                573 (2006) (internal quotation marks omitted). "Circumstantial evidence
                alone can certainly sustain a criminal conviction. However, to be
                sufficient, all the circumstances taken together must exclude to a moral
                certainty every hypothesis but the single one of guilt." Buchanan v. State,
                119 Nev. 201, 217, 69 P.3d 694, 705 (2003) (footnote omitted).
                            The jury heard testimony that Reed, Deyundrea Holmes, and
                Jaffar Richardson conspired to rob Kristopher Mo Nelson, a drug dealer
                who was known to carry a large amount of cash. Their plan was to lure
                Nelson to his recording studio with a telephone call and then rob him as
                he left the studio. They executed their plan on the evening of November 4,
                2003.
                            When Nelson and Kenneth Clark exited the recording studio
                they were confronted by two armed men. The men were dressed in black
                and their faces were concealed by ski masks. They separated Nelson from
                Clark. The man controlling Nelson carried a long-barreled, stainless-steel
                revolver. He battered Nelson with the revolver and demanded Nelson's
                money. When Nelson failed to produce the money, the man pulled off his
                ski mask, announced that he was going to shoot Nelson, and then shot
                Nelson.
                            Several people saw men near the crime scene and provided
                descriptions of these men to the police. Jennifer Windle saw two men
                loitering by a vacant apartment near Nelson's recording studio when she
                returned home from work at about 8:30 pm. She believed that they were
                wearing jackets and beanies, they were average-sized black males, and
                one had lighter colored skin than the other. She led the police to the spot
                where the men had been standing and the police discovered a freshly
                discarded cigarette butt.

SUPREME COURT
          OF
      NEVADA
                                                     2
(0)   9`17A
                            Randy Pethtel was walking his dog at about 10:30 pm when he
                heard yelling and a gunshot, observed two men running, and saw that one
                of them was carrying a silver handgun with a six- to eight-inch barrel. He
                noticed that they were dressed in black, they were wearing hoodies and
                puffy-type jackets, and one of the jackets had white lettering on the back.
                Although he did not get a good look at their faces, he believed that they
                were Hispanic 15- or 16-year-olds. He also testified that one of them could
                have weighed as much as 200 pounds.
                            Lisa Schell happened to be looking outside her daughter's
                window at about 10:30 pm when she saw two men running. She noticed
                that they were wearing dark clothing and ski masks and that one of them
                carried a gun She described them as appearing slender, being less than
                six feet tall, and weighing less than 200 pounds.
                            Jenny Morse heard a loud bang and looked out the living room
                window. She saw a man covered with blood stumble and fall and another
                man, who appeared to be scared and nervous, talking on a telephone.
                When the man with the telephone got into a vehicle and drove away, she
                called the police and provided the vehicle's license plate number.
                            The license plate number led the police to Kenneth Clark. The
                police determined that Clark was a victim and not a suspect. Clark was
                able to get a good look at the man controlling Nelson, but he was unable to
                see much of the man controlling him Clark described his controller as a
                light-skinned black man with Asian-looking eyes and a wide nose. The
                man stood about five-foot-eight and weighed between 160 and 170 pounds.
                            The police were unable to identify the suspects from the
                eyewitness accounts, but their investigation suggested that Reed,
                Richardson, and someone named Kali were involved in murder. There

SUPREME COURT
        OF
     NEVADA
                                                      3
(0) I947A
                was no additional information for several years and the case went cold
                until Holmes was convicted of a felony. Holmes' DNA profile was entered
                into CODIS and was matched to the DNA sample taken from the
                discarded cigarette butt found at the crime scene. After the police
                determined that Holmes was known by the moniker "Kali," that Holmes
                and Reed had grown up together, and that Holmes was the man that
                Clark saw at the crime scene, their investigation gained momentum and
                the case against Reed, Holmes, and Richardson came together.
                            Richardson pleaded guilty to conspiracy to commit robbery
                and testified at Reed's preliminary hearing. He identified Reed in the
                justice court, disclosed that they planned the Nelson robbery in advance,
                and admitted to luring Nelson to the studio where Reed and Holmes lay in
                wait. His preliminary hearing testimony was read into evidence for the
                jury to hear.
                            Reed's girlfriend, Loren Torres, testified that Reed left the
                apartment on the night of the murder dressed in black and carrying a
                silver handgun with a "spinny" thing. She said that Reed had a black
                puffy coat with "Adidas" written on it and that the revolver and a bag of
                Holmes' clothes were thrown out after the murder. She acknowledged on
                cross-examination that she had told Reed that he "was heavy set, like 250,
                260."
                                Joshua Fort testified that he knew Reed, Holmes, Richardson,
                and Nelson. He said that Reed asked him about Nelson's money and
                drugs and whether it would be okay to rob Nelson. He had visited Reed's
                apartment several times and had seen Holmes' duffle bag or backpack and
                a large, silver-colored revolver. He said that on November 4, 2003,



SUPREME COURT
     OF
   NEVADA
                                                        4
                Richardson called and asked if he would give Reed and Holmes a ride. He
                described Reed as stocky and pushing 200 pounds.
                            Fort's sister, Tinisa Williams, testified that she had often seen
                Reed, Holmes, and Richardson. On November 4, 2003, her brother asked
                her to give Reed and Holmes a ride. She left her brother's house at around
                9:00 pm, she parked the car where Reed and Holmes directed, and she
                waited for them after they left the car. When Reed and Holmes returned,
                they were "in duress," they told her to go several times, and she heard
                Reed call someone and say that "[t]hings went bad." She described Reed
                as being five-foot-ten or five-foot-eleven, on the thick side, and weighing
                about 180 or 190 pounds.
                            Detective Ronald Chalmers testified that the police
                department's in-house database indicated that Reed was five-foot-eight
                and weighed 185 pounds in December 2003 and that he weighed 205
                pounds in August 2010. He further testified that it is very common for
                witnesses' accounts of a suspect's height and weight to vary, even when
                the witnesses have observed the same suspect at the same time.
                            We• conclude from this testimony that a rational juror could
                reasonably find that all the circumstances taken together exclude any
                theory of innocence and demonstrate beyond a reasonable doubt that Reed
                participated in Nelson's death and is guilty of first-degree murder under
                the felony-murder rule. See NRS 200.030(1)(b).
                Motion for a new trial
                            Reed claims that the district court should have treated his
                motion for acquittal as a motion for a new trial and granted a new trial
                based on conflicting evidence. However, the trial record plainly reveals
                that Reed sought an advisory instruction to acquit after resting his case-

SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A
                   in-chief and that he argued only that there was no evidence against him.
                   We conclude that Reed has not demonstrated that the district court
                   abused its discretion by denying his motion for an advisory instruction, see
                   NRS 175.381(1); Middleton v. State, 114 Nev. 1089, 1105, 968 P.2d 296,
                   307 (1998) ("The granting of an advisory instruction to acquit rests within
                   the sound discretion of the district court."), or by failing to construe his
                   motion as a motion for a new trial, see generally NRS 176.515(1). 1
                   Inadequate resources to prepare a defense
                               Reed claims that the district court erred by failing to provide
                   him with adequate resources to prepare his own defense. Reed chose to
                   represent himself pursuant to Faretta v. California, 422 U.S. 806, 819-20
                   (1975). "Faretta holds that the rights guaranteed by the sixth amendment
                   are personal to the accused. The rights to notice, confrontation, and
                   compulsory process mean, at a minimum, that the time to prepare and
                   some access to materials and witnesses are fundamental to a meaningful
                   right of representation." Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.
                   1985) (internal quotation marks omitted). The record reveals that the
                   district court thoroughly canvassed Reed regarding the dangers and
                   disadvantages of self-representation. When Reed insisted on representing
                   himself, the district court appointed stand-by counsel to assist Reed at
                   trial, help with discovery, and subpoena witnesses; appointed multiple
                   investigators to interview witnesses and help with discovery; ordered the


                         1We   note that the district court did not and could not rule on Reed's
                   post-verdict motion for a judgment of acquittal because it was untimely
                   filed and thereby deprived the district court of jurisdiction to act. See NRS
                   175.381(2) ("The motion for a judgment of acquittal must be made within 7
                   days after the jury is discharged. . . .").

SUPREME COURT
        OF
     NEVADA
                                                         6
(0) 1947A    em,
                     State to verify that Reed had been provided• with all of the discovery;
                     ordered the county jail to give Reed one hour per day to prepare his
                     defense; 2 conducted numerous status hearings to address Reed's pretrial
                     motions and ensure that he had access to the materials that he needed;
                     and granted several of Reed's motions for continuances. We conclude that
                     Reed was provided with adequate resources to prepare his defense and
                     that his specific assertions to the contrary are without merit.
                     Brady violation
                                 Reed claims that the State violated Brady v. Maryland, 373
                     U.S. 83 (1963), by failing to provide adequate discovery and/or exculpatory
                     materials. He states that the majority of the evidence that the State
                     provided was in the form of audio recordings that were not transcribed.
                     He further asserts that he was unable to impeach the State's key witness
                     because one of the police interviews with that witness had not been
                     transcribed. However, Brady is a disclosure rule and not a discovery rule.
                     "Thus, the prosecutor is not required to deliver his entire file to defense
                     counsel, but only to disclose evidence favorable to the accused that, if
                     suppressed, would deprive the defendant of a fair trial."     United States v.
                     Bagley, 473 U.S. 667, 675 (1985) (footnote omitted). Because Reed has not
                     demonstrated that the State failed to disclose favorable evidence, see State
                     v. Huebler, 128 Nev. , 275 P.3d 91, 95 (2012) (explaining the
                     requirements for establishing a Brady violation), cert. denied, 568 U.S.
                          133 S. Ct. 988 (2013), and the State was not required to provide its


                           2 Seventeen months before his trial, Reed was sentenced to a prison
                     term of 24 to 72 months for possession of a dangerous weapon by a
                     prisoner and was transferred from the county jail to the Northern Nevada
                     Correctional Facility where he had access to a law library.

SUPREME COURT
       OF
     NEVADA
                                                            7
(0) 1947A .2422;ja
                 disclosure in a specific medium or format, see generally United States v.
                 Odman, 47 Fed. App'x. 221, 226 (4th Cir. 2002) (the government's failure
                 to provide transcripts of its witnesses' prior testimony did not violate
                 Brady because Brady rule does not apply when the evidence is available to
                 the defendant through other sources), we conclude that there was no
                 Brady violation.
                 Juror misconduct
                             Reed claims that the district court erred by allowing a juror
                 who expressed obvious bias to remain on the jury. However, Reed did not
                 preserve this issue for appellate review, so we review for plain error.   See
                 NRS 178.602; Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001)
                 (reviewing unpreserved claims for plain error), abrogated on other grounds
                 by Nunnery v. State, 127 Nev. , n.12, 263 P.3d 235, 253 n.12 (2011).
                 "In conducting plain error review, we must examine whether there was
                 error, whether the error was plain or clear, and whether the error affected
                 the defendant's substantial rights." Green v. State, 119 Nev. 542, 545, 80
                 P.3d 93, 95 (2003) (internal quotation marks omitted). The record reveals
                 that the district court advised the parties about a juror note that stated,
                 "Judge: Please ask the defendant to get to the point. His stock is falling
                 fast." The district court and the parties determined that the proper
                 remedy was to bring the juror in, advise him that the court had received
                 his note, acknowledge that the pace of a trial can be slow, and ask him
                 whether he can continue to be fair and impartial. Thereafter, the juror
                 told the district court that he could remain fair and impartial to both
                 parties, neither party had any questions for the juror, and the juror was
                 returned to the jury without objection. We conclude that this record does
                 not demonstrate error.

SUPREME COURT
        OF
     NEVADA
                                                       8
(0) 1947A    e
                        Hearsay and speculative testimony
                                     Reed claims that the district court erred by admitting hearsay
                        statements into evidence. "Hearsay is an out-of-court statement offered in
                        evidence to prove the truth of the matter asserted and is inadmissible
                        unless [it falls] within an exemption or exception." Coleman v. State, 130
                        Nev. 321 P.3d 901, 905 (2014) (internal quotation marks and
                        citation omitted). Reed claims that the following statements were hearsay
                        and inadmissible:
                                     First, Detective Jenkins testified that he felt that Holmes was
                        beginning to open up during a police interview because he made qualified
                        denials when responding to the last questions and said something like, "I
                        can't say anything because I'm the only one." The district court overruled
                        Reed's objection without identifying the grounds for its ruling. We
                        conclude that Holmes' statement was admissible because it was not
                        offered to prove the truth of the matter asserted but rather to show why
                        the detective believed that Holmes was beginning to open up.       See NRS
                        51.035.
                                     Second, Joshua Fort testified that Holmes' demeanor on the
                        night of the murder was, "Nervous. He was trying to get in contact with
                        [Richardson] pretty bad, saying -- saying that he needed to leave." The
                        district court overruled Reed's objection without identifying the grounds
                        for its ruling. We conclude that Holmes' statement was admissible under
                        the "then existing state of mind" exception to the hearsay rule. NRS
                        51.105(1).
                                     Third, Detective Chalmers testified that he asked Holmes
                        "when [was] the last time he had been to Reno" and Holmes answered that
                        "he had never been to Reno." Reed objected on hearsay grounds and the

SUPREME COURT
        OF
     NEVADA
                                                              9
(0) 1947A    .4/gtri,
                district court overruled his objection without identifying the grounds for
                its ruling. We conclude that Holmes' statement was admissible because it
                was not offered to prove the truth of the matter asserted but rather to
                show that Holmes tried to conceal the existence of the conspiracy.        See
                NRS 51.035(3)(e); Holmes v. State, 129 Nev. , 306 P.3d 415, 422
                (2013) (the coconspirator exception to the hearsay rule extends to
                affirmative acts of concealment).
                            Fourth, Detective Chalmers testified that the warrant for
                Reed's arrest contained "Holmes' denials of knowing people [the detective]
                knew him to know." Reed objected on hearsay grounds and the district
                court overruled his objection without identifying the grounds for its ruling.
                We conclude that Holmes' statement was admissible to show his
                affirmative attempt to conceal the conspiracy.       See NRS 51.035(3)(e);
                Holmes, 129 Nev. at , 306 P.3d at 422.
                            Reed further claims that the district court erred by admitting
                speculative testimony into evidence. Detective Chalmers testified that
                based on his investigation he had reason to believe that Holmes knew
                Reed. Reed did not object to this testimony and we conclude that he has
                not demonstrated plain error because there was no error—the detective
                gave an opinion that was based on his perception of his investigation and
                helpful to "the determination of a fact in issue." NRS 50.265 (opinion
                testimony); Gallego, 117 Nev. at 365, 23 P.3d at 239 (reviewing
                unpreserved claims for plain error).
                Impeachment evidence
                            Reed claims that the district court erred when it allowed the
                State to introduce the preliminary hearing testimony of an unavailable
                witness but refused to allow him to impeach that witness's preliminary

SUPREME COURT
         OF
      NEVADA
                                                       10
(0) 1947/)
                   hearing testimony with videotape evidence. "We review a district court's
                   decision to admit or exclude evidence for an abuse of discretion." Mclellan
                   u. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008).
                               The record reveals that Reed moved to introduce a videotape
                   of Richardson's first police interview into evidence. Reed stated that he
                   wished to impeach Richardson's preliminary hearing testimony with the
                   inconsistent statements that Richardson made during that interview. The
                   State responded that there were three police interviews and that it would
                   seek to have all of the interview videotapes admitted to show that
                   Richardson's statements became consistent as the interviews progressed.
                   The State further indicated that Reed's defense counsel had this
                   information when he cross-examined Richardson during the preliminary
                   hearing. The district court refused to rule on Reed's motion until it had
                   reviewed the three videotapes.
                               The district court subsequently informed Reed that this court
                   had previously ruled, "if the declarant testifies at trial, or at a hearing,
                   and is subject to cross-examination, then you cannot bring in extra judicial
                   statements later." The district court told Reed that it did not believe that
                   Richardson's prior inconsistent statements were admissible, it provided
                   Reed with a copy of Kaplan v. State, 99 Nev. 449, 663 P.2d 1190 (1983),
                   and it asked Reed to read the case so that he could argue the matter. The
                   district court further noted that Richardson was no longer unavailable and
                   offered to recess the trial so that Richardson's presence could be secured
                   and Reed could examine him for impeachment purposes. The district
                   court also asked Reed if he wished to examine Detective Chalmers
                   regarding Richardson's inconsistent statements. ReedS affirmatively
                   declined to read the case or to examine Richardson and Chalmers for

SUPREME COURT
        OF
     NEVADA
                                                        11
(0) 1947A    4e)
                   impeachment purposes.         We conclude that this record does not
                   demonstrate that the district court abused its discretion by excluding the
                   videotape evidence.
                   Witness vouching
                               Reed claims that "the district court erred by allowing a State's
                   witness to vouch for the credibility of another State's witness who was not
                   subject to cross-examination at trial."
                               Detective Chalmers testified about the letters that Reed wrote
                   while he was in the county jail. In one letter, Reed wrote "that he just
                   received word that [Richardson] may not testify against him and that he
                   thinks that is extremely relevant that he won't testify and that he may be
                   out by his next court• date." Chalmers' stated that this letter was
                   important to his investigation because "it provides credibility to Jaffar
                   Richardson. . . . Because Mr. Reed notes in the first letter that without
                   [Richardson] there are no live witnesses. It shows me that he is concerned
                   about what Mr. Richardson's testimony is going to be."
                               Reed did not timely object to this testimony on witness
                   vouching grounds, so we review for plain error.      See NRS 47.040(1)(a);
                   Kelly v. State, 93 Nev. 154, 156, 561 P.2d 449,449-50 (1977). We conclude
                   that Reed has not demonstrated plain error because the alleged error does
                   not appear plainly on the record—the record indicates that the detective
                   was merely trying to explain why Reed's letters were important to his
                   investigation.
                   Cumulative error
                               Reed claims that cumulative error deprived him of a fair trial
                   and requires reversal of his conviction. However, Reed has failed to



SUPREME COURT
        OF
     NEVADA
                                                         12
(0) I947A    4e4
                     demonstrate any error, and we conclude that he was not deprived of a fair
                     trial due to cumulative error.
                                   Having concluded that Reed is not entitled to relief, we
                                   ORDER the judgment of conviction AFFIRMED.




                                                   ,                                          J.
                     Parraguirre                                  Saitta




                     cc: Hon. Janet J. Berry, District Judge
                          Law Office of Thomas L. Qualls, Ltd.
                          Attorney General/Carson City
                          Washoe County District Attorney
                          Washoe District Court Clerk




SUPREME COURT
        OF
     NEVADA
                                                            13
(0) I947A    )c4W0
