Ross and his codefendant, Keith Coulter, were tried together
and convicted. The issues on appeal are: (1) whether the district court
abused its discretion by excluding his codefendant's letter and affidavit
and (2) whether the district court abused its discretion by denying Ross's
motion to sever."
The district court abused its discretion by excluding a letter and affidavit
by codefendant Coulter
We review a district court's exclusion of evidence for an abuse
of discretion and will reverse "[a] decision [that] is arbitrary or capricious
or if it exceeds the bounds of law or reason." Coleman v. State, 130 Nev.,
Adv. Op. 26, 321 P.3d 901, 908 (2014) (internal quotations omitted).
During opening arguments, Ross's attorney mentioned that
Coulter sent a letter to the defense. Coulter objected. Outside the
presence of the jury, Ross's attorneyS explained that Coulter, who was in
the Clark County Detention Center on an unrelated matter at the time,
had sent him a letter purportedly exonerating Ross from any involvement
in Smalley's murder. Ross's attorney used the letter to prepare an
affidavit for Coulter's signature and subsequently had an investigator visit
Coulter at the jail, where Coulter purportedly admitted to writing the
letter and thus signed the affidavit. The district court sustained Coulter's
objection and refused to admit his letter and affidavit on the basis that
they were not statements against Coulter's interest and were not
trustworthy.
'Because each of these issues warrants the reversal and remand of
Ross's convictions, we do not consider other issues raised in this appeal.
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Coulter's letter and affidavit are statements against penal interest
Hearsay is an out-of-court "statement offered in evidence to
prove the truth of the matter asserted," NRS 51.035, and is inadmissible
unless it falls within an exemption or exception, NRS 51.065(1). A
statement against interest• is excepted from the hearsay bar and is
admissible, provided that
[a] statement which at the time of its
making ...
(b) So far tended to subject the declarant to
civil or criminal liability . . . that a reasonable
person in the position of the declarant would not
have made the statement unless the declarant
believed it to be true is not inadmissible under the
hearsay rule if the declarant is unavailable as a
witness. A statement tending to expose the
declarant to criminal liability and offered to
exculpate the accused in a criminal case is not
admissible unless corroborating circumstances
clearly indicate the trustworthiness of the
statement.
NRS 51.345(1).
"[T]he against interest requirement is not limited to
confessions of criminal responsibility. What is required is that the
statement 'tend to subject' the declarant to criminal liability." United
States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989) (quoting United States
v. Layton, 720 F.2d 548, 559 (9th Cir. 1983)). In Candoli, an unavailable
declarant made an out-of-court statement that he had the only keys to a
building on the night that an arson occurred in that building. Id. at 508.
The statement was made to an investigator who the declarant knew was
investigating the fire, and the declarant had previously been arrested in
relation to the fire, which indicated that the declarant realized that the
statement was inculpatory and he would not have made it unless he
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believed it to be true. Id. at 509. The Candoli court found that it was a
statement against the declarant's penal interest, even though it was not a
clear confession of criminal responsibility. Id.
Here, Coulter was not available as a witness because he, as a
defendant, exercised his right not to testify. See Funches v. State, 113
Nev. 916, 922-23, 944 P.2d 775, 778-79 (1997) (holding that a defendant is
considered unavailable to testify when invoking his Fifth Amendment
right not to testify). While Coulter did not directly admit to any of the
crimes surrounding Smalley's murder, his letter nonetheless puts him
near the scene of the murder, as well as in possession of the car that was
seen by police fleeing from the scene. Although his letter did not expressly
state the date that the described events occurred, it does state that the
letter is "in regards to your client Mr. [E]ugene [R]oss, and the current
matter at hand," and that he was giving "my account of what happened."
The letter also states that "on the day of the incident," Coulter borrowed
Ross's car. These two statements indicate that the events described in the
letter took place on the day and night of Smalley's murder.
The letter also states that Coulter and two friends then went
to an apartment where there was "a lot of commotion" and he saw
"Lashaye," Barksdale's middle name, run out of the apartment. It is
undisputed that Barksdale was arrested after running outside of the
apartment where Smalley was murdered; thus, Coulter's statement puts
him near the crime scene around the time of the murder. Lastly, Coulter
describes pulling the car into another apartment complex around the
corner. As Ross's car was seen by police fleeing from the murder scene,
and was later discovered in a nearby apartment complex, this statement
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puts Coulter in possession of Ross's car near the crime scene immediately
after Smalley's murder.
Coulter's affidavit also puts Coulter in possession of Ross's car
on the morning of Smalley's murder. The affidavit states that on
February 25, 2006, the day before Smalley's murder, Coulter borrowed
Ross's car. It also states that he gave Ross the keys to the car on February
26, 2006, the morning of Smalley's murder. As Ross was arrested near
Smalley's apartment while possessing his car keys on the morning of
February 26, 2006, Coulter's affidavit puts him near Smalley's apartment
on the morning of his murder.
Thus, Coulter's letter and affidavit place him near the crime
scene on the morning of Smalley's murder and in possession of a car seen
fleeing from the crime scene. This same car was later found to contain
substantial evidence relating to Smalley's murder. At the time he made
his statements, Coulter was in the Clark County Detention Center for an
unrelated parole violation and had not yet been charged with any crimes
related to Smalley's murder. Like the declarant in Candoli, Coulter had
reason to know that the statement could be inculpatory, as he would have
known the nature of the crime that Ross had been charged with, as well as
the fact that Ross's car was involved. See Candoli, 870 F.2d at 508-09.
Therefore, because Coulter's letter would tend to subject him to criminal
liability for Smalley's death and a reasonable person in his position would
not have made the statement unless he believed it to be true, we hold that
Coulter's letter and affidavit were statements against his penal interest. 2
2 The portion of the affidavit stating that "Ross is innocent of any
criminal charges," however, is not inculpatory because it does not state
any facts that would connect Coulter to the charged crimes. Therefore,
continued on next page...
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Corroborating circumstances indicate that Coulter's letter and
affidavit are trustworthy
"[T]he statutory test for determining the admissibility of
statements against penal interest under NRS 51.345 is whether the
totality of the circumstances indicates the trustworthiness of the
statement or corroborates the notion that the statement was not
fabricated to exculpate the defendant." Walker v. State, 116 Nev. 670, 676,
6 P.3d 477, 480 (2000). In analyzing whether corroborating circumstances
indicate that a statement against interest is trustworthy, this court has
identified the following factors:
(1) whether the declarant had at the time of
making the statement pled guilty or was still
exposed to prosecution for making the statement,
(2) the declarant's motive in making the statement
and whether there was a reason for the declarant
to lie, (3) whether the declarant repeated the
statement and did so consistently, (4) the party or
parties to whom the statement was made, (5) the
relationship of the declarant with the accused, and
(6) the nature and strength of independent
evidence relevant to the conduct in question.
Coleman, 130 Nev., Adv. Op. 26, 321 P.3d at 909 (internal quotations
omitted).
...continued
this sentence is not a statement against his penal interest and is not
admissible under this hearsay exception. See LaGrand v. Stewart, 133
F.3d 1253, 1267-68 (9th Cir. 1998) ("[A] statement that includes both
incriminating declarations and corollary declarations that, taken alone,
are not inculpatory of the declarant, must be separated and only that
portion that is actually incriminating of the declarant admitted under the
exception.").
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As Coulter's letter and affidavit are offered to exculpate Ross,
corroborating circumstances must demonstrate their trustworthiness to
establish their admissibility. See id. Applying Coleman, the following
considerations suggest that the letter was not trustworthy: Coulter and
Ross were close friends, the physical evidence suggests that Ross was at
the crime scene, and Coulter appears to have written the letter in an
attempt to exonerate Ross. However, the following considerations suggest
that the letter and affidavit were trustworthy: Coulter had not been
charged with any crimes related to Smalley's murder at the time that he
wrote the letter and signed the affidavit, Barksdale testified that Coulter
was present at the murder scene, the physical evidence corroborated
Coulter's account, Coulter made the statement to an officer of the court in
Ross's attorney, and Coulter later signed an affidavit repeating much of
the content of the letter.
Furthermore, Coulter's affidavit carries an additional "indicia
of trustworthiness because he memorialized it on paper, under oath, and
presented it as truth to a court of law." Luna v. Cam bra, 306 F.3d 954,
963 (9th Cir. 2002), amended by 311 F.3d 928 (2002). This indicia of
trustworthiness is bolstered by the fact that Coulter's previous
involvement in the criminal justice system indicates that he "knew or
should have known that his declaration could be used against him in a
subsequent criminal trial" Id. at 963-64 (noting that declarant's prior
involvement in the criminal justice system indicated that he did not make
the statement unwittingly or without understanding the ramifications of
the statement). Lastly, Ross's attorney stated that his investigator would
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testify that Coulter was not offered anything in exchange for signing the
affidavit.
We hold that, on balance, the Coleman factors in this case
indicate that the letter and affidavit are trustworthy. Therefore, because
Coulter's letter and affidavit were statements against his penal interest
and were trustworthy, the district court abused its discretion by excluding
them from evidence.
The district court's error was not harmless
An error is harmless if the court can determine "beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967).
Ross's theory of defense was that he had not been in
possession of his car when Smalley was murdered because he loaned it to
Coulter. Both Coulter's letter and affidavit strongly support this theory
because they state that Coulter had borrowed Ross's car the night of
Smalley's murder. Because we cannot determine beyond a reasonable
doubt that the district court's decision to exclude this evidence did not
contribute to Ross's guilty verdict, we hold that the district court's error
was not harmless. As a result, it warrants the reversal and remand of
Ross's conviction.
Significant irregular events impaired Ross's right to a fair trial
"A criminal defendant has a fundamental right to a fair trial
secured by the United States and Nevada Constitutions." Watters v. State,
129 Nev., Adv. Op. 94, 313 P.3d 243, 246 (2013) (internal quotations
omitted). The district court has a duty to "protect the defendant's right to
a fair trial" and to "provid[e] order and decorum in trial proceedings."
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Rudin v. State, 120 Nev. 121, 140, 86 P.3d 572, 584 (2004) (internal
quotations omitted); see also United States v. Evanston, 651 F.3d 1080,
1091 (9th Cir. 2011) (stating that the district court is to manage the trial
so as to avoid causing "a significant risk of undermining the defendant's
due process rights to a fair trial and impartial jury").
An occurrence that "[is] so intrinsically harmful [to the
concept of a fair trial] [constitutes a structural error that] require[s]
automatic reversal . . . without regard to their effect on the outcome [of the
proceeding]." Knipes v. State, 124 Nev. 927, 934, 192 P.3d 1178, 1182-83
(2008) (second and fifth alterations in original) (quoting Neder v. United
States, 527 U.S. 1, 7 (1999)); see also Cortinas v. State, 124 Nev. 1013,
1024, 195 P.3d 315, 322 (2008) (observing that a structural error "affect[s]
the very framework within which the trial proceeds" (internal quotations
omitted)). Thus, an incident or incidents that significantly undermine a
defendant's right to a fair trial can be structural error and require
automatic reversal of a conviction.
In the present case, there were significant incidents that
potentially affected the fairness of Ross's trial. Specifically, several jury
irregularities occurred, including a juror's outburst and contempt
proceedings, a juror's conversation with unknown individuals at a bar
about the other juror's contempt proceedings, and improper
communication between Ross's mother and a juror. In the most
significant of these juror-related incidents, Ross's mother approached the
assembled jurors in the morning before that day's trial proceedings and
borrowed a juror's cell phone. Ross's mother then placed a call to a
prospective witness in the presence of multiple jurors. Finally, Ross's
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mother attempted to pay the juror with one-half of a cigarette. The
district court did not remove any juror for this incident.
Subsequent to the incident involving Ross's mother, the
district court confiscated the juror's cell phone and held a hearing outside
of the jury's presence. During the hearing, the district court answered a
call placed to the confiscated cell phone. This call originated from the
number that Ross's mother had called, and the district court attempted to
speak with the caller. The district court then detained Ross's mother and
initiated contempt proceedings against her.
While none of these irregularities may have individually
impaired Ross's right to a fair trial or the jury's ability to be fair and
impartial, they collectively undermined Ross's right to a fair trial to the
point that they "affect[ed] the very framework within which the trial
proceed[ed]." Cortinas, 124 Nev. at 1024, 195 P.3d at 322; cf. Valdez v.
State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) ("The cumulative
effect of errors may violate a defendant's constitutional right to a fair trial
even though errors are harmless individually." (internal quotations
omitted)). Thus, the effect of these irregularities also requires us to
reverse and remand Ross's convictions.
The district court abused its discretion by denying Ross's motion to sever
his and Coulter's trials
We review the district court's denial of Ross's motion to sever
his and Coulter's trials for an abuse of discretion. See Chartier v. State,
124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008). Severance is appropriate
"if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a
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reliable judgment about guilt or innocence." Id. at 765, 191 P.3d at 1185
(internal quotations omitted); see also NRS 174.165(1) (providing that
severance is appropriate to prevent prejudice to a defendant or the State).
One way that a joint trial may be prejudicial is when "defenses [are]
antagonistic to the point that they are 'mutually exclusive." Rowland v.
State, 118 Nev. 31, 45, 39 P.3d 114, 122 (2002). "Defenses are mutually
exclusive when the core of the codefendant's defense is so irreconcilable
with the core of [the defendant's] own defense that the acceptance of the
codefendant's theory by the jury precludes acquittal of the defendant."
Marshall v. State, 118 Nev. 642, 646, 56 P.3d 376, 378 (2002) (alteration in
original) (internal quotations omitted).
Here, Ross and Coulter each presented defenses based on the
theories that each was not at the scene of the crime and did not commit
the charged acts. To support these theories, each defendant developed
evidence and made arguments suggesting that the other was present.
Ross presented a theory that Coulter was the man in the red
beanie who battered and attempted to kill Paton. Barksdale, Paton, and a
police officer who arrived at the scene all testified that one of the
perpetrators was wearing a read beanie. A red beanie was later found
discarded near the crime scene containing the DNA of Coulter, as well as
DNA that the forensic analyst could not exclude as coming from Ross.
Ross's attorney cross-examined Barksdale to clarify her testimony that she
saw Coulter, not Ross, wearing the beanie. Ross argued that Coulter had
borrowed Ross's car and used Ross's gun, which had been inside the car
when Coulter borrowed the car. While cross-examining one of the State's
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witnesses, Ross also proffered evidence that Coulter had previously been
issued a traffic citation while driving Ross's car. In addition, Ross
presented a witness who identified Coulter as being near the scene of the
crime. Lastly, Ross argued that the reason he had gunshot residue on his
hands was because he was handed his car keys from Coulter, implying
that Coulter was in the apartment when Smalley was shot.
Coulter presented a theory that Ross was the man in the red
beanie Coulter's attorney cross-examined Paton to clarify testimony that
she saw Ross, and not Coulter, wearing the red beanie. In closing
arguments, Coulter also argued that the possible presence of Ross's DNA
on the beanie suggested that Ross, and not Coulter, was wearing it the
night of Smalley's murder. Because both Ross and Coulter developed
evidence and presented arguments that the other was the man in the red
beanie, and that they themselves were not present at the time of the
murder, their defenses were so antagonistic as to be mutually exclusive.
Thus, this mutual exclusivity caused "a serious risk that [the] joint trial
would .. . prevent the jury from making a reliable judgment about guilt or
innocence," Chartier, 124 Nev. at 765, 191 P.3d at 1185 (internal
quotations omitted), because the acceptance of Coulter's theory would
cause a risk that it would necessarily reject Ross's theory of defense.
Therefore, the district court abused its discretion by denying Ross's motion
to sever the trials. As a result, reversal is warranted, and we order the
district court to sever Ross's and Coulter's trials on remand.
Conclusion
The district court abused its discretion by excluding Coulter's
letter and affidavit from evidence, and this error was not harmless.
Furthermore, significant irregularities deprived Ross of a fair trial.
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Lastly, the district court abused its discretion by refusing to sever Ross's
and Coulter's trials. Therefore, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 3
J.
Parraguirre mes"
Douglas
Saitta
, J.
PICKERING, J., with whom HARDESTY, C.J., agrees, concurring in part
and dissenting in part:
I agree that reversal and remand for a new trial are required
by the denial of severance and juror misconduct issues in this case. But I
30n remand, we instruct the district court clerk to reassign this case
to a different department.
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do not agree, and therefore dissent from, the majority's holding that the
district court abused its discretion in not admitting the Coulter affidavit
and letter under the exception NRS 51.345(1) makes to the hearsay rule,
NRS 51.035, for statements against penal interest. Appellant did not cite
NRS 51.345(1) in his opening brief as a basis for admitting this evidence
and, as to the letter, goes so far as to state in his reply brief, p. 5, that it
was "not sought to be introduced." I therefore question whether the
statement-against-penal-interest exception is properly before the court on
this appeal. See Bisch v. Las Vegas Metro. Police Dep't, 129 Nev., Adv. Op.
36, n.2, 302 P.3d 1108, 1112, n.2 (2013) (declining to consider arguments
not raised or supported in opening brief). As a substantive matter, our
review is for an abuse of discretion by the district court. Coleman v. State,
130 Nev., Adv. Op. 26, 321 P.3d 901, 908 (2014). Here, I would hold that
the district court acted within the ambit of permissible discretion in
concluding that the affidavit, authored by Coulter while in jail on a parole
violation, was not against Coulter's penal interest or trustworthy but,
rather, designed to exonerate Ross and distance Coulter from the events
giving rise to the charges in this case.
J.
Pickering
I concur:
, C.J.
Hardesty
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4r
cc: Hon. Michelle Leavitt, District Judge
Dayvid J. Figler
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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