Brizzolara (Bryan) v. State ( 2014 )

 recant a report of abuse, or minimize the abusive behavior. The witness
testified that she had never met Brizzolara or the victim, and she was not
asked about, nor did she offer, an opinion of the victim's credibility or
Brizzolara's guilt. The witness did not testify to matters precluded by
NRS 48.061(2) or to prior bad acts, and the testimony was highly
probative, and the probative value was not substantially outweighed by
unfair prejudice. Furthermore, Brizzolara conceded at trial that the
witness was a domestic violence expert. We conclude that the district
court did not abuse its discretion by allowing the testimony of the State's
expert witness on domestic violence. See Perez v. State, 129 Nev. ,
313 P.3d 862, 866-70 (2013).
Second, Brizzolara contends that the prosecutor engaged in
numerous instances of prosecutorial misconduct by asking the victim
whether other witnesses were liars. The State argues that it was not
asking the victim to comment on the veracity of other witnesses but rather
was attempting to demonstrate that the victim either lied to police or was
lying on the stand when her trial testimony differed significantly from
earlier reports. Brizzolara failed to object to these questions, and we
review for plain error. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465,
477 (2008) (stating that reversal is only warranted when "the defendant
demonstrates that the error affected his or her substantial rights, by
causing 'actual prejudice or a miscarriage of justice" (quoting Green v.
State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003))). We have held that a
witness may not give his or her opinion as to the veracity of the statement
of another. See DeChant v. State, 116 Nev. 918, 924, 10 P.3d 108, 112
(2000). However, to the extent that the State asked the victim to comment
on the veracity of other witnesses, specifically her father and responding
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officers, we conclude that none of the incidents, either considered
individually or collectively, amount to plain error because Brizzolara has
not shown that these instances prejudiced him or affected his substantial
rights. With regard to the one instance where the prosecutor appeared to
ask the victim whether a statement by Brizzolara was a lie, we conclude
that Brizzolara has failed to establish plain error as the prosecutor
voluntarily continued with his questioning without receiving an answer.
Accordingly, we conclude that the prosecutor's questioning of the victim
did not constitute plain error.
Third, Brizzolara contends that the prosecutor committed
prosecutorial misconduct during closing argument by improperly shifting
the burden of proof During closing argument, the State argued that there
was not significant testimony about the sliding glass door, that there was
a question of whether the door was functional, and that, when considering
the facts collectively, the sliding glass door did not matter. Brizzolara
claims that, by arguing about the sliding glass door, the prosecutor
implied that Brizzolara had an obligation to present evidence that the door
was functional. 1 Brizzolara objected to this line of argument, and we
review for harmless error. Valdez v. State, 124 Nev. at 1190, 196 P.3d at
477. We conclude that the State's arguments did not shift the burden of
proof, as the State properly remarked on the state of the evidence as
presented to the jury, and therefore did not constitute misconduct. See
'To the extent that Brizzolara argues the prosecutor made
statements unsupported by evidence, this claim was not preserved, and we
conclude that Brizzolara has failed to demonstrate that the statements
about whether the door was functional prejudiced him or affected his
substantial rights. See Valdez, 124 Nev. at 1190, 196 P.3d at 477.
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Leonard v. State, 117 Nev. 53, 81, 17 P.3d 397, 415 (2001) ("[T]he
prosecutor may comment on a defendant's failure to substantiate a
claim.").
Fourth, Brizzolara contends that the district court erred by
allowing the jurors to ask questions of the witnesses, as this allowed the
jury to take on a prosecutorial role and reduced the State's obligation to
prove each element beyond a reasonable doubt. This court has held that
the practice of jury-questioning "can significantly enhance the truth-
seeking function of the trial process" and that allowing jury-questioning
"is a matter committed to the sound discretion of the trial court." Flores v.
State, 114 Nev. 910, 913, 965 P.2d 901, 902 (1998). Brizzolara does not
argue that the district court failed to comply with established safeguards
pertaining to juror questions. See id. Rather, he claims that the practice
of jury-questioning as a whole is error. We disagree and continue to
adhere to our reasoning and holding in Flores. Therefore, the district
court did not err in allowing the jurors to ask questions.
Fifth, Brizzolara contends that the district court abused its
discretion by instructing the jury on the definition of "prolonged physical
pain" as the phrase has an established meaning that is ordinarily
understood. "The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." See Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005). This court has previously concluded
that "the phrase 'prolonged physical pain' has a well-settled and ordinarily
understandable meaning" and that the phrase is not unconstitutionally
vague. Collins v. State, 125 Nev. 60, 65, 125 P.3d 90, 93 (2009). The
instruction given in this case was a near verbatim reproduction of the
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definition outlined in Collins to demonstrate that the phrase has an
established and ordinarily understood meaning. Id. at 64-65, 125 P.3d at
92-93. We conclude that, while the definition was unnecessary, the
district court did not abuse its discretion by giving the instruction.
Sixth, Brizzolara contends that the district court abused its
discretion by instructing the jury that it was inevitable the State would
prove his guilt. The instruction stated, in part, that "Nile defendant is
presumed innocent until the contrary is proved," and Brizzolara argues
that the word "unless" should have replaced "until." This court has
rejected this argument, concluding that the use of the word "until" in a
reasonable doubt instruction did not dilute the presumption of innocence,
especially when the jury instruction was "read as a whole." Blake v. State,
121 Nev. 779, 799, 121 P.3d 567, 580 (2005). We decline Brizzolara's
invitation to deviate from this holding and conclude that the district court
did not abuse its discretion by giving the instruction. See Crawford, 121
Nev. at 748, 121 P.3d at 585.
Seventh, Brizzolara contends that cumulative error requires
reversal of his convictions. "The cumulative effect of errors may violate a
defendant's constitutional right to a fair trial even though errors are
harmless individually." Hernandez v. State, 118 Nev. 513, 535, 50 P.3d
1100, 1115 (2002). When assessing a cumulative-error claim, we consider
"(1) whether the issue of guilt is close, (2) the quantity and character of the
error, and (3) the gravity of the crime charged." Mulder v. State, 116 Nev.
1, 17, 992 P.2d 845, 854-55 (2000). Considering these factors, we conclude
that any errors considered cumulatively were not of sufficient consequence
to warrant reversal of Brizzolara's convictions.
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Having considered Brizzolara's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
R °du ty
' J.
Pickering
ez_k_s_s.-s6r ; J.
Parraguirre
Saitta
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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