Lopez (Mario) v. State ( 2014 )

 question. Counsel explained that he and Lopez had a "fantastic"
relationship and he did not want to withdraw but needed to bring the
issue to the court's attention. The district court concluded that the
circumstances did not warrant substitution; a new investigator was
assigned and trial was reset a third time. Shortly thereafter, counsel
moved to withdraw again, explaining that Lopez now believed the former
investigator had tried to sell his children and therefore he did not trust
counsel and the public defenders' office. The district court questioned
counsel regarding the extent of the conflict; counsel did not assert that
there had been a breakdown in communication, he made clear that there
was no merit to Lopez's allegations, and he announced that he was ready
for trial. Under these circumstances, we conclude that the district court
did not abuse its discretion by concluding that there was not a conflict
sufficient to warrant substitution and denying Lopez's motions. See
Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 237-38 (2001), abrogated
on other grounds by Nunnery v. State, 127 Nev. , 263 P.3±235 (2011).
Next, Lopez contends that the prosecutor committed
numerous instances of misconduct. When reviewing allegations of
prosecutorial misconduct, we first consider whether the prosecutor's
conduct was improper, and then determine whether any improper conduct
warrants reversal. See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465,
476 (2008).
First, Lopez contends that the prosecutor committed
misconduct by misstating the law regarding voluntary intoxication.
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Because Lopez did not object, we review this contention for plain error. Id.
at 1190, 196 P.3d at 477. During closing argument, the State argued that
voluntary intoxication does not play a legal role unless the intoxicated
individual "is slurring, they can't talk, they can't hold their head up, they
can't look straight, they're stumbling, their friends are carrying them.
[They] literally can't figure out where they are or what they're doing."
Lopez asserts that this suggested to the jury that they were prohibited
from considering his defense of voluntary intoxication because he did not
exhibit these symptoms, which shifted the burden of proof to him. We
disagree. Considering the statements in context, the prosecutor
appropriately argued that even if Lopez was intoxicated, he was not so
intoxicated that he was unable to form the intent to commit the charged
crimes. Moreover, after the prosecutor made these comments, he went on
to contrast individuals who merely make bad decisions while intoxicated
from those who are so intoxicated that they cannot form specific intent,
explaining that the jury had to look at the defendant's actions on the night
in question to determine his intent. Finally, the jury was properly
instructed regarding the defense of voluntary intoxication, that the State
bore the burden of proof, and that counsel's arguments are not evidence.
We conclude that Lopez fails to demonstrate plain error.
Second, Lopez contends that, because he had not challenged
his family members' veracity during his direct examination, the prosecutor
committed misconduct by repeatedly asking him during cross-examination
whether they were "mistaken" or not "truthful." See Daniel v. State, 119
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Nev. 498, 519, 78 P.3d 890, 904 (2003). On direct examination, Lopez
disputed his family's version of the events leading up to the attack, but
stated he did not remember the attack itself and did not challenge their
version of the attack. On cross-examination, the prosecutor repeatedly
pushed Lopez towards commenting on the veracity of his family regarding
the unchallenged portions of their testimony. We conclude that this
constitutes misconduct, see id., and the district court abused its discretion
by overruling Lopez's objection to these questions. However, we also
conclude that these errors were undoubtedly harmless in light of the
substantial evidence presented at trial and no relief is warranted. See
NRS 178.598; Tavares v. State, 117 Nev. 725, 732, 30 P.3d 1128, 1132
(2001) (an error is harmless unless it "had substantial and injurious effect
or influence in determining the jury's verdict" (internal quotation marks
omitted)), holding modified by Mclellan v. State, 124 Nev. 263, 182 P.3d
106 (2008); see also Valdez, 124 Nev. at 1188-89, 196 P.3d at 476.
Third, Lopez contends that the prosecutor committed
misconduct by (1) implying personal knowledge of the events, (2) making
unsupported and speculative statements, (3) demeaning him and his
defense, (4) inflaming the jury, and (5) commenting on prohibited matters.
Having considered the statements that Lopez challenges on appeal, we
conclude that some crossed the line of appropriate advocacy; however,
Lopez failed to object below, and none rise to the level of plain error. See
Valdez, 124 Nev. at 1190, 196 P.3d at 477 ("[Aln error that is plain from a
review of the record does not require reversal unless the defendant
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demonstrates that the error affected his or her substantial rights, by
causing actual prejudice or a miscarriage of justice." (internal quotation
marks omitted)); see also Thomas v. State, 120 Nev. 37, 47, 83 P.3d 818,
825 (2004) ("[A] criminal conviction is not to be lightly overturned on the
basis of a prosecutor's comments standing alone" (quoting United States v.
Young, 470 U.S. 1, 11 (1985))).
Next, Lopez contends that the district court abused its
discretion at sentencing by failing to state on the record that it had
considered the factors enumerated in NRS 193.165 before imposing the
sentences for the deadly weapon enhancements. Lopez did not object and
he fails to demonstrate plain error because the district court was
presented with substantial evidence regarding the crime, its effect on the
victims, and the mitigation offered by Lopez, and "nothing in the record
indicates that the district court's failure to make certain findings on the
record had any bearing on the district court's sentencing decision."
Mendoza-Lobos v. State, 125 Nev. 634, 644, 218 P.3d 501, 507-08 (2009).
Finally, Lopez contends that cumulative error warrants relief.
Having balanced the relevant factors, we disagree. See Valdez, 124 Nev.
at 1195, 196 P.3d at 481 (considering: "(1) whether the issue of guilt is
close, (2) the quantity and character of the error, and (3) the gravity of the
crime charged." (quoting Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845,
854-55 (2000))). Here, the issue of guilt was not close. Although Lopez
asserted at trial that he had consumed numerous intoxicants and his wife
instigated the attack, this version was inconsistent with statements he
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had previously given and with a majority of the evidence. Moreover,
substantial evidence indicated that Lopez was not intoxicated to the
extent that he was unable to form the intent to commit the charged
crimes. Finally, although the crimes were grave, the misconduct we have
identified was not egregious. Cf. Valdez, 124 Nev. at 1198, 196 P.3d at
482.
Having considered Lopez's contentions and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.'
J.
Pickering
r
SAAfiL-ce-01
Parraguirre
cc: Hon. Michael Villani, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'We deny Lopez's motion to reconsider the denial of his motion to
stay consideration of this appeal.
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