137 Nev., Advance Opinion 50
IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID JAMES BURNS, No. 80834
Appellant,
vs.
THE STATE OF NEVADA,
MEE
Respondent.
ilEF DEPUTY i;LERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit robbery, conspiracy to commit murder,
burglary while in possession of a firearm, two counts of robbery with the
use of a deadly weapon, murder with the use of a deadly weapon, attempted
murder with the use of a deadly weapon, and battery with the use of a
deadly weapon. Eighth Judicial District Court, Clark County; J. Charles
Thompson, Senior Judge.
Affirmed.
Resch Law, PLLC, dba Conviction Solutions, and Jamie J. Resch, Las
Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Pamela C. Weckerly and Alexander G. Chen, Chief Deputy
District Attorneys, Clark County,
for Respondent.
BEFORE THE SUPREME COURT, HARDESTY, C.J., STIGLICH and
SIINER, JJ.
V- 74411s-
OPINION
By the Court, STIGLICH, J.:
In this appeal, we consider the scope of a mid-trial waiver of
appellate rights. During a capital trial, appellant David Burns stipulated
to a sentence of life without the possibility of parole if the jury found him
guilty and to waive his right to appeal issues "stemming from the gthlt
phase of the trial." In exchange, the State agreed to withdraw its notice of
intent to seek the death penalty. The jury found Burns guilty, and the court,
sitting without a jury, sentenced him to life without the possibility of parole.
He now appeals, raising errors related to a pretrial motion to suppress, jury
selection, closing arguments, jury deliberations, and sentencing.
We hold that Burns did not waive any errors that occurred
during closing arguments because oral representations made to the court
and reflected in the record indicate that the parties did not intend to extend
the waiver to such errors. Further, we hold that Burns did not waive any
errors that occurred during sentencing because sentencing was clearly not
part of "the guilt phase of the trial." It is less clear on these facts whether
voir dire is encompassed within "the guilt phase of trial," and so we construe
the waiver against the government and conclude that Burns did not waive
the claim relating to jury selection. But we hold that Burns waived the
other alleged errors, even those that may have arisen after the agreement
was executed. While unrelated to the appellate waiver portion of his
agreement, we also conclude that Burns stipulation to the sentence the
court imposed precludes his argument on appeal that the sentence is
unreasonable and unconstitutional. Because we conclude that there was no
reversible error in jury selection or closing arguments, we affirm the
judgment of conviction.
2
BACKGROUND
Appellant David Burns was charged with conspiracy to commit
robbery, conspiracy to commit murder, burglary while in possession of a
firearm, two counts of robbery with the use of a deadly weapon, murder with
the use of a deadly weapon, attempted murder with the use of a deadly
weapon, and battery with the use of a deadly weapon. The charges stemmed
from a home robbery in which a woman was shot and killed and her 12-
year-old daughter was shot but survived. Although several individuals
were involved, Burns was prosecuted as the shooter. The State filed a notice
of intent to seek the death penalty, and the case proceeded to a bifurcated
jury trial with a guilt phase and a penalty phase.
On the twelfth day of trial, Burns and the State presented a
Stipulation and Order (Agreement) for the district court's approval. This
Agreement contained two related provisions. In the first, Burns agreed to
waive a penalty hearing before the jury and stipulated to a sentence of life
without the possibility of parole if the jury found him guilty of first-degree
1
murder. In the second, the State agreed to withdraw the notice of intent to
seek the death penalty in exchange for Burns waiver of "all appellate rights
stemming from the guilt phase of the trial." When the parties presented
the Agreement to the district court, the State was still presenting its case-in-chief. Burns' codefendant did not waive his appellate rights, and Burns'
attorneys told the court that the codefendant's presence would provide a
safeguard against future misconduct despite Burns' appeal waiver.
During discussion of the Agreement, Burns' attorney explained
that "for purposes of further review down the road, we are not waiving any
potential misconduct during the closing arguments. We understand that to
be a fertile area of appeal." The State did not contest that statement and
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implied that the defense attorney's recounting of the Agreement was
correct. The district court approved the Agreement.
The jury found Burns guilty on all charges. Burns filed a
sentencing memorandum detailing a report of mitigating factors, including
Burns age at the time of the crime, a diagnosis of fetal alcohol syndrome,
and other cognitive issues. The district court sentenced Burns to life
without the possibility of parole for the first-degree murder conviction.
Burns' counsel declined to file a direct appeal because of the
waiver, asserting that Burns would have a better likelihood of success in a
postconviction habeas proceeding. However, on appeal from a district court
order denying Burns' subsequent postconviction habeas petition, this court
held that Burns' trial counsel was ineffective for not filing a direct appeal
when Burns desired to do so. See Totson v. State, 127 Nev. 971, 979,
267
P.3d 795, 801 (2011) NT' rial counsel has a duty to file a direct appeal when
the client's desire to challenge the conviction or sentence can be reasonably
inferred from the totality of the circumstances . . . ."). Accordingly, Burns
was permitted to file this untimely direct appeal under NRAP 4(c). Burns
v. State, Docket No. 77424 (Order Affirming in Part, Reversing in Part and
Remanding, Jan. 23, 2020).
DISCUSSION
In this appeal, we consider the scope of Burns' mid-trial waiver
of appellate rights and then the merits of the nonwaived claims. The State
contends that Burns waived all the claims brought in this appeal, and Burns
disagrees. Burns' claims on the merits include error in admitting evidence,
a wrongly denied Batson' objection, prosecutorial misconduct, error in
'Batson v. Kentucky, 476 U.S. 79 (1986).
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allowing the jury to review video of trial testimony, and an unreasonable
and unconstitutional sentence.
Burns waiver covered all allegations of error except those related to voir dire,
closing arguments, and sentencing
The State claims that Burns waived the right to appellate
review of every error he raises in this appeal because they all fall within the
scope of "the guilt phase of the trial" referenced in the Agreement. In
contrast, Burns argues that "the guilt phase of the trial" only refers to the
States case-in-chief.2 Burns does not challenge the validity of the appeal
waiver in this case, only its scope.
This court has held that contract principles apply when
analyzing a written guilty plea agreement. See, e.g., State v. Crockett, 110
Nev. 838, 842,
877 P.2d 1077, 1079 (1994). The same principles apply here.
Although the Agreement at issue did not include a guilty plea, it is a
contract to the same extent as a written plea agreement. Similar to a
written guilty plea agreement, the Agreement here involved a bargainedfor exchange between a defendant and the State, with both parties
relinquishing a known right. Applying contract principles, we must
construe the Agreement from its plain language and enforce it as written.
2In addition, Burns argues that this coures decision in his
postconviction appeal determined the scope of this appeal by finding that
counsel was ineffective for not filing a direct appeal. Burns incorrectly
reads our prior decision as if we considered the waiver's scope. We did not.
Our prior decision simply concluded that Burns' counsel had a duty to file
the requested direct appeal regardless of the waiver. Cf. Garza v. Idaho,
U.S. „ 139 S. Ct. 738, 747 (2019) (holding that, despite an appeal
waiver, an attorney was ineffective for refusing to file an appeal upon the
defendant's request). We said nothing about what issues, if any, Burns
could raise in a direct appeal given the waiver.
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See Canfora v. Coast Hotels & Casinos, Inc., 121 Nev. 771, 776,
121 P.3d
599, 603 (2005) ("Millen a contract is clear on its face, it 'will be construed
from the written language and enforced as written.'" (quoting Ellison v. Cal.
State Auto. Ass'n, 106 Nev. 601, 603,
797 P.2d 975, 977 (1990))). But any
ambiguities must be construed against the State. See United States v.
Under Seal, 902 F.3d 412, 418 (4th Cir. 2018); United States v. Andis,
333
F.3d 886, 890 (8th Cir. 2003).
The Agreement stated as follows:
[Tlhe parties hereby stipulate and agree to waive
the separate penalty hearing in the event of a
finding of guilt on Murder In the First Degree and
pursuant to said Stipulation and Waiver agree to
have the sentence of LIFE WITHOUT THE
POSSIBILITY OF PAROLE imposed by the
Honorable Charles Thompson, presiding trial
judge.
FURTHER, in exchange for the State
withdrawing the Notice of Intent to Seek the Death
Penalty, Defendant agrees to waive all appellate
rights stemming from the guilt phase of the trial.
Although the Agreement does not explain what constitutes "the guilt phase
of the trial," this phrase is typically used to distinguish between the parts
of a bifurcated criminal trial when guilt is determined versus when a
sentence is determined. "The first phase of a bifurcated capital case may be
referred to as the 'guilt phase as a convenient abbreviation, rather than
using awkward terms such as the 'guilt or innocence phase or
'determination of guilt or innocence phase." State v. Mason, 694 N.E.2d
932, 948 (Ohio 1998); see also NRS 175.552(1) (providing that guilt phase
and penalty phase in capital ca.ses are separate proceedings for murder of
the first degree); Harte v. State, 132 Nev. 410, 411,
373 P.3d 98, 99-100
(2016) (distinguishing the "guilt phase of trial" and the "penalty hearing"
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when discussing admissibility of certain forms of evidence). It is fairly clear
when the guilt phase of a trial ends—when a verdict is returned as to the
defendant's guilt. Thus, Burns claim on appeal that his sentence was
unconstitutional is not waived by this provision, since sentencing occurred
after the guilt phase of the trial finished.
It is much less clear when the guilt phase of a trial begins. Does
it begin with the swearing in of the venire from which the jury is selected
or the swearing in of the impaneled jurors? Black's Law Dictionary defines
"guilt phase" as "[t]he part of a criminal trial during which the fact-finder
determines whether the defendant committed a crime." Guilt Phase,
Black's Law Dictionary (11th ed. 2019). That definition contemplates the
fact-finder already being in place when the guilt phase begins. In jury
trials, the fact-finder is the impaneled jury—which categorically does not
exist until voir dire is completed. This suggests that the guilt phase begins
after voir dire. Other authority is split about whether voir dire is part of
the trial or an event that occurs pretrial.3
"Generally speaking, a plea agreement or other contract is
ambiguous if it is reasonably susceptible of two meanings." Under Seal, 902
3Compare State v. Melendez, 244 So. 2d 137, 139 (Fla. 1971) ("It is
settled law that trial begins when the selection of a jury to try the case
commences."), with State v. White, 972 N.E.2d 534, 541 (Ohio 2012) ("[V]oir
dire is not a substantive part of trial; rather, it is a mechanism to seat an
impartial jury so that the due process rights of a defendant are protected.").
Under the federal Speedy Trial Act, "voir dire marks the technical
commencement of the trial, [but] the strictures of the Speedy Trial Act are
not fully satisfied by mere technical commencement." United States v.
Stayton, 791 F.2d 17, 19 (2d Cir. 1986). But, for double jeopardy purposes,
jeopardy attaches [in a jury trial] when a jury is empaneled and sworn."
Serfass v. United States, 420 U.S. 377, 388 (1975).
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F.3d at 419. Therefore, we are not tasked today with deciding once and for
all when the guilt phase of a trial begins. That the answer is unclear leads
us to conclude that the Agreement in this case is ambiguous in that respect.
Protection of defendants rights when interpreting these kinds of bargains
requires us to construe this ambiguity in the defendant's favor. For
purposes of the issue before us today (the interpretation of the Agreement),
we conclude that Burns' Batson claim is outside the scope of his waiver.
So, we necessarily reject Burns' argument that "the guilt phase
of the triar referred only to the States case-in-chief and decline to adopt
the States argument that voir dire is categorically within "the guilt phase
of the trial." In the circumstances presented here, "the guilt phase of the
friar in the Agreement's waiver provision encompassed Burns' claims
stemming from every part of the proceedings after the jury was impaneled
up until the verdict was returned.
Under that definition, the appeal waiver in the Agreement
includes closing arguments. But, during a discussion on the record
regarding the Agreement, Burns' counsel muddied the waters by stating
that Burns was not waiving appellate review of any misconduct that might
occur during closing arguments:
I believe that states the agreement, other than
there is a proviso that we, for purposes of further
review down the road, we are not waiving any
potential misconduct during the closing
statements. We understand that to be a fertile area
of appeal.
The State did not dispute defense counsel's representation that Burns
intended to reserve the right to appellate review of any errors during closing
arguments. Under the circumstances presented, we will give effect to
8
Burns oral reservation of the right to appellate review of any misconduct
during closing arguments of the guilt phase of the trial.4
With this understanding of the appeal waiver's scope, we now
consider whether it includes the claims Burns brings related to a motion to
suppress evidence and jury deliberations. We conclude that it does.
Although the district court denied the motion to suppress
evidence before the trial started, Burns is actually challenging the
admission of that evidence during the guilt phase of the trial. Any error in
denying the motion to suppress could not have prejudiced Burns until the
subject evidence was admitted during the guilt phase of the trial. Therefore,
any right to challenge the admission of this evidence "stemmed from" the
guilt phase, and Burns waived his right to appellate review of the district
court's decision.
Finally, we conclude that the appeal waiver also includes the
alleged error during deliberations, given that the deliberations preceded the
verdict as to Burns' guilt. But this alleged error is unique among the
remaining issues Burns raises because it occurred after the Agreement was
entered. As the jury was deliberating days after Burns signed the
Agreement, this issue highlights the prospective aspect of Burns' appeal
waiver—it included appellate review of errors that might happen after the
Agreement was entered.
The prospective waiver of the right to appellate review raises
some concerns because when a defendant agrees to such a waiver, he or she
4We note that NRS 174.035(3), which provides that a reservation of
the right to appellate review of an adverse pretrial decision must be in
writing, does not apply here because the Agreement does not involve a plea
of guilty, guilty but mentally ill, or nolo contendere.
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cannot know what errors may occur in subsequent proceedings. See
generally United States v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001) ("The basic
argument against presentence waivers of appellate rights is that such
waivers are anticipatory: at the time the defendant signs the plea
agreement, she does not have a clue as to the nature and magnitude of the
sentencing errors that may be visited upon her."). Nonetheless, the weight
of authority, with some narrow exceptions, bends toward enforcing knowing
and voluntary waivers of the right to appeal, even if it means barring
appellate review of errors arising after the waiver is entered.5 Some
appellate courts, however, will refuse to honor a prospective appeal waiver
that is knowingly and voluntarily entered "if denying a right of appeal
would work a miscarriage of justice." Id. at 25; see also United States v.
Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004); Andis,
333 F.3d at 889-92.
Because that approach fairly balances the interests in enforcing valid
agreements and remedying injustices that arise after entry of a prospective
5See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)
(enforcing prospective appeal waivers unless "1) a defendant's guilty plea
failed to comply with Fed. R. Crim. P. 11; 2) the sentencing judge informs a
defendant that she retains the right to appeal; 3) the sentence does not
comport with the terms of the plea agreement; or 4) the sentence violates
the law"); United States v. Blick,
408 F.3d 162, 172 (4th Cir. 2005) (enforcing
prospective appeal waivers unless the defendants challenge "errors that the
defendants could not have reasonably contemplated when the plea
agreements were executed"); United States v. Hahn,
359 F.3d 1315, 1325
(10th Cir. 2004) (enforcing prospective appeal waivers unless it would result
in a miscarriage of justice); Andis,
333 F.3d at 891-92 (adopting a
miscarriage of justice exception); People v. Panizzon,
913 P.2d 1061, 1071
(Cal. 1996) (enforcing prospective appeal waivers unless the appeal brings
up sentencing issues "left unresolved by the particular plea agreement"
when the sentencing occurred after the entry of a broad appeal waiver
(emphasis omitted)).
10
appeal waiver, we adopt it. Applying that rule here, we find no danger of a
miscarriage of justice if the appeal waiver is applied to the alleged error
during jury deliberations. The alleged error occurred when the district
court provided the jury a video recording of trial testimony at the jury's
request and with defense counsel's consent. We find no miscarriage of
justice on these facts, and as such, we will honor the prospective appeal
waiver as to this claim.
Therefore, we conclude that the appeal waiver encompasses all
of Burns claims on appeal except those related to voir dire, closing
arguments, and sentencing.
The district court did not err in denying a Batson challenge during jury
selection
Burns alleges that the district court improperly denied his
challenge to the State's peremptory removal of a prospective juror. An
allegation that a peremptory challenge was used with racially
discriminatory intent is governed by the three-step analysis adopted by the
United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986).
Under [that] jurisprudence, once the opponent of a
peremptory challenge has made out a prima facie
case of racial discrimination (step one), the burden
of production shifts to the proponent of the strike to
come forward with a race-neutral explanation (step
two). If a race-neutral explanation is tendered, the
trial court must then decide (step three) whether
the opponent of the strike has proved purposeful
racial discrimination.
Purkett v. Elm, 514 U.S. 765, 767 (1995).
We review the district court's ruling on a Batson challenge for
an abuse of discretion. Nunnery v. State, 127 Nev. 749, 783,
263 P.3d 235,
258 (2011). Further, with respect to step three, "[t]he trial court's decision
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on the ultimate question of discriminatory intent represents a finding of fact
of the sort accorded great deference on appeal." Walker v. State, 113 Nev.
853, 867-68,
944 P.2d 762, 771-72 (1997) (quoting Hernandez v. New York,
500 U.S. 352, 364 (1991)).
Burns objected to the States use of a peremptory challenge to
remove Juror 91. The juror did not identify his race, but he stated that he
had emigrated from India. The district court took judicial notice that Juror
91 was a member of a cognizable group. The State alleges that Burns did
nothing "more than point out that a member of a cognizable group was
struck," which is insufficient to meet his burden at step one of the Batson
analysis. Williams v. State, 134 Nev. 687, 690,
429 P.3d 301, 306 (2018).
The district court indicated its agreement with the State, saying, "I don't
think they've met their burden . . . ." But then, "in an abundance of
caution," the court asked the State to "tell [the court] what race neutral
reasons there are for excusing this particular juror?" We have noted that,
when "the district court asked the State to provide its explanation for the
peremptory challenge solely out of an abundance of caution after the court
had determined that [the defendant] failed to make a prima facie case, the
first step of the Batson analysis was not rendered moot." Watson v. State,
130 Nev. 764, 780,
335 P.3d 157, 169 (2014). As a result, we may examine
whether Burns made a prima facie case of racial discrimination. We agree
with the district court that he did not. Counsel offered no explanation
besides anecdotes from other cases counsel had argued and references to
other matters before this court. Burns only point related to this specific
juror was that the court had taken judicial notice that the juror was "Black."
Burns did not meet the step one standard of a prima facie showing of
discrimination.
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Even if Burns had made such a showing, the State did give a
race-neutral rationale based primarily on the juror's answers in a
questionnaire regarding the death penalty. According to the district court,
in the questionnaire, the juror had said, "Although I could not vote to impose
the death penalty, I could vote to impose a sentence of life imprisonment
without any possibility of parole in the proper circumstances." While the
juror walked back this questionnaire answer on direct questioning, the
district court found that the juror's answers to the death penalty questions
were sufficient justifications so that there had not been a showing of
purposeful racial discrimination under step three of the Batson analysis.
We conclude the district court did not abuse its discretion in
overruling the Batson challenge to Juror 91. It does not appear that Burns
met his burden under step one, and even if he had, the race-neutral
explanation and the decision by the district court were sufficient, so we find
no error in steps two or three.
The State did not engage in reversible prosecutorial misconduct during
closing arguments
Burns claims that the State engaged in multiple instances of
prosecutorial misconduct during its closing argument. In reviewing such
claims, this court determines whether the prosecutor's conduct was
improper and, if so, whether the conduct warrants reversal. Valdez v. State,
124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). If the error is preserved and
of a constitutional dimension—that is, if it involves impermissible comment
on a constitutional right or has "so infected the trial with unfairness as to
make the resulting conviction a denial of due process"—this court "will
reverse unless the State demonstrates, beyond a reasonable doubt, that the
error did not contribute to the verdict."
Id. at 1189,
196 P.3d at 476-77
(internal quotation marks omitted). If the misconduct is not of a
13
constitutional dimension, this court "will reverse only if the error
substantially affects the jury's verdict." Id. at 1189,
196 P.3d at 476.
Referring to defense counsel
The State opened its rebuttal argument with the following
comment: "What happens in courthouses across America and what should
be happening in this courtroom by a jury of 12 people is that it's a search
for a truth. And before about 20 minutes ago, that would seem to be what
we were all doing here for the last four weeks." By "20 minutes ago," the
State was plainly referring to the defense's closing argument, thus implying
that the defense was not engaged in "a search for a truth." Burns objected,
saying "Mhat's disparaging counsel," but the court overruled the objection.
Burns alleges on appeal that this was reversible prosecutorial misconduct
of a constitutional dimension.
This court has found that "[Wisparaging remarks directed
toward defense counsel 'have absolutely no place in a courtroom, and clearly
constitute misconduct.'" I3utler v. State, 120 Nev. 879, 898,
102 P.3d 71, 84
(2004) (quoting McGuire v. State, 100 Nev. 153, 158,
677 P.2d 1060, 1064
(1984)). We have found such misconduct in quips made solely "to belittle
defense counsel," McGuire, 100 Nev. at 158,
677 P.2d at 1064; when a
prosecutor commented that defense counsel resorted to "smoke screens and
flat-out deception," Rose v. State, 123 Nev. 194, 210,
163 P.3d 408, 419
(2007); and when a prosecutor made lengthy comments that defense counsel
was trying to distract the jurors and to "market" them a "product," Butler,
120 Nev. at 897-98,
102 P.3d at 84. In contrast, the comment at issue here
was not directed at opposing counsel with the purpose to belittle them;
instead, it was focused particularly on the truth of the defense's version of
events. Therefore, we conclude that the prosecutor's comments did not
amount to misconduct.
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Referring to a nontestifying witness
During his trial testimony, a detective referred to a statement
made to him by a woman, Ulonda Cooper, who did not testify at trial.
Defense counsel mentioned Cooper during his closing argument: "According
to Detective Bunting, . . . thaes what Ulanda [sic] Cooper told me; I never
got her taped statement; that's what she told me and I just put it in there.
Okay. . . . And you know what the most ironic thing about this, Ulonda
Cooper was right." In rebuttal, the State said, "Theres no connection
whatsoever to him [another suspect] other than Ulonda Cooper. Oh, wait,
we didn't hear from Ulonda Cooper. Shes not a witness in this case. Did
you assess Ulonda Cooper's credibility?" The defense objected and was
overruled.
This court has held "it is generally improper for a prosecutor to
comment on the defenses failure to produce evidence or call witnesses as
such comment impermissibly shifts the burden of proof to the defense."
Whitney v. State, 112 Nev. 499, 500, 502,
915 P.2d 881, 882, 883 (1996)
(reversing a conviction after prosecutor "repeatedly call [ed] attention to the
defenses lack of witnesses"). But when the comment goes to the defenses
theory of what happened, it is permissible. For example, in Rimer v. State,
we concluded that misconduct did not occur when the prosecutor pointed
out that the defense failed to substantiate its theory that the defendants
were sick and unable to commit the alleged crime.
131 Nev. 307, 331,
351
P.3d 697, 714 (2015). The comment at issue here is similar to that in Rimer.
Burns defense was, in part, that a coconspirator was the shooter. Burns'
reference to Ulonda Cooper during his closing argument went to that
theory. In these circumstances, the prosecution's response was a
permissible comment on the evidence at hand and whether it substantiated
the defense theory, not impermissible shifting of the burden of proof.
15
Therefore, we conclude that there was no prosecutorial misconduct as to the
Ulonda Cooper comments.
PowerPoint display
The State used a PowerPoint presentation during its rebuttal
closing argument. One slide contained an illustration purporting to set out
facts that disprove any notion of coincidence, which both the State and
Burns describe on appeal as "a circle of guilt." Defense counsel objected and
was overruled.
This court has held that it was reversible error for the
prosecutor, during opening statements, to display a defendant's booking
photo overlaid with the word "GUILTY," while simultaneously urging the
jurors orally to find the defendant guilty. Watters v. State, 129 Nev. 886,
891,
313 P.3d 243, 247-48 (2013). This court found that while the oral
statement was permissible, the visual slide was not because it "directly
declared Watters guilty." Id. at 891,
313 P.3d at 248. In doing so, we noted
that making the improper argument visually (declaring a defendant guilty
in an opening statement photo) was even more prejudicial than it would
have been had it been made orally. Id. at 892,
313 P.3d at 248.
Here, the district court overruled the objection on the ground
that the PowerPoint slide was used in closing argument, whereas the slide
in Waiters was used in an opening statement. We agree. Wafters is limited
to opening statements, where a prosecutor may not directly declare the
defendant guilty. See Artiga-Morales v. State, 130 Nev. 795, 799,
335 P.3d
179, 182 (2014) (holding that the use of the defendant's photograph with the
word "guiltf across the front was not error, in part because it was shown
during closing arguments). And even if the district court erred, the slide
alleging "a circle of guilt" did not make the proceedings so unfair as to be
error of a constitutional dimension or substantially affect the verdict.
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Burns agreement to a specific sentence precludes his arguments that the
sentence was unreasonable and unconstitutional
Although Burns' challenge to the life-without-parole sentence
is not barred by the appeal waiver, it nonetheless is barred by his
stipulation to that sentence as part of the Agreement. This court has not
yet spoken to this threshold question: Can a defendant challenge a sentence
that was agreed upon in a bargain with the State? Neither Burns nor the
State addresses this question, although the State does point out that Burns
"agreed to his sentence of life without the possibility of parole, but now
complains it is unreasonable and unconstitutional."
Generally, "[w]hen a defendant pleads guilty and agrees to a
specific sentence, he waives his right to challenge the propriety of his
sentence." Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008). As discussed
above, we see no reason to treat the Agreement entered here any differently
than a plea agreement. We therefore conclude that because Burns received
the benefit of his bargain—the stipulated-to sentence of life without the
possibility of parole—he cannot challenge that sentence on appeal.
Even if we were to consider Burns' arguments about the
sentence, they lack merit. "A sentence within the statutory limits is not
cruel and unusual punishment unless the statute fixing punishment is
unconstitutional or the sentence is so unreasonably disproportionate to the
offense as to shock the conscience." Blume v. State, 112 Nev. 472, 475,
915
P.2d 282, 284 (1996) (internal quotation marks omitted). Burns' sentence
was certainly within the statutory limits, see NRS 200.030(4)(b)(1), and was
not unreasonably disproportionate to his offense of murder with the use of
a deadly weapon.
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CONCLUSION
Burns mid-trial appeal waiver applied to the entirety of "the
guilt phase of the trial," including all parts of the trial up to the jury's
verdict as to his guilt. The language of the Agreement is ambiguous as to
whether the guilt phase commenced before or after jury selection, so we
construe the ambiguity in Burns' favor and consider his claim of error
related to jury selection. The parties also carved out a limited exception to
the appeal waiver, with Burns orally reserving his right to appellate review
of misconduct during closing arguments and the State implicitly agreeing
to that reservation. Therefore, the mid-trial appeal waiver covered all of
Burns' claims raised in this appeal, except those regarding voir dire, closing
arguments, and an unconstitutional and unreasonable sentence. We
conclude that the prosecutorial-misconduct and Batson claims are
substantively without merit. Further, since Burns agreed to a specific
sentence as part of the Agreement and the district court imposed that
sentence, he may not challenge the imposition of the agreed-upon sentence.
On these bases, we affirm the judgment of conviction.
AioLtbaa , J.
Stiglich
We concur:
, C.J.
Hardesty
,J.
Silver
SUPREME COURT
OF
NEVADA
18
401 1447A MC*
