misconduct; and (10) the jury selection process violated Randolph's 

constitutional rights. We disagree.' 

Post-trial pro se motions 

Randolph argues that his due process rights were violated by 

the district court when it declined to file his pro se motions to set aside the 

verdict, enter a judgment of acquittal, and for a new trial, pursuant to 

EDCR 3.70. 

EDCR 3.70 states: 

Except as may be required by the provisions of 

NRS 34.730 to 34.830, inclusive, all motions, 

petitions, pleadings or other papers delivered to 

the clerk of the court by a defendant who has 

counsel of record will not be filed but must be 

marked with the date received and a copy 

forwarded to that attorney for such consideration 

as counsel deems appropriate. This rule does not 

apply to applications made pursuant to Rule 

7.40(b)(2)(ii). 

Criminal defendants represented by counsel typically may not 

file pro se motions. United States v. Gallardo, 915 F. Supp. 216, 218 n.1 

(D. Nev. 1995); see also Carter v. State, 713 So. 2d 1103, 1104 (Fla. Dist. 

Ct. App. 1998). The rule is "an aspect of the doctrine that an accused can 

proceed by counsel or pro se but not in both capacities at the same time." 

People v. Neal, 675 N.E.2d 130, 131 (Ill. App. Ct. 1996); State v. Muse, 637 

S.W.2d 468, 470 (Tenn. Crim. App. 1982). Other jurisdictions have similar 

limitations on the filing of pro se motions by represented criminal 

'The parties are familiar with the facts and procedural history of 

this case and we do not recount them further except as is necessary for our 

disposition. 

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defendants. See, e.g., Mont. R. App. P. 10(1)(c); N.M. Dist. Ct. R. Crim. P. 

5-103(E). 

This court has previously considered EDCR 3.70 in Craine v. 

Eighth Judicial Dist. Court, 107 Nev. 554, 556-57, 816 P.2d 451, 452 

(1991). In Craine we held that EDCR 3.70 does not bar "notices of appeal 

or other documents associated with an appeal that are submitted for filing 

by persons acting in proper person." Id. at 557, 816 P.2d at 452. This 

court reasoned that "[t]he right to appeal is basic to the fundamental 

notions of fairness that underlie our judicial system," and it could not 

"allow the operation of a local rule of procedure or the actions of a court 

clerk to impair the right of any person to prosecute an appeal to this 

court." Id. at 556, 816 P.2d at 452. 

Similarly, the United States Court of Appeals for the Fifth 

Circuit in Tarter v. Hury, stated that: 

[a]s long as a criminal defendant is represented by 

counsel, he will be able to present matters for 

decision to the court through motions filed by his 

attorney. Therefore, in the absence of 

extraordinary circumstances . . due process does 

not require that a criminal defendant be permitted 

to file every pro se motion he wishes to submit in 

addition to his attorney's motions. 

646 F.2d 1010, 1014 (5th Cir. 1981). However, that court further noted 

that "extraordinary circumstances may exist in a particular case so that 

the refusal to docket a pro se motion could deprive a defendant of an 

opportunity to present an issue to the court." Id. 

Here, we conclude that Randolph's argument lacks merit. A 

motion to set aside the verdict and enter a judgment of acquittal and a 

motion for a new trial are neither the equivalent of a notice of appeal nor 

extraordinary circumstances and are not part of the same "fundamental 

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notions of fairness that underlie our judicial system that this court relied 

on in Craine. 107 Nev. at 556-57, 816 P.2d at 452. Thus, the operation of 

EDCR 3.70 did not violate Randolph's due process rights. 

Sufficiency of the evidence 

The standard of review for a challenge to the sufficiency of the 

evidence is "whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt." Rose u. State, 

123 Nev. 194, 202, 163 P.3d 408, 414 (2007) (internal quotations omitted). 

In rendering its decision, the jury is tasked with "assess[ing] the weight of 

the evidence and determin[ing] the credibility of witnesses." Id. at 202-03, 

163 P.3d at 414 (internal quotations omitted). A jury is free to rely on 

both direct and circumstantial evidence in returning its verdict. Wilkins v. 

State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). This court has 

consistently held that "circumstantial evidence may constitute the sole 

basis for a conviction." Canape v. State, 109 Nev. 864, 869, 859 P.2d 1023, 

1026 (1993); see also Deueroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 

724 (1980). 

Randolph argues that the evidence in his case was insufficient 

to prove "willfulness, deliberation, and premeditation beyond a reasonable 

doubt." Randolph cites Valdez v. State, 124 Nev. 1172, 1196, 196 P.3d 465, 

481 (2008), as support for his argument that the undisputed evidence of 

his impaired cognitive function negated the elements of willfulness, 

deliberation, and premeditation. 2 

2Randolph also argues that the prosecution's evidence of intent to 

kill was insufficient because no one saw Randolph point the gun at the 

decedent and fire, and because the coroner only found a partial bullet in 

continued on next page... 

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Randolph's citation to Valdez is misplaced. Although this 

court did conclude in Valdez that the "expert witness testimony that [the 

defendant] suffered from cognitive impairment that limited his ability to 

exercise good judgment and control his impulses," made the evidence of 

guilt "not overwhelming," that analysis was in the context of cumulative 

error. 124 Nev. at 1196, 196 P.3d at 481. Further, this court also 

specifically stated that the evidence put forth by the prosecution in Valdez 

was sufficient for a first-degree murder conviction. Id. Therefore, there 

may be sufficient evidence to convict a defendant of first-degree murder, 

even when the defendant proffers evidence of impaired cognitive function. 

Jury instructions 

Randolph argues that the district court erred when it failed to 

include Randolph's requested instructions and failed to instruct the jury 

on Randolph's theory of defense. 

Proposed jury instructions 

Randolph's proposed jury instructions provided separate jury 

instructions defining willfulness, deliberation, and premeditation rather 

than the instructions combining the definitions as set forth in Byford v. 

State, 116 Nev. 215, 236-37, 994 P.2d 700, 714-15 (2000). Randolph also 

contends that the district court erred by combining the definitions of 

premeditation and deliberation in jury instructions 8 and 9. We disagree. 

...continued 

the decedent, suggesting Randolph only meant to scare the decedent when 

he fired. We conclude Randolph's arguments on these issues lack merit. 

Multiple witnesses heard Randolph threaten the decedent and saw him 

walk toward the decedent while shooting the gun. 

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First of all, "[t]he district court has broad discretion to settle 

jury instructions." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 

585 (2005). And we review a district court's decision to give or reject a 

proposed jury instruction for "an abuse of discretion or judicial error." Id. 

"An abuse of discretion occurs if the district court's decision is arbitrary or 

capricious or if it exceeds the bounds of the law or reason." Jackson v. 

State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001). However, we review 

whether an instruction was an accurate statement of law de novo. 

Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009). 

This court has set forth specific jury instructions defining 

willfulness, deliberation, and premeditation for purposes of a first degree 

murder charge. See Byford, 116 Nev. at 236-37, 994 P.2d at 714-15. Here, 

Randolph argues separate jury instructions were necessary because the 

jury must find each element separately beyond a reasonable doubt. 

However, as proscribed in Byford, the jury instructions already specify 

that "[a]1l three elements—willfulness, deliberation and premediationmust be proven beyond a reasonable doubt before an accused can be 

convicted of first-degree murder." We conclude separate instructions for 

each element are not necessary. Thus, the district court did not abuse its 

discretion when it refused to give further instructions because the district 

court gave the required Byford instructions. 

Theory of defense 

Randolph also argues that the district court erred in failing to 

instruct the jury on his theory of defense that the state failed to prove the 

elements of premeditation and deliberation. 

"A defendant has the right to have the jury instructed on [his 

or her] theory of the case as disclosed by the evidence, no matter how weak 

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or incredible that evidence may be." Davis v. State, 130 Nev. , 321 

P.3d 867, 871 (2014) (alterations in original) (internal quotations omitted). 

"If a defense theory of the case is supported by some evidence which, if 

believed, would support a corresponding jury verdict, failure to instruct on 

that theory totally removes it from the jury's consideration and constitutes 

reversible error." Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 

(1983). However, "[w]here the district court refuses a jury instruction on 

defendant's theory of the case that is substantially covered by other 

instructions, it does not commit reversible error." Earl v. State, 111 Nev. 

1304, 1308, 904 P.2d 1029, 1031 (1995). 

In the present case, the district court gave jury instructions 

that supported Randolph's theory of defense, although it refused to give 

the specific instructions Randolph proposed. Accordingly, there was no 

error. 

Confrontation Clause 

Randolph argues that the district court violated his rights 

under the Confrontation Clause when it permitted testimony by a forensic 

pathologist rather than the coroner who performed the autopsy and wrote 

the report. We conclude that the testimony of Dr. Lisa Gavin, a forensic 

pathologist, in lieu of the coroner who conducted the autopsy, did not 

implicate the Confrontation Clause because Dr. Gavin offered testimony 

as to her own opinions as an expert witness and not as to the opinions of 

the coroner. Further, even if Dr. Gavin's testimony implicated the 

Confrontation Clause, any error was harmless. 

To the extent that Randolph challenges Dr. Gavin's testimony 

because Dr. Gavin lacked personal knowledge of the autopsy, we conclude 

that Randolph's claim lacks merit. Dr. Gavin testified as an expert 

witness to matters "within the scope of [her specialized] knowledge," NRS 

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50.275, based on facts or data "made known to the expert at or before the 

hearing," NRS 50.285(1), that are "of a type reasonably relied upon by 

experts in forming opinions or inferences" and therefore "need not be 

admissible in evidence," NRS 50.285(2). Here, the vast majority of Dr. 

Gavin's testimony reflected her independent interpretation of photographs 

taken at the autopsy and therefore this testimony was properly-admissible 

expert opinion. 

Further, even assuming the autopsy report was testimonial 

hearsay, and therefore that Dr. Gavin's testimony based on that report 

violated Randolph's confrontation rights, we conclude that any error from 

its admission was harmless. Dr. Gavin's testimony was not pivotal to the 

outcome of this case in that several witnesses testified that they heard 

Randolph threaten the decedent. Multiple witnesses testified at trial as to 

watching Randolph walk toward the decedent while shooting the gun. 

Another witness also testified that he told detectives that he saw the 

decedent get shot in the hip. 

Prejudicial error by permitting exhibit 67 

Randolph argues that the district court erred when it 

permitted the jury to view exhibit 67, an autopsy photo, because it was 

irrelevant and gruesome. 

"Admission of evidence is within the trial court's sound 

discretion; this court will respect the trial court's determination as long as 

it is not manifestly wrong." Colon v. State, 113 Nev. 484, 491, 938 P.2d 

714, 719 (1997). Generally, "[photographic evidence is admissible unless 

the photographs are so gruesome as to shock and inflame the jury." 

Wesley v. State, 112 Nev. 503, 513, 916 P.2d 793, 800 (1996). The 

photographs must also be relevant; relevant evidence is "evidence having 

any tendency to make the existence of any fact that is of consequence to 

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the determination of the action more or less probable than it would be 

without the evidence." NRS 48.015. 

Here, the district court admitted the photograph because it 

"felt . . . that the jury ought to have a sense of the [decedent] appearancewise." The district court further noted that "[t]here's no blood or wounds 

[or] anything of consequence, so [it did not] think [it was] unduly gory." 

Although the reasoning put forth by the district court may not strongly 

support the photograph's relevancy, we conclude the photo was not 

patently gruesome and therefore, not prejudicial. Thus, the district court's 

admission of the photograph was not "manifestly wrong." Colon, 113 Nev. 

at 491, 938 P.2d at 719. 

Failure to strike the death penalty notice at the Atkins 3 hearing 

Randolph argues that the district court should have stricken 

the death penalty because the Eighth Amendment prohibits the State 

from executing an intellectually disabled person. 4The State counters that 

the issue of intellectual disability is moot because Randolph agreed to let a 

judge sentence him in exchange for the death penalty being removed as a 

sentencing option. "When a live controversy become[s] moot by the 

occurrence of subsequent events, we will not make legal determinations 

that cannot affect the outcome of the case." Stephens Media, LLC v. 

Eighth Judicial Dist. Court, 125 Nev. 849, 858, 221 P.3d 1240, 1246-47 

3Atkins v. Virginia, 536 U.S. 304 (2002); see also NRS 174.098. 

4Randolph also argues that the death penalty is unconstitutional. 

We need not consider the issue because he did not put forth a cogent 

argument and "[i]t is appellant's responsibility to present relevant 

authority and cogent argument; issues not so presented need not be 

addressed by this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 

6 (1987). 

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(2009) (alteration in original) (internal quotation marks omitted). Because 

the State and Randolph entered into a stipulation that removed the death 

penalty as a sentencing option, we conclude the issue of Randolph's 

intellectual disability is moot. 

Randolph's motions for new counsel 

Randolph argues that the district court erred by not properly 

conducting an evidentiary hearing on his motions for a new attorney. 5To 

determine if the district court abused its discretion in denying a motion for 

substituted counsel, we examine: -0.) the extent of the conflict; (2) the 

adequacy of the inquiry; and (3) the timeliness of the motion." 6 Young v. 

State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (quoting United States 

v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). "[I]f the complete 

collapse of the attorney-client relationship is evident, a refusal to 

substitute counsel violates a defendant's Sixth Amendment rights." Id. at 

969, 102 P.3d at 576. However, lalbsent a showing of adequate cause, a 

defendant is not entitled to reject his court-appointed counsel and request 

substitution of other counsel at public expense." Id. at 968, 102 P.3d at 

576. "We review the denial of a motion for substitution of counsel for 

abuse of discretion." Id. 

°Randolph also argues that the district court erred by not directly 

addressing his request to represent himself. After careful consideration, 

we conclude Randolph's arguments on this issue lack merit. 

6Randolph further argues that the district court did not hold a 

Young v. State, 120 Nev. 963, 102 P.3d 572 (2004), hearing until after he 

made motions and "shortly before trial." However, we conclude this 

argument lacks merit because the trial occurred over a year after the 

Young hearing. 

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Under the specific facts of this case, we cannot conclude that 

the district court's denial of Randolph's motion for new counsel or decision 

not to hold an evidentiary hearing was an abuse of discretion. 

The district court's canvass of Randolph 

Randolph argues that the district court's questioning of him 

before trial was not a sufficient canvass to show that he knowingly and 

voluntarily consented to an admission of guilt. Randolph did not object to 

the canvass, thus this court will review his claim for plain error. ArmentaCarpi° v. State, 129 Nev. „ 306 P.3d 395, 397 (2013). 

Pursuant to Hernandez v. State, "[alt a minimum, the district 

court should canvass the defendant outside the presence of the State and 

the jury to determine whether the defendant has consented to the 

concession of guilt and that the defendant's consent is voluntary and 

knowing." 124 Nev. 978, 990, 194 P.3d 1235, 1243 (2008), overruled by 

Armenta-Carpio v. State, 129 Nev. , 306 P.3d 395 (2013). 

Here, once the district court became aware that Randolph's 

attorney planned to concede guilt, it had the State leave the room and 

asked Randolph about his attorney's planned concession. The district 

court repeated the concession that Randolph's attorney planned on 

making and asked if he understood, had a problem with counsel's 

argument, had any questions for the court, and whether he was satisfied 

that he understood. Randolph repeated that he understood, he did not 

have a problem with the argument, and that he did not have any 

questions for the court. Thus, we conclude that the district court did not 

commit plain error. 

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Prosecutorial misconduct 

Randolph argues that the prosecutor committed misconduct 

during his closing statement because he characterized Randolph's expert 

witness as a liar. We disagree. 

In reviewing claims of prosecutorial misconduct, this court 

must first determine if the conduct was improper and, if so, whether the 

conduct warrants reversal. Valdez v. State, 124 Nev. 1172, 1188-89, 196 

P.3d 465, 476-77 (2008). "[T]his court will not reverse a conviction based 

on prosecutorial misconduct if it was harmless error. . . . If the error is not 

of constitutional dimension, [this court] will reverse only if the error 

substantially affects the jury's verdict." Id. at 1188-89, 196 P.3d at 476. 

But, "[i]f the error is of constitutional dimension, then . . [this court] will 

reverse unless [it is shown], beyond a reasonable doubt, that the error did 

not contribute to the verdict." Id. at 1189, 196 P.3d at 476. "The 

[prosecutor's] statements should be considered in context ... ." Thomas v. 

State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004). 

"[P]rosecutorial misconduct results when a prosecutor's 

statements so infect[ ] the proceedings with unfairness as to make the 

results a denial of due process." Browning v. State, 124 Nev. 517, 533, 188 

P.3d 60, 72 (2008) (internal quotations omitted) (alterations in original). 

It is improper for the prosecutor to "characterize a witness as a liar," or 

add his own opinion about the guilt of the accused. Ross v. State, 106 Nev. 

924, 927, 803 P.2d 1104, 1105 (1990); Yates v. State, 103 Nev. 200, 203, 

734 P.2d 1252, 1254 (1987). 

Randolph argues that the prosecutor insinuated that Dr. Kern 

was a liar. Randolph further takes issue with three comments from the 

prosecutor: first, his statement that "there is no not guilty by mental 

retardation;" second, when the prosecutor stated that "[Dr.] Kern was paid 

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and retained by defense counsel to give them an opinion [on Randolph's 

mental retardation] and third, when the prosecutor commented and 

argued that "[Dr. Kern] tailored his testimony to fit the defense's 

perspective and defense case in this case." Randolph further argues that 

the prosecutor mischaracterized Dr. Kern's testimony. 

We conclude that Randolph's argument lacks merit. At no 

point did the prosecutor say that Dr. Kern was a liar or a fraud. The 

prosecutor did state that "[Dr.] Kern was paid and retained by defense 

counsel to give them an opinion [on Randolph's mental retardation]." 

When Randolph objected, the prosecutor explained that his "comments 

and. .. argument is that [Dr. Kern] certainly tailored his testimony to fit 

the defense's perspective and defense case in this case." The prosecutor 

"may argue the evidence and inferences before the jury[, but] .. . [the 

prosecutor] may not heap verbal abuse on a witness nor characterize a 

witness as a perjurer or a fraud." Yates, 103 Nev. at 204-05, 734 P.2d at 

1255. The prosecutor's statements did not characterize Dr. Kern as a 

"perjurer or a fraud." Id. 

Jury selection 

Randolph argues that the district court erred when it denied 

Randolph's jury questionnaire. Randolph further argues that the jury 

venire did not represent a fair cross-section of the community because 

there were no African-Americans, and that there were too few people in 

the venire. Lastly, Randolph argues that the district court improperly 

changed the random selection process. 

Randolph's jury questionnaire 

Randolph argues that the district court erred when it declined 

to use his proposed jury questionnaire. "Decisions concerning the scope of 

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voir dire and the manner in which it is conducted are reviewable only for 

abuse of discretion, and draw considerable deference on appeal." Lamb v. 

State, 127 Nev. „ 251 P.3d 700, 707 (2011) (citations omitted) 

(internal quotations omitted). In Lamb, this court upheld a district court's 

oral questioning, which addressed the topic put forth in the defendant's 

questionnaire, rather than use the defendant's proposed questionnaire. 

Id. at ,251 P.3d at 707-08. 

Along with general background information and the potential 

juror's experience with and opinion of the criminal justice system, 

Randolph's proposed jury questionnaire asked questions about the death 

penalty. The district court permitted both the State and Randolph to 

address and question the prospective jurors in a panel, as well as 

individually. Further, potential jurors were asked about his or her 

feelings and opinion on the death penalty, and sentencing. Therefore, we 

conclude that the district court did not abuse its discretion when it 

declined to use Randolph's proposed jury questionnaire. 

Cross-section of society 

Randolph argues that the district court erred when it did not 

expand the jury venire with the goal of adding an African-American. 

However, Randolph has put forth no evidence of systematic exclusion, and 

did not attempt to procure demographic information. 

The Sixth and Fourteenth Amendments guarantee the 

defendant a jury venire from a fair cross-section of the community 

Williams v. State, 121 Nev. 934, 939-40, 125 P.3d 627, 631 (2005). 

However, 

Nile Sixth Amendment does not guarantee a jury 

or even a venire that is a perfect cross section of 

the community. Instead, the Sixth Amendment 

only requires that "'venires from which juries are 

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drawn must not systematically exclude distinctive 

groups in the community and thereby fail to be 

reasonably representative thereof." 

Id. at 939-40, 125 P.3d at 631 (quoting Evans v. State, 112 Nev. 1172, 

1186, 926 P.2d 265, 274 (1996)). The defendant must show the following 

to make a prima facie case for a fair-cross-section requirement: 

(1) that the group alleged to be excluded is a 

distinctive group in the community; (2) that the 

representation of this group in venires from which 

juries are selected is not fair and reasonable in 

relation to the number of such persons in the 

community; and (3) that this underrepresentation 

is due to systematic exclusion of the group in the 

jury-selection process. 

Id. at 940, 125 P.3d at 631 (internal quotations omitted). 

Here, Randolph argues that the district court does not keep 

statistics about the jury venire process, but the record does not indicate 

that Randolph ever asked the court for jury venire statistics. Although 

Randolph's attorney argued to the district court that the venire in the 

room with her did not include African Americans, the Sixth Amendment 

right does not guarantee Randolph specifically a venire that "is a perfect 

cross section of the community." Id. at 939, 125 P.3d at 631. Thus, we 

conclude Randolph's argument lacks merit because Randolph never 

requested the necessary statistics and he failed to show "systematic[ ] 

exclu[sion]." Id. at 939-40, 125 P.3d at 631. 

The random selection process 

Randolph argues that the district court erred when the court 

clerk called twelve potential jurors for voir dire, but did not call them in 

numerical order. Randolph argues that his due process rights were 

violated when "the district court took prospective jurors out of the random 

process that is in place." However, Randolph cites to no authority for the 

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proposition that he is entitled to a random selection of jurors, and 

therefore, this court will not consider the issue. 7 Maresca v. State, 103 

Nev. 669, 673, 748 P.2d 3, 6 (1987). 

Having considered Randolph's contentions and concluded that 

they do not warrant reversal, we 

ORDER the judgment of the district court AFFIRMED. 

Ar. t.getAink 

Hardesty 

J. 

Douglas 

cc: Chief Judge, The Eighth Judicial District Court 

Hon. J. Charles Thompson, Senior Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

7Randolph also argues that cumulative error warrants reversal. 

However, because we conclude any error committed by the district court 

was harmless, reversal is not warranted. See Valdez v. State, 124 Nev. 

1172, 1188-89, 196 P.3d 465, 476 (2008); Mulder v. State, 116 Nev. 1, 17, 

992 P.2d 845, 854-55 (2000). 

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