Higgs v. State

Saitta, J.,

concurring in part and dissenting in part:

I concur in the majority’s rejection of the invitation to adopt the standard of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), but I would reverse the judgment of conviction, because I conclude that the denial of Higgs’ motion to continue the trial resulted in a violation of his due process rights.

Higgs’ motion to continue the trial was based upon the fact that his expert, Chip Walls, did not have adequate time to evaluate the conclusion of the FBI toxicology report. The conclusion of the report, that succinylcholine was found in Augustine’s urine, formed the basis of the State’s theory of the case.

This court reviews a district court’s decision with regard to a motion to continue for an abuse of discretion. Rose v. State, 123 Nev. 194, 206, 163 P.3d 408, 416 (2007). While each case turns on its own circumstances, this court has long recognized the cornerstone principle of due process, that “[ajccuseds have the right to be informed of the nature and cause of the accusation against them and must be afforded a reasonable opportunity to obtain witnesses in their favor.” Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978) (citing Cole v. Arkansas, 333 U.S. 196 (1948)).

The majority concludes that Higgs failed to demonstrate that he was prejudiced by the denial. I disagree. I conclude that Higgs was prejudiced because his expert, Walls, one of the country’s few experts on succinylcholine, did not testify at trial. While it is true that the defense had the toxicology report in its possession for 24 *27weeks, Walls did not believe the State had sent a complete report. Walls stated that the packet was incomplete and did not include backup data or documentation. The full report was the crux of the State’s case against Higgs. Therefore, pursuant to Zessman, Higgs had the right to be informed of the nature of the accusation against him, including the complete FBI toxicology report. The lack of information not only affected Higgs’ ability to obtain witnesses in his favor, it affected his ability to cross-examine the State’s expert witness, Madeline Montgomery.

This court has observed that a defendant’s right to discovery is tangentially related to the right of confrontation. See Stamps v. State, 107 Nev. 372, 376, 812 P.2d 351, 354 (1991). Here, I conclude that in order for Higgs’ counsel to have prepared an effective cross-examination of Montgomery regarding the succinylcholine found in Augustine’s urine, Higgs should have been afforded more time. The continuance would have allowed Walls time to evaluate Montgomery’s technique and conclusions, and to draw his own inferences. While Walls had the packet from the FBI toxicology lab for months before the trial, I note that it was not until the district court issued an order directing the State to provide Higgs with the FBI toxicology report that the State sent the report to the defense. Moreover, Walls stated that the packet the FBI sent was incomplete and that significant data was missing. Walls felt the FBI packet was missing important information about the verification process, such as backup data. This was vital information for Walls because during the testing of Augustine’s urine for succinylcholine, one of the FBI’s testing machines had malfunctioned. Given the volatile nature of succinylcholine and the fact that there were questions regarding the preservation of the urine and tissue samples, I find that due process required that Higgs be given more time to prepare what was arguably the most important piece of evidence. I am not persuaded by the majority’s argument that Higgs could have effectively presented his arguments regarding the FBI toxicology report by merely cross-examining Montgomery. An effective cross-examination itself requires time and preparation.

For the reasons set forth above, I dissent and would reverse the judgment based on the fact that the district court abused its discretion when it denied Higgs’ motion to continue.