IN THE SUPREME COURT OF THE STATE OF NEVADA
NORMAN RENORD SMITH, No. 78604
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. MAY 1 2021
ELIZFOE BROWN
CLE • ME COURT
BY
ORDER OF AFFIRMANCE DEPT CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of voluntary manslaughter with the use of a deadly weapon.1
Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
Appellant Norman Smith argues that the district court erred in
denying his motions for a mistrial based on two separate outbursts
involving the victim's parents. "A defendant's request for a mistrial may be
granted . . . where some prejudice occurs that prevents the defendant from
receiving a fair trial," Rudin v. State, 120 Nev. 121, 144,
86 P.3d 572, 587
(2004), and the district court's "judgment will not be overturned absent an
abuse of discretion,"
id. at 142,
86 P.3d at 586.
Smith moved for a mistrial after two separate incidents where
the victim's parents disrupted the proceedings. First, during voir dire, the
victim's father's use of profanity interrupted the examination of the
prospective jurors. When court marshals approached the victim's father, he
moved toward the defense table and stated "you shot my daughter." After
the marshals removed him from the courtroom, the parties met for a bench
conference and then continued voir dire. Outside the presence of the jury,
Smith requested a mistrial, which the district court denied. Second, during
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
1- ckS 1
Smith's closing argument about self-defense, the victim's mother disrupted
the proceedings before being escorted out of the courtroom. After the
marshals removed her, Smith continued his closing argument. Although
the outburst is not reflected in the record, when discussing the issue outside
the presence of the jury, the parties believed she stated, "I'm the mother.
[Smith] didn't have to shoot her."2 The statement appears to have been in
response to Smith's argument that the victim should have gone home before
anything bad happened.
We conclude the district court erred in not taking steps to
minimize the potential prejudice immediately after the outbursts. See
Johnson v. State, 122 Nev. 1344, 1359,
148 P.3d 767, 777 (2006) (approving
of "the district court promptly excus [ing] the jurors and admonish[ing]
them" after a disruption in the courtroom). However, under the specific
facts of this case, we also conclude that the district court did not abuse its
discretion in denying Smith's motions for a mistrial. See Simrnons v. State,
840 S.E.2d 365, 367 (Ga. 2020) (mistrial not warranted where jury observed
emotional outbursts of the victim's family members and the district court
"did not question the jurors about what they saw, and did not give a curative
instruction about the outbursts"); State v. Guay, 33 A.3d 1166, 1170-71
(N.H. 2011) (mistrial not warranted after victim shouted that the defendant
was "'such a freakin' liar'" from the audience); Miller v. State, 741 S.W.2d
382, 390-91 (Tex. Crim. App. 1987) (mistrial not warranted where victim's
relative attempted to confront the defendant in the courtroom "'by going
over the rair). Here, the court marshals removed both of the victim's
parents after the incidents, signaling to the jury that the outbursts were
2The video recording of the proceedings is consistent with the
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substance of the comment discussed by the parties.
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inappropriate. In fact, one juror asked court staff if there would be
increased security over concerns about the father's outburst. After the
mother's outburst, the district court instructed the jury to disregard the
inappropriate outburst from the audience and not to consider it during
deliberations and that sympathy or public opinion must not influence the
verdict.3 And "this court generally presumes that juries follow district court
orders and instructions." Summers v. State, 122 Nev. 1326, 1333,
148 P.3d
778, 783 (2006). Moreover, we conclude any prejudice arising from the
disruptions did not prevent appellant from receiving a fair trial. Both
comments about Smith shooting the victim did not affect the fairness of the
trial as he conceded the act by asserting self-defense.
Smith also argues that the prosecutor committed multiple
instances of misconduct. "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). Smith concedes he did not object to any of the
alleged instances of prosecutorial misconduct. Thus, we apply plain-error
review, 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.
Id. at 1190,
196 P.3d at 477 (internal
quotation marks omitted). Here, after reviewing the record, we discern no
plain error that warrants relief. See NRS 178.602 (plain error standard).
3The district court agreed to provide a similar admonition after the
father's outburst, but the record reflects that this did not occur.
3
First, Smith contends that the State made an improper
emotional argument during its opening statement when it stated: "two lives
were taken from this earth, both much too soon for absolutely no reason,
the young life of [the victim], as well as the life of her unborn baby. Both
young lives lost at the hands of . . . Smith." Even assuming this comment
constitutes improper argument, see Watters v. State, 129 Nev. 886, 889-90,
313 P.3d 243, 247 (2013) (explaining that opening statements provide an
opportunity to outline the evidence to be presented, not for argument), we
conclude Smith has not shown plain error warranting reversal because after
the isolated comment occurred the State transitioned to explaining what
the evidence would show during trial. See Thomas v. State, 120 Nev. 37, 47,
83 P.3d 818, 825 (2004) C`[S]tatements should be considered in context, and
a criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone." (internal quotation marks
omitted)).
Second, Smith contends that the State disparaged defense
counsel while questioning a witness and commenting that defense counsel
only showed the witness parts of her prior statement before asking the
witness to read the entire statement. We disagree and conclude that the
prosecutor's statement did not disparage Smith or his counsel. Cf. Butler v.
State, 120 Nev. 879, 898-99,
102 P.3d 71, 84-85 (2004) (disapproving of the
State characterizing the "defense tactics as a dirty technique in an attempt
to fool and distract the jury, implying that [defense] counsel acted
unethically").
Third, Smith contends that the State improperly refreshed a
witness's recollection. We disagree and conclude that after the witness did
not recall part of her statement to the police, the State properly asked her
to read the relevant portion of her statement. Cf. Jeremias v. State, 134
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Nev. 46, 53, 412 P.3d 43, 50 (disapproving of a prosecutor referring a
witness to a transcript "[w]ithout first establishing that [the witness's]
memory needed refreshine).
Fourth, Smith contends that the State misstated the evidence
during closing arguments. We disagree. The State outlined the coroner's
findings, i.e., that the victim died from a gunshot wound to the chest and
that the manner of death was homicide. The State then argued that the
victim's death was a murder. See Truesdell v. State, 129 Nev. 194, 203,
304
P.3d 396, 402 (2013) ([T]he prosecutor may. . . assert inferences from the
evidence and argue conclusions on disputed issues."). Finally, to the extent
Smith contends that the cumulative effect of misconduct prejudiced his
right to a fair trial, we disagree. See Hernandez v. State, 118 Nev. 513, 535,
50 P.3d 1100, 1115 (2002) (concluding "that any errors which occurred were
minor and, even considered together, do not warrant reversar).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Pa aguirregi
, J. ;4•4..4eAD , J.
Stiglich Silver
cc: Chief Judge, Eighth Judicial District Court
Department 21, Eighth Judicial District Court
Law Office of Patricia M. Erickson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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