Vergara-Martinez (Armando) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
ARMANDO VERGARA-MARTINEZ No. 65853
A/K/A ARMANDO MARTINEZ
VERGARA,
Appellant,
vs.
FILED
THE STATE OF NEVADA, APR 0 5 2016
Respondent.
TRACE K LINDEMAN
CLERK OF SUPREME COURT
BY
ORDER OF AFFIRMANCE DEPUTY CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of attempted murder with the use of a deadly weapon, battery
with the use of a deadly weapon resulting in substantial bodily harm
constituting domestic violence, and mayhem. Eighth Judicial District
Court, Clark County; Abbi Silver, Judge.
The jury found appellant Armando Vergara-Martinez guilty of
attempted murder with the use of a deadly weapon, battery with the use of
a deadly weapon resulting in substantial bodily harm constituting
domestic violence (hereinafter "battery resulting in substantial bodily
harm"), and mayhem after he attacked former girlfriend Maria Gomez
with a machete—splitting her head open and nearly severing both her
hands. The district court sentenced him to the maximum punishment for
each count, to be served consecutively. On appeal, Vergara-Martinez
contends that this court should reverse his judgment of conviction,
alleging a variety of errors at the trial level. We conclude that reversal is
not warranted.
First, Vergara-Martinez argues that double jeopardy prohibits
his dual conviction for battery resulting in substantial bodily harm and
mayhem. We disagree. Double jeopardy does not prohibit the dual
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convictions here because each machete stabbing to Gomez's person
constituted its own distinct act of violence, resulting in distinct injuries to
distinct body parts. Therefore, each conviction stems from a separate act
constituting a criminal offense, whereas double jeopardy is concerned
with, among other things, multiple punishments for a single criminal
offense. See Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274, 1278
(2012) (stating that the Double Jeopardy Clause prohibits "multiple
punishments for the same offense" (emphasis added)); Gaxiola v. State, 121
Nev. 638, 651, 119 P.3d 1225, 1234 (2005) (finding that separate acts may
"result in separate convictions even though the acts were the result of a
single encounter and all occurred within a relatively short time" (internal
quotation omitted)). The State's charging document supports this
interpretation because it specifies separate acts which provided the bases
for each charge. Specifically, Vergara-Martinez was convicted of battery
resulting in substantial bodily harm for "striking . . . Gomez in the head,
neck, and/or chest," whereas the mayhem conviction was based on striking
"Gomez about the arms and/or hands with a machete," and actually
depriving her of her arms and/or hands. Therefore, we conclude that
Vergara-Martinez's dual convictions for battery resulting in substantial
bodily harm and mayhem are not prohibited by double jeopardy.
Second, Vergara-Martinez argues that due process and the
Sixth Amendment notice requirement prohibit an amendment to the
information allowing additional charges to be filed on the second day of a
three-day trial. We disagree. Vergara-Martinez failed to object below and
on appeal fails to demonstrate that his substantial rights were affected.
See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (concluding
that the failure to object to jury instructions generally precludes appellate
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review unless there is plain error, meaning that the asserted error must
have affected the defendant's substantial rights). Specifically, Vergara-
Martinez fails to demonstrate that a miscarriage of justice occurred and
that he was prejudiced by the amendment, since he had adequate notice of
the State's theories of prosecution prior to trial based on the previously-
filed first and second amended information—both of which alleged the
same three charges and featured only minor changes to the language of
each charge. See id. (stating that "the burden is on the defendant to show
actual prejudiceS or a miscarriage of justice"); see also Viray v. State, 121
Nev. 159, 162-63, 111 P.3d 1079, 1082 (2005) (stating that prejudice
relating to an information amendment depends on whether a "defendant
had notice of the State's theory of prosecution"); State v. Eighth Judicial
Dist. Court, 116 Nev. 374, 377, 997 P.2d 126, 129 (2000) (holding that the
State is required to provide a defendant with adequate notice regarding
the various theories of prosecution).
Third, Vergara-Martinez argues that the district court
erroneously admitted the following pieces of evidence over his objection:
(1) Dr. Coates' expert testimony describing Gomez's wrist wounds as
"defensive wounds," despite Dr. Coates' absence at the scene of the attack,
because such a statement is speculative and pertains to causation, and (2)
non-testifying Dr. Cappana's medical record claiming that the incident
was "a classic attempt of beheading," because the Confrontation Clause
bars its admission. We disagree. The district court did not abuse its
discretion in admitting Dr. Coates' testimony because his opinion was
based on facts or data that he had personally observed as the first
physician to treat Gomez in the emergency room, and he offered his
conclusion to a reasonable degree of medical probability, as evidenced by
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the detailed medical support included in his testimony. See Mclellan v.
State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) (stating that the trial
court's decisions to admit or exclude evidence are reviewed for an abuse of
discretion); see also NRS 50.275-.285; see also Morsicato v. Say-On Drug
Stores, Inc., 121 Nev. 153, 158, 111 P.3d 1112, 1116 (2005) (holding that
medical expert testimony regarding causation cannot be highly
speculative, but must be made "to a reasonable degree of medical
probability").
Further, the district court did not err in admitting Dr.
Capanna's medical record because the "beheading" statement therein was
made during an ongoing emergency in which emergency room doctors
were tending to Gomez's life-threatening injuries and, therefore, is
considered non-testimonial. See Crawford v. Washington, 541 U.S. 36, 68
(2004) (holding that the Confrontation Clause bars only the use of
testimonial statements made by witnesses that are unavailable for trial
unless the defendant was afforded a prior opportunity for cross-
examination); see also Davis v. Washington, 547 U.S. 813, 821 (2006)
(holding that statements are nontestimonial when made during the course
of an ongoing emergency).
Fourth, Vergara-Martinez argues that he was prejudiced by
media attention and protestors during trial. We disagree. The district
court did not err in failing to remove the trial from Clark County due to
publicity surrounding the trial because Nevada does not recognize a
district court's power to sua sponte change venue, and Vergara-Martinez
failed to apply for removal. See NRS 174.464(1) (providing that a party
must make an application for removal "in open court, and in writing,
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verified by the affidavit of the defendant or district attorney," and serve a
copy of the affidavit on the adverse party).
Fifth, Vergara-Martinez argues that the district court
permitted prosecutorial misconduct. We conclude that, to the extent that
the prosecutor misstated evidence and law and made himself a witness for
impeachment purposes, those misstatements do not warrant reversal.
Specifically, the three instances in which the prosecutor made himself a
witness for impeachment purposes do not warrant reversal because the
two unobjected-to incidents do not rise to the level of plain error and the
third incident, to which Vergara-Martinez objected, was harmless error
because the jury was already aware of the same information based on trial
testimony. Rose u. State, 123 Nev. 194, 209, 163 P.3d 408, 418 (2007)
(stating that this court reviews unobjected-to prosecutorial misconduct for
plain error, examining whether the error "had a prejudicial impact on the
verdict when viewed in context" or whether the error "seriously affects the
integrity or public reputation of the judicial proceedings" (internal
quotation omitted)); see also Valdez v. State, 124 Nev. 1172, 1188-89, 196
P.3d 465, 476 (2008) ("[T]his court will not reverse a conviction based on
prosecutorial misconduct if it was harmless error. . . . If the error is not of
constitutional dimension, we will reverse only if the error substantially
affects the jury's verdict.") Further, the prosecutor's minor unobjected-to
misstatements during closing argument regarding Gomez's injuries do not
rise to the level of plain error. Additionally, the prosecutor's statement
claiming that alcohol was "wholly irrelevant" is indeed problematic
standing alone, but when viewed in context of the prosecutor's entire
closing argument, it ultimately describes a correct statement of law, and
therefore did not have a prejudicial impact on the verdict in the context of
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the trial as a whole. See NRS 193.220 ("No act committed by a person
while in a state of voluntary intoxication shall be deemed less criminal by
reason of his . condition, . . . [but] the fact of the person's intoxication
may be taken into consideration in determining the purpose, motive or
intent."). We finally conclude that the prosecutor's objected-to closing
argument statements alleging that alcohol was first mentioned during
Sergio Vergara-Martinez's testimony did not substantially affect the jury's
verdict under Valdez because the jury was aware of the defense's repeated
suggestion throughout trial that Vergara-Martinez was intoxicated.
Sixth, Vergara-Martinez argues that the district court abused
its discretion in rejecting his proposed jury instruction explaining the
defense theory regarding specific intent. We disagree. The district court
did not abuse its discretion in denying the proposed jury instruction
regarding specific intent because the proposed instruction was
substantially covered by instruction 14 and the instruction properly
avoided diminished capacity language. See Oaanbengboune 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."); see also Davis v. State, 130 Nev., Adv. Op. 16, 321
P.3d 867, 874 (2014) C[T]he district court may refuse a jury instruction on
the defendant's theory of the case which is substantially covered by other
instructions." (alteration in original) (internal quotation omitted)).
Seventh, Vergara-Martinez argues that he was prejudiced due
to gruesome" and "overly prejudicial" photos presented to the jury during
the prosecution's opening statement. We disagree. The district court did
not abuse its discretion in permitting the State to present graphic crime
scene photos during its opening statement because the trial judge properly
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weighed the probative value versus the prejudicial effect of the photos, and
the prosecutor did not offer the crime scene photos in an improper attempt
to argue the issues during opening statement. See West v. State, 119 Nev.
410, 420, 75 P.3d 808, 815 (2003) ("We will not disturb a district court's
decision to admit photographic evidence unless the district court abused
its discretion."); see also Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668,
674 (1976) ("Despite gruesomeness, photographic evidence has been held
admissible when it accurately shows the scene of the crime ... and when
it reflects the severity of wounds and the manner of their infliction."
(citations omitted)), overruled on other grounds by Alford v. State, 111
Nev. 1409, 1415 n.4, 906 P.2d 714, 717 n.4 (1995); see also Watters v.
State, 129 Nev., Adv. Op. 94, 313 P.3d 243, 247 (2013) ("In a criminal case,
the prosecutor's opening statement should be confined to a statement of
the issues in the case and the evidence the prosecutor intends to offer."
(internal quotation omitted)); see also NRS 48.035(1) (stating that relevant
evidence is inadmissible "if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues or of
misleading the jury").
Finally, Vergara-Martinez argues that the cumulative effect of
the errors warrants reversal of his conviction. We disagree. This court
will not reverse a conviction based on cumulative error unless there is a
showing that the cumulative effect of errors violated the defendant's right
to a fair trial. See Rose, 123 Nev. at 211, 163 P.3d at 419. When
evaluating whether a claim of cumulative error warrants reversal, we
consider "(1) whether the issue of guilt is close, (2) the quantity and
character of the error, and (3) the gravity of the crime charged." Valdez,
124 Nev. at 1195, 196 P.3d at 481 (internal quotation omitted). Here, the
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issue of guilt was not close because Vergara-Martinez admitted to
attacking Gomez during his opening statement, conceding counts two and
three. Although the charges against Vergara-Martinez were serious, any
district court error that occurred was either harmless or did not amount to
plain error.' Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
J.
Cherry
Gibbons
cc: Eighth Judicial District Court Dept. 15
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
1 Wehave considered Vergara-Martinez's remaining arguments and
conclude that they are without merit.
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