IN THE SUPREME COURT OF THE STATE OF NEVADA
DELBERT MARSHALL GREENE, No. 78482
Appellant,
VS.
THE STATE OF NEVADA, FILED
Respondent.
MAY 1 4 2021
ELIZABF/111 BROWN
UPfiEtAi -COURT
DE CLERK
ORDER OF AFFIRMANCE
This is an appeal from judgment of conviction, pursuant to a
jury verdict, of battery with the use of a deadly weapon resulting in
substantial bodily harm, conspiracy to commit robbery, 8 counts of burglary
while in possession of a deadly weapon, and 16 counts of robbery with the
use of a deadly weapon. Eighth Judicial District Court, Clark County;
Jerry A. Wiese, Judge.
The jury found appellant Delbert Greene guilty of burgling and
robbing eight different franchise restaurants. During one robbery, Greene,
accompanied by a coconspirator, stabbed an employee twice with a knife.
Greene raises three issues on appeal.
First, Greene argues that inconsistent physical descriptions by
the various witnesses compels the conclusion that insufficient evidence
supports his convictions. We disagree. When reviewing the sufficiency of
the evidence supporting a criminal conviction, we consider "whether, after
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
SUPREME COURT
OF
NEVADA
(0) I947A 40*. 1 - 3 cts
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." Jackson v. Virginia, 443 U.S. 307, 319 (1979);
see also Origel-Candido v. State,
114 Nev. 378, 381,
956 P.2d 1378, 1380
(1998). Here, the State presented video surveillance from many of the
robberies and eyewitness testimony from every incident. Police recovered
several articles of clothing and weapons in Greene's possession that were
consistent with the eyewitness testimony and surveillance videos. While
some of the witnesses offered differing testimony about the perpetrator's
age and physical attributes—e.g., height, build, and facial hair—three of
the witnesses identified Greene as the perpetrator. See Rose v. State,
123
Nev. 194, 202-03,
163 P.3d 408, 414 (2007) (providing that this court will
not reweigh the evidence or substitute its judgment for that of the jury).
Next, Greene argues that prosecutorial misconduct warrants
reversal. "When considering claims of prosecutorial misconduct, this court
engages in a two-step analysis. First, we must determine whether the
prosecutor's conduct was improper. Second, if the conduct was improper,
we must determine whether the improper conduct warrants reversal."
Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008) (footnotes
omitted). Here, Greene contends that the prosecutor improperly vouched
for the credibility of the lead detective during trial by asking leading
questions and eliciting his opinion about the investigation and decision to
arrest Greene. See Anderson v. State,
121 Nev. 511, 516,
118 P.3d 184, 187
(2005) (providing that "[a] prosecutor may not vouch for the credibility of a
witnese). Greene did not object below and we discern no plain error, see
Valdez,
124 Nev. at 1190,
196 P.3d at 477 (reviewing unpreserved claims of
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prosecutorial misconduct for plain error, which must be "plain from a review
of the record [and] does not require reversal unless the defendant
demonstrates that the error affected his or her substantial rights, by
causing actual prejudice or a miscarriage of justice (internal quotation
marks omitted)), because the State did not vouch for the credibility of the
detective, cf. Browning v. State, 120 Nev. 347, 359,
91 P.3d 39, 48 (2004)
C[V]ouching occurs when the prosecution places the prestige of the
government behind the witness by providing personal assurances of [the]
witness's veracity." (alteration in original) (internal quotation marks
omitted)). Greene also contends the State made improper golden rule
arguments during closing by using the term "you" while explaining
definitions and elements related to the charged offenses but again he did
not object below so we review for plain error. Id.; see also Lioce v. Cohen,
124 Nev. 1, 22,
174 P.3d 970, 984 (2008) ("An attorney may not make a
golden rule argument, which is an argument asking jurors to place
themselves in the position of one of the parties."). After the prosecutor used
the pronoun "you," the district court sua sponte interrupted the State's
closing and called a bench conference. When making a record of the
discussion, the parties explained that, despite no objection from Greene, the
district court proactively admonished the prosecutor about potentially
implicating the golden rule by using the pronoun "you." Further, Greene
conceded that the prosecutor stopped after the admonishment. Therefore,
we discern no plain error.
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Greene also argues that cumulative error warrants reversal.
Because we discern no error, there is nothing to cumulate. See Lipsitz v.
State, 135 Nev. 131, 140 n.2,
442 P.3d 138, 145 n.2 (2019) (concluding that
there were no errors to cumulate when the court found only one error).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
--94.k136. 64*.r.mig7j.
Parraguirre
Ale shaukt , J.
Stiglich
LI:A/tag/I)
Silver
CC: Hon. Jerry A. Wiese, District Judge
Aisen Gill & Associates LLP
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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