Grey v. State

• Citation: 178 P.3d 154
• Decision Date: 13 March 2008
• Docket Number: No. 46146.,46146.
• Parties: James GREY, a/k/a James Gray, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

178 P.3d 154 James GREY, a/k/a James Gray, Jr., Appellant,
v.
The STATE of Nevada, Respondent. No. 46146. Supreme Court of Nevada. March 13, 2008.

[178 P.3d 156]

Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Frank J. Coumou and James Tufteland, Chief Deputy District Attorneys, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, DOUGLAS, J.:

In this appeal, we consider whether parties in criminal cases are required to give notice of expert rebuttal witnesses. We also consider whether the State's failure to formally file an allegation of habitual criminality precludes the district court from imposing an enhanced sentence under NRS 207.010.

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Although we promulgate a new rule of criminal procedure requiring parties in criminal cases to give notice of expert rebuttal witnesses, we hold that the State's failure to provide such notice in this case does not require reversal. We further conclude that the district court improperly sentenced appellant as a habitual criminal under NRS 207.010, where the State failed to file a notice of habitual criminality and failed to charge appellant as a habitual criminal in the indictment. We also address appellant's other assignments of error.

FACTS AND PROCEDURAL HISTORY

A jury convicted appellant James Grey of false imprisonment by using a person as a human shield. The crime occurred on the morning of March 19, 2005, inside a gas station convenience store where police had been summoned because Grey was causing a disturbance.

Earlier that morning, Grey had approached the victim, Tracie Fryer, and requested her to give him a ride in her car. Fryer, who was previously acquainted with Grey, initially refused, but when Grey jumped into the passenger seat uninvited, she agreed to give him a ride after she picked up some friends. According to Fryer, Grey seemed agitated and insisted that someone had spiked his drink and tried to rob him. After Fryer had picked up her friends, Grey also claimed that he had a gun in his possession.

When Grey eventually threatened to throw Fryer out of her car and take it, she pulled into a gas station and went inside a convenience store, where her friends joined her. After Grey also exited the car, Fryer and her friends reentered it and attempted to drive off leaving Grey behind. Grey jumped onto one of the running boards, however, and smashed one of the windows, prompting Fryer to bring the car to a stop. Her friends then fled back into the convenience store, but Fryer remained behind for a short time talking to Grey until he eventually grabbed the ignition key and broke it. She then reentered the store.

A store employee who had witnessed these events called 911 to summon the police. When they arrived, Grey retreated into the store and grabbed Fryer around her neck, made a motion as if he were reaching into his waistband, and started yelling that he was going to kill one of the pursuing police officers. The police were eventually able to take Grey into custody after they had tazed him multiple times. At trial, the State showed the jury the video surveillance tapes of the events that took place at the convenience store.

Following Grey's arrest and transport to the Clark County Detention Center, Grey asked the medical staff at the detention center, allegedly on numerous occasions, to test him for drugs. Grey reported to the medical staff that someone had spiked his beer earlier in the day and attributed his behavior to drinking the spiked beer. The medical staff did not perform any blood draws on or collect urine samples from Grey.

While being checked by the medical staff, Grey apparently started preaching about a revolution involving James Earl Ray, who had assassinated Martin Luther King, Jr. Because of this preaching, Grey was placed in the psychiatric ward at the detention center. While there, Grey refused to eat and continued to preach. He also stood in front of his door completely naked. According to Grey, he had never been diagnosed as paranoid schizophrenic, bipolar, or as having any other mental illnesses.

Ultimately, the State charged Grey with false imprisonment by using a person as a human shield. Grey's defense at trial was that he was involuntarily intoxicated when he committed the alleged crime.

Grey had a history of drug use, including the use of cocaine and methamphetamine. He testified on direct examination at trial that he had been arrested for possession of drug paraphernalia, and he acknowledged on cross-examination that he had been stopped by the police for attempting to steal cocaine and on another occasion for possibly being under the influence of methamphetamine. The State also introduced Grey's prior convictions for assault with a deadly weapon and

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possession of a controlled substance into evidence at trial.

Despite his history of drug use, Grey claimed at trial that he had not knowingly taken any drugs on the day of the incident. According to Grey, he did not necessarily remember the events at issue and testified that much of his recollection came from various reports that he had reviewed. Grey further testified at trial that he had not used drugs for six to nine months before his arrest in this case and that he felt different on the day of the incident as compared to times when he had taken drugs. Additionally, he testified that earlier on the day of the incident, when he was drinking a beer, he had gone to the bathroom for a brief moment and did not take his can of beer with him. Essentially, Grey claimed at trial that someone had spiked his beer while he was in the bathroom. On cross-examination, however, Grey admitted that his beer did not look or taste different when he came back from the bathroom. Further, Grey admitted that he never saw anyone put anything in his drink. And, the record indicates that Grey may have informed the medical staff at the detention center that he had taken methamphetamine that day.

Before Grey testified, the defense called Dr. Michael Krelstein, a clinical psychiatrist, as an expert witness. Based on the reports he reviewed and his interviews with Grey, Dr. Krelstein testified that Grey's actions on the day of the incident were essentially the result of involuntary intoxication. Dr. Krelstein indicated that toxicology reports could have further assisted him in determining the nature of Grey's intoxication, but he nonetheless testified that Grey's conduct on the day of the incident suggested that he was under the influence of phencyclidine (PCP) and that its use was involuntary. Dr. Krelstein further testified that based on his research for this case, he believed that PCP was soluble in alcohol. On cross-examination, however, Dr. Krelstein admitted that he did not know whether Grey took methamphetamine on the day of the incident and that his theory was only valid on the assumption that Grey did not voluntarily consume something.

After the defense rested, the State indicated its intent to call Dr. Michael Fitting Karagiozis as an expert rebuttal witness. The State's notice of witnesses did not include any expert rebuttal witnesses even though Grey's notice of expert witnesses stated that Dr. Krelstein would testify in Grey's case in chief.

Before Dr. Karagiozis testified, the district court asked the State why it needed an expert rebuttal witness. In response, the State contended that it was entitled to have an expert address the defense's theory of the case. Grey objected on the ground that Dr. Karagiozis was not qualified to render an opinion regarding mental health, drug abuse, or involuntary intoxication. Consequently, the district court allowed Grey's defense counsel to examine Dr. Karagiozis, outside the jury's presence, to determine whether he was qualified to be an expert witness.

After the defense and the State questioned Dr. Karagiozis as to his education, credentials, and experience as an expert witness, the State offered Dr. Karagiozis as an expert. When the district court inquired whether Grey had any objections, Grey's defense counsel answered in the negative. Accordingly, the district court recognized Dr. Karagiozis as an expert rebuttal witness.

During its direct examination, the State made a record of the fact that Dr. Karagiozis had sat in and listened to Dr. Krelstein's testimony and to Grey's testimony. As to whether he agreed with Dr. Krelstein's opinion that Grey was under the influence of PCP, Dr. Karagiozis stated that he had some concerns with that opinion. According to Dr. Karagiozis, the oral ingestion of PCP would not have caused Grey to act in the manner he did on the day of the incident, and Grey's actions were inconsistent with somebody rapidly tripping on PCP.

Further, Dr. Karagiozis testified that if the alleged PCP used to spike Grey's beer was in freebase form, it would have taken the PCP a very long time to completely dissolve in the beer; and if it was in the form of salt, the beer would have immediately bubbled over, while the PCP dissolved rapidly. As a result, Dr. Karagiozis explained that Dr. Krelstein's review did not take into account which

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form of PCP was used and that the evidence presented suggested that nothing was introduced into Grey's beer.

Additionally, according to Dr. Karagiozis, the only tasteless drugs that could have been placed in Grey's beer in the short time frame discussed by Grey would be gamma hydroxybutyric acid (GHB) or Rohypnol. Because GHB and Rohypnol would have caused Grey to become unconscious within thirty minutes, Dr. Karagiozis testified that Grey could not have been under the influence of either drug. Ultimately, Dr. Karagiozis concluded that Grey's reported behavior on the day of the incident was not consistent with his having been under the influence of PCP or any...