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IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL PHILLIP ANSELMO, No. 81382
Appellant,
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THE STATE OF NEVADA,
Respondent.
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
KE. 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
12-0762
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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 Anselmo 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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before her death and that, due to the timeline of her activities, the only time
the intercourse could have occurred was shortly before the victim’s death.
The State emphasized that the victim was found nude and that “the facts
scream out to tell [the jury]” that the victim “was murdered in the
perpetration of rape.” In support, the State introduced evidence that the
victim had an inflamed cervix and the coroner recovered semen from the
victim’s vaginal cavity. The forensic pathologist testified that there was no
sperm found in the semen, which could be due to either the degenerative
nature of sperm or the sterility of the semen’s supplier.
Alternatively, the State argued that Anselmo committed first-
degree murder under a willful, deliberate, and premeditated theory. In
support, the State introduced evidence that the perpetrator stabbed the
victim in the neck and chest 15 times. It argued that the perpetrator forced
the victim from the parking lot to the clearing where the police recovered
her body, which showed the perpetrator had time to form premeditation.
The State also introduced evidence that Anselmo had been lurking in the
employee parking lot during the early morning hours the day before the
victim went missing. It introduced evidence of a struggle occurring in the
car that the victim was using that night. Finally, the State relied on the
fact that Anselmo (1) knew the body’s location; (2) knew the location of the
victim’s jacket and keys, which the perpetrator had tossed into Lake Tahoe;
and (3) confessed to committing the crime.
Anselmo’s primary defense theory was that John Soares
murdered the victim. Anselmo testified that he saw Soares in Reno the day
before the victim went missing. On the night the victim went missing,
Anselmo stated that he played pool and other games at the Cal-Neva
Lodge’s lounge until 1 a.m. When he left the club, Anselmo testified that he
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heard a scream and went to investigate it. He alleged that Soares emerged
from the bushes near the Lodge, took Anselmo into the brush, and showed
Anselmo the victim’s body. Anselmo claimed Soares threatened him to keep
quiet and directed Anselmo to throw the victim’s coat into Lake Tahoe,
which Anselmo conceded he did.
In support of this theory, Anselmo pointed to evidence that
police in the Lake Tahoe area had received a report that Soares was in the
area. In closing argument, Anselmo reminded the jury that he had
consistently told police that Soares killed the victim. He argued his
confession was both involuntary and inconsistent with the facts of the
killing. Specifically, he pointed out that he confessed to choking the victim
with her nylon shirt while the pathologist concluded that the perpetrator
likely choked the victim with his right hand. He identified other
inconsistencies, like the fact that he confessed to stabbing the victim 3 to 4
times, whereas the autopsy identified approximately 15 stab wounds, and
the fact that his description of the knife did not match the actual stab
wounds. Further, he argued that the fact that he could show police where
he disposed of the victim’s jacket and keys, but not the knife, supported his
innocence because he claimed Soares told him to dispose of the jacket and
keys, not the knife. Finally, he argued that he could not have been the
source of the semen recovered because he was not sterile. The jury found
Anselmo guilty of first-degree murder and sentenced him to life without the .
possibility of parole. The jury’s verdict was a general verdict that did not
indicate which theory of first-degree murder the jury relied on to convict
Anselmo.
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Cadish
We concur:
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