State v. Shade

OPINION

By the Court,

Rose, J.:

Respondent Marshall Timothy Shade was driving his stepson, Peter Kenneson, in Kenneson’s car when Kenneson purchased over twelve grams of heroin intending to resell it. Shade was later pulled over, and officers found methamphetamines and cocaine on the floorboard of the car. Shade was charged with two counts of possessing a controlled substance and two counts of transporting a controlled substance (methamphetamines and cocaine).

Shade moved in limine to exclude all evidence related to Kenneson’s heroin dealings. Shade claimed that because he had not been charged for any crimes related to heroin, the State could not refer to such matters in his prosecution for possession and transportation of methamphetamines and cocaine. The district court granted Shade’s motion. Immediately following this ruling, Shade moved to dismiss. The State offered no opposition, and the motion was granted.

The State appeals and argues that the district court abused its discretion by excluding the evidence related to the heroin sale. We conclude that the State is correct. The evidence of the heroin sale arose out of the same sequence of events and was so closely related to the crimes charged that under the res gestae doctrine it could not be excluded. Accordingly, we reverse the district court’s order.

FACTS

The State was prepared to present the following evidence at trial. In early August, 1992, police informant Ray Richardson contacted Kenneson to arrange a heroin purchase. Richardson was working with the Washoe County Consolidated Narcotics Unit (CNU). On August 21, 1992, CNU agents fitted Richardson with a listening device, gave him $2,400.00 in recorded “buy money,” and followed him to Kenneson’s apartment, where the initial contact was to take place.

As Richardson arrived at the complex, Kenneson was driving out of the parking lot; his stepfather, Shade, was in the passenger’s seat. Richardson walked over to the driver’s side window of Kenneson’s car, leaned in, and handed Kenneson $1,600.00 in cash. Kenneson counted the money and told Richardson, “There ain’t no $3,000.00 here.” Richardson responded, “Get what you can.” Kenneson asked Richardson if he wanted some “crank” or some “coke.” Richardson replied, “All I want is the heroin and get back as quickly as you can.” Kenneson testified that this conversation took place in front of Shade, who was sitting next to him. During the conversation, Shade said nothing other than to ask Richardson for a “dip” of chewing tobacco.

Immediately following their contact with Richardson, Kenneson and Shade drove to the Bavarian Plaza. Kenneson left his car and tried to phone a drug dealer to arrange the heroin purchase. Shade stayed at the vehicle. When Kenneson returned, he and Shade drove to the parking lot of the Reno Ramada Hotel. Kenneson left Shade in the vehicle and entered a house on Sixth Street. He came back to the car with a drug dealer named Pepe, and all three men drove to an apartment complex on Neil Road. Shade again stayed in the car while Kenneson and Pepe went into an apartment to make another phone call. They later rejoined Shade and drove back to the house on Sixth Street.

Kenneson testified that before entering the house, Shade handed him approximately $400.00 and told him to purchase some methamphetamines and cocaine for Shade’s personal use. Shade left Kenneson at the house and drove off. Kenneson purchased 12.7 grams of heroin, two eight balls of methampheta-mines, and one eight ball of cocaine. (One eight ball equals approximately three and one-half grams). The dealer did not have the proper amount of methamphetamines so Kenneson was unable to buy all the drugs that Shade had requested. Shade returned to pick up Kenneson approximately thirty minutes later. Kenneson gave Shade one eight ball of cocaine and one eight ball of methamphetamines. He also returned $100.00 to Shade as a result of the unfulfilled drug order. The CNU agents later discovered that this $100.00 was one of the recorded bills provided to Kenneson by the informant.

Shade drove Kenneson from the house on Sixth Street to the Sparks’ Cinema where Kenneson was to deliver the heroin. Kenneson testified that Shade knew he had purchased heroin and had even smelled the drug before they left for the theater, but that he did not inform Shade why they were going to the Sparks’ Cinema.

Shade dropped Kenneson off at the theater and drove away. Officers arrested Kenneson after he passed the heroin to the informant. A short time later, Shade was pulled over and arrested. On the driver’s side floorboard, officers found one large bag with two smaller baggies resting inside. The baggies contained methamphetamines and cocaine. Officers also found the $100.00 bill marked as buy money in Shade’s front pocket. Finally, officers found $1,897.00 cash in Shade’s possession. Shade later established that the $1,897.00 was in his possession as a result of cashing his most recent paycheck.

During all of these events, CNU officers were following Kenneson and Shade. Officers testified that during the times Shade was alone in Kenneson’s vehicle, he appeared to be acting as a lookout. One of the officers opined that Shade was engaged in some form of counter surveillance.

Shade was originally charged with several offenses stemming from the heroin transaction and with two counts of possessing a controlled substance (cocaine and methamphetamines). Shade filed a pretrial habeas corpus petition that was granted by the district court. On appeal, this court affirmed the dismissal of the heroin charges but reversed the dismissal of the charges of possession of methamphetamines and cocaine. Sheriff v. Shade, 109 Nev. 826, 858 P.2d 840 (1993).

Upon remand, the case was reintroduced to the Washoe County grand jury. Shade was indicted on two counts of possession of a controlled substance and two counts of transportation of a controlled substance (methamphetamines and cocaine). Shade then moved in limine to exclude all evidence related to the following: (1) the drug activity of Kenneson; (2) Kenneson’s involvement in the sale of heroin to confidential informant Richardson; (3) Richardson’s knowledge of Kenneson as a drug dealer; (4) the $100.00 in “buy money” found in Shade’s possession; (5) the $1,897.00 in cash found in Shade’s possession; (6) the counter surveillance allegations made by CNU officers; (7) CNU’s surveillance of Shade; (8) CNU’s surveillance of Kenneson and/or the confidential informant; (9) any notes made by CNU officers related to the heroin sale; (10) any statements made by Kenneson and/or the informant regarding the heroin sale; (11) any statement made by Kenneson regarding the heroin sale; (12) any discussion regarding heroin; (13) any statement made by the confidential informant during his “debriefing” after the heroin purchase; (14) any statements related to the informant being wired with a listening device; and (15) any and all evidence in whatever form relating to the confidential informant.

The district judge granted this motion and excluded all of the foregoing evidentiary items, except the evidence related to the $100.00 marked bill found in Shade’s possession. Following this ruling, the prosecutor informed the district court that the State was not prepared to continue with the prosecution. Shade’s attorneys immediately moved to dismiss all charges. The prosecutor did not offer any opposition, and the district court dismissed all charges against Shade.

The State directly appealed from this evidentiary ruling. State v. Shade, 110 Nev. 57, 867 P.2d 393 (1994) (Shade II). We partially dismissed the appeal, concluding that we lacked jurisdiction to consider direct appeals from in limine evidentiary rulings of the district court. We noted, however, that we could consider the evidentiary ruling in the context of an appeal from the order of dismissal. That appeal is now before us.

DISCUSSION

As a preliminary matter, Shade contends that this court does not have jurisdiction to consider the State’s appeal. He argues that NRS 177.025 supports the proposition that this court cannot review discretionary decisions of the district court, such as to exclude evidence. Shade also argues that the State waived its right to appeal by not opposing his oral motion to dismiss in district court.

Shade is incorrect. First, NRS 177.025 provides that in criminal matters, “appeal to the supreme court from the district court can be taken on questions of law alone.” Nothing in this statute prohibits this court from reviewing discretionary decisions of the district court. If a district court abuses its discretion in making an evidentiary determination, it errs as a matter of law. Second, the State’s right to appeal does not rest on its objecting to a motion to dismiss. NRS 177.015(l)(b) specifically provides that in a criminal action either the State or the defendant may appeal to this court “from an order of the district court granting a motion to dismiss.”

In considering an appeal from the entry of final judgment, this court has jurisdiction to review all intermediate orders of the district court. NRS 177.045. As we stated in Shade II: “This court may nonetheless consider the issue of the exclusion of the evidence in the context of the appeal from the order granting Shade’s motion to dismiss.” Shade II, 110 Nev. at 63, 867 P.2d at 397. This court therefore has jurisdiction to consider whether the district court erred by excluding the evidence related to the heroin transaction.

The decision to exclude evidence is within the district court’s sound discretion. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). This court will not reverse such a determination absent manifest error. Id.

In this case, the district court held that while evidence of the heroin purchase was relevant to prove that Shade knew he was in possession of cocaine and methamphetamines, the prejudice of such evidence outweighed its probative value. After commenting upon Nevada precedent describing the prior bad act evidentiary doctrine, the district court excluded all evidence related to the heroin purchase and the accompanying surveillance. The district court did not specifically address the State’s contentions that the evidence was admissible under Nevada’s res gestae rule.

In Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976), this court explained the res gestae doctrine.

[W]hen several crimes are intermixed or blended with one another, or connected such that they form an indivisible criminal transaction, and when full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.

Id. at 321, 549 P.2d at 1404 (citing People v. Thomas, 83 Cal. Rptr. 879 (Ct. App. 1970)).

In Allan, the defendant was charged and convicted of one count of the infamous crime against nature for performing fellatio on one minor boy. The defendant argued on appeal that the district court erred by admitting evidence of uncharged offenses including an act of fellatio on another boy. As in the instant case, he claimed that this evidence was highly prejudicial and unrelated to the crime charged.

This court disagreed and held that the evidence was admissible under the res gestae rule or the “complete story principle”:

The testimony regarding the additional acts of fellatio, as well as the act of masturbation, was admissible as part of the res gestae of the crime charged. Testimony regarding such acts is admissible because the acts complete the story of the crime charged by proving the immediate context of happenings near in time and place. Such evidence has been characterized as the same transaction or the res gestae.

Id. at 320, 549 P.2d at 1403 (footnote omitted); see also State v. Villavicencio, 388 P.2d 245 (Ariz. 1964) (undercover agent’s testimony that the accused made an uncharged sale to a third person while selling to the agent was admissible under res gestae doctrine).

In the case at bar, the possession and transportation charges against Shade allegedly arose out of the same transaction as the heroin sale, yet the district court excluded all evidence related to Kenneson’s drug activities and the agents’ surveillance of those activities. The court disregarded the State’s res gestae argument and focused solely on the prejudice stemming from prior bad act evidence.

NRS 48.035(1) provides: “Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice.” However, NRS 48.035(3) codifies the res gestae rule and further provides:

Evidence of another act or crime which is so closely related to an act in controversy or a crime charged that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the other act or crime shall not be excluded, but at the request of an interested party, a cautionary instruction shall be given explaining the reason for its admission.

(Emphasis added.)

In reading NRS 48.035 as a whole, it is clear that where the res gestae doctrine is applicable, the determinative analysis is not a weighing of the prejudicial effect of evidence of other bad acts against the probative value of that evidence. If the doctrine of res gestae is invoked, the controlling question is whether witnesses can describe the crime charged without referring to related uncharged acts. If the court determines that testimony relevant to the charged crime cannot be introduced without reference to uncharged acts, it must not exclude the evidence of the uncharged acts.¹

In this case, the lower court’s evidentiary exclusions prohibit key witnesses from describing how Shade obtained the metham-phetamines and cocaine. Kenneson testified to the grand jury that Shade gave him approximately $400.00 to purchase the drugs. Kenneson then obtained the methamphetamines and cocaine for Shade when he purchased the heroin. Narcotics agents heard Kenneson ask Richardson, while Shade was present, if he wanted any methamphetamines or cocaine. Due to the district court’s ruling, the State cannot adequately inform the jury how metham-phetamines and cocaine turned up in Shade’s immediate proximity.

If the agents are not allowed to testify regarding their surveillance, the State cannot inform the jury how Shade obtained the drugs or that officers suspected Shade was participating as a lookout during the purchase of the drugs that were ultimately found in the car he was driving. Without such testimony, the State cannot effectively prosecute the transportation of illegal narcotics charges pending against Shade.

The charges at issue were contemporaneous to the heroin purchase, arose out of the same transaction, and involved the same participants. The excluded evidence was inextricably intertwined with the charged crimes and completed the story leading up to Shade’s ultimate arrest. We conclude that the State’s witnesses could not adequately testify about the methamphetamines and cocaine charges without some reference to the heroin sale and the accompanying surveillance activity. The district court thus abused its discretion by granting the motion in limine. The district court should have admitted the evidence and issued a cautionary instruction to the jury.²

CONCLUSION

The State’s witnesses could not effectively testify as to the complete story of Shade’s possession and transportation charges without mentioning the closely related events of the heroin purchase. Therefore, the district court erred by not admitting the excluded evidence under the res gestae doctrine and issuing the jury a cautionary instruction.

Accordingly, we reverse the district court’s order dismissing the charges and remand this case for further proceedings before a different district court judge.

Steffen, C. J., and Shearing, J., concur.

1 Shade claims that in Cirillo v. State, 96 Nev. 489, 611 P.2d 1093 (1980), this court ruled that even where res gestae was applicable, the trial court could exclude such evidence where it was unduly prejudicial. This is incorrect. The Cirillo court determined that the subject evidence did not come within the purview of NRS 48.035(3) because the witnesses were able to testify without referencing other uncharged activity. As a result, this court reversed the accused’s conviction because the trial court improperly admitted evidence of prior unrelated crimes. The foundation of the Cirillo decision rested upon exclusion of prior bad act evidence and not res gestae. Id. at 493-94, 611 P.2d at 1096.

2 Given this disposition of the case, we need not reach the issue of whether the excluded evidence should also have been admitted as proof, pursuant to NRS 48.045(2), that Shade had knowledge of the controlled substances he was found with.