Brady (Richard) v. State ( 2013 )

 Additionally, the district court rejected Brady's proposed
instructions on identification after finding "that this is covered" in the
instructions addressing "the degree of credit due a witness." The district
court also found, based on "many of the elements" referenced in the
proposed instruction, that there was no evidence presented at trial to
justify giving the instruction. The district court pointed out that nothing
precluded Brady from arguing that the victim's identification was faulty.
Brady did not provide this court with the instructions provided to the jury
and we conclude that he fails to demonstrate that the district court abused
its discretion by rejecting his proposed instructions on identification.
Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122, 1129 (2009)
("This court reviews a district court's decision to issue or not to issue a
particular jury instruction for an abuse of discretion.").
Second, citing to Crawford v. Washington, 541 U.S. 36 (2004),
Brady contends that the district court violated his right to confrontation
by overruling his objection to the victim's "medical evidence" testimony.
Brady also claims that the victim's testimony about what he was told by a
medical professional regarding his injuries amounted to impermissible
double hearsay. The State argued below that the evidence was admissible
pursuant to the "medical history exception" to the hearsay rule. See NRS
51.115.
Brady did not argue below that his right to confrontation was
violated by the victim's testimony. See Ford v. Warden, 111 Nev. 872, 884,
901 P.2d 123, 130 (1995) (holding that an appellant "cannot change [his]
theory underlying an assignment of error on appeal"). Moreover, Brady's
reliance on Crawford on appeal is misplaced because the medical
information provided to the victim was not testimonial in nature or
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accusatory. See Crawford, 541 U.S. at 51-52; Harkins v. State, 122 Nev.
974, 987, 143 P.3d 706, 714 (2006) (identifying relevant factors used in
determining whether hearsay statement is testimonial). See generally
Flores v. State, 121 Nev. 706, 718 n.33, 120 P.3d 1170, 1178 n.33 (2005).
Further, even assuming that the victim's testimony about what he was
told by a medical professional was not admissible pursuant to NRS 51.115,
the district court's error was harmless because the victim also testified
that he suffered pain for an extended period of time as a result of the
attack. See Collins v. State, 125 Nev. 60, 64, 203 P.3d 90, 92-93 (2009)
(holding that "the phrase 'prolonged physical pain' must necessarily
encompass some physical suffering or injury that lasts longer than the
pain immediately resulting from the wrongful act"); see also Tabisk v.
State, 119 Nev. 293, 311, 72 P.3d 584, 595 (2003) ("Harmless error
analysis applies to hearsay errors.").
Third, Brady contends that the district court erred by rejecting
his proposed jury instruction on self-defense. We disagree. After hearing
arguments from counsel, the district court stated that it "heard absolutely
no evidence whatsoever of self-defense" during the trial and rejected
Brady's proposed instruction. We conclude that the district court did not
abuse its discretion. Ouanbengboune, 125 Nev. at 774, 220 P.3d at 1129.
Fourth, Brady contends that the district court erred by
denying his motion for payment of investigative fees in excess of $500. See
NRS 7.135. The district court has discretion to authorize expenses related
to investigative services. See Kirksey v. State, 112 Nev. 980, 1003, 923
P.2d 1102, 1117 (1996). We will not reverse a district court's denial of
such a motion if the defendant failed to demonstrate that the additional
funds for investigative services were reasonably necessary. See Gallego v.
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State, 117 Nev. 348, 369-70, 23 P.3d 227, 242 (2001), abrogated on other
grounds by Nunnery v. State, 127 Nev. , 263 P.3d 235 (2011), cert.
denied, U.S. , 132 S. Ct. 2774 (2012); Widdis v. Second Judicial
Dist. Court, 114 Nev. 1224, 1229, 968 P.2d 1165, 1168 (1998). Here, the
extent of Brady's argument in his ex parte motion was that "additional
witnesses remain to be located and interviewed." On appeal, however,
Brady claims that "several witnesses and evidence of the [S]tate could not
be tested by a properly trained investigator." As we noted above, an
appellant "cannot change [his] theory underlying an assignment of error
on appeal." Ford, 111 Nev. at 884, 901 P.2d at 130. Moreover, we
conclude that Brady fails to demonstrate that the district court abused its
discretion by denying his motion. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
,J.
Hardesty
Parraguirre ``." Cherry
cc: Hon. Thomas L. Stockard, District Judge
Hon. Robert E. Estes, Senior Judge
Martin G. Crowley
Churchill County District Attorney/Fallon
Attorney General/Carson City
Churchill County Clerk
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