Wilson (Kyle) v. State ( 2015 )

 Early December 2, 2011, Romine left home to go to work.
When Romine returned, he discovered the door ajar to a closet containing
recording equipment for the home's security cameras. The recording
equipment had been displaced from the closet to a kitchen chair. Romine
also discovered a kitchen window open and off its track. Additionally,
there were pliers wedged into the sliding glass door.
Crime scene analysts lifted fingerprints from the kitchen
window, which were identified as belonging to Wilson. Police also
reviewed the security camera footage, which showed an intruder wearing
a Toronto Blue Jays hat. Later, Wilson revealed to police that he was the
person in the video wearing the Toronto Blue Jays hat. Thus, Wilson
admitted to entering the home, but offered that he did so to use the
bathroom because it looked abandoned.
On March 6, 2012, the State charged Wilson with home
invasion. Wilson filed a discovery motion, requesting SCOPE (Shared
Computer Operations for Protection and Enforcement) and NCIC
(National Crime Information Center) reports for Romine and Nelson. The
district court denied Wilson's motion, concluding that it could not order
the State to disclose the requested reports.
During trial, Wilson proposed a jury instruction that would
define the term "reside" as used in the home invasion statute. See NRS
205.067(5)(b). Wilson's proposed instruction provided:
The term "reside," as used in these
instructions, means a person's actual residence.
That is, the place where an individual is legally
domiciled and maintains a permanent habitation.
In order to be legally domiciled in a particular
place, there must be a concurrence of fact and
intention: the person must make the place his
actual abode, place of physical presence, or
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abiding place, and he must evince intent to
permanently remain in and/or always return to
that place. A mere coming for a special purpose
and for a limited time does not establish legal
domicile.
The district court declined to give the instruction, concluding
that the instruction inaccurately applied domicile to the home invasion
context. At the conclusion of Wilson's jury trial, he was convicted of home
invasion. He appeals.
DISCUSSION
Brady Violation
Wilson contends that the State was required to disclose the
requested criminal history reports because the State must disclose
material information under Brady. "Determining whether the state
adequately disclosed information under Brady . . . requires consideration
of both factual circumstances and legal issues; thus, this court reviews de
novo the district court's decision." Mazzan v. Warden, 116 Nev. 48, 66, 993
P.2d 25, 36 (2000).
Brady requires prosecutors to disclose evidence favorable to
the defense when the evidence is material to guilt or punishment. Id.
"[There are three components to a Brady violation: the evidence at issue
is favorable to the accused; the evidence was withheld by the State, either
intentionally or inadvertently; and prejudice ensued, i.e., the evidence was
material." Id. at 67, 993 P.2d at 37 (citing Strickler v. Greene, 527 U.S.
263, 281-82 (1999)). The evidence is favorable to the accused and requires
disclosure "if it provides grounds for the defense to attack the reliability,
thoroughness, and good faith of the police investigation, to impeach the
credibility of the State's witnesses, or to bolster the defense case against
prosecutorial attacks." Id. Wilson maintains that the criminal history
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reports would have been favorable for the purpose of impeaching the
State's witnesses.
Here, Wilson has no basis for inferring that Nelson or Romine
even have a criminal history. See Strickler, 527 U.S. at 286 ("Mere
speculation that some exculpatory material may have been withheld is
unlikely to establish good cause for a discovery request on collateral
review."). Moreover, even if we presumed that the State's witnesses have
extensive criminal histories, Wilson's theory of defense is not buttressed
by impeachment of the State's witnesses. Wilson contended in the district
court and now on appeal that he did not violate the home invasion statute
because Romine did not technically "reside" in the home, as Romine did
not have the intent to remain there. Impeaching the State's witnesses
with criminal history information does not tend to prove whether, under
the law, a victim of home invasion must have the intent to remain in the
home. Nor would it prove whether, in fact, the victim had that intent.
Thus, Wilson has failed to demonstrate that the evidence would have been
favorable.
Wilson correctly asserts, however, that under the second
Brady factor, the reports were withheld by the State. The State insists
the reports were not in its possession or control because they were held by
the police department. In Roberts v. State, we determined the State was
in possession of a criminal informant file when the file was in local law
enforcement's possession. See 110 Nev. 1121, 1125, 1132, 881 P.2d 1, 3, 7-
8 (1994) overruled on other grounds by Foster v. State, 116 Nev. 1088, 13
P.3d 61 (2000). The working relationship between the state and local
police compelled the determination that they were a single entity for
purposes of producing discovery in criminal prosecutions. Wade v. State,
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114 Nev. 914, 919, 966 P.2d 160, 163 (interpreting Roberts). We have
emphasized that "the State may not circumvent the discovery process by
claiming that a local police department, an agent of the State, refuses to
disclose such documents." Id. In this case, as in Roberts, the State was in
possession of the reports because local law enforcement was in possession.
Furthermore, the State's argument that it was not permitted
to disclose the criminal history records pursuant to Judicial
Administration, 28 C.F.R. § 20.21, lacks merit. 28 C.F.R. § 20.21(c)(3)
provides: "States and local governments will determine the purposes for
which dissemination of criminal history record information is authorized
by State law, executive order, local ordinance, court rule, decision or
order." In turn, NRS 179A.110 explicitly authorizes the district court to
order disclosure of criminal history reports. Nonetheless, Wilson's
argument that the district court was required to order disclosure also fails.
NRS 179A.110 does not mandate disclosure, but permits it. See NRS
179A.110 (limiting criminal record use to purpose for which it was
requested, except in the case of a court order). Here, neither the State nor
the police were under court order to disclose.
Under the final Brady factor, the proper standard for
assessing materiality of omitted evidence depends on whether the defense
made a specific request for the evidence. Mazzan, 116 Nev. at 66, 993
P.2d at 36. If the defense did not request the evidence or made a general
request, the omitted "evidence is material if there is a reasonable
probability that the result would have been different if the evidence had
been disclosed." Id. (emphasis added). However, if the defense made a
specific request, the omitted evidence is material if there is a reasonable
possibility that the result would have been different had the evidence been
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disclosed. Id. Wilson made a specific request for SCOPE and/or NCIC
reports on September 7, 2012. Accordingly, the evidence was material if
there was a reasonable possibility that the result would have been
different if disclosed. We conclude, in light of the overwhelming evidence
of Wilson's guilt, any history of criminality that may have been revealed
by the requested reports would have had little or no bearing on the
defense's theory. Thus, there is no reasonable possibility that a decision
other than guilty would have been reached if disclosed.
Wilson contends, at minimum, that the district court should
have ordered in camera review to determine whether Nelson or Romine
had any convictions relevant for impeachment purposes. "[O]nce a
defendant has articulated a specific basis for claiming materiality of
particular evidence that it seeks. . . . the prosecutor bears the burden of
avoiding disclosure by seeking in camera review." Roberts, 110 Nev. at
1123, 881 P.2d at 2. Wilson has yet to articulate a specific basis for
claiming materiality. He does not allege with any particularity any
potential criminal offense that, if revealed through disclosure of the
reports, may be useful for impeachment or may lend credence to his theory
of defense. Therefore, Wilson was not entitled to in camera review.
Because Wilson is unable to show, under Brady, that the
withheld evidence was favorable to him or that it prejudiced him, the
district court did not err when it, without in camera review, denied his
request for NCIC and SCOPE reports on the State's witnesses.
Jury Instruction
Wilson asserts that the district court erred when it refused to
give his proposed jury instruction providing that a victim only "resides" in
a home for purposes of determining when a home invasion has been
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committed, when he or she intends to remain there. Wilson further argues
that Romine's lack of this requisite level of intent precludes Wilson's
conviction for home invasion. The State contends Wilson's proffered jury
instruction was improper for use in the context of home invasion, and if
applied, would lead to absurd results. We agree.
"This court reviews a district court's decision to issue or not to
issue a particular jury instruction for an abuse of discretion."
Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122, 1129 (2009).
However, we review whether a jury instruction is an accurate statement of
law de novo. Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339
(2009). We have "consistently held that the defense has the right to have
the jury instructed on its theory of the case as disclosed by the evidence,
no matter how weak or incredible that evidence may be." Crawford v.
State, 121 Nev. 744, 751, 121 P.3d 582, 586 (2005) (internal quotation
omitted). The defense is not, however, entitled to jury "instructions that
are misleading, inaccurate, or duplicitous." Id. at 754, 121 P.3d at 589.
Wilson was charged under NRS 205.067(1), which provides:
A person who, by day or night, forcibly
enters an inhabited dwelling without permission
of the owner, resident or lawful occupant, whether
or not a person is present at the time of the entry,
is guilty of invasion of the home.
An inhabited dwelling is then defined by NRS 205.067(5)(b):
"Inhabited dwelling" means any structure,
building, house, room, apartment, tenement, tent,
conveyance, vessel, boat, vehicle, house trailer,
travel trailer, motor home or railroad car in which
the owner or other lawful occupant resides.
(Emphasis added).
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The term resides, as used in NRS 205.067(1), does not require
intent to remain. "Residence," the noun form of "reside," means "[t]he act
or fact of living in a given place for some time." Black's Law Dictionary,
1502 (10th ed. 2014) (emphasis added). In addition, "residence" is
distinguished from "legal residence" or "domicile," which requires bodily
presence, in addition to intent to remain. Id; Williams v. Clark County
Din. Attorney, 118 Nev. 473, 482, 50 P.3d 536, 542 (2002) (noting that
actual residence is a place of living and does not require intent to remain,
in contrast from legal residence or domicile). There is no other indication
within NRS 205.067 that the Legislature intended the victim of home
invasion to possess intent to remain in the home. Thus, Wilson's jury
instruction, configured based on "legal residence" or "domicile" and
applicable in the civil context, see NRS 10.155, clearly presents an
inaccurate and misleading statement of law as it pertains to home
invasion. As such, Wilson was not entitled to the instruction. Based on
the foregoing, we
ORDER the judgment of conviction AFFIRMED.
J.
Parraguirre
r— Do
Douglas
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cc: Hon. Valerie Adair, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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