O'Keefe (Brian) v. State ( 2013 )

 State, 127 Nev. „ 262 P.3d 727, 734 (2011) (the remedy for errors
unrelated to sufficiency of the evidence is reversal and remand for a new
trial, not an acquittal).
Second, O'Keefe argues that the district court abused its
discretion by allowing him to represent himself at trial because his
decision to do so was not knowing, voluntary, and intelligent. Before
granting O'Keefe's request, the district court conducted an appropriate
canvass pursuant to Faretta v. California, 422 U.S. 806 (1975), during
which O'Keefe stated that he spent several years studying the law and
understood the nature of the charges against him, the potential penalties
he faced, and the dangers of self-representation. Although O'Keefe asserts
that his poor performance at trial demonstrates his decision was
unknowing, "a criminal defendant's ability to represent himself has no
bearing upon his competence to choose self-representation," Vanisi v.
State, 117 Nev. 330, 341, 22 P.3d 1164, 1172 (2001) (quoting Godinez v.
Moran, 509 U.S. 389, 400 (1993)), and the record reflects that O'Keefe
voluntarily chose to represent himself despite full knowledge of the risks.
We conclude that the district court did not abuse its discretion by granting
O'Keefe's request for self-representation. See Hooks v. State, 124 Nev. 48,
55, 176 P.3d 1081, 1085 (2008) (reviewing the record as a whole and giving
deference to a district court's decision to allow a defendant to waive his
right to counsel).
Third, O'Keefe argues that the district court abused its
discretion by denying his request to stay or continue trial for
approximately nine months because he had pending proceedings in federal
court and was unprepared for trial. The district court rejected O'Keefe's
assertion that his federal proceedings in any way limited his ability to
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prepare for trial and noted that O'Keefe asked to represent himself and
was given ample time to do so effectively. We conclude that the district
court did not abuse its discretion by denying O'Keefe's request for an
extended continuance where the delay was his fault. See Rose v. State,
123 Nev. 194, 206, 163 P.3d 408, 416 (2007).
Fourth, O'Keefe argues that the district court erred by
allowing a substitute judge to preside over his trial because the original
judge was more familiar with the case and its complex procedural posture.
O'Keefe does not demonstrate how he was prejudiced by the substitution
of a different judge. See generally United States v. Lane, 708 F.2d 1394,
1398 (9th Cir. 1983) (error involving substitution of judges is harmless if
the defendant has not been prejudiced). We conclude that O'Keefe fails to
demonstrate that the district court erred.
Fifth, O'Keefe argues that the district court abused its
discretion by rejecting his proposed instructions and by giving instructions
over his objection. "The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005). Because O'Keefe has not provided this
court with the instructions given at trial, he fails to demonstrate that the
district court abused its discretion by rejecting his proposed instruction.
See generally Vallery v. State, 118 Nev. 357, 372, 46 P.3d 66, 77 (2002)
(noting that a district court does not err by refusing an accurate
instruction related to the defendant's theory of the case if it is
substantially covered by other instructions); see also Greene v. State, 96
Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper
appellate record rests on appellant."). O'Keefe also does not identify which
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instructions he contends were erroneously given. We conclude that he
fails to demonstrate that the district court abused its discretion.
Having considered O'Keefe's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.'
Hardesty
J.
cc: Hon. Michael Villani, District Judge
Bellon & Maningo, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
1 0'Keefe's
fast track statement does not comply with NRAP 3C(h)(1)
and 32(a)(4) because it does not have 1-inch margins on all four sides. We
caution counsel that future failure to comply with formatting
requirements when filing briefs with this court may result in the
imposition of sanctions. NRAP 3C(n).
We deny O'Keefe's request for full briefing because it does not
comply with NRAP 3C(k)(2), as it was not filed separate from the fast
track statement. Further, although O'Keefe explains that full briefing is
requested so that each issue may be adequately set forth and appropriate
legal authority cited, we note that he did not file a motion for excess pages.
See NRAP 3C(k)(2)(C).
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