Lakeman (Ronald) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
RONALD ERNEST LAKEMAN, No. 64609
Appellant,
vs. FILE
THE STATE OF NEVADA,
JUN 2 2 2016
Respondent.
CIE K DEMar
ORDER OF AFFIRMANCE fi
Appeal from a judgment of conviction, pursuant to a jury
verdict, of six counts of insurance fraud, four counts of performance of an
act in reckless disregard of persons or property resulting in substantial
bodily harm, four counts of criminal neglect of patients resulting in
substantial bodily harm, one count of theft, and one count of obtaining
money under false pretenses. Eighth Judicial District Court, Clark
County; Valerie Adair, Judge.
Appellant Ronald Lakeman is a Certified Registered Nurse
Anesthetist (CRNA) who worked at the Endoscopy Center of Southern
Nevada (hereinafter, the clinic), which was run by co-defendant Dr. Dipak
Desai.•This case arises out of an outbreak of hepatitis C that occurred at
the clinic in 2007. Lakeman was alleged to have administered propofol, an
anesthetic used in colonoscopies, in a manner that allowed patient blood to
contaminate vials of propofol, which were subsequently reused on different
patients.
Lakeman was convicted of six counts of insurance fraud, four
counts of reckless disregard of persons or property resulting in substantial
bodily harm (NRS 202.595), four counts of criminal neglect of patients
resulting in substantial bodily harm (NRS 200.495), one count of obtaining
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money under false pretenses, and one count of theft. The district court
imposed a sentence of 8-20 years in prison. Lakeman argues on appeal
that the trial venue should have been changed, his Confrontation Clause
rights were violated, there was insufficient evidence to convict him under
NRS 200.495, the district court erred in allowing a Centers for Disease
Control and Prevention (CDC) investigator's testimony into evidence, the
State committed prosecutorial misconduct, and NRS 202.595 is the lesser
included offense of NRS 200.495. For the following reasons, we disagree
and affirm the conviction.
Change of venue
Lakeman argues that the district court erred in failing to
grant a change of venue motion. However, after reviewing the record, we
conclude that no change of venue motion was made. Although Dr. Desai's
counsel broached the subject, there was never an argument made by any
party on the matter, nor a ruling by the district court.
"As a general proposition, the failure to follow statutory
procedures ... as well as the failure to raise a proper objection below, will
preclude appellate review of the disputed evidence." Wilkins v. State, 96
Nev. 367, 372, 609 P.2d 309, 312 (1980). NRS 174.464 requires that an
"application for removal . . . be made in open court, and in writing, verified
by . .. affidavit . . . ." Lakeman failed to follow the prescribed statutory
procedure for challenging venue because he did not make an oral or
written motion at district court, and thus he waived this issue on appeal.
Wilkins, 96 Nev. at 372, 609 P.2d at 312 (concluding that an appellant's
failure to object in the district court constituted a waiver of his Fifth and
Sixth Amendment claims); see generally Nat'l Collegiate Athletic Ass'n v.
Tarkanian, 113 Nev. 610, 612, 939 P.2d 1049, 1050-51 (1997) (discussing
change of venue factors). Additionally, although Lakeman argues on
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appeal that venue was inappropriate in Clark County, in many instances
the record does not substantiate his claims. Therefore, we will not
consider the change of venue argument because Lakeman did not object at
district court, he did not follow the proper statutory procedures, and the
record is not sufficiently developed on appeal.
Confrontation Clause
Lakeman argues that his Confrontation Clause rights were
violated because the district court allowed a patient-witness's recorded
testimony into evidence even though the witness died before Lakeman
could cross-examine him. Although an unavailable witness's testimonial
statement is inadmissible "unless the defendant had an opportunity to
previously cross-examine the witness regarding the witness's statement,"
reversal is not warranted unless appellant demonstrates that an error was
prejudicial. Vega v. State, 126 Nev. 332, 338, 340 236 P.3d 632, 637, 638
(2010) (internal quotations omitted). "Under this standard, reversal is not
required if the State could show beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." Medina v. State,
122 Nev. 346, 355, 143 P.3d 471, 477 (2006) (internal quotations omitted).
The witness's deposition does not implicate Lakeman's involvement in his
treatment. In fact, the jury acquitted Lakeman on the counts that solely
involved treatment of the witness. Lakeman also failed to show that the
deposition testimony was prejudicial to his conviction on other counts.
Therefore, we conclude that the error was harmless. Id.
Sufficiency of the evidence under NRS 200.495
Lakeman argues that his conduct did not rise to the level of
"aggravated, reckless or gross" as required under NRS 200.495. Lakeman
points to evidence in the record that he, and other CRNAs, did not
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consciously understand or disregard the risk to patients caused by the
unsafe injection practice.
However, Dr. Melissa Schafer, a CDC investigator, testified
that Lakeman admitted in a phone interview that he understood the risks
associated with his injection technique. This court will not reweigh the
credibility of Dr. Schafer's testimony against the other CRNAs. See
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)) ("[I]t is the jury's function,
not that of the court, to assess the weight of the evidence and determine
the credibility of witnesses."). Accordingly, we conclude that there is
sufficient evidence because, "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." Id. (internal
quotations omitted).
Suppression of the CDC investigator's testimony
In Dr. Schafer's phone interview with Lakeman, she identified
herself as a CDC investigator, promised not to use his name, and asked
him questions about the clinic's practices. Lakeman agreed to talk
because of the promised anonymity, but stated that he would deny talking
to her if asked. At trial, Lakeman moved to suppress Dr. Schafer's
testimony, and the district court denied the motion. Lakeman now argues
that if the CDC is allowed to breach its promises of anonymity, other
medical professionals will be reluctant to speak with investigators.
Lakeman further argues that his statement that he would deny talking to
Dr. Schafer if asked must be suppressed pursuant to NRS 48.035(1).
Lakeman provides no authority for his position that Dr.
Schafer's testimony should be suppressed on public policy grounds. We
therefore decline to consider this argument. Browning v. State, 120 Nev.
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347, 354, 91 P.3d 39, 45 (2004) (IADn appellant must present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court." (internal quotations omitted)).
Furthermore, NRS 48.035(1) provides: "Although relevant,
evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or
of misleading the jury." But "all evidence offered by the prosecutor is
prejudicial to the defendant; there would be no point in offering it if it
were not." Holmes v. State, 129 Nev., Adv. Op. 59, 306 P.3d 415, 420
(2013) (quoting United States v. Foster, 939 F.2d 445, 456 (7th Cir. 1991)).
The question is whether the evidence is unfairly prejudicial—whether "it
encourages the jury to convict the defendant on an improper basis." Id.
Lakeman fails to articulate how his statement that he would deny talking
to Dr. Schafer if asked unfairly prejudiced him at trial, so we conclude
that the district court did not err in denying the motion in limine. See
Browning, 120 Nev. at 354, 91 P.3d at 45.
Prosecutorial misconduct
Lakeman alleges numerous instances of prosecutorial
misconduct. This court uses a two-step analysis for prosecutorial
misconduct claims: (1) "whether the prosecutor's conduct was improper,"
and (2) "if the conduct was improper . . . whether the improper conduct
warrants reversal." Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465,
476 (2008). "If the error is of constitutional dimension, then we ... will
reverse unless the State demonstrates, beyond a reasonable doubt, that
the error did not contribute to the verdict." Id. at 1189, 196 P.3d at 476.
"If the error is not of constitutional dimension, we will reverse only if the
error substantially affects the jury's verdict." Id. Prosecutorial
misconduct may take on a constitutional dimension "if, in light of the
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proceedings as a whole, the misconduct so infected the trial with
unfairness as to make the resulting conviction a denial of due process." Id.
at 1189, 196 P.3d at 477 (internal quotations omitted).
The State telling a witness's lawyer that the witness had breached his
proffer
Keith Mathahs, who was a CRNA at the clinic and was also
charged in the hepatitis C outbreak, accepted a plea deal on the condition
that he testify against Lakeman and Dr. Desai. Lakeman argues that the
State improperly approached Mathahs' lawyer in the hallway during
Mathahs' testimony and threatened to undo his plea because the
testimony was not in the State's favor.
It is clear that any alleged misconduct does not warrant
reversal. Id. at 1188, 196 P.3d at 476. The district court found, and the
attorneys agreed, that Mathahs had no knowledge the State considered
his testimony to breach the proffer. Discussion between a witness's
attorney and a prosecutor regarding whether a witness has violated a
proffer clearly does not take on a "constitutional dimension" when the
witness is not aware of the discussion. See id. at 1189, 196 P.3d at 476.
Therefore, we conclude that because Mathahs' testimony was unchanged
as a result of the prosecutor approaching his attorney, "the error [did not]
substantially affect[] the jury's verdict." Id.
The State eliciting inadmissible evidence of a pending federal
indictment
Lakeman argues that the State intentionally elicited from a
witness that there was a pending federal indictment against Dr. Desai.
Lakeman further argues that the jury likely inferred that he was
associated with the indictment, prejudicing his case. We conclude that the
potential misconduct does not implicate a constitutional dimension, thus
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the conviction should only be reversed "if the error substantially affect[ed]
the jury's verdict." Id. The witness only mentioned Dr. Desai, not
Lakeman, while discussing the federal indictment. Additionally, a
curative jury instruction was promptly given. See Rose v. State, 123 Nev.
194, 209, 163 P.3d 408, 418 (2007) (concluding that "the district court's
admonishment was sufficient to cure any prejudice caused by the
prosecutor's comment"). Finally, there were several comments earlier in
the trial regarding federal charges stemming from the clinic's activities—
the jury was likely already aware of the indictment. We conclude that the
witness's testimony about the indictment did not affect the jury's verdict
against Lakeman, and therefore, the error was harmless.
The State asking jurors to place themselves in a victim's shoes
In the State's closing argument, the prosecutor said: "[A
victim] was infected. You saw him. Who among you would want to have a
liver transplant regardless of how much money you got?" Lakeman argues
that it was prosecutorial misconduct for the State to ask the jury to stand
in the victim's shoes—the so called golden rule argument.
We conclude that this was not misconduct. It simply "painted
a vivid picture for the jury, and any reference to 'you' appears to be merely
rhetorical." Witter v. State, 112 Nev. 908, 928, 921 P.2d 886, 900 (1996)
abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 776-77, 263
P.3d 235, 254 (2011). 1
lAdditionally, Lakeman argues that other statements made during
the State's opening argument also constitute prosecutorial misconduct.
However, Lakeman fails to provide either arguments or authorities for
why these statements are prosecutorial misconduct. This court will not
consider claims that are not cogently argued or supported by relevant
authority. Browning v. State, 120 Nev. 347, 354, 91 P.3d 39, 45 (2004)
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Double jeopardy
Lakeman argues that reckless disregard of persons or property
resulting in substantial bodily harm (NRS 202.595) is a lesser included
offense of criminal neglect of patients resulting in substantial bodily harm
(NRS 200.495). This argument was not raised at district court; however,
double jeopardy may be reviewed on appeal, even if not raised at district
court. See LaChance v. State, 130 Nev., Adv. Op. 29, 321 P.3d 919, 926
(2014); see also United States v. Davenport, 519 F.3d 940, 947-48 (9th Cir.
2008) (stating that "because the prohibition against double jeopardy is a
cornerstone of our system of constitutional criminal procedure" reviewing
under a plain error standard is appropriate). Because double jeopardy
protection is provided under the Fifth Amendment to the United States
Constitution, we will consider Lakeman's argument.
To determine whether NRS 202.595 is a lesser included
offense of NRS 200.495, this court considers "whether each provision
requires proof of a fact which the other does not." Talancon v. State, 102
Nev. 294, 298, 721 P.2d 764, 766 (1986) (quoting Blockburger v. United
States, 284 U.S. 299, 304 (1932)). NRS 200.495 requires proof of facts not
required by NRS 202.595. For example, NRS 200.495 requires
foreseeability, but MRS 202.595 does not. Additionally, NRS 202.595
requires "willful or wanton disregard," whereas NRS 200.495 requires the
act be "aggravated, reckless or gross." Willful or wanton conduct is
different than reckless conduct. See Wanton, Black's Law Dictionary (10th
ed. 2014) (defining wanton as "[u]nreasonably or maliciously risking harm
while being utterly indifferent to the consequences" and explaining that
"[i]n criminal law, wanton usu[ally] connotes malice . . . while reckless does
not"). Accordingly, we conclude that NRS 202.595 is not a lesser included
offense of NRS 200.495.
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Cumulative error
Lakeman argues that because of the pervasive misconduct
throughout the trial, reversal is appropriate. "The cumulative effect of
errors may violate a defendant's constitutional right to a fair trial even
though errors are harmless individually." Rose, 123 Nev. at 211, 163 P.3d
at 419 (internal quotations omitted). After considering "(1) whether the
issue of guilt is close, (2) the quantity and character of the error, and (3)
the gravity of the crime charged," we conclude that the cumulative effect
of errors was minimal and reversal is not warranted. Id. (internal
quotations omitted).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
4
Hardest
1,4,1 t&A-
12-1, , J.
, J.
Saitta
Pickering
cc: Hon. Valerie Adair, District Judge
Santacroce Law Offices, Ltd.
Attorney General/Carson City
Clark County District Attorney
Eighth Judicial District Court Clerk
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