Emmons v. State

• Decision Date: 06 March 1991
• Docket Number: No. 20323,20323
• Citation: 807 P.2d 718,107 Nev. 53
• Parties: Mark Stewart EMMONS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 718

807 P.2d 718

107 Nev. 53

Mark Stewart EMMONS, Appellant, v. The STATE of Nevada, Respondent.

No. 20323.

Supreme Court of Nevada.

March 6, 1991.

Schieck & Derke, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Deputy Dist. Atty., Daniel M. Seaton, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Mark Stewart Emmons was charged with murder in the stabbing death of Jack Perkins, Jr. He and an accomplice, Edward Hassett, hitched a ride with Perkins in Tucson, Arizona, on December 26, 1985. While driving across the Nevada desert, the two men decided to rob Perkins. In the process, Emmons stabbed Perkins. He and Hassett took Perkins' possessions and left him for dead. The next day, Emmons pawned some of Perkins' belongings in Las Vegas. Emmons and Hassett were arrested while driving Perkins' truck in Bellingham, Washington, a few days later. Emmons was charged with murder with use of a deadly weapon. His first trial resulted in a mistrial. Following his second trial, Emmons was found guilty of first degree murder with use of a deadly weapon and was sentenced to die.

On appeal, Emmons alleges that numerous prejudicial errors occurred during the guilt and penalty phases of his second trial. Because we hold that none of Emmons' contentions have merit, we affirm his conviction and sentence.

Emmons first contends that the district court abused its discretion during the guilt phase by allowing the deputy county medical examiner to render an expert opinion regarding radiological and orthopedic identification of Perkins' remains. Emmons contends that the medical examiner was not qualified as an expert as required by NRS 50.275. He further contends that, absent a foundational finding that the medical examiner was qualified as an expert, admission of her testimony was an abuse of discretion and was prejudicial to him because without her testimony, the state could not establish the element of the corpus delicti.

Decisions regarding the admissibility of expert testimony lie within the discretion of the trial court. Childers v. State, 100 Nev. 280, 283, 680 P.2d 598, 600 (1984). Moreover, NRS 50.275 is not limited to experts with special training, but includes those who have gained expertise through "special knowledge, skill, experience, training or education...." (Emphasis added.) Here, the court impliedly determined that the examiner was qualified as an expert. The medical examiner, a forensic pathologist, testified that she had gained general knowledge of radiology and orthopedics through her medical training, and gained expertise through her experience in the field. We hold that the court did not abuse its discretion in admitting the medical examiner's testimony because she had received on-the-job training and thus qualified as an expert. Cf. Watson v. State, 94 Nev. 261, 264, 578 P.2d 753, 755-56 (1978).

Emmons further contends that the district court committed reversible error during the guilt phase by allowing the medical examiner to testify regarding a radiologist's concurring opinion and by admitting into evidence a letter by the radiologist to support the medical examiner's opinion. Emmons contends that the inculpatory testimony and letter were inadmissible hearsay and that their admission violated his sixth amendment right to confront witnesses.

Hearsay evidence is evidence of a statement made other than by a testifying witness which is offered to prove the truth of the matter asserted. NRS 51.035. The general rule is that hearsay is inadmissible. NRS 51.065. However, NRS 51.075(1) provides that "[a] statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though [the declarant] is available."

Here, the radiologist was a disinterested witness with no apparent motive to lie. Therefore, under the circumstances of this case, we hold that testimony regarding the radiologist's opinion was admissible under the general exception to the hearsay rule. Cf. Johnstone v. State, 92 Nev. 241, 244-45, 548 P.2d 1362, 1364 (1976).

With respect to the radiologist's letter, we reject the state's contention that it falls under the "record of regularly conducted activity" exception to the hearsay rule, because the state failed to establish that the letter was written "in the course of a regularly conducted activity" as required by NRS 51.135(1). See Hamm v. Sheriff, 90 Nev. 252, 254, 523 P.2d 1301, 1302 (1974). Nevertheless, for the same reasons we hold the radiologist's opinion admissible, we hold that the radiologist's letter was admissible under the general exception to the hearsay rule.

Emmons next contends that the district court committed reversible error during the guilt phase by failing to suppress the testimony of inmate informant James Litteral. While housed next to Emmons in prison, Litteral, who had a reputation for being a "snitch," contacted law enforcement personnel and sent them written notes containing information he had obtained from Emmons. Emmons contends that Litteral was functioning on behalf of law enforcement by acting as an agent of the state, and that therefore Litteral was conducting the functional equivalent of illegal custodial interrogations. He maintains that admission of Litteral's testimony violated his due process rights under the Nevada Constitution and the fifth amendment of the United States Constitution. He states that this constitutional violation prejudiced him because he claims that without Litteral's testimony, his accomplice's testimony was uncorroborated.

"[W]hen a jailhouse informant elicits incriminating information from an accused while acting on his own initiative and not pursuant to any specific prior agreement with law enforcement, the incriminating statements may be received in evidence against the accused without violating his state or federal constitutional rights." Thompson v. State, 105 Nev. 151, 156, 771 P.2d 592, 596 (1989).

In this case, Litteral was not placed next to Emmons intentionally. Moreover, law enforcement did not contact Litteral--he went to them of his own accord. In addition, Litteral testified that Emmons had volunteered the information. Therefore, we hold that the conduct in this case did not rise to the level of "custodial interrogation." Accordingly, it was not constitutionally mandated that Emmons be given his Miranda warnings. We conclude that no constitutional rights were violated, and the court did not err in failing to suppress Litteral's testimony.

Emmons next contends that the district court committed reversible error during the guilt phase by denying a motion in limine and allowing the prosecutor to elicit evidence of Emmons' prior criminal conduct. Over defense objections, Officer David Richards testified at trial that he was told to regard Emmons as armed and dangerous. He also testified that, after being arrested in Washington, Emmons said, among other things, "I'm not going back." Emmons contends that this testimony constituted inadmissible character evidence, the admission of which violated his rights to due process and a fair trial under the Nevada and United States Constitutions. If a jury could reasonably infer from the evidence presented that the accused previously engaged in criminal activity, then reference to the accused's prior criminal history violates the accused's due process rights and constitutes reversible error. Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). In this case, however, reference to Emmons' being armed and dangerous was not a clear reference to his prior criminal history. The jury could just as likely have associated Emmons' being armed and dangerous with the crime for which he was being sought, rather than with any past criminal activity. The statement, "I won't go back," is even more ambiguous. The jury could have inferred from this statement that Emmons did not want to return to Nevada, where the arrest warrant had been issued. It is unlikely the jury took it to be a reference to Emmons' prior criminal history. Accordingly, we hold that the testimony was not improperly admitted.

Emmons also contends that the district court committed reversible error during the guilt phase by allowing the prosecutor to elicit information concerning his drug usage. Prior to trial, the defense filed a motion in limine to preclude the state from introducing into evidence testimony which allegedly related to Emmons' having offered to sell or purchase marijuana from witness David Carrell. In response, the state stipulated to not ask questions of Carrell "which would elicit testimony regarding the defendant's use of marijuana." Nevertheless, at trial the prosecutor asked Officer David Richards, "And how about whether or not he was under the influence of drugs?" Richards responded, "A little bit on the drugs. His pupils were--" before defense counsel could interject an objection. The judge sustained the objection but denied a motion for mistrial even though he concluded that the prosecutor had asked about drugs deliberately. Emmons argues that admission of this improper testimony and denial of his motion for mistrial deprived him of a fair trial in violation of the Nevada and United States Constitutions.

It is within the trial court's discretion to grant or deny a mistrial. Owens v. State, 96 Nev. 880, 883, 620 P.2d 1236, 1238 (1980). Although the state claims it had only stipulated to not ask questions of Carrell, we disagree with its claim that the testimony elicited did not violate the motion in limine. By the words of its own stipulation, the state was aware that defense counsel objected to testimony regarding Emmons' drug use, rather than testimony by Carrell only. Furthermore, the state's claim that it was surprised by the...