Perez, IV (Marcial) v. State ( 2014 )

 that Perez testified on cross-examination that becoming a convicted felon
would affect his employment as an electrician and general foreman in the
union where he makes $43 an hour, result in the loss of his clearance for
entering vaults and other high-security areas in casinos, and impact the
custody of his child. The State argues that the fact that Perez lied to the
police during the collateral incident was relevant to show that he will do
anything to prevent a criminal conviction and to otherwise protect his job
and his status as the primary custodian of his child.
"We review a district court's decision to admit or exclude
evidence for an abuse of discretion." Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008). "An abuse of discretion occurs if the district
court's decision is arbitrary or capricious or if it exceeds the bounds of law
or reason." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005)
(internal quotation marks omitted).
Whenever a criminal defendant takes the witness stand, he
becomes a witness and places his credibility at issue. See 2 Wharton's
Criminal Evidence § 9:21 (15th ed. 1997). The State is permitted to
impeach a defendant's credibility by inquiring into collateral matters on
cross-examination "with questions about specific acts as long as the
impeachment pertains to truthfulness or untruthfulness and no extrinsic
evidence is used." Ford v. State, 122 Nev. 796, 806, 138 P.3d 500, 507
(2006) (quoting Collman v. State, 116 Nev. 687, 703, 7 P.3d 426, 436
(2000)); see NRS 50.085(3). However, the collateral matter in this case
does not plainly pertain to truthfulness. The fact that Perez told a police
SUPREME COURT
OF
NEVADA
2
(0) 1947A ze
officer that he had no reason to burglarize cars and later pleaded guilty to
tampering with cars does not demonstrate he was untruthful because the
crime that he denied and the crime that he admitted to are two different
crimes. See NRS 200.060 (defining burglary); NRS 205.274 (defining
tampering with cars). Therefore, we conclude that the district court
abused its discretion by allowing the State to cross-examine Perez
regarding this collateral matter.
The State also is not permitted to impeach a defendant with
extrinsic evidence of collateral matters unless the "extrinsic evidence [is]
relevant to prove [the defendant's] motive to testify in a certain way, i.e.,
bias, interest, corruption or prejudice." Lobato v. State, 120 Nev. 512, 519,
96 P.3d 765, 770 (2004). Here, the collateral fact that Perez may have lied
to a police officer during an unrelated investigation in another case does
not demonstrate or even suggest that Perez had motive to testify in a
certain manner in this case. Instead, it has the effect of improperly
impeaching Perez's credibility by contradicting his cross-examination
testimony. See id. ("NRS 50.085(3) limits the admissibility of extrinsic
evidence for the purpose of attacking credibility based upon specific
instances of conduct attributable to the witness. Unless in some way
related to the case and admissible on other grounds, extrinsic prior bad act
evidence is always collateral and therefore inadmissible to attack
credibility."). Therefore, we conclude that the district court abused its
discretion by allowing the State to present rebuttal evidence regarding
this collateral matter.
SUPREME COURT
OF
NEVADA
3
(0) 1947A en
Harmless error analysis
Perez claims that the error in admitting extrinsic evidence of
the collateral incident was not harmless because the record plainly
demonstrates that the district court and the parties believed that the
admission of this evidence would likely have a strong influence on the
jury's verdict. The State acknowledges that there is no dispute that the
trial boiled down to credibility, but it argues that any error was harmless
because Perez's story changed on numerous occasions, his testimony did
not match the physical evidence, and his testimony did not support his
theory of self-defense.
"A nonconstitutional error, such as the erroneous admission of
evidence at issue here, is deemed harmless unless it had a substantial and
injurious effect or influence in determining the jury's verdict." Newman v.
State, 129 Nev. , 298 P.3d 1171, 1181 (2013) (internal quotation
marks omitted). The record on appeal—including the recordings of the
311 and 911 calls and Perez's police interview—demonstrates that this
was a close case. As the jury's verdict hinged almost entirely upon its
assessment of the witnesses' credibility, we cannot say that the district
court's error was harmless.
Motion for mistrial
Perez claims that the district court erred by denying his
motion for a mistrial after the State's rebuttal witness improperly testified
that he had previously spoke with Perez while investigating "an auto
burglary." However, we need not reach this issue because, as set forth
SUPREME COURT
OF
NEVADA
4
(0) 1947A et.
above, the introduction of improper impeachment evidence was not
harmless and mandates reversing the judgment of conviction and
remanding the case for a new trial.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.'
Pickering
, J.
Parraguirre Saitta
cc: Hon. Michelle Leavitt, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'The fast track statement does not comply with the formatting
requirements of NRAP 3C(h)(1) and NRAP 32(a)(4) because it is not
paginated. We caution appellant's counsel that failure to comply with the
applicable rules when filing briefs in this court may result in the
imposition of sanctions. See NRAP 3C(n).
SUPREME COURT
OF
NEVADA
5
(0) 1947A 910124