IN THE SUPREME COURT OF THE STATE OF NEVADA
BRENTON EARL SMITH, No. 79600
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
MAR 0 5 2021
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
BY
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of second-degree murder with the use of a deadly weapon.'
Eighth Judicial District Court, Clark County; Michael Villani, Judge.
Appellant first argues that insufficient evidence supports the
conviction. Specifically, he argues that there was no evidence of the malice
aforethought required for second-degree murder and that he demonstrated
adequate provocation to reduce the charge from murder to voluntary
manslaughter. When reviewing a challenge to the sufficiency of the
evidence supporting a criminal conviction, this court considers "whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56,
825
P.2d 571, 573 (1992) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
We conclude that sufficient evidence supported the conviction. Despite the
victim's initial provocation, the evidence showed that appellant shot at the
victim multiple times as the victim was fleeing with appellant in pursuit
'Pursuant to NRAP 34(()(1), we have determined that oral argument
is not warranted in this appeal.
and appellant testified that he had time to leave the situation once the
victim began to flee. See NRS 200.020; NRS 200.030; NRS 200.060; Rose v.
State, 123 Nev. 194, 202-03,
163 P.3d 408, 414 (2007) (providing that this
court will not reweigh evidence or substitute its judgment for that of the
jury on conflicting evidence).
Appellant next argues that the State exercised a peremptory
challenge in violation of Batson v. Kentucky, 476 U.S. 79 (1986). When
considering a Batson challenge, the district court must engage in a threestep inquiry. McCarty v. State,
132 Nev. 218, 226,
371 P.3d 1002, 1007
(2016). The first step is moot where, as here, the proponent provides its
race-neutral reason before the district court determines if the opponent
made a prima facie case of discrimination.2 See Williams v. State,
134 Nev.
687, 691-92,
429 P.3d 301, 306-07 (2018). Second, the proponent of the
challenge must provide a non-discriminatory rationale for the challenge.
McCarty, 132 Nev. at 226, 371 P.3d at 1007. Third, after evaluating the
proponent's neutral explanation, the district court must determine if the
challenge's opponent proved purposeful discrimination. Id.
The State provided non-discriminatory reasons for striking the
prospective juror: the district attorney's office prosecuting the case at hand
had prosecuted a case against the prospective juror's son resulting in a
conviction for ten felonies, the prospective juror's daughter witnessed the
shooting homicide of an ex-boyfriend, and the prospective juror himself had
been racially profiled by the same police force that investigated the crimes
at issue which, taken together, could cause bias toward the State. In finding
no purposeful discrimination, the district court noted the prospective juror's
2 Because the first step is moot in this case, we decline to address
appellant's argurnents regarding the standard of review for that step.
2
statement that he felt racially profiled by the police and recognized that,
while other prospective jurors had family members or others close to them
accused of crimes, the prosecuting district attorney's office did not prosecute
those crimes. The district court further found the prospective juror's
responses curt, he appeared irritated, and he "seemed to be glaring at the
Court." The court also found the State did not conduct disparate
questioning of other prospective jurors. Giving deference to the district
court's factual and credibility findings, we conclude that appellant has not
demonstrated clear error.3 Williams v. State, 134 Nev. 687, 689,
429 P.3d
301, 306 (2018) (Because the district court is in the best position to rule on
a Batson challenge, its determination is reviewed deferentially, for clear
error."); Hawkins v. State, 127 Nev. 575, 577,
256 P.3d 965, 966 (2011)
CAppellate review of a Batson challenge gives deference to [t]he trial court's
decision on the ultimate question of discriminatory intent." (internal
quotation marks omitted)). That conclusion is not affected by appellant's
argument that Black prospective jurors, such as the prospective juror
challenged here, are more likely to have had negative interactions with law
enforcement or have been closely connected to someone involved in a serious
crime. As noted by the district court, the concerns regarding the prospective
juror went beyond prior experiences with law enforcement or the criminal
justice system. More importantly, the district court found that the State
did not strike the juror based on his race, and thus the juror's interactions
3We decline to address appellant's arguments regarding his successful
challenge to the State's use of a peremptory challenge as to another
prospective juror, as that juror was empaneled. See Diornarnpo v. State, 124
Nev. 414, 422,
185 P.3d 1031, 1036 (2008) (recognizing that Batson is
concerned with the improper removal of potential jurors through
peremptory challenges).
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with the legal system were not being used as a pretext for unlawful
discrimination. This finding is supported by the record.
Appellant next challenges the district court's refusal to admit
any evidence of the victim's and his associates purported gang affiliations,
which appellant claims prevented him from showing the jury the fear that
overcame him during his confrontation with the victim to support his claims
of self-defense or considerable provocation. A defendant may offer
"[e]vidence of the character or a trait of character of the victim," NRS
48.045(1)(b), to show that the victim was the likely aggressor, Daniel v.
State, 119 Nev. 498, 514,
78 P.3d 890, 901 (2003). We find no abuse of
discretion in the district court's refusal to admit the gang affiliation
evidence when appellant failed to show that either the victim's or his
associates' purported gang affiliation equated to a violent character and
nothing suggested that the crime at issue was gang-related.4 See NRS
48.045(1)(b); Butler v. State, 120 Nev. 879, 889,
102 P.3d 71, 78 (2004)
(reviewing the decision to admit or exclude such evidence for an abuse of
discretion). Moreover, any error in declining to admit the evidence was
harrnless. See Daniel, 119 Nev. at 516-17,
78 P.3d at 902 (indicating that
the district court's improper exclusion of evidence of the victim's propensity
for violence is subject to harmless error review). The jury heard other
We implicitly recognized that gang affiliation does not automatically
4
equate to a violent character in Pineda v. State, 120 Nev. 204, 213,
88 P.3d
827, 834 (2004). There, we held that expert testimony was admissible to
inform the jury of "the violent nature of gang members, . . . methods of
attack through utilization of superior numbers, [and] the propensity of gang
members to carry deadly weapons" because that testimony would
corroborate the reasonableness of the defendant's belief that the victims
rnay have been armed given their gang membership. Id. at 213,
88 P.3d at
834.
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testimony that showed the victim's violent character including a number of
specific acts of violence the victim committed against his own family
members and others: throwing a Molotov cocktail at his mother's house
while she was inside, shooting his brother's car, physically assaulting his
sister and his niece, and physically assaulting and threatening to kill
another woman. And we are convinced that the excluded gang evidence
would not have affected the verdict given the overwhelming evidence that
appellant did not act in self-defense: he chased the victim down over 100
yards and fired 11 shots at the fleeing victim, and he testified that he had
time to leave the scene or call for help before doing so. See Runion v. State,
116 Nev. 1041, 1051,
13 P.3d 52, 59 (2000) (discussing that a self-defense
killing is justified when the defendant reasonably believes that the killing
is necessary in order to avoid death or great bodily injury to himself).
Appellant next challenges two jury instructions. As to the
reasonable doubt instruction and appellant's challenge to the "more weighty
affairs of life" language therein, the district court gave the instruction
required by NRS 175.211(1) and "[n]o other definition of reasonable doubt
may be given," NRS 175.211(2). See Belcher v. State, 136 Nev., Adv. Op. 31,
464 P.3d 1013, 1029 (2020) (rejecting a challenge to the constitutionality of
NRS 175.211(1)s reasonable doubt instruction). And we have repeatedly
rejected challenges similar to appellant's regarding the equal and exact
justice instruction. See id. (collecting cases). Appellant did not object below
and, based on the above, we discern no plain error. See NRS 178.602; Green
v. State, 119 Nev. 542, 545,
80 P.3d 93, 94-95 (2003) (reviewing an
unobjected-to error for plain error affecting the appellant's substantial
rights).
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We also reject appellant's cumulative-error argument, as
appellant has demonstrated at most only one error in this case. See United
States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000) (One error is not
cumulative error."). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Cadish
Pickering
Rot
J.
Herndon
cc: Hon. Michael Villani, District Judge
Law Office of Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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