Buschauer v. State
| Decision Date | 20 December 1990 |
| Docket Number | No. 20820,20820 |
| Citation | 106 Nev. 890,804 P.2d 1046 |
| Parties | , 59 USLW 2446 Steven John BUSCHAUER, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Wright & Stewart, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty. and Frank Ponticello,
Deputy Dist. Atty., Clark County, Las Vegas, for respondent.
Appellant Steven John Buschauer (Buschauer) entered a plea of guilty to one count of involuntary manslaughter with use of a deadly weapon for accidentally shooting his wife when he was playing "fast draw" with his gun in his home. Buschauer stated that he did not know the gun was loaded, and the investigating detective concluded that Buschauer's story appeared consistent with the crime scene. The presentence report contained the following reference to a polygraph examination taken by Buschauer: "[f]urther investigation by this writer revealed that the defendant failed the polygraph test police gave him concerning his wife's death."
At the sentencing hearing, Buschauer's mother-in-law gave an oral victim's impact statement (herein, impact statement) pursuant to NRS 176.015(3). Defense counsel was not given prior notice of the contents of this statement. Buschauer's mother-in-law was not under oath and was not subjected to cross-examination. Ranging well beyond the impact of the crime, the statement referred to several prior bad acts by Buschauer, including: (1) that Buschauer had been jailed in California for spousal abuse; (2) that Buschauer's spouse had broken her leg once when Buschauer was chasing her; (3) that Buschauer once had attempted to run his spouse over with a truck; and (4) that Buschauer physically abused the couple's daughter. The district court imposed on Buschauer the maximum possible sentence: 6 years for involuntary manslaughter, plus a consecutive 6 years for use of a deadly weapon. In doing so, the court referred to a "pattern of domestic violence."
On appeal, Buschauer contends that: (1) inclusion of polygraph results in the presentence report was error; (2) the impact statement by his mother-in-law was broader than is authorized by NRS 176.015(3), and, further, violated due process due to lack of notice, oath, and cross-examination; (3) errors in the presentence report denied him a fair sentencing due to suspect or impalpable evidence; and (4) defense counsel was ineffective for failing to present available mitigating evidence. This court further permitted Buschauer to file a supplemental opening brief raising a fifth contention: (5) that the court erred in enhancing the sentence based on use of a deadly weapon because this was an accidental shooting. We address contentions one, two and five, which present issues of first impression in this court. We need not reach the third and fourth assignments of error.
We first conclude that inclusion of the reference to the polygraph result in the presentence report was error. Polygraph results are inadmissible at trial absent written stipulation of the parties. Aguilar v. State, 98 Nev. 18, 21, 639 P.2d 533, 535 (1982). The State argues that a similarly strict rule is unnecessary at the sentencing stage, given the more relaxed standards for inclusion of evidence in the presentence report. We disagree. Evidence which is highly suspect or impalpable may not be considered by the court at sentencing. Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). The reliability of polygraph results is no greater, and the need for reliability no less, at sentencing than at trial. Therefore, in accord with other jurisdictions who have addressed the question, we conclude that the general rule limiting use of polygraph results at trial applies at sentencing as well. See, e.g., Ex Parte Hinton, 548 So.2d 562 (Ala.1989); State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982) (); People v. Allen, 49 Mich.App. 148, 211 N.W.2d 533 (1973).
The second assignment of error concerns the impact statement. Buschauer contends first that the scope of the statement given by Buschauer's mother-in-law exceeded the scope of the statement authorized by NRS 176.015(3) 1. We disagree.
The Nevada statute is similar in scope to statutes enacted in Arizona and California. See Ariz.Rev.Code § 13-702(F); Cal.Penal Code § 1191.1. NRS 176.015(3) authorizes the victim to express in a reasonable fashion any views concerning four subjects: the crime, the impact of the crime on the victim, the need for restitution, and "the defendant." The fourth subject, views concerning the defendant, goes beyond victim impact. Cf. W.Va.Code § 61-11A-2(b) (statement "shall relate solely to the facts of the case and the extent of any injuries ... resulting directly from the crime"). "Views" on the defendant clearly encompass opinions as to the defendant's general character. Since an assessment of character usually turns in part on prior acts, this language permits some reasonable discussion of prior acts by the defendant. Buschauer does not contend that this is unconstitutional; his arguments in this case go only to the procedural protections afforded a defendant in connection with the impact statement
Buschauer further contends that NRS 176.015(3) violates due process because it does not require notice, oath, and cross-examination in connection with the impact statement. Preliminarily, we note that an impact statement may be introduced at sentencing in two ways. First, where a victim cannot or does not wish to appear in court, the statement may be placed in written form in the presentence report pursuant to NRS 176.145. Second, the victim may give an oral statement at the sentencing hearing pursuant to NRS 176.015(3). When, as here, the second of the two alternatives is used, we must balance the dictates of due process with the legitimate interests of the victim, as expressed by the legislature. We conclude that the scope of due process protections depends on the scope of the impact statement. First we address the situation where the impact statement will refer only to three subjects: the facts of the crime, the impact on the victim, and the need for restitution. In this situation, we conclude that the victim, testifying as a witness before the court, must be sworn before testifying, but that cross-examination and prior notice of the contents of the impact statement normally are not required. In most cases, the defendant and defense counsel should already be aware of, and able to rebut, a statement whose scope is limited in this manner; (if, however, the victim's statement of the crime presents significant facts not previously raised, cross-examination and even a continuance prior to cross-examination, if requested, may be required). In this first situation, the State should inform defense counsel that an impact statement will be offered, but need not disclose the contents of the statement.
The second situation is where the impact statement includes references to specific prior acts of the defendant, as occurred in this case. Where the impact statement will refer to any prior acts by the defendant, we conclude that due process requires that the accuser be under oath, an opportunity for cross-examination and, perhaps most importantly, reasonable notice of the prior acts which the impact statement will contain. Our conclusion is supported by language in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), in which the U.S. Supreme Court held that use of an impact statement in capital cases is unconstitutional. In discussing impact statements, the Booth court indicated that the defendant must be given the opportunity to rebut the impact statement and stated that the defendant "[p]resumably would have the right to cross-examine the declarants." Booth, 482 U.S. at 506-07, 107 S.Ct. at 2535. A case interpreting the very similar Arizona statute further supports our conclusion. See State v. Asbury, 145 Ariz. 381, 701...
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