Roever v. State, 29647

• Decision Date: 02 September 1998
• Docket Number: No. 29647,29647
• Citation: 114 Nev. 867,963 P.2d 503
• Parties: Lerlene Evonne ROEVER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 503

963 P.2d 503

114 Nev. 867

Lerlene Evonne ROEVER, Appellant, v. The STATE of Nevada, Respondent.

No. 29647.

Supreme Court of Nevada.

Sept. 2, 1998.

Rehearing Denied Nov. 25, 1998.

Harry R. Gensler, Public Defender, and Harold Kuehn, Assistant Public Defender, Nye County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Kirk D. Vitto, Deputy District Attorney, Nye County, for Respondent.

OPINION

YOUNG, Justice.

Appellant Lerlene Evonne Roever ("Roever") was previously convicted of one count of first degree murder of her boyfriend, Ian Wilhite ("Wilhite"), and one count of possession of a controlled substance, marijuana. On appeal, we reversed Roever's conviction and remanded for a new trial. Roever v. State, 111 Nev. 1052, 901 P.2d 145 (1995).

At Roever's second trial, the jury again returned a guilty verdict for first degree murder and possession of marijuana. The district court sentenced her to two consecutive terms of life in prison with the possibility of parole for the murder count and one year in prison for the possession count.

Roever and Wilhite lived together in a trailer home in Pahrump, Nevada, with Roever's three children. On the morning of January 16, 1993, Roever called the police to report that she had found Wilhite lying dead in their master bedroom. The cause of death was attributed to a single bullet found in the base of his skull. The medical examiner determined that Wilhite was shot while sleeping the previous night and that the wound was not self-inflicted. Roever told police that she and Wilhite had argued about his infidelities the previous evening and that she spent the night on the couch in the living room of the trailer. She also told police that she had not heard any noise the night before.

Although Roever possessed a handgun, the police recovered only an empty handgun box. Further, because the bullet fragments were severely damaged, the medical examiner could not determine the type of bullet or firearm used in the murder.

Roever was arrested and charged with murder and possession of a controlled substance. Her theory of defense to the murder charge was that an unknown third party entered the trailer during the night, murdered Wilhite, and left the residence and its environs without being seen. The State's theory of the case was that Roever was the only person with a possible motive and opportunity to shoot Wilhite.

At trial, the parties stipulated to playing a videotaped interview between Roever and Detective Frank Ruas ("Detective Ruas") during the State's case-in-chief. The interview was replete with self-serving statements by Roever. Thereafter, also during its case-in-chief, the State called a series of character witnesses who testified to numerous prior statements allegedly made by Roever and to prior acts in which she was allegedly involved.

Roever argues on appeal that the following testimony was improperly admitted over objection and without a hearing required by Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985):

1. Marlene Chidester, Roever's neighbor, testified that Roever had described in detail how she murdered her mother in a bathtub and watched her mother's teeth float in the water, that she had snapped her newborn baby's neck, and that she had scalped an African-American schoolgirl and cut out her teeth while Roever was experiencing a blackout.

2. Dominick Roever, Roever's son, testified that Roever and her ex-husband, Craig Bruske ("Bruske"), would fight violently and once she attacked Bruske with a knife.

3. Gloria and William Lambert, Roever's acquaintances, each testified that Roever had told them that she "gutted an ex-beau."

4. Bruske testified that Roever killed a classmate and has a personality disorder causing her to speak in different voices, experience blackouts, and forget what happened to her. Bruske further testified that Roever drank excessively, neglected her children, and tried to kill him with a knife.

5. Wanda Harrer, Bruske's mother, testified that Roever once threatened a woman in a bar with a cue stick.

6. Carole Kay Phillips ("Phillips"), Roever's employer, testified that Roever was a thief and a liar.

7. Yolanda Wilhite Connelly, Wilhite's sister, testified that Roever once bit Wilhite.

The State contends that Roever called her character into question when she stated during her taped interview with Detective Ruas that she was "a peace-loving person, who would not hurt a fly and whose credibility should not be questioned." Therefore, the State asserts that the bad act testimony was admissible under NRS 48.045(1)(a) as rebuttal character evidence. The State also alleges that the evidence was admissible under NRS 48.045(2) to establish that Roever had committed criminal acts while experiencing a blackout and that she was capable of concocting fantastic or incredible stories.

Initially, the bad character testimony should never have been introduced because it was not in rebuttal to a defense made by the accused. NRS 48.045(1)(a) permits admission of character evidence when the defendant offers his or her good character into evidence and the prosecution introduces evidence to rebut the defense. However,

" '[b]efore an issue can be said to be raised, which would permit the introduction of such evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant.... The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.' " McCormick on Evidence § 190 at 452 n. 54 (Edward W. Cleary, 2d ed.1972) (quoting Lord Sumner in Thompson v. The King, App.Cas. 221, 232 (1918)).

Taylor v. State, 109 Nev. 849, 854, 858 P.2d 843, 846-47 (1993). Here, Roever did not use her videotaped statements as evidence of her good character to be rebutted by the State. We reject the State's contention that Roever "opened the door" to character rebuttal merely by stipulating to the admission of the videotape; it was, in fact, the State that first used the tape in its case-in-chief. Therefore, we conclude that the district court erred by allowing the State to rebut character evidence that had not yet been presented by the accused.

Second, NRS 48.055 allows permissible character evidence to be admitted at trial only in the form of the witness's opinion of the defendant or the defendant's reputation. Evidence of specific acts is admissible only upon cross-examination or when the defendant's character is an essential element of the charge. The testimony presented here was clearly not in the proper form. Further, the State concedes that it did not confront Roever on the witness stand under NRS 48.055 with the specific instances of conduct and statements under scrutiny. Accordingly, the testimonial evidence at issue was improperly admitted as rebuttal character evidence, pursuant to NRS 48.045(1)(a) or NRS 48.055.

Third, we conclude that the evidence was improperly admitted pursuant to NRS 48.045(2). NRS 48.045(2) proscribes evidence of other acts to prove character, although such evidence is offered for other purposes. The district court is required to conduct a hearing to determine whether evidence of other acts is admissible. At the hearing, the court must determine whether "(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." Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). A trial court's determination to admit or exclude such evidence will not be disturbed on appeal absent manifest error. Petrocelli, 101 Nev. at 52, 692 P.2d at 508.

Even had the district court conducted the required hearing prior to admitting the bad act evidence, this evidence should still have been excluded. Much of the bad act evidence admitted was so inflammatory, speculative, and utterly fantastic as to bear practically no probative value. Moreover,

"[t]he use of uncharged bad acts to convict a defendant is heavily disfavored in our system of criminal justice. Such evidence is likely to be prejudicial or irrelevant, and forces the accused to defend himself against vague and unsubstantiated charges.... Evidence of uncharged misconduct may unduly influence the jury, and result in a conviction of the accused because the jury believes he is a bad person.... The use of specific conduct to show a propensity to commit the crime charged is clearly prohibited by Nevada law, ... and is commonly regarded as sufficient grounds for reversal."

Taylor, 109 Nev. at 854, 858 P.2d at 847 (quoting Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144, 1145-46 (1988)). Accordingly, even if clear and convincing evidence established the existence of these acts and the acts were relevant to the crime charged, we conclude that any probative value was substantially outweighed by the danger of unfair prejudice as a matter of law. Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65.

Fourth, the State alternatively argues that the testimonial evidence in dispute could properly be used to impeach Roever, who testified on her own behalf. We conclude that this argument is without merit because NRS 50.085 permits such impeachment only as it relates to the witness's propensity for truthfulness or untruthfulness. Only portions of Phillips' testimony discussed Roever's propensity toward untruthfulness and, therefore, could properly be used as impeachment against Roever if she testifies again and her testimony is in the proper form. Such impeachment may be admitted only in the form of an opinion. NRS 50.085(1). Any specific acts cannot be raised through extrinsic evidence. NRS 50.085(3). The prior acts at issue here were generally not used to demonstrate Roever's...