*1 оpment’s “was not construction defects and Medallion Indeed, negligent in manner.” respondents’ “preliminary matrix,” allocation determine the though specifically it did “design involvement of the indicates respondent professionals,” conditions, that soil paving, drainage, site and foundation defects alleged by may primarily Homeowners Association have been caused respondents.
Reports by the for also prepared respondents appear Medallion to confirm that three may given improper all have respondents many design recommendations in specifications. Specifi- of their cally, the may shows that have responsi- evidence Converse been ble design for improper pavement require and failure corrosion from deteri- protect cоpper inhibitor water pipes oration. B&T been may responsible failing KJC and have failure adequately protect pipes and sufficient provide pavement drainage. respondents This is sufficient to show that may be liable for the in the Duck primarily constructiоn defects Creek subdivision. remand,
On to show or more of Medallion will have that one more of the primarily subcontractors liable one or claims See Black & brought Homeowners Association. Decker, at a thorough Nev. 698. After evidence, may examination thе fact determine of all finder are, that the defendants or in part, equally responsible whole instance, for each of contractual the claims. In that implied However, indemnity be inapplicable. meaningful would until all determined, liability evidence out is fleshed mаterial issues of fact still exist. reverse the of the district Accordingly, we order court and remand this case district proceedings to the court for consistent with this opinion. QUEVEDO, Appellant, THE
CARLOS Respondent. NEVADA, STATE OF
No. 25579 3, 1997 January *2 Gilbert, Minden,
Patrick Appellant. for General, Papa, Attorney City; Frankie Sue Del Carson Scott Brown, Doyle, Attorney, W. District Kristine L. District Deputy Attorney, Douglas County, for Respondent.
OPINION Court, Springer, By the J.: Quevedo (Quevedo) charged Carlos was with seven Appellant of sexually assaulting seven-year-old daughter. counts his The were based on his that her father had charges daughtеr’s reports been in intercourse with her and also her to engaging forcing fellatio him. The victim her perform made these upon reports third-grade Douglas County teacher and to a sheriff’s At deputy. trial, testified, Quevedo’s as did her teacher and the daughter Quevedo dеputy who interviewed her. was convicted on all seven sentences, counts. He was sentenced to seven life three of them to consecutively. run by adhering
The district court erred to the mandate of NRS 51.385; the convictions must be reversed. consequently,
NRS 51.385 provides, рart: 1. other provision addition to court, statute or rule of a child statement made
under the age years describing any act of sexual conduct with or on the in a performed child is admissible criminal that sexual if the: proceeding regarding conduct
(a) jury, Court finds in a out of the presence time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthi- ness; and
(b) Child either testifies the proceeding or is unavail- able or unable to testify.
This court has held that NRS 51.385 “requires that a hearing as to trustwоrthiness be prior held to admission of the child’s Lytle statements.” Both teacher, the victim’s (Linn), Susan Linn and Sheriff’s Deputy Paul (Pabon) Pabon testified as to statements made to Quevedo’s them by daughter. These statements are hearsay. In Lytle, this court held that “NRS 51.385 clearly requires a hearing fоr the purpose of determining trustworthiness of the offered hearsay statements prior to the being before brought the jury.” 107 Nev. at (footnote 816 P.2d at omitted). Lytle is factually almost identical to this In Lytle case. defendant was convicted of open gross with lewdness his five-year-old stepdaughter. testified, The Lytle victim in as did the victim in this case. Additionally, hearsay made by *3 the victim to her mother to juvenile authorities were admitted in Lytle. These statements are similar to the Linn and Pabon in this case. This court made Lytle concluded in that “the district court’s failurе to follow the specific requirements of NRS 51.385 justifies the reversal of [] appellant’s convictions.” Id. We noted Lytle in that the opening phrase of NRS “[u]nder 51.385(1), this is hearing required unless the hearsay is otherwise admissible under a recognized exception the hearsay rule.” Id. However, at n. 1. the statements made to Linn and Pabon do not fit into any of the recognized hearsay case, In exceptions. this district judge did not mention hearsay exception that would allow statements, which was exactly Lytle. the situation in fact, Lytle, in as in this no objection was made to the However, statements at trial. court Lytle this stated in that State contends [t]he only is required if the objects
defendant to the of the hearsay. introduction This contention is simply consistent with the clear language of NRS which allows hearsay statements only if the finds, “court in a hearing out of presence of the jury” sufficient guarantees of trustworthiness.
Id. We Lytle conclude that directly is and is point controlling this in case. It was clearly error for the district court to fail to hold the hearing to determine trustworthiness of
statements before allowing Linn and testify. Pabon to The convic- Quevedo reversed, tions of are therefore and the case is remanded district court for a new trial. Young Rose, JJ., concur.
Steffen, J.,C. dissenting: I strongly disapprove majority’s perfunctory invocation State, of this court’s fragilе ruling Lytle (1991), as a basis for subjecting child-victim in the instant case to the extreme trauma of another trial. I therefore dissent.
Especially troubling majority’s is the apparent belief that any failure to hold a hearing pursuant NRS 51.385 requires, under Lytle, extreme, an automatic reversаl. The deference myopic Lytle accorded dispenses with all semblance of review appellate calculated to determine whether there was prejudicial error requiring this court to reverse the careful jury deliberations Indeed, who heard all of the evidence. the total lack of analysis by the majority in reaching the wooden decision to subject this child-victim to the trauma of another trial is most distressing.
It appears to me that several matters of concern should have given the majority pausе before so little investing time in con- cluding Lytle mandates an automatic reversal of what other- wise appears First, to be a fair and just trial. the majority should realize that the Lytle concerns expressed are not of a constitu- where, here, tional magnitude as the child-victim testifies at trial and is available for full cross-examination. In Felix v. Nev. we concluded that:
NRS 51.385 authorizes the admission of out-of-court CSA allegations child-declarants whether or not they testify. If a child does testify, admission of that child’s prior consistent or inconsistеnt out-of-court statements does not violate the confrontation, defendant’s constitutional right to so long as the child subject to full and effective cross- *4 examination concerning the statements.
Second, the majority should realize that NRS 51.385 was not enacted because of any belief that children are trustworthy less than older witnesses. To the contrary, the statute was enacted in order to add another hearsay that exception applies to children under ten years of age. (“In See NRS 51.385 addition to other provision for court, made by statute or rule of a statement a child under the age of 10 years ... .”). admissible . . . Notwithstanding the policy the underlying statute, the majority blithely concludes that the hearsay state- ments in the instant case would “not fit into any of the recognized hearsay exceptions.” Given the nature of the testimony, child’s trustworthiness, and its inherent aura of I great have difficulty understanding conclude, how the majority can so readily as a law, matter of that the hearsay statements do not within any fit recognized to the hearsay rule. exceptions
In
the
considering majority’s naked conclusion thаt the hearsay
statements in the present case would not fit into a recognized
hearsay exception, I refer my brethren to our recent case of
Bockting
analyzing the constitutionality of NRS 51.385
the
under
con-
straints of Idaho v. Wright,
recognized hearsay exception, NRS requires which assurances of accuracy, would likely validate the admissibility of the hearsay teacher, testified to the victim’s Susan Linn, and Deputy Sheriff Paul Both Pabon. arе essen- tially consistent with the testimony at trial. child-victim Moreover, the child-victim was available full cross- examination concerning statements and the circumstances under Moreover, which they were made. virtually all of the factors in Wright identified as having significance determining the reliability of the hearsay are strongly satisfied case. in this
The majority seem to justify their bare conclusion that the hearsay would be accorded admissibility recognized under exceptions to rule by noting that the judge trial did not “mention any hearsay exception that would allow the state- course, ments . . . .’’Of the majority disregards the fact that defense counsel did not object either of the hearsay statements. It appears thus now majority assumes if defense
40 a attributable to hearsay to object counsel fails to either the must years, judge child- victim under the of ten age the statements are admis- why intervene and on the record justify object or the State must objection, sible a lack of notwithstanding that the be testimony objection and then ask proffered its own then specify. overruled that the State must for reasons the law its head. ruling I that the turns on suggest majority’s admitted hearsay Under where has been usual circumstances review that claim of error on without we would not objection, of appeal, proceedings question but leave to post-conviсtion by failing the trial whether counsel the fairness of prejudiced time, on the of the hearing At that a full could focus issue object. have a and this court would thereafter hearsay of the enlightened judgment which to make an complete upon record casеs, where small children are types issue. In these of alone, proce- victimized trial sound policy the ordeal of dure demand less. nothing analysis my of col- Finally, fully agree dissenting I with Shearing Justice in her dissent. As she has
league join concluded, the admission even if we were to concede error as to a under the circum- hearsay hearing, statements without case, clearly would be harmless. stances this error above, For the I dissent. reasons abbreviated Shearing, J., dissenting: Quevedo’s
I would affirm
conviction of seven counts of
Carlos
sexual
disagree
majority’s position
assault. I
with
district
a
hearing pursu-
court’s failure to hold “trustworthiness”
ant to
state-
admitting
NRS 51.385 before
victim’s
ments
the conviction.
requires reversal of
First, I
with
court’s
of NRS
agree
interpretation
do not
this
State,
589,
51.385
v.
107 Nev.
expressed Lytle
mandatory
even if counsel does not
making
hearing
other
object
virtually every
evidence. NRS
like
code,
rule in the
be
waiver when there
subject
evidence
should
Lytle.
dissenting
is no
I
with the
objection.
agree
opinion
591-95,
Nev. at
A
is a
proper objection
Second, even if it was error to admit the victim’s hearing, statements without a it was harmless error. This case is very similar to Brust
(1992), in which held that the of the child this court admission victim’s to a clinical without a “trust- psychologist worthiness” was harmless error. The child had testified trial, subject and been to cross-examination at the and the state- ments were merely repetitive. In the instant both the vic- tim’s teacher and a sheriff’s investigator testified to statements the *6 child made to them consistent with her trial testimоny. It is a waste of court resources require a separate “trustworthiness” hearing when the court has already heard the child’s testimony direct and cross-examination; the district court is thereby superior position to determine “trustworthiness” without a sepa- rate hearing.
I also join in the dissent of Justice Steffen. POWELL, Appellant,
KITRICH v. THE Respondent. NEVADA, STATE OF
No. 22348 January
[Rehearing May denied 1997] Pescetta, McGuire, Michael Vegas; Las Steven Public G. State O’Toole, Defender, Defender Timothy P. State Public Deputy Carson City, Appellant. Frankie Papa, General, Sue Del Attorney City; Carson Stewart Bell,
L. Attorney, District Tufteland, James Deputy Chief District Seaton, Attorney, and Daniel M. Deputy District Attor- ney, Clark County, for Respondent.