                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DEHRU MITCHELL,                                        No. 67107
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.
                                                                           FILED
                                                                           MAR 1 7 2016




                                        ORDER OF AFFIRMANCE
                            This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of one count of battery with intent to commit robbery and one
                count of robbery. Eighth Judicial District Court, Clark County; Michelle
                Leavitt, Judge.
                            Appellant Dehru Mitchell contends that the district court
                erred when it denied his motion for a new venire, in violation of the Sixth
                and Fourteenth Amendments to the United States Constitution. We
                review the district court's decision de novo.   Grey v. State, 124 Nev. 110,
                117, 178 P.3d 154, 159 (2008) ("This court applies a de novo standard of
                review to constitutional challenges."). A defendant has a constitutional
                right to "a venire selected from a fair cross section of the community"
                Williams v. State, 121 Nev. 934, 939, 125 P.3d 627, 631 (2005). The
                process for selecting venires "must not systematically exclude distinctive
                groups in the community." Id. at 939-40, 125 P.3d at 631 (quoting Evans
                v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 274 (1996)). However, there is
                no constitutional right to a venire that mirrors the composition of the


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                community.'    Id. at 939, 125 P.3d at 631. A defendant contesting the
                venire's composition bears the burden of proof and must show a prima
                facie violation of the fair-cross-section requirement by demonstrating
                            (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.
                Evans, 112 Nev. at 1186, 926 P.2d at 275 (emphasis omitted) (quoting
                Duren v. Missouri, 439 U.S. 357, 364 (1979)). In objecting to the venire
                composition below, Mitchell failed to allege that any underrepresentation
                of African Americans was due to systematic exclusion in the jury-selection
                process, and he failed to present any evidence of systematic exclusion or to
                request an evidentiary hearing in order to inquire into the process. We
                therefore conclude that the district court did not err in denying his motion
                for a new venire.
                            Mitchell next contends that he is entitled to a new trial
                because the State introduced hearsay evidence. A responding police
                officer testified that as he was approaching the accident area, a man
                flagged the officer down to say that someone had just asked him for a ride


                      'For this reason, we deny Mitchell's request for a declaration that
                whenever a distinctive group is underrepresented in a venire, the trial
                court should immediately dismiss the venire and produce a new one
                "which statistically represents a reasonable cross-section of the
                community."




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                and tried to climb into his vehicle. Mitchell's claim fails for several
                reasons. First, Mitchell argues that the statements were offered in order
                to explain why officers approached him when he had not been seen leaving
                the accident. If Mitchell's argument is correct, then the statement was not
                hearsay since it was not offered for the truth of the matter asserted.    See
                NRS 51.035. Second, insofar as Mitchell suggests some improper conduct
                on the part of the prosecutor, the testimony was an unsolicited statement
                made after the witness had answered the question posed by the
                prosecutor. Third, insofar as Mitchell suggests the trial court abused its
                discretion in admitting the evidence, we note that the district court
                sustained Mitchell's objection to the testimony. The jury had been
                instructed to disregard such evidence, and Mitchell offers no reason for
                this court to depart from its practice of presuming that the jury follows its
                instructions. See Hymon v. State, 121 Nev. 200, 211, 111 P.3d 1092, 1100
                (2005).
                            Mitchell next contends that the jury was not properly
                instructed on the meaning of reasonable doubt. Because Mitchell failed to
                object below, we review his claim for plain error.   See Green v. State, 119
                Nev. 542, 545, 80 P.3d 93, 95 (2003). The reasonable-doubt instruction
                was taken directly from NRS 175.211(1) and is the only instruction that
                the district court may give. NRS 175.211(2). Accordingly, Mitchell fails to
                demonstrate any error that is plain from a review of the record.          See
                Mendoza-Lobos v. State,    125 Nev. 634, 644, 218 P.3d 501, 507 (2009)
                (explaining requirements to demonstrate plain error).
                            Mitchell next contends that he is entitled to a new trial
                because the prosecutor's use of the words "possible" and "probable" in



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                   rebuttal argument confused the standard as to the State's burden of proof.
                   As Mitchell did not object below, we review his claim for plain error.   See

                   Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). At the
                   end of his rebuttal, the prosecutor argued,
                                 And finally, down here, doubt to be reasonable
                                 must be actual, not mere possibility or
                                 speculation. So when [defense counsel] comes up
                                 and he argues and he says you got the wrong
                                 person. Okay. Is it possible, is it possible that
                                 this is the wrong person? Sure. Anything is
                                 possible. Right. It's possible that this building
                                 could just fall over right now. Right? It's possible
                                 that those things can happen. Is it probable that
                                 this wasn't him? No. Is it reasonable doubt?
                                 Absolutely not.
                   This argument is not error plain from the record. The prosecutor took
                   "   possibility" directly from the reasonable-doubt jury instruction and was
                   arguing where the evidence showed that Mitchell fell on a continuum
                   between possibly and beyond a reasonable doubt. Mitchell fails to explain
                   how this was confusing. Even if this were error plain from the record,
                   Mitchell could not demonstrate that it affected his substantial rights
                   where the jury was properly instructed on reasonable doubt. CI Randolph
                   v. State,     117 Nev. 970, 981, 36 P.3d 424, 431 (2001) ("We have
                   nevertheless consistently deemed incorrect explanations of reasonable
                   doubt to be harmless error as long as the jury instruction correctly defined
                   reasonable doubt.").
                                  Finally, Mitchell contends that he is entitled to a new trial
                   because of the cumulative effect of the errors.    See Big Pond v. State, 101
                   Nev. 1, 3, 692 P.2d 1288, 1289 (1985) (setting out the cumulative-error




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                factors). As Mitchell has failed to demonstrate any error, he has
                necessarily failed to demonstrate that the cumulative effect of errors
                entitles him to a new trial. Accordingly, we
                            ORDER the judgment of conviction AFFIRMED.



                                                                                     J.
                                                               Hardesty


                                                                     ai
                                                               Saitta


                                                                                     J.




                cc:   Hon. Michelle Leavitt, District Judge
                      Christopher R. Oram
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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