Tavares v. State

• Decision Date: 17 September 2001
• Docket Number: No. 35909.,35909.
• Citation: 117 Nev. 725,30 P.3d 1128
• Parties: Lonnie Ray TAVARES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

30 P.3d 1128

117 Nev. 725

Lonnie Ray TAVARES, Appellant, v. The STATE of Nevada, Respondent.

No. 35909.

Supreme Court of Nevada.

September 17, 2001.

Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.

Before SHEARING, AGOSTI and ROSE, JJ.

OPINION

PER CURIAM:

SUMMARY

In this case, we consider whether the failure to instruct the jury on the limited purposes for which uncharged bad act evidence is admitted constitutes plain error. Under the circumstances presented here, we conclude that it does. Moreover, we conclude that, subject to the defendant's objection, the prosecutor shall henceforth have the burden of requesting that a limiting instruction be given both at the time the prosecutor introduces the evidence and in the final charge to the jury. As a result, we will review future cases involving the failure to request a limiting instruction for harmless error.

We also review whether the district court gave an erroneous flight instruction to the jury which stated that "a plan or desire to flee" could be considered as evidence of consciousness of guilt. Under the circumstances of this case, we conclude that the district court abused its discretion in giving the instruction.

On account of these errors, we reverse for a new trial.

STATEMENT OF FACTS

Lonnie Ray Tavares was the father of C.T., a three-month-old infant whom he cared for with Amy Cuevas, Tavares's girlfriend and C.T.'s mother. Tavares was alone with C.T. on the night of January 31, 1998. At about 10:00 p.m. that night, Tavares called 911 to report that C.T. had stopped breathing. C.T. was brought breathless and pulseless to the hospital. Although C.T. was revived, she died a few days later. Doctors determined that she had suffered from multiple broken ribs and asphyxiation, which had caused the severe brain damage that eventually led to her death.

The State's theory was that Tavares, who had a history of mishandling C.T. and covering her nose and mouth to make her stop crying and hiccuping, was the one who had broken C.T.'s ribs and asphyxiated her. The State charged Tavares with first-degree murder under alternative theories of either willful, premeditated, and deliberate murder, or death resulting from child abuse. Because there was no direct physical evidence or eyewitness testimony, the State relied greatly on Tavares's prior bad acts and the inconsistencies and perceived callousness in statements he made after the incident.

To establish Tavares's prior bad acts, the State's first witness was his ex-girlfriend, April Striggles, with whom he had earlier fathered a child. Over Tavares's objection, Striggles testified to events six years earlier involving Tavares's alleged mishandling of their son. In particular, Striggles testified about an incident when she believed Tavares had bruised their son's ribs by squeezing him and about an incident when she found Tavares covering their son's mouth and nose with his hand, causing him to turn blue and stop breathing. The State also introduced Cuevas's testimony that both she and Tavares had on occasion similarly covered C.T.'s mouth and nose to cure her of the hiccups, but never so much as to stop C.T.'s breathing.

The district court admitted Striggles's testimony as being relevant to showing a lack of accident, Tavares's intent in committing the act, and Tavares's identity as the perpetrator. Through an oversight by counsel and the district court, the jury was never instructed on the limited purposes for which the evidence was admitted.

The State also introduced Cuevas's testimony that after police began focusing their investigation on Tavares, he told her that he was "going to take a plane and get out of the country." Tavares, however, never made any preparations to leave the jurisdiction.

Over Tavares's objection, the district court gave the jury a modified flight instruction, which informed the jury that "a plan or desire to flee immediately after the commission of a crime" is a fact that it could consider in deciding Tavares's guilt because it tended to show a consciousness of guilt.

Tavares's defense was that on the night C.T. was injured, he had brought her to bed with him and accidentally rolled over onto her, thus smothering her and causing her to stop breathing. Tavares also suggested that C.T.'s rib injuries were caused by an earlier incident when Cuevas squeezed her as hard as she could.

The jury ultimately convicted Tavares of first-degree murder, and he was sentenced to life with parole after twenty years. Tavares now appeals claiming, among other things, that the district court erred by: (1) failing to give a limiting instruction regarding the limited use of prior bad act testimony; and (2) giving an improper flight instruction.

DISCUSSION

The failure to give a limiting instruction

Tavares contends that the district court's failure to give a limiting instruction regarding the use of the prior bad act testimony was reversible error. Tavares, however, failed to request the instruction, an omission which generally precludes appellate review.¹ Despite such failure, this court has the discretion to address an error if it was plain and affected the defendant's substantial rights.² Normally, a defendant must show that an error was prejudicial in order to establish that it affected his substantial rights.³

Before today, we have only briefly addressed the importance of limiting instructions and the impact of their absence in criminal trials. In Meek v. State,⁴ we noted that "in some cases" a district court has a duty to give limiting instructions sua sponte.⁵ There, we held without further explanation that it was plain error for the district court to not give a limiting instruction regarding testimony that recited one of the defendant's prior bad acts. Because Meek did not fully address the standard by which limiting instructions should be given, we now take this opportunity to do so.

We have often held that the use of uncharged bad act evidence to convict a defendant is heavily disfavored in our criminal justice system because bad acts are often irrelevant and prejudicial and force the accused to defend against vague and unsubstantiated charges.⁶ The principal concern with admitting such acts is that the jury will be unduly influenced by the evidence, and thus convict the accused because it believes the accused is a bad person.⁷

It is also well established that evidence of uncharged bad acts may be admitted for limited purposes other than showing a defendant's bad character so long as certain procedural requirements are satisfied and certain substantive criteria met.⁸ NRS 48.045(2) lists several of the purposes for which uncharged bad act evidence is admissible, including "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." We emphasize, however, that NRS 48.045(2) is merely an exception to the general presumption that uncharged bad acts are inadmissible.

In order to overcome the presumption of inadmissibility, the prosecutor has the burden of requesting admission of the evidence and establishing at a hearing outside the jury's presence that: "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice."⁹

A prosecutor seeking admission of this volatile evidence must do so in the pursuit of justice and as a servant of the law, "the twofold aim of which is that guilt shall not escape or innocence suffer."¹⁰ Thus, "[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."¹¹

Because the prosecutor is the one who must seek admission of uncharged bad act evidence and because the prosecutor must do so in his capacity as a servant to the law, we conclude that the prosecutor shall henceforth have the duty to request that the jury be instructed on the limited use of prior bad act evidence. Moreover, when the prosecutor fails to request the instruction, the district court should raise the issue sua sponte. We recognize that in unusual circumstances, the defense may not wish a limiting instruction to be given for strategic reasons.¹² In those circumstances, the desire of the defendant should be recognized as he is the intended beneficiary of the instruction and is in the best position to evaluate its consequence.

Because the defendant no longer has the burden of requesting a limiting instruction on the use of uncharged bad act evidence, we will no longer review cases involving the absence of the limiting instruction for plain error. Instead, we will review future cases for error under NRS 178.598, which provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Further, because the failure to give a limiting instruction on the use of uncharged bad act evidence is a nonconstitutional error,¹³ we will not apply the stricter Chapman v. California¹⁴ standard we use to evaluate the harmlessness of constitutional error. Instead, we will use the Kotteakos v. United States¹⁵ standard utilized by federal courts reviewing nonconstitutional error under the federal harmless-error statute, which is identical to NRS 178.598.¹⁶ The test under Kotteakos is whether the error "had substantial and injurious effect or influence in determining the jury's verdict."¹⁷ Thus, unless we are convinced that the accused suffered no prejudice as determined by the Kotteakos test, the conviction must be reversed.¹⁸ On account of the potentially highly prejudicial nature of uncharged...