                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                    GREGORY LEE HOVER,                                  No. 63888
                    Appellant,
                    vs.
                    THE STATE OF NEVADA,
                    Respondent.
                                                                           • FILED
                                                                              FEB 1 9 2016


                                            ORDER OF AFFIRMANCE
                                This is an appeal from a judgment of conviction in a death
                    penalty case. Eighth Judicial District Court, Clark County; Carolyn
                    Ellsworth, Judge.
                                Appellant Gregory Hover and Richard Freeman kidnapped,
                    sexually assaulted, robbed, and murdered Prisma Contreras outside of Las
                    Vegas, Nevada. Ten days later, Hover broke into the home of Julio and
                    Roberta Romero in Las Vegas, Nevada. He bound and shot Julio, forced
                    Roberta to retrieve certain property, shot her, and left the home with
                    jewelry and bank cards. Julio died as a result of his injuries; Roberta
                    survived. Hover and Freeman also robbed the slot areas of three Las
                    Vegas grocery stores. Lastly, while in pretrial detention, Hover attacked
                    his cellmate with scissors.
                                A jury found Hover guilty of conspiracy to commit kidnapping;
                    five counts of conspiracy to commit robbery; conspiracy to commit sexual
                    assault; conspiracy to commit murder; five counts of burglary while in
                    possession of a deadly weapon; three counts of first-degree kidnapping
                    with the use of a deadly weapon; four counts of robbery with the use of a
                    deadly weapon; two counts of robbery with the use of a deadly weapon,
                    victim 60 years of age or older; sexual assault with the use of a deadly

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                 weapon; two counts of murder with the use of a deadly weapon; first-
                 degree arson; two counts of burglary; attempted murder with the use of a
                 deadly weapon; and battery by a prisoner with the use of a deadly weapon.
                 The jury sentenced Hover to death for each murder conviction and the
                 district court imposed numerous consecutive and concurrent sentences for
                 the remaining convictions. In this appeal, Hover alleges numerous errors
                 during the guilt and penalty phases of trial.
                 Guilt phase issues
                             Juror challenges
                             Hover raises several challenges to district court decisions
                 during voir dire.
                             First, Hover contends that the district court erred in denying
                 his challenges of prospective jurors whom he contends were predisposed
                 toward a death sentence. We discern no abuse of discretion.      See Weber v.
                 State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (reviewing a district
                 court's decision whether to excuse potential jurors for abuse of discretion).
                 Despite the jurors' preference for harsher punishments, they
                 acknowledged that Hover was innocent until proven guilty and that they
                 would listen to all the evidence presented, follow the court's instructions,
                 and fairly consider all possible penalties. See id. (providing that reviewing
                 court must inquire "'whether a prospective juror's views would prevent or
                 substantially impair the performance of his duties as a juror in accordance
                 with his instructions and oath." (quoting Leonard v. State (Leonard II),
                 117 Nev. 53, 65, 17 P.3d 397, 405 (2001) (internal quotes omitted))).
                 Moreover, the challenged prospective jurors were not ultimately
                 empaneled and Hover does not allege that any juror actually empaneled
                 was unfair or biased. See Blake v. State, 121 Nev. 779, 796, 121 P.3d 567,

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                  578 (2005) ("If the jury actually seated is impartial, the fact that a
                  defendant had to use a peremptory challenge to achieve that result does
                  not mean that the defendant was denied his right to an impartial jury.").
                                Second, Hover contends that the district court erred in
                  granting the State's challenge to a potential juror. We discern no abuse of
                  discretion.   See Weber, 121 Nev. at 580, 119 P.3d at 125. The record
                  established that the juror's views would "prevent or substantially impair
                  the performance of [her] duties as a juror in accordance with [her]
                  instructions and oath." Id. (quoting Leonard II, 117 Nev. at 65, 17 P.3d at
                  405). In particular, despite the beyond a reasonable doubt standard, the
                  potential juror stated that she would require proof of a defendant's guilt
                  beyond any doubt in order to impose the death penalty.      See Browning v.
                  State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008) ("The focus of a capital
                  penalty hearing is not the defendant's guilt, but rather his character,
                  record, and the circumstances of the offense.").
                                Third, Hover argues that the district court erred in denying
                  his objection pursuant to Batson v. Kentucky,      476 U.S. 79 (1986) to the
                  State's use of a peremptory challenge. We conclude that Hover failed to
                  demonstrate a prima facie case of discrimination as required under
                  Batson. See Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006)
                  (providing that "the opponent of the peremptory challenge must make out
                  a prima facie case of discrimination"). Under the totality of the
                  circumstances, the strike of one African-American juror while another
                  African-American juror remained on the panel, did not establish an
                  inference of discrimination in this case.    See Watson v. State, 130 Nev.,
                  Adv. Op. 76, 335 P.3d 157, 166 (2014) (providing that to establish a prima
                  facie case, "the opponent of the strike must show 'that the totality of the

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                   relevant facts gives rise to an inference of discriminatory purpose"
                   (quoting Batson, 476 U.S. at 93-94)). Thus, the burden did not shift to the
                   State to proffer a race-neutral reason for the strike.    Ford, 122 Nev. at
                   403, 132 P.3d at 577 (providing that once a prima facie case of
                   discrimination is established "the production burden then shifts to the
                   proponent of the challenge to assert a neutral explanation for the
                   challenge"). Nevertheless, the State proffered several race-neutral
                   reasons for striking the juror that were not belied by the record.
                   Therefore, the district court did not abuse its discretion in denying Hover's
                   challenge.
                                Positron emission tomography (PET) scan
                                Hover argues that the district court abused its discretion in
                   denying his motion to obtain a PET scan because funding was available
                   and the district attorney did not object to the testing. See State v. Second
                   Jud. District Court, 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969)
                   (reviewing denial of motion seeking payment of defense expenses for an
                   abuse of discretion). We disagree for two reasons. First, Hover did not
                   request a PET scan below but instead requested a Magnetic Resonance
                   Imaging   (MRI) scan.' The district court cannot be faulted for failing to
                   order a scan that was not requested. Second, Hover did not meet his
                   burden of demonstrating that either scan was necessary.       See Gallego v.
                   State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001), abrogated on other
                   grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235 (2011).
                   Counsel conceded in the district court that the defense expert witness did

                         'An MRI scan generates detailed images of the organs and tissues of
                   the body. A PET scan employs a radioactive tracer drug to reveal how the
                   tissues and organs are functioning.


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                       not request the scan or conclude that it was necessary to diagnose Hover
                       but sought testing merely because Hover was "facing a death sentence." 2
                       See Jaeger v. State, 113 Nev. 1275, 1285, 948 P.2d 1185, 1191 (1997)
                       (Shearing, C.J., concurring) ("Mho guarantees of due process do not
                       include a right to conduct a fishing expedition."). The district court cannot
                       be faulted for denying a request that was not made nor supported by some
                       basis for the request.
                                   Cross-examination of DNA analyst
                                   Hover also contends that the district court abused its
                       discretion in preventing him from cross-examining the DNA analyst about
                       errors in other cases. 3 The record indicates that the analyst had worked
                       at the lab at the time when significant errors were revealed. Therefore,
                       Hover claims that the district court abused its discretion in concluding
                       that the events of which Hover complained were irrelevant without
                       conducting an evidentiary hearing. See Patterson v. State, 129 Nev., Adv.
                       Op. 17, 298 P.3d 433, 439 (2013) ("[A]n abuse of discretion occurs
                       whenever a court fails to give due consideration to the issues at hand.");
                       see Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000) ("The
                       decision to admit or exclude evidence rests within the trial court's
                       discretion, and this court will not overturn that decision absent manifest

                             2In his reply brief, Hover asserts that the psychological expert
                       indicated that a scan was necessary, however he does not cite to the record
                       where such an assertion was made.

                             3 Hover also contends that cross-examination about the lab's prior
                       errors in DNA identification would expose bias on the part of the analyst
                       or department. It is unclear how the lab's prior errors could influence the
                       analyst in such a way as to lead to a "personal and sometimes unreasoned
                       judgment." Merriam-Webster's Collegiate Dictionary 110 (10th ed. 1995).


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                error."). We agree that the district court should have allowed the
                consideration of this matter but conclude that the error was harmless. See
                Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008) ("If the
                error is of constitutional dimension, then . . . [this court] will reverse
                unless the StateS demonstrates, beyond a reasonable doubt, that the error
                did not contribute to the verdict."). There is no indication that the witness
                was involved in any of the prior cases where errors were shown to have
                occurred. Therefore, her conclusions would not have been significantly
                undermined by the prohibited cross-examination. Moreover, while her
                conclusions were arguably powerful, there was substantial evidence of
                Hover's guilt notwithstanding that evidence. Hover repeatedly implicated
                himself in the sexual assault and murder of Contreras in statements that
                were consistent with physical evidence. In addition, cell phone records
                placed Hover in the area where Contreras' body was found, surveillance
                video showed a car like Hover's following Contreras' Jeep, Freeman's
                fingerprint was found on a matchbook at the scene, and surveillance video
                showed Hover and Freeman purchasing bleach and disposing of clothing
                shortly after the murder.
                            Cross-examination of Marcos Ramirez
                            Hover contends that the district court improperly limited his
                cross-examination of Marcos Ramirez, who he was accused of attacking in
                pretrial detention, to preclude questioning about prior arrests and
                convictions for violent crimes. We discern no abuse of discretion.        See
                Collman, 116 Nev. at 702, 7 P.3d at 436. The district court permitted
                Hover to ask whether Ramirez told Hover about his prior record during
                their detention and Ramirez acknowledged that he told Hover about his



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                three convictions for domestic violence. 4 That prior conduct therefore was
                relevant to establishing Hover's defense.    See Daniel v. State, 119 Nev.
                498, 515, 78 P.3d 890, 902 (2003) ("[E]vidence of specific acts showing that
                the victim was a violent person is admissible if a defendant seeks to
                establish self-defense and was aware of those acts."). On the other hand,
                whether Ramirez had been arrested for coercion and a probation violation
                alleging battery with a deadly weapon was not relevant because prior
                arrests did not demonstrate that he had committed prior acts of violence.
                See Daniel, 119 Nev. at 512-13, 78 P.3d at 900 ("An arrest shows only that
                the arresting officer thought the person apprehended had committed a
                crime . . . . An arrest does not show that a crime in fact has been
                committed, or even that there is probable cause for believing that a crime
                has been committed.").
                            Witness' outburst
                            Hover contends that the district court erred in denying his
                motion for mistrial based on Roberta Romero's outburst during her
                testimony. We disagree. Given the brevity of the outburst, in relation to
                both Roberta's testimony and the entirety of the guilt-phase testimony, the
                swift manner in which the district court addressed it, and the fact that
                statements were not translated for the jury, the outburst likely did not
                unduly influence the jury. See Johnson v. State, 122 Nev. 1344, 1358-59,
                148 P.3d 767, 777 (2006) (providing that an isolated incident of the
                victim's brother passing out in response to a crime scene photograph did


                      4 Ramireztestified that he had one felony conviction for third-offense
                domestic violence.     See NRS 200.485 (providing that, under certain
                circumstances, first and second domestic violence offenses are punishable
                as misdemeanors and the third offense is punishable as a felony).


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                    not render the penalty hearing fundamentally unfair). Therefore, the
                    district court did not abuse its discretion in denying the motion for a
                    mistrial.   See Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417
                    (2007).
                                    Bad act testimony
                                    Hover argues that the district court erred in permitting the
                    State to elicit testimony about uncharged ATM robberies on the ground
                    that he opened the door to that evidence. We discern no plain error.     See
                    Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007) (reviewing un-
                    objected to error for plain error affecting substantial rights). The initial
                    discussion about the ATM robberies occurred during defense questioning.
                    Although it may have been unnecessary for the State to refer to the ATM
                    robberies on redirect, the comment was brief and the State did not elicit
                    further testimony about the robberies. Therefore, Hover failed to
                    demonstrate that the State's comment prejudiced his substantial rights.
                    See id. at 543, 170 P.3d at 524 (requiring that appellant demonstrate that
                    error which is apparent from "a casual inspection of the record" was
                    prejudicial).
                                    Impermissible impeachment
                                    Hover contends that the State impermissibly impeached its
                    own witness by eliciting testimony that her prior conviction for child
                    molestation involved consensual sexual contact with a 15-year-old when
                    the witness was herself 19 years old. We agree. Although a party may
                    "remove the sting" of impeachment by questioning its own witness about
                    the existence of prior convictions, United States v. Ohlers, 169 F.3d 1200,
                    1202 (9th Cir. 1999) (quoting F.R.E. 609 advisory committee's note to 1990
                    amendment), a witness may not be impeached by questioning about the

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                 sentence imposed or the facts underlying the conviction, see Jacobs v.
                 State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975) (providing that
                 sentence imposed on witness is not relevant to impeachment); Plunkett v.
                 State,   84 Nev. 145, 147, 437 P.2d 92, 93 (1968) (providing the
                 circumstances underlying prior convictions are not relevant to
                 impeachment). Nevertheless, this error was harmless.      See Valdez, 124
                 Nev. at 1189, 196 P.3d at 476 (explaining that errors that are not of a
                 constitutional nature do not warrant reversal unless they "substantially
                 affect[ed] the jury's verdict"). The witness' testimony, which chiefly
                 described the January 28, 2010 robbery, was detailed and corroborated by
                 other evidence.
                             Improper identification
                             Hover contends that the district court erred in permitting
                 Detective Karl Lorson to testify that Freeman was not the perpetrator
                 depicted in the three surveillance videos and that the perpetrator of the
                 robberies was the same individual. We conclude that the district court did
                 not abuse its discretion in permitting Detective Lorson to testify that
                 Freeman was not in the surveillance videos. Detective Lorson had two
                 opportunities to observe Freeman prior to viewing the surveillance
                 footage. During those instances, he observed Freeman's physique and
                 facial features. Thus, there is a reasonable basis for concluding that he
                 could more likely correctly recognize Freeman or indicate that it was not
                 Freeman in the video. See Rossana v. State, 113 Nev. 375, 380, 934 P.2d
                 1045, 1048 (1997) (providing a lay witness's opinion testimony "regarding
                 the identity of a person depicted in a surveillance photograph" is
                 admissible "if there is some basis for concluding that the witness is more
                 likely to correctly identify the defendant from the photograph than is the

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                jury." (internal quotation marks omitted)). However, the district court
                erred in permitting Detective Lorson to testify that, though the
                surveillance videos did not depict Freeman, the videos all depicted the
                same perpetrator. Detective Lorson's testimony did not establish that he
                had a reasonable basis to more likely correctly determine that the same
                perpetrator was shown in all three videos. However, the error did not
                affect Hover's substantial rights, see Nelson, 123 Nev. at 543, 170 P.3d at
                524, as there was substantial evidence besides this testimony which
                indicated that Hover robbed the three grocery stores.
                            Hover's admission to a correctional officer
                            Hover argues that the district court erred in admitting
                testimony about a statement he made to a corrections officer in violation of
                Miranda v. Arizona, 384 U.S. 436 (1966). We disagree. Hover was in
                custody when he admitted to slashing Ramirez. 5 See Taylor v. State, 114
                Nev. 1071, 1082, 968 P.2d 315, 323 (1998). However, the corrections
                officer's query about whether Hover had sustained injuries was not an
                "interrogation" under Miranda, in that it was not reasonably likely to
                elicit an incriminating response from Hover.    Rhode Island v. Innis, 446
                U.S. 291, 301 (1980). Therefore, the district court did not err in denying
                the motion to suppress.
                            Gruesome photographs
                            Hover contends that the district court erred in admitting
                unduly prejudicial autopsy photographs. He further contends that a


                      5Corrections Officer Roger Cole testified that he "asked [Hover] if he
                had any injuries and he state that, no. And then he told me that he had
                sliced the [Ramirez]'s back. [Ramirez] stood up, took the scissors from
                [Hover], and cut his hand."

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                   photograph depicting a feminine pad near the victim, which was
                   introduced during the penalty phase of trial, was inflammatory because it
                   suggests that he sodomized Contreras. We conclude that this claim lacks
                   merit. The district court enjoys broad discretion in matters related to the
                   admission of evidence, Byford v. State, 116 Nev. 215, 231, 994 P.2d 700,
                   711 (2000), including the admission of "photographs . . . as long as their
                   probative value is not substantially outweighed by their prejudicial effect,"
                   Libby v. State, 109 Nev. 905, 910, 859 P.2d 1050, 1054 (1993), vacated on
                   other grounds, 516 U.S. 1037 (1996). Although the autopsy photographs
                   are gruesome, they were relevant in that they assisted the medical
                   examiner in testifying about Contreras' cause of death, the manner in
                   which she received the injuries, and the condition of her body when it was
                   discovered. As to the photograph that was introduced during the penalty
                   phase of trial, Hover failed to show that the district court abused its
                   discretion. The district court concluded that the photograph was
                   admissible because it constituted physical evidence that corroborated the
                   testimony that Contreras was sodomized which "would have been even
                   more painful than sexual assault through intercourse vaginally." The
                   pain inflicted on Contreras during Hover's crimes against her was
                   relevant to establishing an aggravating circumstance alleged by the State.
                   See NRS 200.033(8).
                               Freeman's bad act evidence
                               Hover argues that the district court erred in denying him the
                   opportunity to introduce evidence that Freeman possessed child
                   pornography and had committed prior crimes involving knives because the
                   evidence could have shown that Freeman was more culpable in the sexual
                   assault and murder. We discern no abuse of discretion, see Ramet v. State,

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                   125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing district court's
                   decision to admit or exclude for an abuse of discretion), because evidence
                   that Freeman possessed child pornography or had committed other crimes
                   with knives was not admissible to prove or refute the allegation that
                   Hover sexually assaulted Contreras, see NRS 48.045(2) ("Evidence of other
                   crimes, wrongs or acts is not admissible to prove the character of a person
                   in order to show that the person acted in conformity therewith.").
                               Insufficient evidence of kidnapping for Julio Romero
                               Hover argues that the State failed to produce sufficient
                   evidence to support his conviction for kidnapping Julio Romero because
                   there was no evidence that Julio had been moved for any purpose beyond
                   the completion of the robbery and therefore the kidnapping was merely
                   incidental to the robbery. We disagree. The evidence established that
                   Hover moved Julio from the front door to another bedroom where he was
                   taped to a chair and shot. Hover had taken Julio's wallet from the
                   kitchen, but no evidence suggests that anything of value was taken from
                   the bedroom in which Julio was found. Therefore, the movement was not
                   necessary to complete the robbery.    See Mendoza v. State, 122 Nev. 267,
                   275, 130 P.3d 176, 181 (2006) (explaining that to be a separate crime when
                   arising from the same conduct as a robbery, a kidnapping must involve (1)
                   "movement or restraint [that has] independent significance from the act of
                   robbery itself," (2) "create a risk of danger to the victim substantially
                   exceeding that necessarily present in the crime of robbery," or (3) "involve
                   movement, seizure or restraint substantially in excess of that necessary to
                   its completion"); see also Wright v. State, 94 Nev. 415, 418, 581 P.2d 442,
                   444 (1978) (setting aside a kidnapping conviction because "the movement
                   of the victims appear[ed] to have been incidental to the robbery and

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                without an increase in danger to them"), modified on other grounds by
                Mendoza, 122 Nev. at 274, 130 P.3d at 181. Further, Hover's statements
                to his cellmate indicated that Julio was bound and murdered before Hover
                searched the home for valuables. Because the restraint had an
                "independent significance from the act of robbery," Mendoza, 122 Nev. at
                276, 130 P.3d at 181, and the evidence satisfies the elements of
                kidnapping, see NRS 200.310(1), sufficient evidence supports Hover's
                conviction for kidnapping.    See Jackson v. Virginia, 443 U.S. 307, 319
                (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
                            Brady/ Giglio evidence
                            Hover contends that the State failed to disclose evidence
                related to whether Ramirez received a benefit for his testimony in
                violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
                States, 405 U.S. 150 (1972). We disagree. Nothing in the record suggests
                that Ramirez's guilty plea agreement or sentence was premised on any
                benefit from the State in exchange for his testimony at Hover's trial.
                Therefore, the district court did not err in denying this claim. See Mazzan
                v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000) (employing de novo
                standard of review for Brady challenges raised in the district court).
                            Prosecutorial misconduct
                            Hover identifies two arguments by the prosecutor that he
                contends constitute prosecutorial misconduct. Prejudice from
                prosecutorial misconduct results when "a prosecutor's statements so
                infected the proceedings with unfairness as to make the results a denial of
                due process." Thomas v. State (Thomas I), 120 Nev. 37, 47, 83 P.3d 818,
                825 (2004). The challenged comments must be considered in context and
                "a criminal conviction is not to be lightly overturned on the basis of a

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                prosecutor's comments standing alone."        Hernandez v. State, 118 Nev.
                513, 525, 50 P.3d 1100, 1108 (2002) (quoting United States v. Young, 470
                U.S. 1, 11 (1985)). Because Hover failed to object, his claims are reviewed
                for plain error affecting his substantial rights.   See NRS 178.602; Gallego,
                117 Nev. at 365, 23 P.3d at 239.
                            First, Hover contends that the State's argument that Hover
                committed the crimes as a result of racial animus was not supported by
                the evidence. See Rice v. State, 113 Nev. 1300, 1312, 949 P.2d 262, 270
                (1997) (noting that a prosecutor has a duty to refrain from making
                statements that cannot be proved at trial), abrogated on other grounds by
                Rosas v. State, 122 Nev. 1258, 1265 n.10, 147 P.3d 1101, 1106 n.10 (2006).
                We disagree. Evidence introduced at trial showed that Hover told
                Ramirez that he "killed some Mexicans." Further, the evidence clearly
                demonstrates that Hover levied his most violent actions against Latino
                victims. Therefore, he failed to demonstrate that the district court plainly
                erred.
                            Second, Hover argues that the State impermissibly shifted the
                burden of proof when it argued that "[t]he only person who doesn't believe
                that—or doesn't state that Gregory Hover is guilty of Count 31 is [defense
                counsel] Christopher Oram." We disagree. When read in context, the
                challenged comment contends that, given the consistent accounts from
                Ramirez, the officers on the scene of the jail assault, and Hover's own
                admission, it was not unreasonable for the correctional officers to decide
                not to collect video of the incident. Thus, the observation that defense
                counsel was the only individual who. believed it was necessary to obtain
                the video was a proper response to Hover's argument that there was
                insufficient evidence to convict because prison staff failed to collect video

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                         evidence.   See Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005)
                         (requiring that prosecutor's comments must be considered in context in
                         which they were made). While the comment could also be taken as
                         disparaging of the defense's argument, see Butler v. State, 120 Nev. 879,
                         898, 102 P.3d 71, 84 (2004) (providing that a prosecutor may not disparage
                         legitimate defense tactics), it did not shift the burden of proof. Therefore,
                         Hover failed to demonstrate that the district court plainly erred.
                                     Juror misconduct
                                     Hover argues that the district court erred in denying his
                         motion for a mistrial based on juror misconduct. He asserts that removing
                         the offending juror was not sufficient to address the misconduct. We
                         discern no abuse of discretion. See Viray v. State, 121 Nev. 159, 164, 111
                         P.3d 1079, 1083(2005) (recognizing district court's discretion to address
                         juror misconduct); Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 447, 455
                         (2003) (providing that a defendant must establish that juror misconduct
                         occurred and was prejudicial in order to prevail on a motion for mistrial).
                         Juror 8 engaged in misconduct by conducting research on the proceedings
                         and contesting the district court's instruction on the law. See Valdez, 124
                         Nev. at 1186, 196 P.3d at 475 ("A jury's failure to follow a district court's
                         instruction is intrinsic juror misconduct."); see also Meyer, 119 Nev. at 565,
                         80 P.3d at 456 ("[O]nly in extreme circumstances will intrinsic misconduct
                         justify a new trial."). However, the jury did not permit juror 8 to share the
                         results of his research and quickly informed the court of his actions. No
                         other juror learned the results of that research. Therefore, Hover failed to
                         demonstrate a "reasonable probability• or likelihood that the juror
                         misconduct affected the verdict." Meyer, 119 Nev. at 564, 80 P.3d at 455;
                         see also Zana v. State, 125 Nev. 541, 548, 216 P.3d 244, 248 (2009) (noting

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                that court should consider (1) how long the jury discussed the extrinsic
                evidence, (2) when the discussion occurred relative to the verdict, (3) the
                specificity or ambiguity of the information, and (4) whether the issue
                involved was material).
                            Jury instructions
                            Hover contends that the district court erred in giving several
                instructions during the guilt phase of trial. Specifically, he contends that
                the implied malice instruction does not use language a reasonable juror
                would understand, the premeditation instruction does not sufficiently
                differentiate the elements of first- and second-degree murder, the equal
                and exact justice instruction confused the jury, and the reasonable doubt
                instruction impermissibly minimized the burden of proof. We discern no
                abuse of discretion.   See Crawford v. State, 121 Nev. 744, 748, 121 P.3d
                582, 585 (2005) (noting district court's broad discretion to settle jury
                instructions). This court has upheld the language used in the implied
                malice instruction, see Leonard v. State, 117 Nev. 53, 78-79, 17 P.3d 367,
                413 (2001) (the statutory language of implied malice is well established in
                Nevada and accurately informs the jury of the distinction between express
                and implied malice); Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 483
                (2000) (the substitution of the word "may" for "shall" in an implied malice
                instruction is preferable because it eliminates the mandatory
                presumption); the premeditation instruction, see Byford v. State, 116 Nev.
                215, 236-37, 994 P.2d 700, 714-15 (2000); and the equal and exact justice
                instruction, see Thomas v. State, 120 Nev. 37, 46, 83 P.3d 818, 824 (2004);
                Daniel v. State, 119 Nev. 498, 522, 78 P.3d 890, 906 (2003); Leonard v.
                State, 114 Nev. 1196, 1209, 969 P.2d 288, 296 (1998). In addition, the
                district court gave Nevada's statutory reasonable doubt instruction as set

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                forth in and mandated by NRS 175.211, and we have repeatedly upheld
                the constitutionality of that instruction.   See, e.g., Chambers v. State, 113
                Nev. 974, 982-83, 944 P.2d 805, 810 (1997); Evans v. State, 112 Nev. 1172,
                1191, 926 P.2d 265, 277 (1996); Lord v. State, 107 Nev. 28, 40, 806 P.2d
                548, 556 (1991), limited on other grounds by Summers v. State, 122 Nev.
                1326, 1331, 148 P.3d 778, 782 (2006).
                Penalty phase issues
                               Freeman's bad act evidence
                               Hover argues that the district court erred in denying him the
                opportunity to introduce evidence of Freeman's bad acts and upbringing to
                present a proportionality argument. We discern no abuse of discretion.
                See Ramet, 125 Nev. at 198, 209 P.3d at 269. As "[t]he focus of a capital
                penalty hearing is . . . [the defendant's] character, record, and the
                circumstances of the offense," evidence related to Freeman's upbringing
                and prior record were not relevant to determining Hover's sentence.       See
                Browning, 124 Nev. at 526, 188 P.3d at 67; see also NRS 48.025(2)
                ('Evidence which is not relevant is not admissible."). Further, the district
                court was not required to allow evidence related to Freeman's background
                because proportionality of sentences between similarly situated
                defendants is not constitutionally mandated.       See Pulley v. Harris, 465
                U.S. 37, 44 (1984) (rejecting claim that appellate court must review
                proportionality of a defendant's sentence against similarly situated
                defendants).
                               Testimony of Freeman's attorney
                               Hover contends that the district court erred in denying his
                request to introduce the testimony of Freeman's attorney to describe the
                terms of Freeman's guilty plea agreement. We disagree. Because

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                Freeman's guilty plea agreement was admitted into evidence during the
                penalty phase of trial, testimony about the contents of that agreement was
                not necessary. See NRS 48.035(2) ("Although relevant, evidence may be
                excluded if its probative value is substantially outweighed by
                considerations of undue delay, waste of time or needless presentation of
                cumulative evidence.").
                            Prosecutorial misconduct
                            Hover contends that the State engaged in several instances of
                prosecutorial misconduct during the penalty phase of trial.
                            First, Hover argues that the State improperly asserted that he
                had been stalking Contreras because there was no evidence supporting
                this statement. We disagree. Witnesses to whom Hover described the
                rape and murder of Contreras realized from his description of the events
                that he had been infatuated with her. As there was some evidence
                introduced at trial which supported the State's argument, see Rice, 113
                Nev. at 1312, 949 P.2d at 270 (noting prosecutor's duty to refrain from
                making statements that cannot be proved at trial), the district court did
                not abuse its discretion in overruling the objection to the comment.
                            Second, Hover contends that the State improperly implied
                that Hover intended to sexually assault Roberta but could not because he
                did not have time.° We disagree. The State's comment does not overtly
                suggest that Hover planned to sexually assault Roberta. Therefore, the
                district court did not plainly err in concluding that the statement was too


                       °During penalty phase opening arguments, the prosecutor stated
                that the evidence would show "why and how Roberta was shot and what
                was going to happen to her had that phone call from Mr. Freeman come
                into that home and caused the defendant to leave early."

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                   "amorphous" to imply a plan on Hover's part that was not borne out by the
                   evidence. See Patterson, 111 Nev. at 1530, 907 P.2d 987 (providing that
                   plain error must be "so unmistakable that it reveals itself by a casual
                   inspection of the record").
                               Third, Hover argues that the State improperly suggested that
                   Hover's disposal of a firearm before committing the charged crimes
                   indicated that he had committed other uncharged crimes. We disagree.
                   The State's argument is supported by evidence introduced at the penalty
                   hearing. In particular, witnesses testified that Hover had approached an
                   individual on whom he was supposed to serve process while brandishing a
                   firearm and Hover, Freeman, and Pamela Lindus had robbed an elderly
                   man at an ATM. Therefore, Hover failed to demonstrate that the district
                   court abused its discretion in overruling the objection.
                               Jury instructions
                               Hover argues that: (1) the instruction concerning weighing
                   aggravating and mitigating circumstances did not conform to the beyond-
                   a-reasonable-doubt standard of Johnson v. State, 118 Nev. 787, 802, 59
                   P.3d 450, 460 (2002); the "moral culpability" language in the instruction
                   defining mitigating circumstances was not broad enough to define
                   mitigating circumstances; and the instructions failed to define "felony
                   involving the use or threat of violence to the person of another." Hover did
                   not object to the instructions below and we conclude that the district court
                   did not plainly err in instructing the jury.   See Valdez, 129 Nev. at 1190,
                   196 P.3d at 477 (reviewing unobjected-to error for plain error affecting
                   substantial rights). As to the weighing of aggravating and mitigating
                   circumstances, the instruction here comports with our decision in Nunnery
                   v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 253 (2011), that the

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                 weighing of aggravating and mitigating circumstances is not a factual
                 determination and thus it is not subject to the proof beyond a reasonable
                 doubt standard. As for the "moral culpability" language in the mitigation
                 instruction, considering the instruction as a whole we are not convinced
                 that the jury was reasonably likely to understand the instruction to limit
                 its ability to consider "any aspect of [the defendant's] character or record
                 as a mitigating circumstance regardless of whether it reflected on his
                 moral culpability," Watson, 130 Nev., -Adv. Op. No. 76, 335 P.3d at 173,
                 particularly where one or more of the jurors found many mitigating
                 circumstances that related to Hover's background and character and were
                 unrelated to the crime. And lastly, the phrase "felony involving the use or
                 threat of violence" does not use words with "technical legal meaning" and
                 is commonly understood; it therefore needed no further definition.       See
                 Dawes v. State, 110 Nev. 1141, 1146, 881 P.2d 670, 673 (1994).
                             Constitutionality of the death penalty
                             Hover argues that the death penalty violates the Eighth
                 Amendment of the United States Constitution's prohibition against cruel
                 and unusual punishment because it does not sufficiently narrow the class
                 of persons eligible for the death penalty. He further contends that the
                 death penalty is cruel and therefore violates the Nevada Constitution's
                 prohibition against cruel or unusual punishments. Similar arguments
                 have been previously rejected by this court.     See, e.g., Thomas v. State
                 (Thomas II),    122 Nev. 1361, 1373, 148 P.3d 727, 735-36 (2006)
                 (reaffirming that Nevada's death penalty statutes sufficiently narrow the
                 class of persons eligible for the death penalty); Colwell v. State, 112 Nev.
                 807, 814-15, 919 P.2d 403, 408 (1996) (rejecting claims that Nevada's



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                       death penalty scheme violates the United States or Nevada Constitutions).
                       Therefore, no relief is warranted on this claim.
                       Cumulative error
                                   Hover contends that the cumulative effect of errors warrants
                       reversal of his convictions and sentences. "The cumulative effect of the
                       errors may violate a defendant's constitutional right to a fair trial even
                       though errors are harmless individually." Hernandez, 118 Nev. at 535, 50
                       P.3d at 1115. 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). Based on the foregoing discussion of Hover's claims, we conclude
                       that any error in this case, when considered either individually or
                       cumulatively, does not warrant relief.
                       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 arbitrary factor, and (3) the death
                       sentence is excessive. First, sufficient evidence supported the aggravating
                       circumstances found regarding each murder—Hover had been convicted of
                       more than one count of murder; Hover had been convicted of numerous
                       crimes involving the use or threat of violence; Contreras' murder occurred
                       in the flight after Hover committed burglary while in possession of a
                       firearm, first-degree kidnapping with the use of a deadly weapon, and
                       robbery with the use of a deadly weapon; Hover subjected Contreras to
                       nonconsensual sexual penetration before he murdered her; Hover
                       mutilated Contreras' body after killing her; Julio's murder occurred during
                       or in the flight after Hover committed burglary while in possession of a

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                firearm, robbery with the use of a deadly weapon, and first-degree
                kidnapping with the use of a deadly weapon; and Julio was murdered to
                prevent Hover's arrest. 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 plethora of violent crimes
                Hover committed during his two-week spree, which included kidnapping,
                rape, armed robbery, burglary, two murders, and attempted murder and
                the evidence in mitigation, we conclude that his sentence was not
                excessive.
                               Having considered Hover's contentions and concluded that
                they lack merit, we
                               ORDER the judgment of conviction AFFIRMED.



                  OLAfi-                     , C.J.             /--Let-trn     ,          J.
                Parraguirtir       i                         Hardest


                                                                                          J.
                Douglas                                      Saitta


                                                                       '
                                                                 Reid/lay                 J.
                Gibbons                                      Pickering


                CHERRY, J., dissenting:
                               In my view, the district court abused its discretion in denying
                Hover's motion for transportation to undergo medical imaging. And I
                agree with the majority that the district court erred in limiting the cross-
                examination of the DNA analyst, permitting Detective Karl Lorson to
                testify that the surveillance videos depicted the same perpetrator, and

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                allowing the State to impermissibly "remove the sting" of its own witness'
                prior conviction, but in contrast, I believe those errors affected Hover's
                substantial rights. I therefore dissent.
                Medical imaging
                            The district court must order payments of reasonable amounts
                for expert services incidental to an indigent defendant's defense when
                those services are "proper and necessary."     State v. Second Jud. District
                Court, 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969). For instance,
                            when a defendant demonstrates to the trial judge
                            that his sanity at the time of the offense is to be a
                            significant factor at trial, the State must, at a
                            minimum, assure the defendant access to a
                            competent psychiatrist who will conduct an
                            appropriate examination and assist in the
                            evaluation, preparation, and presentation of the
                            defense.
                Ake v. Oklahoma, 470 U.S. 68, 83 (1985). Attendant to this obligation is to
                provide for medical testing, including imaging, that is necessary to assist
                the psychiatrist in preparing a defense. Accordingly, I disagree with the
                majority's conclusionS that the district court did not abuse its discretion in
                denying the motion for medical imaging to assist in preparing Hover's
                defense. Hover's motion indicated that funding was available. As the
                district court did not have a significant interest in assuring that funding
                for indigent defendants' court-appointed expenses were protected, the
                defense's failure to file a more robust pleading detailing why the expenses
                were necessary and proper should not have proved fatal. Further, I am
                not convinced that appellate counsel's argument that the district court
                failed to order a PET scan (when an MRI scan was requested below)
                should significantly undermine Hover's assertion of error on appeal. Both
                scans are routinely used to diagnose neurological conditions.       See Mayo
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                Clinic Staff, Tests and Procedures, MRI, Definition (August 17, 2013),
                available at      http: / / www.mavoclinic.org / tests-procedures / mri / basics /

                definition/pre-20012.903; Mayo Clinic Staff, Tests and Procedures,
                Positron emission tomography (PET) scan, Definition (May 6, 2014)
                available at http://www.mayoelinic.org/tests-procedures/petscan/basics/
                definition / prc- 20014301. Counsel's failure to recognize a meaningful
                distinction between the procedures that are outside counsel's area of
                expertise should not preclude this court from meaningfully reviewing the
                district court's order.
                             Moreover, I cannot say that the error in denying this motion
                was harmless. The record does not indicate that Hover had a significant
                criminal history prior to the instant offenses. Although he had abused
                drugs several years before the instant offenses, the record reveals no prior
                crimes of violence. Shortly before the instant spree, Hover's wife reported
                that he began behaving bizarrely and she urged him to seek professional
                help. He then engaged in repeated and seemingly out-of-character
                episodes of brutal and callous violence. In light of this evidence, I cannot
                say that the failure to permit this testing did not have a "substantial and
                injurious effect or influence in determining the jury's verdict" or sentence.
                Knipes v. State, 124 Nev. 927, 935, 192 P.3d 1178, 1183 (2008) (quotation
                marks and citations omitted). As this psychological evidence could
                undermine evidence related to Hover's ability to premeditate and
                deliberate as well as mitigate his conduct, I would reverse his convictions
                for first-degree murder (Counts 9 and 21), attempted murder (Count 25),
                and his death sentences.
                DNA analyst



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                              I agree with the majority that the district court abused its
                  discretion in prohibiting the proposed cross-examination of the State's
                  DNA analyst. However, I disagree with the majority's conclusion that the
                  error did not contribute to the verdict beyond a reasonable doubt.      See
                  Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008) ("If the
                  error is of constitutional dimension, then . . . [this court] will reverse
                  unless [it is shown], beyond a reasonable doubt, that the error did not
                  contribute to the verdict."). The expert's testimony that both Hover and
                  Contreras' DNA was present on a condom found at the crime scene was
                  the most decisive evidence of Hover's involvement in Contreras' rape and
                  murder. See Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557
                  U.S. 52, 62 (2009) ("Modern DNA testing can provide powerful new
                  evidence unlike anything known before."); see also Kimberly Cogdell Boles,
                  Misuse of DNA Evidence is not Always a "Harmless Error": DNA Evidence,
                  Prosecutorial Misconduct, and Wrongful Conviction, 17 Tex. Wesleyan L.
                  Rev. 403, 406-07 (2011) (providing that "juries are more likely to convict
                  when the prosecution presents DNA evidence," despite the fact that "DNA
                  has the same likelihood for human error as do other types of evidence"
                  (citations omitted)). Although there was other evidence presented that
                  supported the verdicts, it was not nearly as powerful as the unchallenged
                  DNA evidence. For example, the cell tower location evidence could not
                  pinpoint Hover's location at the time of the murder, nor could it even
                  indicate that the tower Hover's call routed through was the closest to him.
                  See Alexandra Wells, Ping! The Admissibility of Cellular Records to Track
                  Criminal Defendants, 33 St. Louis U. Pub. L. Rev, 487, 494 (2014) (noting
                  that "cell signals go to the tower with the strongest signal, which is not
                  always the cell tower geographically closest to the cell phone"). And

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                      Hover's jailhouse confession must be viewed with suspicion, not solely
                      because it is testimony of a jailhouse informant, see Russell D. Covey,
                      Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375,
                      1376-77 (2014) ("[N]o evidence is more intrinsically untrustworthy than
                      the allegations of a jailhouse snitch:), but also because the informant was
                      the victim of one of Hover's alleged crimes. The remaining evidence,
                      which consisted of surveillance video showing similar cars, physical
                      evidence that implicated Richard Freeman, a cryptic comment by Hover
                      about a dream, and surveillance video showing Freeman and Hover
                      making purchases at Wal-Mart, was not so powerful that the
                      unchallenged DNA evidence did not contribute to the verdicts on
                      Contreras' sexual assault and death. Accordingly, I would reverse Hover's
                      convictions for conspiracy to commit kidnapping, robbery, sexual assault,
                      and murder (Counts 1 through 4); burglary while in possession of a deadly
                      weapon (Count 5); first-degree kidnapping with the use of a deadly
                      weapon (Count 6); robbery with the use of a deadly weapon (Count 7);
                      sexual assault with the use of a deadly weapon (Count 8); murder with the
                      use of a deadly weapon (Count 9); and first-degree arson (Count 10).
                      Identification from surveillance videos and improper impeachment
                                  I agree with the majority that the district court erred in
                      permitting Detective Lorson to testify, based on his observation of the
                      surveillance videos, that the perpetrator of the robberies was the same
                      individual and that the State improperly "removed the sting" of
                      impeachment from Pamela Lindus' testimony by introducing the facts
                      underlying her conviction for child molestation. But in my opinion, the
                      prohibited identification affected Hover's substantial rights, see Nelson v.
                      State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007) (reviewing un-objected

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                 to error for plain error affecting substantial rights), and the improper
                 impeachment was not harmless, see Valdez, 124 Nev. at 1189, 196 P.3d at
                 476. Detective Lorson and Lindus provided the only testimony that
                 implicated Hover in the robbery of Tohme. Tohme could not identify
                 Hover as the perpetrator. Further, Hover's ex-wife, who had years to
                 observe him and had identified him as the perpetrator in the other
                 surveillance videos, could not identify him as the perpetrator of the
                 robbery and burglary. Therefore, it was likely that Detective Lorson's
                 testimony strongly influenced the jury's verdict on the charges related to
                 the Tohme incident.    See U.S. v. Gutierrez, 995 F.2d 169, 172 (9th Cir.
                 1993) (observing that expert testimony of a police officer may "carr[y] an
                 aura of special reliability and trustworthiness" (quotations omitted)). The
                 only remaining admissible evidence linking Hover to the Tohme robbery
                 was Lindus' testimony. In informing the jury that Lindus had engaged in
                 a prohibited sexual relationship betWeen two teenagers, the State clearly
                 cast Lindus and her testimony in a less objectionable light than it would
                 have been had jury been left with the mere fact that Lindus had been
                 convicted of child molestation. Therefore, I cannot conclude that inclusion
                 of unfairly bolstered testimony by Lindus and inadmissible identification
                 by Detective Lorson did not have an substantial effect on the jury's
                 verdicts of conspiracy to commit robbery (Count 28); burglary while in
                 possession of a firearm (Count 29); and robbery with the use of a deadly
                 weapon, victim 60 years of age or older (Count 30).
                             Consequently, I would reverse Hover's convictions relative to
                 the Contreras' kidnapping, sexual assault, and murder (Counts 1-10);




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                 Julio's murder (Count 21); Roberta's attempted murder (Count 25); the
                 Tohme robbery (Counts 28-30); and his death sentences.?



                                                           Cherry

                 cc: Hon. Carolyn Ellsworth, District Judge
                      Christopher R. Oram
                      Oronoz & Ericsson
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




                       7Ialso conclude that there was a reasonable likelihood that the jury
                 misunderstood the moral culpability language in the mitigating
                 circumstances instruction. See Watson v. State, 130 Nev., Adv. Op. 76, 335
                 P.3d 157, 176 (2014) (Cherry and Saitta, JJ., dissenting in part).
                 However, as I would reverse Hover's murder convictions, it is unnecessary
                 to address errors that occurred during the penalty hearing.


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