Patterson v. State
| Citation | 907 P.2d 984,111 Nev. 1525 |
| Decision Date | 19 December 1995 |
| Docket Number | No. 23598,23598 |
| Parties | Michael Roy PATTERSON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Appellant Michael Roy Patterson was convicted of three counts of lewdness with a minor under the age of fourteen years. The court sentenced Patterson to a total of eight years in Nevada State Prison. We affirm the convictions, concluding that improperly admitted prior consistent statements were harmless.
At trial, the twelve-year-old victim testified that in late November 1990, she went to her friend's home to "drink, smoke, and watch porno movies," as generally permitted by her friend's father, appellant Michael Patterson. On this first occasion, the victim became heavily intoxicated and passed out behind a couch with a blanket over her. She testified that when she awoke, the blanket was off, her pants and panties had been removed, and Patterson was lying on top of her, trying to have intercourse. She successfully resisted his efforts by squirming away and rolling over.
The victim testified that a few weeks later, she again became heavily intoxicated at Patterson's house and fell asleep. She awoke to find Patterson with his hands inside her shirt, fondling her breasts. The victim rolled over to avoid further touching. She claims that on both these occasions, she was so affected by the alcohol that she was unsure the sexual activities had occurred.
On a third occasion, Patterson took his daughter and the victim to the store to purchase alcohol for them. Both girls chose a drink, but the victim testified that she became ill that evening and did not drink. Instead, she went to Patterson's daughter's bedroom and fell asleep. Continuing with her testimony, the victim stated that later that night, she awoke to find Patterson rubbing her vaginal area through her jeans. She testified that he also attempted to unbutton her pants and place his hand inside, but when she rolled over, Patterson left the room. Because the victim was sober during this third incident, she maintained that her hazy recollection of the two prior molestations was confirmed.
The victim told Patterson's daughter and then a second friend of the incidents. This second friend told her mother, Ms. Zamarippa, who invited Patterson to meet with the victim in her presence in order to discuss the allegations. Zamarippa testified that Patterson denied the touchings when accused, but later, outside the presence of the victim, admitted that "when he drinks that sometimes he blacks out so there was maybe a possibility he could have done it." This meeting between the threesome resulted in the victim arranging to meet with Patterson's psychologist to discuss the allegations.
The police were not advised of Patterson's behavior until May 1991, when the victim called the sheriff's office to report the incidents. On the same day, an investigator from that office interviewed the victim, who noted all of the details she could remember concerning the three incidents.
During Patterson's three-day trial, the victim testified concerning the incidents. Significantly, the prosecutor questioned the victim as follows:
Q. Now, before Mr. Patterson began touching you, what were your feelings towards him?
A. We were friends. I mean he was my best friend's Dad.
Q. Did you ever get angry with him for any reason?
A. No.
Q. Did you ever fight with him?
A. No.
Mrs. Zamarippa, the psychologist who had spoken to the victim, and the sheriff's investigator, each testifying for the State, explained that the victim had previously told them that Patterson had sexually touched her on three occasions. Zamarippa and the psychologist only briefly stated what the victim had told them regarding the alleged incidents. However, during the investigator's direct examination, he presented a summary of each of the three incidents as told to him in his initial interview with the victim. On cross-examination, defense counsel questioned the investigator about the victim's statements to him about drinking heavily the night prior to the second incident. The apparent purpose of this questioning was to create doubt as to the victim's ability to recall the events surrounding that evening's incident. On redirect examination, the investigator was asked to give a detailed account of the second incident as told to him in the same initial interview. Defense counsel interposed no objection to the admission of these prior consistent statements.
Throughout the trial, defense counsel sought to discredit the child-victim by referring to her dysfunctional home, her licentious habits, and her inability to recall specific dates or times of the incidents. 1
In Patterson's defense, Mrs. Jewett, a neighbor, testified about the victim's reputation for untruthfulness. In so doing, defense counsel asked the following:
Q. ... are you aware of [the victim's] reputation?
A. Yes, I am.
Q. What is that reputation?
The State raised an objection to the question which the judge sustained based upon NRS 50.085(2). 2 Defense counsel continued his direct questioning as follows:
Q. Mrs. Jewett, have you ever been present when [the victim] has been untruthful in any specific instance?
A. Yes, I have.
Q. Can you relate that instance to use when she was untruthful?
Again the State objected, and the court sustained the objection based upon NRS 50.085(3). 3 Defense counsel unsuccessfully attempted to convince the court that he was dealing with a specific instance which was already testified to in court.
The jury convicted Patterson on three counts of lewdness with a minor under the age of fourteen years. On appeal, Patterson primarily contends that the district court committed prejudicial error in admitting the prior consistent statements. He also challenges the district court's ruling against the admissibility of reputation evidence concerning the victim.
Generally, the failure to object at trial precludes review by this court; however, this court may address plain error sua sponte. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). "An error is 'plain' if 'the error is so unmistakable that it reveals itself by a casual inspection of the record.' " Torres v. Farmers Insurance Exchange, 106 Nev. 340, 345 n. 2, 793 P.2d 839, 842 (1990) (quoting Williams v. Zellhoefer, 89 Nev. 579, 580, 517 P.2d 789, 789 (1973)). We choose to address only the prior consistent statements made by the investigator because the prior consistent statements made by Ms. Zamarippa and the psychologist are sufficiently isolated and brief as to not be "unmistakable" error in a casual reading of the record; in any event, such statements are clearly harmless.
The State attempts to justify the investigator's testimony recounting the three incidents told to him by the victim on grounds that it merely ensured that the subject of the investigator's interview with the victim dealt with the alleged incidents. This is clearly untenable. The investigator's testimony had little purpose other than to bolster the victim's testimony.
In seeking to justify the investigator's comments on redirect examination, the State analogizes the initial interview between the investigator and the victim to a written or recorded statement. The State claims that defense counsel's cross-examination of the victim and the investigator, in effect, introduced only part of this interview. NRS 47.120 provides:
1. When any part of a writing or recorded statement is introduced by a party, he may be required at that time to introduce any other part of it which is relevant to the part introduced, and any party may introduce any other relevant parts.
2. This section does not limit cross-examination.
The State thus argues that NRS 47.120 authorized the introduction of the entire interview in order to clarify any inconsistencies attributable to cross-examination. This reasoning is flawed. NRS 47.120 does not apply even by analogy because the interview between the investigator and the victim is not a writing or recorded statement within the meaning of the statute. We find instructive the advisory committee's note to the parallel federal provision, Federal Rule of Evidence 106, 4 which states, "[f]or practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations." This view conforms to this court's conclusion in Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984). In Crew, defense counsel read from a statement given by the defendant's cellmate Donald Dowell, which Dowell prepared in exchange for a plea bargain. Crew, 100 Nev. at 44, 675 P.2d at 989. This court determined that "[s]ince defense counsel read from the statement to attack Dowell's testimony, the prosecution was entitled to introduce the statement into evidence to clarify the inconsistencies pointed out by counsel." Id. at 44, 675 P.2d at 990. Thus, we conclude that NRS 47.120 and the analysis in Crew are inapplicable to the instant facts. See Smith v. State, 100 Nev. 471, 473 n. 2, 686 P.2d 247, 248-49 n. 2 (1984).
NRS 51.035 provides in relevant part as follows:
"Hearsay" means a statement offered in evidence to prove the truth of the matter asserted unless:
....
2. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
....
(b) Consistent with his [in this case, the victim's] testimony and offered to rebut an express or implied charge against him [the victim's] of recent fabrication or improper influence or motive. 5
The case of United States v. Quinto, 582 F.2d 224 (2d Cir.1978), provides the following guidance:
It is clear ... that to avoid having the prior consistent statement found irrelevant under Fed.R.Evid....
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