*1 867 trial delegated is a decision to the prove-up properly participate a case- The trial courts should make this determination ón courts. by-case according implemented by basis and not to static rules court. per-
In the extent to which a defaulted will be deciding party all, trial mitted to if at courts should participate prove-up, default, after conducting hearing remember that the purpose 55(b)(2), to NRCP is to determine the amount of dam- according end, ages any and establish the truth of averment. To that trial courts should determine extent to which full participation truth-seeking defaulted will facilitate the This party process. will court not reverse district court’s decision as to participa- tion, a clear of the it NRCP granted absent abuse discretion 55(b)(2).
Here, attorney the district court allowed to cross Hamlett’s Reynolds’ examine witnesses but did not allow Hamlett to present his own evidence. We conclude that the district court acted well limiting within its discretion in so Hamlett’s participation. Allowing consistently Hamlett to introduce which he discovery, refused to would have been produce during inequitable. conclusions, foregoing reached the we affirm the dis- Having entering judgment against trict court’s order default Hamlett and $2,467,624.32 granting Reynolds in damages. ROEVER, Appellant,
LERLENE EVONNE v. THE NEVADA, STATE OF Respondent. No. 29647
September P.2d 503 963 *2 Gensler, Kuehn, Defender, R. Harry Public Harold Defender, Nye County, Assistant Public for Appellant. General, Papa, Frankie Sue Del Attorney City; Carson Robert Beckett, Vitto, S. Attorney, District and Kirk D. District Deputy Nye Attorney, County, for Respondent.
OPINION *3 Court, Young, By the J.: Lerlene Evonne
Appellant (“Roever”) Roever was previously convicted of one count degree of first murder her boyfriend, (“Wilhite”), Ian Wilhite and one count of possession of a con- substance, trolled marijuana. On appeal, reversed Roever’s State, conviction and remanded a new for trial. Roever v. (1995). Nev. 901 P.2d 145 trial, At Roever’s second the jury again returned a ver- guilty dict for first degree murder and possession marijuana. The dis- trict court sentenced her to two consecutive terms of life in prison with the possibility parole for the murder year count and one in prison for the possession count. and together Roever Wilhite lived in a trailer home in Pahrump,
Nevada, with three Roever’s children. On the morning of January 16, 1993, Roever called the police to that report she had found lying Wilhite dead in their master bedroom. The cause of death was attributed to a single bullet found in the base skull. of his The medical examiner determined that Wilhite was shot while sleeping the previous night and that the wound was not self-inflicted. Roever told that and police argued she Wilhite had about his infi- delities and previous evening spent night that she on the couch in the living room of the trailer. She police also told that any she had not heard the night noise before.
Although Roever a possessed handgun, police recovered Further, an only empty handgun fragments box. because the bullet severely were damaged, the medical examiner could not determine the type of bullet or firearm used in the murder.
Roever was charged arrested and with murder and possession of a controlled substance. Her theory of defense to the murder charge was that an unknown third party entered the trailer during Wilhite, the night, murdered and left the residence and its envi- rons without being seen. The State’s theory of the case that was Roever was the person with a possible motive and opportu- nity to shoot Wilhite. trial,
At
the parties stipulated
playing
to
a videotaped interview
(“Detective
between Roever and Detective
Ruas”)
Frank Ruas
during the State’s case-in-chief. The interview was
with
replete
Thereafter,
self-serving
statements Roever.
during
also
its case-
in-chief, the State called a series of character witnesses who tes-
tified to numerous prior
allegedly
statements
made Roever and
acts in which
allegedly
she was
involved.
argues
that
appeal
the following testimony was
admitted
over objection and without a hearing
required
Petrocelli v.
(1985):
3. Gloria and William acquaintances, Roever’s each testified Roever had told them that she an “gutted ex-beau.” 4. Bruske testified that Roever killed a classmate and has a voices, personality disorder causing in different speak expe- blackouts, rience forget what happened to her. Bruske further children, testified that Roever drank excessively, neglected her tried kill him with a knife. *4 Harrer, mother,
5. Wanda Bruske’s testified that Roever once threatened a woman in a bar with a cue stick.
6. Kay Carole Phillips (“Phillips”), Roever’s employer, testi- fied that Roever was a thief and a liar. sister,
7. Yolanda Wilhite Connelly, Wilhite’s testified that Roever once bit Wilhite.
The State contends that Roever called her character into ques- when during tion she stated her taped interview with Detective Ruas that she was “a peace-loving person, who would not hurt a Therefore, fly credibility and whose should not be questioned.” the State asserts that the testimony bad act was admissible under 48.045(l)(a) as rebuttal character evidence. The State also that the
alleges evidence was admissible under NRS had establish committed criminal acts while experi- encing a blackout and that concocting she was fantas- capable tic or incredible stories.
Initially, testimony bad character should never have been introduced it because was not in rebuttal to a defense made 48.045(l)(a)
accused. NRS admission of character evi- permits dence when the defendant offers bis or her good into evidence and the prosecution introduces evidence to rebut the However, defense.
‘“[bjefore raised, an issue can be said to be which would permit introduction of such evidence so obviously preju- accused, dicial to the it must have been raised substance words, if many not in so and the issue so raised must be one to which the prejudicial evidence is relevant. . . . The pros- ecution cannot credit the fancy accused with defences order to rebut them at the outset with some damning piece ” of prejudice.’ McCormick on Evidence 190 at 452 n.54 § (Edward Cleary, 1972) W. 2d ed. Lord Sumner in (quoting v. Thompson King, (1918)). The App. Cas. 849, 854, Taylor v. (1993). 858 P.2d 846-47 Here, Roever did not use her statements as evidence videotaped her good character to be rebutted by the State. We reject State’s contention that Roever the door” to character “opened merely by rebuttal to the stipulating admission of the videotape; was, fact, it the State that first used the in its case-in-chief. tape Therefore, we conclude that the district court erred allowing the State to rebut character evidence that had yet pre- not been sented the accused.
Second, NRS 48.055
permissible
allows
character evidence to
only
be admitted at trial
in the
form of
witness’s
opinion
the defendant or the defendant’s
Evidence
reputation.
specific
acts is
cross-examination or when the
upon
defendant’s character is an essential element of the
The
charge.
here
presented
clearly
not in the proper form.
Further, the State concedes that it did not confront Roever on the
witness stand under
48.055
with the
instances of
conduct and statements under scrutiny. Accordingly, the testimo
nial evidence at issue was
admitted as rebuttal char
improperly
48.045(1)(a)
acter
pursuant to NRS
or NRS 48.055.
Third, we conclude that the evidence was
admitted
*5
48.045(2).
pursuant
proscribes
to NRS
NRS
evidence
character,
although
of other acts to
such
is offered
prove
for other
The district court is
to conduct a
purposes.
required
hearing to determine whether evidence of other acts is admissible.
hearing,
“(1)
At the
the court must determine whether
the inci-
(2)
dent
relevant
the crime charged;
is
the act is
clear
proven
evidence;
(3)
convincing
and
and
value of the evi-
probative
dence
substantially outweighed by
is not
of unfair
danger
prej-
State,
1170, 1176,
1061,
udice.” Tinch v.
113 Nev.
946 P.2d
(1997).
1064-65
A trial court’s determination to admit or exclude
such evidence will not be disturbed on appeal absent manifest
Petrocelli,
52,
error.
Even had the district court conducted the required hearing prior the bad act admitting this evidence should have still been excluded. Much of the bad act evidence admitted was so inflammatory, utterly speculative, fantastic as to bear practi- Moreover, cally value. probative no uncharged use of bad acts to convict a defendant is
“[t]he
heavily
system
disfavored in our
justice.
criminal
Such evi-
irrelevant,
likely
dence
prejudicial
is
be
and forces the
accused to defend himself against vague and unsubstantiated
charges. . . . Evidence
uncharged
misconduct may unduly
influence
jury,
and result in a conviction of the accused
the jury
because
believes he is a bad
. . .
person.
The use of
specific conduct to show a
to commit the
propensity
crime
law,
charged
clearly
is
prohibited by Nevada
. . . and is com-
’
monly regarded as
grounds
sufficient
for reversal.’
854,
Taylor,
at
Fourth, the State alternatively argues that the testimonial evi- Roever, dence in dispute could properly be used to impeach who her testified on own behalf. We conclude that argument is without merit because NRS 50.085 such permits impeachment only as it relates to the propensity witness’s for truthfulness or Only untruthfulness. portions Phillips’ testimony discussed and, therefore, Roever’s propensity toward untruthfulness could be used as properly against Roever if she impeachment testifies again is in the proper form. Such impeachment 50.085(1). in the of an admitted form opinion. Any acts cannot through be raised extrinsic evidence. 50.085(3). The at issue generally acts here were not *6 untruthfulness, used to demonstrate Roever’s toward propensity and the State extrinsic impermissibly by calling used evidence testify other to acts. Consequently, witnesses about those this evi- dence, with the of exception Phillips’ testimony, of some was not proper impeachment.
We conclude that the act was prior bad evidence admitted and right served to violate Roever’s fundamental to a Accordingly, fair trial. we must reverse her conviction and conclusion, remand this matter for a new trial. In light of this need not Roever’s other court. address contentions to this J., J.,
Springer, and Rose, C. concur. J.,
Shearing, concurring: However, I agree granted that Roever should a new trial. I do not all agree analysis with of the the majority’s testimony of Chidester, Lambert, of Marlene Gloria and William and Craig Bruske. Roever’s that “a taped statement she was peace-loving person who would not hurt a was into fly,” introduced evidence would stipulation. I hold that this statement have opened would the door evidence of prior Roever’s inconsistent statements Chidester, through testimony the the Lamberts possibly Bruske. would have impeachment This been appropriate admissible, asserted, for the truth the matter not but as bear- ing credibility. on her
The the ordinarily fact that would not have been character, it because related to does not mean that it Lara, cannot be defendant. v. impeach used In U.S. 956 (10th 1992), F.2d 994 Cir. the court admitted evidence of another defendant, pending against objection over the prosecution that However, other bad act evidence should not have been admitted. he had defendant had testified that never been arrested and had never Tenth prosecuted anything been for else. The Circuit affirmed the conviction saying:
The could be taken reasonably defendant’s as an assertion that the indictment in the instant was the only case trouble he had ever had with law. This answer was mis- leading light of the fact that defendant was at the time under case. Evidence the other pros- indictment another show the bad ecution was not introduced to defendant’s char- Rather, acter. it challenge was used to the truthfulness his 48.045(2)] 404(b) Rule to NRS testimony. [comparable unfair but it prejudice shields a defendant from is not a Under give testimony. license to false the cir- misleading or 874
cumstances, a for was impeachment the use of this evidence 404(b). United under Rule “other permissible purpose” Cf. 210, Stockton, (4th Cir.) n. 15 788 F.2d 219 States v. prior use of bad permissible as (Impeachment qualify denied, 404(b)), cert. U.S. 107 S. Rule acts under (1986). Ct. 93 L.Ed.2d tape, came peace-loving Roever’s statements she had made. never asked about the statements she and Roever was bemay evidence of inconsistent statements Before extrinsic introduced, explain be afforded an opportunity the witness must 50.135(2)(b). deny the statements. course, under NRS the evidence must also be tested
Of whether its value is substan- probative to determine of confusion danger of unfair tially outweighed prejudice, This is a determination to misleading jury. of the issues or of trial judge. be made
Maupin, J., concurring: “character” rebuttal I that admission of the agree purported I write to comment fur- separately warrants retrial of this matter. this evidence. ther on the State’s use of character evidence under NRS 48.045 Admissibility of chief, trial, stipulated At the State’s case in the during parties Frank a interview between Roever and Detective taped to playing self-serving by with statements replete The interview was Rúas. view, that, in my good in her character issue. placed Roever chief, Thereafter, a case in the State called series during also its testified to numerous state- “character” witnesses who of rebuttal in by made Roever and to incidents allegedly separate ments alleged involved.1 These include state- allegedly which she was (1) had murdered her mother in a bath- by ments Roever that she water; (2) snapped and watched her mother’s teeth float the tub neck; (3) an African-American school baby’s scalped her newborn blackout; (4) her ex- during “gutted” cut her teeth a girl and out (5) kill the victim in this case on sev- boyfriend and threatened to testimony further on “character eral occasions. There was ’ classmate, person- killed a suffered from a rebuttal’ that she had blackouts, disorder, excessively, neglected drank ality experienced children, with a knife. kill her former spouse her and tried to the regarding rule admis- general NRS articulates a criminal trial: character evidence in the context of sibility of that, light argument, Roever’s counsel indicated 1Upon inquiry at oral allowing be admitted as a defense exhibit stipulation her statement to of the chief, chronological order of the during the case in played State’s appeal. at issue on alleged inadmissible evidence was not presentation of the 1. Evidence a or a char- person’s of character trait of his acter is not for the of that he proving purpose occasion, conformity acted in therewith a particular except:
(a) a Evidence of his character or trait of his character accused, an by offered and similar evidence offered such to rebut evidence .... prosecution The State character when placed contends that her at issue she interview during police stated her with that she was taped “a who hurt person, fly would not a and whose peace-loving credibility should not oral State questioned.” argument, be At asserted that the “bad acts” was admissible under 48.045(l)(a) as character rebuttal evidence and under NRS 48.045(2), to establish that Roever had committed criminal acts concocting while ‘‘blacked out” and that she of fan- capable theories, tastic or incredible stories. Under court these district the State allowed to rebut Roever’s character evidence with state- Here, and conduct I ments to which now refer.2 con- although clude that Roever placed character in issue stipulating the admission of the I also conclude that the evi- tape, “rebuttal dence” was admitted. 48.055 provides available mechanism for proving
character under NRS 48.045: 1. In all cases in which a trait character or admissible, proof may of a is made person be
testimony as form or in the of an On reputation opinion. cross-examination, made inquiry may specific be into of conduct. instances
2. In cases which character or trait of character of a person is an essential element of a charge, claim or defense, proof instances his conduct cross-examination. made on direct or *8 48.055(1) 48.045 and NRS mirror Federal Rules of 404 Evidence and 405. With the of allowing opinion exception testimony in reputation testimony addition to to charac- establish ter, Federal Rules of Evidence 405 404 and traditional adopt law common of At principles admissibility of evidence. law, specific common instances of conduct were not admissible to good the character of an to prove prove accused or bad character Falknor, in See AffectingAdmissibility, rebuttal. Extrinsic Policies 574, (1956) (referred 10 L. Rev. 584 Rutgers to committee 2Although argument given by the State conceded at oral that the evidence Chidester, Mr. and Mrs. Lambert Bruske was introduced rebut good impeachment evidence “prior Roever’s acts,” of character and not for via bad alternative, brief, argued admissibility State the has in the in its that grounds. could be based on also such 876 45.045(2) this 405). princi- codifies FRE 404 and notes to Thus, that these confirms history provisions of legislative the
ple.3
or reputa-
be limited to opinion
evidence should
such character
Here,
it did not confront Roever on
concedes that
the State
tion.
conduct and state-
the
instances of
specific
witness stand with
the
Thus,
the threats
with the
of
scrutiny.
exception
under
ments now
and,
murder her
evidence of
attempts
possibly,
to Wilhite
State,
48.045(2)
v.
and Petrocelli
see NRS
spouse,
former
(1985),
the district court
Further, there was no to bring these statements and attempt alleged incidents through into the case cross-examination of Thus, herself. instances of conduct of which the Roever complains on if introduced as bad appeal, “prior acts” to attack credibility, extrinsically Roever’s were introduced in viola- 50.085(3): tion of NRS witness, instances of the conduct of a for the
Specific
pur-
attacking
of
or
his
other
pose
supporting
credibility,
than
crime,
of
by
conviction
not be proved
extrinsic evidence.
however,
truthfulness,
may,
They
if relevant to
be inquired
into on
the
cross-examination of
witness himself or on cross-
hearing precludes
arguing
defendant’s failure to ask for such a
her from
point
appeal.
argument
apparent
This
underscores an
lack
understand-
ing
process.
hearings
of the
While it is true
the failure
to hold such
does
reversal,
always prejudice
rights
gen-
not
fundamental
so as to
it
warrant
is
erally
of the
bring
implicating
burden
State to
matters
the attention of
trial court.
following prerequisites
7Thiscourt has established the
before
bad acts
“(1)
charged;
evidence
(2)
be admitted:
can
the incident is relevant to the crime
evidence;
convincing
(3)
proven
probative
the act is
clear and
substantially outweighed by
danger
value of the evidence is not
of unfair
Tinch,
1176,
prejudice.”
(citing
to attack or his but to these limitations: untruthfulness; (a) Opinions are limited to truthfulness or (b) Opinions are after of truthful character admissible opinion evidence of or evidence introduction untruthfulness other impugning his character for truthfulness. reputation 2. Evidence of the of a truthfulness witness for untruthfulness is inadmissible. 48.045(l)(c): 9NRS person’s of a or a trait is 1. Evidence character of his character not conformity purpose for the that he proving acted in there- occasion, particular except: with on 50.090, (c) excluded Unless of the of a
witness, support credibility, offered to attack or his within limits provided NRS 50.085. examination of a witness who testifies to an opinion his *10 untruthfulness, character for subject truthfulness to the general limitations relevant evidence and the upon limitations and upon interrogation subject to the of NRS provisions 50.090. Here, may
NRS 50.085.10 have subject been to impeach ment through regard cross-examination with to the bad acts dis by majority, assuming good cussed a faith basis to inquire into them and assuming interrogation would not violate NRS State, however, (1) 48.035. The chose not to confront her directly events, (2) with the extraneous and the extrinsic of them was proof improper with or without confrontation.11
I now turn that possibility might to the errors committed be subject to a harmless error I analysis. reject adoption of such an alternative, circumstantial evidence despite persuasive suggesting that committed Roever is the who could have person the mur- der of Ian Wilhite. Although the evidence of guilt Roever’s seems quite strong, regard errors with to the so-called character rebuttal are so profound our utilization of the harmless error Thus, doctrine would a dangerous set most I precedent. would urge the State to exercise restraint in its next attempt to seek a conviction. ruling compel 10Sucha would not exclusion of all of the statements and By way example, against incidents attributed to Roever. her threats Wilhite Lambert; persons, including voiced to third her statements to Chidester shortly killing after the to the effect that knew peo “she how to take care of
ple got way”; regarding disagreements who in her her statements with Wilhite; any regarding leading statements Wilhite died up how or the facts death; daughter’s diary his her references to cross-examination of daughter. separately regard These must be evaluated with to other rules of to, including, but not limited NRS 48.035. retrial, issue, Chidester, places On if Roever character Mr. and Mrs. testify Lambert and Bruske could as witnesses in rebuttal within the and, believe, rulings confines of this court’s I sep- views set forth Then, opinion. arate specific positive instances of conduct Roever could cross-examinations, explored specific negative be on their instances could cross-examination, explored be on Roever’s if she testifies. 50.085(3), specifically 11UnderNRS had Roever been confronted with the witnesses, alleged by extraneous events these her denial of them would not opened have their approach door to admission under the traditional taken However, in NRS “specific 50.085. under a modern doctrine of contradic tion,” embrace, yet a we subject doctrine have witness “col impeachment by contradictory lateral” parties. Although evidence from third rule, should, appropriate this case is not for an examination of such a case, appropriate an future examine whether witnesses should be insulated 50.085(3). from false under the evidence” rule “extrinsic of NRS