Guzman (Marco) v. State ( 2014 )

 Sufficiency of the evidence
Guzman contends that there was insufficient evidence to
support his second-degree murder conviction. We review the evidence in
the light most favorable to the prosecution and determine whether "any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis omitted); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727
(2008). Here, the jury heard testimony that Guzman, Charles Deverna,
Nathan Gray, and Anthony Dickerson went to Dickerson's apartment to
retrieve a printer. Once inside the apartment, Dickerson attacked
Guzman and the two began fighting over a handgun. Deverna broke up
the fight and was able to separate Dickerson from Guzman. However,
Guzman still held the handgun and everyone else stood with their hands
in the air and their palms facing outward. As Dickerson backed towards a
wall with his hands up, Guzman shot him. Dickerson was shot twice, once
in the chest and once in the back. We conclude that a rational juror could
reasonably infer from this evidence that Guzman committed second-
degree murder and was not acting in self-defense when he shot and killed
Dickerson. See NRS 200.010(1); NRS 200.020; NRS 200.030(2); People v.
Hardin, 102 Cal. Rptr. 2d 262, 268 n.7 (Ct. App. 2000) (the right to use
force in self-defense ends when the danger ceases). It is for the jury to
determine the weight and credibility to give conflicting testimony, and the
jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports its verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d
20, 20 (1981).
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Inadmissible hearsay
Guzman contends that the State improperly elicited testimony
describing Debra Jo Tackett's and Dickerson's out-of-court statements to
present a motive for the killings. He argues that these hearsay
statements violated his Sixth Amendment right to confront his accusers
because neither Tackett nor Dickerson were available. As a general rule,
we review a district court's evidentiary rulings for an abuse of discretion,
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008),
Confrontation Clause issues de novo, Chavez v. State, 125 Nev. 328, 339,
213 P.3d 476, 484 (2009), and unpreserved issues for plain error, Vega v.
State, 126 Nev. „ 236 P.3d 632, 636-37 (2010). "An error is plain if
the error is so unmistakable that it reveals itself by a casual inspection of
the record. At a minimum, the error must be clear under current law,
and, normally, the defendant must show that an error was prejudicial in
order to establish that it affected substantial rights." Saletta v. State, 127
Nev. 254 P.3d 111, 114 (2011) (internal quotation marks,
brackets, and citations omitted). Here, the record reveals that Guzman
objected to the testimony elicited by the State on hearsay and foundation
grounds, the district court sustained his objections, and the district court
instructed the jury to disregard the testimony. The record does not reveal
that Guzman objected to any of the testimony on Confrontation Clause
grounds, the alleged error does not appear plainly from the record, and we
conclude that Guzman has not demonstrated plain error in this regard.
Ineffective assistance of counsel
Guzman contends that defense counsel was ineffective for
failing to call several obvious witnesses to support his theory of the
defense. "This court has repeatedly declined to consider ineffective-
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assistance-of-counsel claims on direct appeal unless the district court has
held an evidentiary hearing on the matter or an evidentiary hearing would
be needless." Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008,
1020-21 (2006). As Guzman has not demonstrated that either of these
exceptions applies, we decline to consider this contention on direct appeal.
Autopsy photographs
Guzman contends that the district court erred by admitting
crime scene and autopsy photographs of the victims because they were
inflammatory and cumulative. "The admissibility of gruesome
photographs showing wounds on the victim's body lies within the sound
discretion of the district court and, absent an abuse of that discretion, the
decision will not be overturned." Flores v. State, 121 Nev. 706, 722, 120
P.M 1170, 1180 (2005) (internal quotation marks omitted); see also Robins
v. State, 106 Nev. 611, 622, 798 P.2d 558, 565 (1990) (discussing autopsy
photographs). The record reveals that the district court viewed the
photographs, heard the parties' arguments, required the State to lay a
foundation as to the autopsy photographs, and found that the photographs
were more probative than prejudicial. We conclude that the district court
did not abuse its discretion in this regard.
Erroneous jury instructions
Guzman contends that the district court improperly instructed
the jury on premeditation and deliberation. The district court overruled
Guzman's objection to this instruction after determining that it was an
accurate statement of law. We note that the instruction is identical to the
premeditation and deliberation instruction set forth in Byford v. State, 116
Nev. 215, 236-37, 994 P.2d 700, 714-15 (2000), and we conclude that the
district court did not abuse its discretion in this regard. See Crawford u.
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State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) (reviewing a district
court's settlement of jury instructions for abuse of discretion). Guzman
also challenges the reasonable doubt, implied malice, and equal and exact
justice instructions, but he affirmatively waived any objections he had to
these instructions during the trial and he has not demonstrated plain
error on appeal. See Berry v. State, 125 Nev. 265, 282-83, 212 P.3d 1085,
1097 (2009) (reviewing unpreserved challenges to jury instructions for
plain error), abrogated on other grounds by State v. Castaneda, 126 Nev.
, 245 P.3d 550 (2010); Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d
465, 477 (2008) (discussing plain-error review).
Cumulative error
Guzman contends that cumulative error deprived him of a fair
trial and warrants reversal of his conviction. However, because Guzman
has failed to demonstrate any error, we conclude that he was not deprived
of a fair trial due to cumulative error.
Having concluded that Guzman is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
J.
Douglas Cherry
cc: Hon. David B. Barker, District Judge
Christopher R. Gram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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