requirements of NRS 174.234(2). "The district court has discretion to
determine the admissibility of expert testimony, and we review this
decision for a clear abuse of discretion." Sampson v. State, 121 Nev. 820,
827, 122 P.3d 1255, 1259 (2005). NRS 174.234(2) requires a party offering
expert testimony to provide to the opposing party, not less than 21 days
prior to trial, written notice containing a copy of the expert's curriculum
vitae, a brief statement regarding the subject matter and substance of the
expert's testimony, and a copy of all reports made by the expert. If the
State fails to provide this notice, the district court "may order the [State]
to permit the discovery or inspection of materials not previously disclosed,
grant a continuance, or prohibit the [State] from introducing in evidence
the material not disclosed, or it may enter such other order as it deems
just under the circumstances." NRS 174.295(2); see also NRS
174.234(3)(b), (6). In fashioning a remedy for a discovery violation, "[t]his
court will not find an abuse of discretion. . . unless there is a showing that
the State has acted in bad faith, or that the non-disclosure results in
substantial prejudice to appellant." Jones v. State, 113 Nev. 454, 471, 937
P.2d 55, 66 (1997) (internal quotation marks omitted).
Gonzalez claims that the report was not disclosed until eight
days before trial and that the State's course of conduct demonstrates bad
faith. He further alleges that he was unfairly prejudiced from preparing a
proper defense and that the prejudice became evident on cross-
examination when the expert lacked knowledge regarding the calibration
of the testing instrument used. The State acknowledged that it did not
provide the expert's report until eight days before trial but claimed that
Itlypically we don't have chemists test the drugs on cases such as this,
until we are sure it is going to trial On calendar call we call them up and
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say, test it fast and we'll send the report over at that time" The State
argues that "the parties were discussing negotiations up until calendar
call," and, as soon as Gonzalez indicated that a negotiation was unlikely,
the State ordered testing. We conclude that the State's explanation for the
untimely notices provides no basis for a finding of bad faith. Further,
Gonzalez fails to demonstrate substantial prejudice as he fails to explain
how receiving the report eight days instead of twenty-one days prior to
trial prevented some action or argument by the defense or how timely
disclosure of the expert's report would have prevented the alleged
prejudice regarding calibration. 1 Therefore, we conclude that the district
court did not abuse its discretion by allowing the testimony of the State's
expert witness.
Third, Gonzalez contends that the district court abused its
discretion when it allowed police officers to testify as experts without
proper notice from the State. We review for an abuse of discretion.
Mclellan v State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Gonzalez
claims that the police officers' testimony constituted improper expert
testimony because they testified as to their training and experience
regarding the identification of controlled substances and to their
certification to conduct tests on suspected controlled substances. The
district court did not abuse its discretion by admitting this testimony
because it was within the police officer's lay experience and did not
'Although we conclude that Gonzalez fails to demonstrate
substantial prejudice, we caution the State that its practice of delaying
testing may create a basis for substantial prejudice in other cases.
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constitute expert testimony, thus no notice was required from the State.
See NRS 50.265.
Fourth, Gonzalez argues that the district court abused its
discretion by allowing a jury instruction on joint possession. "The district
court has broad discretion to settle jury instructions, and this court
reviews the district court's decision for an abuse of that discretion or
judicial error." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585
(2005). Gonzalez claims that the instruction was not relevant, given the
State's theory of the case presented to the jury, and was prejudicial.
However, the appendix submitted by Gonzalez does not include the jury
instructions for this court's review on appeal. See NRAP 30(b) (requiring
inclusion in appellant's appendix of matters essential to the decision of
issue presented on appeal); Thomas v. State, 120 Nev. 37, 43 & n.4, 83
P.3d 818, 822 8i n.4 (2004) (appellant is ultimately responsible for
providing this court with portions of the record necessary to resolve his
claims on appeal); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980) ("The burden to make a proper appellate record rests on
appellant."). Therefore, Gonzalez fails to demonstrate that the district
court erred.
Fifth, Gonzalez contends that the district court erred by
refusing his request to instruct the jury regarding the State's failure to
gather or preserve evidence. Relying on Daniels v. State, 114 Nev. 261,
267-68, 956 P.2d 111, 115 (1998), Gonzalez argues that, while there may
not have been bad faith or connivance on the part of the State, he was
prejudiced by the loss of the white bag in which the smaller bags of
narcotics were contained because the packaging of the narcotics was
significant to the charge. He further alleges he was prejudiced by the
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failure to gather photographic evidence of the narcotics hi the vehicle
because the officers could not remember the precise location.
We conduct a two-part test to determine what remedy, if any,
a defendant is entitled to if the State fails to gather evidence. Id. at 267,
956 P.2d at 115. The district court must first determine that the evidence
is material, or "that there is a reasonable probability that, had the
evidence been available to the defense, the result of the proceedings would
have been different." Id. If the evidence is found to be material, then the
district court must determine whether the failure to recover the evidence
was a result of negligence, gross negligence, or bad faith. Id. (outlining
the remedies available depending on the district court's determination).
When there is an allegation that the State failed to preserve evidence, a
defendant "must show either bad faith or connivance on the part of the
government or that he was prejudiced by the loss of the evidence." Boggs
v. State, 95 Nev. 911, 912, 604 P.2d 107, 108 (1979). We conclude that
Gonzalez fails to demonstrate that the photographic evidence was
material, that the failure to gather photographs or preserve the white bag
was due to gross negligence or bad faith, or that he was prejudiced by the
loss of the white bag. Therefore, we conclude that the district court did
not err in refusing to give a jury instruction pursuant to Daniels.
Sixth, Gonzalez argues that the district court abused its
discretion by allowing testimony that the vehicle was stolen. We review
the district court's decision to admit evidence for an abuse of discretion.
Mclellan, 124 Nev. at 267, 182 P.3d at 109. Prior to trial, the State agreed
not to elicit testimony about the stolen vehicle unless Gonzalez opened the
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door. 2 On cross-examination of an officer,. Gonzalez elicited testimony that
the driver of the vehicle was taken into custody, handcuffed, and placed on
the pavement. The district court determined that the line of questioning
opened the door for the State to clarify why the driver was arrested,
including testimony that the car was reported stolen. We conclude that
the district court did not abuse its discretion in allowing testimony that
explained the reason for the driver's arrest.
Seventh, Gonzalez contends that the State committed
prosecutorial misconduct during rebuttal argument by making him the
object of ridicule. "[A] criminal conviction is not to be lightly overturned
on the basis of a prosecutor's comments standing alone, for the statements
or conduct must be viewed in context; only by doing so can it be
determined whether the prosecutor's conduct affected the fairness of the
trial."' Evans v. State, 112 Nev. 1172, 1204-05, 926 P.2d 265, 286 (1996)
(alteration in original) (quoting United States v. Young, 470 U.S. 1, 11
(1985)). "We will not order a new trial on the grounds of prosecutorial
misconduct unless the misconduct is clearly demonstrated to be
substantial and prejudicial." Miller v. State, 121 Nev. 92, 99, 110 P.3d 53,
58 (2005) (internal quotation marks omitted). Here, the challenged
comments were made in response to an argument by the defense in its
2 To the extent Gonzalez argues that the State failed to file a pretrial
motion pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), he
failed to raise this claim below and fails to demonstrate plain error. See
NRS 178.602; Mclellan, 124 Nev. at 269, 182 P.3d at 110 (providing that
we will review for plain error when a defendant fails to raise an issue
below and will only reverse when clear error affects the defendant's
substantial rights).
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closing argument and were proper. See Greene v. State, 113 Nev. 157, 178,
931 P.2d 54, 67 (1997), receded from on other grounds by Byford v. State,
116 Nev. 215, 235, 994 P.2d 700, 713 (2000).
Eighth, Gonzalez argues that cumulative error warrants
reversal of his conviction. Because we have found no error, there is
nothing to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED. 3
J.
J.
CHERRY, J., dissenting:
The State's unofficial policy of delaying the testing of evidence, and
therefore the results of such testing, clearly demonstrates bad faith. By
waiting to test until after the completion of negotiations, the State ensures
that timely notice of an expert's report will rarely, if ever, occur. This type
of discovery violation would not be tolerated in the civil justice system and
should not be accepted in the criminal justice system. A report that is
material in the case against a criminal defendant should be disclosed, at a
minimum, by the discovery deadline set by statute. Therefore, I conclude
'We have reviewed all documents that Gonzalez has submitted in
proper person to the clerk of this court in this matter, and we conclude
that no relief based upon those submissions is warranted.
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that the State's notice of the expert's report was untimely, and Gonzalez
demonstrated that the State acted in bad faith by deliberately waiting
until after the completion of negotiations to order testing. CI Jones v
State, 113 Nev. 454, 471, 937 P.2d 55, 66 (1997) (finding that the State did
not act in bad faith when it used all reasonable efforts to obtain results
before the discovery deadline, sent the results prior to the deadline, and
the delay in receiving the results was not attributable to the State).
Accordingly, I would reverse Gonzalez's conviction and remand for a new
trial.
cc: Hon. Douglas W. Herndon, District Judge
Legal Resource Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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