132 Nev., Advance Opinion
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
JONATHAN QUISANO, No. 66816
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. FEB 1 8 2016
TRAgE K. LINDEMAN
CL
F DErlY CLERK
Appeal from a judgment of conviction, pursuant to aW Alford
plea, 1 of voluntary manslaughter and child abuse, neglect, or
endangerment with substantial bodily harm. Eighth Judicial District
Court, Clark County; Valerie Adair, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Howard Brooks and Nancy Lemcke,
Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
',See North Carolina v. Alford, 400 U.S. 25 (1970).
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OPINION
By the Court, SILVER, J.:
Appellant Jonathan Quisano pleaded guilty, pursuant to
Alford, to voluntary manslaughter and child abuse, neglect, or
endangerment with substantial bodily harm. During the pendency of this
case, the Clark County District Attorney's office maintained a discovery
policy that provided for disclosure of all discovery to the defense. After
entry of Quisano's guilty plea, but before sentencing, the State obtained an
affidavit relevant to Quisano's case but did not disclose the affidavit to
Quisano. The State used the affidavit at Quisano's sentencing hearing to
impeach Christina Rodrigues—the victim's mother and Quisano's longtime
girlfriend—after she provided a favorable oral statement to the court on
Quisano's behalf, under the guise of a victim-impact statement. During
the sentencing hearing, the district court permitted the Las Vegas Review-
Journal to provide electronic coverage of the proceeding, although the
media outlet did not timely file a request for permission and the district
court did not enter a corresponding order or make the requisite
particularized findings on the record. In accordance with the guilty plea
agreement, the district court sentenced Quisano to serve a prison term of
4-10 years for voluntary manslaughter and a consecutive prison term of 6-
19 years for child abuse, neglect, or endangerment with substantial bodily
harm.
First, we consider whether the State failed to disclose the
affidavit in violation of Brady v. Maryland, 373 U.S. 83 (1963). We
conclude Quisano's Brady argument fails because the affidavit was not
favorable to him.
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Second, we evaluate whether the failure to disclose the
affidavit, notwithstanding the State's discovery policy, warrants reversal.
As a threshold matter, we conclude the State's discovery policy constituted
an open-file policy. In McKee v. State, 112 Nev. 642, 647-48, 917 P.2d 940,
943-44 (1996), the Nevada Supreme Court held that where a prosecutor
maintains an open-file policy, the prosecutor is under a duty to disclose all
evidence in the State's possession, regardless of whether the evidence is
inculpatory or exculpatory. We conclude that the duty set forth in McKee
extends through entry of the judgment of conviction and that the
prosecutor engaged in misconduct by failing to disclose the affidavit in
accordance with the State's open-file policy. Nevertheless, the misconduct
did not substantially affect the district court's sentencing determination or
prejudice Quisano and, therefore, does not warrant a new sentencing
hearing.
Third, we assess whether the district court erred by
permitting the Las Vegas Review-Journal to record Quisano's sentencing
hearing. Although we hold that the district court did not err by granting
the media outlet's untimely request, we conclude the district court did err
in not making particularized findings on the record regarding all of the
factors set forth in SCR 230(2) or issuing a written order granting the
media outlet's request. But those errors did not contribute to the district
court's sentencing determination. Accordingly, we conclude Quisano is not
entitled to relief on this basis.
Based on the foregoing, we affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
On June 6, 2013, Khayden Quisano, the three-year-old child of
appellant Jonathan Quisano and Christina Rodrigues (Quisano's longtime
girlfriend), died as a result of injuries associated with blunt-force trauma
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to the head. At the time Khayden sustained his injuries, he was under the
sole supervision of Quisano, who was charged with murder shortly after
Khayden succumbed to his injuries. Quisano maintains that Ithayden was
injured after falling off a couch and hitting his head on a tile floor.
However, Quisano provided conflicting accounts regarding the
circumstances surrounding Khayden's injuries, and the medical experts
who testified at Quisano's preliminary hearing disagreed with each other
as to whether Khayden's injuries were consistent with a fall from a couch.
Prior to the commencement of trial, Quisano and the State
entered into a guilty plea agreement under which Quisano agreed to plead
guilty, pursuant to Alford, to one count of voluntary manslaughter and one
count of child abuse, neglect, or endangerment with substantial bodily
harm. Under the guilty plea agreement, the State retained the right to
argue but agreed it would not argue for a minimum sentence exceeding
ten years. Quisano pleaded guilty in accordance with the agreement on
June 25, 2014.
At Quisano's sentencing, a reporter from the Las Vegas
Review-Journal was present in the courtroom with a camera. Because the
media outlet did not file a timely request for permission to provide
electronic coverage of the proceeding, Quisano's counsel moved to exclude
it from recording the hearing or photographing the participants. In
evaluating Quisano's motion, the district court reasoned that permitting
the outlet to provide electronic coverage of the proceeding would serve the
public interest by facilitating public oversight of the judicial process. The
district court noted it generally grants all requests to provide electronic
coverage and would have granted a request from the outlet had it filed
one. Observing that other media outlets filed requests to provide
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electronic coverage of Quisano's case, the district court asked Quisano how
he would be prejudiced if the Las Vegas Review-Journal, as opposed to the
other media outlets, electronically covered the sentencing hearing.
Counsel for Quisano responded, "Where isn't actual prejudice other than
the fact that they shouldn't benefit from not following the rules any more
than we should." Based on the foregoing, the district court orally denied
Quisano's request to exclude the reporter from recording the proceeding.
After the district court ruled on Quisano's objection, the State
argued, consistent with the guilty plea agreement, that the district court
should sentence Quisano to consecutive sentences with a minimum term
totaling ten years but did not make a specific argument with regard to the
maximum term. In support of its argument, the State asserted that
Quisano provided inconsistent accounts of how Khayden sustained his
injuries and that the injuries were inconsistent with a fall from a couch.
The State also informed the district court that Quisano had a documented
history of child abuse and neglect 2 and argued that Quisano was likely to
reoffend.
Quisano argued for probation or a short prison term. In
support of that argument, Quisano asserted that Rhayden's injuries were
consistent with a fall from a couch, and that even if he caused Khayden's
2While Quisano was living in Hawaii, one of his children, Jayden
Quisano, died of Sudden Infant Death Syndrome (SIDS). Subsequently,
Khayden was hospitalized with symptoms similar to SIDS. Tests at the
hospital revealed that Khayden suffered from a broken leg and broken
ribs—injuries deemed to be the result of nonaccidental trauma. Because
of those injuries, Child Welfare Services in Hawaii removed Khayden from
the family household. Nevertheless, Child Welfare Services ultimately
returned Khayden to Quisano and Rodrigues' care after completion of a
case plan.
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injuries, his acts were attributable to "a single momentary lapse or loss of
patience." After concluding his argument, Quisano requested that the
district court permit the victim's mother, Rodrigues, to address the court.
Rodrigues provided a victim-impact statement that consisted of a few
sentences. 3 Specifically, Rodrigues testified that "[Quisano] was a kind,
loving, caring, responsible father who showed love and affection to his
children every day" and that "[s]ending him to prison will harm more than
it will help."
In comparison, the State responded by extensively cross-
examining Rodrigues using information from an affidavit signed by an
employee of the Clark County Department of Family Services (DFS), and
dated September 4, 2014. 4 In the affidavit, the DFS employee averred as
follows:
[Oln June 9, 2014, I requested case closure
of the dependency case as to the parents because
the natural mother, Christina Rodrigues,
articulated protective capacity. Christina
Rodriguez [sic] had come to recognize that
[Khayden1 died as a result of physical abuse by the
natural father, Jonathan Quisano. Christina
Rodrigues further expressed that Jonathan
3 Typically, in a victim-impact statement, the victim addresses "the
crime, the person responsible, the impact of the crime on the victim and
the need for restitution." NRS 176.015(3)(b). Although Rodrigues was a
victim of the crime because her child was killed, her victim-impact
statement actually addressed mitigating Quisano's sentence. Her entire
victim-impact statement consisted of less than one page of the sentencing
transcript.
4 Quisano pleaded guilty on June 25, 2014, and was sentenced on
October 7, 2014. Thus, the State obtained the affidavit after Quisano
pleaded guilty but before sentencing.
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Quisano should be punished for his abuse of
[Khayden] and that she believed Jonathan
Quisano should go to prison. 5
The State began by inquiring, over objections from Quisano,
whether Rodrigues believed Quisano should go to prison, and then later,
whether she believed that Quisano "committed abuse against [her] son
that died, Khayden." In response to Quisano's objection, the State
indicated that it was seeking victim-impact testimony, and the court
agreed, allowing the questioning Rodrigues answered that she did not
believe Quisano abused Khayden and that she hoped that he would
receive probation.
There were several more objections from Quisano prompting
the court to attempt to limit the inquiries by the prosecutor, but the court
relented when the State asked for "just a little leeway." The State then
asked whether Rodrigues remembered speaking with a judge in family
court and whether she stated that Quisano "committed abuse against [her]
son Khayden" and that "[Quisano] should be punished for his crime" with
imprisonment. Rodrigues responded, "[t]hat didn't come out of my
mouth." Finally, the State alleged, "you went to court one time and asked
for one thing, and you're coming to court now and asking for the complete
opposite." Quisano objected to the statement, and the district court
5Quisano and Rodrigues had three children: Jayden, Khayden, and
K.Q. As previously noted, Jayden died in Hawaii of SIDS. After the
events that gave rise to Quisano's conviction—specifically, Khayden's
death—K.Q. was placed in protective custody by DFS. Rodrigues
subsequently sought to regain custody of K.Q. The DFS employee
assigned to K.Q.'s dependency case prepared the subject affidavit following
an adjudicatory hearing on that matter.
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sustained the objection, noting that the affidavit discussed testimony
before another forum.
After the State concluded its questioning of Rodrigues,
Quisano informed the district court that the State did not disclose the
affidavit during discovery. The State responded that "[it's not part of
discovery. This is a victim-impact statement." And Quisano replied:
"Judge, it's a document that's in the possession of the prosecution, and all
the way up to including sentencing is to be provided to the defense in
discovery. That's anything in aggravation or mitigation." 6 The district
court did not specifically address Quisano's final objection. But, given his
objections, Quisano requested that the district court designate the
affidavit as a court exhibit for the record, which the district court did. 7
Before imposing sentence, the district court expressed
concerns regarding the conflicting medical evidence in the case, but it
stated that Quisano's prior substantiated record of child abuse in Hawaii
was "the tipping point for the Court." The district court sentenced
6Thus, as addressed below in our discussion of the State's discovery
policy, Quisano raised a general objection, identifying a potential discovery
violation and questioning the temporal scope of the State's duty to disclose
discovery, but he did not use the precise words "it's a violation of the
State's discovery policy."
7 The colloquy then continued, but the State did not argue in
response that its discovery policy did not require disclosure. Rather, the
prosecutor informed the district court that Quisano did not provide notice
that Rodrigues would give a victim-impact statement prior to the
sentencing hearing. The burden, however, is on the State to notify the
victim about the sentencing date, and the court must allow the victim to
testify. NRS 176.015(3)-(4). Moreover, notice of the victim's intent to
testify is not an element within the statute. Id.
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Quisano to serve a prison term of 4-10 years for voluntary manslaughter
and a consecutive prison term of 6-19 years for child abuse, neglect, or
endangerment with substantial bodily harm. Quisano now appeals
ANALYSIS
Quisano contends that this court should vacate his sentence
and remand for a new sentencing hearing because (1) the State withheld
the affidavit in violation of Brady; (2) the State professed to have an open-
file policy, and, therefore, was subject to a duty to disclose the affidavit; 8
8 The parties' initial briefs addressed the applicability of Brady;
however, neither party raised the issue of whether the State's discovery
policy constituted an open-file policy that created an ongoing duty to
disclose all evidence in the State's possession to Quisano. After
thoroughly reviewing the parties' briefs and the appendix, we concluded
that supplemental briefing was warranted. Accordingly, we exercised our
discretion to request supplemental briefing and issued an order directing
the parties to address whether the State has a continuing duty to provide
the defendant with discovery through sentencing under McKee v. State,
112 Nev. 642, 648, 917 P.2d 940, 944 (1996). See Sharma v. State, 118
Nev. 648, 651, 655-58, 56 P.3d 868, 870, 872-74 (2002) (explaining that the
supreme court ordered supplemental briefing after raising issues at oral
argument, and reaching issues addressed in the supplemental briefs). In
response, we received briefs from both Quisano and the State addressing
the question presented.
In addition to our discretion to request supplemental briefing, this
court also has discretion to consider issues raised for the first time on
appeal that involve recurring questions of law. See, e.g., Salazar ex rel.
Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir. 2010) ("[C]ourts
of appeals have discretion to address issues raised for the first time on
appeal, but exercise such discretion only in exceptional circumstances, as,
for example, in cases involving uncertainty in the law; novel, important,
and recurring questions of federal law; intervening change in the law; and
extraordinary situations with the potential for miscarriages of justice."
(internal quotation marks omitted)). Issues similar to that addressed
today have arisen in several cases before this court and, therefore, are
continued on next page...
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and (3) the district court erred by allowing the Las Vegas Review-Journal
to provide electronic coverage of Quisano's sentencing hearing where the
outlet did not file a timely request for permission and the district court did
not issue an order or make particularized findings on the record. 9
Brady v. Maryland
Quisano contends that a new sentencing hearing is warranted
because the State withheld impeachment evidence in violation of Brady
and its progeny by failing to disclose the affidavit. Despite the State
having listed Rodrigues as a witness in its case-in-chief, the State counters
...continued
likely to recur. Moreover, discovery and related sentencing issues occur
repeatedly, so it is appropriate for the court to clarify this area of the law.
Accordingly, the present case is "fully at issue and ready for decision."
Sharma, 118 Nev. at 651, 56 P.3d at 870.
9 Quisano also contends that the district court erred by allowing the
State to cross-examine Rodrigues about matters exceeding the permissible
scope of NRS 176.015(3)—specifically, prior bad acts and family court
proceedings. We disagree. During its cross-examination of Rodrigues, the
State inquired about the acts underlying this case and an appropriate
sentence for Quisano. Both topics are permissible in a victim-impact
statement. See NRS 176.015(3) (providing that a victim may "41 easonably
express any views concerning the crime"); see also Randell v. State, 109
Nev. 5, 8, 846 P.2d 278, 280 (1993) (concluding a victim may express an
opinion regarding an appropriate sentence for the defendant in a
noncapital case). Neither the State nor Rodrigues referenced prior bad
acts during Rodrigues' victim-impact statement. And, to the extent that
the State inquired about family court proceedings, it only did so to lay a
foundation to impeach Rodrigues using the affidavit.
Quisano further asserts that the affidavit, the victim-impact
statement, and the State's violation of SCR 230 all constitute "impalpable
or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
1161 (1976). We have reviewed these arguments, and we conclude they
are without merit.
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that the affidavit does not fall within the scope of Brady and its progeny
because it was neither favorable to Quisano nor useful to impeach a
government witness, including Rodrigues, at trial.
"Determining whether the state adequately disclosed
information under Brady . . . requires consideration of both factual
circumstances and legal issues; thus, this court reviews de novo the
district court's decision." Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25,
36 (2000). The State violates a defendant's right to due process where it
suppresses or fails to disclose evidence that is favorable to the accused and
material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S.
83, 87 (1963); Mazzan, 116 Nev. at 66, 993 P.2d at 36. To establish a
Brady violation, a defendant must prove the following three elements: (1)
the State withheld or failed to disclose evidence, (2) that evidence was
favorable to the defense, and (3) prejudice ensued. Mazzan, 116 Nev. at
67, 993 P.2d at 37. Favorable evidence is not limited to exculpatory
evidence, but rather includes evidence that "provides grounds for the
defense to attack the reliability, thoroughness, and good faith of the police
investigation, to impeach the credibility of the state's witnesses, or to
bolster the defense case against prosecutorial attacks." Id.
Quisano's argument that the State violated Brady by failing to
disclose the affidavit lacks merit because the affidavit was not favorable to
Quisano. In the affidavit, a DFS employee alleges that Rodrigues
acknowledged Quisano's responsibility for the death of their son and
stated that Quisano should be imprisoned for his conduct. Even if the
State had disclosed the affidavit, it would not have provided Quisano with
a basis to attack the police investigation, impeach the State's witnesses, or
bolster his case against prosecutorial attacks. See id. Moreover, the
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affidavit was not exculpatory, as Quisano could not use it to explain away
the charges. See King v. State, 116 Nev. 349, 359, 998 P.2d 1172, 1178
(2000) (defining exculpatory evidence "as evidence that will explain away
the charge"). Because the affidavit was not favorable to Quisano, his
argument fails, and we need not consider the remaining Mazzan factor. 10
Open-file policy
Quisano argues that because the State professed to have an
open-file policy, it was subject to a duty to disclose all evidence—whether
inculpatory or exculpatory—in its possession. Quisano maintains that the
State's failure to comply with that duty unfairly surprised and prejudiced
him, and he contends that he is entitled to a new sentencing hearing.
As a threshold matter, we consider whether, under the facts of
the present case, the State maintained an open-file policy. The record
includes several file-stamped "Receipt of Copy" forms, indicating that the
State furnished Quisano with various discovery materials. Each Receipt
of Copy includes a summary of the State's discovery policy in bold
typeface. That policy provides as follows:
The State formally invites the defense to review
the State's case file in the instant matter. This
invitation is ongoing and is intended to make all
discovery in the State's possession available and
accessible to the defense. In addition, the State, at
the request of the defense, will facilitate a review
of the case file information housed at the Las
Vegas Metropolitan Police Department
(LVMPD) . In addition, the State, at the
10 TheState also argues that it was not required to disclose the
affidavit under United States v. Ruiz, 536 U.S. 622 (2002). Given our
conclusion regarding Quisano's Brady argument, we need not reach that
issue.
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request of defense counsel, will also facilitate
access to all evidence at the evidence vault which
has been impounded ....
It is the desire of the State to provide the defense
with full access to all discovery in the possession of
the State. That access is available now.
The State acknowledges that its discovery
obligations are continuing and the State will make
all subsequent discovery received, if any, available
to the defense in compliance with the
requirements of NRS 174.235, as well as Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972).
The State also takes this opportunity to formally
request reciprocal discovery from the defense and
for the defense to provide timely access to any
discovery that it intends to use at trial.
The record reveals that the State never argued or even suggested to the
district court that the affidavit was not required to be disclosed under its
discovery policy.
On appeal, the State selectively quotes the third paragraph of
the policy and argues that it only committed to disclose evidence under
NRS 174.235, Brady, and Giglio. We note that if the policy allowed the
State to unilaterally assess whether materials are discoverable before
disclosing those materials to Quisano, the policy would serve no purpose
other than to signal the State's intent to comply with the law. However,
limiting the policy in that manner completely ignores the first and second
paragraphs of the policy, which set forth the State's intent to provide
access to "all discovery" in its possession to Quisano. Moreover, the
materials in the LVMPD case file and the evidence vault are not limited to
materials that are discoverable under NRS 174.235, Brady, and Giglio.
And, prior to the entry of Quisano's guilty plea, the State both frequently
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referenced the policy and invited Quisano to review the State's case file,
LVMPD's case file, and the evidence vault. These facts lead to the
inescapable conclusion that the State's discovery policy constituted an
open-file policy."
Having held that the State's discovery policy constitutes an
open-file policy, we next consider whether the prosecutor violated the
policy by failing to disclose the affidavit.
In McKee, the Nevada Supreme Court addressed whether a
prosecutor's open-file policy gives rise to a duty to disclose all inculpatory
and exculpatory evidence. 112 Nev. at 647-48, 917 P.2d at 943-44. There,
the prosecutor professed to have an open-file policy but withheld an
inculpatory photograph from the defense. Id. at 647, 917 P.2d at 943. At
trial, the prosecutor revealed the photograph, using it to impeach the
defendant after he testified. Id.
"Our dissenting colleague asserts that the State's discovery policy is
one of an administrative agency within the executive branch and that this
court lacks the constitutional authority to interpret such a policy. But the
record contradicts our dissenting colleague's assertion. As previously
noted, the record contains several Receipt of Copy forms. Those forms,
which required a signature from both the prosecutor and Quisano's
counsel, contemplated a contractual agreement, and the State acted in
accordance with that agreement to the extent it routinely disclosed
discovery to Quisano. We are not concerned, therefore, with a general
"office policy" at the Clark County District Attorney's office, and our
analysis does not raise a "constitutional question," as our dissenting
colleague suggests. Instead, we are giving effect to a contractual
agreement on discovery between Quisano and the prosecutor. And, in
interpreting the content and meaning of the open-file policy set forth in
that agreement, we apply the ordinary contract principles that appellate
courts routinely employ in the criminal context when interpreting plea
agreements. See State v. Crockett, 110 Nev. 838, 842, 877 P.2d 1077, 1079
(1994) (explaining that plea agreements are subject to contract principles).
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In considering whether the prosecutor engaged in misconduct
by failing to disclose the photograph, the Nevada Supreme Court
acknowledged that "[p]rosecutors are put in the precarious position of
having to pursue criminal convictions zealously, while at the same time,
insure that defendants receive a fair and impartial trial." Id. However,
the court in McKee heavily emphasized the importance of securing a just
conviction:
Even more egregious, however, are attempts by
representatives of the government to resort to
these reprehensible means to shortcut their
responsibility to ferret out all admissible evidence
and use only that to meet their burden of proof
We fear resort to such conduct indicates either an
absence of sufficient evidence to convict or reflects
shoddy government efforts that have failed to
unearth admissible evidence.. . . He has no
obligation to win at all costs and serves no higher
purpose by so attempting. Indeed, "[fit is as much
a duty to refrain from improper methods
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one." [Berger v. United States, 295 U.S. 78, 88,
(1934).]
Id. at 647, 917 P.2d at 943-44 (citation omitted). And, looking to
principles of contract law, the court cited several cases involving the
State's failure to comply with the terms of a plea agreement, McKee, 112
Nev. at 648, 917 P.2d at 944, including Cita v. State, where the court held
that "[w]hen the State enters a plea agreement, it is held to the most
meticulous standards of both promise and performance. . . . The violation
of the terms or the spirit of the plea bargain requires reversal." 107 Nev.
89, 91, 807 P.2d 724, 726 (1991) (internal quotation marks omitted).
Based on these principles, the supreme court concluded "that a
prosecutor, as the agent of the State, is held to a high ethical standard and
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must abide by the promises he makes." McKee, 112 Nev. at 648, 917 P.2d
at 944. Thus, the supreme court reasoned that the open-file policy created
an expectation that the prosecutor would disclose all available evidence—
whether inculpatory or exculpatory—and the defendant reasonably relied
on that policy. Id. The court concluded the prosecutor's "act of deception
was clearly unfair, and extremely prejudicial to [the defendant]," and
therefore, the court determined that the prosecutor engaged in
misconduct. Id.; cf. Furbay v. State, 116 Nev. 481, 487-88, 998 P.2d 553,
557 (2000) (concluding that the State did not violate the defendant's rights
by failing to disclose inculpatory evidence where the district attorney's
office did not maintain an open-file policy).
In this case, the State contends that the duty set forth by the
Nevada Supreme Court in McKee does not extend through sentencing.
While McKee holds that an open-file policy subjects the State to a duty to
disclose all inculpatory and exculpatory evidence in its possession to the
defendant, the case does not provide guidance regarding the duration of
that duty. However, the Nevada Supreme Court's decision in Floyd v.
State, 118 Nev. 156, 42 P.3d 249 (2002), abrogated on other grounds by
Grey v. State, 124 Nev. 110, 178 P.3d 154 (2008), is informative on the
issue. Floyd concerned the application of two discovery statutes to the
penalty phase of a capital murder trial—specifically, NRS 174.234 and
NRS 174.245. Id. at 167, 42 P.3d at 257. Taken together, these statutes
provide that where a party intends to call a witness or offer certain
materials during its case in chief, it must disclose to the opposing party,
before trial, information relating to the witness and permit an opportunity
to inspect and copy the materials. Id. The case presented the question of
whether the phrase "case in chief," as used in NRS 174.234 and NRS
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174.245, encompasses the penalty phase of a capital murder trial. Id. at
168, 42 P.3d at 257. In considering the issue, the Nevada Supreme Court
characterized as "unfounded" the assumption that the term "case in chief'
does not include both the guilt phase and penalty phase of a capital
murder trial. Id. The Floyd court concluded that "the term 'case in
chief[,]' [as used in those statutes,] encompasses the initial presentation of
evidence by either party in the penalty phase of a capital trial." Id. at 169,
42 P.3d at 258.
This reasoning in Floyd is illuminating on the present issue,
as it strongly implies that a duty to disclose evidence does not dissipate at
the end of the guilt phase of a trial, but remains in force until the
proceedings fully conclude in the trial court. And, capital cases do not
present the only situation in which the State provides discovery to
defendants specifically for use at sentencing. In cases involving enhanced
penalties, such as DUI, domestic violence, and habituality, the State
routinely gives defendants discovery that may be applicable only to
sentencing. See NRS 484C.400(2); NRS 200.485(4); NRS 207.016(2) This
type of discovery is generally inculpatory in nature, yet the State discloses
these materials for their admission or for argument at sentencing as
opposed to their utilization during trial.
This disclosure of discovery, which pertains exclusively to
sentencing, reflects an underlying recognition that defendants must have
an opportunity to review materials in order to prepare a defense for
sentencing proceedings, and it enhances judicial efficiency by averting
delays caused by the offer of surprise evidence. See NRS 169.035
(explaining that the criminal procedure statutes are "intended to provide
for the just determination of every criminal proceeding" and providing
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that such statutes shall be "construed to secure simplicity in procedure,
fairness in administration and the elimination of unjustifiable expense
and delay"). As discovery materials are not limited to those materials
intended for use at trial, it follows that for purposes of the duty to disclose
under McKee, there is no basis to distinguish between trial and sentencing
proceedings in a noncapital case.
The Nevada Supreme Court's reasoning in McKee rests on the
principle that if the State professes to disclose all evidence in its
possession, the defendant may reasonably rely on that promise. 112 Nev.
at 648, 917 P.2d at 944. Because at sentencing the State may argue facts
contained within discovery that ultimately could have a significant impact
on a defendant's sentence, it follows that a defendant's reliance on an
open-file policy following entry of a guilty or no contest plea or after a jury
verdict continues until sentencing concludes. See Miller v. Hayes, 95 Nev.
927, 929, 604 P.2d 117, 118 (1979) (holding the district court's jurisdiction
over the defendant continues until the judgment becomes final).
Moreover, in the context of penalty or sentencing proceedings,
it is reasonable for a defendant to rely on an open-file policy where the
policy does not state that discovery "concludes upon the defendant
entering his guilty plea," but rather explicitly provides that "[Mils
invitation is ongoing," and where, as here, the record reflects that the
State regularly filed Receipt of Copy forms with the district court. 12 These
actions demonstrate that the State acted in accordance with its open-file
12 0ur
dissenting colleague's ultimate conclusion rests in part on the
assertion that the prosecutor believed that the open-file policy only
extended through trial and not through sentencing, but the record is
completely devoid of any factual finding in support of that assumption.
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policy on an ongoing basis throughout the proceedings. Therefore, a
defendant would reasonably expeet such discovery disclosures to continue
until the judgment becomes final. Thus, for the reasons stated, we hold
that the duty set forth in McKee extends through entry of the judgment of
conviction. 13
In the present case, the State maintained an open-file policy
and was subject to an ongoing duty to disclose all evidence in its
possession to Quisano. In light of the State's open-file policy, repeated
references to that policy, and regular discovery disclosures, Quisano could
reasonably rely on the State's promise under the open-file policy to provide
discovery as it became available, just like the defendant in McKee who
reasonably relied on the State's open-file policy. 14 Yet, similar to the
prosecutor in McKee who failed to disclose a photograph before introducing
mOur decision today does not address law enforcement materials
that the State is restricted from disclosing under federal or state law—for
example, National Crime Information Center (NCIC) records. See, e.g., 28
U.S.C. § 534(b) (2011). Neither does our decision address materials that
fall within an evidentiary privilege.
14 Based on the record in the present case, the extent to which
Quisano relied on the State's open-file policy is unclear. But a defendant's
reliance on an open-file policy is not a prerequisite to the duty to disclose
as set forth in McKee. Instead, the reality that a defendant may rely on an
open-file policy is the rationale underlying the supreme court's conclusion
"that a prosecutor, as the agent of the State, is held to a high ethical
standard and must abide by the promises he makes." McKee, 112 Nev. at
648, 917 P.2d at 944; see also Furbay, 116 Nev. at 487, 998 P.2d at 557
(2000) (concluding that "[w]hen the prosecution purports to give all
inculpatory evidence in its control, it may not withhold evidence for later
use"). Because the duty to disclose arises when the State professes to have
an open-file policy, we need not reach the issue of whether Quisano
actually relied on the State's open-file policy.
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it at trial, here also, the prosecutor failed to disclose the affidavit to
Quisano prior to using it at Quisano's sentencing hearing. Because the
prosecutor withheld the affidavit from Quisano in violation of the open-file
policy, the prosecutor engaged in misconduct. See McKee, 112 Nev. at 648,
917 P.2d at 944 (concluding that the prosecutor engaged in misconduct by
failing to comply with an open-file policy).
In characterizing the prosecutor's violation of the open-file
policy as misconduct, we are constrained by the prosecutorial misconduct
standard applied in McKee and by the district court's comments regarding
the prosecutor anticipating Rodrigues appearing at sentencing on behalf of
Quisano. 15 But we are also mindful of the realities confronting today's
prosecutors—including high case volumes and differing case management
systems—and recognize that a prosecutor's failure to provide discovery
may be a mere unintentional oversight as opposed to a willful or
intentional act involving misconduct. Thus, we encourage district courts,
when imposing sanctions for a violation of an open-file policy, to make
factual findings on the record with regard to whether such a violation was
inadvertent, willful, or intentional. Without a factual finding that a
violation of an open-file policy was willful or intentional, this court is
reluctant to classify an unintentional violation as misconduct on the part
of the prosecutor.
Unlike in McKee, where the prosecutor prejudiced the
defendant by impeaching him with the undisclosed photograph, here,
ThSpecifically, in reference to the prosecutor's copy of the affidavit,
the district court observed that "he probably has it all nice and highlighted
in his file because he may have anticipated that [Rodrigues] would just
show up."
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Quisano did not suffer prejudice when the prosecutor impeached
Rodrigues with the undisclosed affidavit. 16 First, the district court
sustained Quisano's objection after the State asserted, "you went to court
one time and asked for one thing, and you're coming to court now and
asking for the complete opposite." Second, at sentencing, the State did not
rely on its impeachment of Rodrigues, but rather argued that Quisano had
a prior record of child abuse against Khayden, and in the present case,
Khayden suffered injuries consistent with child abuse. Third, the district
court did not place value on the affidavit, which was merely marked as a
court exhibit, but rather, expressly stated that it found Quisano's history
of child abuse in Hawaii particularly influential in its sentencing
determination. Fourth, and most important, the district court sentenced
Quisano in accordance with the guilty plea agreement. The failure to
disclose the affidavit, although a violation of the State's open-file policy,
did not ultimately prejudice Quisano or result in a miscarriage of justice.
Valdez, 124 Nev. at 1190, 196 P.3d at 477 (holding that reversal is not
warranted under the plain-error standard unless the error affects the
l6Although Quisano raised a general objection that the State
violated discovery rules, he did not use the precise words "the State
violated its open-file policy," and the district court did not rule on that
issue. As such, we review for plain error because Quisano may not have
sufficiently raised an objection based on the violation of the open-file
policy. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)
(holding that unpreserved claims of prosecutorial misconduct are subject
to plain-error review). Even if error is plain from a review of the record,
we will not reverse Quisano's sentence under that standard unless
Quisano "demonstrates that the error affected his .. . substantial rights,
by causing 'actual prejudice or a miscarriage of justice?" See id. (quoting
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).
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defendant's substantial rights). Therefore, reversal of Quisano's sentence
is not warranted on this basis. 17
17 Even if this court assumed that Quisano's objection at sentencing
was sufficient to preserve the open-file policy issue for review under the
harmless-error standard, Quisano's claim would nevertheless fail, as the
State's failure to disclose the affidavit neither prejudiced Quisano nor
affected the district court's sentencing determination. See Valdez, 124
Nev. at 1188-89, 196 P.3d at 476 (setting forth the harmless-error
standard for nonconstitutional error); see also McKee, 112 Nev. at 648, 917
P.2d at 944 (reviewing a prosecutor's failure to comply with an open-file
policy for nonconstitutional harmless error where the appellant properly
preserved the issue for appellate review).
Quisano further contends that the State was required to disclose the
affidavit under NRS 174.235 and the district court's order compelling
discovery, and therefore, he asserts that the district court abused its
discretion by permitting the State to cross-examine Rodrigues using the
affidavit. Even if we assume that NRS 174.235 or the discovery order
required the State to disclose the affidavit, Quisano would not be entitled
to relief because the facts in the present case do not establish that the
State's failure to disclose the affidavit prejudiced Quisano and because
Quisano does not otherwise argue that the State acted in bad faith. See
Evans v. State, 117 Nev. 609, 638, 28 P.3d 498, 518 (2001) ("The district
court has broad discretion in fashioning a remedy" for discovery violations,
and reversal is not appropriate "absent a showing that the State acted in
bad faith or that the nondisclosure caused substantial prejudice to the
defendant which was not alleviated by the court's order.").
We also note that the record does not support the State's assertion
that it did not intend to use Rodrigues as a witness. Based on the DFS
employee's efforts to memorialize Rodrigues' statements at the family
court proceeding, shortly before Quisano's plea, it appears that the State
intended to impeach Rodrigues at Quisano's trial. Moreover, as the DFS
employee summarized Rodrigues' testimony in an affidavit following entry
of Quisano's plea, but before sentencing, it appears that the State
anticipated that Rodrigues would provide an oral statement on behalf of
Quisano at sentencing. Tellingly, at Quisano's sentencing, the district
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