Monroe (Daimon) v. State

 (4) allowing the State to introduce his daughter's testimony, and (5)
denying his motion for a new trial based on juror misconduct.
The DA's office disqualification
Monroe asserts that the district court erred when it refused to
disqualify the entire DA's office because the accusation that he attempted
to solicit a deputy district attorney's murder prevented the DA's office
from prosecuting him impartially. Further, Monroe argued that
disqualification was warranted because DiGiacomo was improperly
screened from his solicitation to commit murder case.
This court reviews a district court's decision regarding the
disqualification of a prosecutor's office for an abuse of discretion. Collier v.
Legakes, 98 Nev. 307, 309, 646 P.2d 1219, 1220 (1982).
An entire prosecutor's office may be disqualified only "in
extreme cases where the appearance of unfairness or impropriety is so
great that the public trust and confidence in our criminal justice system
could not be maintained without such action." Id. at 310, 646 P.2d at
1221. When considering a motion to disqualify a prosecutor's office, the
district court should determine whether, under the totality of
circumstances, "the prosecutorial function could be carried out impartially
and without breach of any privileged communication." Id. at 310, 646 P.2d
at 1220.
The district court did not abuse its discretion in denying the
motion to disqualify because the court considered all relevant factors
before making its decision. The district court held an evidentiary hearing
regarding the disqualification issue and considered every argument
Monroe raised before ultimately deciding to deny his disqualification
motion.
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Monroe also argues that the district court should have
reconsidered his motion to disqualify once the State attempted to call
DiGiacomo to testify. This claim lacks merit because the district court did
not base its decision solely on the fact that DiGiacomo would not testify.'
Once the State expressed its desire to call DiGiacomo as a witness, the
court considered all circumstances and determined that DiGiacomo's
testimony would not unfairly prejudice Monroe's ability to prepare for
trial. Therefore, the district court did not abuse its discretion in denying
Monroe's motion to disqualify.
Judge Leavitt's testimony
Monroe argues that the district court erred when it denied his
motion to preclude Judge Leavitt's testimony because she had no personal
knowledge of the alleged murder plot, her status as a judge would unfairly
prejudice the jury, and his proposed stipulation that she presided over
Monroe's previous burglary trial made her testimony unnecessary.
Generally, this court reviews a district court's decision to
admit evidence for an abuse of discretion; however, when evidence
admissibility issues implicate constitutional rights, this court applies a de
novo review. Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131
(2008). Monroe does not assert that Judge Leavitt's testimony violated
any of his constitutional rights; thus, this issue is reviewed for an abuse of
discretion.
The district court did not abuse its discretion in allowing
Judge Leavitt to testify because the court weighed the testimony's
'The district court never explicitly precluded DiGiacomo from
testifying. Rather, it did not address the issue because the State initially
said it would not call her as a witness.
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probative value against its prejudicial effect before making a decision.
The district court correctly determined that Judge Leavitt's testimony
contained more pertinent information than Monroe's proposed stipulation,
including her role in presiding over cases and why someone might target a
judge in a particular case.
The pretrial petition for a writ of habeas corpus to dismiss the grand jury
indictment
Marcos Pacheco was incarcerated with Monroe and Gutierrez
and often served as a lookout when Gutierrez and Monroe discussed the
murder plot. Pacheco and Gutierrez testified against Monroe at Monroe's
grand jury hearing. Monroe filed a pretrial petition for writ of habeas
corpus arguing that the district court should dismiss his indictment
because the State withheld the exculpatory evidence of Pacheco's felony
conviction and Gutierrez's pending charges from the grand jury. The
district court found that the alleged withheld evidence was not
exculpatory and denied Monroe's writ petition.
This court reviews a district court's decision to deny a motion
to dismiss a grand jury indictment for an abuse of discretion. Hill v. State,
124 Nev. 546, 550, 188 P.3d 51, 54 (2008). In Lay v. State, this court
stated that a prosecutor must disclose all exculpatory evidence (evidence
that 'will explain away the charge') to a grand jury. 110 Nev. 1189,
1197, 886 P.2d 448, 453 (1994) (quoting NRS 172.145). Evidence that
impeaches a witness's credibility is generally not considered exculpatory.
See id. at 1198, 886 P.2d at 453-54.
The district court properly denied Monroe's motion because
Monroe did not prove that the prosecution withheld any exculpatory
evidence from the grand jury. At the grand jury hearing, Gutierrez
testified that he was currently in custody and facing pending charges, and
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Pacheco testified that he was also incarcerated. Further, both men
testified that they were not receiving special treatment in return for their
testimony. The grand jury was aware of the charges against both
witnesses, which could only be used to impeach their credibility, not
negate Monroe's murder solicitation charges. Accordingly, the district
court did not abuse its discretion in denying Monroe's pretrial petition for
a writ of habeas corpus.
Monroe's daughters' testimony
Monroe asserts that the district court erred when it allowed
the State to introduce his daughters' prior statements of abuse to rebut
the assertion that Monroe was not a violent person. He asserts that this
evidence violated NRS 48.045 because he did not place his character at
issue through his trial testimony. He further asserts that the admission of
his daughter's testimony violated his Sixth Amendment Confrontation
Clause rights.
"This court reviews a district court's decision to admit or
exclude evidence for an abuse of discretion." Jezdik v. State, 121 Nev. 129,
135, 110 P.3d 1058, 1062 (2005). However, the Confrontation Clause issue
must be reviewed de novo. See Hernandez, 124 Nev. at 646, 188 P.3d at
1131.
NRS 48.045
The prosecution cannot admit evidence of an accused's
character to prove conduct; however, the prosecution can admit character
evidence when used to rebut character evidence that the accused offered at
trial. NRS 48.045.
Under NRS 48.045, the district court properly allowed the
State to present rebuttal character evidence because Monroe placed his
character at issue through his testimony that he was not a violent person.
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Confrontation Clause
The Sixth Amendment Confrontation Clause states that "[i]n
all criminal prosecutions, the accused shall enjoy the right to . . . be
confronted with the witnesses against him." U.S. Const. amend. VI. The
confrontation clause precludes the admission of testimonial hearsay
statements, unless the declarant is unavailable to testify at trial, and the
defendant had an opportunity for an effective cross-examination. Chavez
v. State, 125 Nev. 328, 337, 213 P.3d 476, 483 (2009) (citing Crawford v.
Washington, 541 U.S. 36, 53-54 (2004)). However, a confrontation clause
violation is subject to a harmless-error analysis. Medina v. State, 122
Nev. 346, 355, 143 P.3d 471, 476 (2006) (citing Power v. State, 102 Nev.
381, 384, 724 P.2d 211, 213 (1986)). A court's error is harmless when
overwhelming evidence of guilt exists—such that the conviction would
likely stand even if the district court did not err. Pasgove v. State, 98 Nev.
434, 436, 651 P.2d 100, 101-02 (1982).
The district court's decision to admit the children's testimony
violated Monroe's right to be confronted, but his error was harmless. The
children's statements were hearsay because they were not made at
Monroe's murder solicitation trial and the State offered the statements for
the truth of the matter asserted within them. The State failed to
demonstrate that the children were unavailable to testify at trial, which
violates Chavez and Crawford. However, this violation is harmless
because the evidence was only used to prove Monroe had a violent
character; it did not go to the core of the murder solicitation charges.
Further, the State presented a great deal of evidence that Monroe
attempted to hire someone to kill Judge Leavitt, DiGiacomo and Nikell.
Therefore, overwhelming evidence of Monroe's guilt existed outside of
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Monroe's daughters' statements. In accordance with Pasgove, the district
court's error does not warrant reversal.
Monroe's motion for a new trial based on juror misconduct
Monroe asserts that the jurors lied during voir dire because
they failed to disclose that they were afraid that he might procure
someone to kill them. Monroe claims that the jurors' failure to disclose
their fear violated his right to a fair trial by an impartial jury.
When a defendant accuses a juror of lying during voir dire
'about a matter of potential bias or prejudice,' the critical question is
whether the juror intentionally concealed bias. And that determination is
left to the trial court's sound discretion." Maestas u. State, 128 Nev. „
275 P.3d 74, 85 (2012) (quoting Lopez v. State, 105 Nev. 68, 89, 769 P.2d
1276, 1290 (1989)).
The district court did not abuse its discretion in denying
Monroe's motion for a new trial because it found that Monroe did not
establish that any jurors intentionally concealed a bias during voire dire.
Additionally, the district court determined Monroe was not prejudiced in
any way because the jurors did not let their fear affect their ability to
perform their duties. Accordingly, Monroe was not entitled to new trial.
Based on the foregoing, we determine that Monroe is not
entitled to any relief from the district court's judgment. Accordingly, we
ORDER the judgrym44-of the ,district court AFFIRMED.
Gibbons
J. J.
Saitta
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cc: Hon. Douglas W. Herndon, District Judge
Christina A. DiEdoardo
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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