Gray (Duane) v. State ( 2014 )

 abused its discretion by allowing the State to ask witnesses about Gray's
criminal history and past marijuana use.'
There was sufficient evidence to support the battery upon an officer with a
deadly weapon conviction
Gray contends that there was insufficient evidence to support
his battery upon an officer with a deadly weapon conviction because the
evidence did not demonstrate that he intended to strike the officer. 2
In order to determine "whether a verdict was based on
sufficient evidence to meet due process requirements, [we] will inquire
'whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008) (quoting Koza v. State, 100 Nev.
245, 250, 681 P.2d 44, 47 (1984)); see also Jackson v. Virginia, 443 U.S.
'Gray also raises the following issues on appeal: (1) whether the
State committed a Brady violation, see Brady v. Maryland, 373 U.S. 83
(1963); (2) whether the prosecutor committed misconduct by allegedly
suggesting that a witness was intimidated and discussing Gray's subpoena
of the witness; (3) whether the prosecutor committed misconduct during
closing arguments; (4) whether the district court abused its discretion by
not giving Gray's proposed jury instructions; (5) whether the district
court's refusal to admit some of Gray's proffered evidence violated his
Sixth Amendment Confrontation Clause rights; (6) whether the district
court abused its discretion by refusing to let Gray call a fact witness to
rebut the testimony of the State's expert witness; (7) whether the district
court abused its discretion by refusing to admit an incomplete printout of
an article from a newspaper's website; and (8) whether cumulative error
warrants reversal. We conclude that these issues are without merit, and
we will not discuss them further.
2 Gray does not contest the sufficiency of the evidence supporting his
conviction for his failure to stop at the scene of an accident involving
personal injury.
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307, 319 (1979). "[We] will not reweigh the evidence or evaluate the
credibility of witnesses because that is the responsibility of the trier of
fact." Mitchell, 124 Nev. at 816, 192 P.3d at 727. Since a defendant's
state of mind "is a subjective matter, and, therefore, is seldom susceptible
of proof by direct evidence," it may be inferred from circumstantial
evidence. Sheriff v. Hodes, 96 Nev. 184, 187, 606 P.2d 178, 180 (1980).
Battery committed with a deadly weapon is a felony that
aggravates the misdemeanor of battery. NRS 200.481(2)(e)(1). Battery is
the "willful and unlawful use of force or violence upon the person of
another." NRS 200.481(1)(a). A deadly weapon is "[a]ny weapon, device,
instrument, material or substance which, under the circumstances in
which it is used, attempted to be used or threatened to be used, is readily
capable of causing substantial bodily harm or death." NRS 193.165(6)(b).
To support its theory that Gray intentionally struck the officer
with his vehicle, the State presented testimony from two eyewitnesses:
Gray's passenger and the police officer that Gray struck. Both witnesses
testified that Gray drove his vehicle into the officer and knocked him back
several feet. Since Gray drove his vehicle at the officer in a manner that
made it "readily capable of causing substantial bodily harm or death,"
Gray used his vehicle as a deadly weapon. NRS 193.165(6)(b); see also
Bustamante v. Evans, 140 F. App'x 655, 656 (9th Cir. 2005) (holding that a
defendant used his vehicle as a deadly weapon by driving it at a police
car). Thus, there was sufficient evidence that Gray used his vehicle as a
deadly weapon.
Despite evidence suggesting that Gray accidentally struck the
officer, there was sufficient evidence for the jury to find that Gray willfully
struck the officer. Gray's passenger testified that before turning onto the
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road where thefl incident occurred, she observed the officer blocking the
road with his police car and turning away traffic. She testified that the
officer held his hands up to signal for Gray to stop. The officer testified
that he made eye contact with Gray when Gray was approximately 30 feet
from him.
The State's expert witness, a psychiatrist, testified that Gray
was previously diagnosed with "adult antisocial behavior," a condition that
would cause him to challenge authority. Thus, Gray's actions, the
visibility of the roadblock, and the psychiatrist's testimony suggesting a
motive for physical confrontation with a police officer were sufficient to
allow a reasonable jury to conclude that Gray intentionally drove his
vehicle into the officer. Thus, there was sufficient evidence to support the
jury's verdict that Gray committed battery upon an officer with a deadly
weapon.
The district court's rejections of Gray's proffered evidence
Gray argues that the district court made multiple erroneous
rulings that excluded evidence that he proffered. We address two of these
rulings. 3
The district court's decision "to admit or exclude evidence is
given great deference and will not be reversed absent manifest error."
Baltazar-Monterrosa v. State, 122 Nev. 606, 613-14, 137 P.3d 1137, 1142
(2006). A district court's improper exclusion of evidence is reviewed for
harmless error. Vallery v. State, 118 Nev. 357, 371-72, 46 P.3d 66, 76
(2002). An error is harmless, and not grounds for reversal, unless there
3 Asstated in footnote 1, Gray's other assignments of error relating
to the rejection of his proffered evidence are without merit.
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was a "substantial and injurious effect or influence in determining the
jury's verdict." Mclellan v. State, 124 Nev. 263, 270, 182 P.3d 106, 111
(2008) (internal quotations omitted).
The district court abused its discretion by not allowing Gray to call
Kyle Ebert during his case-in-chief, but this abuse was harmless
Gray argues that the district court abused its discretion by not
allowing him to call Kyle Ebert as a witness to testify about Ebert's
observations of helicopters near the scene of the incident. As part of his
argument, Gray contends that NRS 174.234, held unconstitutional in part
by Grey v. State, 124 Nev. 110, 118, 178 P.3d 154, 160 (2008), did not
require him to disclose Ebert before trial because he discovered Ebert
during trial. The State argues that the district court did not abuse its
discretion by refusing to allow Ebert to testify because Gray did not
provide notice as required by NRS 174.234.
NRS 174.234(1) requires the State and a defendant to provide
each other with written notice of potential witnesses before trial. This
statute allows a party to call a witness who was not disclosed before trial if
the party provides updated notice to the other party, unless "the party
[calling the witness] acted in bad faith by not including the witness on the
written notice." NRS 174.234(3)(a). Bad faith requires an intent to act for
an improper purpose. See Fink v. Gomez, 239 F.3d 989, 992 (9th Cir.
2001) (defining "bad faith" in the context of a court's power to sanction a
party). Furthermore, we recognize that in criminal cases there is "a
strong presumption to allow the testimony of even late-disclosed
witnesses." Sampson v. State, 121 Nev. 820, 827, 122 P.3d 1255, 1260
(2005). Thus, NRS 174.234's exclusion applies when a party intentionally
acts for an improper purpose when not disclosing a witness. Here, Gray
provided "written notice . . . as soon as practicable after . . determin[ing]
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that [he] intend[ed] to call an additional witness" because he provided this
notice to the State the morning after he decided to call Ebert. NRS
174.234(3)(a). Thus, the record does not show that Gray violated NRS
174.234 by not disclosing Ebert before trial.
Ebert's proposed testimony related to whether Gray could
have sensed a purported trigger for his PTSD symptoms at the time of the
incident and therefore was relevant to Gray's proffered defense. See NRS
48.015 (providing that evidence is relevant if it "[has] any tendency to
make the existence of any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence").
Thus, the district court should have allowed Ebert to testify. See NRS
48.025(1) (providing that all relevant evidence is admissible except as
limited by statute or constitution). Therefore, the district court abused its
discretion by excluding Ebert as a witness.
This error, however, was harmless because Ebert's testimony
ultimately would have contributed to an invalid, diminished-capacity legal
defense. Nevada recognizes insanity as an affirmative defense to criminal
liability. NRS 194.010(3); Finger v. State, 117 Nev. 548, 568, 27 P.3d 66,
80 (2001). The insanity defense allows acquittal only when "a defendant
[is] in a delusional state such that he cannot know or understand the
nature and capacity of his act, or his delusion must be such that he cannot
appreciate the• wrongfulness of his act, that is, that the act is not
authorized by law." Finger, 117 Nev. at 576, 27 P.3d at 84-85; see also
Blake v. State, 121 Nev. 779, 793, 121 P.3d 567, 576 (2005) ("To be legally
insane, a defendant must be in a delusional state preventing him from
knowing or understanding the nature of his act or from appreciating the
wrongfulness of his act."). Though we have not addressed whether PTSD
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is a mental disease which can be the basis for an insanity defense, other
jurisdictions have held that PTSD can. See, e.g., United States v. Rezaq,
918 F. Supp. 463, 467 (D.D.C. 1996), aff'd, 134 F.3d 1121 (D.C. Cir. 1998);
State v. Fichera, 903 A.2d 1030, 1035 (N.H. 2006).
PTSD can also be relevant to the legal defense of diminished
capacity. A diminished capacity defense "requires only a showing of a
mental illness that is partially responsible for the defendant's conduct."
Miller v. State, 112 Nev. 168, 173, 911 P.2d 1183, 1186 (1996). Some other
jurisdictions recognize diminished capacity as a legal defense. See, e.g.,
State v. Ellis, 963 P.2d 843, 846 (Wash. 1998); State v. Ferguson, 662
S.E.2d 515, 520-21 (W.V. 2008). However, Nevada does not. Crawford v.
State, 121 Nev. 744, 757, 121 P.3d 582, 591 (2005). Therefore, diminished
capacity cannot be a legal defense in this case. See id.
Gray proffered Ebert's proposed testimony to advance the
theory that observing helicopters "adrenalized" Gray and caused "his
thoughts and actions [to be] adversely affected and/or slowed by his
PTSD." This theory was supported by Gray's psychologist's testimony that
Gray suffered from PTSD which caused him to become adrenalized and
"[r]aise[d] his anxiety level. . . and his vigilance for threats and danger."
Though PTSD is a mental disease, no evidence was proffered to show that
Gray's PTSD caused him to be delusional. Nor did the evidence in the
record show that Gray's PTSD prevented him from understanding the
nature of his conduct or appreciating its wrongfulness. Thus, Ebert's
proposed testimony, when combined with the other evidence in the record,
would not have been sufficient to establish an insanity defense. Therefore,
we do not resolve whether PTSD can be the basis for an insanity defense
under Nevada law.
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Instead of supporting an insanity defense theory, Ebert's
testimony may have supported Gray's theory that PTSD caused "his
thoughts and actions [to be] adversely affected and/or slowed." This
theory is a diminished capacity defense, which is not recognized in
Nevada. Crawford, 121 Nev. at 757, 121 P.3d at 591. Thus, Ebert's
testimony would only have contributed to an invalid legal defense. See id.
Therefore, the district court's refusal to let Ebert testify did not have a
"substantial and injurious effect or influence in determining the jury's
verdict" and was harmless. See Mclellan, 124 Nev. at 270, 182 P.3d at 111
(internal quotations omitted).
The district court did not abuse its discretion by refusing to admit
the Bureau of Land Management ern ail
Gray argues that the district court abused its discretion by
refusing to admit, pursuant to the general exception to the hearsay rule,
NRS 51.315, a copy of an email between two federal Bureau of Land
Management (BLM) employees that was forwarded to one of Gray's
attorneys." The email concerned the use of helicopters to fight the fire
near the scene of the incident. The district court refused to admit the
email on the grounds of unreliability because the email "ha[d] gone
through at least two different people before it was marked as an exhibit."
"Gray also argues that the email is admissible as a public record
pursuant to NRS 51.155. He did not raise this argument below, so we
review it for plain error. Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517,
524 (2007). Since Gray has not demonstrated that the district court's
refusal to consider this unproffered hearsay exception was an error that
was "so unmistakable that it is apparent from a casual inspection of the
record" or that it prejudiced his substantive rights, this argument is
without merit. Id. (internal quotations omitted).
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NRS 51.315(1), which establishes the general exception to the
hearsay rule, excludes a statement from the hearsay rule if (1) "[the
statement's] nature and the special circumstances under which it was
made offer strong assurances of accuracy" and (2) "[t]he declarant is
unavailable as a witness." Both conditions must be met to make a
statement admissible under this exception. Id. A statement has a strong
assurance of accuracy when the person giving the statement had no
connection to either party and the person making and the person
recording the statement each lacked a "demonstrable motive either to
inculpate or exculpate" the defendant. Maresca ix State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987).
There was no evidence in the record that the BLM employees
had any involvement in this case, a connection to either party, or a motive
to secure or prevent a conviction. However, the BLM email was sent
consecutively to two people, including Gray's attorney, before being offered
as evidence. Thus, it lacked the "strong assurances of accuracy" necessary
for admission under this hearsay exception. NRS 51.315(1). Since the
BLM email failed to meet the first condition of the general hearsay
exception, we do not address whether the second condition was satisfied.
Therefore, the district court did not abuse its discretion by refusing to
admit the BLM email under NRS 51.315's exception to the hearsay rule.
The district court abused its discretion by allowing the State to ask
witnesses about Gray's criminal history and prior marijuana use, but these
abuses were harmless
Gray argues that the district court abused its discretion by
allowing the State to elicit testimony about his criminal history and prior
marijuana use. The State argues that Gray opened the door to
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consideration of these issues by making his mental health an issue in the
case.
"[We] review[ ] a district court's decision to admit or exclude
prior-bad-act evidence under an abuse of discretion standard." Newman v.
State, 129 Nev. „ 298 P.3d 1171, 1178 (2013). Failure to conduct a
hearing as required by Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d
503, 507-08 (1985), superseded by statute on other grounds as stated in
Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818, 823 (2004), or give a
necessary limiting instruction is subject to a harmless error analysis.
Rhymes v. State, 121 Nev. 17, 22, 24, 107 P.3d 1278, 1281-82 (2005).
Evidence of a defendant's other crimes or wrongful acts is not
admissible unless presented for a limited purpose, "such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." NRS 48.045(2). However, if a defendant
opens the door to an issue that the State may otherwise not address, the
State may provide evidence in response. See Wesley v. State, 112 Nev. 503,
513, 916 P.2d 793, 800 (1996).
If the State seeks to admit prior bad act evidence about an
issue that the defendant did not open the door to, the district court must
conduct a Petrocelli hearing on the record to determine "(1) that the
evidence is relevant to the crime charged; (2) that the other act is proven
by clear and convincing evidence; and (3) that the probative value of the
other act is not substantially outweighed by the danger of unfair
prejudice." Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765,766 (1998).
When admitting prior bad act evidence, the district court must provide a
limiting instruction. Rhymes, 121 Nev. at 23, 107 P.3d at 1282.
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We will not reverse a conviction because of a district court's
abuse of discretion when the abuse of discretion constitutes harmless
error. Knipes v. State, 124 Nev. 927, 933, 192 P.3d 1178, 1182 (2008). An
error is harmless unless there was a "substantial and injurious effect or
influence in determining the jury's verdict." Mclellan v. State, 124 Nev.
263, 270, 182 P.3d 106, 111 (2008) (internal quotations omitted).
Gray's criminal history
The State inquired about Gray's prior criminal history during
its cross-examination of Gray's expert witness, a psychologist. Before
Gray objected, the State elicited a statement from the psychologist that
Gray had been arrested or convicted at leaSt two times before the present
incident. The district court then conducted a Petrocelli hearing outside
the jury's presence and found that testimony regarding Gray's prior
criminal convictions was inadmissible because its probative value did not
sufficiently outweigh its prejudicial impact. However, the district court
did not instruct the jury to disregard the testimony about Gray's
convictions that occurred simultaneously to his objection. Thus, the
district court abused its discretion by not admonishing the jury to
disregard this inadmissible testimony. See Ledbetter v. State, 122 Nev.
252, 265, 129 P.3d 671, 680 (2006) (holding that a witness's reference to an
inadmissible subject "can be cured by an immediate admonishment
directing the jury to disregard the statement" (internal quotations
omitted)).
Here, the district court's abuse of discretion was harmless.
The evidence which suggested that Gray had at least two prior arrests and
convictions did not address the nature of the prior convictions, when or
where they occurred, or any facts that would connect them to charged
crimes. In addition, the discussion of Gray's prior criminal history
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constituted an insignificant portion of the State's cross-examination of
Gray's psychologist. Thus, the testimony about Gray's prior arrests and
convictions lacked a "substantial and injurious effect or influence in
determining the jury's verdict" and was harmless. Mclellan, 124 Nev. at
270, 182 P.3d at 111 (internal quotations omitted).
Gray's prior marijuana use
Since marijuana is a controlled substance, its past
consumption is a prior bad act. Thus, the district court must conduct a
Pet rocelli hearing on the record before allowing the State to proffer
evidence about it. Qualls, 114 Nev. at 902, 961 P.2d at 766.
On direct examination, the State's psychiatrist answered one
question about Gray's prior marijuana use and testified that it had an
unclear impact on Gray's mental health. The district court then conducted
a hearing off the record and ruled that this testimony was admissible
because Gray opened the door to expert testimony about his past
marijuana use. 5 The record does not demonstrate that the district court
resolved the Petrocelli issues in favor of admission of the evidence of
Gray's prior marijuana use. Thus, Gray's prior marijuana use was only
admissible if Gray opened the door to this issue.
5 Though he raises the issue on appeal, Gray did not object when the
State questioned his psychologist about Gray's prior marijuana use. We
therefore review this issue for plain error. Nelson, 123 Nev. at 543, 170
P.3d at 524. The admission of this testimony was not plain error because
Gray has not demonstrated that the admission affected his substantial
rights and prejudiced him See Mitchell v. State, 124 Nev. 807, 817, 192
P.3d 721, 728 (2008) (holding that the admission of prior bad act evidence
was not plain error when the defendant put his character at issue and the
evidence was relevant to his truthfulness).
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C
Gray opened the door to consideration of his mental health by
calling a psychologist to testify about his PTSD. However, Gray did not
raise the issue of prior marijuana use because he did not develop any
evidence relating to his use or nonuse of illicit drugs. Therefore, Gray did
not open the door to the issue of his past marijuana use by making his
mental health an issue. Since Gray did not open the door and the district
court did not consider the Petrocelli factors on the record, the admission of
testimony about Gray's prior marijuana use was an abuse of discretion.
However, this abuse was harmless. The evidence of Gray's
past marijuana use was tangential to the charged crime because neither
drug use nor impaired driving was alleged. In addition, the State's
psychiatrist answered only one question about marijuana use and stated
that the medical records were unclear about its impact. This issue was
not a significant element of the psychiatrist's testimony, and the record
does not suggest that it influenced her opinion about Gray's mental
health. Thus, the limited evidence of Gray's prior marijuana use was
harmless because it did not have a "substantial and injurious effect or
influence in determining the jury's verdict." Mclellan, 124 Nev. at 270,
182 P.3d at 111 (internal quotations omitted).
Conclusion
There was substantial evidence to support Gray's conviction of
battery upon an officer with a deadly weapon. Though the district court
abused its discretion by not allowing Gray to call Ebert as a witness
during his case-in-chief and by allowing testimony about Gray's prior bad
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acts, these abuses were harmless. Finally, the district court did not abuse
its discretion by refusing to admit the BLM email Therefore, we
ORDER the judgment of the district court AFFIRMED.
Pickering
J.
Parraguirre
cc: Hon. Michael Montero, District Judge
Dolan Law, LLC
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
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SAITTA, J., dissenting:
Though I agree with most of the majority's conclusions, I
respectfully disagree with the majority's holding that the district court's
abuse of discretion in failing to admonish the jury to disregard the
improper testimony about Gray's criminal history was a harmless error.
Therefore, I respectfully dissent.
The majority seems not to fully account for the prejudicial
effect that evidence of a prior conviction may have on a criminal
defendant. See Crawford v. State, 107 Nev. 345, 348, 811 P.2d 67, 69
(1991) (stating that evidence of prior bad acts "may unduly influence the
jury, and result in a conviction of the accused because the jury believes he
is a bad person" (internal quotations omitted)). Instead of directly
addressing this issue, the majority concludes that the district court's
abuse of discretion was harmless because the testimony about Gray's
criminal history was brief and "did not address the nature of the prior
convictions, when or where they occurred, or any facts that would connect
them to charged crimes."
However, the improper testimony's brevity and omissions do
not render it harmless. There is no way to know whether or to what
extent the jury considered Gray's criminal history. Though this testimony
was vague and brief, it nonetheless informed the jury about Gray's
repeated arrests and convictions. The district court's failure to admonish
the jury to disregard this testimony may have allowed the jury to identify
Gray as a criminal who deserved punishment for his past crimes or to use
his prior arrests and convictions as propensity evidence to conclude that
he committed the present crimes. In a case like this, propensity evidence
is especially troubling because the primary issue in dispute was whether
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Gray intended to drive into the officer or if he accidently collided with him
Because of this risk of prejudice, I believe that the district court's abuse of
discretion was not harmless. Thus, it is a reversible error.
I also believe that the district court's admission of the State's
expert's testimony about Gray's past marijuana use is troubling. I
disagree with the majority's reasoning that this testimony was harmless
because it was tangential to the issues discussed by the State's expert
witness. Though the State presented no evidence that Gray was under the
influence of any illicit drugs at the time of the incident, any testimony
about his past marijuana use may have caused the jury to speculate about
whether he was under the influence of marijuana at the time of the
incident. By allowing prior drug use testimony without a limiting
instruction, the district court may have allowed the jury to punish Gray
for his prior marijuana use or to consider it as propensity evidence to
establish guilt in the present case. Thus, the discussion of Gray's past
marijuana consumption could have been unfairly prejudicial.
However, I reluctantly must conclude that, although an abuse
of discretion, the error was harmless inasmuch as the objected-to
testimony about Gray's past marijuana use was simply cumulative to the
unobjected-to testimony about his past drug use. When the State cross-
examined Gray's expert about this issue, Gray failed to object. As the
majority correctly notes, the admission of the unobjected-to testimony
about Gray's prior marijuana use was not plain error because it could be
relevant to his mental health. See Mitchell v. State, 124 Nev. 807, 817-18,
192 P.3d 721, 727-28 (2008) (holding that the admission of relevant prior
bad act evidence after the defendant has put his character at issue is not
plain error). Since the State's expert's testimony about Gray's past
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marijuana use was similar to Gray's expert's testimony about this issue,
the improper admission of the State's expert's testimony did not present
any new issues for the jury. Thus, given the fact that this was essentially
the same as the unobjected-to testimony, the abuse of discretion was likely
harmless.
Though the district court's abuse of discretion in admitting the
State's expert's testimony about Gray's marijuana use was harmless, its
abuse of discretion in failing to admonish the jury to disregard the
inadmissible testimony about Gray's prior arrests and convictions was not
harmless. I would therefore reverse Gray's conviction and remand this
case for a new trial.
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