Wallace, Jr. (Darren) v. State

• Court: Nevada Supreme Court
• Decided: June 11, 2014
• Docket: 64576
• Status: Unpublished

Opinion

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