Martinez-Hernandez (Lazaro) v. State ( 2014 )

 introduced at trial was consistent with the raw footage of the event. The
jury apparently observed nothing in the video that suggested the
eyewitness' reports of the incident were inaccurate. Further, Martinez-
Hernandez failed to demonstrate gross negligence or bad faith on the part
of the police officers who collected the recording. See Daniels, 114 Nev. at
267, 956 P.2d at 115 (providing that where defendant demonstrates
evidence was material, "the court must determine whether the failure to
gather evidence was the result of mere negligence, gross negligence, or. . .
bad faith" and imposing no sanction for mere negligence). Due to the lack
of expertise of the business's staff, a copy of the incident could not be
replicated that night. The police could not obtain the video until a
knowledgeable staff member could copy it. The district court did not
plainly err in not instructing the jury that the evidence would have been
unfavorable to the State. See id.
Second, Martinez-Hernandez argues that the district court
erred in admitting the video because technical glitches rendered it more
prejudicial than probative. We discern no plain error. See Valdez, 124
Nev. at 1190, 196 P.3d at 477. Witnesses testified that the video
accurately reflected the events of the evening and a police officer testified
that the video was consistent with the raw footage of the events. Further,
defense counsel was able to address the defects in front of the jury during
the examination of witnesses. Any difference between the admitted copy
and the raw footage went to the weight of the evidence and not its
admissibility. See Sorce v. State, 88 Nev. 350, 352-53, 497 P.2d 902, 903
(1972) ("[I]t is sufficient to establish only that it is reasonably certain that
no tampering or substitution took place, and the doubt, if any, goes to the
weight of the evidence.").
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Third, Martinez-Hernandez claims that the State violated
Brady v. Maryland, 373 U.S. 83 (1963), in failing to disclose that the
eyewitnesses to the assault were facing charges. Although the
information surfaced prior to his sentencing, Martinez-Hernandez did not
raise a Brady argument in the district court; therefore, we review the
issue for plain error. See Valdez, 124 Nev. at 1190, 196 P.3d at 477. The
record indicates that the eyewitnesses to the incident were facing charges,
but had not yet been formally charged in the district court. A witness can
generally be impeached only with an appropriate felony conviction, not
mere arrest. NRS 50.095; Sheriff v. Hawkins, 104 Nev. 70, 75 & n.5, 752
P.2d 769, 773 & n.5 (1988). The record does not indicate that the
witnesses received favorable treatment in exchange for their testimony in
this case. Therefore, Martinez-Hernandez failed to demonstrate plain
error affecting his substantial rights.
Fourth, Martinez-Hernandez argues that the district court
erred in excluding a defense witness. We discern no abuse of discretion.
See Mitchell v. State, 124 Nev. 807, 819, 192 P.3d 721, 729 (2008)
(reviewing "district court's decision whether to allow an unendorsed
witness to testify for abuse of discretion"). Defense counsel attempted to
endorse an eyewitness to the incident on the Friday before trial, which
began the following Monday. See NRS 174.234(1) (requiring written
notice of defense witnesses to be served upon the prosecuting attorney "not
less than 5 judicial days before trial"). Although a strong presumption
exists in favor of allowing late-disclosed witnesses to testify, see Sampson
v. State, 121 Nev. 820, 827, 122 P.3d 1255, 1260 (2005), the right to
present testimony is not absolute and must be balanced against
"countervailing public interests," Taylor v. Illinois, 484 U.S. 400, 414
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(1988). As the witness's name does not appear in the record apart from
the argument concerning admitting his testimony, there is no indication
that the State could have anticipated the witness and therefore his
testimony would have resulted in unfair surprise to the State. See
Sampson, 121 Nev. at 828, 122 P.3d at 1260.
Fifth, Martinez-Hernandez argues that the district court
abused its discretion in failing to give an instruction consistent with his
theory of the case. Martinez-Hernandez did not request an instruction
defining the offense of exhibiting a weapon in a threatening manner, and
we discern no plain error in the district court not giving such an
instruction. See Valdez, 124 Nev. at 1190, 196 P.3d at 477. Martinez-
Hernandez pursued a theory of defense that any brandishing of the
weapon was justified by the circumstances, which was in opposition to the
instruction. See NRS 202.320(1) (prohibiting exhibiting of a deadly
weapon "in a rude, angry or threatening manner not in necessary self-
defense"). Therefore, the district court's failure to sua sponte issue the
instruction was not an error that was "so unmistakable that it reveals
itself by a casual inspection of the record." Patterson v. State, 111 Nev.
1525, 1530, 907 P.2d 984, 987 (1995) (internal quotation omitted); Bonacci
v. State, 96 Nev. 894, 899, 620 P.2d 1244, 1247 (1980).
Sixth, Martinez-Hernandez claims his conviction was not
supported by sufficient evidence. We disagree. When viewed in the light
most favorable to the State, the evidence presented at trial is sufficient to
establish guilt beyond a reasonable doubt as determined by a rational trier
of fact. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108
Nev. 53, 56, 825 P.2d 571, 573 (1992). The victim and another witness
testified that Martinez-Hernandez was upset, pushed the victim, then
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retrieved a handgun from his vehicle, pointed it at the victim, and verbally
threatened to kill the victim. See NRS 200.471. While he contends that
other evidence contradicted this testimony, it was for the jury to
determine the weight and credibility to give the conflicting testimony.
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
Seventh, Martinez-Hernandez argues that cumulative error
warrants reversal of his conviction. Because we have found no error, there
is nothing to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
J.
Parrcguirre _
•
Turic
Saitta
cc: Hon. Michael Villani, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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