VALENTINE (KEANDRE) VS. STATE ( 2019 )

135 Nev., Advance Opinion 62,
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEANDRE VALENTINE, No. 74468
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
E;
CLE
BY
DEPUTY
Appeal from a judgment of conviction, pursuant to a jury
verdict, of seven counts of robbery with the use of a deadly weapon, three
counts of burglary while in possession of a deadly weapon, two counts of
possession of credit or debit card without cardholder's consent, and one
count each of attempted robbery with the use of a deadly weapon and
possession of document or personal identifying information for the purpose
of establishing a false status or identity. Eighth Judicial District Court,
Clark County; Richard Scotti, Judge.
Vacated and remanded.
Darin F. Imlay, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Krista D. Barrie, Chief Deputy District Attorney, and Michael R.
Dickerson, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
OPINION
By the Court, STIGLICH, J.:
A defendant has the right to a jury chosen from a fair cross
section of the community, as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution. This court has addressed
the showing a defendant must make to establish a prima facie violation of
this right. We have said little, however, about when an evidentiary hearing
may be warranted on a fair-cross-section claim. Faced with that issue in
this case, we hold that an evidentiary hearing is warranted on a fair-cross-
section challenge when a defendant makes specific allegations that, if true,
would be sufficient to establish a prima facie violation of the fair-cross-
section requirement. Because the defendant in this matter made specific
factual allegations that could be sufficient to establish a prima facie
violation of the fair-cross-section requirement and those allegations were
not disproved, the district court abused its discretion by denying Valentine's
request for an evidentiary hearing. None of Valentine's other claims
warrant a new trial. We therefore vacate the judgment of conviction and
remand for further proceedings as to the fair-cross-section challenge.
BACKGROUND
Appellant Keandre Valentine was convicted by a jury of
multiple crimes stemming from a series of five armed robberies in Las
Vegas, Nevada. Before trial, Valentine objected to the 45-person venire and
claimed a violation of his right to a jury selected from a fair cross section of
the community. He argued that two distinctive groups in the community—
African Americans and Hispanics—were not fairly and reasonably
represented in the venire when compared with their representation in the
community. Valentine asserted that the underrepresentation was caused
by systematic exclusion, proffering two theories as to how the system used
SUPREME COURT
OF
NEVADA
(01 1947A .,,'Llitto
2
11•11WM=1•1 111-1111t1
in Clark County excludes distinctive groups. His first theory was that the
system did not enforce jury summonses; his second theory was that the
system sent out an equal number of summonses to citizens located in each
postal ZIP code without ascertaining the percentage of the population in
each ZIP code. Valentine requested an evidentiary hearing, which was
denied. The district court found that the two groups were distinctive groups
in the community and that one group—Hispanics—was not fairly and
reasonably represented in the venire when compared to its representation
in the community. However, the district court found that the
underrepresentation was not due to systematic exclusion, relying on the
jury commissioner's testimony regarding the jury selection process two
years earlier in another case and on this court's resolution of fair-cross-
section claims in various unpublished decisions. The court thus denied the
constitutional challenge.
DISCUSSION
Fair-cross-section challenge warranted an evidentiary hearing
Valentine claims the district court committed structural error
by denying his fair-cross-section challenge without conducting an
evidentiary hearing. We review the district court's denial of Valentine's
request for an evidentiary hearing for an abuse of discretion. See Berry v.
State, 131 Nev. 957, 969, 363 P.3d 1148, 1156 (2015) (reviewing denial of
request for an evidentiary hearing on a postconviction petition for a writ of
habeas corpus); accord United States v. Schafer, 625 F.3d 629, 635 (9th Cir.
2010) (reviewing denial of request for an evidentiary hearing on a motion to
dismiss an indictment); United States v. Terry, 60 F.3d 1541, 1544 n.2 (11th
Cir. 1995) (reviewing denial of request for an evidentiary hearing on fair-
cross-section challenge to statute exempting police officers from jury
service).
SUPREME COURT
OF
NEVADA
10) 1947A 40.
3
=MI
"Both the Fourteenth and the Sixth Amendments to the United
States Constitution guarantee a defendant the right to a trial before a jury
selected from a representative cross-section of the community." Evans v.
State, 112 Nev. 1172, 1186, 926 P.2d 265, 274 (1996). While this right does
not require that the jury "mirror the community and reflect the various
distinctive groups in the population," it does require "that the jury wheels,
pools of names, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail
to be reasonably representative thereof." Id. at 1186, 926 P.2d at 274-75(internal quotation marks omitted). "Thus, as long as the jury selection
process is designed to select jurors from a fair cross section of the
community, then random variations that produce venires without a specific
class of persons or with an abundance of that class are permissible."
Williams v. State, 121 Nev. 934, 940, 125 P.3d 627, 631 (2005).
A defendant alleging a violation of the right to a jury selected
from a fair cross section of the community must first establish a prima facie
violation of the right by showing
(1) that the group alleged to be excluded is a
"distinctive" group in the community; (2) that the
representation of this 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) that this underrepresentation
is due to systematic exclusion of the group in the
jury-selection process.
Evans, 112 Nev. at 1186, 926 P.2d at 275 (quoting Duren v. Missouri, 439
U.S. 357, 364 (1979)). To determine "[w]hether a certain percentage is a
fair representation of a group," this court uses "the absolute and
comparative disparity between the actual percentage in the venire and the
percentage of the group in the community." Williams, 121 Nev. at 940 n.9,
4
125 P.3d at 631 n.9. And to determine whether systematic exclusion has
been shown, we consider if the underrepresentation of a distinctive group is
"inherent in the particular jury-selection process utilized." Evans, 112 Nev.
at 1186-87, 926 P.2d at 275 (internal quotation marks omitted). Only after
a defendant demonstrates a prima facie violation of the right does "the
burden shift [ 1 to the government to show that the disparity is justified by
a significant state interest." Id. at 1187, 926 P.2d at 275.
Here, Valentine asserted that African Americans and Hispanics
were not fairly and reasonably represented in the venire. Both African
Americans and Hispanics are recognized as distinctive groups. See id.; see
also United States v. Esquivel, 88 F.3d 722, 726 (9th Cir. 1996). And the
district court correctly used the absolute and comparative disparity between
the percentage of each distinct group in the venire and the percentage in
the community to determine that African Americans were fairly and
reasonably represented in the venire but that Hispanics were not. See
Williams, 121 Nev. at 940 n.9, 125 P.3d at 631 n.9 ("Comparative disparities
over 50% indicate that the representation of [a distinct group] is likely not
fair and reasonable."). The district court denied Valentine's challenge as to
Hispanics based on the third prong—systematic exclusion.
We conclude the district court abused its discretion in denying
Valentine's request for an evidentiary hearing. Although this court has not
articulated the circumstances in which a district court should hold an
evidentiary hearing when presented with a fair-cross-section challenge, it
has done so in other contexts. For example, this court has held that an
evidentiary hearing is warranted on a postconviction petition for a writ of
habeas corpus when the petitioner has "assert[ed] claims supported by
specific factual allegations [that are] not belied by the record [and] that, if
true, would entitle him to relief." Mann v. State, 118 Nev. 351, 354, 46 P.3d
SUPREME COURT
oF
NEVADA
(0) 1947A .4Etc.
5
1228, 1230 (2002); see also Hargrove v. State, 100 Nev. 498, 502, 686 P.2d
222, 225 (1984). Most of those circumstances are similarly relevant when
deciding whether an evidentiary hearing is warranted on a defendant's fair-
cross-section challenge, given the defendant's burden of demonstrating a
prima facie violation. In particular, it makes no sense to hold an evidentiary
hearing if the defendant makes only general allegations that are not
sufficient to demonstrate a prima facie violation or if the defendant's
specific allegations are not sufficient to demonstrate a prima facie violation
as a matter of law. See Terry, 60 F.3d at 1544 n.2 (explaining that no
evidentiary hearing is warranted on a fair-cross-section challenge if no set
of facts could be developed that "would be significant legally"). But unlike
the postconviction context where the claims are case specific, a fair-cross-
section challenge is focused on systematic exclusion and therefore is not
case specific. Because of that systematic focus, it makes little sense to
require an evidentiary hearing on a fair-cross-section challenge that has
been disproved in another case absent a showing that the record in the prior
case is not complete or reliable. With these considerations in mind, we hold
that an evidentiary hearing is warranted on a fair-cross-section challenge
when a defendant makes specific allegations that, if true, would be
sufficient to establish a prima facie violation of the fair-cross-section
requirement.2
I-For the reasons stated herein, it was error for the district court to
rely upon the jury commissioner's prior testimony in denying Valentine's
challenge. That is not to say a district court may never rely upon prior
testimony when appropriate.
2We note that, in order to meet the burden of demonstrating an
evidentiary hearing is warranted, a defendant may subpoena supporting
SUPREME COURT
OF
NEVADA
(0) 1947A ,
6
Applying that standard, we conclude that Valentine was
entitled to an evidentiary hearing as to his allegation of systematic
exclusion of Hispanics. Valentine did more than make a general assertion
of systematic exclusion. In particular, Valentine made specific allegations
that the system used to select jurors in the Eighth Judicial District Court
sends an equal number of jury summonses to each postal ZIP code in the
jurisdiction without ascertaining the percentage of the population in each
ZIP code. Those allegations, if true, could establish underrepresentation of
a distinctive group based on systematic exclusion. Cf. Garcia-Dorantes v.
Warren, 801 F.3d 584, 591-96 (6th Cir. 2015) (discussing a prima facie case
of systematic exclusion where a computer used a list to determine the
percentage of jurors per ZIP code, but because of a glitch, the list included
a higher number of persons from certain ZIP codes that had smaller
proportions of African Americans than the community at large). And those
allegations were not addressed in the jury commissioner's prior testimony
that the district court referenced.3 Accordingly, the district court could not
documents and present supporting affidavits. See Hargrove, 100 Nev. at
502-03, 686 P.2d at 225.
3Even if the jury commissioner's previous testimony addressed
Valentine's specific allegations of systematic exclusion, reliance on the old
testimony would have been misplaced. In particular, the prior testimony
mentioned that the system was ``‘moving towards a new improved jury
selection process" and legislative amendments regarding the juror selection
process were implemented close in time to Valentine's trial. See 2017 Nev.
Stat., ch. 549, §§ 1-5, at 3880-84. While prior testimony relevant to a
particular fair-cross-section challenge may obviate the need for an
evidentiary hearing, a district court should be mindful that it not rely upon
stale evidence in resolving such challenges.
SUPREME COURT
OF
NEVADA
(0) 1947A
7
rely on the prior testimony to resolve Valentines allegations of systematic
exclusion. Having alleged specific facts that could establish the
underrepresentation of Hispanics as inherent in the jury selection process,
Valentine was entitled to an evidentiary hearing.4 Accordingly, the district
court abused its discretion by denying Valentine's request for an evidentiary
hearing.5 We therefore vacate the judgment of conviction and remand to
the district court for an evidentiary hearing. Cf. State v. Ruscetta, 123 Nev.
299, 304-05, 163 P.3d 451, 455 (2007) (vacating judgment of conviction and
remanding where district court failed to make factual findings regarding
motion to suppress and where record was insufficient for appellate review).
Thereafter, Valentine's fair-cross-section challenge should proceed in the
manner outlined in Evans, 112 Nev. at 1186-87, 926 P.2d at 275. If the
district court determines that the challenge lacks merit, it may reinstate
the judgment of conviction, except as provided below.
Sufficiency of the evidence
Valentine argues the State presented insufficient evidence to
support his convictions for robbery with the use of a deadly weapon in
counts 4 and 9. In considering a claim of insufficient evidence, we "view[
the evidence in the light most favorable to the prosecution" to determine
4It is unclear that Valentines allegations regarding the enforcement
of jury summonses would, if true, tend to establish underrepresentation as
a result of systematic exclusion. See United States v. Orange, 447 F.3d 792,
800 (10th Cir. 2006) ("Discrepancies resulting from the private choices of
potential jurors do not represent the kind of constitutional infirmity
contemplated by Duren."). Accordingly, he was not entitled to an
evidentiary hearing as to those allegations.
5We reject Valentine's contention that the district court's failure to
hold an evidentiary hearing evinced judicial bias resulting in structural
error.
SUPREME COURT
OF
NEVADA
lO I947A 4a14.
. 8
whether "any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." McNair u. State, 108 Nev. 53, 56,
825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
NRS 200.380(1) defines the crime of robbery as
[T]he unlawful taking of personal property from the
person of another, or in the person's presence,
against his or her will, by means of force or violence
or fear of injury, immediate or future, to his or her
person or property, or the person or property of a
member of his or her family, or of anyone in his or
her company at the time of the robbery.6
Additionally, we have held that the State must show that the victim had
possession of or a possessory interest in the property taken. See Phillips v.
State, 99 Nev. 693, 695-96, 669 P.2d 706, 707 (1983).
The challenged robbery counts stem from a similar fact pattern.
Beginning with count 4, Valentine was charged with robbing Deborah
Faulkner of money; Valentine was also charged with robbing Darrell
Faulkner, Deborah's husband, of money in count 3. Valentine was convicted
of both counts. However, when viewed in a light most favorable to the
prosecution, the evidence produced at trial was insufficient to support a
robbery charge as it related to Deborah. While the evidence established
that Valentine took $100 that Darrell removed from his own wallet, the
evidence demonstrated that Valentine demanded Deborah to empty her
6The Legislature amended NRS 200.380, effective October 1, 2019.
2019 Nev. Stat., ch. 76, § 1, at 408. While the amendments do not affect our
analysis in this matter, we have quoted the pre-amendment version of NRS
200.380 that was in effect at the time of the events underlying this appeal.
1995 Nev. Stat., ch. 443, § 60, at 1187.
SUPREME COURT
OF
NEVADA
(0, 1947A
9
=E1111111 ,11111111=11
purse onto the ground but actually took nothing from it. There was no
evidence that Deborah had possession of, or a possessory interest in, the
money from Darrell's wallet.7 Thus, the State presented insufficient
evidence for count 4, and the conviction for that count cannot be sustained.
Similarly, in count 9, Valentine was charged with robbing
Lazaro Bravo-Torres of a wallet and cellular telephone; Valentine was also
charged with robbing Rosa Vasquez-Ramirez, Lazaro's wife, of a purse,
wallet, and/or cellular telephone in count 11. Valentine was convicted of
both counts. Yet viewing the evidence in a light most favorable to the
prosecution, the evidence did not establish that Valentine robbed Lazaro.
Specifically, Lazaro testified that he told Valentine he did not have cash or
a wallet on him and that his phone, located in the center compartment of
the truck, was not taken but was used by the couple after the incident was
over. Conversely, Rosa testified that Valentine took her purse along with
the items in it. The evidence presented by the State did not establish that
Lazaro had possession of, or a possessory interest in, the items taken,8 and
thus the conviction for count 9 cannot be sustained.
Prosecutorial misconduct regarding DNA evidence
Valentine contends that the State engaged in prosecutorial
misconduct during closing argument when discussing the deoxyribonucleic
acid (DNA) evidence. In considering a claim of prosecutorial misconduct,
7We are unconvinced by the State's argument that the singular fact
of Darrell and Deborah being married, without more, demonstrated that the
money in Darrell's wallet was community property of the marriage such
that Deborah had a possessory interest in it. See NRS 47.230(3).
8We again reject the State's argument that the mere fact that Lazaro
and Rosa were married demonstrated that Lazaro had a possessory interest
in Rosa's purse or the items therein. See id.
10
we determine whether the conduct was improper and, if so, whether the
improper conduct merits reversal. Valdez v. State, 124 Nev. 1172, 1188, 196
P.3d 465, 476 (2008).
During the trial, the State presented an expert witness to
testify about the DNA results from a swab of the firearm found in the
apartment where Valentine was discovered. The expert testified generally
about the procedures her laboratory uses for DNA analysis. She explained
that samples are tested at the same 15 locations, or loci, on the DNA
molecule and a DNA profile results from the alleles, or numbers, obtained
from each of the 15 locations.9 When complete information from each of the
15 locations is obtained, the result is a full DNA profile; anything less
produces a partial DNA profile. The results of the DNA testing process
appear as peaks on a graph, and it is those peaks that the expert interprets
and uses to make her determinations. In considering the information on a
graph, the expert indicated that her laboratory uses a threshold of 200—
anything over 200 is usable information, while anything below 200 is not
used "because it's usually not reproducible dat[a]," meaning if the sample
was tested again, "ifs so low that [she] might get that same information,
[she] might not."10 The expert maintained that sometimes DNA
information is obtained "but it's not good enough for us to make any
determinations on. So in that case we call it inconclusive."
9The expert added that her laboratory also looks at an additional
location, the amelogenin, in order to determine the gender of the individual
represented in the sample.
loThe expert also testified that anything below 40 indicated that there
was no actual DNA profile. She explained that her laboratory uses the
thresholds "to make sure that when we say that there is a good, usable DNA
profile, that it's actually a good, useable DNA profile."
SUPREME COURT
OF
NEVADA
(0) 1947A
11
;+
iii i.T
As to the results of the swab from the firearm, the expert
testified that she "did not obtain a useable profile, so there was no
comparison made." She stated that the laboratory thresholds were not met
and thus "the profile was inconclusive." The only conclusion the expert was
able to make was that the partial DNA profile obtained from the firearm
swab was consistent with a mixture of at least two persons and that at least
one of the persons was male.
During the expert's testimony, the State offered three exhibits:
one was a summary, side-by-side comparative table of the DNA information
collected from the firearm swab and from Valentine; and two were graphs
of the specific information collected from the firearm swab and Valentine,
both graphs showing peaks of information alongside a scale indicating the
laboratory's threshold limits. Valentine objected to the admission of the
graphs, arguing that they could be confusing to the jury, that the jurors
should not be drawing their own conclusions from the graphs, and that he
did not want the jurors to think they could discern something from the
graphs that the expert could not. The district court overruled Valentine's
objection, finding the graphs relevant to the expert's methodology and
reliability.11
Regarding the summary, side-by-side table, the expert testified
that every tested location of the firearm swab, save for the location used to
nValentine argues the district court abused its discretion in
admitting the graphs. We cannot say the admission of the graphs to show
methodology and reliability was an abuse of discretion. But while the
graphs may have been relevant for such purposes, the manner in which the
information was used by the State, as discussed below, strongly undermined
the district court's reasoning for admitting the evidence. See NRS 47.110
(discussing the limited admissibility of evidence and, upon request, the need
for an instruction to restrict the jury's consideration to the proper scope).
SUPREME COURT
OF
NEVADA
(0) 1947A
12
determine gender, resulted in either an "NR," meaning no DNA profile was
obtained from that particular location, or an asterisk, indicating
information was present but "it was so low that [she was] not even going to
do any comparisons or say anything."
Regarding the graphs, the State went through the tested
locations of the firearm swab and, while continuously commenting that the
results were below the laboratory's 200 threshold, asked the expert to
identify the alleles for which there were peaks of information. In going
through the peaks of information from the firearm swab, the State also
intermittently mentioned the corresponding locations and, ostensibly
matching, alleles found in Valentine's DNA profile. During cross-
examination, the expert repeated the 200 threshold and explained that she
does not look at information below that threshold, even if it is close, because
it could be incorrect. Valentine asked the expert if she had anything she
wanted to add in response to the States line of questioning regarding each
of the locations tested, and the expert reiterated the following:
[T]he profile [from the firearm swab] was
inconclusive, and we call it inconclusive because
there wasn't enough DNA. . . [A]nd we call that
inconclusive . . . because if I re-ran that exact same
sample, I don't know what kind of results I would
come up with. It may be the same, it may be
different. So that's why we're not saying that the
DNA profile definitely came from the defendant,
because it's inconclusive to me.
[The thresholds] exist for a reason.
Because we don't want to present information
that may not be correct or overemphasize
something, you know, saying yes, this person is
there, when it may not be true because our data is
SUPREME COURT
OF
NEVADA
(0) 1947A cseip
13
not supporting that it's a strong DNA profile. So
we want to be sure when we say theres a match,
that it is, in fact, a match.
We don't want to make the wrong conclusions on
the item that we're looking at.
Despite the expert's testimony, the State pointed to the two
graphs and argued that the jurors could assess for themselves whether
Valentines DNA profile matched the DNA profile from the firearm swap.
During closing argument, the State made the following comments:
You heard about the DNA evidence in this
case. Now, the scientist came in. She told you she
could not make any results. The results that she
had for the swab of the gun were below the
threshold. But we went through every single one.
And that's something you need to also take a look at
when you go back there, just to see what you think
for yourself. When we went through and looked at
the items below the 200 threshold, but above the 40
threshold this is what we found. We found that the
swab of the handgun revealed a 12 and a 13 allele.
Mr. Valentine, a 12 and a 13 allele. The swab also
[had] a 28 allele on the next [location]. A 28 allele
on that same [location] for Mr. Valentine.
(Emphases added.) Valentine objected and argued that the States own
expert said that such a comparison was improper. The district court
overruled the objection, finding the prosecutor was merely arguing that
some weight should be given to the evidence and stating it was up to the
jury to decide the weight to give the evidence. The State continued:
[I]t's worth takhig into consideration. You are here
for two weeks. Look at all the evidence. This is
part of the evidence. You heard that under each
[location] there is a number of alleles. And here,
though, yeah, maybe the threshold is under 200,
14
there's something here. But just consider for
yourself.
Next, we have the [location] on the swab of
the handgun, 15 and 16. Mr. Valentine also at 15
and 16. Next [location] at 7; Mr. Valentine also at
7. Next [location] at 12 and 13; Mr. Valentine also
at 12 and 13. So on and so forth, matching.
Ladies and gentlemen, ifs just worth
considering. Take a look at it. See what you think.
Make your own determination.12
(Emphases added.)
Without reservation, we conclude the prosecutor's closing
argument was improper. "[A] prosecutor may argue inferences from the
evidence and offer conclusions on contested issuee during closing
argument, but "[a] prosecutor may not argue facts or inferences not
supported by the evidence." Miller v. State, 121 Nev. 92, 100, 110 P.3d 53,
59 (2005) (internal quotation marks omitted). Here, the State presented an
12In his closing argument, Valentine attempted to rebut the State's
presentation of the evidence:
The DNA analysis, she seemed to really know
her stuff. States expert. They put her on. What
did she testify to? Well, she testified to a lot with
the State and she looked extremely uncomfortable,
which was clarified on cross that, a lot of this, well,
the peaks, theres a little bit of peak that sort of
matches him. She was very uncomfortable about
that because as she said on cross, thafs not how it
works. It's not reliable under a certain level. They
can't say inside—for scientific certainty that ifs
even possible. Ifs even plausible, because they
might get totally different results if they run it
again. That's why she was uncomfortable testifying
to that.
15
expert witness to testify as to the DNA results obtained from the swab of
the firearm. See United States v. McCluskey, 954 F. Supp. 2d 1224, 1253
(D.N.M. 2013) ("[J]urors can understand and evaluate many types of
evidence, but DNA evidence is different and a prerequisite to its admission
is technical testimony from experts to show that correct scientific
procedures were followed." (internal quotation marks omitted)). The
purpose of expert testimony "is to provide the trier of fact [with] a resource
for ascertaining truth in relevant areas outside the ken of ordinary laity."
Townsend v. State, 103 Nev. 113, 117, 734 R2d 705, 708 (1987); see also
NRS 50.275 ("If scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert . . . may testify to matters within the
scope of such knowledge."). But after presenting its expert to testify about
a subject outside the ordinary range of knowledge for jurors, the State
disregarded that testimony and invited the jury to make inferences that the
expert testified were not supported by the DNA evidence. The State asked
the jury to consider evidence about which the expert was emphatic she could
make no conclusions, save for her overall conclusion that the evidence was
consistent with a mixture of at least two persons, at least one of whom was
male. The State then asked the jury to compare the unusable profile to
Valentines DNA profile. This is precisely what the expert said she could
not do because it would be unreliable. See Hallmark v. Eldridge, 124 Nev.
492, 500, 189 P.3d 646, 651 (2008) (holding that expert witness "testimony
will assist the trier of fact only when it is relevant and the product of reliable
methodolog? (footnote omitted)). No evidence was introduced, statistical
or otherwise, regarding the significance or meaning of the data that fell
below the 200 threshold. To the contrary, the only evidence presented was
that such information produced an unusable profile and was not considered
16
by the expert. It is hard to imagine what weight could be ascribed to
evidence that was described only as inconclusive, unusable, and
incomparable. Rather, the States use of the expert's testimony can better
be viewed as taking advantage of the "great emphasis" or the "status of
mythic infallibility" that juries place on DNA evidence. People v. Marks,
374 P.3d 518, 525 (Colo. App. 2015) (internal quotation marks omitted).
Simply put, the prosecution argued facts not in evidence and inferences not
supported by the evidence. This was improper.
We nevertheless conclude that the improper argument would
not warrant reversal of Valentines convictions because it did not
substantially affect the jury's verdict. See Valdez, 124 Nev. at 1188-89, 196
P.3d at 476. There was evidence presented that Valentine handled the gun
and multiple victims identified Valentine as the perpetrator. Thus, the
error was harmless, and Valentine is not entitled to a new trial based on
the prosecutorial misconduct. 13
CONCLUSION
The district court abused its discretion in denying Valentines
request for an evidentiary hearing on his fair-cross-section challenge. We
therefore vacate the judgment of conviction and remand for the district
court to conduct an evidentiary hearing and resolve the fair-cross-section
challenge. None of Valentines other arguments require a new trial.
Accordingly, if the district court determines on remand that the fair-cross-
section challenge lacks merit, it may reinstate the judgment of conviction
13We have considered Valentines remaining contentions of error and
conclude no additional relief is warranted.
17
except as to the convictions for counts 4 and 9, which were not supported by
sufficient evidence.14
J.
Stiglich
We concur:
Hardesty
J.
Silver
'4This opinion constitutes our final disposition of this appeal. Any
future appeal following remand shall be docketed as a new matter.
18