Martinorellan (Rogelio) v. State ( 2013 )

 him. Lee called the crime scene investigator assigned to the case, and she
came to the store to retrieve the badge.
Several weeks later Rogelio was arrested. After a nine-day
trial, the jury found Rogelio guilty of all counts. This appeal followed. The
issues on appeal are whether: (1) the district court erred in its method for
selecting the alternate jurors, (2) the district court erred in allowing the
jury to have a videotaped portion of the trial played back, (3) the State
engaged in prosecutorial misconduct during its closing argument when it
commented on its burden of proof, and (4) the district court abused its
discretion in denying a mistrial after the State introduced Rogelio's
booking photograph and asked him to admit that it was taken after he was
arrested. 2 As the parties are familiar with the facts, we do not recount
them further except as necessary to our disposition.
Alternate juror selection
Rogelio argues for the first time on appeal that the district
court erred in its method for selecting alternate jurors. He contends that
2 Rogelio also raised the following issues on appeal: (1) whether the
district court erred in granting the State's for-cause challenge and denying
Rogelio's for-cause challenges during voir dire, (2) whether the district
court abused its discretion in rejecting Rogelio's Batson challenge to the
State's use of peremptory challenges, (3) whether the district court erred
in dismissing a juror and in failing to admonish the jury regarding
deliberations before and after the alternate juror was seated, (4) whether
the district court erred in not requiring a key witness to use an
interpreter, (5) whether the State violated Brady by failing to disclose an
officer's notes, (6) whether the district court abused its discretion in
admitting hearsay testimony, (7) whether the district court abused its
discretion in rejecting a proposed jury instruction stating that it was
improper for witnesses to discuss their testimony with other witnesses,
and (8) whether cumulative error warrants reversal. We conclude these
issues are without merit and will not discuss them further.
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the district court's use of a lottery system to select the two jurors that
would serve as alternates denied him the right to effectively use his
peremptory challenges. He further contends that, because the district
court violated NRS 175.061, the alternate who was called on to replace the
excused juror was improperly chosen. When there was no objection at
trial, we review the district court's selection of alternate jurors for plain
error. Moore v. State, 122 Nev. 27, 36-37, 126 P.3d 508, 514 (2006).
NRS 175.061(3)(a) requires that alternate jurors be drawn in
the same manner as regular jurors. The statute also specifically dictates
that "[e]ach side is entitled to one peremptory challenge in addition to
those otherwise allowed by law. . . . The additional peremptory
challenges may be used against an alternate juror only, and the other
peremptory challenges allowed by statute may not be used against an
alternate juror." NRS 175.061(5).
Because criminal juries are drawn in the same way that civil
juries are drawn, NRS 175.021(1), we look to NRS 16.030 for guidance.
NRS 16.030(4) allows the district court to
draw a number of names to form a panel of
prospective jurors equal to the sum of the number
of regular jurors and alternate jurors to be
selected and the number of peremptory challenges
to be exercised. . . . When a sufficient number of
prospective jurors has been qualified to complete
the panel, each side shall exercise its peremptory
challenges out of the hearing of the panel by
alternately striking names from the list of persons
on the panel. After the peremptory challenges
have been exercised, the persons remaining on the
panel who are needed to complete the jury shall,
in the order in which their names were drawn, be
regular jurors or alternate jurors.
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In Moore, the district court violated NRS 175.061(5) 3 because
it did not require the parties to use the peremptory challenge solely
against the possible alternate jurors. 122 Nev. at 36-37, 126 P.3d at 514.
This court determined that the error did not affect Moore's substantial
rights and therefore affirmed his conviction on that issue. Id. at 37, 126
P.3d at 514. This court reached a similar conclusion in Morsicato v. Say-
On Drug Stores, Inc., 121 Nev. 153, 156 n.2, 111 P.3d 1112, 1115 n.2
(2005). In Morsicato, this court determined that because the parties failed
to object to the district court's use of a lottery system to pick alternate
jurors, the failure to follow NRCP 47(b) was not prejudicia1. 4 Id.Here, the district court used the same type of lottery system
used in Moore. Following the language of NRS 16.030, the district court
properly selected a panel of 24 jurors and, after questioning the venire
members, allowed each party to use its 5 peremptory challenges-4 general
challenges and 1 additional for the alternates. But the district court
randomly selected two jurors to serve as the alternates, instead of
selecting the last two prospective jurors called. NRS 16.030(4).
This procedure conflicts with both NRS 16.030 and NRS
175.061(5) because each party's peremptory challenge that was supposed
to be used to excuse an alternate juror was used to excuse a primary juror.
However, as determined in Moore and Morsicato, the error did not affect
Rogelio's substantial right to a fair trial because he clearly did not exercise
his peremptory challenges on either of the two men who were selected as
3Moore cites NRS 175.061(4), which was renumbered to NRS
175.061(5) in 2005. See 2005 Nev. Stat. ch. 110, § 1, at 306.
4 NRCP 47(b) has almost identical language as that of NRS 175.061.
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alternate jurors. See Moore, 122 Nev. at 36-37, 126 P.3d at 514; Morsicato,
121 Nev. at 156 n.2, 111 P.3d at 1115 n.2. Furthermore, he did not
challenge either of the jurors for cause. Consequently, the district court
did not commit plain error in failing to follow the proper procedures for
selecting alternate jurors.
Video playback
For the first time on appeal, Rogelio contends that showing
the jury video playback of a detective's testimony was improper because it
intensified the effect of the hearsay statements. The State contends that
video playback of the detective's testimony is not plain error, as this is an
issue of first impression in Nevada. Further, even if there were errors in
allowing the jury to view a video playback and not admonishing the jury
with respect to the video playback, the error did not affect Rogelio's
substantial rights.
When a defendant does not object to an issue at trial, it is
reviewed for plain error on appeal. Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008). "In conducting plain error review, 'we must
examine whether there was 'error,' whether the error was 'plain' or clear,
and whether the error affected the defendant's substantial rights." Id.(quoting Baltazar-Monterrosa v. State, 122 Nev. 606, 614, 137 P.3d 1137,
1142 (2006)).
As technology improves and economic restraints on district
court resources increase, district courts must have wide discretion in
allowing video playbacks to juries that request them. Miles v. State, 97
Nev. 82, 84, 624 P.2d 494, 495 (1981); see also United States v. Sims, 719
F.2d 375, 379 (11th Cir. 1983) (determining that district courts have the
same discretion in allowing readbacks or video playbacks). Here, the jury
requested a readback of a portion of the detective's testimony. The jury
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saw roughly 20 minutes of Rogelio's cross-examination of the detective.
The State asked several questions on redirect, but the majority of the
playback consisted of the cross-examination testimony. The camera view
was switched from the back of the room when the detective was speaking
to the front of the room when the attorneys were speaking. As Rogelio
argues, the camera angle is not fixed at some point above the jurors'
heads. However, the camera angles in the video playback do not show
anything that the jurors would not have been able to see from the jury box.
The district court asked the jury several times if it wanted to
continue watching the video playback, and the jury either stated that it
did or did not. After it stated that it was finished watching the video
playback, the jury returned to the deliberation room and continued
deliberating. The jury was not able to take the video into the deliberation
room. The playback was done in open court, and the district court made a
precise record of what was played. However, the district court did not (1)
redact sidebars or objections, (2) playback the relevant direct and cross-
examinations, or (3) instruct jurors not to place undue emphasis on the
selected testimony.
Although the district court did not give a specific admonition
following the playback, the playback was not unduly prejudicial to Rogelio
because it focused primarily on his cross-examination of the detective.
Prejudice is also not evident because the jury continued deliberating for
almost two hours after the playback. As a result, the district court did not
commit plain error in allowing a video playback of the detective's
testimony. Thus, Rogelio's substantial rights to a fair trial were not
violated.
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Prosecutorial misconduct
Rogelio next contends that the prosecution engaged in
improper commentary during its rebuttal closing argument when it
discussed the reasonable doubt standard, commented on Rogelio's choice
to testify, stated that Rogelio had to testify to prove that he did not
commit the . crimes charged, and equated Lee's experience while being
cross-examined to a painful tooth extraction. The State responds by
pointing out that the district court instructed the jury to follow the jury
instructions and not consider the objected-to comments. We conclude that
although the statements were careless and partially inappropriate, any
misconduct was harmless.
We review alleged prosecutorial misconduct by engaging in a
two-step analysis. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476
(2008). First, we determine if there was misconduct; second, we determine
whether the error was harmless. Id. If the error is of a constitutional
nature, then the prosecution must prove, "beyond a reasonable doubt, that
the error did not contribute to the verdict." Id. at 1189, 196 P.3d at 476.
On the other hand, if the error was not of a constitutional nature, reversal
is warranted "only if the error substantially affect[ed] the jury's verdict."
Id.This court has repeatedly instructed the bar "not to attempt to
quantify, supplement, or clarify the statutorily prescribed standard for
reasonable doubt." Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 514
(2001). In Evans, this court determined that it was improper for the
prosecution to discuss the reasonable doubt standard, but that the error
was harmless because the jury instructions contained the proper definition
of the standard. Id. at 631-32, 28 P.3d at 514.
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Here, the State referenced the reasonable doubt standard,
Rogelio objected, and the district court sustained the objection. Further,
there was a jury instruction that gave the appropriate definition of the
reasonable doubt standard. Therefore, the misconduct, like that of the
misconduct in Evans, was harmless.
We now turn to the State's comment regarding Rogelio's
decision to testify, wherein the State implied that it was the only way for
Rogelio to show that he did not commit the crimes. Generally, it is
improper to comment on the defense's decision to present evidence or
witnesses because it improperly shifts the burden of proof to the
defendant. Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 882 (1996).
"The tactic of stating that the defendant can produce certain evidence or
testify on his or her own behalf is an attempt to shift the burden of proof
and is improper." Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451
(1989). It is also improper to imply that a witness lied. Anderson v. State,
121 Nev. 511, 516, 118 P.3d 184, 187 (2005).
In this case, the State repeatedly attempted to argue that
Rogelio had to take the stand to testify in his own defense because there
would be no other way to explain the facts presented during trial. After
the district court sustained Rogelio's objection, the State continued with
its rebuttal argument and stated that, when pushed, Rogelio testified that
he did not know or did not remember what happened. Rogelio's objection
to this statement was also sustained. It was only when the State noted
that the jury would have to discredit Lee's entire testimony in order to
find Rogelio not guilty that Rogelio's objection was overruled.
These statements border on an improper attempt to shift the
burden to Rogelio. Whitney, 112 Nev. at 502, 915 P.2d at 882; Barron, 105
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Nev. at 778, 783 P.2d at 451. The State asked the jury to look at the
evidence it presented and Rogelio's inability to give a reasonable
alternative explanation of the facts without testifying himself. However,
Rogelio objected to these borderline statements and the objections were
sustained. The jury was also instructed not to lend credence to statements
or evidence that was objected to. Thus, we assume that the jury followed
the direction of the district court and that any misconduct was harmless.
See Evans, 117 Nev. at 631-32, 28 P.3d at 514 (concluding that improper
reference to the reasonable doubt standard was harmless because the jury
was given the proper standard in its instructions).
The State's final statement comparing Lee's cross-examination
to that of a painful tooth extraction is also not prosecutorial misconduct.
It is improper to appeal to a jury's sympathies in order to obtain a
conviction. Pantano v. State, 122 Nev. 782, 793, 138 P.3d 477, 484 (2006).
Here, the State simply used an analogy that Rogelio used in his opening
statement. Further, although the statement may have caused some
emotional response, the comment did not refer to the victim's right to
justice and was not an attempt to inflame the jury into returning a
conviction. Rogelio objected to the State's improper statements, the
objections were properly sustained, and sufficient instruction was given to
the jury. Therefore, any error was harmless. Valdez, 124 Nev. at 1188,
196 P.3d at 476.
Booking photograph
Rogelio argues that the district court abused its discretion in
denying his motion for a mistrial following the State's introduction of
Rogelio's booking photo. Both the district court's admission of evidence
and denial of a motion for a mistrial are reviewed for an abuse of
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discretion. Ramet v. State, 125 Nev. 195, 198, 209 P.3d 268, 269 (2009);
Rudin v. State, 120 Nev. 121, 142, 86 P.3d 572, 586 (2004).
Generally, all relevant evidence is admissible. NRS 48.025.
Relevant evidence is "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
or less probable than it would be without the evidence." NRS 48.015.
However, "relevant[ ] evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice." NRS
48.035(1). A booking photo does not necessarily have a prejudicial effect
when the "jurors ha[ve] no reason to assume that it had been taken in any
other case but the one for which [a defendant is] being tried." Browning v.
State, 120 Nev. 347, 358, 91 P.3d 39, 47 (2004).
In this case, the State used Rogelio's booking photo to show
the jury that, although his hair was longer at trial, at the time of the
crime and Rogelio's arrest he had an almost completely shaven head. This
evidence is relevant because it bolsters Lee's identification of Rogelio
following the crime. NRS 48.015; NRS 48.025. Rogelio repeatedly accused
Lee of fabricating his recollection of the events surrounding the crime,
including Rogelio's identification. As stated in Browning, a booking photo
is not prejudicial when there is no danger that the jury will infer that the
photo was taken with respect to a different crime. 120 Nev. at 358, 91
P.3d at 47; see NRS 48.035(1). Here, the State properly laid a foundation
in the jury's presence for the booking photo, explaining that it was taken
after Rogelio was arrested for the crimes for which he was on trial.
Therefore, the district court properly admitted Rogelio's booking photo for
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the State's identification purposes. Accordingly, the district court did not
abuse its discretion in denying Rogelio's motion for a mistrial.
We therefore
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
Saitta
cc: Hon. Susan Scann, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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