counsel's motion for a mistrial but agreed to give a cautionary instruction 

regarding the prosecutor's burden of proof, the fact that this burden never 

shifts, and that any insinuation that the defense has a burden of proof 

must be disregarded. 

The prosecutor's statement was clearly improper and 

constituted misconduct for two reasons: "first, [it tended] to shift the 

burden of proof from the State to the defendant; and second, when the 

reference is that the defendant can testify and establish such evidence, it 

is a reference to the defendant's ability or reluctance to take the stand and 

testify." Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). We 

have repeatedly held that it is "improper for a prosecutor to comment on 

the defense's failure to produce evidence or call witnesses as such 

comment impermissibly shifts the burden of proof to the defense," see 

Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996); Ross v. 

State, 106 Nev. 924, 927, 803 P.2d 1104, 1105-06 (1990), and the U.S. 

Supreme Court has held that a prosecutor's direct reference to a 

defendant's decision not to testify, at any stage of the proceeding, is 

always a violation of the defendant's Fifth Amendment right against selfincrimination, Griffin v. California, 380 U.S. 609, 615 (1965); Barron, 105 

Nev. at 778, 783 P.2d at 451. When a prosecutor's comments are an 

indirect reference to a defendant's decision not to testify, the comments 

are tested by determining whether "the language used was manifestly 

intended to be or was of such a character that the jury would naturally 

and necessarily take it to be comment on• the defendant's failure to 

testify." Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) 

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(quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)). 

Comments made in violation of the Fifth Amendment constitute reversible 

error unless the prosecutor demonstrates beyond a reasonable doubt that 

the error did not contribute to the verdict. Chapman v. California, 386 

U.S. 18, 24 (1967); Harkness, 107 Nev. at 803, 820 P.2d at 761. 

While the prosecutor unequivocally stated that the defense 

could talk about intent by placing the defendant on the stand, we conclude 

that this brief comment was not manifestly intended to convey to the jury 

that Agbasi would fail to testify and therefore did not violate the Fifth 

Amendment. We further conclude that the district court's clear, 

immediate, and unambiguous cautionary jury instruction rendered the 

prosecutor's misconduct harmless. See Lincoln v. Sunn, 807 F.2d 805, 809 

(9th Cir. 1987) ("[Clourts will not reverse when the prosecutorial comment 

is a single, isolated incident, does not stress an inference of guilt from 

silence as a basis of conviction, and is followed by curative instructions."). 

Expert witness 

Agbasi contends that the district court abused its discretion by 

rejecting his expert witness because the witness "had the requisite formal 

schooling, proper licensure, employment experience, practical experience, 

and specialized training" to offer opinions as to whether the play was 

confusing and whether Agbasi merely mimicked the action of the player 

next to him when placing his bet. 

We review a district court's decision to admit or exclude expert 

testimony for an abuse of discretion. Hallmark v. Eldridge, 124 Nev. 492, 

498, 189 P.3d 646, 650 (2008). Expert testimony is admissible if (1) the 

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expert is qualified in an area of "scientific, technical or other specialized 

knowledge," (2) the expert's specialized knowledge will "assist the trier of 

fact to understand the evidence or to determine a fact in issue," and (3) the 

expert's testimony is limited to the scope of his or her specialized 

knowledge. NRS 50.275. It is axiomatic that the purpose of expert 

testimony "is to provide the trier of fact [with] a resource for ascertaining 

truth in relevant areas outside the ken of ordinary laity." Townsend v. 

State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987). 

The district court considered prospective defense expert 

Thomas Flaherty's testimony and counsels' arguments during a hearing 

outside the presence of the jury. The defense argued that Flaherty was an 

expert on casino table games, he had reviewed the surveillance video of 

the play, and he could expertly opine that it was possible that Agbasi 

became confused during the action at the gaming table. However, the 

district court found that Flaherty did not have special knowledge that 

would assist the trier of fact to determine whether Agbasi intentionally 

placed the bet and determined that Flaherty was not an expert. We 

conclude that Agbasi has not demonstrated that the district court abused 

its discretion by excluding this witness. 

Cumulative error 

Agbasi contends that cumulative error deprived him of a fair 

trial. We conclude that there was one error, the error was harmless, and 

Agbasi was not deprived of a fair trial. See United States v. Sager, 227 

F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative error."); 

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Parraguirre 

J. 

J. 

Saitta 

Pickering 

Pascua v. State, 122 Nev. 1001, 1008 n.16, 145 P.3d 1031, 1035 n.16 

(2006). 

Having concluded that Agbasi is not entitled to relief, we 

ORDER the judgment of conviction AFFIRMED. 

cc: Hon. Richard Wagner, District Judge 

Demetras & O'Neill 

Attorney General/Carson City 

Humboldt County District Attorney 

Humboldt County Clerk 

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