IN THE SUPREME COURT OF THE STATE OF NEVADA
FRANK SMITH, No. 67431
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
MAR 1 7 2016
TRACE K. LNDEMAN
CLERK OF SUPREME COURT
BY '
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of burglary, home invasion, and first-degree murder. Second
Judicial District Court, Washoe County; Scott N. Freeman, Judge.
First, appellant Frank Smith contends that the district court
erred by denying his fair-cross-section challenge to the jury venire To
demonstrate a fair-cross-section violation, a defendant must show: (1) the
group alleged to be excluded is a distinctive group in the community; (2)
the representation of the 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) the underrepresentation is due to systematic exclusion
in the jury-selection process. Williams v. State, 121 Nev. 934, 940, 125
P.3d 627, 631 (2005). Here, when resolving the challenge, the district
court made several comments which suggested that it might be
considering factors other than the three identified above. Smith did not
object to the comments and therefore it is difficult to place them in
context. But even assuming that the district court erroneously considered
additional factors, we conclude that no relief is warranted. We reject
Smith's contention that this claim implicates structural error. See
Cortinas u. State, 124 Nev. 1013, 1024, 195 P.3d 315, 322 (2008)
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(explaining the narrow circumstances where a district court commits
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structural error). Instead, we will affirm if the district court reached the
right result, see Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970),
which it did because Smith failed to satisfy the second and third elements
of the challenge. Although Smith asserts that he was prevented from
satisfying these elements because the district court did not hold an
evidentiary hearing, he did not request a hearing nor allege sufficient
facts to warrant a hearing under the circumstances. See Cortes v. State,
127 Nev., Adv. Op. 4,260 P.3d 184, 187-88 (2011); see also Williams, 121
Nev. at 940, 125 P.3d at 631. Therefore, we conclude that no relief is
warranted on this claim.'
Second, Smith contends that the district court abused its
discretion by denying his motion to sever his trial from his codefendant's
because they had antagonistic defenses. See Marshall v. State, 118 Nev.
642, 646-47, 56 P.3d 376, 379 (2002) (explaining that this court will not
reverse a district court's decision regarding joinder absent an abuse of
discretion). We disagree.' Smith did not testify at trial or present
witnesses, but in closing argument his counsel claimed that the victim
'Smith's reliance on Buchanan v. State, 130 Nev., Adv. Op. 82, 335
P.3d 207 (2014), is misplaced because Buchanan holds "when a defendant
moves the court to strike a jury venire, and the district court determines
that an evidentiary hearing is warranted, it is structural error for the
district court to deny the defendant's challenge before holding that
hearing to determine the merits of the motion." (emphasis added).
'The State asserts that we should decline to review this claim
because, while Smith's codefendant moved to sever the trials, Smith did
not. Our review of the record indicates that Smith joined in the motion.
We note, however, that Smith erroneously includes in his appendix
documents relating to the motion to sever filed by his codefendant at their
prior trial.
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might have started the incident and Smith was only guilty of second-
degree murder. Smith's codefendant argued that the encounter started
before he arrived and Smith fired the fatal shot. We are not convinced
that these defenses are antagonistic See, e.g., Butler v. State, 797 S.W.2d
435, 437 (Ark. 1990) (discussing antagonistic defenses). Regardless,
"antagonistic defenses are a relevant consideration but not, in themselves,
sufficient grounds for concluding that joinder of defendants is prejudicial."
Id. at 648, 56 P.3d at 379. Instead, an appellant "must show that the joint
trial compromised a specific trial right or prevented the jury from making
a reliable judgment regarding guilt or innocence." Id. at 648, 56 P.3d at
380. Smith fails to make that showing.
Third, Smith contends that the district court abused its
discretion by allowing the State to introduce a surveillance video on the
grounds that it was unauthenticated and constituted inadmissible hearsay
evidence. 3 Having considered Smith's arguments and reviewed the record,
we are not convinced that the district court abused its discretion. See
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109(2008) (stating that
the district court's evidentiary decisions are reviewed for an abuse of
discretion). Appellant fails to convince us that the video constitutes
hearsay or that the district court abused its discretion by admitting it.
Therefore, we conclude that no relief is warranted on this claim.
3 Smith also contends that the State failed to preserve the original
surveillance video pursuant to Crockett v. State, 95 Nev. 859, 603 P.2d
1078 (1979). We decline to consider this assertion because Smith did not
raise it below. We note, however, that Smith offers no explanation as to
how the original video was exculpatory and all of the evidence in the
record suggests otherwise.
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Fourth, Smith contends that the district court erred by
allowing a detective to narrate the contents of the surveillance video. We
review the district court's decision to allow this testimony for an abuse of
discretion. See Burnside v. State, 131 Nev., Adv. Op. 40, 352 P.3d 627, 640
(2015). Smith fails to demonstrate that the district court abused its
discretion because most of the narration appropriately highlighted
portions of the video which were relevant to law enforcement's
investigation. Even assuming that some of the narration was improper
because it constituted an interpretation of the video, any error was
undoubtedly harmless given the nature of the video and the overwhelming
evidence against Smith. See Valdez v. State, 124 Nev. 1172, 1189, 196
P.3d 465, 476 (2008). Therefore, we conclude that no relief is warranted
on this claim.
Fifth, Smith contends that the district court erred by refusing
his proffered transition instruction. We review a district court's refusal to
give a jury instruction for an abuse of discretion and whether the
instruction was a correct statement of law de novo. See Nay v. State, 123
Nev. 326, 330, 167 P.3d 430, 433 (2007). The district court did not err or
abuse its discretion because the instruction given at trial was a correct
statement of law, see Green v. State, 119 Nev. 542, 547, 80 P.3d 93, 96
(2003), whereas the instruction proposed by Smith was misleading and
therefore he was not entitled to it, see Carter v. State, 121 Nev. 759, 765,
121 P.3d 592, 596 (2005) (holding that a defendant is not entitled to
misleading instructions). Therefore, we conclude that no relief is
warranted on this claim.
Sixth, Smith contends that the prosecutor inappropriately
shifted the burden of proof to him when questioning a witness. We
disagree. Smith asked a State's witness whether a piece of evidence she
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collected was on an exhibit list and she replied that it was not. 4 During
redirect, the prosecutor asked the witness if "anybody" had asked her to
bring evidence to court and the defense objected. The district court
properly overruled the defense's objection because this exchange did not
shift the burden of proof to the defense or suggest that the defense had a
duty to present evidence. See Barron v. State, 105 Nev. 767, 778, 783 P.2d
444, 451 (1989). Moreover, the jury was properly instructed regarding the
State's burden of proof. Therefore, we conclude that no relief is warranted
on this claim.
Seventh, Smith contends that the district court abused its
discretion at sentencing by relying solely upon a California juvenile
adjudication for murder when imposing sentence. We have consistently
afforded the district court wide discretion in its sentencing decision, see,
e.g., Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987), and will
refrain from interfering with the sentence imposed by the district court
"Islo long as the record does not demonstrate prejudice resulting from
consideration of information or accusations founded on facts supported
only by impalpable or highly suspect evidence," Silks v. State, 92 Nev. 91,
94, 545 P.2d 1159, 1161 (1976). But because Smith failed to object below,
we review for plain error. See Valdez, 124 Nev. at 1189, 196 P.3d at 476.
Smith fails to demonstrate plain error. Although he challenges the
validity of the adjudication and a description of it in his Presentence
Investigation Report, these documents have not been provided on appeal
4 Smith does not identify the evidence, but the record reflects that
the parties were referring to a curtain obtained from the crime scene.
Smith offers no explanation of the curtain's relevance and its probative
value is not apparent from the record.
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and we cannot say that they constitute highly suspect evidence. We note
that Smith essentially admitted he committed the acts forming the basis
of the adjudication at sentencing. And despite Smith's contention that the
district court's sole reliance on the adjudication was evidenced by the fact
that he received a different sentence from his codefendant, the district
court specifically stated that Smith's juvenile background, while relevant,
would not form the basis of the sentence. The district court also identified
numerous distinctions between Smith and his codefendant and explained
why they warranted different sentences. Therefore, we conclude that no
relief is warranted on this claim.
Eighth, Smith contends that cumulative error warrants relief.
Having considered the relevant factors, see Valdez, 124 Nev. at 1195, 196
P.3d at 481, we conclude that no relief is warranted.
Having considered Smith's claims and concluded that no relief
is warranted, we
ORDER the judgment of conviction AFFIRMED.
/---L , J.
Hardesty
1. J. ' J.
Saitta Pickering
cc: Hon. Scott N. Freeman, 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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