Substantial evidence supports the district court's competency finding 

Grant first contends that substantial evidence does not 

support the district court's conclusion that Grant was competent to stand 

trial. 

A criminal defendant is competent to stand trial if he 

understands the charges and proceedings and "has sufficient present 

ability to consult with" and assist his counsel in his defense. Dusky v. 

United States, 362 U.S. 402, 402 (1960) (internal quotation marks 

omitted); see also NRS 178.400(2) (defining "incompetent"). Grant does 

not claim that he did not understand the charges or proceedings, so the 

only issue is whether substantial evidence supports the district court's 

finding that Grant was able to consult with and assist his counsel. 

Several facts weigh against the district court's competency 

finding. These facts include the bizarre circumstances of the underlying 

crimes, previous diagnoses and findings of incompetency, the existence of 

a special guardian empowered to make Grant's medical decisions, Grant's 

refusing to speak to counsel outside of court, and Grant's trial testimony 

that he believed counsel was involved in the cult. At the final competency 

hearing, Dr. Norton Roitman testified that Grant suffered from paranoid 

delusions, rendering him incapable of assisting his counsel. 

That being said, several facts weigh in favor of the district 

court's competency finding. Grant spoke with and passed notes to his 

counsel in court and spoke with the district court on multiple occasions. 

One doctor from Lake's Crossing Center, where Grant went for 

competency evaluations and treatment, testified that the failure of 

antipsychotic medications to produce any beneficial effect suggested that 

Grant was not, in fact, psychotic. Further, four doctors from Lake's 

Crossing found Grant competent at various times in the months and years 

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preceding the final competency hearing in January 2012. All four of these 

doctors came to the same conclusion: Grant was able to assist his counsel 

but chose not to do so. At the January 2012 competency hearing, Lake's 

Crossing doctors testified that Grant suffered from a paranoid personality 

disorder that made him distrustful but did not prevent him from 

cooperating with counsel. Grant could "turn[] off his" suspiciousness at 

will to meet his needs. One doctor testified that Grant bragged that he 

had Lake's Crossing "in a scramble" and said a speedy trial was not 

necessarily a good thing. These statements gave the doctors the 

impression that Grant chose not to cooperate with his counsel or the 

competency evaluation process to delay the proceedings and exert control 

over his circumstances. The doctors did not observe any symptoms of 

paranoid delusions that might prevent Grant from cooperating with his 

counsel. 

Although Dr. Roitman testified that Grant's refusal to 

cooperate with his counsel was beyond Grant's control, the Lake's 

Crossing doctors testified that Grant simply chose not to cooperate and 

could change his mind. It is the district court's task to resolve conflicts in 

the evidence regarding competency, Tanksley v. State, 113 Nev. 844, 847, 

944 P.2d 240, 242 (1997), and we conclude that substantial evidence 

supports the district court's competency finding, see Calvin v. State, 122 

Nev. 1178, 1182, 147 P.3d 1097, 1099 (2006). 

To the extent Grant argues that the district court abused its 

discretion by failing to hold another competency hearing closer to trial, we 

disagree. Grant's counsel expressed ongoing competency concerns, but 

Grant's condition and behavior had not changed, and we cannot conclude 

that the district court abused its discretion by refusing to hold another 

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competency hearing simply because Grant continued his difficult 

behaviors. See Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 

113 (1983). 

The district court properly allowed Grant to prevent his counsel from 

pleading not guilty by reason of insanity on Grant's behalf 

Grant next contends that even if the district court properly 

found him competent to stand trial, he was incompetent to decide whether 

to plead not guilty by reason of insanity. 

As an initial matter, Grant argues that preventing his counsel 

from pleading not guilty by reason of insanity on his behalf turned the 

trial into a farce. Because the jury found Grant not guilty of attempted 

murder and did not find the deadly weapon enhancement on the 

kidnapping or assault charges, we reject this argument. 

We have stated "that if a defendant is mentally competent to 

stand trial, . . . the defendant has the absolute right to prohibit defense 

counsel from interposing an insanity defense." Johnson v. State, 117 Nev. 

153, 163, 17 P.3d 1008, 1015 (2001) (emphasis added). "[T]he forced 

imposition of the insanity defense over the express objections of the 

defendant is structural error requiring reversal." Id. 

Grant argues that Johnson is distinguishable because the 

defendant in that case claimed self-defense, whereas Grant offered no 

alternative theory of the case. Our decision in Johnson, however, 

depended on the "grave and personal" nature of risking long-term 

institutionalization and social stigma by pleading not guilty by reason of 

insanity, not the existence of an alternative theory of the case. Id. 

(internal quotation marks omitted). We therefore reject this argument. 

Grant also asks this court to overrule Johnson. Grant relies 

on Indiana v. Edwards, 554 U.S. 164, 178 (2008), wherein the United 

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States Supreme Court held that states may compel defendants who are 

"competent enough to stand trial under Dusky but who. . . are not 

competent to conduct trial proceedings by themselves" to be represented 

by counsel. Whether to plead not guilty by reason of insanity may be a 

complicated choice, but it is not nearly as nuanced as "the significantly 

expanded role required for self-representation." Id. at 176 (internal 

quotation marks omitted). We therefore conclude that Edwards does not 

require us to revisit Johnson. 

Grant also relies on Florida v. Nixon, 543 U.S. 175 (2004). In 

Nixon, the Court held that the defendant's express consent was not 

required for counsel to pursue a concession of guilt strategy. Id. at 189; 

see also Armenta-Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395, 

398-99 (2013). Nixon involved a defendant who neither consented nor 

objected, whereas Grant expressly and repeatedly objected to pleading not 

guilty by reason of insanity. Therefore, Nixon is inapposite, and we 

decline to rely on it to overrule Johnson. See Armenta -Carpio, 129 Nev., 

Adv. Op. 54, 306 P.3d at 398. 

In conclusion, after finding Grant competent to stand trial, the 

district court properly protected Grant's "absolute right to prohibit defense 

counsel from" pleading not guilty by reason of insanity. Johnson, 117 Nev. 

at 163, 17 P.3d at 1015. 

The State's cross-examination of Dr. Roitman did not implicate Grant's 

right to post-arrest silence 

Grant also argues that the State violated Grant's Fifth 

Amendment right to post-arrest silence by asking Dr. Roitman whether he 

spoke to Grant. 

Although "a defendant has the Fifth Amendment right to 

remain silent during a court-ordered psychiatric interview," Gallego v. 

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State, 117 Nev. 348, 361, 23 P.3d 227, 236 (2001) (emphasis added), 

abrogated on other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 

263 P.3d 235, 253 n.12 (2011), Grant does not contend that Dr. Roitman 

attempted to interview him pursuant to a court order. Moreover, "[d]ue 

process restrictions apply only to activities which can be characterized as 

state action," Tarkanian v. Nat'l Collegiate Athletic Ass'n, 103 Nev. 331, 

335, 741 P.2d 1345, 1347 (1987), rev'd on other grounds, 488 U.S. 179, 199 

(1988), and Grant fails to explain how Dr. Roitman, the defense-retained 

psychiatrist, qualifies as a state actor. Grant relied upon the Fifth 

Amendment in refusing to speak to Dr. Roitman, but the Fifth 

Amendment did not in fact provide Grant the right to refuse to speak to 

Dr. Roitman. Thus, the State's asking Dr. Roitman whether he spoke to 

Grant did not implicate Grant's Fifth Amendment right to post-arrest 

silence. See id. 

We also note neither the State's questions nor Dr. Roitman's 

answers suggested that Grant refused to speak to Dr. Roitman, let alone 

why he did so. Moreover, the State sought to impeach Dr. Roitman's 

opinion on Grant's mental state, not Grant's own account of events. CI 

Doyle v. Ohio, 426 U.S. 610, 616-19 (1976) (holding that the Fifth 

Amendment prohibits cross-examining a defendant regarding his postarrest silence to impeach his trial testimony); People of Territory of Guam 

v. Veloria, 136 F.3d 648, 651-52 (9th Cir. 1998) (holding that the Fifth 

Amendment prohibits impeaching a defendant's trial testimony through a 

police officer's testimony about the defendant's post-arrest silence). We 

therefore conclude that the State did not violate Grant's Fifth Amendment 

right to post-arrest silence by asking Dr. Roitman whether he spoke to 

Grant. 

6 
The district court did not err by failing to record bench conferences 

Grant also claims that his convictions must be reversed 

because the district court failed to record bench conferences. First, the 

district court never prevented counsel from making a record regarding any 

bench conference. See Preciado v. State, 130 Nev., Adv. Op. 6, 318 P.3d 

176, 178 (2014) (stating a district court should allow parties to make a 

subsequent record regarding unrecorded bench conferences). Second, 

Grant fails to point to any specific bench conference, suggest how any 

unrecorded bench conference relates to any other issues on appeal, or 

show "the record's missing portions are so significant that their absence 

precludes . . . meaningful review of the alleged errors. . . and the 

prejudicial effect of any error." Id. Accordingly, Grant has failed to satisfy 

his burden of demonstrating that the district court's failure to record 

bench conferences mandates reversal. 

The district court erred by shackling Grant during trial, but this error was 

harmless 

Finally, Grant argues that he is entitled to a new trial because 

the district court improperly shackled Grant during trial. Although we 

conclude that shackling Grant during trial was unconstitutional, this error 

was harmless. 

"A defendant has a constitutional right to appear before the 

jury without physical restraints" absent "exceptional circumstances." 

Chandler v. State, 92 Nev. 299, 300, 550 P.2d 159, 159 (1976). Rather 

than finding exceptional circumstances, the district court blindly applied a 

jail policy requiring defendants who chose to wear jail uniforms during 

trial to also wear shackles. This policy cannot alone justify physically 

restraining a criminal defendant in front of the jury. We therefore hold 

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01A"ic 

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that the district court erred by requiring Grant to stand trial in shackles. 

Nevertheless, we conclude this error was harmless. 

Shackling is disfavored because "Mlle sight of physical 

restraints may. . . erod[e] the presumption of innocence." Hymon v. State, 

121 Nev. 200, 207-08, 111 P.3d 1092, 1098 (2005). Here, Grant chose to 

wear his jail uniform at trial, so the jury already knew he was in custody. 

Thus, unconstitutionally shackling Grant caused little—if any—additional 

harm to the presumption of innocence. See id.; see also Wilkerson v. 

Whitley, 16 F.3d 64, 68 (5th Cir. 1994) (holding that improperly shackling 

a defendant throughout trial was harmless where the jury already knew 

the defendant was an inmate and the evidence of guilt was overwhelming). 

In addition, the evidence of Grant's guilt was overwhelming: there was no 

dispute about Grant's identity or level of participation in the charged 

crimes and Grant himself testified to many elements of the crimes. Thus, 

we conclude that shackling Grant, although unconstitutional under these 

circumstances, was harmless. 

Accordingly, we 

ORDER the judgment of conviction AFFIRMED. 

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cc: Hon. James Crockett, District Judge 

Christopher R. Oram 

Attorney General/Carson City 

Clark County District Attorney 

Eighth Judicial District Court Clerk 

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