BARLOW (KEITH) v. STATE (DEATH PENALTY-DIRECT) , 2022 NV 25 ( 2022 )

138 Nev., Advance Opinion 25
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEITH JUNIOR BARLOW, No. 77055
Appellant,
vs.
THE STATE OF NEVADA,
PIED
Respondent. APR 1 4 2022
IEF DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of home invasion while in possession of a firearm, burglary while in
possession of a firearm, assault with the use of a deadly weapon, and two
counts of first-degree murder with the use of a deadly weapon. Eighth
Judicial District Court, Clark County; Douglas W. Herndon, Judge.
Affirmed in part, reversed in part, and remanded.
JoNell Thomas, Special Public Defender, Alzora B. Jackson and Monica R.
Trujillo, Chief Deputy Special Public Defenders, Clark County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, Marc P. DiGiacomo, Chief Deputy District Attorney, and John
Niman, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE SUPREME COURT, EN BANC.1
1The Honorable Douglas W. Herndon, Justice, did not participate in
the decision of this matter.
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OPINION
By the Court, SILVER, J.:
A jury found appellant Keith l3arlow guilty of multiple charges
and sentenced him to death for murdering two people. During the guilt
phase of Barlow's trial, the State presented overwhelming evidence that he
broke into the victims apartment and shot each of them multiple times.
Before penalty phase closing arguments, the district court prohibited
Barlow from arguing that if a single juror determines that there are
mitigating circumstances sufficient to outweigh the aggravating
circumstances, the death penalty is no longer an option and the jury must
then consider imposing a sentence other than death. The district court
reasoned that if the jury cannot reach a unanimous decision as to the
weighing of aggravating and mitigating circumstances, the result is a hung
jury. We take this opportunity to clarify that when a jury cannot reach a
unanimous decision as to the weighing of aggravating and mitigating
circumstances, the jury cannot impose a death sentence but must consider
the other sentences that may be imposed. The jury is hung in the penalty
phase of a capital trial only• when it cannot unanimously agree on the
sentence to be imposed. Thus, we conclude that the district court abused
its discretion by prohibiting Barlow's argument. This error, in conjunction
with others that occurred in the penalty phase, worked cumulatively to
deprive Barlow of a fair penalty hearing. But we conclude that no relief is
warranted on Barlow's claims regarding the guilt phase. Accordingly, we
affirm the judgment of conviction in part, reverse it in part, and remand for
a new penalty hearing.
2
FACTS AND PROCEDURAL HISTORY
Barlow and the female victim Danielle Woods maintained a
tumultuous, off-and-on romantic relationship. Woods also had a romantic
relationship with the male victim Donnie Cobb and lived in his apartment.
On February 1, 2013, Woods niece Tamara Herron encountered Barlow,
who asked her about Woods' whereabouts. Herron testified that Barlow
appeared angry and agitated and told her that he was tired of the "games"
Woods was playing. When Herron told Barlow she did not know Woods'
whereabouts, he stated that he knew Woods was with Cobb.
Two days later, in the early morning hours, Barlow accosted
Woods outside of a convenience store near Cobb's apartment. Barlow
screamed at Woods, threatened her with an electronic stun device, and
attempted to force her into his vehicle. When Cobb intervened, Barlow drew
a firearm and aimed it at Cobb. Barlow told Woods and Cobb that he would
"be back" and then he left the scene. Law enforcement responded to the
incident and attempted to contact Barlow but could not locate him. About
two hours after the incident, Barlow went to Cobb's apartment, broke in the
door, and shot Woods and Cobb to death.
Responding to a report of gunshots, police officers discovered
the dead bodies of Woods and Cobb. Law enforcement recovered a total of
eight spent bullet casings from Cobb's apartment, including casings found
in Woods' hair and on her chest. The ammunition was branded as Blazer
.40 caliber Smith & Wesson casings. A Ruger .40 caliber semiautomatic
handgun was found in Barlow's vehicle. The gun's magazine contained
Blazer .40 caliber Smith & Wesson ammunition. A forensic examiner
identified Barlow's thumbprint on the magazine loaded in the firearm.
3
Additional testing also matched DNA found on the magazine to Barlow. A
forensic examiner conducted a microscopic comparison of the casings found
at the scene and the test-fired casings from the Ruger handgun. That
analysis showed that the casings recovered from the scene were fired by the
handgun found in Barlow's vehicle.
The State charged Barlow with home invasion while in
possession of a firearm, burglary while in possession of a firearm, assault
with the use of a deadly weapon, and two counts of first-degree murder with
the use of a deadly weapon and filed a notice of intent to seek the death
penalty for both murders.2 The jury returned guilty verdicts on all counts.
Following the penalty hearing, the jury sentenced Barlow to death for both
murders. This appeal followed.
DISCUSSION
Penalty phase claims
Because the primary issues addressed in this opinion—the
limitations placed on Barlow's penalty phase argument, prosecutorial
misconduct, the great-risk-of-death aggravating circumstance, and
cumulative error—concern the penalty phase of the trial, we focus on that
phase of trial first. We then address the guilt-phase claims.
Limitation of Barlow's penalty-phase argument
Barlow argues that the district court erred in prohibiting him
from making an argument based on a portion of the capital instruction this
2The State also charged Barlow with possession of a firearm by a
prohibited person and unlawful possession of an electronic stun device but
later dismissed those charges.
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court provided in Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001), overruled
on other grounds by Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732
n.5 (2015). We review a district court's determination about "the latitude
allowed counsel in closing argument for abuse of discretion." Glover v.
Eighth Judicial Dist. Court, 125 Nev. 691, 704, 220 P.3d 684, 693 (2009)
(internal citation omitted).
Barlow, relying upon Evans, argues that he should have been
allowed to argue that if at least one juror decides that there are mitigating
circumstances sufficient to outweigh the aggravating circumstances, he
could not be sentenced to death and the jury must then consider imposing
a punishment other than death. The State contends that despite the Evans
instruction saying just that, the district court properly prohibited the
argument because a disagreement as to the weighing of aggravating and
mitigating circumstances results in a hung jury such that the jury could not
consider any other punishment. We hold that if at least one juror finds
there are mitigating circumstances sufficient to outweigh the aggravating
circumstances, the jury cannot impose a death sentence but nonetheless
must consider the other sentences. Therefore, we conclude that the district
court abused its discretion in prohibiting Barlow from making that
argument to the jury. See Collier v. State, 101 Nev. 473, 481-82, 705 P.2d
1126, 1131-32 (1985) (explaining that the district court abused its discretion
by placing undue limits on the argument of counsel); cf. Lloyd v. State, 94
Nev. 167, 169, 576 P.2d 740, 742 (1978) ("[Ut is improper for an attorney to
argue legal theories to a jury when the jury has not been instructed on those
theories.").
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In Evans, this court set forth a jury instruction for use in capital
penalty hearings. 117 Nev. at 635-36, 28 P.3d at 516-17. That instruction
provides, in part: "if at least one of you determines that the mitigating
circumstances outweigh the aggravating, the defendant is not eligible for a
death sentence," and, if the jury makes that determination, they must then
"consider all three types of evidence in determining a sentence other than
death." Id. at 636, 28 P.3d at 517. While the Evans instruction primarily
addresses the jury's consideration of evidence during deliberations, it also
provides guidance about the steps the jury must follow before imposing a
sentence. Id. at 635-36, 28 P.3d at 516-17.
The Evans instruction accurately reflects the statutory scheme
for capital penalty hearings. Under NRS 175.554(1), the district court must
instruct the jury on the aggravating and mitigating circumstances alleged
by the parties. The jury is charged to first determine unanimously if the
State has proved at least one aggravating circumstance beyond a reasonable
doubt. NRS 175.554(2)(a), (4). Next, each juror must individually
determine whether any mitigating circumstances exist. NRS 175.554(2)(b);
see also Jimenez v. State, 112 Nev. 610, 624, 918 P.2d 687, 696 (1996)
("There [is] no constraint on the right of individual jurors to find mitigators,
such as a requirement of unanimity or proof by a preponderance of the
evidence or any other standard."). The jurors then weigh the aggravating
and mitigating circumstances on their individual moral scales as part of
"the selection phase of the capital sentencing process . . . to determine what
penalty shall be imposed." Lisle, 131 Nev. at 366, 351 P.3d at 732 (internal
quotation marks omitted); see also Jerernias v. State, 134 Nev. 46, 58-59,
412 P.3d 43, 54 (2018) (reaffirming that weighing the aggravating and
mitigating circumstances is part of the selection phase, which does not
require proof beyond a reasonable doubt). If the jurors unanimously agree
that there are no mitigating circumstances sufficient to outweigh the
aggravating circumstances, they may impose a death sentence, NRS
175.554(4), but they are not obligated to do so, Bennett v. State, 111 Nev.
1099, 1110, 901 P.2d 676, 683 (1995) (observing that even if jurors
unanimously find there are no mitigating circumstances sufficient to
outweigh the aggravating circumstances, they "still ha[ve] the discretion to
return a penalty other than death"). In contrast, if the jurors do not
unanimously agree that there are no mitigating circumstances sufficient to
outweigh the aggravating circumstances, they cannot impose a death
sentence. NRS 200.030(4)(a). In other words, if even one juror determines
there are mitigating circumstances sufficient to outweigh the aggravating
circumstances, the death penalty is no longer an option. See Bennett, 111
Nev. at 1110, 901 P.2d at 683 ("[T]he death penalty is only a sentencing
option if, after balancing and evaluating the aggravating and mitigating
circumstances, the former are found to outweigh the latter.") see also Rippo
v. State, 122 Nev. 1086, 1095, 146 P.3d 279, 285 (2006) (disapproving of a
jury instruction that "implied that jurors had to agree unanimously that
mitigating circumstances outweigh aggravating circumstances, when
actually a jury's finding of mitigating circumstances in a capital penalty
hearing does not have to be unanimoue (internal quotation marks
omitted)); Servin v. State, 117 Nev. 775, 786, 32 P.3d 1277, 1285 (2001)
(providing that if the jurors find the defendant not eligible for the death
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penalty, they "may consider 'other matter evidence under NRS 175.552 in
deciding on the appropriate sentence). But in those circumstances, the jury
can still impose a lesser sentence.3 See NRS 200.030(4)(b). A hung jury
occurs only when the jury cannot unanimously agree on the sentence to be
imposed. See NRS 175.556(1) (providing the procedure in a capital case
when a jury cannot render a unanimous verdict as to the sentence to be
imposed). Accordingly, the district court abused its discretion by
prohibiting Barlow from making this argument regarding the weighing
determination.4 In this case, the district court correctly instructed the jury
before deliberations began, and the jury unanimously found that the
3 To the extent the State asserts that this interpretation of the Evans
instruction permits a single juror to usurp the process by announcing at the
start of deliberations that he or she believes the mitigating circumstances
are sufficient to outweigh the aggravating, thus foreclosing any further
discussion, we do not share that concern. The Evans instruction lays out
the process the jury must follow in considering the evidence presented at
the penalty phase. Following the process set forth in that instruction,
reasonable jurors would understand that the weighing decision is made only
after full, good faith deliberations as to the existence of aggravating and
mitigating circumstances. See Evans, 117 Nev. at 635-36, 28 P.3d at 516-
17; see also NRS 175.111 (requiring jurors to swear to "truly try" a case and
return "a true verdice); Summers v. State, 122 Nev. 1326, 1333, 148 P.3d
778, 783 (2006) (providing that "this court generally presumes that juries
follow district court orders and instruction?).
4To the extent Barlow contends the district court erred by denying his
request to amend the non-death verdict forms to reflect the Evans language,
we discern no abuse of discretion because the verdict must include a
weighing determination only when the jury imposes a death sentence. See
NRS 175.554(4). But given the technical and precise nature of the capital
sentencing process, we provide a verdict form in an appendix to this opinion.
Using this verdict form in future capital penalty hearings will aid the jurors
and provide a clear record that they followed the necessary steps in
determining the appropriate sentence.
8
aggravating circumstances outweighed the mitigating circumstances. See
Leonard v. State, 117 Nev. 53, 66, 17 P.3d 397, 405 (2001) (recognizing that
jurors are presumed to follow their instructions). Therefore, we conclude
that the error was harmless, see NRS 178.598, but, as discussed below,
contributed to the cumulative error during the penalty hearing.
Prosecutorial misconduct
Barlow argues that prosecutorial misconduct during the
penalty phase warrants reversal. In reviewing claims of prosecutorial
misconduct, this court must determine 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 was
preserved, reversal is not warranted where the misconduct is harmless. Id.
at 1189, 196 P.3d 477. Misconduct of a constitutional nature does not
warrant reversal if it is harmless beyond a reasonable doubt. Id. at 1189,
196 P.3d at 476. And errors of a nonconstitutional nature require reversal
"only if the error substantially affects the jury's verdict." Id.Barlow challenges the prosecutor's argument that had Barlow
killed only Woods, a life sentence might be appropriate but "if you decide
that, what justice does Donnie Cobb get?" After Barlow objected, the
prosecutor defended his argument: "I said, if there had been only one victim
in this case" then "your verdict would have been life without. But because
theres two, there's got to be more."
We conclude that the prosecutor's comments improperly
"suggest that justice requires a death sentence because the defendant killed
more than one person." Jeremias, 134 Nev. at 57, 412 P.3d at 53. The
prosecutor implicitly argued that Barlow deserved the death penalty
9
because he killed two people by arguing that a sentence of life without the
possibility of parole might be appropriate if Barlow only killed Woods but
was inappropriate because he also killed Cobb. We conclude that
implication is just as improper as an explicit argument that Barlow
deserved the death penalty simply because he killed two people. While we
believe the prosecutor's comment was improper, the prosecutor also told the
jury that the State would respect whatever verdict the jury rendered and
that it would be "fine" if the jury decided Barlow did not deserve the death
penalty, and the district court instructed the jury that the law never
requires a death sentence. Thus, we conclude this error is harmless after
considering the remark in context.5 See Thomas v. State, 120 Nev. 37, 47,
83 P.3d 818, 825 (2004) ("[S]tatements should be considered in context, and
a criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone." (internal quotation marks
omitted)). However, as discussed below, the prosecutor's improper
argument contributed to the cumulative error during the penalty hearing.
5Bar1ow also ascribes misconduct to the prosecutor (1) misstating the
definition of mitigating circumstances, (2) arguing for imposition of the
death penalty because Barlow should not be allowed to mistreat prison staff,
(3) comparing him to his sister, and (4) asking the jurors to perform their
duty. Having reviewed each alleged instance in context, we discern no
misconduct. See Burnside v. State, 131 Nev. 371, 403-04, 352 P.3d 627, 649-
50 (2015) (concluding that a prosecutor did not make improper comments
after considering them in context); Hernandez v. State, 118 Nev. 513, 526,
50 P.3d 1100, 1109 (2002) (finding no misconduct where "the prosecutor was
fairly responding to an earlier contention by defense counser).
10
Great-risk-of-death-to-more-than-one-person aggravating circumstance
Barlow argues that the great-risk-of-death-to-more-than-one-
person aggravating circumstance under NRS 200.033(3) is invalid for two
reasons: the State did not provide sufficient notice and insufficient evidence
supports it.
Inadequate notice of the State's alternative theory
SCR 250(4)(c) provides that a notice of intent to seek the death
penalty "rnust allege all aggravating circumstances which the state intends
to prove and allege with specificity the facts on which the state will rely to
prove each aggravating circumstance." In other words, "a defendant should
not have to gather facts to deduce the State's theory for an aggravating
circumstance; the supporting facts must be stated directly in the notice
itself." Nunnery v. State, 127 Nev. 749, 779, 263 P.3d 235, 255 (2011).
The States notice of intent to seek the death penalty alleged
that Barlow knowingly created a great risk of death to more than one person
based on the close proximity of the victims to one another when he shot
them. While the State argued that theory at trial, it also argued that
Barlow created a great risk of death to more than one person because a
bullet went through a wall, out the window of an adjoining apartment, and
into a public area. But the State never alleged in the notice that it would
rely on the bullet exiting the apartment and the resulting risk of death to
other residents to prove this aggravating circumstance.
The State asserts that this case is similar to Nunnery where
this court found the notice of intent to seek the death penalty contained
sufficient detail for the great-risk-of-death aggravating circumstance. The
State's reliance on Nunnery is misplaced. Unlike the notice in Nunnery that
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alleged "that the Egreat-risk-of-deathj aggravator was based on the crimes
committed by the defendant in a location 'which the public has access to and
which several citizens are located nearby,'" 127 Nev. at 780, 263 P.3d at 256,
the notice in this case made no mention of the bullet entering a public area
or that other persons were in that area. Accordingly, because the State did
not provide adequate notice of the public-area theory, the State improperly
argued those facts in support of the great-risk-of-death aggravating
circumstance. See Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330,
339, 184 P.3d 369, 376 (2008) (explaining that a notice of intent to seek the
death penalty functions primarily "to provide the defendant with notice of
what he must defend against at trial and a death penalty hearing"). While
we find the presentation of the unnoticed theory improper, the State alleged
six aggravating circumstances and only mentioned the public-area theory
briefly when describing the evidence in aggravation. Thus, the brief
remarks on the unnoticed theory were harmless beyond a reasonable doubt.
See Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005)
(recognizing that a prosecutor's improper comments that are "merely
passing in nature" are harmless beyond a reasonable doubt). But again,
they contributed to cumulative error during the penalty hearing.
Sufficiency of the evidence
Next, Barlow contends that insufficient evidence supports the
great-risk-of-death aggravating circumstance. We review the record to
determine whether evidence supports the jury's finding of an aggravating
circumstance beyond a reasonable doubt. Leslie v. State, 114 Nev. 8, 20, 952
P.2d 966, 975 (1998). Having concluded that the State failed to adequately
notice its public-area theory, we look only to the evidence supporting the
theory the State did include in the notice of intent to seek the death penalty.
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NRS 200.033(3) provides that first-degree murder is aggravated
if it "was committed by a person who knowingly created a great risk of death
to more than one person by means of a weapon, device or course of action
which would normally be hazardous to the lives of more than one person."
This court has concluded that the great-risk-of-death aggravating
circumstance includes "a 'course of action consisting of two intentional
shootings closely related in time and place," Hogan v. Warden, 109 Nev. 952,
957, 860 P.2d 710, 714 (1993) (quoting Hogan v. State, 103 Nev. 21, 24, 732
P.2d 422, 424 (1987)) (rejecting challenge to great-risk-of-death aggravating
circumstance where the defendant shot his female companion and her
daughter but only one of them died), even when only the deceased victims
were put at risk by that course of action, Flanagan v. State, 112 Nev. 1409,
1420-21, 930 P.2d 691, 698-99 (1996) (upholding great-risk-of-death
aggravating circumstance where defendants shot and killed two people in a
home with no one else present). But in Flanagan, we suggested that the
great-risk-of-death aggravating circumstance no longer applies in the latter
circumstance for murders committed after October 1, 1993, given the
Legislature's adoption of the multiple-murder aggravating circumstance in
1993. 112 Nev. at 1421, 930 P.2d at 699. Specifically, we explained that
the amendment, which provided that first-degree murder is aggravated if
the defendant "has, in the immediate proceeding, been convicted of more
than one offense of murder in the first or second degree," NRS 200.033(12),
"apparently requires that for murders committed after October 1, 1993, the
aggravator set forth in NRS 200.033(12), rather than the one in NRS
200.033(3), be applied to cases such as this one' where the defendant's
13
course of action created a great risk of death only to the murder victims,
Flanagan, 112 Nev. at 1421, 930 P.2d at 699. Thus, absent evidence that
Barlow put other people at risk, the great-risk-of-death aggravating
circumstance should not have been applied in this case. See Leslie, 114 Nev.
at 21-22, 952 P.2d at 975-76 (concluding that the State did not prove
defendant knowingly created a great risk of death to others because no
evidence showed defendant knew other people were in a room where a bullet
entered through the wall); Moran v. State, 103 Nev. 138, 142, 734 P.2d 712,
714 (1987) (holding that aggravating circumstance did not apply where no
other persons were in the apartment, no neighbor was at immediate risk of
death, and the defendant was not aware of any other person within close
proximity when he shot the victim).
The two murdered victims being near each other when shot by
Barlow constitutes the only properly noticed evidence. Therefore, we
conclude that the State did not present sufficient evidence to support the
jury's finding of the great-risk-of-death aggravating circumstance beyond a
reasonable doubt.6 However, "[a] death sentence based in part on an invalid
aggravator may be upheld either by reweighing the aggravating and
mitigating evidence or conducting a harm.less-error review." Archanian v.
State, 122 Nev. 1019, 1040, 145 P.3d 1008, 1023 (2006).
Here, we conclude the error in presenting the invalid
aggravating circumstance was harmless beyond a reasonable doubt.
Barlow did not contest that the State proved five other aggravating
6Having found that the State did not present sufficient evidence to
prove this aggravating circumstance, we need not consider Barlow's claim
that it is duplicative of the multiple-murder aggravating circumstance
under NRS 200.033(12).
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circumstances. Each of those aggravating circumstances was more
compelling than the invalid aggravating circumstance: Barlow was
convicted in the immediate proceeding of more than one offense of murder,
the murders were committed during a home invasion or burglary, and
Barlow had been convicted of three violent felonies—assault with the use of
a deadly weapon in the instant case, a prior conviction for attempting to
murder Woods, and a prior conviction for breaking into an apartment and
shooting his ex-girlfriend's new boyfriend. Accordingly, the invalid
aggravating circumstance did not constitute a significant part of the State's
case. Cf. State v. Haberstroh, 119 Nev. 173, 184, 69 P.3d 676, 683 (2003)
(providing that the prosecutor emphasizing an invalid aggravating
circumstance caused "concern that this argument likely induced the jurors
to rest their sentence to a significant degree on the invalid aggravator").
And the jurors found only three mitigating circumstances—Barlow received
an honorable military discharge, he sought help for mental health, and his
daughters love. Thus, we conclude beyond a reasonable doubt that, absent
the invalid aggravating .circumstance, the jury still would have found the
mitigating circumstances were insufficient to outweigh the aggravating
circumstances. See Archanian, 122 Nev. at 1040-41, 145 P.3d at 1023; see
also Clemons v. Mississippi, 494 U.S. 738, 750 (1990) (observing "nothing in
appellate weighing or reweighing of the aggravating and mitigating
circumstances that is at odds with contemporary standards of fairness or
that is inherently unreliable and likely to result in arbitrary imposition of
the death sentence). Because the invalid aggravating circumstance did not
affect the jury's sentencing determination, the error was harmless, but we
further conclude that it contributed to the cumulative error in the penalty
hearing.
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Cumulative error in the penalty phase
Barlow argues that, even if harmless individually, cumulatively
the errors during the penalty phase warrant relief. "The cumulative effect
of errors may violate a defendanes constitutional right to a fair trial even
though errors are harmless individually." Butler v. State, 120 Nev. 879,
900, 102 P.3d 71, 85-86 (2004) (internal quotation marks omitted)
(discussing cumulative error in appellant's penalty hearing). Generally,
when considering a cumulative error claim, we look to the nature and
number of errors, the evidence presented, and the gravity of the
consequences a defendant faces. See Valdez v. State, 124 Nev. 1172, 1195,
196 P.3d 465, 481 (2008) (discussing cumulative error).
Here, the following errors occurred: the district court
improperly prohibited Barlow from making an important and legally
accurate argument regarding the jury's deliberative process, the prosecutor
improperly implied to the jury that a life sentence may have been
appropriate if Barlow had only killed Woods but was inappropriate because
he also killed Cobb, and the invalid great-risk-of-death aggravating
circumstance and the related improper argument. And Barlow faced the
gravest consequence—the death penalty. Individually, each of these errors
was harmless, but we consider their effect collectively on the jury's decision
to impose the death penalty. Barlow did not contest that the State proved
multiple aggravating circumstances. Instead, he focused his defense on
mercy and compassion. Thus, the district court erroneously prohibiting
Barlow from making a legally valid argument that appealed to the
individual jurors ability to bestow mercy—in conjunction with the
prosecutor's improper argument—creates a likelihood that Barlow was
prejudiced. Viewed together, we conclude that the cumulative effect of
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reverse the judgment of conviction as to the death sentences and remand
for a new penalty hearing. Given this conclusion, we need not review
Barlow's death sentences under NRS 177.055.7
Guilt phase claims
Jury selection
Barlow argues that the jury selection process was
unconstitutional based on the district court limiting his questioning,
denying his objection to the States use of its peremptory challenges, and
denying his for-cause challenge.
First, Barlow argues that the district court improperly
prevented him from life qualifying" the prospective jurors. The district
court proscribed a single question about whether the prospective jurors
would impose death sentences because the case involved two victims. We
conclude it was not improper to disallow questions aimed at acquiring
information as to "how a potential juror would vote during the penalty
phase of the trial" because such questions go "well beyond determining
whether a potential juror would be able to apply the law to the facts of the
7Barlow also argues that the death penalty is unconstitutional and
the district court admitted evidence during the penalty hearing in violation
of his confrontation rights. We have considered these claims and conclude
they lack merit and Barlow has not presented any persuasive reason to
overrule this court's precedent. See Belcher v. State, 136 Nev. 261, 278, 464
P.3d 1013, 1031 (2020) (listing cases that have rejected similar challenges
to the constitutionality of the death penalty); Summers v. State, 122 Nev.
1326, 1333, 148 P.3d 778, 783 (2006) •(providing that the Sixth Amendment
right to confrontation does not apply to capital sentencing hearings); see
also Armenta-Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398 (2013)
("Under the doctrine of stare decisis, we will not overturn precedent absent
compelling reasons for so doing." (internal quotation marks and alterations
omitted)).
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case." Witter v. State, 112 Nev. 908, 915, 921 P.2d 886, 892 (1996),
abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 776 n.12,
263 P.3d 235, 253 n.12 (2011). And the district court did not otherwise
prohibit questions about whether the prospective jurors could consider all
the aggravating and mitigating evidence, all four potential penalties, and
whether there were circumstances where first-degree murder would or
would not warrant the death penalty. Therefore, the district court did not
abuse its discretion. See NRS 175.031 (providing that the district court
shall allow supplemental examination of potential jurors "as the court
deems propee); Johnson v. State, 122 Nev. 1344, 1354-55, 148 P.3d 767, 774
(2006) (providing that conducting voir dire "rests within the sound
discretion of the district court, whose decision will be given considerable
deference by this court").
Next, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986),
Barlow objected to the State's use of four peremptory challenges to strike
one African-American and three Hispanic veniremembers. The district
court found that Barlow had not satisfied the first Batson step (prima facie
showing that the peremptory challenges were based on race) and overruled
the objection. See Cooper v. State, 134 Nev. 860, 861, 432 P.3d 202, 204
(2018) (discussing the three-step Batson test). We agree that Barlow did
not meet his burden. Other than the fact that the State used four
peremptory challenges to remove members of two cognizable groups,
Barlow did not point to anything to show that the peremptory challenges
were based on race. Merely identifying minority veniremembers struck by
the State does not meet the burden of showing an inference of
18
discriminatory purpose.8 See id. at 862, 432 P.3d at 205 ("The questiorì is
whether there is evidence, other than the fact that a challenge was used to
strike a member of a cognizable group, establishing an inference of
discriminatory purpose to satisfy the burden of this first step."). Therefore,
the district court did not clearly err in denying Barlow's Batson objection.
See id. at 863, 432 P.3d at 205 (reviewing a district court's resolution of a
Batson objection at the first step for clear error).
Finally, Barlow argues that the district court improperly denied
his for-cause challenge of a prospective juror based on his inability to
consider childhood evidence in mitigation. We discern no error. The
prospective juror stated that he could be fair and impartial and was willing
to consider everything presented in aggravation and mitigation. Reviewing
the entirety of the challenged prospective juror's responses during voir dire,
the record does not show he exhibited any bias or unwillingness to consider
the evidence presented in mitigation. Therefore, we conclude that the
district court did not abuse its discretion. See Browning v. State, 124 Nev.
517, 530, 188 P.3d 60, 69 (2008) (providing that Iglreat deference is
afforded to the district court in ruling on challenges for cause"); see also NRS
175.036 (providing that a juror should be excused for cause when voir dire
reveals information "which would prevent the juror from adjudicating the
facts fairly").
8We decline Barlow's invitation to undertake comparative juror
analysis as he did not raise this argument below, see Snyder v. Louisiana,
552 U.S. 472, 483 (2008) (the Supreme Court has "recognize [d] that a
retrospective comparison of jurors based on a cold appellate record may be
very misleading when alleged similarities were not raised at trial"), and he
failed to make a prime facie case of discrimination, cf. Miller-El v. Dretke,
545 U.S. 231, 241 (2005) (stating that comparative juror analysis may be
considered at Batson's third step).
19
Expert testimony
Barlow argues that the district court erred by allowing an
unqualified expert to testify about firearms and toolmark identification. To
testify as an expert under NRS 50.275, the witness must be qualified to give
specialized testimony, the testimony must assist the jury, and the testimony
must be limited to the scope of the expert's knowledge. Hallmark v.
Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008). "Whether expert
testimony will be admitted, as well as whether a witness is qualified to be
an expert, is within the district court's discretion, and this court will not
disturb that decision absent a clear abuse of discretion." Mulder v. State,
116 Nev. 1, 12-13, 992 P.2d 845, 852 (2000).
Based on the record, we conclude the district court did not abuse
its discretion in admitting the expert's testimony. First, the witness
qualified as an expert to testify about firearm and toolmark comparison.
The witness had ample experience and technical knowledge in the field.
While Barlow claims that the witness lacked knowledge of scientific
standards, under NRS 50.275 an expert is someone with special knowledge,
skill, or experience; thus, a forensic analyst's knowledge and experience
about firearm and toolmark analysis is sufficient. See Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (explaining that the federal analog to
NRS 50.275 "makes no relevant distinction between 'scientific knowledge
and 'technical' or 'other specialized' knowledge"). Second, the witness
provided testimony that assisted the jury and was within the scope of her
expertise. Specifically, after conducting a microscopic comparison of the
casings, the witness determined that the firearm recovered from Barlow's
vehicle fired the bullet casings found at the scene of the murders. Finally,
Barlow had the opportunity to attack the witness's credibility and
methodology during his extensive cross-examination. Thus, it was for the
20
jury to evaluate and weigh the testimony. See McNair v. State, 108 Nev.
53, 56, 825 P.2d 571, 573 (1992) ("The established rule is that it is the jury's
function, not that of the court, to assess the weight of the evidence and
determine the credibility of witnesses."); Allen v. State, 99 Nev. 485, 488,
665 P.2d 238, 240 (1983) ("Expert testimony is not binding on the trier of
fact; jurors can either accept or reject the testimony as they see fit."). And
although Barlow had sufficient notice of the testimony to retain his own
expert to testify at trial, he did not do so. Cf. Turner v. State, 136 Nev. 545,
554, 473 P.3d 438, 448 (2020) (providing that unnoticed expert testimony
"prevented [the defense] from preparing for cross-examination" and
consulting or retaining an expert for rebuttal purposes).
Prosecutorial misconduct
Barlow contends that the prosecutor improperly argued that
Barlow saved the final bullet for the headshot to Woods because no evidence
supported this comment. We agree but conclude the error was harmless.
See Miller v. State, 121 Nev. 92, 100, 110 P.3d 53, 59 (2005) ("A prosecutor
may not argue facts or inferences not supported by the evidence." (internal
quotation marks omitted)). After the district court sustained Barlow's
objection, the prosecutor conceded that the medical examiner could not
determine the sequence of the gunshots and asked the jury to look at the
physical evidence. Moreover, the State presented overwhelming evidence
of Barlow's guilt, including testimony about his earlier confrontation with
the victims, the discovery of a handgun in Barlow's vehicle with his
fingerprint and DNA, and the expert testimony that the weapon fired the
spent casings found at the crime scene. Thus, we conclude that the
comment did not have a substantial effect on the guilt phase verdict. See
King v. State, 116 Nev. 349, 356, 998 P.2d 1172, 1176 (2000) (providing that
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prosecutorial misconduct may be harmless where there is overwhelming
evidence of guilt).
Barlow also argues that the prosecutor improperly commented
on his right to remain silent by asserting at the end of closing argument
that "there's at least one person in this room who knows who executed
Donnie Cobb and Danielle Woods." Barlow did not object at trial, therefore,
we review for plain error. Anderson v. State, 121 Nev. 511, 516, 118 P.3d
184, 187 (2005). "It is well settled that the prosecution is forbidden at trial
to comment upon an accused's election to remain silent following his
arrest . . . ." Morris v. State, 112 Nev. 260, 263, 913 P.2d 1264, 1267 (1996)
(internal quotation marks omitted). However, in Taylor v. State, this court
considered a similar comment and found no error. 132 Nev. 309, 325-26,
371 P.3d 1036, 1047 (2016). While the prosecutor's isolated remark
indirectly touched upon Barlow's decision not to testify, it tracks with the
comment in Taylor. Therefore, we conclude that Barlow has not shown
plain error, which must be "clear under current law from a casual inspection
of the record." Jeremicts v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018);
see also Coleman v. State, 111 Nev. 657, 665, 895 P.2d 653, 658 (1995)
(considering "the frequency and intensity of the references te a defendant's
silence when determining if reversal is warranted).
Jury instructions
Barlow argues that the district court erroneously instructed the
jmy. Barlow first contends that the burglarous-intent instruction
unconstitutionally shifted the burden of proof by allowing a finding of guilt
without the State proving intent beyond a reasonable doubt. We disagree
because the instruction accurately reflects NRS 205.065, and we have
consistently upheld the statutes constitutionality. See, e.g., Redeford v.
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State, 93 Nev. 649, 653-54, 572 P.2d 219, 221-22 (1977) (explaining that "an
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22
inference of criminal intent logically flows from the fact of showing unlawful
entry"); White v. State, 83 Nev. 292, 296, 429 P.2d 55, 57 (1967) ("There is
clearly rational connection between the fact proven, i.e., unlawful entry, and
the presumption. It is clear that the [L]egislature has the power to establish
inferences from facts proven, provided there is such rational connection.").
Barlow also contends that the state-of-mind and intent-to-kill instructions
misled the jury. The instructions told the jury that the State is not required
to present direct evidence to prove Barlow's state of mind and the jury may
infer his state of mind from the circumstances proved at trial, including the
use of a deadly weapon. We discern no error, as the instructions correctly
state Nevada law. See Grant v. State, 117 Nev. 427, 435, 24 P.3d 761, 766
(2001) ("Intent need not be proven by direct evidence but can be inferred
from conduct and circumstantial evidence."); State v. Hall, 54 Nev. 213, 240,
13 P.2d 624, 632 (1932) (approving the same instruction challenged here
that stated "Mile intention [to kill] may be ascertained or deduced from the
facts and circumstances of the killing such as the use of a weapon calculated
to produce death, the manner of its use, and the attendant circumstances
characterizing the act"). Therefore, the district court did not abuse its
discretion in instructing the jury. See Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001) (providing that we review a district court's decision
to give or refuse a jury instruction for an abuse of discretion or judicial
error); see also Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007)
(whether an instruction correctly states the law presents a legal question
that is reviewed de novo).
Cumulative error in the guilt phase
Barlow argues that cumulative error during the guilt phase
warrants relief. Because we discern only one error, there is nothing to
cumulate. See Lipsitz v. State, 135 Nev. 131, 140 n.2, 442 P.3d 138, 145 n.2
23
(2019) (concluding that there were no errors to cumulate when the court
found only a single error).
CONCLUSION
Having considered all of Barlow's guilt phase claims, we
conclude no relief is warranted as to the guilt phase and therefore affirm
the judgment of conviction in part. Due to cumulative error during the
penalty phase of trial, we reverse the judgment of conviction as to the death
sentences for first-degree murder with the use of a deadly weapon and
remand for a new penalty hearing.
J.
Silver
We concur:
€42j4r4r.."17C.J.
Parraguirre
/....k,. , J.
Hardesty
Al4Cia-.0 , J.
Stiglich
v,
1 J.
Cadish
Piekutiy. , J.
Pickering
24
APPENDIX
Barlow v. State
SPECIAL VERDICT
We, the Jury in the above-entitled case,
having found the Defendant, [list name], guilty of
Count [#] — [list the offense], find:
Section I: Aggravating Circumstances
Instructions: Answer by checking "Yee or
"No" as to whether the jury unanimously finds that
the State has proven the listed aggravating
circumstances beyond a reasonable doubt.
1. Dist individual aggravating circumstance]
▪ Yes
▪ No
[list any additional aggravating circumstance(s)]
Instructions: If you answered "No" to all of
the above aggravating circumstances, proceed to
Section V to record your verdict as to the sentence
to be imposed for Count [.#].
If you answered "Yes" to any of the above
aggravating circumstances, proceed to Section II to
record your findings as to any mitigating
circumstances.
Section II: Mitigating Circumstances
Instructions: Answer by checking "Yes" as to
each mitigating circumstance that any individual
juror has found and checking "No" as to any
mitigating circumstance that no juror has found.
1. [list individual mitigating circumstance]
Yes
1: No
25
[list any additional mitigating circumstances and
allow space for the jury to record any mitigating
circumstances not listed]
Instructions: Proceed to Section III to record
your findings as to the weighing of aggravating and
mitigating circumstances.
Section HI: Weighing of Aggravating and
Mitigating Circumstances
Instructions: Check only one of the following
findings.
We unanimously find there are no mitigating
circumstances sufficient to outweigh the
aggravating circumstance(s).
Instructions: Proceed to Section IV to record
your verdict as to the sentence to be imposed for
Count [#] .
CI At least one juror finds there are one or more
mitigating circumstances sufficient to outweigh the
aggravating circumstance(s).
Instructions: Proceed to Section V to record
your verdict as to the sentence to be imposed for
Count [#] .
Section IV: Sentencing Decision (death
sentence available)
Instructions: Complete this section if the jury
has unanimously determined in Section III above
that there are no mitigating circumstances
sufficient to outweigh the aggravating
circumstance(s). You must unanimously decide the
sentence and the foreperson must sign and date the
final verdict.
VERDICT
We, the Jury in the above-entitled case,
having found the Defendant, [list name] , guilty of
Count [M — [list the offense], and having
unanimously found that at least one aggravating
circumstance exists beyond a reasonable doubt and
26
that there are no mitigating circumstances
sufficient to outweigh the aggravating
circumstance(s), unanimously impose a sentence of:
El A definite term of 50 years in prison, with
eligibility for parole beginning when a minimum of
20 years has been served.
El Life in prison with the possibility of parole.
El Life in prison without the possibility of
parole.
El Death.
Section V: Final Sentencing Decision (death
sentence not available)
Instructions: Complete this section if (1) the
jury determined in Section I above that the State
did not prove any aggravating circumstance(s)
beyond a reasonable doubt or (2) at least one juror
found in Section III above that there are mitigating
circumstances sufficient to outweigh the
aggravating circumstance(s). If you have
determined a sentence under Section IV, do not fill
out this section. You must unanimously decide the
sentence and the foreperson must sign and date the
final verdict.
VERDICT
We, the Jury in the above-entitled case,
having found the Defendant, [list name], guilty of
Count [#] — [list the offense], unanimously impose a
sentence of:
El A definite term of 50 years in prison, with
eligibility for parole beginning when a minimum of
20 years has been served.
D Life in prison. with the possibility of parole.
D Life in prison without the possibility of
parole.
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