Zavalza v. State and the Nevada Supreme Court’s Tightening of Harmless Error, Lost Evidence, and Non‑Traditional Expert Standards

Introduction

In Julius Edward Zavalza v. State of Nevada, No. 89057, the Nevada Supreme Court affirmed a Clark County jury’s conviction of Julius Zavalza for conspiracy to commit robbery, burglary while in possession of a deadly weapon, murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and first-degree arson. The events arose from a December 2014 incident in which Zavalza, after using heroin with the victim, Walter Wu, fatally stabbed Wu more than eighty times, set fire to clothing inside Wu’s house, and left with several boxes of sneakers and other items.

On appeal, Zavalza mounted a multi-pronged attack on the judgment, challenging:

Prosecutorial misconduct (comments on his post-arrest silence and improper burden shifting),
The admission of graphic autopsy photographs,
The State’s alleged failure to preserve or collect critical video evidence,
The admission of expert testimony from a sneaker reseller,
Several standard Nevada jury instructions, and
The cumulative effect of asserted errors.

Although the court characterized aspects of the prosecutor’s cross-examination and closing argument as improper, it held that any misconduct was harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt and the district court’s curative actions. The court also reaffirmed Nevada’s liberal approach to admitting gruesome autopsy photographs when they meaningfully aid the jury; clarified, again, the distinction between failure to preserve and failure to collect evidence; endorsed the use of a non-traditional “sneaker” expert whose expertise is grounded in practical experience; and firmly stood by several long-established pattern jury instructions.

While the order does not radically reshape Nevada law, it is a dense reaffirmation and fine-tuning of several important doctrines: harmless error in the context of prosecutorial misconduct; the evidentiary treatment of lost or uncollected evidence; the threshold for qualifying “non-traditional” experts; and the resilience of Nevada’s standard homicide and reasonable doubt instructions. Collectively, these holdings reinforce a high bar for overturning criminal convictions where the record reflects strong evidence of guilt and only limited trial error.

Summary of the Supreme Court’s Opinion

The Nevada Supreme Court’s principal conclusions can be summarized as follows:

Prosecutorial misconduct – post-arrest silence: The prosecutor’s remark to Zavalza that he had “10 years to come up with this version” was an improper comment on post-arrest silence under Coleman v. State and Murray v. State. Nevertheless, it was deemed a “mere passing reference,” and in light of overwhelming evidence of guilt, the error was harmless beyond a reasonable doubt under Morris v. State.
Prosecutorial misconduct – burden shifting: In closing, the prosecutor used language suggesting that Zavalza needed to “convince” the jury, which the court treated as likely improper because it could imply a shift in the burden of proof. However, defense counsel immediately objected, the objection was sustained, and the jury was admonished. Under Hernandez v. State, such prompt corrective action rendered any error harmless.
Autopsy photographs: Two graphic autopsy photos illustrating stab wounds were properly admitted. Under NRS 48.035(1) and Browne v. State, even highly gruesome photographs are admissible if their probative value in ascertaining the truth (here, the nature and severity of the wounds and the cause of death) is not substantially outweighed by unfair prejudice.
Alleged failure to preserve/collect video evidence: The claim that the State failed to preserve footage from a “second camera” failed factually—the record did not support the camera’s existence. Even assuming such a camera existed, the court treated the issue as a failure to collect evidence under Gordon v. State, not a failure to preserve evidence under Daniels v. State. While the footage could be “material” under Randolph v. State, any failure to obtain it was at most negligent, not grossly negligent or in bad faith, and thus did not justify dismissal or sanctions. A requested adverse inference instruction was not considered because it did not appear in the record, in violation of NRAP 28(a)(9)(A).
Expert testimony – sneaker reseller: The district court did not abuse its discretion in qualifying a sneaker reseller, Austin Doyle, as an expert on sneaker terminology and resale value. Applying Hallmark v. Eldridge, the court held that Doyle’s extensive practical experience in the sneaker resale market sufficed to establish “specialized knowledge,” even without formal academic credentials. His testimony was appropriately confined to narrow topics such as model identification, condition, and market value.
Jury instructions: The court rejected challenges to four instructions: “abandoned and malignant heart” malice, premeditation and deliberation, Nevada’s statutory “reasonable doubt” definition, and the “equal and exact justice” instruction. Each had previously been upheld, word-for-word, in decisions such as Leonard v. State, Byford v. State, Chambers v. State, and another Leonard v. State decision. The court saw no reason to disturb that precedent.
Cumulative error: Considering Mulder v. State’s factors—closeness of the case, number and character of errors, and gravity of the charges—the court found at most two minor, unrelated instances of misconduct, both cureable and harmless. Given substantial evidence of guilt (including video, blood evidence, and a confession to a friend), the court held that cumulative error did not warrant reversal.

Analysis

1. Precedents Cited and Their Role in the Decision

The opinion is notable for its dense reliance on established Nevada precedents. Rather than forging new doctrine, the court re-applies and subtly refines existing rules. The key precedents, grouped by issue area, are as follows.

a. Prosecutorial misconduct and harmless error

Valdez v. State, 124 Nev. 1172, 196 P.3d 465 (2008): Provides the two-step framework for prosecutorial misconduct claims: (1) determine whether the conduct was improper; (2) if so, determine whether it warrants reversal. For constitutional errors, reversal is required unless the State proves beyond a reasonable doubt that the error did not contribute to the verdict. This structure guides the court’s analysis of both alleged misconduct instances.
Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995): Holds that impeaching a defendant with his post-arrest silence is improper. The court here analogizes the prosecutor’s “10 years to come up with this version” remark to Coleman’s improper comment that the defendant had “nine months to think about what his theory would be.”
Murray v. State, 113 Nev. 11, 930 P.2d 121 (1997): Found misconduct where the prosecutor repeatedly referenced the defendant’s delay in presenting his story (“over six years to manufacture this”), implying that post-arrest silence was used to concoct a defense. Murray furnishes a template for identifying when “time to fabricate” comments cross the line.
Morris v. State, 112 Nev. 260, 913 P.2d 1264 (1996): Establishes that comments on post-arrest silence can be harmless beyond a reasonable doubt when the reference is “mere passing” and/or when evidence of guilt is overwhelming. This standard is central to the court’s harmless error conclusion regarding the single remark in Zavalza.
Whitney v. State, 112 Nev. 499, 915 P.2d 881 (1996): Explains that prosecutors impermissibly shift the burden of proof when they comment on the failure of the defense to present witnesses or evidence. This informs the court’s recognition that suggesting the defendant must “convince” the jury is problematic.
Ross v. State, 106 Nev. 924, 803 P.2d 1104 (1990): Authorizes prosecutors to attack witness credibility, including that of defendants, so long as arguments are grounded in fair inferences from the record. The court uses Ross to draw a line between legitimate credibility attacks and language that subtly shifts the burden of proof.
Hernandez v. State, 118 Nev. 513, 50 P.3d 1100 (2002): Holds that when a defendant’s objection to prosecutorial misconduct is sustained and the jury is admonished to disregard the remark, reversible error is rarely found. This underpins the court’s conclusion that the closing-argument misstatement was cured and harmless.

b. Evidentiary rulings: photographs and physical evidence

Browne v. State, 113 Nev. 305, 933 P.2d 187 (1997): Affirms that admission of photographs is within the district court’s sound discretion, and even “gruesome” photos are admissible if they aid in ascertaining the truth—such as demonstrating cause, manner, or severity of injuries. This case sets the governing standard for admitting the contested autopsy photos.
NRS 48.035(1): The Nevada rule equivalent to a Rule 403 balancing test, excluding relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. The court applies this statutory standard through Browne’s lens.

c. Preservation vs. collection of evidence

Daniels v. State, 114 Nev. 261, 956 P.2d 111 (1988): Governs failures to preserve evidence already in the State’s possession, requiring a showing of “bad faith or connivance” or actual prejudice from the loss of the evidence before charges may be dismissed.
Gordon v. State, 121 Nev. 504, 117 P.3d 214 (2005): Addresses failures to collect evidence, emphasizing that officers have no duty to collect all potential evidence. It establishes a two-part test: (1) the defendant must show the uncollected evidence was material; and (2) the court must determine whether the failure to gather it was due to negligence, gross negligence, or bad faith. Gordon is the backbone of the court’s analysis of the alleged “second camera.”
Randolph v. State, 117 Nev. 970, 36 P.3d 424 (2001): Defines “material evidence” as evidence for which there is a reasonable probability that the result of the proceeding would have been different if the evidence had been available. This informs the court’s assumption that, if the second camera existed and captured the fight, the footage could be material.
Rodriguez v. State, 117 Nev. 800, 32 P.3d 773 (2001), NRAP 28(a)(9)(A), and Johnson v. State, 113 Nev. 772, 942 P.2d 167 (1997): These authorities collectively stress the appellant’s duty to provide cogent argument supported by legal authority and citations to the record, and they bar appellate consideration of matters not appearing in the record. They support the court’s refusal to consider an adverse-inference instruction that was not in the record excerpts.

d. Expert qualification

Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008): Provides the framework for expert witness qualification: formal schooling, licensure, employment experience, and practical experience/ specialized training are all relevant. Hallmark confirms that expertise may be based largely or entirely on practical experience, which is exactly how the court upholds Doyle’s sneaker expertise.

e. Jury instructions

Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005): Affirms the district court’s broad discretion to settle jury instructions and establishes abuse of discretion/judicial error as the standard of review.
Leonard v. State, 117 Nev. 53, 17 P.3d 397 (2001): Upholds malice instructions using “abandoned and malignant heart” language, finding such language well established in Nevada.
Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000): Sets forth the proper premeditation and deliberation instructions for first-degree murder, which the district court adopted in this case.
Chambers v. State, 113 Nev. 974, 944 P.2d 805 (1997): Repeatedly upholds Nevada’s statutory “reasonable doubt” instruction as constitutional.
Leonard v. State, 114 Nev. 1196, 969 P.2d 288 (1998): Approves the “equal and exact justice” instruction as one that does not alter the presumption of innocence or burden of proof when read with the remainder of the charge to the jury.

f. Cumulative error

Mulder v. State, 116 Nev. 1, 992 P.2d 845 (2000): Provides the test for cumulative error analysis, assessing: (1) whether the issue of guilt is close; (2) the quantity and character of the error; and (3) the gravity of the crime charged. This framework leads the court to reject the cumulative error claim in light of overwhelming evidence and few, minor errors.

2. Legal Reasoning Issue-by-Issue

a. Prosecutorial misconduct: post-arrest silence

The prosecutor’s statement during cross-examination— “You’ve had 10 years to come up with this version you’re feeding to the jury”— is classic “time-to-fabricate” rhetoric. Following Murray and Coleman, such a remark is treated as an impermissible reference to a defendant’s post-arrest silence: it implies that the defendant remained silent for a long period, used that time to “invent” a story, and is now unveiling that fabrication at trial.

Nevada law, consistent with federal due process principles, treats adverse comment on post-arrest, post-Miranda silence as constitutional error, because it penalizes the exercise of the right to remain silent. The court therefore firmly holds the comment to be improper prosecutorial conduct under the Valdez framework.

However, the court then turns to harmless error analysis, relying heavily on Morris. Two factors make the error harmless beyond a reasonable doubt:

Mere passing reference: The prosecutor made the remark once, without returning to the theme in closing argument or otherwise building the case on inferences from the defendant’s silence.
Overwhelming evidence of guilt: The record contained extensive proof of guilt—video of Zavalza at Wu’s residence, blood evidence connecting him to the scene, and a confession to a friend about planning to rob Wu for his shoes and killing him. Against this background, the court concludes there is no reasonable possibility that this isolated remark affected the verdict.

Legally, this is a textbook application of the “constitutional harmless error” doctrine: acknowledge the constitutional violation, then assess whether the State has met its burden to show harmlessness beyond a reasonable doubt. The decision underscores that even when a prosecutor edges into forbidden territory regarding post-arrest silence, a conviction will be preserved if the comment is isolated and the evidence of guilt is strong.

b. Prosecutorial misconduct: burden-shifting in closing argument

The second misconduct claim arises from the prosecutor’s closing argument, where she used photographs of Zavalza socializing and smiling shortly after the crime to contrast with his demeanor at trial. At one point, she suggested that he needed to “convince” the jury that his trial demeanor reflected his true mental state.

Under Whitney, a prosecutor may not imply that the defendant bears a burden to produce evidence or prove his innocence. The Supreme Court recognizes that the word “convince,” in context, risked conveying that Zavalza had to persuade the jury of his version of events, subtly undermining the State’s exclusive burden to prove guilt beyond a reasonable doubt.

At the same time, Ross allows robust attacks on witness credibility so long as they are grounded in record-based inferences. The State’s core point—that Zavalza’s courtroom affect differed dramatically from his demeanor shortly after the crime—fell within the permissive realm of credibility arguments. The defect was not the subject matter but the verb choice that implicitly suggested an improper burden.

The court resolves this tension by characterizing the remark as “likely” improper but harmless. Several key procedural facts drive this conclusion:

Defense counsel objected immediately.
The district court sustained the objection.
The court gave a curative instruction admonishing the jury.

Citing Hernandez, the opinion reiterates that when improper comments are met with prompt objections, sustained rulings, and jury admonitions, “reversible error rarely results.” This reinforces the doctrinal importance of contemporaneous objections and curative instructions: they are both a shield for maintaining verdicts and a roadmap for trial judges to insulate convictions from reversal.

c. Autopsy photographs: probative value vs. unfair prejudice

Zavalza challenged two graphic autopsy photographs as so gruesome that their prejudicial effect outweighed any probative value under NRS 48.035(1). The record described the photos as:

One depicting two stab wounds, and
Another depicting a deep stab wound across Wu’s skull, with a wire threaded through to demonstrate the direction and depth of the wound.

Under Browne, the key question is whether such photos “aid in ascertaining the truth,” particularly regarding cause of death, number and location of wounds, and manner of infliction. Here, the photos helped explain how the medical examiner tallied more than eighty stab wounds and the severity of the injuries.

The court emphasizes two important analytical points:

Nature of the crime vs. prejudice: The photographs are gruesome precisely because the underlying crime—a frenzied stabbing causing over eighty wounds— is gruesome. The law does not require the State to sanitize that reality for the jury; it only bars photographs whose shocking nature adds little or nothing to the factual issues the jury must decide.
Appellate record deficiency: The actual photographs were not included in the appellate record. Appellate courts must presume the district court’s rulings are correct when the record is incomplete. The court relied on the trial description of the photos and found them probative and not unduly prejudicial.

The ruling confirms that, in homicide cases—especially those involving numerous wounds—graphic autopsy images that illustrate the medical examiner’s testimony are unlikely to be excluded solely due to their emotional impact. The key is whether they genuinely inform the jury’s understanding of the cause, nature, or manner of death.

d. Alleged failure to preserve/collect video evidence

Zavalza argued that the State failed to preserve video footage from a second camera in Wu’s home, depriving him of potentially exculpatory evidence supporting his self-defense theory (that Wu unexpectedly tried to shoot him).

The court first makes a threshold factual finding: the record does not substantiate that a second camera existed. Only one interior camera was documented by crime scene analysts; the security company provided a thumb drive with footage from that single camera; and detectives testified they received all available footage. Absent proof of a second camera, there is, strictly speaking, no missing evidence.

Nonetheless, the court proceeds under an “even if” analysis and assumes arguendo that a second camera existed on the floor where the fight occurred. The legal framework then turns on drawing a crucial distinction:

Failure to preserve evidence (Daniels): Applies when the State loses or destroys evidence it already collected. Dismissal may be warranted only on a showing of bad faith or connivance, or demonstrated prejudice.
Failure to collect evidence (Gordon): Applies when the State never obtains the evidence in the first place. The defendant must show:
1. The evidence was material; and
2. The failure to gather it was due to negligence, gross negligence, or bad faith.

Here, the alleged second camera was never in the State’s possession, so the case is analyzed as a failure to collect. Under Randolph, the footage would have been material if there was a reasonable probability it would have affected the outcome. The court essentially concedes that this threshold could be met: footage capturing the altercation might have bolstered self-defense.

But on the second prong of Gordon, the court concludes that any failure to obtain such footage was at most negligent. Officers believed only one camera was present, based on:

The crime scene analyst’s documentation of a single camera;
The installer’s representation that he provided all footage associated with the scene;
The detective’s testimony that nothing suggested additional footage existed.

There is no evidence of gross negligence or bad faith. Under Gordon’s sliding scale, mere negligence generally does not justify sanctions, much less dismissal of charges. As a result, even assuming a second camera existed and its footage was material, no remedy was warranted.

Finally, Zavalza claimed the jury should have been instructed that it could draw a negative inference from destruction of property. But he did not include the proposed instruction or a record citation. Under NRAP 28(a)(9)(A), Rodriguez, and Johnson, the absence of record support is fatal: the Supreme Court declined to consider the issue at all.

e. Expert testimony: sneaker reseller as “specialized knowledge” expert

One of the more novel features of the opinion is its treatment of Austin Doyle, a sneaker reseller, as an expert witness. Doyle had:

Four years’ employment at a sneaker store, “Almighty Originals,” and
Ten years’ independent experience buying and reselling sneakers.

He lacked formal schooling, degrees, or licensure related to footwear. His testimony was limited to “very narrow confines”: identifying sneaker models, explaining specialized packaging and features, describing condition, and estimating resale value.

Applying Hallmark v. Eldridge, the court reiterates that expertise can be grounded in “scientific, technical, or other specialized knowledge.” To determine qualification, a trial court considers:

Formal schooling and academic degrees,
Licensure,
Employment experience, and
Practical experience and specialized training.

The Supreme Court emphasizes that the fourth factor—practical experience—can be dispositive in appropriate contexts. In niche markets like sneaker collecting and resale, years of hands-on involvement can yield knowledge beyond that of ordinary jurors. Doyle’s experience thus provided sufficient “specialized knowledge” to qualify him as an expert in sneaker resale.

Crucially, the court also underscores the district court’s careful limitation of scope: Doyle was not testifying about the crime itself, but only about the value and terminology of sneakers allegedly stolen and resold by Zavalza. This containment helped ensure that his testimony assisted the jury on a discrete, technical point without intruding into the fact-finding province on ultimate issues of guilt.

f. Jury instructions: reaffirming Nevada’s standard charges

Zavalza attacked four instructions, each of which has been a common target in Nevada criminal appeals:

The “abandoned and malignant heart” malice instruction,
The premeditation and deliberation instruction for first-degree murder,
The statutory “reasonable doubt” instruction, and
The “equal and exact justice” instruction.

Under Crawford, the court reviews jury instructions for abuse of discretion or judicial error, recognizing broad leeway for trial judges in formulating the charge. Here, the court pointedly notes that all four challenged instructions have been upheld “word for word” in prior decisions:

Leonard v. State (2001) – validates the malice instructions including “abandoned and malignant heart” language.
Byford v. State (2000) – authoritatively sets out the premeditation and deliberation instruction used in this case.
Chambers v. State (1997) – repeatedly affirms the constitutionality of Nevada’s statutory reasonable doubt definition.
Leonard v. State (1998) – upholds the “equal and exact justice” instruction as not altering the burden of proof when read with the totality of instructions.

The opinion expressly states that Zavalza has offered no persuasive reason to revisit this precedent. The message is clear: Nevada’s pattern homicide and reasonable doubt instructions are firmly entrenched. Defendants should not expect appellate relief on the basis of those standard formulations absent a significant doctrinal shift from a higher court.

g. Cumulative error

In assessing cumulative error under Mulder, the court applies the familiar three-factor test:

Whether the issue of guilt is close,
The quantity and character of the error, and
The gravity of the crime charged.

The court acknowledges at most two errors: (1) the improper comment on post-arrest silence; and (2) the “convince the jury” phrasing in closing argument. Both were isolated; in each instance the defense objected; and the trial court either controlled the situation by sustaining objections or the State moved on. Against the backdrop of overwhelming evidence—including surveillance footage, physical evidence, and a confession—the question of guilt was not “close.”

The crimes charged, including murder with the use of a deadly weapon and first-degree arson, are obviously grave, but Mulder’s balancing inquiry focuses primarily on whether multiple serious errors, in combination, undermined the verdict’s reliability. Here, the court concludes that the limited number and modest character of errors, together with strong proof of guilt, preclude any finding of cumulative prejudice.

3. Impact and Future Significance

a. Prosecutors: renewed warning, but broad harmless error safety net

The opinion sends a mixed but ultimately prosecution-favorable signal regarding trial advocacy:

The court straightforwardly labels the “10 years to come up with this version” comment as improper, reinforcing that any reference to post-arrest silence (even when the defendant testifies) is forbidden.
Similarly, language suggesting that a defendant must “convince” the jury is flagged as likely error, because it risks shifting the burden of proof.
Yet both incidents are treated as harmless, emphasizing that single, isolated instances of misconduct—particularly when met with immediate objection and curative action—will rarely lead to reversal in a case with strong evidentiary support.

This may embolden prosecutors to argue aggressively on credibility while remaining mindful that explicit burden-shifting language and references to silence are disfavored. It also underscores that defense counsel’s best chance to turn such incidents into appellate relief is to show repeated, emphasized, and exploited misconduct in a close case, rather than isolated missteps.

b. Defense strategy: record completeness and framing lost evidence

For defense attorneys, the opinion highlights two recurring appellate pitfalls:

Record completeness: Failing to include key items (like the actual photographs or proposed jury instructions) and failing to cite the record can cripple an appeal. The court’s refusal to consider the adverse-inference instruction claim is a cautionary tale: appellate courts will not hunt through transcripts or speculate on omitted material.
Evidence classification: Whether a case is analyzed as “failure to preserve” (Daniels) or “failure to collect” (Gordon) can be outcome-determinative. Defense counsel must be precise in framing claims. Where the State never obtained the evidence, it is difficult—especially after this opinion—to obtain sanctions without a showing of more than mere negligence.

In future lost-evidence disputes, counsel will need to:

Develop a strong factual record proving the existence of the missing evidence;
Establish materiality under Randolph; and
Present evidence pointing to gross negligence or bad faith, not just oversight.

C. Non-traditional experts: expanding the universe of “specialized knowledge”

By affirming Doyle’s qualification as a sneaker expert, the court implicitly endorses a broad view of “specialized knowledge” under Hallmark. Expertise in niche markets—sneaker resale, collectible goods, digital assets, etc.—can be recognized based primarily on practical experience, not traditional academic or professional credentials.

Practically, this means:

Prosecutors and defense lawyers can more confidently propose practitioners from specialized subcultures as experts (e.g., collectors, resellers, industry insiders), so long as their experience demonstrably surpasses ordinary lay understanding.
Trial courts retain substantial discretion to narrowly cabin such testimony to technical or market-related topics and to prevent experts from opining on ultimate factual issues outside their realm.

For criminal cases involving property crimes, valuation disputes, or black-market economies, Zavalza signals comfort with non-traditional experts backed by concrete experiential credentials.

d. Evidentiary rulings and autopsy photographs

The decision underscores Nevada’s continued tolerance for gruesome photographic evidence when it genuinely illuminates medical testimony and the mechanics of a killing. Defense counsel may still argue for exclusion under NRS 48.035(1), but they must show that the photographs are either redundant (cumulative) or so emotionally inflaming that they add little probative value to issues in dispute.

The court’s emphasis that the photos were “gruesome because the manner of death was itself an act that would create gruesome autopsy photographs” is especially important. The underlying brutality of a crime cannot be shielded from the jury merely because the resulting imagery is disturbing; that very brutality is part of what the jury must evaluate in determining intent, malice, and premeditation.

e. Stability of Nevada’s pattern instructions

By reaffirming, without hesitation, the challenged jury instructions, the court signals long-term stability in several doctrinal areas:

Malice (“abandoned and malignant heart”): Nevada continues to use language that traces back to common-law formulations of implied malice, and Leonard remains controlling authority.
Premeditation and deliberation: After Byford, the State adopted revised instructions distinguishing premeditation and deliberation from mere intent. This order shows those instructions are well-settled.
Reasonable doubt: The statutory definition has repeatedly survived constitutional challenge; Chambers is reaffirmed yet again.
“Equal and exact justice”: When combined with a proper presumption-of- innocence and burden-of-proof instruction, it remains acceptable.

For practitioners, this means that attacks on these standard instructions are unlikely to succeed absent a major change in federal constitutional doctrine from the U.S. Supreme Court or an en banc reconsideration in Nevada.

Complex Concepts Simplified

1. Prosecutorial misconduct and harmless error

Prosecutorial misconduct occurs when prosecutors step outside the bounds of proper advocacy—for example, by:

Commenting on a defendant’s right to remain silent after arrest;
Suggesting that the defendant bears the burden of proving innocence; or
Making inflammatory statements not grounded in evidence.

When misconduct occurs, courts ask:

Was the conduct improper?
If so, did it affect the outcome enough to require a new trial?

If the misconduct affects a constitutional right (like the right to remain silent), the State must prove beyond a reasonable doubt that the error did not contribute to the verdict. If a court finds the error “harmless” under this standard, the conviction stands despite the mistake.

2. Failure to preserve vs. failure to collect evidence

These are often confused but have different legal consequences:

Failure to preserve evidence: The police or State had the evidence but lost or destroyed it. To win relief (like dismissal), the defendant must show bad faith or actual prejudice. Example: discarding a blood sample before the defense can test it.
Failure to collect evidence: The police never obtained the evidence in the first place. There is usually no duty to collect all possible evidence. The defendant must show the missing evidence was material (could have changed the result) and that not getting it was more than a simple mistake.

In Zavalza, the alleged second camera falls into the “failure to collect” category, and the court found only possible negligence, not bad faith.

3. Expert witnesses vs. lay witnesses

A lay witness can testify only about what they personally saw, heard, or experienced, and about opinions based on everyday knowledge. A expert witness can go further, offering opinions based on “specialized knowledge,” such as:

Medical expertise (doctors),
Technical expertise (engineers, forensic scientists), or
Market expertise (specialized resellers like Doyle).

Under Hallmark, expertise can be built on practical experience as much as on formal education or licenses. In this case, the sneaker reseller’s deep market experience qualified him as an expert in sneaker valuation and terminology.

4. “Abandoned and malignant heart” malice

This phrase is a traditional way of describing a certain kind of malice aforethought required for murder. It refers to conduct that shows:

Extreme recklessness,
A wanton disregard for human life, and
A willingness to do a dangerous act with a high risk of death.

The law treats such extreme recklessness as equivalent to an intent to kill for purposes of classifying a homicide as murder rather than manslaughter.

5. Premeditation and deliberation

In Nevada, first-degree murder generally requires:

Premeditation: Thinking about the killing beforehand, even briefly; and
Deliberation: A considered decision to kill, not a purely impulsive act.

The Byford instruction clarified that these concepts require more than a split-second intent formed in the heat of passion, helping juries distinguish first-degree murder from lesser homicides.

6. Reasonable doubt

Reasonable doubt is the highest standard of proof in law. In Nevada, the jury is told that:

A reasonable doubt is one based on reason, not speculation,
It may arise from the evidence, lack of evidence, or the nature of the evidence, and
To convict, jurors must be “firmly convinced” of the defendant’s guilt.

Courts have repeatedly held that Nevada’s version of this instruction is clear and constitutional.

7. “Equal and exact justice” instruction

This instruction tells jurors they must render “equal and exact justice” to both the State and the defendant. Standing alone, it might sound like jurors should treat the parties as equally situated. But read together with separate instructions on the presumption of innocence and the State’s burden of proof, Nevada courts have held that this language does not dilute the defendant’s protection; it simply emphasizes that jurors must be fair and impartial to both sides.

8. Cumulative error

The cumulative error doctrine recognizes that while individual errors may be harmless, their combined effect could undermine the fairness of a trial. Courts look at:

How close the case was (e.g., whether the evidence was weak or conflicting),
How many errors occurred and how serious they were, and
The seriousness of the charges.

If the errors, taken together, reasonably might have changed the outcome, a new trial may be ordered. In Zavalza, the court found only a small number of minor errors in a case with strong evidence, so cumulative error did not apply.

Conclusion

The Nevada Supreme Court’s order in Zavalza v. State is a comprehensive affirmation of a serious set of convictions and, more broadly, a reaffirmation and incremental refinement of several key criminal law doctrines in Nevada.

On prosecutorial misconduct, the court underscores that references to post-arrest silence and language suggesting the defendant must “convince” the jury are improper, yet it also reinforces that such errors will not yield reversal absent repetition, exploitation, or a close evidentiary case. The opinion deepens the harmless error jurisprudence built on Valdez and Morris.

The court further clarifies the distinction between failures to preserve and failures to collect evidence, applying Daniels and Gordon to limit relief where officers acted at worst negligently and the existence of the supposedly missing evidence was uncertain. This will influence how future lost-evidence claims are framed and evaluated.

By endorsing a sneaker reseller as an expert on sneaker valuation and terminology, the court embraces a flexible, experience-based conception of “specialized knowledge” that will likely support the use of similar non-traditional experts in other market or subculture contexts, so long as their expertise is properly confined.

Finally, the opinion reaffirms the robustness of Nevada’s standard instructions on malice, premeditation and deliberation, reasonable doubt, and “equal and exact justice,” and reasserts the high threshold for granting relief based on cumulative error in cases with overwhelming evidence of guilt.

Taken together, Zavalza stands less as a groundbreaking doctrinal shift and more as a consolidating decision. It signals to trial courts, prosecutors, and defense counsel alike that Nevada’s existing frameworks for prosecutorial misconduct, evidentiary balancing, lost evidence, expert qualification, and criminal jury instructions remain firmly in place and that appellate relief will be rare where trial errors are isolated, promptly corrected, and overshadowed by compelling proof of guilt.