Mclellan v. State
| Decision Date | 01 May 2008 |
| Docket Number | No. 47790.,47790. |
| Citation | 182 P.3d 106 |
| Parties | Curt MCLELLAN, a/k/a Curt Allen Mclellan, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Curt Mclellan was convicted of 22 counts of sexual assault of a minor under 14 years of age and 20 counts of lewdness with a child under 14 years of age. He now appeals those convictions on the basis of the district court's admission into evidence of a wiretapped phone call placed by California police to Mclellan in Nevada. Mclellan argues that such evidence would be considered unlawful and inadmissible if obtained by wiretap in Nevada because he did not consent to the interception. We hold that Nevada law allows the admission of evidence legally obtained in the jurisdiction seizing the evidence.
Moreover, Mclellan contends that the district court should not have admitted evidence regarding uncharged acts occurring in California because they constituted evidence of prior bad acts, rather than evidence of the crimes for which he was charged. We conclude that the district court did not abuse its discretion in admitting the evidence, but we take this opportunity to clarify the type of limiting instructions district courts should administer regarding the limited admission and use of prior bad act evidence and hold that a defendant may waive his right to a limiting instruction at the time the evidence is introduced at trial.1
Mclellan first met nine-year-old J.F. when he coached her soccer team. Mclellan dated, and eventually married, J.F.'s mother, Hope, when J.F. was in sixth grade. Hope worked long hours and often traveled as part of her employment. While Hope was away, Mclellan was responsible for J.F.
The first incident of abuse occurred when Mclellan took J.F. to his job site after she expressed an interest in his work. Mclellan told J.F. he wanted to be her "special dad" and subsequently made her agree to four commitments, which he recorded in a notebook. These commitments included "talking," "holding hands," "physical intimacy," and "trust." After the first incident in California, there were several incidents between Mclellan and J.F. in Clark County, Nevada, each progressive in their intimacy, and, ultimately, their occurrence over the next four years. Mclellan repeatedly coerced J.F. into engaging in sexual conduct under the pretense that he could be her "special dad."
Hope separated from Mclellan in J.F.'s eighth-grade year, sending J.F. to live with her aunt and uncle in Mission Viejo, California. In California, J.F. began cutting herself and attempted suicide several times. J.F. then decided she was going to "let it out" because she was very upset. She called Mclellan to confront him, and he repeatedly told her not to tell anyone. The same night J.F. called Mclellan, J.F.'s uncle awoke to find her hysterical and bleeding from several large, self-inflicted cuts. J.F.'s aunt then called J.F.'s counselor, and J.F. eventually admitted that Mclellan sexually abused her.
J.F.'s counselor told the family that she had an obligation to report sexual abuse and that the family would be contacted by the Orange County Sheriff's Department. Thereafter, an investigator with the Orange County Sherriff's Department arranged a phone call between J.F. and Mclellan to be conducted from J.F.'s aunt and uncle's house in California to Mclellan in Nevada. To comply with California's wiretap law, J.F. and her guardians consented to police taping the phone call. During the phone call, J.F. attempted to solicit a confession from Mclellan. The taped phone call was played and subsequently admitted at trial without objection. Furthermore, Mclellan did not object at trial to testimony regarding the first incident of abuse in California or the district court's failure to issue a limiting instruction immediately before admission of the prior bad act evidence. However, the district court gave a limiting instruction regarding the bad act evidence at the conclusion of trial.
Admission of intercepted phone call
We must now determine whether evidence lawfully seized by California law enforcement under California law is admissible in a Nevada court, when such an interception would be unlawful in Nevada and therefore inadmissible. Mclellan argues that the tape of the intercepted phone call was inadmissible because NRS 200.620 dictates that all parties to a communication must consent to the interception of wire or oral communication for it to be lawful, and therefore admissible at trial.
We review a district court's decision to admit or exclude evidence for an abuse of discretion.2 However, "failure to object precludes appellate review of the matter unless it rises to the level of plain error."3 Because Mclellan did not object to the admission of the tape at trial, plain error review is appropriate. In conducting plain error review, "`we must examine whether there was "error," whether the error was "plain" or clear, and whether the error affected the defendant's substantial rights.'"4
Under Nevada law, there are two methods by which a communication may be lawfully intercepted, and thus, admissible. First, both parties to the communication can consent to the interception.5 Second, one party to the communication can consent to the interception if an emergency situation exists such that it is impractical to obtain a court order and judicial ratification is sought within 72 hours.6 California law does not require the consent of both parties to the communication to constitute a lawful interception, but rather requires consent by only one party.7
Admission of lawfully intercepted communications in judicial or administrative proceedings is governed by NRS 48.077. NRS 48.077 allows the admission of "the contents of any communication lawfully intercepted under the laws of the United States or of another jurisdiction before, on or after July 1, 1981, if the interception took place within that jurisdiction ... in any action or proceeding in a court ... of this State." Thus, if the interception was lawfully made in California, it is admissible in Nevada under NRS 48.077, even when the manner of interception would violate Nevada law had the interception taken place in Nevada. California law only requires one-party consent to the communication to constitute a lawful interception.8 Consequently, the interception here was lawful at its inception in California because J.F. and her guardians consented, making it admissible in a Nevada court under NRS 48.077.
Other states have allowed the admission of legally taped conversations from another jurisdiction, even when such taped conversations would be inadmissible if obtained in their own jurisdiction. We are thus persuaded by the Supreme Court of Washington's opinion in State v. Fowler,9 a case factually similar to the case at bar. In Fowler, the court concluded that telephone calls lawfully recorded in Oregon, with the aid of Oregon law enforcement and the consent of one party as required in Oregon, were admissible in Washington — a two-party consent state.10 In its reasoning, the court relied upon the fact that Oregon law enforcement did not act with the knowledge of, or at the request of, Washington law enforcement, or with the intent to use the recordings in Washington.11 Here, California law enforcement did not act as an agent of Nevada law enforcement or with the intent to use the recordings in Nevada. Indeed, Nevada law enforcement did not find out about the recording until much later. In both cases, the sole purpose of the initial recording was for the investigation of sexual abuse in the state where the recording was made.
The district court complied with NRS 48.077 in admitting the taped phone call because the phone call was recorded lawfully in California by California law enforcement who were not acting as agents of Nevada law enforcement. Therefore, we conclude that the district court did not err in admitting the phone calls into evidence.
Limiting instruction regarding the California incident
We now turn to the question of whether the district court erred in admitting evidence of the California incident and failing to give a limiting instruction upon the admission of the evidence. We take this opportunity to clarify our opinion in Tavares v. State regarding the absence of a limiting instruction on the limited use of prior bad act evidence and the district court's duty to give such an instruction when the defense does not want an instruction.12 In particular, we clarify that the defendant may waive the giving of a limiting instruction when the bad act evidence is admitted at trial.
Mclellan argues that testimony about the incident at his place of employment in California was improperly admitted as evidence of prior bad acts and that, if the evidence was admissible, it necessitated a limiting instruction because of its prejudicial nature. The State contends that the testimony, even if evidence of prior bad acts, was properly admitted under NRS 48.045(2) to prove motive or plan and that the trial court ruled the testimony admissible on these grounds.
We review a district court's decision to admit or exclude evidence for an abuse of discretion.13 However, "failure to object precludes appellate review of the matter unless it rises to the level of plain error."14 Because Mclellan did not object to the admission of testimony regarding the California incident or to the district court's failure to provide a limiting instruction upon admission, plain error review is appropriate. In conducting plain error review, "`we must examine whether...
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