                                                  129 Nev., Advance Opinion     11
                       IN THE SUPREME COURT OF THE STATE OF NEVADA

                MICHAEL D. PATTERSON,                                   No. 54408
                Appellant,
                  vs.
                THE STATE OF NEVADA,
                                                                           FILED
                Respondent.                                                 APR 0 4 2013

                                                                         71-
                            Appeal from a judgment of conviction, pursuant to a jury
                verdict, of conspiracy to commit murder, murder with the use of a deadly
                weapon, and discharging a firearm at or into a vehicle. Eighth Judicial
                District Court, Clark County; Valorie J. Vega, Judge.
                            Affirmed.


                Law Office of Lisa Rasmussen, PC, and Lisa A. Rasmussen, Las Vegas,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                Attorney, and Carrie A. Morton, Deputy District Attorney, Clark County,
                for Respondent.




                BEFORE HARDESTY, PARRAGUIRRE and SAITTA, JJ.

                                                OPINION

                By the Court, HARDESTY, J.:
                            Appellant Michael Patterson was convicted of conspiracy to
                commit murder, murder with the use of a deadly weapon, and discharge of

SUPREME COURT
        OF
     NEVADA


(0) I947A
                                                                                      -D 913Y
a firearm into a vehicle. He now appeals arguing, among other things,
that his Sixth Amendment right to counsel was violated when he was
denied his counsel of choice at his preliminary hearing before the justice
court.
            We recognize that the preliminary hearing is a "critical" stage
of criminal proceedings at which a defendant's Sixth Amendment right to
counsel attaches, and we conclude that the justice court's denial of
Patterson's request to be represented by retained counsel at the
preliminary hearing violated Patterson's qualified right to counsel of his
choice. In particular, the justice court failed to conduct a sufficient inquiry
into the request. We further conclude, however, that the denial of
Patterson's counsel of choice at the preliminary hearing is subject to
harmless-error review, and that the error was harmless. Accordingly, we
affirm.
                  FACTS AND PROCEDURAL HISTORY
            Patterson's conviction stems from the shooting death of Bobby
Wilkerson in Las Vegas. Video surveillance footage of a parking lot on the
night of Wilkerson's death revealed that a person exited the passenger
side of a vehicle, approached the driver's side of Wilkerson's car, and then
jumped back into the passenger side of the other vehicle and drove away.
Wilkerson then exited his car and fell to the ground. He was later found
lying outside of his car with a shotgun wound to his head.
            Wilkerson's mother informed the police that her son was
planning to meet with Patterson that evening to resolve a dispute
concerning a puppy that Patterson sold to Wilkerson. The police located
the vehicle pictured in the surveillance footage that left the scene in the
apartment complex where Patterson lived. The vehicle belonged to



                                       2
                Patterson's roommate, who told the police that she frequently let her
                boyfriend' and Patterson use it. A search of Patterson's cell phone records
                revealed that he made frequent calls to Wilkerson's cell phone, but the
                calls stopped the night of the shooting.
                               The police then issued an arrest warrant for Patterson, and he
                was later apprehended in Chicago, Illinois, by FBI Agent Pablo Araya.
                During his interrogation by Agent Araya, Patterson allegedly confessed to
                shooting Wilkerson and described where in his apartment he hid the
                shotgun used in the killing. This interrogation was not recorded, but
                following the interrogation, the police found the shotgun in Patterson's
                apartment in the exact location he stated in his alleged confession. 2 Agent
                Araya's testimony was the only evidence of the interrogation presented at
                trial.
                               Attorney Richard Tannery was appointed to represent
                Patterson on his criminal charges. Patterson retained another attorney,
                Garrett Ogata, to represent him the evening prior to his preliminary
                hearing before the justice court. 3 At the preliminary hearing, Ogata
                sought substitution as counsel of record for Patterson. Ogata also
                requested that the justice court continue Patterson's preliminary hearing
                so that he could complete his preparation for the case. Without asking



                       "The boyfriend was charged as a codefendant, but is not a party to
                this appeal. He allegedly drove the vehicle the night of the shooting.

                         2 Patterson   was arrested in Chicago and extradited to Nevada after
                his interrogation.

                         3 Patterson's
                                 mother retained Ogata. However, Patterson met with
                Ogata a week and a half earlier to discuss representation.

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                         3
                Patterson any questions concerning Ogata's representation, the justice
                court denied Ogata's request because Ogata was not prepared to proceed
                immediately, and Patterson's appointed attorney, Tannery, was present
                and prepared to represent him. However, the justice court allowed Ogata
                to sit at counsel's table and provide input to Tannery. Following the
                preliminary hearing, it appears that Ogata spoke with Tannery several
                times but Ogata never requested that he be substituted as Patterson's
                counsel of record for trial. Patterson was ultimately convicted on all
                charges. This appeal follows.
                                                DISCUSSION
                            On appeal, we address whether denial of a defendant's request
                to be represented by retained counsel at the preliminary hearing stage,
                when the defendant has been represented by appointed counsel up to that
                point, violates the Sixth Amendment right to counsel of choice, and if so,
                whether such a violation is subject to harmless-error review. We conclude
                that there was a Sixth Amendment violation, and reaffirming our prior
                jurisprudence, we hold that the error is subject to harmless-error review.
                We further conclude that the State did not violate Brady v. Maryland, 373
                U.S. 83 (1963), regarding disclosure of evidence. 4


                      4Patterson  also seeks reversal of his conviction on the grounds that
                (1) the district court abused its discretion when it denied Patterson's
                motion to suppress his arrest warrant because it did not set forth specific
                factual or legal findings in its order; (2) the arrest warrant did not contain
                sufficient probable cause; and (3) the district court improperly denied
                Patterson a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964),
                regarding the voluntariness of his confession. With regard to the motion
                to suppress and the arrest warrant, we conclude that these arguments are
                without merit, as there was "a substantial basis for concluding that
                probable cause existed." Doyle v. State, 116 Nev. 148, 158, 995 P.2d 465,
                472 (2000). Moreover, although the lack of factual findings in an order
                                                                      continued on next page...
SUPREME COURT
        OF
     NEVADA

                                                       4
(0) 1947A

                                                                                            111,1
                The preliminary hearing is a "critical" stage at which a defendant's Sixth
                Amendment right to counsel attaches
                            The Sixth Amendment to the United States Constitution
                guarantees a criminal defendant's right to counsel, U.S. Const. amend. VI,
                and that right is protected against state action by the Due Process Clause
                of the Fourteenth Amendment. U.S. Const. amend. XIV; Gideon v.
                Wainright, 372 U.S. 335, 341-45 (1963). The United States Supreme


                ...continued
                may prevent appellate review and may be grounds for reversal, see Somee
                v. State, 124 Nev. 434, 443, 187 P.3d 152, 158 (2008), we further conclude
                that the arrest warrant attached to the motion in limine sufficiently
                enabled us to review the district court's decision. Additionally, we decline
                to consider Patterson's Jackson v. Denno argument because Patterson had
                the burden to request such a hearing and he never made that request. See
                Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980) ("[F]ailure to
                request a voluntariness hearing below precludes appellate
                consideration."). Patterson further argues that the district court erred by:
                (1) failing to record several bench conferences, (2) failing to properly
                handle juror's questions, (3) failing to have Patterson present during a
                telephone conference between the court and counsel, and (4) giving
                improper jury instructions on manslaughter. We conclude that these
                arguments are without merit and require no further discussion. Finally,
                Patterson argues that the district court erred by admitting rap lyrics that
                were inadmissible bad acts evidence. We note that Patterson never
                objected to the admission of these lyrics at trial. See Flores v. State, 121
                Nev. 706, 722, 120 P.3d 1170, 1180-81 (2005) ("[F]ailure to object will
                [generally] preclude appellate review of an issue' unless plain error
                affecting the defendant's substantial rights is shown." (second alteration
                in original) (quoting Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403
                (2001))). Furthermore, even if we were to agree with his contention that
                the admission of the rap lyrics was plain error, we conclude that Patterson
                has failed to show "actual prejudice or a miscarriage of justice." See Green
                v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) ("In conducting plain
                error review, . . . the burden is on the defendant to show actual prejudice
                or a miscarriage of justice.").

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                     5
                Court has "construed the Sixth Amendment guarantee [of counsel] to
                apply to 'critical' stages of the proceedings." United States v. Wade, 388
                U.S. 218, 224 (1967). Pretrial proceedings are often considered to be
                "critical" stages because "the results might well settle the accused's fate
                and reduce the trial itself to a mere formality." Id.; see also Powell v.
                Alabama, 287 U.S. 45, 57 (1932) (stating that the right to counsel "during
                perhaps the most critical period of the proceedings . . . that is to say, from
                the time of [a criminal defendant's] arraignment until the beginning of
                [the defendant's] trial. . ." is as important "as [it is] at the trial itself'). A
                pretrial proceeding is "critical" if "potential substantial prejudice to
                defendant's rights inheres in the particular confrontation and the ability
                of counsel to help avoid that prejudice." Wade, 388 U.S. at 227.
                             The Supreme Court has recognized that the presence of
                counsel at a preliminary hearing may avoid prejudicial effect to the
                defendant's rights because: (1) skilled cross-examination of the State's
                witnesses may expose fatal flaws in the State's case, give rise to
                impeachment evidence for the subsequent trial, and preserve testimony
                from unavailable witnesses for later use at trial; (2) an attorney is better
                equipped than a lay defendant to "effectively discover the case the State
                has against his client and make possible the preparation of a proper
                defense to meet that case at the trial"; and (3) an attorney is in a better
                position than a lay defendant to make arguments concerning matters like
                psychiatric evaluations or bail at preliminary hearings. Coleman v.
                Alabama, 399 U.S. 1, 9-10 (1970) (plurality).
                             In addition, this court has previously recognized that
                preliminary hearings can give rise to Sixth Amendment concerns. See
                Messmore v. Fogliani, 82 Nev. 153, 154-55, 156, 413 P.2d 306, 306-07

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                        6
(1966) (holding that an unrepresented defendant's Sixth Amendment
rights to counsel and to confrontation of witnesses were violated when
witness testimony taken during the preliminary hearing was introduced
into evidence at trial). We have also recognized that a preliminary
hearing is an adversarial proceeding at which a defendant's Sixth
Amendment right to counsel attaches. See Kaczmarek v. State, 120 Nev.
314, 326, 91 P.3d 16, 25 (2004) ("[T]he Sixth Amendment right to counsel
does not even attach in a case until adversarial proceedings have
commenced. . . 'whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.' (quoting Fellers v. United
States, 540 U.S. 519, 523 (2004) (quoting Brewer v. Williams, 430 U.S.
387, 398 (1977)))); see also Dewey v. State, 123 Nev. 483, 488, 169 P.3d
1149, 1152 (2007).
            Because the preliminary hearing is a "critical" stage in the
criminal proceeding at which a defendant's Sixth Amendment right to
counsel attaches, we must examine the justice court's denial of Patterson's
request for counsel of his choice to determine whether error occurred. We
review the justice court's denial of Patterson's request to substitute Ogata
as counsel for an abuse of discretion. Young v. State, 120 Nev. 963, 968,
102 P.3d 572, 576 (2004).
            The Sixth Amendment right to counsel encompasses two
different rights, namely, the right to effective assistance of counsel and the
right of a non-indigent defendant to be represented by the counsel of his or
her choice. U.S. v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010). The
first right (to effective assistance of counsel) is at issue where an indigent
criminal defendant seeks to replace court-appointed counsel with new
appointed counsel. Id. at 978. Thus, the three-part inquiry that is used to



                                       7
                evaluate an attempt to substitute one appointed attorney for another, see
                Young, 120 Nev. at 968-69, 102 P.3d at 576, "is designed to determine
                whether [an] attorney-client conflict is such that it impedes the adequate
                representation that the Sixth Amendment guarantees to all defendants,
                including those who cannot afford to hire their own attorneys," Rivera-
                Corona, 618 F.3d at 979. But the other Sixth Amendment right is at issue
                where a criminal defendant seeks to replace court-appointed counsel with
                privately retained counsel, or previously retained counsel with newly
                retained counsel, or privately retained counsel with court-appointed
                counsel. In that context, the focus is on the right to counsel of one's choice.
                Id.
                            Generally, a defendant is free to replace existing counsel with
                retained counsel. Miller v. Blackletter, 525 F.3d 890, 895 (9th Cir. 2008).
                The right to counsel of one's choice is not absolute, however, and a court
                has "wide latitude in balancing the right to counsel of choice against the
                needs of fairness. . . and against the demands of its calendar." Gonzalez-
                Lopez, 548 U.S. at 152; see also Ryan v. Dist. Ct., 123 Nev. 419, 426, 168
                P.3d 703, 708 (2007) ("[C]riminal defendants 'who can afford to retain
                counsel have a qualified right to obtain counsel of their choice." (quoting
                United States v. Ray, 731 F.2d 1361, 1365 (9th Cir. 1984))). Thus, the
                appropriate test to determine whether the justice court abused its
                discretion in denying Patterson's request to substitute retained counsel
                (Ogata) in place of appointed counsel (Tannery) is whether denying the
                substitution: (1) would have significantly prejudiced Patterson, or (2) "was
                untimely and would result in a 'disruption of the orderly processes of
                justice unreasonable under the circumstances of the particular case."


SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                       8
People v. Lara, 103 Cal. Rptr. 2d 201, 211-12 (Ct. App. 2001) (quoting
People v. Ortiz, 800 P.2d 547, 552 (Cal. 1990)).
            At the commencement of the preliminary hearing, Patterson
requested to substitute his court-appointed counsel, Tannery, with his
retained counsel, Ogata. Ogata informed the justice court that he had
been retained the day before the preliminary hearing and had reviewed
about half of the discovery in the case. The justice court denied
Patterson's request for chosen counsel because Ogata was unprepared,
Tannery was present and prepared to represent Patterson, and the State
had an out-of-state witness (FBI agent Araya) present to testify. However,
the justice court's reasons for denying Patterson's request did not take into
consideration any prejudice to Patterson or assess whether Ogata's
substitution would cause an unreasonable disruption in the proceedings.
            Although Ogata's substitution may have caused some
inconvenience and delay because Patterson's request was made at the
preliminary hearing, the justice court failed to "balance the defendant's
interest in new counsel against the disruption, if any, flowing from the
substitution." Lara, 103 Cal. Rptr. 2d at 212. For example, the justice
court did not inquire as to the amount of time Ogata would need to
prepare for the preliminary hearing or the inconvenience to the State or
its out-of-state witness resulting from a short delay. Furthermore, any
delay in the preliminary hearing to allow Patterson's chosen counsel time
to prepare likely would have been minimal given Ogata's review of some of
the discovery and the significantly lesser evidentiary burden required to
be met at the preliminary hearing, see Sheriff v. Middleton, 112 Nev. 956,
961, 921 P.2d 282, 286 (1996) (stating that the State need only present
"marginal" or "slight" evidence at the preliminary hearing to establish
                probable cause that a crime occurred and that the defendant is the person
                who committed the crime).
                            This court has previously noted that an abuse of discretion
                occurs whenever a court fails to give due consideration to the issues at
                hand. State v. Dist. Ct. (Armstrong), 127 Nev. „ 267 P.3d 777, 780
                (2011) (citing to Jones Rigging and Heavy Hauling v. Parker, 66 S.W.3d
                599, 602 (2002)); see also United States v. Miller, 722 F.2d 562, 565 (9th
                Cir. 1983) (holding that "as a general rule, the existence of discretion
                requires its exercise"). Here, the justice court failed to make an adequate
                inquiry and give due consideration to the prejudice to Patterson or the
                extent of the delay or inconvenience that the substitution of Ogata would
                have caused. This was an abuse of discretion. 5
                            We must now determine whether the deprivation of
                Patterson's Sixth Amendment right to counsel of choice at the preliminary
                hearing was a structural error warranting reversal of Patterson's
                judgment of conviction, or trial error subject to harmless-error review.




                      5 Patterson claims that his Sixth Amendment right to counsel was
                also violated at the district court level when the district court allowed
                Tannery to continue as Patterson's attorney even though Ogata had
                approached the prosecutors the morning of the trial and informed them
                that he was Patterson's attorney. We disagree. The district court was
                never asked to review what occurred at the justice court level, and Ogata
                never formally requested that he be substituted as counsel of record after
                the preliminary hearing.

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                      10
The denial of Patterson's Sixth Amendment right to retain his counsel of
choice at his preliminary hearing was trial error and is thus reviewed for
harmless error
            Patterson contends that the denial of his Sixth Amendment
right to counsel of choice at the preliminary hearing is a structural error
that requires reversal of his conviction. We disagree.
            There are two classes of constitutional errors, "trial error[s]"
and "structural defects." Gonzalez-Lopez, 548 U.S. at 148; Arizona v.
Fulminante, 499 U.S. 279, 307-08, 309-10 (1991). "[T]rial error [s]" are
subject to harmless-error review because these errors "may. . . be
quantitatively assessed in the context of other evidence presented in order
to determine whether [they were] harmless beyond a reasonable doubt."
Fulminante, 499 U.S. at 307-08. Conversely, "structural defects" "affect[ ]
the framework within which the trial proceeds, rather than simply an
error in the trial process itself." Id. at 309-10. Such errors are grounds for
reversal because they "defy analysis by 'harmless-error' standards." LL. at
309.
            It has long been established that the complete denial of
counsel at trial is a structural error under the Sixth Amendment. Gideon
v. Wainwright, 372 U.S. 335, 344-45 (1963). Furthermore, the Supreme
Court has held that the "deprivation of the right to counsel of
choice . . . unquestionably qualifies as structural error" when it occurs at
the trial court level because "the erroneous denial of counsel bears directly
on the framework within which the trial proceeds." Gonzalez-Lopez, 548
U.S. at 150 (internal quotations omitted). Therefore, we recognize that
had Patterson erroneously been denied his retained counsel of choice at
trial, it would have been a structural error requiring reversal of the
judgment of conviction.



                                      11
                            However, as we have noted, not all "errors involving the right
                to counsel are reversible per se," and we have distinguished Gideon and its
                progeny from cases where the error did not result in total deprivation of
                counsel. Manley v. State, 115 Nev. 114, 123, 979 P.2d 703, 708-09 (1999)
                (applying harmless-error review to a claim that the defendant's Sixth
                Amendment right to counsel was violated by prosecutorial questions
                abridging the attorney-client privilege because the defendant was
                "represented by counsel at all times" and such an error "did not affect the
                framework within which the trial proceeded"). In addition, we have
                expressly held that "refusal by the magistrate to permit [a criminal
                defendant] to have counsel of his own choosing" at a preliminary hearing
                "falls into the category of harmless error" where the defendant was
                represented by counsel. State v. Rollings, 58 Nev. 58, 63, 68 P.2d 907, 909
                (1937), overruled on other grounds by Sturrock v. State, 95 Nev. 938, 943,
                604 P.2d 341, 345 (1979), receded from by Lisle v. State, 114 Nev. 221, 954
                P.2d 744 (1998). In further support of our position, the Supreme Court
                has held that at the preliminary hearing stage, "[t]he test to be applied is
                whether the denial of counsel at the preliminary hearing was harmless
                error." Coleman v. Alabama, 399 U.S. 1, 11 (1970) (majority). 6
                Accordingly, we reaffirm our prior jurisprudence and specifically hold that




                      6 0ther jurisdictions have similarly held that violations of a
                defendant's Sixth Amendment right to counsel of choice at the preliminary
                hearing stage are reviewed for harmless error. See Ditch v. Grace, 479
                F.3d 249, 254 (3d Cir. 2007); U.S. v. Lott, 433 F.3d 718, 723 (10th Cir.
                2006); State v. Brown, 903 A.2d 169, 178 (Conn. 2006).

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                     12
                violations of a defendant's Sixth Amendment right to counsel of choice at a
                preliminary hearing are reviewed for harmless error.
                            An error is harmless if this court can determine, beyond a
                reasonable doubt, that the error did not contribute to the defendant's
                conviction. Hernandez v. State, 124 Nev. 639, 653, 188 P.3d 1126, 1136
                (2008). Patterson has not demonstrated how the justice court's denial of
                his counsel of choice at the preliminary hearing contributed to his
                conviction, particularly since Ogata was allowed to sit at counsel's table
                during the hearing and provide input to Tannery.
                            Furthermore, Patterson has not demonstrated how having
                Ogata as counsel at the preliminary hearing instead of Tannery would
                have produced a different result at trial when the State presented
                overwhelming evidence of Patterson's guilt. This evidence included proof
                that Wilkerson met with Patterson on the night of his death, the vehicle
                from the surveillance video belonged to Patterson's roommate, the gun
                used to kill Wilkerson was found concealed in Patterson's apartment, and
                Patterson frequently called Wilkerson before the shooting but all calls to
                Wilkerson's cell phone from Patterson's phone ceased after the shooting.
                In addition, FBI Agent Ayala testified that Patterson confessed to shooting
                Wilkerson. Based on this evidence, we can conclude, beyond a reasonable
                doubt, that the justice court's denial of Patterson's counsel of choice did
                not contribute to Patterson's conviction. Therefore, we hold that the
                justice court's denial of Patterson's right to counsel of choice was harmless
                error.
                The State did not commit a Brady violation
                            Patterson contends that his rights under Brady v. Maryland,
                373 U.S. 83 (1963), were violated because of the State's failure to provide

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                      13
                information that the FBI never records interviews, which could have been
                used to impeach Agent Ayala's testimony. 'Brady and its progeny require
                a prosecutor to disclose evidence favorable to the defense when that
                evidence is material either to guilt or to punishment." State v. Huebler,
                128 Nev. 275 P.3d 91, 95 (2012) (quoting State v. Bennett, 119
                Nev. 589, 599, 81 P.3d 1, 8 (2003)). A defendant's rights are violated
                under Brady where: "(1) the evidence is favorable to the accused, either
                because it is exculpatory or impeaching; (2) the State withheld the
                evidence, either intentionally or inadvertently; and (3) . . . the evidence
                was material." Id. (internal quotations omitted). Evidence is material if
                "there is a reasonable probability of a different result [at trial] if the
                defense had known" of the withheld evidence. Lay v. State, 116 Nev.
                1185, 1196, 14 P.3d 1256, 1264 (2000).
                            Here, the purported impeachment evidence consisted of FBI
                memoranda stating that FBI agents are encouraged to seek permission to
                record interviews. However, encouragement to seek permission to record
                interviews necessarily implies that the FBI's default policy is not to record
                interviews. Thus, this evidence does not impeach Ayala's testimony that
                the FBI's policy is not to record interviews. Furthermore, we cannot
                conclude that there was a reasonable probability that the result would
                have been different had this evidence been disclosed. Therefore, we
                conclude that the State did not commit a Brady violation.




SUPREME COURT
        OF
     NEVADA


(0) 1947A
                                                     14
                                 Having determined that none of Patterson's claims warrant
                     reversal, we affirm the judgment of conviction. 7




                                                     J.




                            7 Patterson contends that the cumulative errors during his trial
                     warrant reversal of his conviction. We disagree. "The cumulative effect of
                     errors may violate a defendant's constitutional right to a fair trial even
                     though errors are harmless individually." Valdez v. State, 124 Nev. 1172,
                     1195, 196 P.3d 465, 481 (2008) (quoting Hernandez v. State, 118 Nev. 513,
                     535, 50 P.3d 1100, 1115 (2002)). "When evaluating a claim of cumulative
                     error, we consider the following factors: '(1) whether the issue of guilt is
                     close, (2) the quantity and character of the error, and (3) the gravity of the
                     crime charged." Id. (quoting Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845,
                     854-55 (2000)). Despite the serious nature of the crimes charged, the
                     State presented compelling evidence of Patterson's guilt and we are not
                     convinced that the cumulative effect of the two errors acknowledged in
                     this opinion—the denial of retained counsel of his choice at the
                     preliminary hearing and the admission of the rap lyrics (addressed supra
                     note 4)—deprived Patterson of his constitutional right to a fair trial. As a
                     result, we conclude that Patterson's cumulative error challenge is
                     unavailing.


SUPREME COURT
        OF
     NEVADA
                                                           15
(0) 1947A    ..b-'
                PARRAGUIRRE, J., concurring in part and dissenting in part:
                            I concur with most of the majority's determination, but I part
                company in their finding that the justice court abused its discretion in
                failing to adequately consider the delay or inconvenience the substitution
                of counsel would occasion.
                            Here, after Ogata sought to substitute as counsel and continue
                the preliminary hearing set that day, the justice court conducted a bench
                conference and thereafter stated several factors that directly implicated
                the inconvenience that a delay would cause. Particularly, the court noted
                that Tannery was qualified to handle the case and was prepared to
                proceed, and that both the State and codefendant's counsel were prepared
                to move forward. Additionally, the court recognized the presence of the
                State's out-of-state witness and implicit therein, the resulting
                inconvenience. Finally, the court noted that it did not believe that
                bifurcating the hearing was appropriate.
                            Under these circumstances, I do not find that the justice court
                abused its discretion.


                                                      ct_AA
                                                  Parraguirre




SUPREME COURT
        OF
     NEVADA


(0) 1947A
