Higgs v. State

• Decision Date: 14 January 2010
• Docket Number: No. 49883.,49883.
• Citation: 222 P.3d 648
• Parties: Chaz HIGGS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

222 P.3d 648

Chaz HIGGS, Appellant, v. The STATE of Nevada, Respondent.

No. 49883.

Supreme Court of Nevada.

January 14, 2010.

Law Office of David R. Houston and David R. Houston, Reno; Richard F. Cornell, Reno, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Peter Chase Neumann, Reno, for Amicus Curiae Nevada Justice Association.

BEFORE THE COURT EN BANC.¹

OPINION

By the Court, HARDESTY, J.:

In this appeal, appellant Chaz Higgs challenges his conviction of first-degree murder for the death of his wife, Kathy Augustine. Higgs asserts that his conviction should be overturned for the following reasons: (1) the district court abused its discretion when it denied his motion to continue the trial, (2) sufficient evidence does not support his conviction, (3) the district court abused its discretion when it admitted the testimony of the State's scientific expert, (4) the district court abused its discretion when it refused to give Higgs' proffered jury instruction regarding the spoliation of tissue samples, and (5) numerous alleged instances of plain error deprived him of a fair trial.

We note from the outset that we originally decided this appeal in an unpublished order filed on May 19, 2009. Amicus curiae Nevada Justice Association subsequently moved for publication of our disposition as an opinion. Cause appearing, we grant the motion and publish this opinion in place of our prior unpublished order. In so doing, we use this opportunity to reaffirm the standard for the admissibility of expert testimony in Nevada, as it is articulated by NRS 50.275. While Nevada's statute of admissibility tracks the language of its federal counterpart, Federal Rule of Evidence (FRE) 702, we see no reason to part with our existing legal standard. In so deciding, we decline Higgs' invitation to adopt the standard of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Further, we reject the notion that our decision in Hallmark v. Eldridge, 124 Nev. ___, ___, 189 P.3d 646 (2008), adopted the standard set forth in Daubert inferentially. We conclude, therefore, that Higgs' challenge to the testimony of the State's scientific expert fails, as do all the other arguments he raises on appeal. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2003, Higgs, an experienced nurse, and Augustine, a Nevada politician, married. By all accounts, the marriage had deteriorated by 2006. On July 7, 2006, Kim Ramey, a critical care nurse who worked with Higgs, had a conversation with Higgs about his relationship with Augustine. Higgs stated that they were having marital problems and that he intended to seek a divorce. Later that day, Higgs and Ramey had another conversation about a widely publicized case in which a husband killed his wife, shot the judge presiding over the couple's divorce, and fled to Mexico. Higgs commented during their conversation, "That guy did it wrong. If you want to get rid of someone, you just hit them with a little succs because they can't trace it [postmortem]." "Succs" referenced succinylcholine, a paralytic drug that is commonly used in emergency rooms.

In the early morning hours of July 8, 2006, Higgs called emergency personnel to the couple's home after he found Augustine unresponsive. The paramedics were able to restore Augustine's heartbeat, but she could not breathe on her own. Augustine was transported to a local hospital.

Upon learning of Augustine's admittance, Ramey informed police about her previous conversation with Higgs. Ramey also informed a colleague who, in turn, informed Augustine's attending physician, Dr. Richard Ganchan, and told him to test for a succinylcholine level on Augustine.

Neither the paramedics nor the hospital staff administered any succinylcholine while treating Augustine. Hospital staff, however, obtained a urine sample for treatment purposes. On July 11, 2006, Augustine died after she was removed from life support.

The urine sample, which was an ante mortem sample, meaning it was taken from Augustine while she was alive, and the tissue samples, which were postmortem, were tested by the hospital's toxicologist and subsequently the coroner's laboratory. The hospital lab results of the urine sample tested positive for barbiturates. The coroner's office laboratory results showed no signs of any substances; however, since the laboratory had been ordered to look for succinylcholine, it sent specimens to the FBI for further testing. The urine sample tested positive for both succinylcholine and succinylmonocholine,² but the postmortem tissue samples showed no signs of any substance.

In September 2006, Higgs was arrested in Virginia. In December 2006, Higgs was formally charged with first-degree murder in connection with the death of Augustine. The State's theory of the case was that sometime on either July 7 or 8, 2006, Higgs murdered Augustine by administering a lethal dose of succinylcholine.

Pretrial proceedings

In December 2006, the parties stipulated to a trial date of July 2007. The district court appointed Chip Walls as Higgs' expert witness. Walls is one of the foremost experts on the subject of succinylcholine. The State sent the FBI toxicology report to Walls in December 2006. A month later, in January 2007, both parties stipulated to advance the trial date to June 2007.

In May 2007, District Court Judge Jerome Polaha, upon the stipulation of the parties, entered an order instructing the State to provide Higgs more information regarding the description of methodology and procedures used in the FBI's succinylcholine testing. The same month, Higgs filed a motion to continue the trial. He argued that Walls needed more time to evaluate and verify the methodology utilized by the FBI laboratory because the FBI's test results were inconsistent. At the hearing on the motion to continue, defense counsel admitted that no one was to blame for the fact that Walls had not finished evaluating the FBI's test results. In fact, defense counsel stated that the parties had worked together to compile the list of materials set forth in Judge Polaha's discovery order. The district court denied the motion to continue the trial. In making the decision, the district court noted that the defense received the FBI toxicology report in early December 2006, some 24 weeks before the trial date, and only now was raising concerns. It further stated that Walls could indeed testify that, based on his scientific knowledge and expertise, he did not trust the validity of the FBI test results, if that were the case. Finally, the district court observed that the State had the burden of proof, not the defense, and therefore Higgs did not need to find an alternative theory to disprove the State's evidence.

On June 18, 2007, the first day of trial, the district court held a hearing on Higgs' motion in limine regarding scientific evidence and expert witness testimony. During that hearing, Higgs' expert witness, Walls, testified extensively regarding the FBI's toxicology report and the methodology used by its toxicologist, Madeline Montgomery. Walls stated that Montgomery exchanged information with him and answered all of his questions during a telephone call.

The trial

At trial, Ramey testified regarding her conversation with Higgs about succinylcholine and how he described it as a drug that could not be detected postmortem. The State further presented the testimony of various hospital staff, who testified as to the availability of succinylcholine to hospital personnel. Registered nurse and Higgs' former manager, Tina Carbone, testified that succinylcholine was stored on crash carts,³ in rapid sequence intubation kits in emergency rooms, and in secured refrigerators alongside other drugs, such as etomidate, a short acting intravenous anesthetic agent. Marlene Swanbeck, a registered nurse working at the same hospital as Higgs, testified that while a nurse needed to type in a security code to get registered drugs like succinylcholine, once accessed, the nurse could take any other drug instead of, or in addition to, what the nurse listed he or she was taking and there would be no way of tracking such misuse.

Building on Swanbeck's testimony, the State offered evidence that it had found a vial of etomidate in a backpack in the master bedroom of Augustine and Higgs' home, yet there was no record of etomidate missing from hospital records. City of Reno police officer David Jenkins testified that he found the same backpack when executing an arrest warrant for Higgs in Virginia. Jenkins further testified that the backpack included a nursing book, with a bookmark at the page concerning the administration of succinylcholine, and a laminated 3" x 5" card with information concerning succinylcholine.

Dr. Steve Mashour, one of Augustine's attending physicians, testified that because succinylcholine was found in Augustine's ante mortem urine sample, the cause of death could be attributed to succinylcholine poisoning. Dr. Mashour explained that Augustine's routine tests showed no signs of a stroke or heart attack. The State presented two other witnesses, Dr. Stanley Thompson and Dr Paul Katz, who similarly ruled out a heart attack or stroke as a cause of death. Both doctors opined that Augustine's death was consistent with succinylcholine poisoning.

Dr. Ellen Clark, a forensic pathologist who performed the autopsy on Augustine, testified that, in her opinion, Augustine died from succinylcholine toxicity. Dr. Clark also testified that if a nurse is good at delivering an injection, there will be no resulting bruise or large bloody track underneath the skin. She testified that the succinylcholine could have been injected into Augustine in such a manner that she would not be able to identify the...