963 P.2d 503 (Nev. 1998), 29647, Roever v. State

Docket Nº:29647.
Citation:963 P.2d 503, 114 Nev. 867
Party Name:Lerlene Evonne ROEVER, Appellant, v. The STATE of Nevada, Respondent.
Attorney:[6]
Case Date:September 02, 1998
Court:Supreme Court of Nevada
 
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Page 503

963 P.2d 503 (Nev. 1998)

114 Nev. 867

Lerlene Evonne ROEVER, Appellant,

v.

The STATE of Nevada, Respondent.

No. 29647.

Supreme Court of Nevada.

September 2, 1998.

Rehearing Denied Nov. 25, 1998.

Page 504

[114 Nev. 868] 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 [114 Nev. 870] 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.

Page 505

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 [114 Nev. 871] 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...

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