Citation220 P.3d 684
Decision Date12 November 2009
Docket NumberNo. 51941.,51941.
PartiesShawn Lynn GLOVER, Jr., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK, and the Honorable David Wall, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
CourtNevada Supreme Court




Philip J. Kohn, Public Defender, and Danny A. Silverstein, Deputy Public Defender, Clark County, for Petitioner.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Real Party in Interest.

Before the Court En Banc.


By the Court, PICKERING, J.

This petition for a writ of prohibition asks us to decide whether the district court violated petitioner Shawn Glover's double jeopardy rights when it granted a mistrial and ordered him to stand trial a second time on murder and lesser related charges. The district court determined that defense counsel had irretrievably biased the jury by putting before them facts not in evidence, making mistrial a "manifest necessity."

The controversy arose out of a voluntary statement Glover gave the police. The State told the defense that it did not intend to use Glover's statement at trial. The district court ruled that, when offered by the defense, the statement was inadmissible hearsay. Despite this ruling, defense counsel repeatedly put the statement before the jury, first in his opening statement, when he displayed excerpts of Glover's police statement on PowerPoint; then during cross-examination of the detective who interrogated Glover, whom defense counsel asked to show the jury an envelope, neither marked nor admitted in evidence, and confirm that it contained a videotape of Glover's interrogation; and again in closing argument. Although the State's objections were sustained, the jury could not help but get the point that the defense thought Glover's excluded statement was crucial and unfairly forbidden them.

Matters came to a head in closing argument when, despite earlier orders in limine, the defense exhorted the members of the jury to ask themselves why the State would not let them see or hear what Glover said to the police. The court rebuked defense counsel and directed him to discontinue this line of argument. He continued with it anyway, even after the court ordered him to stop, telling the jurors that the State kept Glover's police statement from them because it "is devastating to their case, absolutely devastating." It was at this point that the court called a recess, asked for input on the options available, including possible curative instructions, and ultimately, declared a mistrial.

We uphold the district court's orders excluding Glover's statement and prohibiting argument about its content. Significantly, the defense admits that Glover's out-of-court statement was hearsay. While the State could have offered the statement as the admission of a party opponent, no legitimate negative inference arose from the State's decision not to offer this otherwise inadmissible evidence. The State's failure to use the statement just meant the State had invoked the hearsay rule, which deems a defendant's exculpatory out-of-court statements self-serving and thus inadmissible.

We also reject Glover's double jeopardy challenge. Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), frames the question before us, which is not whether other reasonable judges might have assessed the risk of juror bias differently and proceeded with the trial, but whether the judge who presided over this trial abused his discretion in making the determination he did. Id. at 511, 98 S.Ct. 824. Here, as in Washington, the defense brought the mistrial order upon itself by arguing facts not in evidence and violating the court's orders in limine, and now seeks to benefit from the mistrial order its rule violations produced. The district judge saw firsthand the impact the defense's improper argument had on the jurors. It related directly to the key contested issue of self-defense. The number of times the excluded evidence was put before the jurors and the drama that played out before them over its exclusion led the district court to conclude that the risk of jury bias and the public's interest in having an impartial jury decide this case outweighed Glover's right to have the case conclude before the jury first sworn to hear it. On this record, we cannot say that the district judge did not exercise "sound discretion"—that is to say, that he acted "irrationally or irresponsibly"— in declaring that mistrial was a "manifest necessity." Id. at 514, 98 S.Ct. 824. Accordingly, we deny the petition and dissolve our temporary stay of Glover's retrial.


The core issue in this case was self-defense. Six eyewitnesses saw Glover shoot Derek Moore in broad daylight in Glover's front yard. By all accounts Moore started the fight. Uninvited, Moore drove his SUV onto Glover's property, got out, and threatened Glover's younger brother, Byron, whom Moore accused of having burglarized Moore's girlfriend's house. By the time Glover shot him, though, Moore and the two people who accompanied him to the Glovers' house had gotten back into the SUV. Also undermining self-defense, Glover had time to go into his house and back outside to Moore's vehicle (whether to get the gun he used to shoot Moore or to yell for his mother to call the police is disputed) before he shot Moore at near point-blank range.

Moore and his companions drove to a neighboring grocery store parking lot. His companions called 911 but Moore's gunshot wound was mortal, and he died before emergency services arrived. Police took gunshot residue samples from Moore. Because they did not find a gun in Moore's SUV or on his person, they did not run gunshot residue tests on the samples.

Police were also dispatched to the Glover home. Glover and Byron had fled to their grandmother's house. Later that day, Glover's mother called and asked the police to come back. Glover had returned home from his grandmother's by then. He surrendered himself and his gun to the police. The police took Glover into custody and transported him to the station, where Glover gave the police the voluntary videotaped statement that underlies this writ proceeding.


At trial, Glover admitted killing Moore but asserted self-defense made the homicide justifiable. Before the defense gave its opening statement, the parties reviewed outside the presence of the jury the PowerPoint slides the defense planned to use in its opening statement. The prosecution warned that it did not plan to introduce Glover's statement to the police into evidence and that it objected on hearsay grounds to the defense using the statement. Nonetheless, during its opening statement, the defense put up a PowerPoint screen that showed the jury transcribed quotes from Glover's police statement. The court sustained the prosecution's objections to the defense's displaying this inadmissible evidence.1

Glover's police statement came up next in connection with Jesus Prieto's testimony. Prieto was the detective who responded to the 911 call and later took Glover's statement. Reviewing the following day's witnesses outside the jury's presence, the State said it doubted it would call Prieto and that, if it did, it did not plan to ask him about Glover's statement. When the defense said it would call Prieto if the State didn't, the court confirmed its earlier ruling that, if offered by Glover, his police statement was inadmissible hearsay. After hearing argument, the court clarified that the defense could establish through Prieto (or Glover) that Glover turned himself in and argue that this supported self-defense. However, the court reiterated "you still can't go into the statement." Defense counsel affirmed that he "agreed" he could not get into the "contents of Glover's statement, even indirectly."

The State ended up calling Detective Prieto but on matters other than Glover's station house interview. The court granted the defense's request to exceed the scope of direct examination. At several points in Prieto's cross-examination, the prosecution renewed its "objection as to hearsay as to anything that occurred in the interview room" and added a relevancy objection. Although these objections were sustained, defense counsel asked Prieto to identify for the jury a sealed envelope as containing a videotape of Glover's statement. The envelope was neither opened nor marked as an exhibit, and neither side moved to admit the statement or the videotape then or at any other time during trial.2

Glover testified in his own defense, giving the jury a detailed account of his encounter with Moore. He related how scared he was for himself and his family, the death threats he heard Moore make, the Uzi he saw. tattooed on Moore's hand, Moore's menacing statements that he was "burnered" and would "wet the place down," and his belief, based on those statements, that Moore had a gun and was about to shoot when he shot Moore. Glover also testified that he panicked and went to his grandmother's after the shooting, returning home only after he spoke to his mother on the phone. Although Glover testified that he turned himself in to the police, he was neither asked nor said anything about the statement he gave them at the station.

Trial took just three days. The defense's closing argument drew repeated objections and sidebars on matters unrelated to this writ proceeding. Things erupted when the defense told the jury it should consider why the State had not shared Glover's police statement with them:

DEFENSE COUNSEL: I want you to think about something in this case. Shawn Glover gave a statement to the police. He sat down with Detective Prieto and gave a statement. It was recorded on video.

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