Nevada Appellate Court Summaries 2-6-20

By Joe Tommasino, Esq.

Supreme Court of Nevada:

Criminal procedure: (1) Appellant Norman Keith Flowers urged reversal on appeal based upon multiple grounds, including that the district court accepted testimonial hearsay in violation of the Confrontation Clause, and that the district court unconstitutionally allowed the admission of gruesome autopsy photographs; but (2) Flowers is not entitled to relief on appeal. First, the Supreme Court of Nevada addressed NRS 48.045(2) which prohibits the use of “[e]vidence of other crimes, wrongs or acts . . . to prove the character of a person in order to show that the person acted in conformity therewith.” Evidence of a defendant’s other bad acts “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” “A presumption of inadmissibility attaches to [other] bad act evidence.” Before admitting other-bad-act evidence, the district court must determine, outside the presence of the jury, that (1) the other bad act is relevant to the crime charged, (2) the State can prove the other bad act by clear and convincing evidence, and (3) the nonpropensity probative value of the other-bad-act evidence “is not substantially outweighed by the danger of unfair prejudice.” The identity exception in NRS 48.045(2) applies “where a positive identification of the perpetrator has not been made, and the offered evidence establishes a signature crime so clear as to establish the identity of the person on trial.” In the instant case, the district court did not err in admitting certain evidence to prove identity and intent. Second, the Court addressed the Confrontation Clause which guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that this guarantee bars the admission of testimonial hearsay unless (1) the declarant is unavailable and the accused either (2) had a prior opportunity to cross-examine the declarant or (3) forfeited his or her right to object by wrongdoing. The United States Supreme Court has recognized that “[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence, and States may adopt procedural rules governing the exercise of such objections.” [Emphasis added]. But in Vega v. State, 126 Nev. 332, 338, 236 P.3d 632, 636 (2010), the Supreme Court of Nevada extended plain-error review to an otherwise forfeited Confrontation-Clause objection. Plain error review is discretionary, not obligatory. To establish plain error, “an appellant must demonstrate that: (1) there was an ‘error’; (2) the error is ‘plain,’ meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant’s substantial rights.” A reviewing court determines “[w]hether an error is ‘plain’ . . . by reference to the law as of the time of appeal” and “typically will not find such error where the operative legal question is unsettled.” A plain error does not affect a defendant’s substantial rights unless “it causes actual prejudice or a miscarriage of justice.” During its analysis in the instant case, the Supreme Court of Nevada emphasized that “[p]hotographs are not statements, let alone testimonial out-of-court statements, so no arguable Confrontation Clause violation occurred” as to certain testimony that was premised explicitly on autopsy photographs. Moreover, an expert witness may rely on hearsay, including testimonial hearsay, without violating the Confrontation Clause, so long as the testifying expert does not “effectively” introduce the un-cross-examined testimonial hearsay into evidence. In the instant case, to the extent that a witness offered his independent opinions and only conveyed to the jury that he generally relied on the autopsy photographs and reports in reaching his opinions, he did not communicate hearsay to the jury. Testimony relating to statements made by someone else in the autopsy reports was more problematic. The Supreme Court of Nevada has not decided “whether autopsy reports constitute ‘testimonial evidence’ so as to trigger the protections of the Confrontation Clause,” and courts elsewhere “have been almost evenly divided in their opinions on this issue.” The unsettled state of the law prevented the Supreme Court of Nevada from saying the error, if any, in allowing such testimony was “plain.” Separately, the Court explained that, for cases tried pre-Crawford, a hearsay objection sometimes sufficed to preserve a Confrontation Clause objection. But post-Crawford, a Confrontation-Clause challenge asks whether the out-of-court statement is “testimonial,” raising a “threshold question” that an ordinary hearsay objection does not broach. Thus, post-Crawford, a “defendant must object on the grounds that admission of the out-of-court statement will violate the defendant’s right to confront witnesses; it is not sufficient to object to the statements as inadmissible hearsay.” Reviewed for plain error, certain testimony about DNA profiles generated from a victim’s vaginal and anal swabs did not violate the Confrontation Clause. Whether a forensic scientist’s testimony about a DNA profile a colleague generated is “testimonial” splintered the United States Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012) (4-1-4 decision). And, like the law respecting autopsy reports, the question remains unresolved. An error is not plain when the law is this unsettled. Third, the Supreme Court of Nevada held that Flowers’ police interview did not violate his Fifth and Sixth Amendment right to counsel. “The Sixth Amendment right . . . is offense specific” and “does not attach until a prosecution is commenced.” But “a defendant’s statements regarding offenses for which he had not been charged [are] admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.” Fourth, the Court addressed the admission of certain gruesome photographs from the victim’s autopsy. “[D]espite gruesomeness, photographs of a victim’s injuries are typically admissible in a criminal case. . . . [T]he State is usually entitled to present its case in the manner it believes will be most effective.” With one or two possible exceptions, the photographs in this case had clear probative value to establish that two victim’s injuries were so similar that the same person—Flowers, whose DNA was found at both crime scenes—likely assaulted and killed both. On this record, the Supreme Court of Nevada could not say that the “photographs’ probative value was substantially outweighed by the danger of unfair prejudice [such that] the district court abused its discretion by admitting them.” Fifth, the Court held that the district court did not deny Flowers a fair trial by invoking Nevada hearsay rules to exclude certain testimony. Sixth, the Court rejected Flowers’ claim of prosecutorial misconduct and noted that “[a]n indirect comment violates the defendant’s Fifth Amendment right against self-incrimination only if the comment ‘was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant’s failure to testify.’” A mere passing reference to post-Miranda silence, without more, does not mandate an automatic reversal. Seventh, the Court held that ample evidence supported the jury’s verdict. Finally, Flowers was not entitled to relief for cumulative error, and certain evidence did not qualify as “newly discovered,” nor did it establish a basis for granting Flowers a new trial. Flowers v. State, 136 Adv. Op. No. 1, ___ P.3d ___ (January 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Judgments: (1) In this appeal, the Supreme Court of Nevada considered the preclusive effect of a qualified-immunity decision where the federal district court’s judgment addressed both prongs of the qualified-immunity inquiry, but the federal appellate court addressed only one prong to affirm the judgment; and (2) looking to federal common law, the Court held that “when a judgment in the first court resolves two issues, either of which is sufficient to support the result, the judgment is not preclusive for both issues when the appellate court only relies on one issue to affirm the judgment”; instead, “issue preclusion attaches only to the issue answered by the appellate court, not to the issue on which the appellate court was silent.” Federal common law applies the reasoning set forth in the Restatement (Second) of Judgments section 27 comment o (1982). The Restatement’s view on finality is that, “[i]f the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result,” and “the appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination.” Restatement (Second) of Judgments § 27 cmt. o (1982). This makes sense because only one issue has been finally decided. Furthermore, “[t]his result is supported by the fact that the appellate choice of grounds for decision has made unavailable appellate review of the alternative grounds,” and therefore, courts should not give this alternative ground issue-preclusive effect. Separately, the Court addressed Nevada’s discretionary-immunity doctrine. NRS 41.032(2) states in relevant part that no action shall be brought          

[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the State or any of its agencies or political subdivisions or of any             officer, employee or immune contractor of any of these, whether or not the discretion involved is abused.

To give rise to discretionary-act immunity, the act “must (1) involve an element of individual judgment or choice and (2) be based on considerations of social, economic, or political policy.” Moreover, “decisions at all levels of government, including frequent or routine decisions, may be protected by discretionary-act immunity, if the decisions require analysis of government policy concerns.” In determining whether the Las Vegas Metropolitan Police Department (LVMPD) is entitled to discretionary-act immunity from negligent hiring, training, and supervision claims, the Court looked to federal analogues. The Ninth Circuit and other federal courts “have held that decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield.” For LVMPD “to come within the discretionary function exception, the challenged decision need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis.” Paulos v. FCH1, LLC, 136 Adv. Op. No. 2, ___ P.3d ___ (January 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/


About the author:

About the author: Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).

Nevada Appellate Court Summaries (1-3-20)

By Joe Tommasino, Esq.

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