Norton (Joseph) v. State ( 2014 )

 to discuss his testimony by calling the North Las Vegas police department
and informing them that the alibi witness had active traffic warrants.
The witness was later arrested on those warrants and booked in jail. We
agree that the State's conduct was improper. However, Norton has failed
to explain how he was prejudiced by the State's conduct. The district court
threatened to dismiss Norton's case if the witness did not appear in court
to testify on Norton's behalf. At trial, the alibi witness appeared in court
and testified that Norton was with him in another part of town at the time
the robbery occurred. Therefore, we discern no prejudice arising from the
State's improper conduct. We conclude that the district court did not err
and Norton is not entitled to the reversal of his convictions on this
ground. 2
Second, Norton contends that he is entitled to the reversal of
his conviction because the State referred to his in-custody status in three
different ways. See Haywood v. State, 107 Nev. 285, 287, 809 P.2d 1272,
1273 (1991) (explaining that references to defendant's in-custody status
2 To the extent that Norton attempts to argue for the first time in his
reply brief that the State's conduct prejudiced him because it intimidated
another female witness who did not testify at Norton's trial, we decline to
consider this claim. See NRAP 28(c); see also Elvik v. State, 114 Nev. 883,
888, 965 P.2d 281, 284 (1998) (explaining that arguments made for the
first time in a reply brief prevent the respondent from responding to
appellant's contentions with specificity). Furthermore, this new
contention was not raised by Norton's counsel during his trial. Instead,
the facts supporting this allegation were raised in Norton's post-verdict
proper person Motion to Dismiss Counsel and Request a Mistrial which
was denied by the district court.
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are improper). The first objection occurred before opening statements.
Norton objected to the admission of photos taken of his tattoos which
Norton claimed showed him in a jail jumpsuit with the doors to the jail
behind him. The district court stated, "I can't tell he's in custody." Norton
has not provided copies of the photographs and we are not convinced that
the district court erred by admitting them. The second and third
references to Norton's in-custody status occurred during opening
statements. The State referred to a phone call made by Norton "shortly
after [he] was taken into custody." The PowerPoint presentation also
appears to have read "shortly after being taken into custody." Norton
objected and moved for a mistrial because the statements referred to his
in-custody status. The district court overruled the objection noting that
the incident referred to by the State occurred just after he was arrested.
We conclude that the State's improper references to Norton's in-custody
status were harmless, see State v. Carroll, 109 Nev. 975, 977, 860 P.2d
179, 180 (1993); Haywood v. State, 107 Nev. at 288, 809 P.2d at 1273, and
that the district court did not err by denying his motion for a mistrial.
Third, Norton contends that the State shifted the burden of
proof during opening statements by telling the jury, "I urge you to resist
any urges to make this complicated." We conclude that this statement did
not shift the burden of proof and therefore did not support Norton's motion
for a mistrial.
Fourth, Norton appears to contend that there was a late
disclosure of photographs and fingerprint evidence. To the extent that the
allegations contained in Norton's opening brief make out a cognizable
claim for relief, Norton has not demonstrated error because he has not
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supported his claim with sufficient argument or citation to any legal
authority. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987)
("It is appellant's responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
Fifth, Norton contends that the district court erred by
allowing the State to refer to the contents of jail phone calls during
opening statements because he made a timely objection and those phone
calls were not admitted during trial and were later excluded based on the
State's failure to comply with NRS 179.500. 3 Even if the district court
erred by allowing this evidence to be disclosed to the jury during opening
statements, we conclude that Norton is not entitled to relief on this
ground. See NRS 178.598. The jury was instructed to consider the
evidence and that "statements, arguments and opinions of counsel are not
evidence." See Leonard v. State, 117 Nev. 53, 66, 17 P.3d 397, 405 (2001)
(explaining that jurors are presumed to follow their instructions).
Furthermore, the State did not refer to the content of the jail phone calls
during closing arguments. In light of these circumstances and the
presentation of other compelling evidence of Norton's guilt at trial, we
conclude that the error was harmless.
Having considered Norton's contentions and concluded that he
is not entitled to relief, we
3 Tothe extent that Norton contends that the jail phone calls were
erroneously admitted during the State's case in chief or on rebuttal, we
conclude that Norton has failed to demonstrate that the jail phone calls
were actually admitted into evidence by the district court.
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ORDER the judgment of conviction AFFIRMED. 4
— Lt J.
Hardesty
e-T
J.
Douglas
CHERRY, J. dissenting:
I respectfully dissent from the panel's decision because I
believe that the retaliation against Norton's alibi witness, disclosure of
Norton's jail phone call during opening statements, and discussion of
Norton's in-custody status affected his substantial rights. See NRS
178.598. I would reverse the judgment of conviction and remand for a new
trial.
J.
Cherry
cc: Hon. Kathleen E. Delaney, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4 Norton's
briefs fail to comply with NRAP 32(a)(4) because they do
not contain 1-inch margins on all four sides. Counsel for Norton is
cautioned that the failure to comply with the briefing requirements in the
future may result in the imposition of sanctions.
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