IN THE SUPREME COURT OF THE STATE OF NEVADA
EVARISTO JONATHAN GARCIA, No. 80255
Appellant,
vs.
JAMES DZURENDA, DIRECTOR,
Respondent. FILED
ORDER OF AFFIRMANCE
This is an appeal from the denial of an untimely post-conviction
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; David M. Jones, Judge.
Appellant Evaristo Garcia was convicted of killing a fifteen-
year-old boy in front of a high school. Following the denial of his first post-
conviction petition, he learned that the State never disclosed to him police
records kept by the Clark County School District Police Department
(CCSDPD). Those records indicated that a witness's initial description of
the shooter was inconsistent with all of her other descriptions, and that
CCSDPD, shortly after the shooting, stopped a suspect in the vicinity of
where witnesses said the shooter ran, but the suspect was quickly released
when a witness stated he was not the shooter. Evaristo filed the underlying
habeas petition, which the district court denied as procedurally barred.
A post-conviction petition for a writ of habeas corpus must be
filed within one year and successive petitions are not permitted when the
second petition alleges new or different grounds and the judge determines
that the failure to assert those grounds previously constitutes an abuse of
the writ. NRS 34.726(1); NRS 34.810(2). Garcia's petition is thus time
22._- tooLiz.
barred unless he can demonstrate good cause. NRS 34.726(1). Given he
alleges a Brady v. Maryland, 373 U.S. 83 (1963), violation, good cause must
be shown by proving the following: "(1) the evidence is favorable to the
accused, either because it is exculpatory or impeaching; (2) the State
withheld the evidence, either intentionally or inadvertently; and (3)
prejudice ensued, i.e., the evidence was material." State v. Huebler, 128
Nev. 192, 198, 275 P.3d 91, 95 (2012) (internal quotation marks omitted)
(explaining that the second and third prongs of a Brady violation mirror the
two requirements for demonstrating good cause for the delay in filing the
habeas petition); NRS 34.726(1). This court reviews a district coures
decision resolving a Brady claim de novo. Huebler, 128 Nev. at 198, 275
P.3d at 95-96.
Garcia satisfied the second prong by showing that the State
withheld the evidence. The State has an affirmative duty to disclose
favorable evidence in its possession regardless of whether the defense has
made a discovery request. State v. Bennett, 119 Nev. 589, 601, 81 P.3d 1, 9
(2003). The State is "charged with constructive knowledge and possession
of evidence withheld by other state agents, such as law enforcement
officers," id. at 603, 81 P.3d at 10 (internal quotation marks omitted), even
if the evidence "is known only to police investigators and not to the
prosecutor," Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006)
(internal quotation marks omitted). The State concedes that CCSDPD is a
law enforcement agency. The record demonstrates that the first officer on
the scene was a CCSDPD officer, seven CCSDPD officers assisted with
securing the scene and investigating the crime, and CCSDPD officers
stopped a potential suspect. Thus, the State had constructive knowledge
that the CCSDPD was involved in the investigation and may have drafted
2
reports. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) (providing that "the
individual prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government's behalf in the case); Bennett, 119
Nev. at 603, 81 P.3d at 10-11 (charging the State with constructive
knowledge of evidence in a Utah police officer's possession because the State
was aware of the Utah police's assistance in the investigation of the crime).
Nevertheless, Garcia did not demonstrate that the evidence was
material. Evidence must be disclosed if it is exculpatory and "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."
Mazzan v. Warden, Ely State Prison, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000).
If the defense only makes "a general request for information, the evidence
is material when a reasonable probability exists that the result would have
been different had it been disclosed," and if a specific request is made, "the
evidence is material upon the lesser showing that a reasonable possibility
exists of a different result had there been disclosure." Bennett, 119 Nev. at
600, 81 P.3d at 8. Even under the lower standard for materiality, Garcia
was unable to demonstrate that the evidence was material.
Garcia matched the description of the shooter, his fingerprints
were on the gun, a witness testified that he rode in a car with Garcia to the
scene of the crime and watched the gun owner hand Garcia the gun, and
another individual testified that Garcia told him he had shot the victim.
Additionally, the evidence that a witness's initial description of the shooter
was different would not have supported Garcia's defense at trial that one of
two other individuals was the shooter because neither of those individual's
fingerprints were on the gun. Further, that witness impeached her own
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testimony at trial because she indicated that she forgot things due to her
age. Additionally, in light of the significant evidence of Garcia's guilt at
trial, the fact that another individual was stopped near the scene of the
crime would not have created the possibility of a different outcome because
there was no evidence that the individual was connected t,o the crime or
connected to any of the other individuals involved in the crime. Therefore,
because Garcia could not demonstrate that the suppressed evidence was
material, the district court properly denied Garcia's petition for a writ of
habeas corpus as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.2
J.
Hardesty
J.
Stiglich
J.
Garcia was unable to demonstrate the third Brady prong
1 Because
and all prongs are necessary for a Brady claim, we need not consider
whether he properly demonstrated the first prong.
2We also conclude that Garcia's argument that the district court's
adoption of the States language into its order violated Garcia's
Constitutional rights and the separation of powers doctrine lacks merit.
The record demonstrates that the district court did not adopt the State's
proposed order verbatim, and EDCR 7.21 requires the prevailing party to
provide the court with a draft order or judgment.
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01 1947A alillto
cc: Hon. David M. Jones, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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((1) I947A 440.