Quevedo v. State

Shearing, J.,

dissenting:

I would affirm Carlos Quevedo’s conviction of seven counts of sexual assault. I disagree with the majority’s position that the district court’s failure to hold a “trustworthiness” hearing pursuant to NRS 51.385 before admitting the victim’s hearsay statements requires reversal of the conviction.

First, I do not agree with this court’s interpretation of NRS 51.385 expressed in Lytle v. State, 107 Nev. 589, 816 P.2d 1082 (1991), making a hearing mandatory even if counsel does not object to the evidence. NRS 51.385, like virtually every other rule in the evidence code, should be subject to waiver when there is no objection. I agree with the dissenting opinion in Lytle. 107 Nev. at 591-95, 816 P.2d at 1084-86. A proper objection is a prerequisite to this court’s consideration of an issue on appeal. Lord v. State, 107 Nev. 28, 38, 806 P.2d 548, 554 (1991).

Second, even if it was error to admit the victim’s hearsay statements without a hearing, it was harmless error. This case is very similar to Brust v. State, 108 Nev. 872, 839 P.2d 1300 (1992), in which this court held that the admission of the child victim’s statements to a clinical psychologist without a “trustworthiness” hearing was harmless error. The child had testified and been subject to cross-examination at the trial, and the state*41ments were merely repetitive. In the instant case, both the victim’s teacher and a sheriff’s investigator testified to statements the child made to them consistent with her trial testimony. It is a waste of court resources to require a separate “trustworthiness” hearing when the court has already heard the child’s testimony on direct and cross-examination; the district court is thereby in a superior position to determine “trustworthiness” without a separate hearing.

I also join in the dissent of Justice Steffen.