                                                      130 Nev., Advance Opinion We
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   JOHN MATTHIAS WATSON, III,                            No. 56721
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,
                                                                            FP PD
                   Respondent.                                               OCT 02 2014



                               Appeal from a judgment of conviction in a death penalty case.
                   Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
                               Affirmed.

                   Philip J. Kohn, Public Defender, and Howard S. Brooks, Deputy Public
                   Defender, Clark County,
                   for Appellant.

                   Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                   Wolfson, District Attorney, and Ryan J. MacDonald, Deputy District
                   Attorney, Clark County,
                   for Respondent.




                   BEFORE THE COURT EN BANC.


                                                   OPINION

                   By the Court, GIBBONS, C.J.:
                               A jury found appellant John Watson, III, guilty of first-degree
                   kidnapping and first-degree murder of his wife and sentenced him to
                   death for the murder. In this appeal from the judgment of conviction, we
                   focus primarily on two of Watson's claims.
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                            First, we consider whether the district court erred in
                concluding that Watson failed to demonstrate a prima facie case of
                discrimination for the purpose of a Batson' challenge to the State's use of
                peremptory challenges to remove female veniremembers. We hold that
                the district court did not clearly err in concluding that the State's use of
                six of its nine peremptory challenges to remove female veniremembers did
                not give rise to an inference of discrimination where the percentage of the
                State's peremptory strikes used against female veniremembers was not so
                disproportionate to the percentage of females in the venire as to give rise
                to an inference of purposeful discrimination and the defense offered no
                other circumstances supporting such an inference.
                            Second, we consider whether the district court plainly erred in
                instructing the jury that mitigating circumstances are those
                circumstances which "reduc[e] the degree of the Defendant's moral
                culpability." Although mitigating circumstances are not limited to those
                that reduce a defendant's moral culpability and jury instructions should
                not convey otherwise, we are not convinced that there is a reasonable
                likelihood that the jury understood the instruction in this case to limit the
                scope of mitigating circumstances. Because we conclude that these and
                Watson's other claims of error do not warrant relief, we affirm the
                judgment of conviction.

                                    FACTS AND PROCEDURAL HISTORY
                            Watson told family members that his wife, Evirelda "Evey"
                Watson, went missing while they were on a trip to Las Vegas following her



                      1 Batson   v. Kentucky, 476 U.S. 79 (1986).

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                       birthday in July 2006. The ensuing investigation of Evey's reported
                       disappearance led to evidence that Watson planned the trip to Las Vegas
                       for the purpose of killing Evey and that he killed her in a Las Vegas hotel
                       room and disposed of her body. Evey's body was never found. Watson was
                       charged with first-degree kidnapping, first-degree murder with the use of
                       a deadly weapon, and robbery. The State filed a notice of intent to seek
                       the death penalty.

                       Guilt phase
                                     In June 2006, Watson told a friend that he believed that Evey
                       was going to leave him and take half of his life savings. He said that he
                       was mad enough to kill her and claimed to know of places he could hide
                       her body where it would never be found.
                                     On July 9, 2006, Watson threw a surprise birthday party for
                       Evey's 50th birthday. He had also planned a trip to Las Vegas as a
                       present for Evey. After the party, Watson drove to Las Vegas. He checked
                       into three rooms at two different hotels on July 10, 2006. At the Circus
                       Circus, he checked in under his own name, but he checked into the
                       Tuscany Suites under the name Joe Nunez. He had booked the room at
                       the Tuscany Suites weeks earlier. When making the reservation, he had
                       requested a specific room—N120—but that room was not available and he
                       was given room N114. At the time of his arrival, Watson also booked
                       another room (N118) at the Tuscany Suites for Sal Nunez and checked
                       into that room as well. Evey flew to Las Vegas the following day, July 11,
                       2006, to join Watson. The next day, Watson called his son, Michael, and
                       said that Evey had befriended a woman from Henderson and was missing.
                                     Watson stayed in Las Vegas for three more days. On July 13,
                       2006, the day after he called Michael, Watson used his credit card to
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                purchase antifreeze at a Walmart. In a separate cash transaction, he
                procured bleach, an incense holder, and incense. In a nearby home
                improvement store, Watson paid cash for a band saw and the tools
                necessary to assemble it. The next day, July 14, 2006, Watson requested a
                move to room N120 at the Tuscany Suites—the room he had requested
                when he made his reservation. After he moved to that room, he declined
                maid service. He checked out of both hotels the next day.
                            Watson then contacted Evey's cousin, Mira Alvarez. During a
                phone call, he told her that Evey walked away from him after an
                argument and he did not know where she was. He said that he did not file
                a missing person report because he believed that the police would suspect
                him of foul play. He added that Evey had cut her finger in the back of his
                Jeep while opening a flashlight package. Watson showed up at Alvarez's
                home on July 16, 2006. At that time, he claimed that Evey had called and
                told him that she was getting a ride with a woman she had met. Watson's
                son, Juan, came to Alvarez's house while Watson was there. Watson told
                Juan that he and Evey had a fight in front of the Four Queens casino. He
                also showed Alvarez and Juan a letter allegedly written by Evey that he
                had found in his car. The letter indicated that Evey went to Guatemala
                because her sister, Rose, had been in an accident. Alvarez doubted the
                letter's authenticity. According to her, Rose had not been in an accident,
                and the letter did not appear to be written by Evey.
                            Juan reported Evey missing that day, and later in the day,
                Watson was taken into custody. During the arrest, police confiscated
                identification bearing Watson's photograph and the name "Joseph Ernest
                Nunez, Jr." A search of Watson's Jeep Cherokee revealed several blood
                spots in the vehicle and evidence that it had been cleaned with a bleach-

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                based cleanser. Blood found on the seatbelt, rear bumper, and cardboard
                in the vehicle had a DNA profile that was consistent with Evey's DNA. In
                addition, the Jeep contained bleach, cleaners, rubber gloves, a roll of
                plastic tarp, paperwork from Circus Circus, a Circus Circus casino card,
                and a card from Tuscany Suites. A search of Watson's home revealed a
                box of trash bags, from which 17 bags were missing; a box cutter with
                blood stains matching Evey's DNA, and a plastic bag with a blood stain
                consistent with Evey's and Watson's DNA. Juan later found a gun in the
                Watson home and turned it in to the police. Blood spots on the gun barrel
                matched Evey's DNA.
                            Evidence was also located in room N120 at the Tuscany
                Suites. In turning over the room, housekeeping staff had collected several
                kitchen utensils and a Teflon pan, which they turned over to the police.
                The bed sheets were also missing and the room contained trash from
                stores, scissors, and incense. The scissors appeared to have brown stains
                on them. In addition, staff noted an overwhelming odor. A housekeeper
                at Tuscany Suites testified that the guest in room N120 had asked her for
                a large trash bag on the day he left. Crime scene analysts discovered
                Evey's DNA in blood found in several stains recovered from the bathroom
                of room N120. Investigators also collected a piece of carpet from the room
                that was stained with blood matching Evey's DNA. The blood stain on the
                carpet had soaked through the carpet and padding and had stained the
                cement subfloor.
                            Watson was released from custody in late July and was placed
                under surveillance. Officers observed Watson drive around the mountain
                roads in the area of Kern County, California. Near Lake Isabella, Watson
                was observed turning onto a dirt road, stopping his car, and walking away

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                         from it. Officers searched this area, commonly known as the Fairview
                         dump, and discovered an area of the ground that appeared to have been
                         recently disturbed with plastic protruding from it. The plastic recovered
                         from the hole matched the type and tear pattern of a roll of plastic tarp
                         recovered from Watson's Jeep. DNA found on the plastic matched Evey's
                         DNA profile. Investigators who recovered the plastic bundle from the hole
                         noted that it smelled of decomposition.
                                     On August 10, 2006, Watson was arrested at a Denny's in
                         Claremont, California. He was in possession of a wig, false mustache, and
                         glue. He also had a bus ticket to El Paso, Texas, a map of El Paso, cash,
                         traveler's checks, driver's licenses in his name and the name of Zach
                         Watson, a cell phone, and a list of phone numbers. Michael spoke to
                         Watson after his arrest, and Watson implied that if Michael put money in
                         Watson's jail fund then he would tell Michael of a general area where
                         Evey's body could be found.
                                     After hearing this evidence, a jury found Watson guilty of
                         first-degree kidnapping and first-degree murder with the use of a deadly
                         weapon. The jury unanimously agreed that the murder was willful,
                         deliberate, and premeditated and occurred during the commission of the
                         kidnapping offense. The jury acquitted Watson of robbery.

                         Penalty phase
                                     The State alleged three aggravating circumstances to support
                         a death sentence: (1) the murder occurred while Watson was engaged in
                         the crime of first-degree kidnapping with the use of a deadly weapon, (2)
                         the murder was committed for pecuniary value, and (3) the murder
                         involved torture or mutilation. In addition to the evidence introduced


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                 during the guilt phase, the State introduced letters that Watson had
                 written to his children in which he stated that Evey had shot herself in the
                 hotel room and Watson, believing he would be held responsible for her
                 death, attempted to conceal her death. Watson admitted in the letters
                 that he cut up Evey's body, cooked parts of it, wrapped the pieces in
                 plastic, and disposed of them. He could not remember exactly where he
                 disposed of her body. The State also presented evidence of Watson's
                 violent character, including that he had been charged with threatening
                 President Nixon when he was 29 years old and had been charged with
                 extortion for taking his young child from his prior wife and demanding
                 money from her parents to return the child. In addition, the State
                 introduced evidence that Watson, when in an argument with his prior
                 wife, had boasted that he had raped and killed a hitchhiker but that an
                 investigation into that statement did not yield any evidence of a murder
                 and no charges were filed.
                             In mitigation, Watson introduced records from his admissions
                 to psychiatric hospitals and his adjudication of insanity in 1958, when he
                 was 18 years old. The records showed that Watson had been admitted to
                 Parkland Memorial Hospital on August 23, 1957. Doctors had tentatively
                 diagnosed him with schizophrenia and later diagnosed him with
                 sociopathic personality disorder. The records noted that Watson was
                 repeatedly referred to juvenile authoritieg for thefts, burglaries, and other
                 similar crimes between 1951 and 1955. He ran away from home in 1956
                 with the intent to commit suicide. In 1957, he exposed himself to a
                 secretary at a radio station and threatened her with a knife, which led to
                 the commitment at Parkland. After he was discharged from Parkland,
                 Watson committed another crime and was adjudicated insane on July 26,

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                1958. Watson was admitted to Rusk State Hospital on October 31, 1958,
                and discharged on November 1, 1960. He spent the last ten months of his
                admission on furlough. Watson also spoke in allocution, expressing his
                desire to be given the death penalty in accordance with his Muslim faith.
                            The jury found that the murder occurred while Watson was
                engaged in the crime of first-degree kidnapping and that the murder
                involved the torture and mutilation of the victim. None of the jurors found
                any mitigating circumstances. The jury unanimously found that the
                aggravating circumstances outweighed the mitigating circumstances and
                imposed a sentence of death for Evey's murder.

                                              DISCUSSION
                            Watson argues that numerous errors occurred during the guilt
                and penalty phases of the trial. Although we address all of the claimed
                errors, we focus on two in particular. As to the guilt phase, we focus on
                his claim that the district court erred in rejecting his Batson challenge to
                the State's use of three peremptory challenges. As to the penalty• phase,
                we focus on his challenge to the instruction defining mitigating
                circumstances.

                Guilt-phase issues
                      Juror challenges
                            In exercising its nine peremptory challenges, the State struck
                six women and three men and one of the State's peremptory challenges
                was used to remove an African-American veniremember. Watson asserted
                a Batson objection to the State's use of three peremptory challenges—two
                against female veniremembers and the one against an African-American
                veniremember The district court rejected his objections and Watson

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                       claims on appeal that the district court erred as to one of the women and
                       the African-American veniremember. We first address the gender-based
                       Batson claim and then the race-based Batson claim.
                                   In Batson v. Kentucky, the United States Supreme Court held
                       that the use of peremptory challenges "is subject to the commands of the
                       Equal Protection Clause," and therefore a party may not "challenge
                       potential jurors solely on account of their race." 476 U.S. 79, 89 (1986).
                       The Court later expanded the scope of Batson to prohibit striking jurors
                       solely on account of gender. J.E.B. v. Alabama ex rd. T.B., 511 U.S. 127,
                       140-43 (1994). We evaluate an equal-protection challenge to the exercise
                       of a peremptory challenge using the three-step analysis set forth by the
                       United States Supreme Court in Batson. Kaczmarek v. State, 120 Nev.
                       314, 332, 91 P.3d 16, 29 (2004); see also Purkett v. Elem, 514 U.S. 765, 767
                       (1995); J.E.B., 511 U.S. at 144-45. First, "the opponent of the peremptory
                       challenge must make out a prima facie case of discrimination."      Ford v.
                       State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006). "Mhe production
                       burden then shifts to the proponent of the challenge to assert a neutral
                       explanation for the challenge."          Id.   Finally, "the trial court
                       must. . . decide whether the opponent of the challenge has proved
                       purposeful discrimination." Id.; see Johnson v. California, 545 U.S. 162,
                       171 (2005) (noting the "burden of persuasion 'rests with, and never shifts
                       from, the opponent of the strike" (quoting Purkett, 514 U.S. at 768)). This
                       court affords great deference to the district court's factual findings
                       regarding whether the proponent of a strike has acted with discriminatory
                       intent, Diomampo v. State, 124 Nev. 414, 422-23, 185 P.3d 1031, 1036-37




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                (2008), and we will not reverse the district court's decision "unless clearly
                erroneous." Kaczmarek, 120 Nev. at 334, 91 P.3d at 30. 2
                            The district court rejected Watson's gender-based Batson
                objection after determining that Watson had failed to make out a prima
                facie case of discrimination—the first step of the Batson analysis. To
                establish a prima facie case under step one, the opponent of the strike
                must show "that the totality of the relevant facts gives rise to an inference
                of discriminatory purpose." Batson, 476 U.S. at 93-94. This standard is
                not onerous and does not require the opponent of the strike to meet his or
                her ultimate burden of proof under Batson. Johnson, 545 U.S. at 170
                (rejecting California's "more likely than not" standard to measure the
                sufficiency of a prima facie case). Rather, the opponent of the strike must
                provide sufficient evidence to permit the trier of fact to "draw an inference
                that discrimination has occurred." Id.; see also State v. Martinez, 42 P.3d
                851, 857-58 (N.M. Ct. App. 2002). "An 'inference' is generally understood
                to be a 'conclusion reached by considering other facts and deducing a


                      2There is a split of authority as to whether the finding of a prima
                facie case of discrimination (step one of the Batson analysis) should be
                reviewed deferentially. It appears that a majority of the federal circuit
                courts of appeal, including the Ninth Circuit, have held that the "appellate
                court should review a trial court's Batson prima facie determination
                deferentially." Tolbert v. Page, 182 F.3d 677, 684-85 (9th Cir. 1999) (citing
                decisions of the First, Third, Fourth, Fifth, Eighth, and Eleventh Circuits);
                see also United States v. Martinez, 621 F.3d 101, 109-10 (2d Cir. 2010)
                (deciding to apply abuse-of-discretion standard). But see Valdez v. People,
                966 P.24 587, 590-91 (Colo. 1998) (discussing split and adopting mixed
                standard of review that gives deference to factual findings but applies de
                novo standard to whether opponent of strike established a prima facie case
                as a matter of law). The parties have not asked us to reconsider the
                standard of review used by this court.


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                         logical consequence from them." Johnson, 545 U.S. at 168 n.4 (quoting
                         Black's Law Dictionary 781 (7th ed. 1999)).
                                     Watson takes issue with the district court's determination
                         that he had not made a prima facie showing because he had not
                         demonstrated a pattern of strikes against women. He argues that he is
                         not required to show a pattern in order to make the prima facie showing
                         required under Batson's first step. Watson is correct—the opponent of a
                         strike is not required to establish a pattern of strikes against members of
                         the targeted group because the exclusion of even one veniremember based
                         on membership in a cognizable group is a constitutional violation.       See
                         generally Batson, 476 U.S. at 96-97; United States v. Vasquez-Lopez,      22
                         F.3d 900, 902 (9th Cir. 1994). But Watson still must make the prima facie
                         showing required under Batson's first step.
                                     Where there is no pattern of strikes against members of the
                         targeted group to give rise to an inference of discrimination, the opponent
                         of the strike must provide other evidence sufficient to permit an inference
                         of discrimination based on membership in the targeted group.       Vasquez-
                         Lopez, 22 F.3d at 902. In other words, the mere fact that the State used a
                         peremptory challenge to exclude a member of a cognizable group is not,
                         standing alone, sufficient to establish a prima facie case of discrimination
                         under Batson's first step; "something more" is required.     State v. Rhone,
                         229 P.3d 752, 756 (Wash. 2010) (rejecting bright-line rule that peremptory
                         challenge used against member of racially cognizable group is sufficient to
                         establish a prima facie case under Batson because such a rule would be
                         inconsistent with Batson as it "would negate this first part of the analysis
                         and require a prosecutor to provide an explanation every time a member of
                         a racially cognizable group is peremptorily challenged" and would be

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                 inconsistent with what Washington court and other courts have held); see
                 also Vasquez-Lopez,    22 F.3d at 902 ("The one fact supporting [the
                 defendant's] Batson claim was the juror's status as the sole Black
                 prospective juror. More was required."); People v. Howard, 175 P.3d 13, 25
                 n.10 (Cal. 2008) (noting that defendant is not required to show a pattern
                 in order to make out a prima facie showing of discrimination but that the
                 absence of a pattern is "significant" where the defense "provided no other
                 basis for inferring discriminatory intent"). Aside from a pattern of strikes
                 against members of a targeted group, circumstances that might support
                 an inference of discrimination include, but are not limited to, the
                 disproportionate effect of peremptory strikes, the nature of the proponent's
                 questions and statements during voir dire, disparate treatment of
                 members of the targeted group, and whether the case itself is sensitive to
                 bias. Batson, 476 U.S. at 96-97 (prosecutor's questions and statements
                 during voir dire); Tolbert v. Page, 182 F.3d 677, 683 (9th Cir. 1999)
                 ("Whether or not 'all the relevant circumstances' raise an inference' of
                 discrimination will depend on factors such as the attitude and behavior of
                 the challenging attorney and the prospective jurors manifested during voir
                 dire."); Vasquez-Lopez, 22 F.3d at 902 (impact of government's challenge
                 on composition of jury and disparate treatment); Martinez, 42 P.3d at 855
                 (observing that courts may also consider whether a cognizable group has
                 been eliminated from the jury altogether, was substantially
                 underrepresented, or the case itself was sensitive to bias).
                             Watson suggests that the number of peremptory challenges
                 that the State used to remove women (6 of its 9 peremptory challenges)
                 constitutes a pattern of strikes that gives rise to an inference of gender-



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                based discrimination and therefore establishes a prima facie case of
                gender discrimination. He offers no supporting authority or analysis.
                            In a case involving a Batson claim based on gender
                discrimination, this court observed that "[wffien a significant proportion of
                peremptories exercised by the State is used to remove members of a
                cognizable group, it tends to support a finding of purposeful
                discrimination."   Libby v. State, 113 Nev. 251, 255, 934 P.2d 220, 223
                (1997). Although there is "no magic number of challenged jurors which
                shifts the burden to the government to provide a neutral explanation for
                its actions," Turner v. Marshall, 63 F.3d 807, 812 (9th Cir. 1995) (quoting
                United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989)), overruled
                in part on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999),
                in Libby, this court concluded that the use of seven of nine peremptory
                challenges to remove female veniremembers established a prima facie case
                of discrimination based on gender. 113 Nev. at 255, 934 P.2d at 223.
                            There are some flaws with Libby's method of determining
                whether there is a pattern of strikes against members of a targeted group
                that gives rise to an inference of discrimination. Libby tallies the number
                of peremptory challenges used against members of the targeted group to
                determine whether there is a pattern of strikes against members of that
                group. The first problem with that method is that "the raw number of
                peremptory challenges used against targeted-group members is
                meaningless without some point of reference." Kenneth J. Melilli, Batson
                in Practice: What We Have Learned About Batson and Peremptory
                Challenges, 71 Notre Dame L. Rev. 447, 476 (1996). Libby did provide one
                point of reference—the total number of peremptory challenges used by the
                State. That point of reference has little meaning, however, without

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                additional information such as the number of targeted-group members
                remaining in the venire after the for-cause challenges.        Id. ("[Flive
                peremptory challenges against targeted-group members might be
                dispositive if only five such individuals had previously populated the
                venire, but they might be entirely unremarkable if virtually the entire
                venire had consisted of people in that group."). Although two of the cases
                discussed in Libby included information about this additional point of
                reference, United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990)
                (seven of defendant's eight strikes used against male jurors and when
                defendant sought to use final peremptory strike to remove another male
                juror there were only two male jurors in the jury box and one remaining in
                the venire); Haynes v. State, 103 Nev. 309, 316, 739 P.2d 497, 502 (1987)
                (strikes exercised against the only African Americans on the panel), this
                court did not include that information with respect to Libby's venire. The
                second problem with the method used in Libby is that "it does not
                complete its task" because "it does not tell us how many such peremptory
                challenges constitutes a prima facie case." Melilli, supra, at 476. That
                flaw can lead to inconsistent decisions. Id.
                            The method used in Libby is just one of many "methods of
                quantifying the results of the peremptory challenges used by the Batson
                respondent." Id. at 471-72 (describing eight methods). While the method
                used in Libby has some relevance and may be sufficient to make out a
                prima facie showing of discrimination in some cases, there is another
                method that is better suited to gender-based Batson claims given the
                limited number of gender groups. A better approach would be to
                "compare [J the percentage of the         Batson respondent's peremptory
                challenges used against targeted-group members with the percentage of

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                 targeted-group members in the venire."           Id. at 472. "The theory
                 underlying this method is that, if targeted-group membership is irrelevant
                 to the Batson respondent's use of peremptory challenges, then the portion
                 of [those] strikes used against the targeted-group members ought to
                 roughly parallel the portion of the venire which consists of members of
                 that targeted group." Id.; see also State v. Ouahman, 58 A.3d 638, 642
                 (N.H. 2012) (addressing Batson challenge involving the exclusion of men
                 and observing that where the panel against whom peremptory challenges
                 could be exercised consisted of more men than women, there is a "higher
                 likelihood that the State would strike male jurors"). We conclude that this
                 method is preferable to the one used in Libby.
                             Here, the State used six of its nine peremptory challenges to
                 remove women from the venire. This tally is close to, but not exactly the
                 same as, the tally that established a prima facie case in Libby (seven out
                 of nine peremptory challenges). When additional reference points are
                 considered, the number of peremptory challenges used against women
                 becomes less significant. The remaining venire, after all for-cause
                 challenges were resolved, had more women (18) than men (14). It
                 therefore would not be unexpected that neutrally exercised peremptory
                 challenges would affect women more than men. Women constituted 56
                 percent of the venire after the for-cause challenges and the State used 67
                 percent of its strikes to remove women. In other words, roughly five out of
                 nine members of the venire remaining after for-cause challenges were
                 women, and the State used six of its nine strikes on women. Although
                 there is some disparity between these percentages, they are roughly
                 parallel, and the disparity is not as great as that in other cases where
                 courts have found that a prima facie case had been established.    See, e.g.,

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                Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002) (prima facie case
                established where at the time of the Batson objection, the prosecutor had
                used 29 percent of his peremptory challenges to remove 57 percent of the
                Hispanic veniremembers, who only constituted 12 percent of venire);
                Turner v. Marshall, 63 F.3d 807, 813-14 (9th Cir. 1995) (prima facie case
                established where prosecutor used 56 percent of peremptory challenges to
                remove African-American veniremembers, who were only 30 percent of the
                venire that had been passed for cause), overruled in part on other grounds
                by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999). Thus, the State's use of
                six of its nine peremptory challenges against women, standing alone, was
                not sufficient to give rise to an inference of discrimination based on
                gender. Cf. United States v. Martinez, 621 F.3d 101, 110-11 (2d Cir. 2010)
                (concluding that defendant did not make prima facie showing where
                government exercised first four strikes against men where more than half
                of the prospective jurors were men at the start of the peremptory
                challenge stage, and by the time the government exercised its third and
                fourth challenges, the defense had removed seven women, making the
                odds nearly two to one that a male juror would be stricken). Watson does
                not identify any other evidence or circumstance that demonstrates a prima
                facie case of discrimination. We therefore conclude that he has not
                demonstrated that the district court clearly erred in determining that he
                failed to make out a prima facie case of gender discrimination.
                            Next, Watson contends that the district court erred in
                rejecting his Batson claim as to the State's use of a peremptory challenge
                to exclude an African-American veniremember. He argues that the State's
                removal of this veniremember violated Batson because its race-neutral
                reason related to the veniremember's religion.

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                             We need not address Watson's argument because the district
                 court correctly rejected Watson's Batson claim based on the first step of
                 the analysis. The district court agreed with the State that Watson had not
                 established a pattern of strikes against African Americans that would be
                 sufficient to make out a prima facie showing of discrimination. Despite
                 that determination, the district court asked the State to give its reasons
                 for removing the veniremember "out of an abundance of caution." The
                 district court's cautionary request that the State give its explanation for
                 the peremptory challenge was laudable, but where the district court has
                 "conclude[d] that a prima facie showing has not been made, the request for
                 and provision of explanations does not convert a [first-step Batson] case
                 into a [third-stepl case." People v. Howard, 175 P.3d 13, 26 (Cal. 2008)
                 (observing that although the court has "encouraged trial courts to ask
                 prosecutors to give explanations for contested peremptory challenges, even
                 in the absence of a prima facie showing," doing so does not make the first
                 step of the analysis moot where the trial court has concluded that a prima
                 facie showing has not been made). Because the district court asked the
                 State to provide its explanation for the peremptory challenge solely out of
                 an abundance of caution after the court had determined that Watson
                 failed to make a prima facie case, the first step of the Batson analysis was
                 not rendered moot. Id. at 25 ("When the trial court expressly states that it
                 does not believe a prima facie case has been made, and then invites the
                 prosecution to justify its challenges for the record on appeal, the question
                 whether a prima facie case has been made is not mooted, nor is a finding
                 of a prima facie showing implied."); cf. Ford v. State, 122 Nev. 398, 403,
                 132 P.3d 574, 577 (2006) (recognizing that first step of Batson analysis is
                 moot where State "gave its• reasons for its peremptory challenges before

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                the district court determined whether the opponent of the challenge made
                a prima facie showing of discrimination").
                            We agree with the district court's assessment of the first step.
                This is not a case where the State used all of its strikes to remove African
                Americans, used a percentage of its strikes to remove African Americans
                that was significantly greater than the percentage of African Americans in
                the venire, or used its strikes to remove all African Americans. Rather,
                the State used one peremptory challenge to remove an African-American
                veniremember, leaving three African Americans on the venire after the
                State exercised its strikes. Accordingly, there was no pattern of strikes
                against African Americans that would give rise to an inference of
                discrimination. Although Watson was not required to establish a pattern,
                he was required to establish facts or circumstances sufficient to support an
                inference of discrimination based on race. He failed to do so below or on
                appeal. Because Watson did not demonstrate an inference of
                discrimination and therefore failed to meet the first step of the Batson
                analysis, we conclude that the district court did not clearly err in denying
                the Batson objection.

                      Sufficiency of the evidence
                            Watson contends that there was insufficient evidence adduced
                at trial to convict him of first-degree murder and first-degree kidnapping.
                He argues that the conclusion that he lured his wife to Las Vegas with the
                purpose of killing her is based on speculation. He also asserts that, as
                Evey's body was not recovered, the circumstantial evidence produced at
                trial could only suggest, not conclusively prove, his involvement in Evey's
                death. We disagree.


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                                  We review the evidence in the light most favorable to the
                      prosecution and determine whether any rational juror could have found
                      the elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
                      443 U.S. 307, 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
                      573 (1992). In doing so, we do not reweigh the evidence or determine
                      credibility as those functions belong to the jury. McNair, 108 Nev. at 56,
                      825 P.2d at 573.
                                  The jury heard the following evidence. Watson expressed a
                      desire to kill his wife in the month before her disappearance. He then
                      booked a hotel room in Las Vegas under an alias. The next month,
                      Watson and Evey traveled to Las Vegas as a purported gift for her
                      birthday. Watson drove to Las Vegas with a firearm, and Evey flew to the
                      city the next day. Before Evey arrived, Watson checked into hotel rooms
                      at Circus Circus under his name and Tuscany Suites under an alias. Evey
                      was not heard from again. After Evey's disappearance, Watson purchased
                      tools and cleaning supplies. Watson's rooms at the Tuscany Suites were
                      left in disarray: sheets missing, discarded packaging, used incense, and a
                      strong odor. Significant amounts of Evey's blood was found in the rooms
                      at Tuscany Suites, including a large stain that had soaked through to the
                      subfloor, and her blood was found in Watson's vehicle and on his gun.
                      Officers also followed Watson to an area where they later discovered
                      plastic that smelled of decomposition and was stained with Evey's blood.
                      In addition, Watson had fabricated a note from Evey to explain her
                      absence. Finally, he was apprehended in an apparent attempt to leave the
                      country: he was near a bus station with a ticket to a border town and was
                      in possession of another's identification as well as disguise elements. This
                      is substantial evidence from which a rational juror could reasonably infer

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                that: (1) Watson lured Evey to Las Vegas for the purpose of killing her and
                therefore was guilty of first-degree kidnapping, NRS 200.310(1); and (2)
                Watson unlawfully killed Evey with malice aforethought and the killing
                was willful, deliberate, and premeditated and/or committed in the
                perpetration of a kidnapping, and therefore Watson was guilty of first-
                degree murder, NRS 200.010(1); NRS 200.030(1)(a), (b). See Buchanan v.
                State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003) (circumstantial evidence
                alone may sustain a conviction). We therefore will not disturb the jury's
                verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).

                      Motion for self-representation
                            Watson contends that the district court erred in denying his
                motion to dismiss counsel and represent himself. He asserts that this was
                structural error that warrants reversal of his convictions.
                            The Sixth Amendment of the United States Constitution,
                made applicable to the states by the Fourteenth Amendment, guarantees
                a defendant the right to self-representation. See Faretta 0. California, 422
                U.S. 806, 819-20 (1975) ("The right to defend is given directly to the
                accused; for it is he who suffers the consequences if the defense fails.").
                We have protected a competent defendant's Sixth Amendment "right not
                to have counsel forced upon him," even in instances where a defendant
                facing the death penalty opts to present no defense or mitigating evidence.
                Bishop v. State, 95 Nev. 511, 516-17, 597 P.2d 273, 276 (1979); see also
                Colwell v. State, 112 Nev. 807, 811-12, 919 P.2d 403, 406 (1996). However,
                the right to self-representation is not absolute because it necessitates the
                relinquishment of another constitutional right—the right to counsel.     See
                Faretta, 422 U.S. at 835. Before allowing a defendant to waive his right to
                counsel, a district court must conclude that a defendant is competent to
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                  waive his right to counsel and that he has made a knowing and voluntary
                  waiver of this right. See id.; see also Godinez v. Moran, 509 U.S. 389, 400-
                  01 (1993). A district court nonetheless may deny a request for self-
                  representation that is untimely, equivocal, or made for the purpose of
                  delay.    O'Neill v. State, 123 Nev. 9, 17, 153 P.3d 38, 44 (2007) (quoting
                  Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148, 150 (1997)).
                                Watson's request for self-representation was equivocal. He
                  had filed a motion to act as co-counsel and would not fully accept
                  responsibility for his legal representation; he assured the district court
                  that he could handle all aspects of his defense, except for the "details,"
                  deadlines, and ministerial tasks, and he indicated that he would ask for a
                  continuance if he found he could not represent himself. These conditions
                  on self-representation show that he never definitively acknowledged that
                  he wanted to act as his own sole legal representative. 3
                                Watson's motion also was untimely. "If it is clear that the
                  request comes early enough to allow the defendant to prepare for trial
                  without need for a continuance, the request should be deemed timely."
                  Lyons v. State, 106 Nev. 438, 446, 796 P.2d 210, 214 (1990), abrogated in
                  part on other grounds by Vanisi v. State, 117 Nev. 330, 341 & n.14, 22 P.3d
                  1164, 1172 & n.14 (2001). Watson filed his motion roughly one month
                  before the scheduled trial date, and Watson stated at the hearing that he
                  would need a continuance if the court granted his request. He asserts that

                           3A
                           defendant who has exercised his right to self-representation does
                  not have a right to standby or advisory counsel. See United States v.
                  Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (providing accused has no
                  constitutional right to advisory counsel); see also Wheby v. Warden, 95
                  Nev. 567, 568-69, 598 P.2d 1152, 1153 (1979), overruled on other grounds
                  by Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988).


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                    because the subsequent appointment of substitute counsel necessitated a
                    continuance, his motion could not be untimely. However, the continuance
                    was not granted until after the district court denied his motion and
                    appointed new counsel. Considering the lateness of Watson's equivocal
                    request, the district court did not abuse its discretion in denying his
                    motion to represent himself See Harris v. State, 113 Nev. 799, 802, 942
                    P.2d 151, 153-54 (1997) (noting that this court gives deference to district
                    court's determination of whether a defendant understands the risks and
                    disadvantages of self-representation).

                    Penalty-phase issues
                          Mitigation instruction
                                Watson argues that the district court erred in giving the
                    following instruction regarding the definition of mitigation:
                                       Mitigating circumstances are those factors
                                which, while they do not constitute• a legal
                                justification or excuse for the commission of the
                                offense in question, may be considered, in the
                                estimation of the jury, in fairness and mercy, as
                                extenuating or reducing the degree of the
                                Defendant's moral culpability.
                                      You must consider any aspect of the
                                Defendant's character or record and any of the
                                circumstances of the offense that the Defendant
                                proffer [s] as a basis for a sentence less than death.
                                      In balancing aggravating and mitigating
                                circumstances, it is not the mere number of
                                aggravating circumstances or mitigating
                                circumstances that controls.
                    He suggests that the jury would have understood the term "moral
                    culpability" in the first paragraph as a reference to his guilt or
                    blameworthiness and therefore would have ignored any mitigating

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                   evidence unrelated to his moral culpability for committing the crime, such
                   as aspects of his character or record that were unrelated to the crime.
                   Watson did not object to this instruction at trial. "Generally, the failure to
                   clearly object on the record to a jury instruction precludes appellate
                   review" absent plain error affecting the defendant's substantial rights.
                   Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
                               The threshold question is whether the instruction is a correct
                   statement of the law. Our review is de novo. Nay v. State, 123 Nev. 326,
                   330, 167 P.3d 430, 433 (2007). We start that review by looking at the
                   scope of mitigating circumstances.
                               "The Eighth Amendment requires that the jury be able to
                   consider and give effect to all relevant mitigating evidence."       Boyde v.
                   California, 494 U.S. 370, 377 (1990). Mitigation evidence includes "any
                   aspect of a defendant's character or record and any of the circumstances of
                   the offense that the defendant proffers as a basis for a sentence less than
                   death," Lockett v. Ohio, 438 U.S. 586, 604 (1978); see NRS 200.035;
                   accordingly, mitigation is not limited to evidence "which would tend to
                   support a legal excuse from criminal liability," Eddings v. Oklahoma, 455
                   U.S. 104, 113 (1982). See Browning v. State, 124 Nev. 517, 526, 188 P.3d
                   60, 67 (2008) (acknowledging that capital penalty hearing is focused on
                   defendant's character, record, and circumstances of offense); McKenna v.
                   State, 114 Nev. 1044, 1052, 968 P.2d 739, 744 (1998) (same).
                               The challenged instruction's first paragraph focuses on
                   circumstances that speak to the defendant's "moral culpability." The
                   original source of the language in that paragraph seems to• be the
                   definition of "mitigating circumstances" found in an early edition of
                   Black's Law. Dictionary: "Mitigating circumstances' are such as do not

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                   constitute a justification or excuse of the offense in question, but which, in
                   fairness and mercy, may be considered as extenuating or reducing the
                   degree of moral culpability." Black's Law Dictionary 780-81 (1st ed. 1891).
                   Although this definition appeared in a death penalty case as early as 1928,
                   see, e.g., People v. Leong Fook, 273 P. 779, 781 (Cal. 1928), its use in death
                   penalty cases in Nevada seems to be of more recent vintage. For example,
                   the language was used in an instruction defining mitigating circumstances
                   during a Clark County capital trial in 1994. 4 See Evans v. State, 112 Nev.
                   1172, 1185, 1203 n.31, 926 P.2d 265, 274, 285 n.31 (1996). 5 The defendant
                   in that case did not object to the instruction, and we observed that the
                   instruction "clarified any possible confusion" that the jury might have had
                   concerning the meaning of mitigating circumstances based on the initial
                   instruction that the jury received.°    Id. at 1204, 926 P.2d at 286. This


                         4We  are not aware of any instances of this definition being used in
                   Nevada capital trials before 1994, and the parties have not identified any
                   such instances.

                         5 1nEvans, the jury requested a "Black's Law or proper definition" of
                   mitigating circumstances during penalty-phase deliberations. 112 Nev. at
                   1203, 926 P.2d at 285. The district court responded by giving an
                   instruction that is similar to the first paragraph of the instruction
                   challenged in this case: "'Mitigating circumstances are things which do not
                   constitute a justification or excuse of the offense in question, but which in
                   fairness and mercy may be considered as extenuating or reducing the
                   degree of moral culpability." Id. at 1203 n.31, 926 P.2d at 285 n.31.

                         °The initial instruction given in Evans read, in part: "Any aspect of
                   the defendant's character or record and any of the circumstances of the
                   offense, including any desire you may have to extend mercy to the
                   defendant, which a jury believes is a basis for imposing sentence less than
                   death may be considered a mitigating factor." 112 Nev. at 1204, 926 P.2d
                   at 285 (emphasis omitted).

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                 court has not addressed whether the term "moral culpability" as used in
                 the instruction misstates the law as to the scope of mitigating
                 circumstances. 7
                                The term "culpability" is defined as "blameworthiness" or
                 "guilt" in both legal and ordinary usage. Black's Law Dictionary 435 (9th
                 ed. 2009); Webster's Third New International Dictionary 552 (2002). Thus
                 understood, "culpability" relates to the crime and whether the defendant is
                 blameworthy, see Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (using
                 "culpability" in reference to crime), which describes the inquiry at the guilt
                 phase of a capital trial. The inquiry at the penalty phase of a capital trial
                 is different—whether the defendant is worthy of a death sentence. Phyllis
                 L. Crocker, Concepts of Culpability and Deathworthiness: Differentiating
                 Between Guilt and Punishment in Death Penalty Cases, 66 Fordham L.
                 Rev. 21, 22-27 (1997). This is not to say that circumstances that extenuate
                 or reduce a defendant's moral culpability but are not sufficient to justify or


                       7 Thiscourt's opinion in Thomas v. State refers to an instruction that
                 includes the "moral culpability" language, but it does so in the court's
                 analysis of a prosecutorial-misconduct claim; the opinion does not address
                 the issue presented in this case. 122 Nev. 1361, 1370, 148 P.3d 727, 733
                 (2006).

                       The State suggests that the challenged instruction was approved by
                 the United States Supreme Court in Kansas v. Marsh, 548 U.S. 163
                 (2006). We disagree. The Marsh opinion merely mentioned the Kansas
                 instruction and did not specifically approve of it or address the issue
                 presented here. Id. at 176-77. Additionally, the instruction mentioned in
                 Marsh is phrased differently than the instruction used in this case; it
                 defined mitigating circumstances as any circumstances that "may be
                 considered as extenuating or reducing the degree of moral culpability or
                 blame or which justify a sentence of less than death." Id. at 176 (emphasis
                 added) (internal quotation marks omitted).

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                      excuse the offense for purposes of guilt are irrelevant to the jury's
                      determination whether to impose a sentence less than death.        See Skipper,
                      476 U.S. at 13-14 ("Evidence concerning the degree of the de)endant's
                      participation in the crime, or his age and emotional history, thus bear
                      directly on the fundamental justice of imposing capital punishment."
                      (emphasis added)). In fact, several such circumstances are included as
                      statutory mitigating circumstances in Nevada.       See NRS 200.035. 8 But
                      the defendant's moral culpability is not thefl sole consideration; therefore,


                            8 NRS   200.035 provides as follows:

                                    Murder of the first degree may be mitigated by
                                    any of the following circumstances, even though
                                    the mitigating circumstance is not sufficient to
                                    constitute a defense or reduce the degree of the
                                    crime:
                                           1. The defendant has no significant history
                                    of prior criminal activity.
                                         2. The murder was committed while the
                                    defendant was under the influence of extreme
                                    mental or emotional disturbance.
                                         3. The victim was a participant in the
                                    defendant's criminal conduct or consented to the
                                    act.
                                           4. The defendant was an accomplice in a
                                    murder committed by another person and the
                                    defendant's participation in the murder was
                                    relatively minor.
                                          5. The defendant acted under duress or
                                    under the domination of another person.
                                           6. The youth of the defendant at the time of
                                    the crime.
                                          7. Any other mitigating circumstance.

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                     an instruction that limits mitigating circumstances to factors that
                     extenuate or reduce a defendant's moral culpability misstates the law.
                                 The instruction given in this case is subject to two
                     interpretations. Read as a whole, the instruction requires the jury to
                     consider factors that extenuate or reduce the defendant's moral culpability
                     and any aspect of the defendant's character or record and any
                     circumstances of the offense. In particular, the breadth of possible
                     mitigation evidence is conveyed in the second paragraph of the
                     instruction: "You must consider any aspect of the Defendant's character or
                     record and any of the circumstances of the offense that the Defendant
                     proffer [s] as a basis for a sentence less than death." Alternatively, the
                     phrasing of the first paragraph, which refers to mitigating circumstances
                     as those factors that "extenuat[e] or reduc[e] the degree of the Defendant's
                     moral culpability," could be understood to limit the jury to consideration of
                     only those factors that are offense-related and therefore extenuate or
                     reduce the defendant's guilt or blameworthiness. Given these competing
                     interpretations, "the proper inquiry. . is whether there is a reasonable
                     likelihood that the jury has applied the challenged instruction in a way
                     that prevents the consideration of constitutionally relevant [mitigating]
                     evidence." Boyde v. California, 494 U.S. 370, 380 (1990). A "reasonable
                     likelihood" is more than a mere possibility that the jury misunderstood the
                     law, but a defendant "need not establish that the jury was more likely
                     than not to have been impermissibly inhibited by the instruction." Id.
                                 We are not convinced that there is a reasonable likelihood that
                     the jury misunderstood the first paragraph of the instruction to preclude it
                     from considering any aspect of Watson's character or record as a
                     mitigating circumstance regardless of whether it reflected on his moral

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          '
                 culpability.    First, the interpretation that would result in a
                 misunderstanding of the law is not a natural reading of the instruction as
                 a whole. Nothing in the language of the instruction would readily suggest
                 that the language in the first paragraph required the jury to ignore the
                 broad second paragraph. Second, it seems unlikely that a jury would read
                 the first paragraph as suggested by Watson when courts have used
                 "culpability" in the penalty context without expressing any concern that it
                 limits the jury to consideration of circumstances that are related to the
                 crime and the defendant's guilt. See, e.g., Abdul-Kabir v. Quarterman, 550
                 U.S. 233, 263-64 (2007) ("[B]efore a jury can undertake the grave task of
                 imposing a death sentence, it must be allowed to consider a defendant's
                 moral culpability and decide whether death is an appropriate punishment
                 for that individual in light of his personal history and characteristics and
                 the circumstances of the offense."); Penry v. Lynaugh, 492 U.S. 302, 319
                 (1989) ("Underlying Lockett and Eddings is the principle that punishment
                 should be directly related to the personal culpability of the criminal
                 defendant. If the sentencer is to make an individualized assessment of the
                 appropriateness of the death penalty, 'evidence about the defendant's
                 background and character is relevant. . . ." (quoting California v. Brown,
                 479 U.S. 538, 545 (1987) (O'Connor, J., concurring))), abrogated on other
                 grounds by Atkins v. Virginia, 536 U.S. 304 (2002). As the Supreme Court
                 has observed, "U]urors do not sit in solitary isolation booths parsing
                 instructions for subtle shades of meaning in the same way that lawyers
                 might."   Boyde, 494 U.S. at 380-81. Finally, although "arguments of
                 counsel generally carry less weight with a jury than do instructions from
                 the court," id. at 384, given the arguments of counsel during the penalty
                 phase that focused on background, character, and other circumstances

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                     unrelated to the crime, it is unlikely that the jury would have believed
                     that that evidence could not be considered. These reasons also suggest
                     that any possible error in the instruction is not "so unmistakable that it
                     reveals itself by a casual inspection of the record," Patterson v. State, 111
                     Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (internal quotation marks
                     omitted); therefore, Watson has not demonstrated plain error. 9

                           Motion to continue
                                 Watson argues that the district court erred in denying a
                     motion to continue. He asserts that the continuance was necessary to
                     permit him more time to prepare his case in mitigation because counsel
                     did not obtain records related to his previous psychiatric hospitalization
                     until the day that the jury returned its guilty verdicts.
                                 The decision to deny a motion for a continuance is reviewed for
                     an abuse of discretion. Rose v. State, 123 Nev. 194, 206, 163 P.3d 408, 416
                     (2007). There was no such abuse in this case. The district court's decision


                           9We encourage district courts to revise the challenged instruction to
                     avoid the possibility of an erroneous interpretation. For example, the
                     following language could be used in place of the first and second
                     paragraphs:

                                 A mitigating circumstance is any factor which you
                                 believe is a basis for imposing a sentence less than
                                 death. Such circumstances may include, but are
                                 not limited to: any aspect of the defendant's
                                 character, background, or record; any factor that
                                 extenuates or reduces the degree of the
                                 defendant's moral culpability, regardless of
                                 whether it constitutes a legal justification or
                                 excuse for the offense; any circumstances of the
                                 offense; or any desire you may have to extend
                                 mercy to the defendant.

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                did not leave the defense with inadequate time to prepare for the penalty
                hearing, see Higgs v. State, 126 Nev. 1, 9, 222 P.3d 648, 653 (2010) ("This
                court has held that generally, a denial of a motion to continue is an abuse
                of discretion if it leaves the defense with inadequate time to prepare for
                trial."); Watson's trial attorneys began representing him roughly one year
                before his trial began, he had been represented by other attorneys over the
                several years that the case had been pending before his trial counsel
                became involved in the case, and Watson could have revealed the
                information at issue to counsel had he chosen to do so. Watson also fails
                to demonstrate that he was prejudiced by the denial of the continuance,
                see Rose, 123 Nev. at 206, 163 P.3d at 416 ("[W]hen a defendant fails to
                demonstrate that he was prejudiced by the denial of a continuance, the
                district court's decision denying a continuance is not an abuse of
                discretion."), where he had consistently maintained that his religious
                beliefs mandated that he not pursue a case in mitigation, see Detrich v.
                Ryan, 677 F.3d 958, 977 (9th Cir. 2012) (recognizing "a defendant's
                informed wishes can justify failing to present mitigating evidence"
                (emphasis omitted)), vacated in part on other grounds and remanded, 740
                F.3d 1237 (9th Cir. 2013), cert. denied, 572 U.S. , 134 S. Ct. 2662
                (2014), counsel was able to use the records during the penalty hearing,
                and the records indicated that Watson had been diagnosed and treated for
                mental illness several decades before the instant crime, which involved a
                carefully planned and executed murder. The district court did not abuse
                its discretion.

                      Competency
                             Watson argues that• the district court erred in denying his
                request for a competency evaluation following the guilt phase of the trial
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                because none of the prior evaluators had access to his extensive history of
                mental illness. We disagree.
                            Roughly one year before trial, Watson was found competent to
                stand trial. The record shows that he responded appropriately when
                questioned by the court during pretrial proceedings and that he drafted
                his own pleadings. In addition, Watson responded appropriately during
                questioning by the court during the Farettalm canvas. The discovery of
                decades-old psychiatric records and insinuation that stress from the guilty
                verdict rendered him incompetent were insufficient to cast reasonable
                doubt on his competency given that he did not exhibit any behavior during
                the prior proceedings that called into doubt his ability to understand the
                nature of the proceedings or assist counsel. See Scarbo v. Eighth Judicial
                Dist. Court, 125 Nev. 118, 122, 206 P.3d 975, 977 (2009) (holding that a
                defendant is competent to stand trial if he has the "ability to understand
                the nature of the criminal charges and the nature and purpose of the court
                proceedings, and by his or her ability to aid and assist his or her counsel in
                the defense at any time during the proceedings with a reasonable degree
                of rational understanding"). While Watson's decision to forgo the
                presentation of mitigation evidence may seem irrational to some, that
                decision was his alone, see Detrich, 677 F.3d at 977, and it was one that he
                had consistently maintained throughout the proceedings. Nothing in the
                record indicates that Watson did not understand the nature and purpose
                of the penalty hearing or that he was unable to assist his counsel during
                the proceeding. Because Watson failed to demonstrate reasonable doubt




                      ImFaretta v. California, 422 U.S. 806 (1975).

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                    as to his competency to stand trial, see Olivares v. State, 124 Nev. 1142,
                    1147-48, 195 P.3d 864, 868 (2008); see also NRS 178.400(1) ("A person may
                    not be tried or adjudged to punishment for a public offense while
                    incompetent"), the district court did not abuse its discretion in denying
                    the request for further competency proceedings, see Olivares, 124 Nev. at
                    1147-48, 195 P.3d at 868.

                         Aggravating circumstances
                                Watson contends that there was insufficient evidence to
                    support the two aggravating circumstances found by the jury. We
                    disagree. There was sufficient evidence that the murder occurred in the
                    commission of a first-degree kidnapping. The evidence shows that Watson
                    inveigled Evey to travel to Las Vegas for the purpose of killing her.   See
                    NRS 200.310(1). In particular, Watson had verbalized his desire to
                    murder Evey in order to protect his life savings; he then threw a surprise
                    birthday party for her, which was an unusual thing for him to do, and, as
                    part of the birthday celebration, planned a trip to Las Vegas for the
                    couple; he booked two hotel rooms, one under his own name and the other,
                    at a separate hotel, where Evey's blood was discovered, under an alias for
                    which he had false identification; and although Evey flew to Las Vegas,
                    Watson traveled separately with a firearm. As to the torture and
                    mutilation aggravating circumstance, the State introduced letters that
                    Watson had written to his children in which he admitted to dismembering
                    Evey and cooking parts of her body in an attempt to conceal her death.
                    This admission was corroborated by the pan and utensils recovered from
                    Watson's hotel room; evidence that Watson purchased a band saw, plastic
                    bags, and cleaners; and the large amount of Evey's blood that had soaked
                    through the carpet in the hotel room. This evidence was sufficient for the
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                   jury to conclude that the murder involved "mutilation beyond the act of
                   killing itself' that "cut off or permanently destroy[ed] a limb or essential
                   part of [Evey's] body." Smith v. State, 114 Nev. 33, 39, 953 P.2d 264, 267
                   (1998) (internal quotation marks omitted); Deutscher v. State, 95 Nev. 669,
                   677, 601 P.2d 407, 412-13 (1979). 11

                   Mandatory review
                               NRS 177.055(2) requires that this court review every death
                   sentence and consider whether; (1) sufficient evidence supports the
                   aggravating circumstances found; (2) the verdict was rendered under the
                   influence of passion, prejudice, or any other arbitrary factor; and (3) the
                   death sentence is excessive. First, as explained above, sufficient evidence
                   supported the two aggravating circumstances found. Second, nothing in
                   the record indicates that the jury reached its verdict under the influence of
                   passion, prejudice, or any arbitrary factor. And third, considering the
                   calculated nature in which Watson planned the murder and
                   dismemberment of his wife and the evidence in mitigation, we conclude
                   that Watson's death sentence was not excessive.




                          nWatson argues that the cumulative effect of the errors committed
                   during his trial warrant reversal of his conviction and sentence. "The
                   cumulative effect of errors may violate a defendant's constitutional right
                   to a fair trial even though errors are harmless individually." Hernandez v.
                   State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). However, a
                   defendant is not entitled to a perfect trial, merely a fair one. Ennis v.
                   State, 91 Nev. 530, 533, 539 P.2d 114, 115 (1975). Because we have found
                   no error, there is nothing to cumulate.

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                              Because review of this appeal reveals no errors that would
                warrant a new trial or penalty hearing, we affirm the judgment of
                conviction.



                                                                               C.J.



                We concur:


                           Pitt tilt  !

                                             ,    J.
                Pickering


                   A   6-A gEts4;
                Hardesty
                                                  J.



                                                 J.
                Parraguirre



                Douglas




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                       CHERRY and SAITTA,. JJ., dissenting in part:
                                   In our view, the district court plainly erred in defining
                       mitigating circumstances as those circumstances that reduce the
                       defendant's degree of moral culpability. See Green v. State, 119 Nev. 542,
                       545, 80 P.3d 93, 94-95 (2003) (reviewing unobjected-to jury instruction for
                       plain error affecting the defendant's substantial rights). The instruction is
                       not properly rooted in Nevada statutory authority to provide necessary
                       direction• to the jury. We further conclude that this error affected
                       Watson's substantial rights and we would reverse the judgment of
                       conviction and remand for a new sentencing hearing.
                                   In 1972, the United States Supreme Court held that the death
                       penalty, as it had been applied, violated the Eighth and Fourteenth
                       Amendments of the United States Constitution because the procedures
                       employed to sentence defendants created "a substantial risk that the
                       punishment will be inflicted in an arbitrary and capricious manner."
                       Godfrey v. Georgia, 446 U.S. 420, 427 (1980); Anderson v. State, 90 Nev.
                       385, 528 P.2d 1023 (1974) (citing Furman v. Georgia, 408 U.S. 238 (1972)).
                       The nation's•hiatus from the death penalty was• short-lived. State
                       legislatures amended their statutes in an attempt to restore the
                       punishment to constitutionality and, by 1976, the United States Supreme
                       Court approved of the penalty schemes in Florida and Georgia.        Gregg v.
                       Georgia, 428 U.S. 153, 198-207 (1976); Proffitt v. Florida, 428 U.S. 242,
                       253 (1976). To survive constitutional scrutiny, capital sentencing
                       procedures must "(1) rationally narrow the class of death-eligible
                       defendants; and (2) permit a jury to render a reasoned, individualized


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                sentencing determination based on a death-eligible defendant's record,
                personal characteristics, and the circumstances of his crime."    Kansas v.
                Marsh, 548 U.S. 163, 173-74 (2006). The jury must be free to consider
                "any aspect of a defendant's character or record and any of the
                circumstances of the offense that the defendant proffers as a basis for a
                sentence less than death."    Lockett v. Ohio, 438 U.S. 586, 604 (1978)
                (plurality opinion). Our Legislature amended the capital punishment
                scheme in 1977 to address the concerns of Furman and Gregg and limit
                the jury's discretion in imposing death sentences.   See Deutscher v. State,
                95 Nev. 669, 676, 601 P.2d 407, 412 (1979). The statutes generally limit
                the discretion afforded the jury, but "are constitutional because they
                'provide for a consideration of any mitigating factor the defendant may
                want to present." Id. at 676-77, 601 P.2d at 412 (quoting Bishop v. State,
                95 Nev. 511, 517, 597 P.2d 273, 277 (1979)); see Gregg, 428 U.S. at 196-97.
                Any instruction to the jury concerning the use of mitigation evidence must
                be born of these statutes in order to guide the discretion of the jury in a
                constitutional manner. But that was not the case here.
                            Instead, the moral culpability instruction given in this case
                came from a dictionary, see Henry Campbell Black, Dictionary of Law 780-
                81 (1st ed. 1891) ("Mitigation. . . . 'Mitigating circumstances' are such as
                do not constitute a justification or excuse of the offense in question, but
                which in fairness and mercy, may be considered as extenuating or
                reducing the degree of moral culpability."), and had originated from an
                action for slander, Black, Dictionary of Law 785 (2d ed. 1910) (citing
                Heaton v. Wright, 10 How. Pr. 79, 82 (N.Y. 1854)). Despite its origin in


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                    civil law, courts adopted the instruction for their most serious cases as
                    early as 1928. See generally People v. Leong Fook, 273 P. 779, 781 (Cal.
                    1928); Commonwealth v. Williams,       160 A. 602, 609 (Pa. 1932). Many
                    jurisdictions have modified the language to reflect a definition of
                    mitigating circumstances that extends beyond moral culpability to any
                    circumstances that warrant a sentence less than death.      See, e.g., Kansas
                    v. Marsh, 548 U.S. 163, 176 (2006) (Kansas instructions use "reducing the
                    degree of moral culpability or blame or which justify a sentence of less than
                    death" (internal quotations omitted) (emphasis added));        Buchanan v.
                    Angelone, 522 U.S. 269, 285 (1998) (Virginia instructions use "reduce the
                    degree of moral culpability and punishment" (internal quotations omitted)
                    (emphasis added)); State v. Breton, 663 A.2d 1026, 1052 & n.46 (Conn.
                    1995) (Connecticut instructions use "reduce the degree of his culpability or
                    blame for the offense or to otherwise constitute a basis for a sentence less
                    than death" (internal quotations omitted) (emphasis added)); State v.
                    Brett, 892 P.2d 29, 61 (Wash. 1995) (Washington instructions use
                    "reducing the degree of moral culpability or which justifies a sentence of
                    less than death" (internal quotations omitted) (emphasis omitted)
                    (emphasis added)); State v. Moose, 313 S.E.2d 507, 518 (N.C. 1984) (North
                    Carolina's definition includes, "reducing the moral culpability of killing or
                    making it less deserving of the extreme punishment than other first-degree
                    murders" (emphasis and internal quotation omitted)); see also State v.
                    Holloway, 527 N.E.2d 831, 835 (Ohio 1988) ("[Mhtigating factors under
                    [Ohio law] are not related to a defendant's culpability but, rather, are
                    those factors that are relevant to the issue of whether an


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                offender. .. should be sentenced to death."). Although we have referenced
                a similar instruction in three published cases, this court has never
                specifically addressed the "moral culpability" language in the instruction.
                See Nunnery v. State,     127 Nev. „ 263 P.3d 235, 257 (2011)
                (explaining that instruction grants jurors the discretion to find mitigating
                circumstances); Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 733
                (2006) (explaining that State's improper causation argument was not
                prejudicial because instruction does not require causation between
                mitigating factors and the crime); Evans v. State, 112 Nev. 1172, 1204, 926
                P.2d 265, 285-86 (1996) (referencing instruction but citing a different
                definition of mitigating circumstances with approval).
                            It is no small task to ask a jury to decide whether to impose a
                death sentence. Given the weight of their decision, jurors are entitled to
                instructions that clarify the law authorizing the penalty to guide their
                discretion in imposing the punishment. In light of this concern, the
                instruction's history, United States Supreme Court precedent, and
                statutory amendments to the death penalty procedure, the district court
                plainly erred in giving the instruction. The instruction is simply
                inconsistent with the statutory language defining mitigating
                circumstances. It defined mitigating circumstances as factors which
                "extenuat[e] or reduc[e] the degree of the Defendant's moral culpability."
                Admittedly, most of the enumerated factors in the statute relate to the
                facts of the crime and, therefore, the defendant's moral culpability.    See
                NRS 200.035. But the statute is broader; its definition of mitigating
                circumstances• includes facts concerning the defendant or any other


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                    circumstance that the jury might find mitigating. See NRS 200.035(1), (7);
                    see also Eddings v. Oklahoma, 455 U.S. 104, 113 (1982) (noting mitigation
                    evidence not limited to evidence "which would tend to support a legal
                    excuse from criminal liability"); Lockett v. Ohio, 438 U.S. 586, 604 (1978)
                    (defining mitigation evidence as "any aspect of a defendant's character or
                    record and any of the circumstances of the offense that the defendant
                    proffers as a basis for a sentence less than death"). Moreover, unlike the
                    given instruction, the statute includes specific, concrete examples that are
                    necessary to guide the jury in its deliberations.
                                The given instruction likely confused the jury and improperly
                    limited its consideration of mitigating evidence.   See Boyde v. California,
                    494 U.S. 370, 377-78 (1990) ("The Eighth Amendment requires that the
                    jury be able to consider and give effect to all relevant mitigating
                    evidence."); see also Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67
                    (2008) (acknowledging that capital penalty hearing is focused on
                    defendant's character, record, and circumstances of offense); McKenna v.
                    State, 114 Nev. 1044, 1052, 968 P.2d 739, 744 (1998) (same). The majority
                    acknowledges that "culpability" relates to whether the defendant is
                    blameworthy and that the first paragraph of the instruction could be
                    viewed as restricting the jury's consideration of mitigation evidence.
                    However, it concludes that the second paragraph was sufficient to direct
                    the jury to consider all evidence relevant to mitigating circumstances. We
                    do not agree with this conclusion. The first paragraph clearly
                    characterized mitigating evidence as only offense-related evidence. The
                    second paragraph directs the jury to consider aspects of the defendant's



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                 character or record, but does not brand that information as mitigating
                 evidence. Thus, the facts about the defendant's character stand apart
                 from the mitigation evidence in the minds of the jurors and it is likely that
                 the jury would not consider those facts in weighing the aggravating and
                 mitigating circumstances. Pursuant to the given instruction, the jury
                 could readily and incorrectly assume the facts related to the defendant's
                 character or record were mere "other matter" evidence to be considered
                 after the weighing process was complete. See Skipper v. South Carolina,
                 476 U.S. 1, 5 (1986) (explaining that evidence unrelated to defendant's
                 culpability is still mitigating because it "might serve 'as a basis for a
                 sentence less than death." (quoting Lockett, 438 U.S. at 604)); People v.
                 Lanphear,    680 P.2d 1081, 1083 (Cal. 1984) (en banc) (finding
                 constitutional error when "no sympathy" instruction was combined with
                 instruction suggesting that only circumstances that lessen moral
                 culpability are to be considered as mitigating circumstances); see also
                 Nevius v. State, 101 Nev. 238, 250-51, 699 P.2d 1053, 1061 (1985) (citing
                 Lanphear and implying that an instruction would be erroneous if it
                 suggested that only circumstances that lessen moral culpability should be
                 considered as mitigation). The majority contends that because the phrase
                 "moral culpability" has been used so broadly, albeit incorrectly, in the
                 past, it was unlikely the jury felt limited in what evidence it could
                 consider. We believe the jury's sentencing decision is too important to
                 accept refuge in ambiguity. It is our view that the jury likely applied the
                 instruction in a way that prevented it from considering relevant evidence
                 and that the district court plainly erred in instructing the jury using



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                language that reasoned jurists and attorneys have used with such
                imprecision. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 263-64
                (2007) ("[Blefore a jury can undertake the grave task of imposing a death
                sentence, it must be allowed to consider a defendant's moral culpability
                and decide whether death is an appropriate punishment for that
                individual in light of his personal history and characteristics and the
                circumstances of the offense."); Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
                ("Underlying Lockett and Eddings is the principle that punishment should
                be directly related to the personal culpability of the criminal defendant. If
                the sentencer is to make an individualized assessment of the
                appropriateness of the death penalty, 'evidence about the defendant's
                background and character is relevant. ." (quoting California v. Brown,
                479 U.S. 538, 545 (1987) (O'Connor, J., concurring))), abrogated on other
                grounds by Atkins v. Virginia, 536 U.S. 304 (2002). We should not expect
                jurors "to be legal experts nor make legal inferences with respect to the
                meaning of the law; rather, they should be provided with applicable legal
                principles by accurate, clear, and complete instructions specifically
                tailored to the facts and circumstances of the case." Crawford v. State, 121
                Nev. 744, 754, 121 P.3d 582, 588 (2005).
                            We further conclude that the erroneous instruction affected
                Watson's substantial rights. See MRS 178.602; Green v. State, 119 Nev.
                542, 545,80 P.3d 93, 95 (2003). Watson presented documentation showing
                that he had suffered from mental illness and had received psychiatric
                treatment. The jury, however, found no mitigating circumstances present.
                The majority contends that this could suggest that the mitigation evidence



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                was not sufficiently compelling; however, considering the breadth of time
                between Watson's diagnosis and the crime, the jury most likely did not
                consider it to be evidence in mitigation as defined by the given
                instructions. Therefore, we would conclude that there was "a reasonable
                likelihood that the jury. . . applied the challenged instruction in a way
                that prevent[ed] the consideration of constitutionally relevant evidence."
                Boyde, 494 U.S. at 380; see Ayers v. Belmontes, 549 U.S. 7, 16-17 (2006).




                                                                                   J.



                                                                                   J.
                                                   Saitta




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