(3) a pretrial ruling which precluded him alone from implicating Smith or 

other third party violated his due process rights.' 

'We have reviewed the remaining issues that McKnight raised and 

determine they are without merit for the following reasons: (1) McKnight 

was not deprived of his right to a jury selected from a fair cross section of 

the community because there is no evidence the venire process 

systematically excluded African-Americans or that the district court 

selected the jury panel unfairly, see Williams v. State, 121 Nev. 934, 939- 

40, 125 P.3d 627, 631 (2005) ("The Sixth Amendment does not guarantee a 

jury or even a venire that is a perfect cross section of the community."); (2) 

even though the State committed improper conduct by showing the jury an 

inflammatory photograph, the error does not warrant reversal because 

similar photographs were later admitted into evidence without McKnight's 

objection, Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008) 

(explaining the two-step process this court utilizes when considering 

claims of prosecutorial misconduct); (3) prior-bad-act evidence did not 

deprive McKnight of his right to a fair trial because the result of the trial 

would have been the same without admission of the improper statement. 

Newman v. State, 129 Nev. 13 .3d _ (Adv. Op. No. 24, Apr. 18, 

2013) (reviewing erroneous admission of evidence for harmless error) 

McNelton v. State, 115 Nev. 396, 406, 990 P.2d 1263, 1271 (1999) (same); 

(4) the district court did not err in refusing to give a proposed jury 

instruction because another jury instruction gave an accurate statement of 

the law regarding malice as an element of premeditated murder, Guy v. 

State, 108 Nev. 770, 776, 839 P.2d 578, 582 (1992) (explaining that jury 

instructions must correctly state existing law); furthermore, the error, if 

any, was harmless because McKnight was charged with open murder and 

the jury was properly instructed on felony murder, which the record 

supports, as discussed infra; (5) McKnight's sentence is not cruel and 

unusual punishment because it conforms to statutory limits, Allred v. 

State, 120 Nev, 410, 420, 92 13 .3d 1246, 1253 (2004); (6) cumulative error 

did not deny McKnight's right to a fair trial because the issue of guilt was 

not close and there was overwhelming admissible evidence of his guilt, 

Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465, 481 (2008); and (7) the 

State presented sufficient evidence to support McKnight's convictions 

because a rational trier of fact could have found the essential elements of 

the crimes beyond a reasonable doubt, McNair v. State, 108 Nev. 53, 56, 

825 P.2d 571, 573 (1992). 

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McKnight argues that he did not voluntarily waive his 

Miranda rights when he gave a statement to detectives ., and therefore the 

district court should have suppressed the statement. Specifically, he 

maintains that detectives coerced him into making the statement and that 

the detectives used an improper question-first technique by obtaining an 

unwarned confession before giving the Miranda warnings. 

"'Suppression issues present mixed - questions of law and fact. 

While this &mit reviews the -legal questions de novo, it reviews the district 

court's factual • determinations for sufficient evidence." Camacho.v.- State ; 

119 Nev. 395, 399, 75 P.3d 370, 373 (2003) (quoting Johnson v. State, 118 

Nev. 787, 794, 59 P.3d 450,- 455 (2002), overruled on other grounds by 

Nunnery v. State;127- Nev. - • , 263 R3c1 235,-250-51 (2011)). 

Under the Fifth Amendment, Miranda warnings are required 

prior to custodial- interrogation or the •accused's statement is inadmissible. 

...Hernandez v. State, • 124 Nev: 978, 988,. 194 P:3d 1235, 1242 (2008); Rosky 

State; 121 Nev. 184, 191, 111 R3.61 690,. 695 (2005). A waiver of 

Miranda rightsmust be voluntary.- Missouri v. Seibert, -542 U.S. 600, 608,- 

612-14(2004).: • • 

Here,_ the detectives gave McKnight Miranda warnings at the 

start of his recorded interview, he Waived his rights and •agreed to talk to 

the detectives. - is - unclear what occurred before the recordedinterview, 

but ' the 'diStriCt - -.Cdurt- found that coercion • did •' - net occur •during the 

discussion. in fact, the court -found that the 'video showed what appeared 

to be "a' .vei°.y. • congenial conversation.' We have reviewed- . the record and 

conclude that the .district court's finding of fact that coercion - did not occur 

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is supported by sufficient evidence, including the recorded interview and 

witness testimony. 

McKnight is correct that Miranda warnings given after an 

unwarned confession are ineffective. Seibert, 542 U.S. at 612-14. The 

record also supports his argument that he and the detectives had a short 

conversation before the recorded interview. However, based on 

McKnight's testimony, it appears that neither an interrogation nor 

confession took place before the recorded interview. Instead, McKnight 

testified that the detective threw down a binder and lied about McKnight's 

attorney. These actions, if they occurred, would likely be unlawful, but 

would not be considered coercion. See Collazo v. Estelle, 940 F.2d 411, 

416-18 (9th Cir. 1991) (discussing types of coercion, such as discouraging a 

defendant from speaking with an attorney). And as discussed above, 

sufficient evidence supports the district court's finding that detectives did 

not coerce McKnight into making a statement. Thus, McKnight's 

allegations do not support his argument that the detectives used a 

question-first tactic. 

Accordingly, because the record supports neither of 

McKnight's arguments, the district court did not abuse its discretion by 

denying McKnight's motion to suppress. 

Next McKnight argues that the district court deprived him of 

a fair trial by refusing to sever co-defendant Smith from the tria1. 2Citing 

Ducksworth v. State, 114 Nev. 951, 953-54, 966 P.2d 165, 166-67 (1998), he 

2McKnight also moved to sever his case from co-defendant Gibson, 

but this is a non-issue because Gibson pleaded guilty pursuant to a plea 

agreement with the state before trial. 

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explains that an incriminating statement by a co-defendant in a joint trial 

violates the Confrontation Clause of the Sixth Amendment unless the 

statement can be redacted to remove references to the other defendants. 

He then claims that the district court could not redact co-defendant 

Smith's statements as required by Ducksworth. 

"The decision to sever a joint trial is vested in the sound 

discretion of the district court and will not be reversed on appeal unless 

the appellant `cardies] the heavy burden' of showing that the trial judge 

abused his discretion." Buff v. State, 114 Nev. 1237, 1245, 970 P.2d 564, 

569 (1998) (quoting Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 

(1990)). Reversal is only justified if refusal to sever a joint trial had "a 

substantial and injurious effect on the verdict." Marshall v. State, 118 

Nev. 642, 647, 56 P.3d 376, 379 (2002)). 

In the first Ducks worth appeal, this court held that the district 

court erred in refusing to grant a severance where introduction of one 

defendant's unredacted confession probably inculpated his co-defendant. 

Ducksworth v. State, 113 Nev. 780, 794-95, 942 P.2d 157, 166-67 (1997). 

We explained that a Confrontation Clause violation does not automatically 

require reversal, id. at 795, 942 P.2d at 167, and we held that the district 

court's failure to grant a severance was reversible error because the 

admissible evidence against the defendant was largely circumstantial and 

the State relied heavily on the co-defendant's inculpatory statement. Id. 

at 794, 942 P.2d at 166. 

This case differs from Ducksworth in two important ways. 

First, the record disproves McKnight's claim that Smith's statement could 

not be redacted because the parties successfully did so during trial. 

Second, the State had more than circumstantial evidence against 

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McKnight, including the testimony of Gibson, fingerprints, and DNA 

evidence, plus the admission by McKnight that he participated in the 

second robbery. Because of these distinctions, McKnight cannot meet his 

burden of proving that the joint trial had a substantial and injurious effect 

on the verdict that warrants reversal. 

IV. 

McKnight's last argument is that the district court violated his 

due process rights by ordering that he could not implicate Smith or 

another third party in the crimes. McKnight further argues that the 

district court compounded its mistake because it did not apply a similar 

ruling to Smith, who could and did implicate McKnight in the crimes. 

Although the presiding judge reversed the pretrial order on the fifth day of 

the trial, McKnight contends that he suffered harm because he had 

limited his opening argument and questioning of the State's witnesses to 

comply with his interpretation of the pretrial order. 

As a threshold matter, we note that McKnight failed to make 

a contemporaneous objection on the record to the pretrial ruling. The 

defense excluded the State from the off-the-record discussion that 

produced the ruling. Furthermore, the limited record that was made of 

the ruling differs from the ruling McKnight claims in his opening brief, 

without record citation, was made. 

Generally, a failure to object precludes appellate review. 

Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997) (citing 

Garner v. State, 78 Nev. 366, 372-73, 374 P.2d 525, 529 (1962)). McKnight 

points to his pretrial motion to sever, which he describes as "continuing," 

but in this case, the motion to sever is not an adequate substitute. We 

recognize that, "where an objection has been fully briefed, the district 

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court has thoroughly explored the objection during a hearing on a pretrial 

motion, and the district court has made a definitive ruling, then a motion 

in limine is sufficient to preserve an issue for appeal." Richmond v. State, 

118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002). But because McKnight did 

not properly object to the pretrial ruling and the limited record available 

does not establish the ruling McKnight contends was made, we are unable 

to conclude, under Richmond, that McKnight adequately preserved the 

issue for purposes of appeal. 

Even assuming an adequate objection by McKnight, his 

argument for reversal of his first-degree murder conviction based on the 

later-rescinded pretrial ruling still fails. McKnight argues that the 

district court's pretrial ruling violated his due process right to advance his 

theory of the case—that although he was present at the second robbery, he 

never touched the deceased victim. See Vipperman v. State, 96 Nev. 592, 

596, 614 P.2d 532, 534 (1980) (citing United States v. Nixon, 418 U.S. 683, 

711 (1974); State v. Fouquette, 67 Nev. 505, 514, 221 P.2d 404, 409 (1950)) 

(the due process clauses of the Nevada and United States Constitutions 

"assure an accused the right to introduce into evidence any testimony or 

documentation which would tend to prove the defendant's theory of the 

case"). In reviewing claims of constitutional error, we determine whether 

the district court erred, and if so, "we must reverse unless the error is 

harmless beyond a reasonable doubt, i.e., reversal is unwarranted if we 

conclude 'without reservation that the verdict would have been the same 

in the absence of error." Diomampo v. State, 124 Nev. 414, 428, 185 P.3d 

1031, 1040 (2008) (quoting Schoels v. State, 115 Nev. 33, 35, 975 P.2d 

1275, 1276 (1999)). See also Chapman v. California, 386 U.S. 18, 21-24 

(1967) (holding that a constitutional claim is reviewed for harmless error). 

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The error McKnight asserts as to the later-rescinded pretrial 

ruling—assuming the objection was adequately preserved—was harmless 

beyond a reasonable doubt. We reach this conclusion for several reasons. 

First, the record does not support McKnight's position that the pretrial 

ruling precluded him from implicating Smith or another third party in any 

manner at any stage of the trial. On the contrary, as stated by the district 

court, its ruling only prevented McKnight if he took the stand from being 

asked to identify Smith as the third party at the Nievo robbery. 3Then, 

days before McKnight had to finally choose whether to testify or not, the 

trial judge rescinded the pretrial ruling, freeing McKnight to implicate 

Smith by name. The harm McKnight claims to have suffered thus differs 

significantly from that the record supports. 

Second, McKnight was charged with open murder. The jury 

could find McKnight guilty of first-degree murder on the basis of either 

premeditation or felony murder. See Holmes v. State, 114 Nev. 1357, 972 

P.2d 337 (1998) ("[P]remeditation and felony-murder are alternate 

theories upon which the State may rely in its attempt to establish the 

mens rea element of the crime of first degree murder."). 

The State provided strong evidence supporting felony murder. 

Through a forensic pathologist's testimony, the State proved that the 

3The limited record of the ruling appears at 3 A.A. 744: "If Mr. 

Smith should take the stand, he cannot be questioned as to the identity of 

a third party, arguably Mr. Smith . . . . This is not unlike the issue [of] 

redacting documents where another individual would use the neutral 

phraseology of, 'another person with me,' that kind of thing. That can be 

allowed because it's going to come out that there are three people involved, 

in all likelihood. But Mr. McKnight cannot be asked about the identity of 

the third party, Mr. Smith." 

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injuries Mr. Nieva sustained during the robbery caused his death. The 

evidence also showed that McKnight participated in the second robbery. 

McKnight's co-defendant Gibson testified to this and McKnight admitted 

to detectives that he participated in the robbery, though he denied 

injuring Mr. Nieva. Even assuming McKnight did not personally slam Mr. 

Nieva to the ground, for purposes of the felony murder rule, it is irrelevant 

which co-felon actually kills the deceased because a cohort involved in the 

commission of the principal crime may also be charged with murder. See 2 

Wayne R. LaFaye, Substantive Criminal Law § 14.5(c) (2d ed. 2003). See 

also Echauarria v. State, 108 Nev. 734, 748, 839 P.2d 589, 599 (1992) 

(upholding felony murder conviction predicated upon robbery where 

accused acted as getaway driver). The State's evidence supporting felony 

murder did not depend on which defendant performed which acts, but 

rather, that a killing occurred as a result of the perpetrators' planned 

robbery. Cf. Cortinas u. State, 124 Nev. 1013, 1028-29, 195 P.3d 315, 325 

(2008) (concluding that an instructional error with respect to felonymurder theory was harmless beyond a reasonable doubt where the record 

established premeditation-based conviction of first degree murder). Thus, 

the district court's error was harmless beyond a reasonable doubt 

We, therefore, affirm. 
cc: Eighth Judicial District Court Dept. 14 

Nguyen & Lay 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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