Peterson v. State

OPINION

By the Court,

Steffen, J.:

Appellant David Alan Peterson appeals from his convictions of offering to sell and giving away a controlled substance. For the reasons set forth below, we reverse.

The Facts

In the course of his work as an undercover narcotics officer, James Campbell developed a relationship of trust with Leslie Dekeyser and periodically purchased cocaine from her. Officer Campbell repeatedly asked Dekeyser to introduce him to someone who could provide him with larger amounts of cocaine.

Near the hour of 4 a.m. on August 12, 1983, Dekeyser phoned Campbell and told him to join her in room 1101 of the Tropicana Hotel where she would introduce him to a source of larger quantities of cocaine.¹ Campbell responded promptly and was greeted by both Dekeyser and Peterson. Campbell stayed in the room with Dekeyser and Peterson for approximately four hours. During that time, all three ingested cocaine.

Campbell testified at trial that, during this first meeting, Peterson offered to sell him three kilos of cocaine for $150,000. Campbell also testified that Peterson told him to secure the money that afternoon and Peterson would provide the cocaine. The officer also stated that Peterson gave him a 0.6 gram sample of cocaine before he left to obtain the $150,000.

Campbell exited the room at approximately 8:00 a.m. to secure the money. After leaving, he spoke with two surveillance officers and a supervisor, each of whom later testified at trial about their conversations with Campbell. At about 7:30 p.m., Campbell returned to the room with $150,000. However, Peterson had no cocaine and a sale was never consummated. Moreover, Peterson testified at trial that none of the alleged drug transactions with Campbell ever occurred.

Peterson was convicted of the two felonies charged: giving away a controlled substance and offering to sell a controlled substance. He was sentenced to ten years on each count, but the sentences were suspended and he was given probation. This appeal followed.

Discussion

After leaving room 1101 to obtain the $150,000, Campbell spoke with three other officers: Serge'ant Edwards, Officer Collins and Officer Acklin. Collins testified Campbell told him that Peterson had given Campbell a small amount of cocaine and wanted to sell him more. Acklin and Edwards testified Campbell told them that Peterson had offered to sell Campbell cocaine. All three officers’ testimony was admitted despite hearsay objections.

Peterson argues that the lower court erred in admitting the officers’ testimony as prior consistent statements. We agree.

NRS 51.035 provides:

“Hearsay” means a statement offered in evidence to prove the truth of the matter asserted unless:

2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(b) Consistent with his testimony and offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. . . .

On cross-examination, Campbell was accused of fabricating his testimony about Peterson’s actions.² Therefore, the lower court could properly admit, under NRS 51.035(b), prior consistent hearsay statements to corroborate Campbell’s testimony. However, to be admissible, these prior consistent statements must have been made before Campbell had a motive to lie. See Smith v. State, 100 Nev. 471, 472, 686 P.2d 247, 248 (1984); Daly v. State, 99 Nev. 564, 568-69, 665 P.2d 798, 802 (1983).

This court has previously adopted defendants’ theories of cases to determine when the hearsay declarant’s motive to lie arose. See Daly, 99 Nev. at 569, 665 P.2d at 802 (“[if the motives of the hearsay declarant] were as the defense suggested, the record would not affirmatively show that her statements to her friend were made when she had no motive to fabricate.”) (emphasis added); Gibbons v. State, 97 Nev. 299, 301-02, 629 P.2d 1196, 1197 (1981).

Peterson argued at trial that Campbell’s motive to lie arose during his first meeting with Peterson and Dekeyser. Peterson argued that when Campbell entered the room at 4 a.m. and saw Dekeyser alone with Peterson, and then later saw Dekeyser repeatedly enter a bedroom alone with Peterson, Campbell became jealous and began his “vendetta” against Peterson. Under Peterson’s theory, Campbell’s statements to the other officers clearly occurred subsequent to the occasion for the motive. His comments to the three officers were made after he ended his four-hour stay in the room and thus after the occasion for the allegedly jealous feelings and vendetta arose.³ Therefore, the lower court’s admission of the three officers’ testimony was error.

The prosecution’s case rested entirely on the credibility of Campbell. The case was, in essence, a swearing contest between Campbell and Peterson. By admitting hearsay testimony that bolstered the credibility of a lone, crucial witness, the lower court committed prejudicial error. See Smith, 100 Nev. at 474, 686 P.2d at 249; Daly, 99 Nev. at 569, 665 P.2d at 802; Gibbons, 97 Nev. at 302, 629 P.2d at 1197. This is particularly true when three police officers merely repeat the hearsay testimony of Campbell, thereby expanding the effect and credibility of their fellow officer’s testimony.

Moreover, the prosecutor highlighted the officers’ hearsay corroboration in his closing arguments. We have noted that such reemphasis magnifies the prejudicial effect of improperly admitted corroborating hearsay. See Daly, 99 Nev. at 569, 665 P.2d at 802; Gibbons, 97 Nev. at 302, 629 P.2d at 1197.

Because the lower court committed prejudicial error by admitting the hearsay testimony of the three officers, it is unnecessary to consider other issues. The judgment of conviction is reversed and the case remanded for a new trial.

Young, J., Springer, J., and Mowbray, J., concur.

1 The “source” turned out to be Peterson. Dekeyser later testified the only reason she believed Peterson could provide cocaine was because he knew a lot of people.

2 On cross-examination, the following exchange occurred:

Ms. Roske: Well, isn’t it true that you’ve made these allegations against David Peterson because you’re jealous and for your own vengeance, your own vendetta?

Campbell: That’s not true at all.

3 We, of course, express or infer no view concerning the strength or veracity of Peterson’s theory. However, the State accorded at least theoretical value to Peterson’s contention by using it as a basis for the erroneous admission of the hearsay testimony.