969, 102 P.3d at 576. Additionally, a district court may not summarily
deny a motion for new counsel when the motion is made considerably in
advance of trial. Id. at 968, 102 P.3d at 576. When reviewing a denial of a
motion to substitute counsel, we consider: "(1) the extent of the conflict; (2)
the adequacy of the inquiry; and (3) the timeliness of the motion." Id.
(internal quotation marks omitted). A defendant "may not, as a matter of
law, create a conflict requiring substitution of appointed counsel." Id. at
971, 102 P.3d at 578.
Lowe began requesting new counsel as soon as the public
defender's office was re-appointed following retained counsel's withdrawal
due to a breakdown in the attorney-client relationship. Initially, Lowe
indicated he wanted to represent himself, and the district court scheduled
the matter for a canvass pursuant to Faretta v. California, 422 U.S. 806,
835 (1975). Upon further inquiry, Lowe stated that he would retain
counsel if he was out of custody but would represent himself if he
remained incarcerated pending trial. The district court appointed the
public defender's office for the limited purpose of representing Lowe on a
motion to increase his bail, but Lowe alleged that he had a conflict of
interest with the public defender (PD1) who appeared on his behalf at the
preliminary hearing. After hearing from Lowe on the alleged conflict of
interest, the district court determined that there was no conflict of interest
but that Lowe was merely dissatisfied with PD1. At the next hearing,
Lowe alleged a conflict of interest with the public defender (PD2)
appearing on his behalf, simply stating he knew counsel from a club. By
the next court date, a different public defender (PD3) appeared for the
motion to increase bail, which the district court granted. Lowe again
indicated that, because he would remain in jail, he wanted to represent
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himself. The district court conducted the Faretta canvass and deemed
Lowe competent to represent himself. After the district court appointed
the public defender's office to act as standby counsel, Lowe stated, "I want
a Public Defender. Give me a Public Defender."
When Lowe started leaving messages for PD2 that he was
going to file documents against her with the State Bar and this court and
accusing her of colluding with the State in order to convict him, PD2
sought to withdraw on behalf of the entire office. The district court
determined that it was Lowe's behavior creating the problem and that
there was a conflict with PD2 but not with the entire office. Lowe
subsequently made numerous motions to dismiss PD3, beginning months
prior to trial and continuing until the day of opening argument. For each
motion, it appears from the record that the district court inquired into
Lowe's reasons for the withdrawal, allowed counsel a chance to respond to
the allegations, and ultimately denied the motions. At one juncture, the
district court noted that Lowe continually filed motions with bare
allegations unsupported by any facts; however, Lowe was still afforded an
opportunity to make a record of his allegations that PD3 had not visited
him, investigated, filed any motions, or issued subpoenas, and refused to
file a writ petition.
Having considered the relevant factors, we conclude that the
district court did not abuse its discretion in denying Lowe's motions to
dismiss counsel and appoint alternate counsel. See Young, 120 Nev. at
970, 102 P.3d at 577 (considering, among other factors, whether defendant
filed his motions for dilatory tactics or bad faith interference with the
administration of justice). Additionally, it does not appear from the record
that there was a complete collapse in the attorney-client relationship, as
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Lowe was able to discuss discovery and potential witnesses with PD3 in
preparation for trial.
Second, Lowe contends that the district court abused its
discretion by allowing the State's domestic violence expert to testify at
trial. Lowe argues that the testimony did not assist the jury, was more
prejudicial than probative, vouched for witnesses, and was in violation of
NRS 48.061(2), which states that "[e]xpert testimony concerning the effect
of domestic violence may not be offered against a defendant . . . to prove
the occurrence of an act which forms the basis of a criminal charge against
the defendant."
At trial, the witness testified consistently with the State's
pretrial notice as an expert on power and control dynamics, victim
behavior in domestic violence relationships, and generally the cycle of
abuse. The testimony was based upon the witness's specialized knowledge
of, and extensive work with, victims and perpetrators of domestic abuse
and was relevant to explain to a layperson why a victim of abuse might
maintain contact or remain in a relationship with an abuser, recant a
report of abuse, or minimize the abusive behavior. The witness testified
that she had never met Lowe or the victim, and she was not asked about,
nor did she offer, an opinion of other witnesses' credibility or Lowe's guilt.
The witness did not testify to matters precluded by NRS 48.061(2) or to
prior bad acts, the testimony was highly probative, and the probative
value was not substantially outweighed by unfair prejudice. As to Lowe's
argument that the witness's testimony was not the product of reliable
methodology, we have held that the factors enumerated in Hallmark v.
Eldridge, 124 Nev. 492, 500-01, 189 P.3d 646, 651-52 (2008), "may be
afforded varying weights and may not apply equally in every case" and
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that lilt is up to the district court judge to make the determination
regarding the varying factors," Higgs v. State, 126 Nev. 1, 20, 222 P.3d
648, 660 (2010). We conclude that the district court did not abuse its
discretion by allowing the testimony of the State's expert witness on
domestic violence. See Perez v. State, 129 Nev. , , 313 P.3d 862, 866-
70 (2013).
Third, Lowe contends that the prosecutor committed
numerous instances of misconduct by repeatedly arguing that the victim
was a liar. Lowe failed to object to these comments, and we review for
plain error. NRS 178.602; Rose v. State, 123 Nev. 194, 208-09, 163 P.3d
408, 418 (2007). It is improper to characterize a witness as a liar or a
witness's testimony as a lie, but to represent to the jury that testimony
might be incredible or to demonstrate through inferences that a witness's
testimony is palpably untrue is within the confines of proper argument.
Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990). During
closing and rebuttal arguments, the prosecutor outlined the
inconsistencies between the victim's statements the night of the incident
and her subsequent preliminary hearing and trial testimony, in which she
claimed not to remember anything because of drug abuse. The prosecutor
argued that the victim was lying and referenced evidence presented at
trial to support this argument. While we have held that "reasonable
latitude should be given to the prosecutor to argue the credibility of the
witness—even if this means occasionally stating in argument that a
witness is lying," in this case, the prosecutor repeatedly argued that the
victim was a liar and that was in error. Rowland v. State, 118 Nev. 31, 39,
39 P.3d 114, 119 (2002). However, we conclude that the prosecutor's
argument does not amount to plain error as Lowe has not shown that the
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argument prejudiced him or affected his substantial rights. See NRS
178.602; Rose, 123 Nev. at 208-09, 163 P.3d at 418.
Fourth, Lowe contends that cumulative error requires reversal
of his convictions. Because Lowe demonstrates only one error, we
conclude that he is not entitled to relief on this claim. See United Sates v.
Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative
error.").
Having considered Lowe's contentions and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
Att., J.
Pickering
4:24
M:Lar.„ ./
J.
Pgfl
J.
Saitta
cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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