Lopez v. State
| Decision Date | 27 February 1989 |
| Docket Number | No. 16677,16677 |
| Citation | 105 Nev. 68,769 P.2d 1276 |
| Parties | Manuel Saucedo LOPEZ, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Kevin M. Kelly, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, and Rex Bell, Dist. Atty., James Tufteland, and Daniel M. Seaton, Deputy Dist. Attys., Clark County, for respondent.
This appeal concerns the murder by torture of a four-year-old child, Jessica. Appellant, Manuel Saucedo Lopez ("Lopez"), was convicted by a jury of the murder and sentenced to death in a separate penalty hearing. After a careful and extended review of the issues, the record, and the briefs and arguments of counsel, we conclude that Lopez was fairly tried, convicted and sentenced; we therefore affirm.
The testimony adduced at trial, although controverted by Lopez, established a pattern of abuse and torture that eventuated in the merciful demise of the four-year-old child-victim, Jessica, the daughter of Maria Lopez ("Maria") and stepdaughter of appellant, Lopez.
The State's chief witness was Maria. She explained that Jessica was fathered by a man in Tijuana, Mexico, and that the child lived with her in Mexico for the first two years after her birth in 1980. Thereafter, until the early part of November, 1984, Jessica stayed in Tijuana with her maternal grandmother. While the child was in Tijuana, Maria entered the United States illegally and eventually married Lopez in 1982. Maria's aunt and uncle brought Jessica to her mother in November, 1984, informing her that Jessica was a bright child with a bed-wetting problem. Maria was pregnant at the time with her second child by Lopez.
Maria testified that there were no problems initially, but by Thanksgiving Lopez was beating Jessica twice a day with a belt because of the child's incontinence. Thereafter, according to Maria, the stepfather's acts of brutality against the child included: (1) asking Jessica if she knew where the bathroom was, then grabbing her by the hair and dashing her against the toilet bowl; (2) hanging Jessica by her hair with her feet above the floor all night long; (3) stripping her and tying her up in a nearby shed, where, when Maria went to retrieve her, the child protested out of fear that Lopez would hurt her; (4) leaving Jessica in a bathtub filled with cold water for two hours, and afterwards, when she could not stop shivering and would not react, forcing her to drink a half glass of whiskey; when Maria sought to intervene, Lopez shoved her into a door, causing Maria to commence labor; (5) placing Jessica in a tub of extremely hot water and forcing her to remain there with a towel pushed into her mouth to muffle her screams; (6) hanging Jessica in a closet by her hair and forcing the child to eat her own feces because, being tied up, she had no recourse other than to defecate in her underpants; and (7) the night before Jessica died, trying to force her to get up and walk, and when she was unable to do so, grabbing her by the hair, throwing her against the wall, and striking her with a belt.
Dr. James Clarke, who performed the post-mortem examination on the deceased child, testified that his external findings included: (1) extensive burns about the lower legs, buttocks, perineum and genital area, and an extensive second degree burn involving the right lower leg, extending up to the knee; (2) extensive bruising about the right hip and both arms, in particular numerous small bruises spaced about the right upper arm suggesting forcible grasping by fingers or a hand; (3) a swollen upper lip, a "black eye" appearance around both eyes and several bruises about the forehead; and (4) hair missing from part of the scalp.
Dr. Clarke concluded that the child suffered an extremely painful death resulting from abdominal peritonitis due to a perforated ulcer caused by a state of shock ensuing from the injuries and burns.
Jessica's death first officially became known on January 11, 1985, when a city fireman was dispatched to the Lopez apartment and directed to a bedroom to check on a sick child. Upon ascertaining that the child was dead, the fireman, William Jepson, made inquiry of Lopez concerning the whereabouts of the child's parents and was told, untruthfully, that Lopez did not speak English. Although Maria and the stepfather were both present among a gathering of family and friends, Jepson was told that the child's parents were in Tijuana, Mexico. Eventually, Lopez and Maria were identified as Jessica's parents. Through a police interpreter, both Maria and Lopez told a police detective that Jessica had fallen from a slide. However, within an hour or two later at the detective bureau, Maria said that Lopez was responsible for Jessica's death by beating and burning her. Maria explained that she had gone along with the story about the child falling off the slide because she was afraid the police would deport her to Mexico.
A spanish-speaking police officer participated as an interpreter during separate interviews with Lopez and Maria. He testified that Maria was distraught and crying as she recounted what Lopez had done to her daughter. The officer indicated that Lopez, on the other hand, showed no remorse and when asked about the child's burns said that after he finished taking a shower he told Jessica to take a shower. Lopez also told the officer that apparently the water was too hot and Jessica came running out and had burned herself. When the officer then asked Lopez what had happened, Lopez replied that "maybe she slipped." The officer also testified that Lopez had exclaimed in English,
Although we find it unnecessary to recite additional facts from the record, we do note that physical evidence gathered from the apartment and testimony elicited from neighbors tended to support the verdict against Lopez.
There is no dispute that due to the malfeasance of the court reporter there is no trial transcript of the trial proceedings occurring on April 15, 1988. On that date, six witnesses testified on behalf of the defense. As a result of the reporter's failure, Lopez moved the trial court for a new trial.
The testimony of the six witnesses was reconstructed through a combination of notes taken by the two trial counsel for the State and two members of an organization known as Families of Murder Victims who attended the trial. Counsel for Lopez declined to participate. At a hearing for the purpose of reconstructing the record pursuant to NRAP 10(c) 1 and an order of this court, the trial judge reviewed the notes, accepted the tendered supplemental record as a fair representation of the testimony of the six witnesses, and denied the motion for new trial.
In essence, Lopez contends that the reconstructed record is inadequate for this court to fulfill its appellate role and that it was error for the trial court to deny a new trial. Although the reconstructed record may not be ideal, it is amply sufficient to obviate the necessity of a new trial.
Lopez strongly urges us to rely on State v. Moore, 87 N.M. 412, 534 P.2d 1124 (1975), where the court held that the absence of a trial transcript warranted a new trial. 2 In Moore, the trial recorder was unable to produce the record because the trial tapes were inaudible; consequently, the appellate court found itself unable to review the defendant's allegation of error relating to the voluntariness of his confession. However, Lopez's reliance on Moore is misplaced as it is readily distinguishable from the instant case. In Moore, practically the entire record was unavailable to the appellate court, which noted that only a "skeleton transcript" had been filed. 534 P.2d at 1124. Whereas the Moore court had virtually no record to review, we have some 1,700 pages of testimony available to us in the record on appeal. Secondly, the Moore court noted that because the tapes were inaudible and defense counsel was unable to recall events at trial, the record could not be reconstructed. 3 Although Lopez's counsel likewise claims an inability to recall the testimony covered by the missing transcripts, a reconstruction was not only undertaken, but approved by the district court as a "fair representation of the testimony of the witnesses." In fact, the Moore court noted that, in considering whether a new trial should be granted for inability to produce a transcript, a factor to consider is whether a substitute or alternative form of record may be had. 534 P.2d at 1125.
In his amended opening brief, Lopez raises a number of objections to the manner in which the record was reconstructed. His primary objection relates to the trial court's failure to authenticate, as assertedly required by NRS 57.015, the trial notes used to reconstruct the missing testimony. There are simply no cases suggesting that such authentication is necessary when a trial court is certifying a reconstructed record. 4 It is far from clear that NRAP 10(c) mandates the application of NRS 52.015 (authentication and identification) to attempts to reconstruct the trial record. NRAP 10(c) authorizes the preparation of a statement of the evidence which "... statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal."
Lopez suggests that the authors of the contemporaneous trial notes should have been required to take the stand to authenticate their efforts. Although under ordinary circumstances authentication of evidence to which the trial court has no personal knowledge is typical, in the instant case the State was asking the court to...
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