IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN VINCENT KELLEY, No. 80311
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
APR 2 O 2021
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,
discharge of a firearm from or within a structure or vehicle, and ownership
or possession of a firearm by a prohibited person. Eighth Judicial District
Court, Clark County; Stefany Miley, Judge.
Appellant first argues that insufficient evidence supports the
second-degree murder conviction; instead, the evidence shows he acted in
self-defense. 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. Appellant
admitted to shooting the victim and an eyewitness testified that, after a
verbal altercation, appellant shot the victim as the victim was sitting on or
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
-z_i_11(4zY
getting up from a couch. See NRS 200.030(2); NRS 200.120; Runion v. State,
116 Nev. 1041, 1051,
13 P.3d 52, 59 (2000) (discussing the circumstances
that justify a killing in self-defense). While there was conflicting evidence
regarding whether the victim threatened appellant with a knife or whether
appellant otherwise had the requisite fear to establish self-defense, it is for
the jury to determine credibility and weigh the evidence. 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).
Appellant also contends that the State engaged in several
instances of prosecutorial misconduct. In reviewing claims of prosecutorial
misconduct, we first "determine whether the prosecutor's conduct was
improper," and if so, "whether the improper conduct warrants reversal."
Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). When the
error is not of a constitutional dimension, "we will reverse only if the error
substantially affects the jury's verdict."
Id. at 1189,
196 P.3d at 476.
Reversal is not warranted, however, if the misconduct is harmless beyond a
reasonable doubt. Anderson v. State,
121 Nev. 511, 516,
118 P.3d 184, 187
(2005). We apply plain-error review to unobjected-to claims of prosecutorial
misconduct, which requires "an error that is plain from a review of the
record" and "affected [appellant's] substantial rights, by causing actual
prejudice or a miscarriage of justice" for reversal. Valdez,
124 Nev. at 1190,
196 P.3d at 477 (internal quotation marks omitted).
Appellant first challenges a series of staternents regarding the
felon-in-possession charge as improperly calling on the community's
conscience, disparaging the defense, shifting the burden of proof, and
arguing facts not in evidence. We agree with appellant to the extent he
argues that the State disparaged him by referring to him as a "gang
2
banger."2 See McGuire v. State, 100 Nev. 153, 157,
677 P.2d 1060, 1064
(1984) (Disparaging comments have absolutely no place in a courtroom,
and clearly constitute misconduct."). Such error is harmless, however,
because the State made the reference in passing and immediately stopped
after the district court sustained appellant's objection on that basis. See
Anderson, 121 Nev. at 516,
118 P.3d at 187 (recognizing that comments
constituting misconduct that are "merely passing in nature" are harmless
beyond a reasonable doubt). Otherwise, the State was properly rebutting
arguments appellant raised in his closing statement. See Greene v. State,
113 Nev. 157, 178,
931 P.2d 54, 67 (1997) (The strongest factor against
reversal on the grounds that the prosecutor made an objectionable remark
is that it was provoked by defense counsel."), receded from on other grounds
by Byford v. State, 116 Nev. 215, 235,
994 P.2d 700, 713 (2000).
To the extent the State referring to appellant's testimony as a
"load of hogwash" constitutes misconduct, we conclude that such
misconduct does not amount to plain error.3 This comment responded to
appellant's insinuation that the State did not call certain witnesses to hide
information. See Greene, 113 Nev. at 178,
931 P.2d at 67. Moreover, when
a case's "outcome depends on which witnesses are telling the truth,
reasonable latitude should be given to the prosecutor to argue the credibility
of the witness—even if means occasionally stating in argument that a
witness is lying." Rowland v. State, 118 Nev. 31, 39,
39 P.3d 114, 119 (2002)
(finding no misconduct when the State made the challenged statement "in
2The district court sustained appellant's objections to this series of
statements. We note appellant's gang membership was at issue in the case.
3Appe11ant did not object to this statement below.
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the context of arguing the credibility of a witnese). Appellant's credibility
regarding his purported status as a government informant and his fear
supporting a claim of self-defense were directly at issue in this case. And,
despite objecting below, appellant's challenge to the State's comment that
he testified to "coved ] his ase also fails because his credibility was at issue
in the case.4 See id.
Having considered appellant's remaining claims of
prosecutorial misconduct, we conclude that they do not warrant relief.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
/-le.,.t , C.J.
Hardesty
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C , J
Cadish
Picked 2 , J
Pickering
cc: Hon. Stefany Miley, District Judge
Jonathan E. MacArthur, P.C.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4Appe11ant did not assert cumulative error until his reply brief, and
we therefore decline to consider it. See Talancon v. State, 102 Nev. 294, 302
n.4, 721 P.2d 764, 769 n.4 (1986) (recognizing that this court declines to
consider arguments not raised in an opening brief).
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