138 Nev.., Advance Opinion I I
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL PHILLIP ANSELMO, No. 81382
Appellant,
vs.
THE STATE OF NEVADA,
FLÍ
Respondent.
EF DEPUTY CLERK
Appeal from a district court order dismissing a postconviction
petition for genetic marker analysis. Second Judicial District Court,
Washoe County; Lynne K. Simons, Judge.
Reversed and remanded with instructions.
Holland & Hart LLP and Sydney R. Gambee, J. Robert Smith, and Jessica
E. Whelan, Las Vegas; Rocky Mountain Innocence Center and Jennifer
Springer, Salt Lake City, Utah,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Marilee Cate, Appellate Deputy District Attorney,
Washoe County,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
OPINION
By the Court, CADISH, J.:
This appeal presents issues concerning Nevada's statutory
scheme governing postconviction petitions for genetic marker analysis. A
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jury convicted appellant of first-degree murder in 1972. In 2018, he filed a
postconviction petition for genetic marker analysis, seeking to examine the
DNA found on various pieces of evidence under a procedure that was not
available at the time of his trial. The district court concluded that appellant
failed to show a reasonable possibility that the State would not have tried
him, or the jury would not have convicted him, had he obtained exculpatory
evidence through the testing because the jury heard similar exculpatory
evidence but nevertheless convicted him.
Under NRS 176.09183(1), the district court must assume that
the requested genetic marker analysis will produce exculpatory DNA
evidence and order such analysis if a reasonable possibility exists that the
petitioner would not have faced prosecution or conviction had the
exculpatory results been obtained before trial. Applying that statute to the
facts here, we conclude that the district court acted outside the bounds of
its discretion in denying appellant's petition, as the State tried appellant on
a felony-murder theory based on rape and DNA evidence that would have
excluded appellant as the perpetrator necessarily creates a reasonable
possibility that he would not have faced prosecution or conviction for felony-
murder.
Additionally, the existence or nonexistence of evidence relevant
to the claims in the petition for genetic marker analysis necessarily impacts
the district court's resolution of the petition. Thus, to the extent the
custodian's inventory of evidence merely described the packaging holding
the evidence in the State's possession, rather than the items of evidence
contained therein, we agree with appellant that the inventory lacked
sufficient detail for the district court to determine whether the evidence on
which appellant sought testing existed. Consequently, appellant's motion
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for relief as to the inventory should have been granted. Accordingly, we
reverse the district court's order and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The female victim disappeared from a hotel employee parking
lot near the Cal-Neva Lodge at Lake Tahoe on July 15, 1971. Two days
later, appellant Michael Anselmo found the victim's body and reported it to
the police. The responding officers noted that the victim was nude. Several
days later, Anselmo told the police where they could find the victim's jacket
and keys, which the police recovered.
After conducting an autopsy, the coroner concluded that the
victim died from strangulation. He further concluded that the perpetrator
manually strangled the victim with his right hand. The perpetrator also
stabbed the victim 15 times, which the coroner concluded was a contributing
cause of death. The autopsy revealed evidence of sexual assault, and the
coroner recovered semen from the victim. The semen did not contain any
sperm, which indicated that either the male supplier was sterile or had a
vasectomy, or the sperm degenerated before the victim's body was found.
Several officers interviewed Anselmo at different times.
Throughout those interrogations, Anselmo asserted that another
individual, John Soares, killed the victim. During an interview on July 18,
Anselmo went into a comatose state and law enforcement transported him
to the hospital. After the hospital discharged Anselmo, Detective Gordon
Jenkins interrogated him. While AnseImo initially reaffirmed that Soares
committed the murder, he eventually confessed to the crime. The State
charged Anselmo with first-degree murder.
At trial, the State argued that Anselmo committed first-degree
murder under the felony-murder rule. Specifically, the State introduced
evidence that the victim had sexual intercourse between 12 and 24 hours
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