garbage, one block from the school. Latent fingerprint analysis identified
two prints on the gun that were matched to Garcia. Cartridge casings
from the scene of the shooting matched the gun to Gamboa's shooting. We
conclude that the jury could reasonably infer from the evidence presented
that Garcia intentionally killed Victor Gamboa with malice aforethought.
See NRS 200.030(2); Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439
(1975) ("Mt is the function of the jury, not the appellate court, to weigh
the evidence and pass upon the credibility of the witness.").
Second, Garcia contends that the district court erred in
denying his motion to suppress evidence of MG's identification of Garcia at
the preliminary hearing on the ground that the identification was not
reliable. We review a district court's ruling on a motion to suppress
identification testimony for abuse of discretion because it is an evidentiary
decision. See Mclellan v. State, 124 Nev. 263, 269, 182 P.3d 106, 110
(2008). An in-court identification must be unnecessarily or impermissibly
suggestive, creating a risk of irreparable misidentification, to warrant
suppression under Stovall v. Denno, 388 U.S. 293, 301-02(1967), and this
risk is less present when an identifying witness is subject to immediate
challenge by cross-examination. Baker v. Hocker, 496 F.2d 615, 617 (9th
Cir. 1974); see United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.
1986) (noting problem with suggestive pretrial identifications is that
witness later identifies individual in court on basis of prior suggestive
identification, rather than from personal recollection); Baker v. State, 88
Nev. 369, 374 n.3, 498 P.2d 1310, 1313 n.3 (1972) (observing that other
jurisdictions had reversed where a suggestive identification at preliminary
hearing tainted witness's trial identification). MG did not identify Garcia
at trial as the perpetrator—rather, she acknowledged that she identified
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the shooter at the 2008 preliminary hearing and stated that she did not
recognize him at the 2013 trial—and, accordingly, MG's prior
identification did not taint her trial testimony. The district court
considered the issue of MG's prior identification moot because she did not
identify him at trial. MG's identification of Garcia at the preliminary
hearing did not constitute a reversible due process violation when MG was
subject to immediate and thorough cross-examination at the preliminary
hearing and at trial and did not identify Garcia at trial. We conclude that
the district court did not abuse its discretion.
Third, Garcia argues that the district court erred in denying
his motion to compel a psychological examination of JH, who he argued
was rendered incompetent to testify by a brain injury. This court will
uphold the district court's finding of competency absent a clear abuse of
discretion, Evans v. State, 117 Nev. 609, 624, 28 P.3d 498, 509 (2001), and
its decision whether to deny a request for a psychological examination for
an abuse of discretion, Abbott v. State, 122 Nev. 715, 723, 138 P.3d 462,
467 (2006). The district court should order an examination when a
defendant demonstrates a compelling need for an examination, taking into
account whether there is little or no corroboration of the offense beyond
the challenged testimony and whether reasonable grounds support that
the victim's mental state has affected his veracity. Id. at 723-25, 138 P.3d
at 468-69. The district court found that JH was able to perceive an event
and competently relate it back and that contradictory assertions in his
statements were subjects for cross-examination. The district court further
ordered disclosure of JH's medical records for examination by Garcia's
expert. In his testimony, JH demonstrated an ability to present his
personal recollections without becoming confused and did not exhibit
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difficulties when Garcia's counsel attempted to confuse him during cross-
examination, such that no compelling need for a psychological
examination was evident. Having considered the record, we conclude that
the district court did not abuse its discretion in denying Garcia's motion
for a psychological examination.
Fourth, Garcia argues that his due process rights were
violated when EC testified in shackles pursuant to a material witness
warrant because this bolstered EC's credibility. Courts should not compel
an incarcerated witness to appear in prisoner attire absent unusual
circumstances. Hightower v. State, 123 Nev. 55, 59, 154 P.3d 639, 642
(2007). The defendant bears the burden to timely request that an
incarcerated witness not appear in prisoner attire. Id. Garcia failed to
timely object to EC's appearance or request that he appear without
shackles. We therefore review his allegations of error for plain error.
Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001), abrogated on
other grounds by Nunnery v. State, 127 Nev. Adv. Op. 69, 263 P.3d 235
(2011). Garcia offers no support for his argument that the jury would give
EC greater credibility because he appeared in shackles. See Hightower,
123 Nev. at 58, 154 P.3d at 641 (noting this court's prior observation that
courts have almost uniformly recognized that appearing in prison clothing
may undermine the witness's credibility). Further, Garcia's counsel drew
attention to EC's detention in beginning cross-examination and his
handcuffs during closing argument. We conclude that Garcia has not
demonstrated plain error.
Fifth, Garcia argues that the State committed prosecutorial
misconduct by presenting prejudicial evidence in support of a gang
enhancement when the trial evidence did not meet the statutory criteria
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for a criminal gang. We review claims of prosecutorial misconduct for
improper conduct and then for whether reversal is warranted. Valdez v.
State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). A group of persons
may constitute a criminal gang when it has (1) a common name or
identifying symbol; (2) particular conduct, status, and customs; and (3)
felonious activities as one of its common activities.' NRS 193.168(8). The
record shows that the discovery supported the State's decision to initially
charge Garcia with a gang enhancement: (1) in separate recorded
statements, EC, JH, and ML stated that Garcia was in their gang named
"Puros Locos" or "PL," and several purported members had "Puros Locos"
tattoos; (2) JH testified that he would participate in fights and spray paint
on walls as part of the gang; and (3) JH testified in an earlier trial
that he and ML had committed the felonious acts of giving away controlled
substances to other gang members who were under the age of 18, and
further that another gang member ordered him to kill someone. The State
promptly amended the indictment to remove the gang enhancement when
the district court concluded that trial testimony did not support the gang
enhancement and prevented the State's gang expert from testifying. We
conclude that the State's conduct was not improper because discovery
reasonably suggested that the evidence supported a gang enhancement, cf.
Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (holding
that a prosecutor may not argue facts or inferences not supported by the
evidence), and the State withdrew the enhancement when it could no
longer reasonably argue that the evidence satisfied NRS 193.168(8).
'Garcia's argument that the evidence did not show the felony
convictions necessary to establish a gang misstates the law, which
requires felonious acts, not convictions. NRS 193.168(8)(c).
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Having considered Garcia's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
Pairaguirre
Douglas
CC: Eighth Judicial District Court Dept. 15
Goodman Law Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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