Rodriguez (Evaristo) v. State ( 2015 )

 with a tinted license plate and a silver Chevrolet Impala. One of the
victims also called 9-1-1 and provided similar information. Shortly
thereafter, a police sergeant located two vehicles that matched the
descriptions given by the eyewitness and the victims. The sergeant, along
with backup officers, effectuated a high-risk "felony stop." At gunpoint,
they ordered Rodriguez out of the dark-colored sedan, placed him in
handcuffs, and secured him in the back of a police vehicle. Upon searching
the vehicle—assertedly with Rodriguez's consent 2—police found the
revolver underneath the passenger's seat. Because Rodriguez is an ex-
felon, he was immediately taken into custody.
Rodriguez was indicted on charges of false imprisonment with
a deadly weapon, discharging a firearm at a vehicle, being an ex-felon in
possession of a firearm, and assault with a deadly weapon. The State also
filed a notice of intent to seek habitual adjudication based on Rodriguez's
two prior felony convictions. After a four-day trial, a jury convicted
Rodriquez of all charges and the district court sentenced him to four
consecutive habitual offender sentences for a total of thirty-two to eighty
years imprisonment.
Rodriguez appeals, advancing four principal arguments: (1)
the district court erred by denying Rodriguez's motion to suppress
evidence of a firearm that police found in the car, (2) the district court
erred by excluding an out-of-court statement made by an allegedly
unavailable third party, (3) the district court should have given a jury
instruction on eyewitness identification, and (4) the district court abused
2 The parties dispute whether Rodriguez voluntarily consented to the
search. For the reasons stated below, we need not address this issue.
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its discretion by imposing four consecutive habitual offender sentences.
We affirm
A motion to suppress presents mixed questions of law and fact.
State v. Beckman, 129 Nev., Adv. Op. 51, 305 P.3d 912, 916 (2013). "This
court reviews findings of fact for clear error, but the legal consequences of
those facts involve questions of law we review de novo." Id. Here, the
district court did not err by denying Rodriguez's motion to suppress the
handgun that officers seized during the warrantless search of his vehicle
because the officers had probable cause to believe that Rodriguez had just
committed a crime. See State v. Lloyd, 129 Nev., Adv. Op. 79, 312 P.3d
467, 474 (2013) ("In the automobile-exception context, a police officer who
has probable cause to believe the car contains contraband or evidence of a
crime must either seize the vehicle while a warrant is sought or search the
vehicle without a warrant. Given probable cause, either course is
constitutionally reasonable."). Indeed, "[p]robable cause exists where the
facts and circumstances within their (the officers') knowledge and of which
they had reasonably trustworthy information (are) sufficient in
themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed," Brinegar v. United States, 338
U.S. 160, 175-76 (1949) (internal quotation marks omitted), and here,
dispatch informed officers that there had been shots fired at the Silver
Legacy parking garage, the shooter was driving a dark-colored four-door
sedan with a tinted license plate, followed by a silver Chevrolet Impala,
and Sergeant Browett, who parked outside the Silver Legacy parking
garage within minutes of the incident, observed and followed the two
vehicles as they left the parking garage. Thus, even if the police encounter
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amounted to a de facto arrest, as Rodriguez contends, the facts and
circumstances justified the warrantless search and seizure. 3
"[I]n determining the relevance and admissibility of evidence,'
a district court's discretion is 'considerable." Holmes v. State, 129 Nev.,
Adv. Op. 59, 306 P.3d 415, 418 (2013) (quoting Crowley v. State, 120 Nev.
30, 34, 83 P.3d 282, 286 (2004)). Although Rodriguez argues that
exclusion of Abelina Ramirez's hearsay statement deprived him of his
right to present a complete defense, the district court did not abuse its
considerable discretion by excluding the statement because hearsay is
generally inadmissible, NRS 51.065, and the statement against interest
exception, NRS 51.345, did not apply.
A statement against interest is admissible if the declarant is
unavailable and the statement, at the time it was made, "[s]o far tended to
subject the declarant to civil or criminal liability[ ] . . . that a reasonable
person in the position of the declarant would not have made the statement
unless the declarant believed it to be true." Coleman v. State, 130 Nev.,
Adv. Op. 26, 321 P.3d 901, 906 (2014). In addition, if the statement
"tending to expose the declarant to criminal liability [is] offered to
exculpate the accused in a criminal case," it is "not admissible unless
3 "[I]t
is apparent that probable cause is legally sufficient where the
lesser intrusion of a traffic stop occurs," 4 Wayne R. LaFaye, Search &
Seizure: A Treatise on the Fourth Amendment § 9.3(a) (5th ed. & Supp.
2014), so we need not address whether Rodriguez voluntarily consented to
the search or whether the police encounter was a proper Terry stop. See
Terry v. Ohio, 392 U.S. 1, 27 (1968); State v. Lisenbee, 116 Nev. 1124,
1127-28, 13 P.3d 947, 949-50 (2000) (articulating standard for proper
Terry stop and noting its codification as NRS 171.123(1)).
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corroborating circumstances clearly indicate the trustworthiness of the
statement." NRS 51.345(1). It is undisputed that Ramirez's statement
tended to expose her to criminal liability. Nevertheless, Rodriguez did not
satisfy the other two requirements because he did not attempt to summon
Ramirez to testify' and there was insufficient evidence that her statement
was trustworthy. Granted, the trustworthiness requirement "must not be
so rigorously applied that it ignores the purpose for the n110,1" Coleman,
130 Nev., Adv. Op. 26, 321 P.3d at 903, but here Rodriguez testified that
he never saw Ramirez with the gun, Ramirez gave inconsistent accounts of
the night in question, and during the suppression hearing the district
court found Ramirez not credible, bordering on perjurious. Thus, the
district court properly excluded the hearsay evidence.
IV.
This court adheres "to the accepted view . . . that specific
eyewitness identification instructions need not be given, and are
duplicitous of the general instructions on credibility of witnesses and proof
beyond a reasonable doubt." Nevius v. State, 101 Nev. 238, 248-49, 699
P.2d 1053, 1060 (1985). Nevertheless, Rodriguez argues that the district
court should have given his proposed "Telfaire 5 instruction" on eyewitness
identifications, because Nevius cannot be reconciled with Perry v. New
Hampshire, 565 U.S. , 132 S. Ct. 716 (2012). We disagree.
4 Contraryto Rodriguez's argument that "the defendant attempting
to present such evidence is not so constricted," NRS 51.055(d) does not
distinguish between parties.
5 United States v. Telfaire, 469 F.2d 552, 558-59 (D.C. Cir. 1972).
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In Perry, the Supreme Court considered whether trial courts
must screen all eyewitness identifications for reliability, including
identifications made without improper law enforcement influence. 565
U.S. at , 132 S. Ct. at 720-21. While acknowledging the fallibility of
eyewitness identifications, the Court concluded that such screening was
unnecessary because there are "other safeguards built into our adversary
system," including the right to confront witnesses, right to counsel, and
eyewitness-specific jury instructions, "that caution juries against placing
undue weight on eyewitness testimony of questionable reliability." Id. at
132 S. Ct. at 728-29. This dicta on "safeguards" evidences the Court's
approval of procedures that test the reliability of eyewitness identification,
but contrary to Rodriguez's argument, approval, even from the Supreme
Court, is not the same as a constitutional mandate.
Citing cases from other jurisdictions, including Gunning v.
State, 701 A.2d 374 (Md. 1997), State ix Long, 721 P.2d 483 (Utah 1986),
and State v. Guster, 421 N.E.2d 157 (Ohio 1981), Rodriguez nevertheless
argues that Nevius is outdated and should be overruled even if Perry does
not require eyewitness identification instructions because eyewitness
identifications are often less reliable than jurors may appreciate and
district courts should have discretion to decide on a case-by-case basis
whether an instruction is appropriate. Given the fact that other
jurisdictions vary widely in the necessity of eyewitness identification
instructions, 6 we do not agree that Nevius is outdated. Moreover, Nevius
6Vitauts M. Gulbis, Annotation, Necessity of, and Prejudicial Effect
of Omitting, Cautionary Instruction to Jury as to Reliability of, or Factors
to be Considered in Evaluating, Eyewitness Identification Testimony—
State Cases, 23 A.L.R.4th 1089 (1983 & Supp. 2015).
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does not prohibit the discretionary approach for which Rodriguez
advocates. Instead, Nevius follows the majority approach, namely, that
eyewitness identification instructions are not mandatory, without
commenting as to whether district courts may give such instructions. 101
Nev. at 248-49, 699 P.2d at 1060. Thus, here, as in Nevius, "the district
court did not err by refusing to give appellant's proposed instruction." Id.
at 249, 699 P.2d at 1060.
V.
"Adjudication of a defendant as a habitual criminal is 'subject
to the broadest kind of judicial discretion." LaChance v. State, 130 Nev.,
Adv. Op. 29, 321 P.3d 919, 929 (2014) (emphasis omitted) (quoting
Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148, 152 (1997)). Here,
Rodriguez qualified as a habitual criminal pursuant to NRS 207.010
because the State proved beyond a reasonable doubt that Rodriguez
previously was convicted of two different felonies that involved two
different incidents. And while Rodriguez was sentenced for both prior
offenses on the same day, 'our statute does not require that the
convictions and commissions of prior offenses occur in any particular
sequence." Carr v. State, 96 Nev. 936, 939, 620 P.2d 869, 871 (1980).
Moreover, the district court did not• abuse its broad discretion by
sentencing Rodriguez to • four consecutive habitual offender sentences
because "Mlle sentencing court may enhance each primary offense
pursuant to one enhancement statute," Barrett v. State, 105 Nev. 361, 365,
775 P.2d 1276, 1278 (1989), and the jury convicted Rodriguez of four
primary offenses.
For these reasons, we
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ORDER the judgment of the district court AFFIRMED.?
, C.J.
Hardesty
-111C) C27 CIL --V err , J.
Parraguirre
41E±, J.
Ch Saitta
7/
1
Gibbons Pickering
cc: Hon. Janet J. Berry, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
7 In light of this order, we deny as moot Rodriguez's April 24, 2015,
"Motion to Reconsider and/or Clarify Order of April 23, 2015."
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