written on it and that the revolver and a bag of
Holmes' clothes were thrown out after the murder. She acknowledged on
cross-examination that she had told Reed that he "was heavy set, like 250,
260."
Joshua Fort testified that he knew Reed, Holmes, Richardson,
and Nelson. He said that Reed asked him about Nelson's money and
drugs and whether it would be okay to rob Nelson. He had visited Reed's
apartment several times and had seen Holmes' duffle bag or backpack and
a large, silver-colored revolver. He said that on November 4, 2003,
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Richardson called and asked if he would give Reed and Holmes a ride. He
described Reed as stocky and pushing 200 pounds.
Fort's sister, Tinisa Williams, testified that she had often seen
Reed, Holmes, and Richardson. On November 4, 2003, her brother asked
her to give Reed and Holmes a ride. She left her brother's house at around
9:00 pm, she parked the car where Reed and Holmes directed, and she
waited for them after they left the car. When Reed and Holmes returned,
they were "in duress," they told her to go several times, and she heard
Reed call someone and say that "[t]hings went bad." She described Reed
as being five-foot-ten or five-foot-eleven, on the thick side, and weighing
about 180 or 190 pounds.
Detective Ronald Chalmers testified that the police
department's in-house database indicated that Reed was five-foot-eight
and weighed 185 pounds in December 2003 and that he weighed 205
pounds in August 2010. He further testified that it is very common for
witnesses' accounts of a suspect's height and weight to vary, even when
the witnesses have observed the same suspect at the same time.
We• conclude from this testimony that a rational juror could
reasonably find that all the circumstances taken together exclude any
theory of innocence and demonstrate beyond a reasonable doubt that Reed
participated in Nelson's death and is guilty of first-degree murder under
the felony-murder rule. See NRS 200.030(1)(b).
Motion for a new trial
Reed claims that the district court should have treated his
motion for acquittal as a motion for a new trial and granted a new trial
based on conflicting evidence. However, the trial record plainly reveals
that Reed sought an advisory instruction to acquit after resting his case-
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in-chief and that he argued only that there was no evidence against him.
We conclude that Reed has not demonstrated that the district court
abused its discretion by denying his motion for an advisory instruction, see
NRS 175.381(1); Middleton v. State, 114 Nev. 1089, 1105, 968 P.2d 296,
307 (1998) ("The granting of an advisory instruction to acquit rests within
the sound discretion of the district court."), or by failing to construe his
motion as a motion for a new trial, see generally NRS 176.515(1). 1
Inadequate resources to prepare a defense
Reed claims that the district court erred by failing to provide
him with adequate resources to prepare his own defense. Reed chose to
represent himself pursuant to Faretta v. California, 422 U.S. 806, 819-20
(1975). "Faretta holds that the rights guaranteed by the sixth amendment
are personal to the accused. The rights to notice, confrontation, and
compulsory process mean, at a minimum, that the time to prepare and
some access to materials and witnesses are fundamental to a meaningful
right of representation." Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.
1985) (internal quotation marks omitted). The record reveals that the
district court thoroughly canvassed Reed regarding the dangers and
disadvantages of self-representation. When Reed insisted on representing
himself, the district court appointed stand-by counsel to assist Reed at
trial, help with discovery, and subpoena witnesses; appointed multiple
investigators to interview witnesses and help with discovery; ordered the
1We note that the district court did not and could not rule on Reed's
post-verdict motion for a judgment of acquittal because it was untimely
filed and thereby deprived the district court of jurisdiction to act. See NRS
175.381(2) ("The motion for a judgment of acquittal must be made within 7
days after the jury is discharged. . . .").
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State to verify that Reed had been provided• with all of the discovery;
ordered the county jail to give Reed one hour per day to prepare his
defense; 2 conducted numerous status hearings to address Reed's pretrial
motions and ensure that he had access to the materials that he needed;
and granted several of Reed's motions for continuances. We conclude that
Reed was provided with adequate resources to prepare his defense and
that his specific assertions to the contrary are without merit.
Brady violation
Reed claims that the State violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to provide adequate discovery and/or exculpatory
materials. He states that the majority of the evidence that the State
provided was in the form of audio recordings that were not transcribed.
He further asserts that he was unable to impeach the State's key witness
because one of the police interviews with that witness had not been
transcribed. However, Brady is a disclosure rule and not a discovery rule.
"Thus, the prosecutor is not required to deliver his entire file to defense
counsel, but only to disclose evidence favorable to the accused that, if
suppressed, would deprive the defendant of a fair trial." United States v.
Bagley, 473 U.S. 667, 675 (1985) (footnote omitted). Because Reed has not
demonstrated that the State failed to disclose favorable evidence, see State
v. Huebler, 128 Nev. , 275 P.3d 91, 95 (2012) (explaining the
requirements for establishing a Brady violation), cert. denied, 568 U.S.
133 S. Ct. 988 (2013), and the State was not required to provide its
2 Seventeen months before his trial, Reed was sentenced to a prison
term of 24 to 72 months for possession of a dangerous weapon by a
prisoner and was transferred from the county jail to the Northern Nevada
Correctional Facility where he had access to a law library.
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disclosure in a specific medium or format, see generally United States v.
Odman, 47 Fed. App'x. 221, 226 (4th Cir. 2002) (the government's failure
to provide transcripts of its witnesses' prior testimony did not violate
Brady because Brady rule does not apply when the evidence is available to
the defendant through other sources), we conclude that there was no
Brady violation.
Juror misconduct
Reed claims that the district court erred by allowing a juror
who expressed obvious bias to remain on the jury. However, Reed did not
preserve this issue for appellate review, so we review for plain error. See
NRS 178.602; Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001)
(reviewing unpreserved claims for plain error), abrogated on other grounds
by Nunnery v. State, 127 Nev. , n.12, 263 P.3d 235, 253 n.12 (2011).
"In conducting plain error review, we must examine whether there was
error, whether the error was plain or clear, and whether the error affected
the defendant's substantial rights." Green v. State, 119 Nev. 542, 545, 80
P.3d 93, 95 (2003) (internal quotation marks omitted). The record reveals
that the district court advised the parties about a juror note that stated,
"Judge: Please ask the defendant to get to the point. His stock is falling
fast." The district court and the parties determined that the proper
remedy was to bring the juror in, advise him that the court had received
his note, acknowledge that the pace of a trial can be slow, and ask him
whether he can continue to be fair and impartial. Thereafter, the juror
told the district court that he could remain fair and impartial to both
parties, neither party had any questions for the juror, and the juror was
returned to the jury without objection. We conclude that this record does
not demonstrate error.
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Hearsay and speculative testimony
Reed claims that the district court erred by admitting hearsay
statements into evidence. "Hearsay is an out-of-court statement offered in
evidence to prove the truth of the matter asserted and is inadmissible
unless [it falls] within an exemption or exception." Coleman v. State, 130
Nev. 321 P.3d 901, 905 (2014) (internal quotation marks and
citation omitted). Reed claims that the following statements were hearsay
and inadmissible:
First, Detective Jenkins testified that he felt that Holmes was
beginning to open up during a police interview because he made qualified
denials when responding to the last questions and said something like, "I
can't say anything because I'm the only one." The district court overruled
Reed's objection without identifying the grounds for its ruling. We
conclude that Holmes' statement was admissible because it was not
offered to prove the truth of the matter asserted but rather to show why
the detective believed that Holmes was beginning to open up. See NRS
51.035.
Second, Joshua Fort testified that Holmes' demeanor on the
night of the murder was, "Nervous. He was trying to get in contact with
[Richardson] pretty bad, saying -- saying that he needed to leave." The
district court overruled Reed's objection without identifying the grounds
for its ruling. We conclude that Holmes' statement was admissible under
the "then existing state of mind" exception to the hearsay rule. NRS
51.105(1).
Third, Detective Chalmers testified that he asked Holmes
"when [was] the last time he had been to Reno" and Holmes answered that
"he had never been to Reno." Reed objected on hearsay grounds and the
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district court overruled his objection without identifying the grounds for
its ruling. We conclude that Holmes' statement was admissible because it
was not offered to prove the truth of the matter asserted but rather to
show that Holmes tried to conceal the existence of the conspiracy. See
NRS 51.035(3)(e); Holmes v. State, 129 Nev. , 306 P.3d 415, 422
(2013) (the coconspirator exception to the hearsay rule extends to
affirmative acts of concealment).
Fourth, Detective Chalmers testified that the warrant for
Reed's arrest contained "Holmes' denials of knowing people [the detective]
knew him to know." Reed objected on hearsay grounds and the district
court overruled his objection without identifying the grounds for its ruling.
We conclude that Holmes' statement was admissible to show his
affirmative attempt to conceal the conspiracy. See NRS 51.035(3)(e);
Holmes, 129 Nev. at , 306 P.3d at 422.
Reed further claims that the district court erred by admitting
speculative testimony into evidence. Detective Chalmers testified that
based on his investigation he had reason to believe that Holmes knew
Reed. Reed did not object to this testimony and we conclude that he has
not demonstrated plain error because there was no error—the detective
gave an opinion that was based on his perception of his investigation and
helpful to "the determination of a fact in issue." NRS 50.265 (opinion
testimony); Gallego, 117 Nev. at 365, 23 P.3d at 239 (reviewing
unpreserved claims for plain error).
Impeachment evidence
Reed claims that the district court erred when it allowed the
State to introduce the preliminary hearing testimony of an unavailable
witness but refused to allow him to impeach that witness's preliminary
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hearing testimony with videotape evidence. "We review a district court's
decision to admit or exclude evidence for an abuse of discretion." Mclellan
u. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008).
The record reveals that Reed moved to introduce a videotape
of Richardson's first police interview into evidence. Reed stated that he
wished to impeach Richardson's preliminary hearing testimony with the
inconsistent statements that Richardson made during that interview. The
State responded that there were three police interviews and that it would
seek to have all of the interview videotapes admitted to show that
Richardson's statements became consistent as the interviews progressed.
The State further indicated that Reed's defense counsel had this
information when he cross-examined Richardson during the preliminary
hearing. The district court refused to rule on Reed's motion until it had
reviewed the three videotapes.
The district court subsequently informed Reed that this court
had previously ruled, "if the declarant testifies at trial, or at a hearing,
and is subject to cross-examination, then you cannot bring in extra judicial
statements later." The district court told Reed that it did not believe that
Richardson's prior inconsistent statements were admissible, it provided
Reed with a copy of Kaplan v. State, 99 Nev. 449, 663 P.2d 1190 (1983),
and it asked Reed to read the case so that he could argue the matter. The
district court further noted that Richardson was no longer unavailable and
offered to recess the trial so that Richardson's presence could be secured
and Reed could examine him for impeachment purposes. The district
court also asked Reed if he wished to examine Detective Chalmers
regarding Richardson's inconsistent statements. ReedS affirmatively
declined to read the case or to examine Richardson and Chalmers for
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impeachment purposes. We conclude that this record does not
demonstrate that the district court abused its discretion by excluding the
videotape evidence.
Witness vouching
Reed claims that "the district court erred by allowing a State's
witness to vouch for the credibility of another State's witness who was not
subject to cross-examination at trial."
Detective Chalmers testified about the letters that Reed wrote
while he was in the county jail. In one letter, Reed wrote "that he just
received word that [Richardson] may not testify against him and that he
thinks that is extremely relevant that he won't testify and that he may be
out by his next court• date." Chalmers' stated that this letter was
important to his investigation because "it provides credibility to Jaffar
Richardson. . . . Because Mr. Reed notes in the first letter that without
[Richardson] there are no live witnesses. It shows me that he is concerned
about what Mr. Richardson's testimony is going to be."
Reed did not timely object to this testimony on witness
vouching grounds, so we review for plain error. See NRS 47.040(1)(a);
Kelly v. State, 93 Nev. 154, 156, 561 P.2d 449,449-50 (1977). We conclude
that Reed has not demonstrated plain error because the alleged error does
not appear plainly on the record—the record indicates that the detective
was merely trying to explain why Reed's letters were important to his
investigation.
Cumulative error
Reed claims that cumulative error deprived him of a fair trial
and requires reversal of his conviction. However, Reed has failed to
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demonstrate any error, and we conclude that he was not deprived of a fair
trial due to cumulative error.
Having concluded that Reed is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
, J.
Parraguirre Saitta
cc: Hon. Janet J. Berry, District Judge
Law Office of Thomas L. Qualls, Ltd.
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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