City of Reno v. Howard

130 Nev., Advance Opinion 12.
IN THE SUPREME COURT OF THE STATE OF NEVADA
CITY OF RENO, No. 62313
Appellant,
vs.
THE HONORABLE KENNETH
FILED
HOWARD; RENO MUNICIPAL COURT; FEB 2 7 2014
AND CHERYL LEE,
TRACE K LINDEMAN
Respondents. CL 0 SUP 9‘11E
BY
PUTY
Appeal from a district court order denying a petition for a writ
of mandamus. Second Judicial District Court, Washoe County; Scott N.
Freeman, Judge.
Affirmed.
Christopher P. Hazlett-Stevens, Deputy City Attorney, Reno,
for City of Reno.
Larry K. Dunn & Associates and Larry K. Dunn and Karena K. Dunn,
Reno,
for Cheryl Lee.
Jonathan D. Shipman, Deputy City Attorney, Reno,
for the Honorable Kenneth Howard and Reno Municipal Court.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PARRAGUIRRE, J.:
In Nevada, the declaration of a person who collects a criminal
defendant's blood for evidentiary testing may be admitted at trial. NRS
SUPREME COURT
OF
NEVADA
.
(0) 1947A 91/44P)1.9 H - u.,01401
50.315(4). A defendant in a misdemeanor driving under the influence trial
waives the right to confront the maker of such a declaration unless the
defendant can show a substantial and bona fide dispute regarding the
facts in the declaration. NRS 50.315(6). In this appeal, we discuss the
Confrontation Clause implications of NRS 50.315(6). We conclude that, in
light of the United States Supreme Court's decision in Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), the statute's substantial-and-bona-
fide-dispute requirement impermissibly burdens the right to confront the
declarant. Accordingly, we overrule our prior decision in City of Las Vegas
v. Walsh, 121 Nev. 899, 124 P.3d 203 (2005), and affirm the district court's
order.
FACTS AND PROCEDURAL HISTORY
Appellant City of Reno (City) charged respondent Cheryl Lee
with misdemeanor driving under the influence in Reno Municipal Court.
At Lee's bench trial, the City sought to introduce into evidence the
declaration of Shirley Van Cleave, a phlebotomist who collected Lee's
blood for evidentiary testing after Lee's arrest. Lee objected to the
admission of the declaration on Confrontation Clause grounds, and the
municipal court sustained the objection and excluded the declaration. The
City petitioned the district court for a writ of mandamus to compel the
municipal court to admit the declaration into evidence. The district court
denied the petition, explaining that admission of the declaration over Lee's
objection would have violated Lee's rights under the Confrontation Clause.
The City now appeals.
DISCUSSION
On appeal, the City argues that the district court abused its
discretion by denying its petition for writ of mandamus, reasoning that the
SUPREME COURT
OF
NEVADA
2
(0) I947A
district court erroneously concluded that NRS 50.315(6)'s waiver
provisions violate the Confrontation Clause of the Sixth Amendment to
the U.S. Constitution. This court reviews a district court's decision to
deny a writ petition for an abuse of discretion and reviews• the
constitutionality of a statute de novo. Walsh, 121 Nev. at 902, 124 P.3d at
205.
This court has jurisdiction to hear this appeal
Lee initially argues that we lack jurisdiction over this appeal
because the proceedings in the municipal court remain pending. This
court "has jurisdiction to review upon appeal ... an order granting or
refusing to grant .. . mandamus." NRS 2.090(2). Further, "[a]n appeal
may be taken from . .. [a] final judgment entered in an action or
proceeding commenced in the court in which the judgment is rendered."
NRAP 3A(b)(1). Where a petition for writ of mandamus is the only issue
before a district court, we have held that the district court's order denying
the petition "is a final judgment within the meaning of NRAP 3A(b)(1)."
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665, 856 P.2d 244, 246
(1993). Because the City's petition was the only issue before thefl district
court, we conclude that we have jurisdiction to hear this appeal.
The declaration is testimonial
The Confrontation Clause provides that "the accused shall
enjoy the right. . to be confronted with the witnesses against him" U.S.
Const. amend. VI. The U.S. Supreme Court has held that the
Confrontation Clause prohibits the admission of testimonial hearsay
against a criminal defendant unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68 (2004). Documents "created
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
solely for an 'evidentiary purpose" and "in aid of a police investigation" are
testimonial hearsay, Bul!coming v. New Mexico, 564 U.S. „ 131 S.
Ct. 2705, 2717 (2011) (quoting Melendez-Diaz, 557 U.S. at 311), and we
have held that declarations made and offered pursuant to MRS 50.315(4)
are testimonial hearsay. Walsh, 121 Nev. at 906, 124 P.3d at 207-08.
NRS 50.315(4) allows a declaration made under penalty of
perjury by a person who collects blood from a subject for evidentiary
testing to be admitted in evidence to prove the declarant's occupation, the
identity of the subject, and that the declarant kept the sample in his
custody until delivering it to another identified person.
The parties do not dispute that Van Cleave's declaration was
made and offered pursuant to MRS 50.315(4) and thus is testimonial
hearsay. Because the record does not suggest that Van Cleave was
unavailable or that Lee had a prior opportunity to cross-examine Van
Cleave, Lee's right to confront Van Cleave requires exclusion of the
declaration unless Lee validly waived her right to confrontation. See
Melendez-Diaz, 557 U.S. at 327; Crawford, 541 U.S. at 53-54.
NRS 50.315(6) impermissibly burdens confrontation rights
The City argues that Lee validly waived her right to confront
Van Cleave by failing to show a substantial and bona fide dispute
regarding the declaration as required by NRS 50.315(6). In response, Lee
argues that MRS 50.315(6) impermissibly burdens the rights provided by
the Confrontation Clause. Although we previously addressed this issue in
Walsh, 121 Nev. at 906-07, 124 P.3d at 208, Lee argues that the U.S.
Supreme Court's decision in Melendez-Diaz compels us to overrule Walsh.
"Mlle are loath to depart from the doctrine of stare decisis" and will
SUPREME COURT
OF
NEVADA
4
(0) 1947A
overrule precedent only if there are compelling reasons to do so. Armenta-
Carpi° v. State, 129 Nev. , 306 P.3d 395, 398 (2013).
A criminal defendant may waive her confrontation rights by
failing "to comply with statutory procedures" for making an objection
based on the Confrontation Clause. Walsh, 121 Nev. at 906, 124 P.3d at
208; see also Melendez-Diaz, 557 U.S. at 327 ("The defendant always has
the burden of raising his Confrontation Clause objection."). Under
existing Nevada law, a defendant waives the right to confront an NRS
50.315(4) declarant, such as Van Cleave, by failing to comply with NRS
50.315(6), which provides in relevant part:
If, at or before the time of trial, the defendant
establishes that:
(a) There is a substantial and bona fide
dispute regarding the facts in the affidavit or
declaration; and
(b) It is in the best interests of justice that
the witness who signed the affidavit or declaration
be cross-examined,
the court may order the prosecution to produce the
witness.
In Walsh, we explained that under NRS 50.315(6), failure "to
argue that a substantial and bona fide dispute exists regarding the
affidavit or declaration of the phlebotomist who drew the defendant's
blood . . . acts as a waiver of the defendant's confrontation rights" as to the
phlebotomist 121 Nev. at 906, 124 P.3d at 208. We further explained
that "[t]he essence of Crawford is the need for cross-examination," and
absent a substantial and bona fide dispute regarding the declaration or
credibility of the declarant, "cross-examination is meaningless." Id. at
907, 124 P.3d at 208.
SUPREME COURT
OF
NEVADA
5
(01 1947A
The City argues that this reasoning is unaffected and indeed
was approved by the U.S. Supreme Court's decision in Melendez-Diaz.' In
Melendez-Diaz, the Court struck down a Massachusetts statute that
allowed reports of forensic analysis to be admitted into evidence without
requiring the prosecution to call the analysts as witnesses but allowing
defendants to subpoena the analysts. 557 U.S. at 308-09, 329. The Court
rejected the argument that this statute adequately protected the right to
confrontation, explaining that the statute "shifts the consequences of
adverse-witness no-shows from the State to the accused." Id. at 324. The
Court further explained that "the Confrontation Clause imposes a burden
on the prosecution to present its witnesses, not on the defendant to bring
those adverse witnesses into court." Id. However, the Court approved of
notice-and-demand statutes "[in their simplest form" that require a
defendant's timely objection to the admission of testimonial hearsay
without live testimony by the declarant. Id. at 326. The Court explained
that such provisions are "procedural rules governing objections" that the
latates are free to adopt." Id. at 327.
The City argues that NRS 50.315(6) is such a procedural rule,
whereas Lee argues that the statute impermissibly imposes on defendants
the burden of establishing a substantial and bona fide dispute. Although
we upheld the constitutionality of NRS 50.315(6) against a Confrontation
Clause challenge in Walsh, we decided Walsh prior to the U.S. Supreme
1 While the Court appears to have approved of Walsh's holding that
NRS 50.315(4) declarations are testimonial, see Melendez-Diaz, 557 U.S.
at 325-26 & n.11 (citing Walsh, 121 Nev. at 904-06, 124 P.3d at 207-08), it
explicitly refused to address the validity of all but the simplest notice-and-
demand statutes. Id. at 327 n.12.
SUPREME COURT
OF
NEVADA
6
(0) 1947A
Court's discussion of notice-and-demand statutes in Melendez-Diaz. We
now address this issue again in light of the U.S. Supreme Court's decision
in Melendez-Diaz.
The Supreme Court of Kansas has addressed its notice-and-
demand statute in light of Melendez-Diaz. State v. Laturner, 218 P.3d 23
(Kan. 2009). Under the Kansas statute, a defendant has 14 days to object
to admission of a certificate of a person who collected blood for analysis
and to state "the grounds for the objection." Kan. Stat. Ann § 22-
3437(a)(3). If the grounds for the objection do not show "that the
conclusions of the certificate . .. will be contested at trial," the court must
admit the certificate into evidence. Id.
In Laturner, the Kansas Supreme Court applied Melendez-
Diaz to the Kansas statute and found "some overlap" between its statute
and simple notice-and-demand statutes, but also found that the Kansas
statute "impose lid] additional requirements," most notably that a
defendant must show that he would actually contest the conclusions of the
certificate at trial. 218 P.3d at 30. The court explained that an objection
based solely on the Confrontation Clause could not satisfy this
requirement, so a trial court would be bound to admit the evidence over a
Confrontation Clause objection. Id. Because of this additional
requirement, the Kansas court concluded that the statute was not a
simple notice-and-demand statute like those approved in Melendez-Diaz.
Id. at 32. The Kansas court further reasoned that this additional burden
was too difficult for a defendant to overcome without an opportunity to
cross-examine the signer of the certificate. Id. at 37.
Like the Kansas statute addressed in Laturner, NRS 50.315(6)
imposes additional requirements on defendants who wish to confront those
SUPREME COURT
OF
NEVADA
7
(0) 1947A e
who have prepared declarations to be used against them at trial. While
the Kansas statute required a defendant to show that he would actually
contest the conclusions of the certificate at trial, NRS 50.315(6) requires a
defendant to show a substantial and bona Me dispute regarding the facts
contained in the declaration. These requirements are substantially
similar, and we conclude that the reasoning of the Laturner court is
convincing.
We further conclude that Melendez-Diaz prohibits burdening
confrontation rights beyond requiring a defendant's timely objection to
proffered evidence. Accordingly, we now hold that MRS 50.315(6)
impermissibly burdens confrontation rights because, unlike a "simple"
notice-and-demand statute that merely requires a defendant's timely
objection, NRS 50.315(6) requires a defendant to establish a substantial
and bona fide dispute regarding the facts in the declaration in order to
exercise his confrontation rights. A defendant who cannot make• this
showing will suffer a forced waiver of his confrontation rights despite a
timely attempt to invoke them. Because such an additional burden is
impermissible according to the U.S. Supreme Court's decision in Melendez-
Diaz, we conclude that MRS 50.315(6) violates the Confrontation Clause.
Principles of stare decisis require a compelling reason to
overrule prior caselaw. Artnenta-Carpio, 129 Nev. at , 306 P.3d at 398.
We conclude that the additional guidance provided by the U.S. Supreme
Court in Melendez-Diaz provides such a compelling reason for overruling
our prior decision in Walsh. Therefore, we now overrule our holding in
Walsh that MRS 50.315(6) adequately protects the rights provided by the
Confrontation Clause.
SUPREME COUFtT
OF
NEVADA
8
(0) 1947A ex).
The nature of the declaration does not alter confrontation rights
The City further argues that Melendez-Diaz and Bullcoming v.
New Mexico, 564 U.S. , 131 S. Ct. 2705 (2011), are inapplicable because
those cases dealt with reports of forensic analysis, whereas the declaration
in this case relates only to the collection of blood. In Melendez-Diaz, the
reports admitted in evidence indicated that the substance seized from the
defendant contained cocaine, 557 U.S. at 308, and in Bullcoming, the
report admitted in evidence indicated that the defendant's blood contained
a particular amount of alcohol. 564 U.S. at , 131 S. Ct. at 2711. Thus,
in each case, the reports contained conclusory facts that spoke directly to
the defendant's guilt or innocence. See id.; Melendez-Diaz, 557 U.S. at
308. The City argues that this case is distinguishable on two grounds: (1)
Van Cleave's task of collecting blood was relatively simple, and (2) the
facts supported by Van Cleave's declaration are merely foundational. We
conclude that neither distinction is significant.
First, the City seeks to distinguish Van Cleave's declaration
from the reports in Melendez-Diaz and Bullcoming based on the simplicity
of collecting a blood sample. The City essentially argues that because the
task was simple, the declaration is reliable and confrontation is
unnecessary. However, the Confrontation Clause "commands, not that
evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination." Melendez-Diaz,
557 U.S. at 317 (quoting Crawford, 541 U.S. at 61). Therefore, simplicity
and reliability are not relevant to the Confrontation Clause analysis, and
the fact that collecting blood may be a simple task has no effect on a
defendant's right to confront the witnesses against him. See id.
Second, the City seeks to distinguish this case from Melendez-
Diaz and Bullcoming based on the foundational purpose of Van Cleave's
SUPREME COURT
OF
NEVADA
9
(0) I947A
declaration. NRS 484C.250(1)(a)(1) provides that evidence of the results of
a blood test are inadmissible in a prosecution for driving under the
influence unless the person who collected the blood sample is qualified to
do so. A phlebotomist is a qualified person. NRS 484C.250(1)(a)(1). The
City argues that Van Cleave's declaration was offered only to show that
she was a phlebotomist as required by NRS 484C.250(1)(a)(1), and this
merely foundational purpose renders cross-examination meaningless.
As discussed above, Van Cleave's declaration is testimonial
hearsay, and the Confrontation Clause therefore applies. Walsh, 121 Nev.
at 906, 124 P.3d at 208. The U.S. Supreme Court has explained that there
are only "two classes of witnesses—those against the defendant and those
in his favor .... [T]here is not a third category of witnesses, helpful to the
prosecution, but somehow immune from confrontation." Melendez-Diaz,
557 U.S. at 313-14. Here, Van Cleave is clearly a witness "against" Lee
because the City sought to use Van Cleave's declaration to prove its case.
The City's distinction between foundational facts and conclusory or
accusatory ones would create and place Van Cleave into a "third category
of witnesses" prohibited by Melendez-Diaz. Id. at 314.
We note, however, that Melendez-Diaz does not require the
testimony of every person with any connection to physical evidence. Id. at
311 n.1 ("[W]e do not hold, and it is not the case, that anyone whose
testimony may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing device, must appear
in person as part of the prosecution's case."). The City argues that Van
Cleave is merely a person with some connection to Lee's blood sample and
thus is not required to testify.
SUPREME COURT
OF
NEVADA
10
(0) 1947A e
In support of this argument, the City cites Commonwealth v.
Shaffer, 40 A.3d 1250 (Pa. Super. Ct. 2012). In Shaffer, "no report
authored by the phlebotomist" was offered as evidence, so no testimonial
statement was at issue. Id. at 1252. In contrast, Van Cleave's testimonial
declaration was offered as evidence in this case. Therefore, Shaffer is
unpersuasive. The fact that Van Cleave's declaration was offered only to
lay the foundation for other evidence has no effect on its testimonial
nature, and therefore has no effect on the rights provided by the
Confrontation Clause.
Accordingly, the relative simplicity of collecting blood and the
foundational purpose for which Van Cleave's declaration was offered as
evidence have no effect on the rights provided by the Confrontation
Clause. 2
CONCLUSION
We conclude that the U.S. Supreme Court's decision in
Melendez-Diaz requires us to overrule our prior decision in Walsh, where
we held that NRS 50.315(6) adequately protected the rights provided by
the Confrontation Clause. Therefore, we now hold that the requirement of
NRS 50.315(6)—that a defendant must establish a substantial and bona
fide dispute regarding the facts in a declaration made and offered as
evidence pursuant to NRS 50.315(4)—impermissibly burdens the right to
2 We note that NRS 50.330 and SCR Part IX-A(B), governing
appearances by audiovisual transmission equipment, set forth
circumstances and procedures to present certain testimony through the
use of simultaneous audiovisual transmission equipment.
SUPREME COURT
OF
NEVADA
11
(0) 1947A e
confrontation. Further, the relative simplicity of collecting blood and the
foundational purpose for which the declaration was offered do not affect
this conclusion. Therefore, we conclude that the district court did not err
when it determined that admission of Van Cleave's declaration into
evidence over Lee's objection would have violated Lee's right to
confrontation, and the district court did not abuse its discretion by
denying the City's petition for a writ of mandamus.
Accordingly, we affirm the order of the district court.
arraguirre
We concur:
C.J.
J.
Pickering
J.
Hardesty
Lck
Douglas
SUPREME COURT
OF
NEVADA
12
(0) I947A cM4.4