Agbasi (Obinna) v. State ( 2014 )

 counsel's motion for a mistrial but agreed to give a cautionary instruction
regarding the prosecutor's burden of proof, the fact that this burden never
shifts, and that any insinuation that the defense has a burden of proof
must be disregarded.
The prosecutor's statement was clearly improper and
constituted misconduct for two reasons: "first, [it tended] to shift the
burden of proof from the State to the defendant; and second, when the
reference is that the defendant can testify and establish such evidence, it
is a reference to the defendant's ability or reluctance to take the stand and
testify." Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). We
have repeatedly held that it is "improper for a prosecutor to comment on
the defense's failure to produce evidence or call witnesses as such
comment impermissibly shifts the burden of proof to the defense," see
Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996); Ross v.
State, 106 Nev. 924, 927, 803 P.2d 1104, 1105-06 (1990), and the U.S.
Supreme Court has held that a prosecutor's direct reference to a
defendant's decision not to testify, at any stage of the proceeding, is
always a violation of the defendant's Fifth Amendment right against self-
incrimination, Griffin v. California, 380 U.S. 609, 615 (1965); Barron, 105
Nev. at 778, 783 P.2d at 451. When a prosecutor's comments are an
indirect reference to a defendant's decision not to testify, the comments
are tested by determining whether "the language used was manifestly
intended to be or was of such a character that the jury would naturally
and necessarily take it to be comment on• the defendant's failure to
testify." Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991)
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(quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).
Comments made in violation of the Fifth Amendment constitute reversible
error unless the prosecutor demonstrates beyond a reasonable doubt that
the error did not contribute to the verdict. Chapman v. California, 386
U.S. 18, 24 (1967); Harkness, 107 Nev. at 803, 820 P.2d at 761.
While the prosecutor unequivocally stated that the defense
could talk about intent by placing the defendant on the stand, we conclude
that this brief comment was not manifestly intended to convey to the jury
that Agbasi would fail to testify and therefore did not violate the Fifth
Amendment. We further conclude that the district court's clear,
immediate, and unambiguous cautionary jury instruction rendered the
prosecutor's misconduct harmless. See Lincoln v. Sunn, 807 F.2d 805, 809
(9th Cir. 1987) ("[Clourts will not reverse when the prosecutorial comment
is a single, isolated incident, does not stress an inference of guilt from
silence as a basis of conviction, and is followed by curative instructions.").
Expert witness
Agbasi contends that the district court abused its discretion by
rejecting his expert witness because the witness "had the requisite formal
schooling, proper licensure, employment experience, practical experience,
and specialized training" to offer opinions as to whether the play was
confusing and whether Agbasi merely mimicked the action of the player
next to him when placing his bet.
We review a district court's decision to admit or exclude expert
testimony for an abuse of discretion. Hallmark v. Eldridge, 124 Nev. 492,
498, 189 P.3d 646, 650 (2008). Expert testimony is admissible if (1) the
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expert is qualified in an area of "scientific, technical or other specialized
knowledge," (2) the expert's specialized knowledge will "assist the trier of
fact to understand the evidence or to determine a fact in issue," and (3) the
expert's testimony is limited to the scope of his or her specialized
knowledge. NRS 50.275. It is axiomatic that the purpose of expert
testimony "is to provide the trier of fact [with] a resource for ascertaining
truth in relevant areas outside the ken of ordinary laity." Townsend v.
State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987).
The district court considered prospective defense expert
Thomas Flaherty's testimony and counsels' arguments during a hearing
outside the presence of the jury. The defense argued that Flaherty was an
expert on casino table games, he had reviewed the surveillance video of
the play, and he could expertly opine that it was possible that Agbasi
became confused during the action at the gaming table. However, the
district court found that Flaherty did not have special knowledge that
would assist the trier of fact to determine whether Agbasi intentionally
placed the bet and determined that Flaherty was not an expert. We
conclude that Agbasi has not demonstrated that the district court abused
its discretion by excluding this witness.
Cumulative error
Agbasi contends that cumulative error deprived him of a fair
trial. We conclude that there was one error, the error was harmless, and
Agbasi was not deprived of a fair trial. See United States v. Sager, 227
F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative error.");
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Pascua v. State, 122 Nev. 1001, 1008 n.16, 145 P.3d 1031, 1035 n.16
(2006).
Having concluded that Agbasi is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
J.
Pickering
J.
Parraguirre Saitta
cc: Hon. Richard Wagner, District Judge
Demetras & O'Neill
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
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