misconduct; and (10) the jury selection process violated Randolph's
constitutional rights. We disagree.'
Post-trial pro se motions
Randolph argues that his due process rights were violated by
the district court when it declined to file his pro se motions to set aside the
verdict, enter a judgment of acquittal, and for a new trial, pursuant to
EDCR 3.70.
EDCR 3.70 states:
Except as may be required by the provisions of
NRS 34.730 to 34.830, inclusive, all motions,
petitions, pleadings or other papers delivered to
the clerk of the court by a defendant who has
counsel of record will not be filed but must be
marked with the date received and a copy
forwarded to that attorney for such consideration
as counsel deems appropriate. This rule does not
apply to applications made pursuant to Rule
7.40(b)(2)(ii).
Criminal defendants represented by counsel typically may not
file pro se motions. United States v. Gallardo, 915 F. Supp. 216, 218 n.1
(D. Nev. 1995); see also Carter v. State, 713 So. 2d 1103, 1104 (Fla. Dist.
Ct. App. 1998). The rule is "an aspect of the doctrine that an accused can
proceed by counsel or pro se but not in both capacities at the same time."
People v. Neal, 675 N.E.2d 130, 131 (Ill. App. Ct. 1996); State v. Muse, 637
S.W.2d 468, 470 (Tenn. Crim. App. 1982). Other jurisdictions have similar
limitations on the filing of pro se motions by represented criminal
'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.
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defendants. See, e.g., Mont. R. App. P. 10(1)(c); N.M. Dist. Ct. R. Crim. P.
5-103(E).
This court has previously considered EDCR 3.70 in Craine v.
Eighth Judicial Dist. Court, 107 Nev. 554, 556-57, 816 P.2d 451, 452
(1991). In Craine we held that EDCR 3.70 does not bar "notices of appeal
or other documents associated with an appeal that are submitted for filing
by persons acting in proper person." Id. at 557, 816 P.2d at 452. This
court reasoned that "[t]he right to appeal is basic to the fundamental
notions of fairness that underlie our judicial system," and it could not
"allow the operation of a local rule of procedure or the actions of a court
clerk to impair the right of any person to prosecute an appeal to this
court." Id. at 556, 816 P.2d at 452.
Similarly, the United States Court of Appeals for the Fifth
Circuit in Tarter v. Hury, stated that:
[a]s long as a criminal defendant is represented by
counsel, he will be able to present matters for
decision to the court through motions filed by his
attorney. Therefore, in the absence of
extraordinary circumstances . . due process does
not require that a criminal defendant be permitted
to file every pro se motion he wishes to submit in
addition to his attorney's motions.
646 F.2d 1010, 1014 (5th Cir. 1981). However, that court further noted
that "extraordinary circumstances may exist in a particular case so that
the refusal to docket a pro se motion could deprive a defendant of an
opportunity to present an issue to the court." Id.
Here, we conclude that Randolph's argument lacks merit. A
motion to set aside the verdict and enter a judgment of acquittal and a
motion for a new trial are neither the equivalent of a notice of appeal nor
extraordinary circumstances and are not part of the same "fundamental
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notions of fairness that underlie our judicial system that this court relied
on in Craine. 107 Nev. at 556-57, 816 P.2d at 452. Thus, the operation of
EDCR 3.70 did not violate Randolph's due process rights.
Sufficiency of the evidence
The standard of review for a challenge to the sufficiency of the
evidence is "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Rose u. State,
123 Nev. 194, 202, 163 P.3d 408, 414 (2007) (internal quotations omitted).
In rendering its decision, the jury is tasked with "assess[ing] the weight of
the evidence and determin[ing] the credibility of witnesses." Id. at 202-03,
163 P.3d at 414 (internal quotations omitted). A jury is free to rely on
both direct and circumstantial evidence in returning its verdict. Wilkins v.
State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). This court has
consistently held that "circumstantial evidence may constitute the sole
basis for a conviction." Canape v. State, 109 Nev. 864, 869, 859 P.2d 1023,
1026 (1993); see also Deueroux v. State, 96 Nev. 388, 391, 610 P.2d 722,
724 (1980).
Randolph argues that the evidence in his case was insufficient
to prove "willfulness, deliberation, and premeditation beyond a reasonable
doubt." Randolph cites Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465,
481 (2008), as support for his argument that the undisputed evidence of
his impaired cognitive function negated the elements of willfulness,
deliberation, and premeditation. 2
2 Randolph also argues that the prosecution's evidence of intent to
kill was insufficient because no one saw Randolph point the gun at the
decedent and fire, and because the coroner only found a partial bullet in
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Randolph's citation to Valdez is misplaced. Although this
court did conclude in Valdez that the "expert witness testimony that [the
defendant] suffered from cognitive impairment that limited his ability to
exercise good judgment and control his impulses," made the evidence of
guilt "not overwhelming," that analysis was in the context of cumulative
error. 124 Nev. at 1196, 196 P.3d at 481. Further, this court also
specifically stated that the evidence put forth by the prosecution in Valdez
was sufficient for a first-degree murder conviction. Id. Therefore, there
may be sufficient evidence to convict a defendant of first-degree murder,
even when the defendant proffers evidence of impaired cognitive function.
Jury instructions
Randolph argues that the district court erred when it failed to
include Randolph's requested instructions and failed to instruct the jury
on Randolph's theory of defense.
Proposed jury instructions
Randolph's proposed jury instructions provided separate jury
instructions defining willfulness, deliberation, and premeditation rather
than the instructions combining the definitions as set forth in Byford v.
State, 116 Nev. 215, 236-37, 994 P.2d 700, 714-15 (2000). Randolph also
contends that the district court erred by combining the definitions of
premeditation and deliberation in jury instructions 8 and 9. We disagree.
...continued
the decedent, suggesting Randolph only meant to scare the decedent when
he fired. We conclude Randolph's arguments on these issues lack merit.
Multiple witnesses heard Randolph threaten the decedent and saw him
walk toward the decedent while shooting the gun.
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First of all, "[t]he district court has broad discretion to settle
jury instructions." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582,
585 (2005). And we review a district court's decision to give or reject a
proposed jury instruction for "an abuse of discretion or judicial error." Id.
"An abuse of discretion occurs if the district court's decision is arbitrary or
capricious or if it exceeds the bounds of the law or reason." Jackson v.
State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001). However, we review
whether an instruction was an accurate statement of law de novo.
Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009).
This court has set forth specific jury instructions defining
willfulness, deliberation, and premeditation for purposes of a first degree
murder charge. See Byford, 116 Nev. at 236-37, 994 P.2d at 714-15. Here,
Randolph argues separate jury instructions were necessary because the
jury must find each element separately beyond a reasonable doubt.
However, as proscribed in Byford, the jury instructions already specify
that "[a]1l three elements—willfulness, deliberation and premediation-
must be proven beyond a reasonable doubt before an accused can be
convicted of first-degree murder." We conclude separate instructions for
each element are not necessary. Thus, the district court did not abuse its
discretion when it refused to give further instructions because the district
court gave the required Byford instructions.
Theory of defense
Randolph also argues that the district court erred in failing to
instruct the jury on his theory of defense that the state failed to prove the
elements of premeditation and deliberation.
"A defendant has the right to have the jury instructed on [his
or her] theory of the case as disclosed by the evidence, no matter how weak
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or incredible that evidence may be." Davis v. State, 130 Nev. , 321
P.3d 867, 871 (2014) (alterations in original) (internal quotations omitted).
"If a defense theory of the case is supported by some evidence which, if
believed, would support a corresponding jury verdict, failure to instruct on
that theory totally removes it from the jury's consideration and constitutes
reversible error." Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261
(1983). However, "[w]here the district court refuses a jury instruction on
defendant's theory of the case that is substantially covered by other
instructions, it does not commit reversible error." Earl v. State, 111 Nev.
1304, 1308, 904 P.2d 1029, 1031 (1995).
In the present case, the district court gave jury instructions
that supported Randolph's theory of defense, although it refused to give
the specific instructions Randolph proposed. Accordingly, there was no
error.
Confrontation Clause
Randolph argues that the district court violated his rights
under the Confrontation Clause when it permitted testimony by a forensic
pathologist rather than the coroner who performed the autopsy and wrote
the report. We conclude that the testimony of Dr. Lisa Gavin, a forensic
pathologist, in lieu of the coroner who conducted the autopsy, did not
implicate the Confrontation Clause because Dr. Gavin offered testimony
as to her own opinions as an expert witness and not as to the opinions of
the coroner. Further, even if Dr. Gavin's testimony implicated the
Confrontation Clause, any error was harmless.
To the extent that Randolph challenges Dr. Gavin's testimony
because Dr. Gavin lacked personal knowledge of the autopsy, we conclude
that Randolph's claim lacks merit. Dr. Gavin testified as an expert
witness to matters "within the scope of [her specialized] knowledge," NRS
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50.275, based on facts or data "made known to the expert at or before the
hearing," NRS 50.285(1), that are "of a type reasonably relied upon by
experts in forming opinions or inferences" and therefore "need not be
admissible in evidence," NRS 50.285(2). Here, the vast majority of Dr.
Gavin's testimony reflected her independent interpretation of photographs
taken at the autopsy and therefore this testimony was properly-admissible
expert opinion.
Further, even assuming the autopsy report was testimonial
hearsay, and therefore that Dr. Gavin's testimony based on that report
violated Randolph's confrontation rights, we conclude that any error from
its admission was harmless. Dr. Gavin's testimony was not pivotal to the
outcome of this case in that several witnesses testified that they heard
Randolph threaten the decedent. Multiple witnesses testified at trial as to
watching Randolph walk toward the decedent while shooting the gun.
Another witness also testified that he told detectives that he saw the
decedent get shot in the hip.
Prejudicial error by permitting exhibit 67
Randolph argues that the district court erred when it
permitted the jury to view exhibit 67, an autopsy photo, because it was
irrelevant and gruesome.
"Admission of evidence is within the trial court's sound
discretion; this court will respect the trial court's determination as long as
it is not manifestly wrong." Colon v. State, 113 Nev. 484, 491, 938 P.2d
714, 719 (1997). Generally, "[photographic evidence is admissible unless
the photographs are so gruesome as to shock and inflame the jury."
Wesley v. State, 112 Nev. 503, 513, 916 P.2d 793, 800 (1996). The
photographs must also be relevant; relevant evidence is "evidence having
any tendency to make the existence of any fact that is of consequence to
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the determination of the action more or less probable than it would be
without the evidence." NRS 48.015.
Here, the district court admitted the photograph because it
"felt . . . that the jury ought to have a sense of the [decedent] appearance-
wise." The district court further noted that "[t]here's no blood or wounds
[or] anything of consequence, so [it did not] think [it was] unduly gory."
Although the reasoning put forth by the district court may not strongly
support the photograph's relevancy, we conclude the photo was not
patently gruesome and therefore, not prejudicial. Thus, the district court's
admission of the photograph was not "manifestly wrong." Colon, 113 Nev.
at 491, 938 P.2d at 719.
Failure to strike the death penalty notice at the Atkins 3 hearing
Randolph argues that the district court should have stricken
the death penalty because the Eighth Amendment prohibits the State
from executing an intellectually disabled person. 4 The State counters that
the issue of intellectual disability is moot because Randolph agreed to let a
judge sentence him in exchange for the death penalty being removed as a
sentencing option. "When a live controversy become[s] moot by the
occurrence of subsequent events, we will not make legal determinations
that cannot affect the outcome of the case." Stephens Media, LLC v.
Eighth Judicial Dist. Court, 125 Nev. 849, 858, 221 P.3d 1240, 1246-47
3Atkins v. Virginia, 536 U.S. 304 (2002); see also NRS 174.098.
4 Randolph also argues that the death penalty is unconstitutional.
We need not consider the issue because he did not put forth a cogent
argument and "[i]t is appellant's responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
6 (1987).
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(2009) (alteration in original) (internal quotation marks omitted). Because
the State and Randolph entered into a stipulation that removed the death
penalty as a sentencing option, we conclude the issue of Randolph's
intellectual disability is moot.
Randolph's motions for new counsel
Randolph argues that the district court erred by not properly
conducting an evidentiary hearing on his motions for a new attorney. 5 To
determine if the district court abused its discretion in denying a motion for
substituted counsel, we examine: -0.) the extent of the conflict; (2) the
adequacy of the inquiry; and (3) the timeliness of the motion." 6 Young v.
State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (quoting United States
v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). "[I]f the complete
collapse of the attorney-client relationship is evident, a refusal to
substitute counsel violates a defendant's Sixth Amendment rights." Id. at
969, 102 P.3d at 576. However, lalbsent 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." Id. at 968, 102 P.3d at
576. "We review the denial of a motion for substitution of counsel for
abuse of discretion." Id.
°Randolph also argues that the district court erred by not directly
addressing his request to represent himself. After careful consideration,
we conclude Randolph's arguments on this issue lack merit.
6 Randolph further argues that the district court did not hold a
Young v. State, 120 Nev. 963, 102 P.3d 572 (2004), hearing until after he
made motions and "shortly before trial." However, we conclude this
argument lacks merit because the trial occurred over a year after the
Young hearing.
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Under the specific facts of this case, we cannot conclude that
the district court's denial of Randolph's motion for new counsel or decision
not to hold an evidentiary hearing was an abuse of discretion.
The district court's canvass of Randolph
Randolph argues that the district court's questioning of him
before trial was not a sufficient canvass to show that he knowingly and
voluntarily consented to an admission of guilt. Randolph did not object to
the canvass, thus this court will review his claim for plain error. Armenta-
Carpi° v. State, 129 Nev. „ 306 P.3d 395, 397 (2013).
Pursuant to Hernandez v. State, "[alt a minimum, the district
court should canvass the defendant outside the presence of the State and
the jury to determine whether the defendant has consented to the
concession of guilt and that the defendant's consent is voluntary and
knowing." 124 Nev. 978, 990, 194 P.3d 1235, 1243 (2008), overruled by
Armenta-Carpio v. State, 129 Nev. , 306 P.3d 395 (2013).
Here, once the district court became aware that Randolph's
attorney planned to concede guilt, it had the State leave the room and
asked Randolph about his attorney's planned concession. The district
court repeated the concession that Randolph's attorney planned on
making and asked if he understood, had a problem with counsel's
argument, had any questions for the court, and whether he was satisfied
that he understood. Randolph repeated that he understood, he did not
have a problem with the argument, and that he did not have any
questions for the court. Thus, we conclude that the district court did not
commit plain error.
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Prosecutorial misconduct
Randolph argues that the prosecutor committed misconduct
during his closing statement because he characterized Randolph's expert
witness as a liar. We disagree.
In reviewing claims of prosecutorial misconduct, this court
must first determine if the conduct was improper and, if so, whether the
conduct warrants reversal. Valdez v. State, 124 Nev. 1172, 1188-89, 196
P.3d 465, 476-77 (2008). "[T]his court will not reverse a conviction based
on prosecutorial misconduct if it was harmless error. . . . If the error is not
of constitutional dimension, [this court] will reverse only if the error
substantially affects the jury's verdict." Id. at 1188-89, 196 P.3d at 476.
But, "[i]f the error is of constitutional dimension, then . . [this court] will
reverse unless [it is shown], beyond a reasonable doubt, that the error did
not contribute to the verdict." Id. at 1189, 196 P.3d at 476. "The
[prosecutor's] statements should be considered in context ... ." Thomas v.
State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004).
"[P]rosecutorial misconduct results when a prosecutor's
statements so infect[ ] the proceedings with unfairness as to make the
results a denial of due process." Browning v. State, 124 Nev. 517, 533, 188
P.3d 60, 72 (2008) (internal quotations omitted) (alterations in original).
It is improper for the prosecutor to "characterize a witness as a liar," or
add his own opinion about the guilt of the accused. Ross v. State, 106 Nev.
924, 927, 803 P.2d 1104, 1105 (1990); Yates v. State, 103 Nev. 200, 203,
734 P.2d 1252, 1254 (1987).
Randolph argues that the prosecutor insinuated that Dr. Kern
was a liar. Randolph further takes issue with three comments from the
prosecutor: first, his statement that "there is no not guilty by mental
retardation;" second, when the prosecutor stated that "[Dr.] Kern was paid
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and retained by defense counsel to give them an opinion [on Randolph's
mental retardation] and third, when the prosecutor commented and
argued that "[Dr. Kern] tailored his testimony to fit the defense's
perspective and defense case in this case." Randolph further argues that
the prosecutor mischaracterized Dr. Kern's testimony.
We conclude that Randolph's argument lacks merit. At no
point did the prosecutor say that Dr. Kern was a liar or a fraud. The
prosecutor did state that "[Dr.] Kern was paid and retained by defense
counsel to give them an opinion [on Randolph's mental retardation]."
When Randolph objected, the prosecutor explained that his "comments
and. .. argument is that [Dr. Kern] certainly tailored his testimony to fit
the defense's perspective and defense case in this case." The prosecutor
"may argue the evidence and inferences before the jury[, but] .. . [the
prosecutor] may not heap verbal abuse on a witness nor characterize a
witness as a perjurer or a fraud." Yates, 103 Nev. at 204-05, 734 P.2d at
1255. The prosecutor's statements did not characterize Dr. Kern as a
"perjurer or a fraud." Id.
Jury selection
Randolph argues that the district court erred when it denied
Randolph's jury questionnaire. Randolph further argues that the jury
venire did not represent a fair cross-section of the community because
there were no African-Americans, and that there were too few people in
the venire. Lastly, Randolph argues that the district court improperly
changed the random selection process.
Randolph's jury questionnaire
Randolph argues that the district court erred when it declined
to use his proposed jury questionnaire. "Decisions concerning the scope of
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voir dire and the manner in which it is conducted are reviewable only for
abuse of discretion, and draw considerable deference on appeal." Lamb v.
State, 127 Nev. „ 251 P.3d 700, 707 (2011) (citations omitted)
(internal quotations omitted). In Lamb, this court upheld a district court's
oral questioning, which addressed the topic put forth in the defendant's
questionnaire, rather than use the defendant's proposed questionnaire.
Id. at ,251 P.3d at 707-08.
Along with general background information and the potential
juror's experience with and opinion of the criminal justice system,
Randolph's proposed jury questionnaire asked questions about the death
penalty. The district court permitted both the State and Randolph to
address and question the prospective jurors in a panel, as well as
individually. Further, potential jurors were asked about his or her
feelings and opinion on the death penalty, and sentencing. Therefore, we
conclude that the district court did not abuse its discretion when it
declined to use Randolph's proposed jury questionnaire.
Cross-section of society
Randolph argues that the district court erred when it did not
expand the jury venire with the goal of adding an African-American.
However, Randolph has put forth no evidence of systematic exclusion, and
did not attempt to procure demographic information.
The Sixth and Fourteenth Amendments guarantee the
defendant a jury venire from a fair cross-section of the community
Williams v. State, 121 Nev. 934, 939-40, 125 P.3d 627, 631 (2005).
However,
Nile Sixth Amendment does not guarantee a jury
or even a venire that is a perfect cross section of
the community. Instead, the Sixth Amendment
only requires that "'venires from which juries are
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drawn must not systematically exclude distinctive
groups in the community and thereby fail to be
reasonably representative thereof."
Id. at 939-40, 125 P.3d at 631 (quoting Evans v. State, 112 Nev. 1172,
1186, 926 P.2d 265, 274 (1996)). The defendant must show the following
to make a prima facie case for a fair-cross-section requirement:
(1) that the group alleged to be excluded is a
distinctive group in the community; (2) that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and (3) that this underrepresentation
is due to systematic exclusion of the group in the
jury-selection process.
Id. at 940, 125 P.3d at 631 (internal quotations omitted).
Here, Randolph argues that the district court does not keep
statistics about the jury venire process, but the record does not indicate
that Randolph ever asked the court for jury venire statistics. Although
Randolph's attorney argued to the district court that the venire in the
room with her did not include African Americans, the Sixth Amendment
right does not guarantee Randolph specifically a venire that "is a perfect
cross section of the community." Id. at 939, 125 P.3d at 631. Thus, we
conclude Randolph's argument lacks merit because Randolph never
requested the necessary statistics and he failed to show "systematic[ ]
exclu[sion]." Id. at 939-40, 125 P.3d at 631.
The random selection process
Randolph argues that the district court erred when the court
clerk called twelve potential jurors for voir dire, but did not call them in
numerical order. Randolph argues that his due process rights were
violated when "the district court took prospective jurors out of the random
process that is in place." However, Randolph cites to no authority for the
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proposition that he is entitled to a random selection of jurors, and
therefore, this court will not consider the issue. 7 Maresca v. State, 103
Nev. 669, 673, 748 P.2d 3, 6 (1987).
Having considered Randolph's contentions and concluded that
they do not warrant reversal, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
A r. t.getAin k
J.
Douglas
cc: Chief Judge, The Eighth Judicial District Court
Hon. J. Charles Thompson, Senior Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
7 Randolph also argues that cumulative error warrants reversal.
However, because we conclude any error committed by the district court
was harmless, reversal is not warranted. See Valdez v. State, 124 Nev.
1172, 1188-89, 196 P.3d 465, 476 (2008); Mulder v. State, 116 Nev. 1, 17,
992 P.2d 845, 854-55 (2000).
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