Case 2:15-cv-00618-RFB-DJA Document 39 Filed 08/26/23 Page 1 of 40
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Petitioner
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`HECTOR MIGUEL GONZALEZ,
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`v.
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`BRIAN WILLIAMS, et al.,
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`Respondents.
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`Case No.: 2:15-cv-00618-RFB-DJA
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`Order
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`This case is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Hector
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`Miguel Gonzalez, a Nevada prisoner. This case is before the Court for adjudication of the merits
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`of Gonzalez’s remaining grounds for relief. The Court denies Gonzalez’s petition, denies a
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`certificate of appealability, and directs the Clerk of the Court to enter judgment accordingly.
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`I.
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`BACKGROUND
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`Gonzalez’s convictions are the result of events that occurred on January 21, 2009, in Clark
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`County, Nevada. (ECF No. 14-7). In its order affirming Gonzalez’s convictions, the Nevada
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`Supreme Court described the crimes, as revealed by the evidence at Gonzalez’s trial, as follows:
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`Hector Gonzalez broke into the house where his wife Ana Gonzalez lived, and
`attacked Ana and his sister-in-law Elsie Serpas with a knife. Hector stabbed Ana in
`the neck and Elsie in the hand. He threatened more violence if they called the police
`but later allowed Elsie to call 911, telling her to only ask for an ambulance, not the
`police. After Elsie called 911, Hector stayed at the scene until the police responded.
`At the time of the attack, Ana had an extended protective order against Hector.
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`(ECF No. 16-5).
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`On May 7, 2010, a jury convicted Gonzalez of count 2: burglary while in possession of a
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`deadly weapon in violation of a court order; count 4: battery constituting domestic violence with
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`the use of a deadly weapon resulting in substantial bodily harm while in violation of a court order;
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`count 5: battery constituting domestic violence with the use of a deadly weapon in violation of a
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`court order; count 6: coercion with the use of a deadly weapon in violation of a court order; and
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`count 8: preventing or dissuading a victim or witness from reporting a crime, commencing a
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`prosecution, or causing an arrest. (ECF No. 15-5.) The state district court sentenced Gonzalez as
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`follows: count 2: 26 to 120 months, with a consecutive term of 12 to 60 months for the deadly
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`weapon enhancement; count 4: 48 to 120 months, with a consecutive term of 12 to 60 months for
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`the deadly weapon enhancement, concurrent with count 2; count 5: 24 to 72 months, with a
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`consecutive term of 12 to 60 months for the deadly weapon enhancement, consecutive to count 4;
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`count 6: 12 to 48 months, with a consecutive term of 12 to 48 months for the deadly weapon
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`enhancement, concurrent with count 5; and count 8: 12 to 38 months, concurrent with count 5.
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`(ECF No. 16-3). The Nevada Supreme Court affirmed Gonzalez’s convictions on February 24,
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`2012. (ECF No. 16-5).
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`Gonzalez filed a petition for a writ of habeas corpus (post-conviction) in state district court.
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`(ECF No. 16-7). Gonzalez’s counsel filed a supplemental points and authorities in support of the
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`petition. (ECF No. 16-9). An evidentiary hearing was held on Gonzalez’s petition. (ECF No. 16-
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`13). The state district court denied the petition. (ECF No. 16-14.) The Nevada Supreme Court
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`affirmed the denial of Gonzalez’s petition. (ECF No. 16-17.)
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`Gonzalez dispatched his federal habeas petition for filing on or about April 1, 2015. (ECF
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`No. 10). Gonzalez’s petition asserts that his federal constitutional rights were violated due to the
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`following alleged violations:
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`The state district court failed to bifurcate the proceedings.
`Double jeopardy and redundancy principles prohibit his multiple
`convictions arising from a single course of conduct.
`The state district court erred by admitting hearsay evidence.
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`The State committed misconduct during closing argument.
`The state district court erred by refusing to proffer a “reverse flight”
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`There was insufficient evidence to convict him.
`There were cumulative errors.
`His trial counsel was ineffective:
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`His trial counsel failed to do necessary investigations and to
`consult necessary experts.
`His trial counsel failed to file numerous pretrial motions.
`His trial counsel failed to file a motion to dismiss the
`indictment when the State violated Marcum.
`His trial counsel failed to file a motion to bifurcate the
`sentence enhancement.
`His trial counsel failed to file a motion in limine to exclude
`bad act evidence.
`His trial counsel failed to file a motion challenging the
`voluntariness of his statement.
`His trial counsel failed to file a motion for psychiatric
`examination of the victim.
`His trial counsel failed to object to prosecutorial misconduct.
`There were cumulative errors.
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`b.
`c.
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`d.
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`e.
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`f.
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`g.
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`9.
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`Id. The Respondents filed a motion to dismiss Gonzalez’s petition. (ECF No. 13). Gonzalez filed
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`a response. (ECF No. 19). On March 31, 2017, this Court granted the Respondents’ motion to
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`dismiss in part: it found that Grounds 5 and 9 were unexhausted and Grounds 3 and 10 were
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`dismissed. (ECF No. 20.). This court also granted Gonzalez’s previous request for the appointment
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`of counsel. Id. Gonzalez abandoned Grounds 5 and 9. (ECF No. 22). The Respondents filed an
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`answer to Gonzalez’s petition on August 22, 2017. (ECF No. 25). Gonzalez filed a reply on March
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`20, 2018. (ECF No. 32).
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`II.
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`STANDARD OF REVIEW
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`28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas
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`corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):
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`An application for a writ of habeas corpus on behalf of a person in custody pursuant
`to the judgment of a State court shall not be granted with respect to any claim that
`was adjudicated on the merits in State court proceedings unless the adjudication of
`the claim --
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`(1) resulted in a decision that was contrary to, or involved an unreasonable
`application of, clearly established Federal law, as determined by the
`Supreme Court of the United States; or
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`(2) resulted in a decision that was based on an unreasonable determination of
`the facts in light of the evidence presented in the State court proceeding.
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` state court decision is contrary to clearly established Supreme Court precedent, within the
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`meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law
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`set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are
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`materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538
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`U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v.
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`Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly
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`established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state
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`court identifies the correct governing legal principle from [the Supreme] Court’s decisions but
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`unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75 (quoting
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`Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires the state court
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`decision to be more than incorrect or erroneous. The state court’s application of clearly
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`established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10)
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`(internal citation omitted).
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`The Supreme Court has instructed that “[a] state court’s determination that a claim lacks
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`merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
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`correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
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`Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has stated “that even a
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`strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
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`at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
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`(describing the standard as a “difficult to meet” and “highly deferential standard for evaluating
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`state-court rulings, which demands that state-court decisions be given the benefit of the doubt”
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`(internal quotation marks and citations omitted)).
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`III. DISCUSSION
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`A.
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`Ground 1
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`In Ground 1, Gonzalez claims that his federal constitutional rights were violated when the
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`state district court failed to bifurcate the sentencing enhancement issue, or, alternatively, failed to
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`give a limiting instruction. (ECF No. 10 at 3, 7.) Specifically, Gonzalez asserts that the admission
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`of the extended protective order allowed the jury to infer that he engaged in prior criminal
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`activities. Id. at 3-4. Gonzalez explains that the jurors should have been asked to return verdicts
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`on the underlying charges before adjudicating the issue of whether he committed the offenses in
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`violation of a court order. Id. at 5. In addition to allowing the jury to infer that he had a propensity
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`towards violence, Gonzalez argues that the extended protective order also allowed the jury to infer
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`that he had a drinking problem, as it mandated that when the children were in his care, no alcohol
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`was to be consumed. (ECF No. 32 at 18). The Respondents argue that the protective order was not
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`admitted to prove Gonzalez’s character; rather, it was evidence that helped prove an element of
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`the charged offenses. (ECF No. 25 at 7).
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`On Gonzalez’s direct appeal, the Nevada Supreme Court held:
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`Because Hector failed to request that the district court bifurcate the sentence
`enhancement for violation of a court order, he failed to preserve this issue for
`appellate review. See Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403 (2001).
`We review unpreserved issues for plain error. Id. Under a plain error review, we
`will “consider whether error exists, if the error was plain or clear, and if the error
`affected the defendant’s substantial rights.” Calvin v. State, 122 Nev. 1178, 1184,
`147 P.3d 1097, 1101 (2006). The defendant must show actual prejudice. Id.
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`Hector is unable to show actual prejudice by the district court’s failure to
`sua sponte bifurcate the proceedings. Hector argues that the protective order creates
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`an inference that he has committed some prior unspecified act of criminal
`misconduct. However, an inference is not enough to show actual prejudice. The
`evidence of the protective order was offered to help prove an element of six of
`Hector’s eight charged offenses, and the State has to prove each element of each
`offense. Thus, the district court’s decision not to bifurcate the proceedings does not
`amount to plain error. [Footnote 2: Hector also contends that the district court
`should have provided a limiting instruction when admitting the protective order.
`However, the protective order was not admitted to prove Hector’s character, but
`rather to prove an element of the charges against him. Thus, the district court did
`not err in failing to provide a limiting instruction. See Mclellan v. State, 124 Nev.
`263, 269, 182 P.3d 106, 110 (2008)].
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`(ECF No. 16-5).
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`Gonzalez’s wife, Ana Gonzalez, filed for a temporary protective order from Gonzalez.
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`(ECF No. 33-4). The temporary protective order was granted by the District Court, Family
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`Division, Clark County, Nevada on December 29, 2008. Id. The order was later extended until
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`January 14, 2010. Id. The temporary protective order and the extended protective order were
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`admitted at Gonzalez’s trial. See id.
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`Contrary to Gonzalez’s assertions, bifurcated trials “have never been compelled by th[e
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`Supreme Court] as a matter of constitutional law.” Spencer v. Texas, 385 U.S. 554, 568 (1967)
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`(“Two-part jury trials are rare in our jurisprudence.”). Moreover, “[u]nder AEDPA, even clearly
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`erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant
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`of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,’ as laid out by
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`the Supreme Court.” Yarborough, 568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see also Dowling
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`v. United States, 493 U.S. 342, 352 (1990) (explaining that the Supreme Court has “defined the
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`category of infractions that violate ‘fundamental fairness’ very narrowly”). Importantly, the
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`Supreme Court has declined to hold that evidence of other crimes or bad acts “so infused the trial
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`with unfairness as to deny due process of law.” Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991)
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`(explaining that it “express[es] no opinion on whether a state law would violate the Due Process
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`Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged
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`crime”); see also Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (concluding that the state
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`court had not acted objectively unreasonably in determining that the propensity evidence
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`introduced against the defendant did not violate his due process rights); Garceau v. Woodford, 275
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`F.3d 769, 774 (9th Cir. 2001), rev’d on other grounds, 538 U.S. 202 (2003) (“The Supreme Court
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`has never expressly held that it violates due process to admit other crimes evidence for the purpose
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`of showing conduct in conformity therewith.”); Mejia v. Garcia, 534 F.3d 1036, 1047 (9th Cir.
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`2008) (“[T]he United States Supreme Court has never established the principle that introduction
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`of evidence of uncharged offenses necessarily must offend due process.”).
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`In order to support his argument that a limiting instruction should have been provided by
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`the state district court, Gonzalez points to Spencer. Indeed, in Spencer, the Supreme Court held
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`that it is not a violation of due process to admit other crimes evidence, for purposes other than to
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`show conduct in conformity therewith, so long as the jury is given a limiting instruction “that it
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`should not consider the prior conviction as any evidence of the defendant’s guilt on the charge on
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`which he was being tried.” 385 U.S. at 563-64; see also Richardson v. Marsh, 481 U.S. 200, 207
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`(1987) (explaining that in Spencer the Supreme Court “held that evidence of the defendant’s prior
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`criminal convictions could be introduced for the purpose of sentence enhancement, so long as the
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`jury was instructed it could not be used for purposes of determining guilt”). However, a temporary
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`protective order is not a conviction. See Nev. Rev. Stat. § 33.020. Additionally, it is worth noting
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`that the jury was instructed to determine whether Gonzalez violated the protective order only if
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`they determined that he was guilty of count one, two, three, four, five and/or six. (ECF No. 15-4
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`at 31 (“If you find the Defendant guilty of count one, two, three, four, five and/or six, you must
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`also determine whether or not the crimes alleged were committed after the Defendant had been
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`served with a temporary or extended order for protection against domestic violence issued by the
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`District Court, Family Division, of the State of Nevada, in and for the County of Clark, in Case
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`No. T08113976T, dated December 16, 2008.”)).
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`Therefore, the Nevada Supreme Court’s ruling was not contrary to, or an unreasonable
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`application of, clearly established federal law, as determined by the Supreme Court, and was not
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`based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. §
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`2254(d). The Court will deny Gonzalez habeas corpus relief with respect to Ground 1.
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`B.
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`Ground 2
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`In Ground 2, Gonzalez claims that his federal constitutional rights were violated when he
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`was convicted of multiple crimes arising from the same course of conduct in violation of the
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`Double Jeopardy Clause. (ECF No. 10 at 9). Gonzalez explains that two of his convictions,
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`coercion and dissuading a witness, were based on the same alleged conduct: threatening Elsie if
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`she called the police. Id. at 9, 10. Gonzalez also explains that he could not have committed one
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`offense, dissuading a witness, without committing the other offense, coercion. Id. at 10.
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`On Gonzalez’s direct appeal, the Nevada Supreme Court held:
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`The Double Jeopardy Clause of the Fifth Amendment prohibits multiple
`punishments for the same offense. U.S. Const. amend. V; Salazar v. State, 119 Nev.
`224, 227, 70 P.3d 749, 751 (2003). Nevada utilizes the test set forth in Blockburger
`v. United States, 284 U.S. 299 (1932), to determine the constitutionality of multiple
`convictions for the same act or transaction. Salazar, 119 Nev. at 227, 70 P.3d at
`751. Under Blockburger, “‘if the elements of one offense are entirely included
`within the elements of a second offense, the first offense is a lesser included offense
`and the Double Jeopardy Clause prohibits a conviction for both offenses.’” Id.
`(quoting Williams v. State, 118 Nev. 536, 548, 50 P.3d 1116, 1124 (2002), cert.
`denied, 537 U.S. 1031 (2002)). “The general test for determining the existence of a
`lesser included offense is whether the offense in question ‘cannot be committed
`without committing the lesser offense.’” McIntosh v. State, 113 Nev. 224, 226, 932
`P.2d 1072, 1073 (1997) (quoting Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592,
`594 (1966)).
`Convictions are redundant when “‘a defendant is convicted of [multiple]
`offenses that, as charged, punish the exact same illegal act.’” Salazar, 119 Nev. at
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`228, 70 P.3d at 751 (quoting State of Nevada v. Dist. Ct., 116 Nev. 127, 136, 994
`P.2d 692, 698 (2000)). In determining if two convictions are redundant, this court
`must consider “whether the material or significant part of each charge is the same
`even if the offenses are not the same.” Id. at 227-28, 70 P.3d at 751.
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`NRS 199.305 provides that a person commits the crime of preventing or
`dissuading a witness when, through intimidation or threats, he or she prevents,
`dissuades, or delays a victim of a crime, a person acting on behalf of a victim, or a
`witness from reporting a crime or possible crime. A person is guilty of coercion
`when, through the use of violence, through the use of threatened violence, or
`through depriving the person of any tool, implement, or clothing, he or she
`intentionally compels another to do or abstain from doing an act which another
`person has the right to do or abstain from doing. NRS 207.190.
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`Hector’s convictions for dissuading a witness and coercion do not violate
`the Double Jeopardy Clause. Coercion is not a lesser offense of dissuading a
`witness because one can be guilty of coercion through depriving a “person of any
`tool, implement or clothing, or hinder[ing] the person in the use thereof,” but such
`deprivation would not necessarily be enough to achieve the intimidation or threat
`necessary for a person to be guilty of dissuading a witness. See NRS 199.305; NRS
`207.190(1)(b). Dissuading a witness is not a lesser offense of coercion because a
`person can be guilty of dissuading a witness by delaying the person from action;
`whereas, for a person to be guilty of coercion, he or she must intentionally compel
`another to act or to abstain from acting, not just delay the person from acting. See
`NRS 199.305; NRS 207.190. As an individual can commit either crime without
`committing the other, neither is a lesser included offense of the other.
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`It is not clear whether the two charges stem from one single act of
`threatening Elsie or if they stem from more than one threat or act of intimidation.
`The jury could have found that Hector intentionally threatened Elsie so that she
`would not call the police but also threatened Elsie with the hope that it would delay
`her reporting the crime. This is especially plausible since he originally would not
`allow her to call 911 and then allowed her to call 911 but told her to ask for only
`the paramedics and not the police. However, if the same conduct is the basis for the
`conviction it does not mean that the convictions are redundant. Salazar, 119 Nev.
`at 227, 70 P.3d at 751. Here, the two convictions are not redundant as there is no
`evidence that the Legislature did not intend to punish them separately. Thus,
`Hector’s convictions for coercion and dissuading a witness do not violate the
`Double Jeopardy Clause and are not redundant.
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`(ECF No. 16-5 at 5-7).
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`Gonzalez was convicted of coercion and preventing or dissuading a victim or witness from
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`reporting a crime, commencing a prosecution, or causing an arrest. (ECF No. 15-5 at 3-4).
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`Coercion is defined as follows:
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`It is unlawful for a person, with the intent to compel another to do or abstain from
`doing an act which the other person has a right to do or abstain from doing, to:
`(a) Use violence or inflict injury upon the other person or any of the other
`person’s family, or upon the other person’s property, or threaten such
`violence or injury;
`(b) Deprive the person of any tool, implement or clothing, or hinder the
`person in the use thereof; or
`(c) Attempt to intimidate the person by threats or force.
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`Nev. Rev. Stat. § 207.190(1). And preventing or dissuading a victim or witness from reporting a
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`crime, commencing a prosecution, or causing an arrest is defined as:
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`A person who, by intimidation or threatening another person, prevents or dissuades
`a victim of a crime, a person acting on behalf of the victim or a witness from:
`(a) Reporting a crime or possible crime to a:
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`(1) Judge;
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`(2) Peace officer;
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`(3) Parole or probation officer;
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`(4) Prosecuting attorney;
`(5) Warden or other employee at an institution of the Department of
`Corrections; or
`(6) Superintendent or other employee at a juvenile correctional
`institution;
`(b) Commencing a criminal prosecution or a proceeding for the revocation
`of a parole or probation, or seeking or assisting in such a prosecution or
`proceeding; or
`(c) Causing the arrest of a person in connection with a crime,
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`or who hinders or delays such a victim, agent or witness in an effort to carry out
`any of those actions is guilty of a category D felony and shall be punished as
`provided in NRS 193.130.
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`Nev. Rev. Stat. § 199.305(1).
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`The Fifth Amendment’s Double Jeopardy Clause prohibits multiple punishments for the
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`same offense. U.S. Const. amend. V. The Double Jeopardy Clause provides three related
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`protections: (1) it prohibits a second prosecution for the same offense after acquittal; (2) it prohibits
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`a second prosecution for the same offense after conviction; and (3) it prohibits multiple
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`punishments for the same offense. United States v. Wilson, 420 U.S. 332, 343 (1975). “[T]he final
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`component of double jeopardy—protection against cumulative punishments—is designed to
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`ensure that the sentencing discretion of courts is confined to the limits established by the
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`legislature.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“Because the substantive power to
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`prescribe crimes and determine punishments is vested with the legislature, . . . the question under
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`the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
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`intent.”).
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`The “same-elements” test established in Blockburger v. United States, 284 U.S. 299 (1932)
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`is used to determine whether multiple prosecutions or multiple punishments involve the same
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`offense. United States v. Dixon, 509 U.S. 688, 696 (1993). The test “inquires whether each offense
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`contains an element not contained in the other; if not, they are the ‘same offence’ and double
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`jeopardy bars additional punishment and successive prosecution.” Id.; see also Ball v. United
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`States, 470 U.S. 856, 861 (1985) (“The assumption underlying the Blockburger rule is that
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`Congress ordinarily does not intend to punish the same offense under two different statutes.”).
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`“Conversely, ‘[d]ouble jeopardy is not implicated so long as each violation requires proof of an
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`element which the other does not.’” Wilson v. Belleque, 554 F.3d 816, 829 (9th Cir. 2009) (quoting
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`United States v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir. 2003). “‘If each [offense] requires
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`proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a
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`substantial overlap in the proof offered to establish the crimes.’” Id. (quoting Iannelli v. United
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`States, 420 U.S. 770, 785 n.17 (1975)). The “same act or transaction” can “constitute[ ] a violation
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`of two distinct statutory provisions.” Blockburger, 284 U.S. at 304.
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`In deciding the claims in Ground 2, the Nevada Supreme Court relied on the correct federal
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`law standards and did not apply them unreasonably to the facts of Gonzalez’s case. (ECF No. 16-
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`5 at 5-7). Indeed, coercion requires a specific intent that is not required by preventing or dissuading
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`a victim. Similarly, preventing or dissuading a victim requires the preventing or dissuading of a
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`victim from reporting a crime, commencing a criminal prosecution, or causing the arrest of a
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`person. Nev. Rev. Stat. § 199.305(1). Coercion is broader and does not contain these requirements.
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`See Nev. Rev. Stat. § 207.190(1). Because coercion and preventing or dissuading a victim each
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`“contain[ ] an element not contained in the other,” Dixon, 509 U.S. at 696, there is no Double
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`Jeopardy Clause violation. Therefore, the Nevada Supreme Court’s ruling was not contrary to, or
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`an unreasonable application of, clearly established federal law, as determined by the Supreme
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`Court, and was not based on an unreasonable determination of the facts in light of the evidence.
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`See 28 U.S.C. § 2254(d). The Court will deny Gonzalez habeas corpus relief with respect to
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`Ground 2.
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`C.
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`Ground 4
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`In Ground 4, Gonzalez claims that his federal constitutional rights were violated when the
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`State committed misconduct during closing arguments. (ECF No. 10 at 17). Specifically, Gonzalez
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`argues that the State interjected personal opinions regarding the evidence, referenced facts not in
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`evidence, and vouched for a government witness. Id. On Gonzalez’s direct appeal, the Nevada
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`Supreme Court held:
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`“[T]o preserve a claim of prosecutorial misconduct, the defendant must
`object to the misconduct at trial . . . .” Valdez v. State, 124 Nev. 112, 1190, 196
`P.3d 465, 477 (2008). Because Hector failed to object to any of the prosecutor’s
`statements, we will conduct a plain error review. See id. In determining if the
`prosecutor’s statements amounted to prejudicial misconduct, we look at whether
`the statements “so infected the proceedings with unfairness as to result in a denial
`of due process.” Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005).
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`The prosecutor did not interject her personal opinions
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`Hector argues that the prosecutor interjected her personal belief that
`Hector’s sister must have told Hector about Ana’s relationship with Campos,
`because the prosecutor’s family would have told her. Hector contends that the
`prosecutor also interjected her personal belief by stating that the human memory is
`fallible, as evidenced by her own inability to recall exact testimony offered in this
`case. Lastly, Hector argues that the prosecutor interjected her personal belief by
`stating that if an intruder awoke her in the middle of the night, she would yell and
`scream too. Hector contends that all of this, coupled with the prosecutor’s reference
`to unsupported facts and her vouching for Ana, amounts to reversible prosecutorial
`misconduct because the verdict may have been different without it. Because we
`hold the prosecutor’s statements did not amount to misconduct, this issue does not
`warrant reversal.
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`The prosecutor did not reference facts that were not in evidence
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`Hector contends that the prosecutor argued that Hector’s sister must have
`told him about Ana’s relationship with Campos, which is not represented in the
`evidence. Hector also argues that the prosecutor’s story about how she could not
`recall specific testimony was improper because there was no evidence to support
`the story. Hector contends that this, coupled with the prosecutor’s interjection of
`her personal opinions and her vouching for Ana, amounts to reversible prosecutor
`misconduct because the verdict may have been different without it. We disagree.
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`“[A] prosecutor may not make statements unsupported by evidence
`produced at trial.” Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 585 (1992).
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`The prosecutor did not make statements unsupported by the evidence;
`rather, she made permissible inferences from the evidence. See Jones, 113 Nev. at
`467, 937 P.2d at 63. Thus, the prosecutor did not reference facts that were not in
`evidence, and Hector failed to demonstrate plain error.
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`The prosecutor did not vouch for Ana
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`Hector contends that the prosecutor vouched for Ana by attributing any
`problems with Ana’s testimony to the fallibility of human memory and by
`personally validating Ana’s angry response to Hector’s initial visit. Hector
`contends that this, coupled with the prosecutor’s interjection of her personal
`opinions and her reference to unsupported facts, amounts to reversible prosecutor
`misconduct because the verdict may have been different without it. We disagree.
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` prosecutor “may not vouch for a witness; such vouching occurs when the
`prosecution places ‘the prestige of the government behind the witness’ by providing
`‘personal assurances of [the] witness’s veracity.’” Browning v. State, 120 Nev. 347,
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`359, 91 P.3d 39, 48 (2004) (quoting U.S. v. Kerr, 981 F.2d 1050, 1053 (9th Cir.
`1992)).
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`The prosecutor did not place the prestige of the government behind Ana’s
`testimony by offering personal assurances of her veracity. Thus, the prosecutor did
`not vouch for Ana, and Hector failed to demonstrate plain error.
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`(ECF No. 16-5 at 8-10).
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`The State made several arguments that Gonzalez asserts were improper. First, the State
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`argued that Gonzalez had knowledge of his wife’s alleged affair, which tended to show that he had
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`a potential motive in attacking her:
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`So how do we know that Hector didn’t know about Charles? Well, I don’t think we
`really know that because his sister sure thought there was something going on
`between Ana and Charles. And I’ll tell y