Bai v. State
| Decision Date | 28 September 2015 |
| Docket Number | No. 62907,62907 |
| Parties | XIAO YE BAI, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit kidnapping, first-degree kidnapping, extortionate collection of a debt, extortion, conspiracy to commit murder, burglary while in possession of a deadly weapon, first-degree murder with the use of a deadly weapon, and two counts of attempted murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Michael Villani, Judge.
Appellant Xiao Ye Bai claims that the district court committed numerous errors. After considering each error, we conclude that reversal is not warranted and we affirm the judgment of conviction.
Bai and the victim, Wen Jun Li, were engaged in a dispute over money. According to Bai, Li owed $10,000 to his father. According to the State, Li owed the $10,000 to United Bamboo, a Taiwanese gang to which Bai belonged. Thus, the State claims that Bai's attempts at collecting the debt, which ultimately led to Li's death, were at the gang's behest.
In April 2009, Bai and his then-girlfriend, Pei Pei, had recently moved to Las Vegas from Los Angeles and were having financial difficulties. Thus, Bai set out to collect the $10,000 debt owed by Li. Bai and Pei later spotted Li at a local market, and Bai confronted him. Bai took Li to Pei's car where he punched Li repeatedly, threatened to break Li's legs, and demanded that Li pay the money owed. Li told Bai that he could retrieve the money if Bai took him to the bank across the street, but when they went to the bank, it was closed. Li then offered to meet Bai within the next few days to give him the money. Bai agreed, but Li failed to meet him, and in subsequent searches, Bai was unable to locate Li.
On July 6, 2009, Bai was informed that Li was at Forbes KTV, a nightclub. Bai and Pei drove to the nightclub, and Pei waited outside in the car as Bai went inside. After locating and speaking with Li momentarily, Bai attacked him, chasing him around the nightclub and stabbing him thirty-eight times. Li died as a result of his wounds.
Later that day, Bai and Pei took a bus to Los Angeles and stayed at the home of San Gu or "Brother Three," who was alleged to be a fellow member of United Bamboo. After a series of trips between Los Angeles and Las Vegas, Bai and Pei were apprehended in Las Vegas.
Eleven days prior to trial, Bai filed a motion for a continuance to allow time for his father to travel from China to Las Vegas to testify at his trial. According to Bai, his father would testify to the debt owed by Li and to a brain injury from which Bai suffered. The district court denied Bai's motion, and a trial ensued.
At trial, Bai conceded that he was responsible for Li's death, but claimed that he only went to Forbes KTV with the intent to meet with Li about the family debt. The State presented Asian gang culturetestimony from Detective Tom Yu of the Los Angeles County Sheriff's Department to support its theory that Bai went to Forbes KTV intending to kill Li on behalf of United Bamboo. Proposed testimony from Bai's experts on "neurology damage and behavior," which supported his claim that his killing Li was the result of a mental break, and not a "contract execution," was excluded due to defective expert notification. Bai was ultimately convicted by a jury.
Request for continuance
Bai brought his motion for a "several month[ ]" continuance eleven days before his trial, which had been pending for three years. Bai contends that the district court erred by denying his motion because the continuance would have allowed time for his father to travel from China to testify to the debt Li owed and the brain injury Bai suffered. "[G]ranting or denying a motion for a continuance is within the sound discretion of the district court." Mulder v. State, 116 Nev. , 9, 992 P.2d 845, 850 (2000). When reviewing a district court's decision to grant or deny a continuance, we consider the (1) prejudice to the court, (2) prejudice to the defense, and (3) defendant's diligence in attempting to secure witnesses. See Lord v. State, 107 Nev. 28, 42, 806 P.2d 548, 557 (1991).
In Lord, the district court denied the defendant's request for a half-day continuance to allow for his witnesses to travel to Nevada to testify at the penalty hearing. Id. at 32, 806 P.2d at 550. We determined that a district court may abuse its discretion by failing to grant a reasonable and modest continuance when the request is made to obtain important witnesses and when the requesting counsel or parties are not responsible for the delay. Id. at 42, 806 P.2d at 556-57. However, inMulder, prior to the penalty phase, the request for a sixty-day continuance was not modest, and the delay was Mulder's fault because he was not cooperating with his attorneys. 116 Nev. at 10, 992 P.2d at 850. Three witnesses also testified to mitigating circumstances at sentencing, and Mulder failed to fully explain any additional mitigating evidence that would have been presented had the court granted the continuance. Id. at 10, 992 P.2d at 850-51.
This case is distinguishable from Lord and comparable to Mulder. In Lord, the modest request for a continuance was for a half-day, whereas here, the request was for "several months," an even lengthier request than the sixty days we determined was not a modest request in Mulder. Thus, here, the request is also not a modest one. Additionally, unlike Lord but similar to Mulder, the defense was responsible for the delay. The defense had three years to prepare for trial and arrange for the travel of witnesses. Lastly, similar to Mulder but distinct from Lord, here, other witnesses, including Bai's mother, could have testified to both the debt and the brain injury. Therefore, as in Mulder, the district court did not abuse its discretion by denying Bai's motion to continue the trial.1
Expert testimony
At trial, the district court excluded Bai's experts' testimony, concluding that the experts' testimony on fight or flight response would be outside the scope of Bai's prior notice of experts, which provided that the doctors would testify to "neurology damage and behavior." On appeal, Baicontends that the district court abused its discretion by excluding his experts' testimony, resulting in prejudice. According to Bai, his experts' testimony on "neurology damage and behavior" as it relates to fight or flight response was essential to prove the killing resulted from a mental break, in contradiction to the States' claim that it was a "contract execution" ordered by United Bamboo.
We review the sufficiency of expert witness notice for abuse of discretion. Perez v. State, 129 Nev., Adv. Op. 90, 313 P.3d 862, 870 (2013). Here, in light of Bai's offer of proof, and to the extent that a written report was not required, we conclude that his notice of expert testimony did not amount to "[a] brief statement regarding the subject matter on which the expert witness is expected to testify and the substance of the testimony." See NRS 174.234(2)(a). No substance was provided. And the notice's bare statement, identifying "neurology damage and behavior" as the subject of testimony, was not sufficient to give notice that the experts would testify to fight or flight response. Therefore, the district court did not abuse its discretion when it excluded Bai's experts' testimony.
Gang affiliation and hit man evidence
Bai contends, generally, that the district court erred when it admitted gang-affiliation evidence and evidence that he was a hit man. Bai also contends, more specifically, that the district court erred when it admitted photographs of him posing as a hit man, and admitted Detective Yu's testimony about Asian gang culture.
This court reviews claims of evidentiary error for an abuse of discretion. Holmes v. State, 129 Nev., Adv. Op. 59, 306 P.3d 415, 418 (2013). Thus, "[a] decision 'to admit or exclude evidence will not be reversed on appeal unless it is manifestly wrong.'" Id. (quoting Archanian v. State, 122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006)). NRS 48.035(1)provides in part: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice."
Detective Yu's testimony on the culture of respect in Asian gangs was relevant to understanding motive. See NRS 50.275 ().
The evidence of Bai's relationship to United Bamboo and alleged status as a hit man for United Bamboo was probative of Bai's motive for killing Li, such that any prejudice was outweighed. See Lay v. State, 110 Nev. 1189, 1195, 886 P.2d 448, 452 (1994) (). In particular, the photographs admitted depicting Bai in all black and posing with weapons, ostensibly mimicking ideations of a hit man, were probative of his motive, and indeed do not warrant reversal under our plain error analysis.2 See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ( .
Moreover, given the witness testimony as to the events leading up to and including the morning of July 6, 2009, we are persuaded that, had the district court excluded evidence of gang...
To continue reading
Request your trial