to get out of bed and investigate. Within moments of getting up, they 

heard "what sounded like power tools." Lestelle ran out of the bedroom 

with Reyes following. Seconds later, Lestelle ran back toward the 

bedroom, telling Reyes to call 911 while he searched his backpack for his 

gun. As she was dialing 911, they saw a chainsaw coming through the 

apartment door. The chainsaw stopped. Suddenly, Lestelle turned 

around, told Reyes, "They are here." Bullets pierced through the front 

door, and Lestelle pushed Reyes back in to the bedroom. As she fell 

backward in to the bedroom, she felt "pressure all over [her] body" and 

watched Lestelle fall to the left of her. She felt herself being shot 

numerous times. Nearly unconscious and in pain and bleeding, she heard 

the 911 dispatcher calling out over the phone and shortly thereafter police 

officers found her. Reyes suffered eight gunshot wounds. She survived, 

but her unborn child did not.' Lestelle was shot multiple times and died 

as the result of a gunshot wound to his chest. 

When asked at the scene who could have committed the 

shooting, Reyes told police officers that it could have been related to 

Lestelle recently gaining custody of his young son or it could have been 

Keck. During transport to the hospital, she told a police officer that she 

thought Keck had shot her. Other testimonial and forensic evidence 

connected Keck to the shootings. 

The jury convicted Keck of first-degree murder with the use of 

a deadly weapon, attempted murder with the use of a deadly weapon, 

1Several days later, when Reyes regained sufficient strength, labor 

was induced. A bullet fell out of Reyes during delivery of the baby. 

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manslaughter killing of an unborn quick child, attempted burglary while 

in possession of a deadly weapon, and assault with the use of a deadly 

weapon. 2 

The State sought the death penalty based on four aggravating 

circumstances: (1) Keck had been previously convicted of a felony 

involving the use or threat of violence to another person (attempted 

murder of Reyes with the use of a deadly weapon); (2) he had been 

previously convicted of a felony involving the use or threat of violence to 

another person (assault of Staley with the use of a deadly weapon); (3) he 

killed Lestelle during a burglary; and (4) he knowingly created a great risk 

of death to more than one person. The evidence supporting the 

aggravating circumstances related exclusively to the circumstances of the 

crime. As other evidence in aggravation, see NRS 175.552(3), the 

prosecution introduced evidence of Keck's moderate criminal and prison 

disciplinary history. Photographs were admitted showing him holding an 

AK-47 rifle and a tattoo on his shoulder depicting a baby's head with the 

words "kill babies" above it. The prosecution also presented victim-impact 

testimony from Lestelle's mother, father, and grandfather who described 

Lestelle's artistic talent and the devastating impact his death has had on 

the family. 

2The judgment of conviction incorrectly reflects that Keck was 

convicted of burglary while in possession of a deadly weapon. We direct 

the district court to correct the judgment of conviction to reflect that he 

was convicted of attempted burglary while in possession of a deadly 

weapon. 

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In mitigation, Keck introduced testimony of family members 

and friends who described his upbringing, positive aspects of his 

personality, his artistic talent, and the depression he suffered after his 

father suffered a stroke and his relationship with Reyes ended. He also 

presented medical evidence and testimony indicating that his core mental 

disturbance was schizotypal personality disorder, which resulted in 

paranoia and odd and inappropriate behavior. His medical history reveals 

that he had experienced anxiety, depression, and• substance abuse 

problems. Brain scans suggested that he may have suffered head trauma 

at some point in his life, which could have led to "odd, peculiar behavior" 

and "catastrophic failure in [his] impulse control and [his] judgment." 

Testimony also revealed that Keck experienced complications with 

medications he was taking for his mental health problems. Keck 

expressed remorse and shame for his actions. 

The jury found all of the aggravating circumstances 

submitted. Keck proffered five mitigating circumstances for the jury's 

consideration: (1) he was under the influence of extreme mental or 

emotional distress when he killed Lestelle, (2) he had mental health 

issues, (3) he served in the United States Navy, (4) his father had suffered 

a stroke and subsequent illness, and (5) any other mitigating 

circumstance. At least one juror found that the murder was mitigated by 

Keck's mental health issues. After concluding that the mitigating 

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circumstances did not outweigh the aggravating circumstances, the jury 

imposed death. 3This appeal followed. 

Batson challenge 

Keck argues that the district court erred by denying his 

objection to the prosecution's use of peremptory challenges against two 

black women in violation of the Equal Protection Clause and Batson v. 

Kentucky, 476 U.S. 79 (1986). Because he did not challenge the 

prosecution's exercise of peremptory strikes against those jurors until 

after the jury had been sworn and the remaining venire members were 

excused, his objection was untimely and therefore he waived review of this 

issue on appeal. Chambers v. Johnson, 197 F.3d 732, 735 (5th Cir. 1999) 

(holding that Batson objection must be raised before venire is dismissed); 

United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994) (concluding that 

"a Batson objection must be made at the latest before the venire is 

dismissed and before the trial commences"); Dias v. Sky Chefs, Inc., 948 

F.2d 532, 534 (9th Cir. 1991) (concluding that Batson challenge was 

untimely where objection to peremptory strikes was made after excluded 

jurors dismissed and jury had been sworn); see also Rhyne v. State, 118 

Nev. 1, 11 n.26, 38 P.3d 163, 170 n.26 (2002) (concluding that defendant's 

failure to object to prosecution's peremptory strikes of women jurors 

3The district court sentenced Keck to multiple definite concurrent 

and consecutive terms in prison ranging from 12 to 60 months to 96 to 240 

months for the remaining offenses and sentence enhancements. 

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waived his challenge on appeal, citing Dias, Chambers, and Parham).4 

Therefore, we decline to consider his Batson challenge. 

Evidentiary challenges 

Keck challenges several pieces of evidence admitted during 

the penalty hearing. First, he argues that the admission of evidence and 

testimony related to his criminal history and detention records constituted 

inadmissible hearsay, its admission violated his Sixth Amendment right to 

confrontation, and the evidence was impalpable and highly suspect. With 

the exception of evidence related to his alleged assault of a man at Lake 

Mead, Keck did not object to the admission of the challenged evidence. We 

review his unpreserved claims of error for plain error affecting his 

substantial rights. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 

477 (2008). To the extent his challenges include the Lake Mead incident, 

we review for harmless error. See Knipes v. State, 124 Nev. 927, 935, 192 

P.3d 1178, 1183 (2008) (explaining standards of review for constitutional 

and nonconstitutional error). As we explained in Summers v. State, 122 

Nev. 1326, 1333, 148 P.3d 778, 783 (2006), the Sixth Amendment right to 

confrontation does not apply to capital sentencing hearings, and Keck has 

not presented any persuasive reason to overrule Summers. See Miller v. 

Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine 

4We reject Keck's contention that the record precludes a conclusion 

that his Batson objection was untimely because several unrecorded bench 

conferences occurred immediately before the jury was sworn and the 

remaining veniremembers were excused. Nothing in the record suggests 

that he raised a Batson objection during any of those unrecorded bench 

conferences. 

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of stare decisis, we will not overturn [precedent] absent compelling 

reasons for so doing." (footnote omitted)). Further, we have observed that 

hearsay is generally admissible in a capital penalty hearing. See NRS 

175.552(3); Thomas v. State, 114 Nev. 1127, 1147, 967 P.2d 1111, 1124 

(1998). Finally, we conclude that Keck has not demonstrated that any of 

the challenged evidence was impalpable or highly suspect. See Silks v. 

State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). Second, Keck argues 

that the prosecution failed to provide notice of certain evidence offered in 

aggravation as required by NRS 175.552 and SCR 250(4)(0—specifically, 

evidence that he believed Lestelle's three-year-old son was in the 

apartment on the night of the shooting. In its notice of aggravation, the 

prosecution indicated that the great-risk-of-death aggravating 

circumstance would be supported in part by evidence adduced at trial that 

Lestelle's son resided in the apartment but was not home at the time of 

the shootings. The notice did not expressly allege that Keck was aware 

that the child lived in the apartment. We conclude that adequate notice 

was given. Evidence that he was aware that the boy lived in the 

apartment merely established the mens rea required to prove the 

aggravating circumstance. 

Prosecutorial misconduct 

Keck argues that the State committed misconduct during the 

penalty hearing by purposefully eliciting "holiday" testimony and 

appealing to the jury's passions throughout its rebuttal argument thereby 

violating his federal and state constitutional rights to "due process, equal 

protection, a fair trial, fundamental fairness, his right to be free from 

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prosecutorial misconduct, and his right to be free from cruel and unusual 

punishment." 5He also argues that the prosecutor committed misconduct 

by arguing facts not in evidence. Improper argument is prejudicial when 

it so infects the proceedings with unfairness as to make the results of the 

proceeding a denial of due process. Thomas v. State, 120 Nev. 37, 47, 83 

P.3d 818, 825 (2004); Blake v. State, 121 Nev. 779, 796, 121 P.3d 567, 578 

(2005). Alleged improper statements should be considered in context. 

Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 72 (2008). Because 

Keck failed to object to the challenged testimony and argument, his claim 

is reviewed for plain error. See Valdez, 124 Nev. at 1190, 196 P.3d at 477. 

While Keck has not demonstrated plain error affecting his substantial 

rights regarding any of his challenges, we are compelled to address two of 

the prosecutor's arguments that we deem inflammatory and therefore 

improper. 

Wedding argument 

Keck challenges a lengthy passage of the prosecutor's rebuttal 

argument as inflammatory and designed to impassion the jury. The 

essence of the prosecutor's argument is as follows. The defense counsel's 

reference to weddings in his closing penalty hearing argument prompted 

the prosecutor to think about "Angel and Jonathan and the wedding day 

they will never have" and the wedding Lestelle's young son, Trenton, may 

have in 15 years. The prosecutor commented on how Trenton might 

5There is no express constitutional right to a trial free from 

prosecutorial misconduct, and Keck does not explain how his rights to be 

free from cruel and unusual punishment and equal protection are 

implicated by the prosecutor's alleged misconduct. 

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explain his father's absence "on the most important day of [his] life to a 

wedding guest." Trenton would explain that his father was murdered, 

and, assuming imposition of life imprisonment, the killer was still alive 

and could receive visitors in prison. The prosecutor argued• that Trenton 

might explain that even though the killer unsuccessfully attempted to kill 

Reyes, the jury sentenced the killer to life in prison. The wedding guest 

might also ask Trenton about his siblings, to which Trenton might respond 

that Reyes was pregnant with his little brother, but the baby died and the 

jury let the killer live even though the killer knew Reyes was pregnant. 

Although defense counsel referred to a hypothetical wedding 

during his closing argument, the context of counsel's comments entreated 

the jurors to imagine themselves at a wedding reception where a guest 

comments that he has jury duty and other guests describe to this person 

how awful jury duty is and suggest ways to avoid it. Counsel's 

hypothetical scenario then turned to the guest having served on a capital 

case where death was imposed and the guest being peppered with 

comments that the defendant's crimes must have been akin to those 

committed on September 11, 2001, or a mass shooting, or the kidnapping, 

sexual assault, and killing of a child. In contrast, the prosecutor's 

argument asked the jurors to imagine Trenton's future wedding day—an 

event that conjures up strong familial emotions—and how he might 

explain his father's absence and the absence of his deceased sibling (Reyes' 

unborn child). Simply because defense counsel employed a wedding 

scenario in his closing argument did not open the door to using that event 

for an improper purpose. Arguments touching upon the absence of a 

murdered loved one on holidays or important life events such as a wedding 

serve only to appeal to jurors' emotions rather than guiding jurors to 

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legitimate sentencing considerations. While the setting of a wedding was 

not of particular importance to defense counsel's argument, it was of 

crucial significance to the prosecutor's argument. We conclude that the 

prosecutor's "wedding" argument did not fall within the purview of 

appropriate rebuttal but was designed to inflame the passions and 

sympathy of the jury. However, misconduct was committed by defense 

counsel as well. Although defense counsel's use of a wedding venue is not 

overly troubling in this particular instance, the overall tenor of his 

argument suggested to the jurors that they might be in a position someday 

where they would have to explain their decision to the public and would 

likely be criticized or subjected to ridicule because they imposed death in a 

case that did not involve a terrorist attack, a mass shooting, or the sexual 

abuse and death of a child. We conclude that counsel's argument was 

inflammatory and therefore improper. While misconduct occurred, Keck's 

substantial rights were not affected considering the overwhelming 

evidence supporting the death sentence. 

Bullet argument 

Keck takes issue with the prosecutor's argument that Reyes • 

was "forced to deliver the very bullet that killed her baby" on the grounds 

that no evidence established which bullet killed the fetus and the 

comment was designed to inflame the jury. The evidence shows that 

Reyes was shot eight times, including her abdomen, and the baby died as 

a result of "multiple maternal gunshot wounds." Several days after the 

shooting, when Reyes had regained sufficient strength, she delivered the 

baby. One bullet passed during delivery. While the evidence shows that a 

bullet fell out of her body during delivery of the fetus, the prosecutor's use 

of the word "delivered" left the jurors with a vividly disturbing image that 

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served no other purpose than to inflame the jury's passions and sympathy 

in an already emotionally charged case. This argument was improper. 

Nevertheless, the error did not affect Keck's substantial rights considering 

the nature and circumstances of Lestelle's murder and the compelling 

aggravating circumstances found. 

Public trial right 

Keck contends that the district court violated his Sixth 

Amendment right to a public trial by removing a spectator from the 

courtroom during the penalty hearing and refusing to record bench 

conferences. Because Keck expressly acquiesced in the district court's 

removal of the spectator, he cannot now complain that error occurred. See 

Levine v. United States, 362 U.S. 610, 617-20 (1960); Commonwealth v. 

Ray, 4 N.E.3d 221, 228 (Mass. 2014). As to the unrecorded bench 

conferences, we conclude that bench conferences do not implicate the 

constitutional right to a public trial. See Richmond Newspaper, Inc. v. 

Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennen, J., concurring) 

(observing that "when engaging in interchanges at the bench, the trial 

judge is not required to allow public or press intrusion upon the huddle"); 

Morris Publishing Group, LLC v. State, 136 So. 3d 770, 782-83 (Fla. Dist. 

Ct. App. 2014) (observing that "the public (and by extension, the press) 

generally have no right of access to sidebars or bench conferences, or to 

certain conferences conducted in judicial chambers"). It therefore follows 

that the absence of a recording of bench conferences cannot violate the 

Sixth Amendment right to a public trial. 

Mitigation instruction 

Keck argues that the district court's jury instruction defining 

mitigating circumstances was erroneous because• it unconstitutionally 

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narrowed the type of mitigation evidence that the jury could consider, 

leading the jury to believe that it could not consider aspects of his 

character or record as mitigating circumstances. Because he did not object 

to the instruction, we review for plain error affecting his substantial 

rights. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). In 

Watson v. State, we considered an identical instruction to the one given 

here and concluded that there was no reasonable likelihood that the jury 

misunderstood the instruction to preclude it from considering any aspect 

of the defendant's character or record as a mitigating circumstance 

regardless of whether it reflected on his moral culpability. 130 Nev. , 

, 335 P.3d 157, 171-74 (2014). Here, Keck spent considerable time 

presenting mitigation evidence that was unrelated to the circumstances of 

the offense, including aspects of his childhood, his artistic talent, positive 

facets of his personality, and his mental health problems. The jury was 

given a verdict form listing four specific proposed mitigating 

circumstances plus "any other mitigating circumstance." Most of the 

mitigating circumstances were unrelated to the circumstances of the 

offense. Under the circumstances here, we are not convinced that the 

jury's rejection of some of the mitigating circumstances shows that the 

jury believed that it was precluded from considering his background, 

character, and other circumstances unrelated to the offense. We therefore 

conclude that there is no reasonable likelihood that the jurors 

misunderstood the instruction as precluding them from considering any 

aspect of Keck's character or record as a mitigating circumstance. 

Mandatory appellate review of the death sentence 

NRS 177.055(2) requires that this court review every death 

sentence and consider whether (1) sufficient evidence supports the 

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aggravating circumstances found, (2) the verdict was rendered under the 

influence of passion, prejudice or any other arbitrary factor, and (3) death 

sentence is excessive. 

First, the jury found four aggravating circumstances—(1) 

Keck had a prior violent felony conviction based on his attempted murder 

of Reyes with the use of a deadly weapon, (2) he had a prior violent felony 

conviction based on his assault of Staley with the use of a deadly weapon, 

(3) he murdered Lestelle during the perpetration of an attempted burglary 

while in possession of a deadly weapon, and (4) he knowingly created a 

great risk of death to more than one person during the commission of the 

murder. The aggravating circumstances stem from the circumstances 

surrounding the murder and were proved beyond a reasonable doubt by 

evidence introduced during the guilt phase of trial. 

Second, this was undoubtedly an emotional case that left the 

jurors with unforgettable images, including the shooting of a woman that 

resulted in the death of her unborn child. The prosecutor's impassioned 

account of Trenton's hypothetical wedding, highlighting the absence of 

Lestelle and Trenton's siblings at that event had the potential to inflame 

the jurors in an already emotionally-charged case. Nevertheless, we 

conclude that the prosecutor's misconduct did not improperly influence the 

jury where the record suggests a reflective jury. At least one juror found 

that the murder was mitigated by Keck's mental health issues, which 

played a significant role in his mitigation case. While the jury rejected the 

remaining three specific mitigating circumstances proffered, two of those 

mitigating circumstances—he committed the murder while under the 

influence of extreme mental or emotional distress and his father's stroke 

and subsequent illness—overlap with the mitigating circumstance found 

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because the evidence supporting those two mitigating circumstances 

concerned mental problems he experienced during childhood and at the 

time of the murder. The final mitigating circumstance based on his 

service in the Navy was undermined by evidence showing that he feigned 

mental illness to secure his separation from the service. Balancing the 

effect of the wedding argument against indications of a contemplative jury 

and the aggravating and mitigating evidence presented, we conclude that 

the death sentence was not imposed under the influence of passion, 

prejudice, or any other arbitrary factor. 

Third, when considering whether the death sentence is 

excessive, we ask whether the "crime and the defendant before [the court] 

on appeal [are] of the class or kind that warrants the imposition of death?" 

Dennis v. State, 116 Nev. 1075, 1085, 13 P.3d 434, 440 (2000). The 

evidence shows that Keck, enraged by Reyes' pregnancy with another 

man's child, approached Reyes and Lestelle's apartment armed with a 

chainsaw and an assault rifle. He threatened an unarmed security guard 

at the apartment complex by pointing an assault rifle at the guard's head. 

Keck then chain sawed his way into Reyes and Lestelle's apartment and 

fired multiple rounds from his assault rifle. Lestelle died, and Reyes 

suffered eight gunshot wounds, resulting in significant injuries to her and 

the death of her unborn child. While Keck presented credible mitigation 

evidence, on balance with the calculated and vicious nature of the murder 

and circumstances of the crimes, the record supports a conclusion that the 

crime and Keck are of the class and kind that warrant the imposition of 

the death penalty. Accordingly, the death sentence is not excessive. 

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Saitta 

1 44 

Douoat3 

GibbonS 

J. 

J. 

Having considered Keck's arguments and concluded that no 

relief is warranted, we 

ORDER the judgment of conviction AFFIRMED. 6 

it-Lau ha-Wh 

Hardesty 

, C.J. 

Parraguirre 

Pickering 

cc: Hon. Douglas W. Herndon, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

6We reject Keck's claim that his death sentence is unconstitutional, 

as we have repeatedly upheld the constitutionality of the death penalty. 

See, e.g., Nunnery v. State, 127 Nev. „ 263 P.3d 235, 257 (2011); 

Leonard v. State, 117 Nev. 52, 83, 17 P.3d 397, 415-16 (2001); Colwell v. 

State, 112 Nev. 807, 814-15, 919 P.2d 403, 408 (1996). We also reject his 

claim that cumulative error warrants reversal of the judgment of 

conviction. See generally Mulder u. State, 116 Nev. 1, 17, 992 P.2d 845, 

854-55 (2000) (explaining factors in cumulative-error analysis). 

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CHERRY, J., dissenting: 

I dissent and would remand this matter to the district court 

for a new penalty hearing based on the cumulative effect of two errors. 

First, the prosecutor's rebuttal arguments about young Trenton's future 

wedding and Reyes' delivery of the bullet that killed her unborn child were 

overtly designed to inflame the jurors' emotions and distract them from 

basing their sentencing decision on the evidence and the law. I agree with 

the majority that defense counsel engaged in improper argument as well. 

But such obvious efforts by the prosecution to escalate the emotions of the 

jury are inexcusable, particularly in a case where, as here, the facts and 

circumstances of the offenses themselves undoubtedly elevated the jurors' 

sympathy and emotions. See Tucker v. Zant, 724 F.2d 882, 888 (11th Cir. 

1984) (explaining that the "Constitution will not permit arguments on 

issues extrinsic to the crime or the criminal aimed at inflaming the jury's 

passions, playing on its fears, or otherwise goading it into an emotional 

state more receptive to a call for imposition of death and `invit[ing] the 

jury to decide the life-death verdict in a frenzied and emotional 

atmosphere" (quoting Brooks v. Francis, 716 F.2d 780, 789 (11th Cir. 

1983))). Second, the jury received the same erroneous instruction at issue 

in our decision in Watson v. State, 130 Nev. 335 P.3d 157 (2014). The 

concerns that I expressed about this instruction in my dissent in Watson 

are present here—the instruction likely confused the jury and improperly 

limited its consideration of mitigating evidence to those matters related to 

the offense. There is no room for confusion where jurors must determine 

whether a death sentence is appropriate. Justice requires that jurors 

receive clear instructions to guide their discretion in imposing 

punishment. 

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While I recognize that the facts and circumstances of the 

offenses in this case are disturbing and that Keck did not object to either 

error, the cumulative effect of the prosecutor's over-the-top emotionally 

charged arguments coupled with an erroneous mitigation instruction that 

likely confused the jury in exercising its sentencing discretion cannot be 

underestimated. As such, I conclude that this case demands a new 

penalty hearing. 

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