Wallace, Jr. (Darren) v. State ( 2014 )

 defense is not credible and explain how the evidence supports that
conclusion); 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."). Moreover, the prosecutor emphasized that the defense had no
duty to present evidence; therefore, Wallace fails to demonstrate that his
substantial rights were affected. See Leonard, 117 Nev. at 63, 17 P.3d at
403.
Next, Wallace contends that the prosecutor committed
misconduct by comparing his defense to a "gypsum giant," and the district
court erred by overruling his objection to the comparison. 1 During
rebuttal, the prosecutor told the story of a man who wanted to "perpetrate
[a] fraud upon the public," so he created a large figure out of gypsum and
claimed that it was a fossilized giant. The man sold tickets to view his
forgery, and his fame grew. When legendary circus owner P.T. Barnum
learned of the money the man was making, he built his own fraudulent
giant and attempted to convince the public that his giant was real and the
other man's was not. According to the prosecutor, Barnum's partner did
not want to deceive the public, but Barnum told him "[w]e're in business to
sell tickets . . . and if I can convince the public that my giant is the real
one and if I can sell tickets to this and make money from it, it doesn't
matter whether I'm perpetrating a fraud." The prosecutor explained that
'We reject the State's assertion that Wallace's objection was
insufficient to preserve this claim.
SUPREME COURT
OF
NEVADA
2
(0 1 ,147A
the hoax was one of the biggest in history—spawning the phrase "there's a
sucker born every minute"—and concluded by stating "please, don't buy
into this gypsum giant of doubt that [defense counsel] is presenting to
you."
Having considered this story in context, we conclude that it
disparaged the defense and constitutes misconduct. Although anecdotes
and artful phrases are appropriate in closing argument, the selection of
this particular story and relation of it to the defense implied that the
defense was attempting to perpetrate a fraud and was improper. See
Butler v. State, 120 Nev. 879, 899, 102 P.3d 71, 85 (2004) (finding error
where the prosecutor stated that the defense was trying to deceive the jury
and warned jurors not to let themselves be "fooled"). However, we
conclude that the misconduct constitutes harmless error because it does
not appear that the story was intended to inflame jurors' passions and did
not misconstrue the defendant's constitutional rights. See Valdez, 124
Nev. at 1192, 196 P.3d at 479. Cf. McGuire v. State, 100 Nev. 153, 156-7,
677 P.2d 1060, 1063 (1984) (finding "intolerable" misconduct where the
prosecutor repeatedly misled the jury as to the extent of the defendant's
constitutional rights, and made comments which could "only have
impermissibly served to inflame the emotions of the jury"). Moreover,
substantial evidence was presented to support the conviction.
Accordingly, we conclude that no relief is warranted. See Leonard, 117
Nev. at 81, 17 P.3d at 414 ("[A] criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone.").
SUPREME COURT
OF
NEVADA
3
(0) 1947A 0gtjo
Finally, Wallace contends that cumulative error entitles him
to relief. We disagree because the one error we have found was harmless,
and "[o]ne error is not cumulative error." United States v. Sager, 227 F.3d
1138, 1149 (9th Cir. 2000).
Having considered Wallace's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
gek.“ J.
Pickering
\—c—-XxcL-5r6—r-
b
Parraguirre
I
(L- ss•s
9 J.
Saitta
cc: Hon. Valerie Adair, District Judge
Creed & Giles, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A