                   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


                        2 Randolph  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 premediation-
                   must 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] appearance-
                wise." 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. 4 The 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.

                      4 Randolph  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. 5 To
                 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.

                       6 Randolph 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.   Armenta-
                 Carpi° 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.




                                                      Hardesty
                                                                A   r.   t.getAin k



                                                                                      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



                         7 Randolph  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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