Newberg (Steven) v. State

 Polischuk's preliminary hearing testimony. To cure the untimeliness, the
district court continued the trial date for 15 days. At the end of the 15
days, the district court held a motion in limine hearing and admitted
Polischuk's testimony into evidence. The district court directed the
attorneys to read Polischuk's preliminary hearing testimony into the trial
record.
At trial, a police detective testified about a jailhouse phone
call in which Newberg stated "I'm in deep [expletive]" upon learning the
police seized his briefcase containing several videotapes depicting him
having sex with various women, including Snider, Polischuk and the
minor.
Near the end of the trial, Newberg planned to call Nicole
Taylor to testify that she told a private investigator she and Newberg
engaged in consensual sex. However, once Newberg learned Taylor could
not remember the statements she gave to the private investigator, he
moved the court to determine her unavailable as a witness. See NRS
51.055. Newberg claimed Taylor's memory loss amounted to a mental
infirmity, thus, she was unfit to testify. The district court denied the
motion and Newberg rested his case.
Thereafter, Newberg objected to several jury instructions and
proposed adding his own language to another. The court overruled
Newberg's objections and declined his proposed additions.
The jury convicted Newberg and this appeal followed. On
appeal, Newberg argues that the district court abused its discretion by: (1)
finding Ms. Taylor was available to testify and precluding a private
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investigator's testimony regarding an interview with Taylor; 2 (2)
admitting Newberg's jailhouse phone call into evidence in violation of
Newberg's Confrontation Clause rights; (3) continuing the trial; (4)
admitting Polischuk's preliminary hearing transcript into evidence in
violation of Newberg's Confrontation Clause rights; and (5) requesting the
attorneys read Polischuk's preliminary hearing testimony into the trial
record. Newberg also argues that the district court gave improper jury
instructions . 3
Generally, this court reviews a district court's evidentiary
decisions for an abuse of discretion. Crowley v. State, 120 Nev. 30, 34, 83
P.3d 282, 286 (2004). However, this court reviews de novo whether a trial
court admitted evidence that violated a defendant's Confrontation Clause
rights. Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009).
2 Therecord does not reflect that Newberg raised the issue regarding
the private investigator's testimony below; therefore, we decline to review
it. See Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 482-83 (2000)
(Stating that If] ailure to object during trial generally precludes appellate
consideration of an issue" and addressing this court's discretion to
consider the alleged error if it was plain and affected the defendant's
substantial rights).
3 Newberg raised two additional issues on appeal: whether the
district court abused its discretion in ruling that, if Newberg testified at
trial, his conviction for the crimes against the minor could be used for
impeachment purposes; and that cumulative error deprived him of his due
process rights. Newberg did not preserve the impeachment issue for
appeal because the record does not reflect that Newberg made an offer of
proof to the court outlining his intended testimony, nor does it reflect that
the district court's decision dissuaded Newberg from testifying at trial. CI
Warren v. State, 121 Nev. 886, 895, 124 P.3d 522, 528 (2005). Also, we
decline to review Newberg's cumulative error claim because we determine
that the district court did not err.
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Taylor's availability as a witness
Under NRS 51.055(1)(c), "[a] declarant is 'unavailable as a
witness' if the declarant is . . . [u]nable to be present or to testify at the
hearing because of. . . then existing physical or mental illness or
infirmity."
The district court did not err in determining Taylor was
available to testify because, in Nevada, memory loss is not grounds to find
a declarant unavailable. See Soonhee A. Bailey & Jeffrey Jaeger,
Courtroom Handbook on Nevada Evidence, 586 cmt. 1 (2010).
Jailhouse phone call
Newberg also contends that his statement from the phone call
should not have been admitted because it was irrelevant and its
prejudicial effect greatly outweighed its probative value. Newberg asserts
that the phone conversation was hearsay and its admission violated his
Sixth Amendment confrontation rights.
The district court properly admitted the phone conversation.
The statement from the phone call was not hearsay because Newberg was
the declarant; therefore, Newberg's statement is exempted from the
hearsay rule as an admission of a party opponent. See NRS 51.035(3)(a).
The phone call was relevant because it had the tendency to prove Newberg
had sexually assaulted Snider or Polischuk. See NRS 48.015. The
conversation's prejudicial effect did not outweigh its probative value
because the district court ensured the jury understood Newberg was in
custody on a charge unrelated to the charges he faced at trial. Moreover, a
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defendant cannot assert a Confrontation Clause violation for the lack of an
opportunity to cross-examine himself.
Continuing the trial
This court reviews continuance decisions on a case-by-case
basis and gives great deference to the district court's decision. Zess man v.
State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978). Generally, this court
will find an abuse of discretion only if the defendant can demonstrate that
the district court's continuance decision prejudiced him or her, for
example, by inhibiting the defendant's ability to prepare for trial. See id.
at 30-32, 573 P.2d at 1176-77.
Here, Newberg failed to demonstrate prejudice. Newberg was
aware the State would attempt to admit Polischuk's preliminary hearing
testimony well before the State filed its motion in limine; thus, he was
likely prepared to argue against it. 4 If Newberg was unprepared, he had
15 days to prepare for the motion in limine hearing. These additional
days allowed Newberg to review Polischuk's preliminary hearing
testimony and plan adjustments to his trial strategies if the testimony was
admitted. Therefore, the district court did not prejudice Newberg and we
affirm the court's decision.
4 In an amended motion in limine and at the subsequent motion
hearing, the State declared that—several years before the trial
commenced—it conversed with Newberg's appellate counsel regarding the
State's plan to use Polischuk's preliminary hearing testimony at trial. At
the motion hearing, Newberg acquiesced to the State's assertion by stating
"[w]hatever knowledge [the State] wants to impute to us, that's fine. [The
State] still has to follow the rules."
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Polischuk's preliminary hearing testimony
Newberg argues that the district court should have excluded
Polischuk's preliminary hearing testimony because the interpreters'
method rendered the testimony unreliable and inaccurate. Newberg also
contends that admitting Polischuk's preliminary hearing testimony
violated his Sixth Amendment Confrontation Clause rights because his
counsel was unable to comprehensively cross-examine Polischuk at the
preliminary hearing. Further, Newberg claims the district court abused
its discretion by ordering the attorneys to read Polischuk's preliminary
hearing testimony into the trial record.
We give a district court great deference in determining an
interpreter's competence and the court's decision will not be overturned
absent an abuse of that discretion. Baltazar-Monterrosa v. State, 122 Nev.
606, 614, 137 P.3d 1137, 1142 (2006). Here, the district court did not
abuse its discretion in determining the interpreters were competent
because the court ensured Polischuk completely understood them.
Admitting Polischuk's preliminary hearing testimony did not
violate the Confrontation Clause, because Newberg had the opportunity to
effectively cross-examine Polischuk at the preliminary hearing. See
Chavez, 125 Nev. at 338, 213 P.3d at 483-84; Pantano v. State, 122 Nev.
782, 790, 138 P.3d 477, 482 (2006).
Also, the district court did not abuse its discretion in requiring
the attorneys to read Polischuk's preliminary hearing testimony into the
record because the district court took several steps to minimize any
prejudice that the reading may have caused.
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Jury Instructions
Newberg argues that five of the jury instructions were
improperly given and additional language should have been added to
another instruction. 5
We review a district court's decision regarding jury
instructions for an abuse of discretion. Rose v. State, 123 Nev. 194, 204-
05, 163 P.3d 408, 415 (2007). Here, the record supports the district court's
exercise of discretion and evidences that Newberg's proposed additional
language was unnecessary because it was duplicative.
Based on the foregoing, the district court did not err.
Accordingly, we
ORDER the ju,el-gm„ent,Af gay district court AFFIRMED.
Gibbons
1,a)uA ,J.
Douglas
5 Newberg objected to jury instructions 4, 7, 8, 9 and 15.
Newberg asserted that jury instruction number 4 placed undue emphasis
on the term "inveigle" because the instruction provided a definition for the
term. Newberg further asserts that jury instructions 7, 8, and 9 contained
improper language and should have been condensed into a single
instruction. Additionally, Newberg claims jury instruction number 15 had
argumentative language and improperly lightened the prosecution's
burden of proof. Newberg concedes instruction number 10 was properly
given, but he wanted to add language instructing the jury that it could
consider a lack of corroboration, during deliberations. Also, Newberg
argued the court should have given an instruction informing the jury that
a witness' drug addiction can impact the witness' testimony.
7
cc: Hon. Michelle Leavitt, District Judge
Dayvid J. Figler
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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