                        witness testified that he heard Williams calling the victim a "snitch" and
                        referencing statements the victim made while testifying against a fellow
                        gang member. Other testimony indicated that Williams pointed a gun at
                        the back of the victim's head and told him to empty his pockets for
                        Williams' gang and that the victim emptied his pockets, turned, and shot
                        at the same time as Williams. The medical examiner testified that the
                        path of the bullet and powder marks on the victim's neck demonstrated
                        that he was shot from behind at close range. This testimony was
                        consistent with statements given to police shortly after the incident. We
                        conclude that a rational juror could have found the essential elements of
                        the crimes beyond a reasonable doubt.         See NRS 193.165(1); NRS
                        193.168(1); NRS 200.010(1); NRS 200.030(b); NRS 200.380(1).
                                    Second, Williams argues that the prosecution committed
                        misconduct during opening statements by quoting gangster John Gotti
                        and by showing an image during its PowerPoint presentation of one figure
                        executing another next to the words "stop snitching." We agree.
                        Although quotes are appropriate in opening statements, the selection of
                        this particular quote and attribution of it to "the head of the Gambino
                        crime family," effectively compared Williams to John Gotti and was
                        improper. Valdez v. State, 124 Nev. 1172, 1191, 196 P.3d 465, 478 (2008)
                        (internal quotation marks omitted). However, we conclude that the
                        misconduct was harmless and no relief is warranted because the district
                        court sustained the defense's objection to the attribution of the quote and
                        the jury had been instructed moments before to disregard statements to
                        which an objection was sustained.    See Kazmarek v. State, 120 Nev. 314,
                        340, 91 P.3d 16, 34 (2004) (presuming that jurors follow the instructions

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              MEMEME111111Z
                they are given). We also conclude that the prosecutor committed
                misconduct by displaying the execution image, and the district court erred
                by overruling Williams' objection to the image, because it was unnecessary
                to demonstrate the prosecution's theory of the case and served no purpose
                other than to inflame the jury. We conclude that this misconduct was also
                harmless. See Valdez, 124 Nev. at 1189-92, 196 P.3d 476-79. Although we
                conclude that each instance of misconduct was harmless on its own, we
                condemn the prosecutor's actions in this case and conclude that the
                misconduct contributed to the cumulative error which warrants reversal of
                Williams' judgment of conviction.
                            Third, Williams argues that the district court erred by denying
                his motion to suppress his statement to police because it was a result of a
                custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436
                (1966). A suspect is in custody under Miranda if a reasonable person
                would not feel free "to terminate questioning and leave."   J.D.B. v. North
                Carolina, 564 U.S.       , 131 S. Ct. 2394, 2402 (2011). We give
                deference to a district court's factual findings regarding the circumstances
                surrounding the interaction between the suspect and law enforcement
                which are not clearly erroneous and review de novo the district court's
                ultimate determination of whether the suspect was in custody.       Avery v.
                State, 122 Nev. 278, 286-87, 129 P.3d 664, 670 (2006).
                            We disagree with the district court's conclusion that Williams
                was not in custody.      See id. at 287, 129 P.3d at 670 ("Important
                considerations in deciding whether or not [a defendant] was in custody
                include the site of the interrogation, whether the investigation has focused
                on the subject, whether the objective indicia of arrest are present, and the

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                                                     =77   iru;WR   WAU
                    length and form of the questioning."). Witnesses at the scene told law
                    enforcement that Williams was the shooter and law enforcement clearly
                    considered him to be the primary suspect because they escorted him
                    directly from the hospital to the police station to be interrogated.
                    Although Williams had access to personal belongings, the door to the
                    interrogation room was open, and his mother was present, other objective
                    factors were indicative of an arrest.          See id.   And, Williams was only
                    sixteen years old at the time.   See J.D.B., 564 U.S. at , 131 S. Ct. at
                    2406 (holding that a minor's age is a relevant factor in a Miranda custody
                    analysis). Considering the totality of the circumstances, a reasonable
                    person would not feel free to terminate questioning and leave and
                    therefore Miranda warnings should have been given.            See Avery, 122 Nev.
                    at 286, 129 P.3d at 669. Although we conclude that the admission of
                    Williams' statement was harmless beyond a reasonable doubt, see Arizona
                    v. Fulminante, 499 U.S. 279, 295 (1991), we conclude that it also
                    contributed to the cumulative error which warrants reversa1. 1
                                Fourth, Williams argues that the district court erred by
                    admitting into evidence a witness' entire statement to police. "We review
                    a district court's decision to admit or exclude evidence for an abuse of
                    discretion." Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008).
                    The district court admitted the statement because it was inconsistent with


                          'Williams also argues that the district court erred by admitting only
                    a portion of his statement to police. Because Williams' entire statement
                    was ultimately admitted, we conclude that this claim lacks merit.




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                the witness' testimony at trial and refuted his claim that he was coerced
                by law enforcement to implicate Williams. NRS 51.035(2)(a)-(b). Williams
                does not establish which portions of the statement he believes were
                prejudicial or contained hearsay and did not do so below when the district
                court indicated a willingness to redact the statement as necessary. We
                conclude that the district court did not abuse its discretion in admitting
                the statement.
                            Fifth, Williams argues that the district court erred by
                excluding the testimony of an unnoticed witness. We review "a district
                court's decision whether to allow an unendorsed witness to testify for
                abuse of discretion." Mitchell v. State, 124 Nev. 807, 819, 192 P.3d 721,
                729 (2008). Although the right to present testimony is not absolute and
                must be balanced against "countervailing public interests,"        Taylor v.
                Illinois, 484 U.S. 400, 414 (1988), a strong presumption exists in favor of
                allowing late-disclosed witnesses to testify, see Sampson v. State, 121 Nev.
                820, 827, 122 P.3d 1255, 1260 (2005). Here, at 4:30 p.m. on the last day of
                trial, the defense attempted to call an alleged eyewitness to corroborate
                Williams' version of events. The district court excluded the witness and
                rejected counsel's explanation that he had inadvertently noticed a man
                named Marcus Collins instead of Marquis Clemons. Although the record
                makes clear that the State did not, and could not have, anticipated the
                witness because his name never appeared in any witness statement and
                no testimony, including the defendant's, placed him at the scene of the
                crime, we conclude that the district court abused its discretion because the
                witness' testimony went to "the heart of the case," see id., and the district
                court did not explicitly find that the defense acted in bad faith, see NRS

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                                         174.234(3)(a). While harmless on its own, the error contributed to the
                                         cumulative error which warrants reversal.
                                                     Sixth, Williams argues that the district court erred by
                                         allowing prior bad act testimony. The district court conducted a hearing
                                         and concluded that evidence of Williams' gang affiliation and conviction
                                         for discharging a firearm into a vehicle were supported by clear and
                                         convincing evidence, were relevant to prove motive and support the gang
                                         enhancement, and were not substantially more prejudicial than probative.
                                         See Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997),
                                         holding modified by Bigpond v. State,         128 Nev.       , 270 P.3d 1244,
                                         1249-50 (2012). Because Williams' prior conviction, which was gang
                                         related, set the stage for the retaliatory killing which preceded the instant
                                         offense, we conclude that the district court did not abuse its discretion in
                                         admitting evidence of Williams' prior conviction and gang affiliation.      See
                                         Butler v. State, 120 Nev. 879, 889, 102 P.3d 71, 79 (2004) (evidence of gang
                                         affiliation in murder prosecution "provided the common thread that
                                         connected the story of events" and was therefore admissible to show
                                         motive).
                                                     Seventh, Williams argues that cumulative error entitles him
                                         to relief. We agree. Although the evidence of guilt was sufficient, it was
                                         not overwhelming, and the charges were undoubtedly grave.           See Valdez,
                                         124 Nev. at 1195, 196 P.3d at 481. Importantly, "[t]his court must ensure
                                         that harmless-error analysis does not allow prosecutors to engage in
                                         misconduct by overlooking cumulative error in cases with substantial
                                         evidence of guilt." Id.          Here, the errors were numerous and involved
                                         misconduct concerning both prosecutors and police officers. We thereby

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                                                                                                111
MIN             -.73.7-TEri>'..1c4:11d
                              7;                               FE121:a2
                                conclude that cumulative error warrants reversal of Williams' judgment of
                                conviction, and we
                                                 ORDER the judgment of conviction REVERSED AND
                                REMAND this matter to the district court for proceedings consistent with
                                this order.




                                                                                                J.



                                                                              04.4.0t
                                                                       Parraguirre


                                                                                                J.




                                cc:        Hon. Michael Villani, District Judge
                                           Justice Law Center
                                           Attorney General/Carson City
                                           Clark County District Attorney
                                           Eighth District Court Clerk




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