NRS 175.151: Two-Counsel Jury Argument Is Required Only When the State Seeks the Death Penalty

1. Introduction

This appeal arose from Thomas William Randolph’s 2023 retrial and convictions for conspiracy to commit murder and two counts of first-degree murder with the use of a deadly weapon. The State’s theory was that Randolph conspired with Michael Miller to stage a home invasion at Randolph’s residence during which Miller killed Randolph’s wife, Sharon, after which Randolph killed Miller. Randolph’s first trial ended in reversal due to propensity-evidence error. See Randolph v. State, 136 Nev. 659, 668-69, 477 P.3d 342, 351-52 (2020).

On this second appeal, Randolph raised seven issues, including a Sixth Amendment speedy-trial claim, suppression of walkthrough statements, alleged government intrusion into attorney-client privilege, instructional error, the right to have two defense attorneys present closing argument, an “emergency motion” premised on NCJC Rule 2.15, and cumulative error.

2. Summary of the Opinion

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

• Randolph v. State, 136 Nev. 659, 668-69, 477 P.3d 342, 351-52 (2020): Provided the procedural posture (reversal and remand for new trial due to propensity evidence). The court also relied on it to reject relitigation of the pre-first-trial speedy-trial delay (treated as already resolved).
• State v. Inzunza, 135 Nev. 513, 516, 454 P.3d 727, 730-31 (2019): Supplied the governing speedy-trial framework (a four-part balancing test and standards of review). It also supported the proposition that a 19-month post-remand delay is “presumptively prejudicial,” triggering consideration of the remaining factors.
• United States v. Ewell, 383 U.S. 116, 121 (1966): Used to exclude time consumed by appellate review after a defendant secures reversal; retrial may proceed “in the normal course of events.”
• Clem v. State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003): Applied via the law-of-the-case doctrine to bar Randolph’s renewed reliance on delay reasons tied to the first trial.
• Sheriff v. Berman, 99 Nev. 102, 107, 659 P.2d 298, 301 (1983): Controlled the prejudice inquiry for speedy trial: bare assertions of unavailable witnesses or faded memory, without affidavits/offers of proof, are insufficient.
• Rosky v. State, 121 Nev. 184, 190, 193, 111 P.3d 690, 694, 696 (2005) and Camacho v. State, 141 Nev., Adv. Op. 52, 578 P.3d 949, 958 (2025): Framed the voluntariness test (coercion and totality of circumstances) and the appellate standard (mixed law/fact with de novo review for ultimate voluntariness).
• Browning v. State, 120 Nev. 347, 361, 91 P.3d 39, 50 (2004): Used twice to reject undeveloped or unsupported appellate claims (alleged coercion during video breaks; NCJC Rule argument).
• Manley v. State, 115 Nev. 114, 121-22, 979 P.2d 703, 707 (1999) and United States v. Danielson, 325 F.3d 1054, 1066, 1071 (9th Cir. 2003): Anchored the attorney-client interference analysis and burden allocation—defendant must first show government obtained privileged information through intentional interference.
• Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) and Walker v. State, 116 Nev. 670, 673, 6 P.3d 477, 479 (2000): Supplied the standards for instruction review and the rule permitting instructions on alternate theories supported by evidence.
• Lewis v. State, 100 Nev. 456, 460, 686 P.2d 219, 221-22 (1984), Sena v. State, 138 Nev. 310, 327, 510 P.3d 731, 749 (2022), and Sheriff v. Lang, 104 Nev. 539, 543, 763 P.2d 56, 59 (1988): Supported the conspiracy proof principles—circumstantial evidence can establish conspiracy, and conspiracy participation can support principal liability.
• Butler v. State, 120 Nev. 879, 892-93, 102 P.3d 71, 81 (2004), Martinez Guzman v. Second Jud. Dist. Ct., 136 Nev. 103, 106, 460 P.3d 443, 447 (2020), and Kabew v. Eighth Jud. Dist. Ct., 140 Nev. 184, 186, 545 P.3d 1137, 1140 (2024): Drove the statutory interpretation of NRS 175.151 (plain meaning, “may” is permissive, and unambiguous text enforced as written).
• Morgan v. State, 134 Nev. 200, 201 n.1, 416 P.3d 212, 217 n.1 (2018): Provided the cumulative-error rule: absent any error, there is nothing to cumulate.

3.2. Legal Reasoning

• Speedy trial: The court confined the “length of delay” analysis to the post-remand period relevant to the retrial and refused to (a) relitigate pre-first-trial delay already deemed nonviolative, and (b) count appellate time following reversal, consistent with United States v. Ewell. The claim also faltered because Randolph asserted the right only after the retrial verdict and failed to substantiate prejudice with evidence as required by Sheriff v. Berman.
• Walkthrough statements: Applying Rosky and Camacho, the court credited testimony that Randolph was not threatened, and noted his on-video acknowledgment of acting of his “own free will.” Medication-related impairment was rejected because the record showed coherent, detailed narration and detectives observed no impaired understanding.
• Attorney-client privilege / Sixth Amendment: Under Manley and United States v. Danielson, Randolph had to show purposeful intrusion and acquisition of privileged content. The record showed the computer was impounded and stored, with no rebuttal evidence of access or review of privileged material.
• Jury instructions: The robbery/felony-murder instructions were upheld under Walker because evidence supported alternate theories: communications between Randolph and Miller, timing and access evidence, items found on/near Miller, and lack of forced entry supported an inference of conspiracy to rob and murder, provable circumstantially under Sena and Sheriff v. Lang.
• NRS 175.151 and the two-counsel argument issue (central statutory clarification): The court interpreted “offense punishable with death” to mean a case in which the State has affirmatively sought the death penalty. Because the State did not seek death, Randolph’s case was treated as noncapital, triggering the statute’s discretionary clause (the court “may” restrict argument to one counsel per side). The court reinforced this with NRS 175.552(4) and its prior explanation in Butler v. State that discretion resides with the district court in noncapital cases. The same discretion defeated Randolph’s alternative claim that the State must be limited to one prosecutor for closing and rebuttal.
• NCJC Rule 2.15 motion: The court treated the rule as an ethics/reporting obligation and found no doctrinal bridge making it a procedural entitlement to an evidentiary hearing within a criminal case.
• Cumulative error: With no errors identified, Morgan v. State foreclosed relief.

3.3. Impact

• Clearer capital/noncapital line for courtroom-argument structure: The opinion operationalizes NRS 175.151 by tying “punishable with death” to the State’s decision to seek death. Practically, defendants charged with first-degree murder will not automatically receive the statutory benefit of two-counsel argument unless the case is actually prosecuted as capital.
• Trial-court discretion over “how many lawyers argue” in noncapital cases is reaffirmed: The decision strengthens trial judges’ discretion to manage argument allocations on both sides, including allowing separate prosecutors for closing and rebuttal.
• Post-reversal speedy-trial claims are cabined: By excluding appellate time following reversal and applying law-of-the-case to already-resolved pretrial delay, the court narrows the usable timeline for renewed speedy-trial challenges after remand—placing greater emphasis on the post-remand interval and evidentiary proof of prejudice.
• Privilege-intrusion claims require proof of access, not just seizure: The holding signals that impoundment of defense technology alone will rarely warrant dismissal absent evidence of actual government viewing or acquisition of privileged content and purposeful intrusion.

4. Complex Concepts Simplified

• “Speedy trial” four-factor balancing test: Courts weigh (1) how long the delay was, (2) who caused it and why, (3) whether the defendant timely demanded a speedy trial, and (4) whether the delay actually harmed the defense (e.g., provable loss of key witnesses).
• Law of the case: Issues decided in an earlier appeal generally cannot be re-argued in later appeals of the same case if the key facts are the same.
• Voluntariness (“totality of circumstances”): A statement is suppressed only if the defendant’s will was overborne—through threats, coercion, or similar pressure—evaluated by looking at all surrounding facts.
• Attorney-client intrusion (Sixth Amendment concern): It is not enough to show the government possessed a device that might contain legal materials; the defendant must show purposeful intrusion and that privileged information was actually obtained.
• Alternate theories of liability: The State may ask for instructions on multiple legal paths to guilt (e.g., conspiracy, aiding/abetting, felony murder) if there is evidence supporting each path.
• “May” vs. “shall” in statutes: “May” usually means the judge has discretion; “shall” usually means the judge must do it.
• “Punishable with death” as used here: The court treated this as a practical, case-specific status—death must be sought—rather than a purely theoretical maximum penalty associated with the charge label.

5. Conclusion

The court affirmed Randolph’s convictions and, in doing so, delivered a clarifying construction of NRS 175.151: the right to have two counsel “on each side” argue applies only when the prosecution affirmatively seeks the death penalty; otherwise, argument structure lies within the district court’s discretion. The opinion also underscores evidentiary rigor in speedy-trial prejudice showings, limits relitigation through law-of-the-case after remand, and reinforces that claims of attorney-client intrusion require proof of purposeful access to privileged material.