Quisano v. State, No. 66816.

Docket NºNo. 66816.
Citation368 P.3d 415
Case DateFebruary 18, 2016

368 P.3d 415

Jonathan QUISANO, Appellant,
v.
The STATE of Nevada, Respondent.

No. 66816.

Court of Appeals of Nevada.

Feb. 18, 2016.


Philip J. Kohn, Public Defender, and Howard Brooks and Nancy Lemcke, Deputy Public Defenders, Clark County, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

Before GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

By the Court, SILVER, J.:

Appellant Jonathan Quisano pleaded guilty, pursuant to Alford, to voluntary manslaughter and child abuse, neglect, or endangerment with substantial bodily harm. During the pendency of this case, the Clark County District Attorney's office maintained a discovery policy that provided for disclosure of all discovery to the defense. After entry of Quisano's guilty plea, but before sentencing, the State obtained an affidavit relevant to Quisano's case but did not disclose the affidavit to Quisano. The State used the affidavit at Quisano's sentencing hearing to impeach Christina Rodrigues—the victim's mother and Quisano's longtime girlfriend—after she provided a favorable oral statement to the court on Quisano's behalf, under the guise of a victim-impact statement. During the sentencing hearing, the district court permitted the Las Vegas Review–Journal to provide electronic coverage of the proceeding, although the media outlet did not timely file a request for permission and the district court did not enter a corresponding order or make the requisite particularized findings on the record. In accordance with the guilty plea agreement, the district court sentenced Quisano to serve a prison term of 4–10 years for voluntary manslaughter and a consecutive prison term of 6–19 years for child abuse, neglect, or endangerment with substantial bodily harm.

First, we consider whether the State failed to disclose the affidavit in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We conclude Quisano's Brady argument fails because the affidavit was not favorable to him.

Second, we evaluate whether the failure to disclose the affidavit, notwithstanding the State's discovery policy, warrants reversal. As a threshold matter, we conclude the State's discovery policy constituted an open-file policy. In McKee v. State, 112 Nev. 642, 647–48, 917 P.2d 940, 943–44 (1996), the Nevada Supreme Court held that where a prosecutor maintains an open-file policy, the prosecutor is under a duty to disclose all evidence in the State's possession, regardless of whether the evidence is inculpatory or exculpatory. We conclude that the duty set forth in McKee extends through entry of the judgment of conviction and that the prosecutor engaged in misconduct by failing to disclose the affidavit in accordance with the State's open-file policy. Nevertheless, the misconduct did not substantially affect the district court's sentencing determination or prejudice Quisano and, therefore, does not warrant a new sentencing hearing.

Third, we assess whether the district court erred by permitting the Las Vegas Review–Journal to record Quisano's sentencing hearing. Although we hold that the district court did not err by granting the media outlet's untimely request, we conclude the district court did err in not making particularized findings on the record regarding all of the factors set forth in SCR 230(2) or issuing a written order granting the media outlet's request. But those errors did not contribute to the district court's sentencing determination. Accordingly, we conclude Quisano is not entitled to relief on this basis.

Based on the foregoing, we affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

On June 6, 2013, Khayden Quisano, the three-year-old child of appellant Jonathan Quisano and Christina Rodrigues (Quisano's longtime girlfriend), died as a result of injuries associated with blunt-force trauma to the

368 P.3d 419

head. At the time Khayden sustained his injuries, he was under the sole supervision of Quisano, who was charged with murder shortly after Khayden succumbed to his injuries. Quisano maintains that Khayden was injured after falling off a couch and hitting his head on a tile floor. However, Quisano provided conflicting accounts regarding the circumstances surrounding Khayden's injuries, and the medical experts who testified at Quisano's preliminary hearing disagreed with each other as to whether Khayden's injuries were consistent with a fall from a couch.

Prior to the commencement of trial, Quisano and the State entered into a guilty plea agreement under which Quisano agreed to plead guilty, pursuant to Alford, to one count of voluntary manslaughter and one count of child abuse, neglect, or endangerment with substantial bodily harm. Under the guilty plea agreement, the State retained the right to argue but agreed it would not argue for a minimum sentence exceeding ten years. Quisano pleaded guilty in accordance with the agreement on June 25, 2014.

At Quisano's sentencing, a reporter from the Las Vegas Review–Journal was present in the courtroom with a camera. Because the media outlet did not file a timely request for permission to provide electronic coverage of the proceeding, Quisano's counsel moved to exclude it from recording the hearing or photographing the participants. In evaluating Quisano's motion, the district court reasoned that permitting the outlet to provide electronic coverage of the proceeding would serve the public interest by facilitating public oversight of the judicial process. The district court noted it generally grants all requests to provide electronic coverage and would have granted a request from the outlet had it filed one. Observing that other media outlets filed requests to provide electronic coverage of Quisano's case, the district court asked Quisano how he would be prejudiced if the Las Vegas Review–Journal, as opposed to the other media outlets, electronically covered the sentencing hearing. Counsel for Quisano responded, "[t]here isn't actual prejudice other than the fact that they shouldn't benefit from not following the rules any more than we should." Based on the foregoing, the district court orally denied Quisano's request to exclude the reporter from recording the proceeding.

After the district court ruled on Quisano's objection, the State argued, consistent with the guilty plea agreement, that the district court should sentence Quisano to consecutive sentences with a minimum term totaling ten years but did not make a specific argument with regard to the maximum term. In support of its argument, the State asserted that Quisano provided inconsistent accounts of how Khayden sustained his injuries and that the injuries were inconsistent with a fall from a couch. The State also informed the district court that Quisano had a documented history of child abuse and neglect2 and argued that Quisano was likely to reoffend.

Quisano argued for probation or a short prison term. In support of that argument, Quisano asserted that Khayden's injuries were consistent with a fall from a couch, and that even if he caused Khayden's injuries, his acts were attributable to "a single momentary lapse or loss of patience." After concluding his argument, Quisano requested that the district court permit the victim's mother, Rodrigues, to address the court. Rodrigues provided a victim-impact statement that consisted of a few sentences.3 Specifically, Rodrigues

368 P.3d 420

testified that "[Quisano] was a kind, loving, caring, responsible father who showed love and affection to his children every day" and that "[s]ending him to prison will harm more than it will help."

In comparison, the State responded by extensively cross-examining Rodrigues using information from an affidavit signed by an employee of the Clark County Department of Family Services (DFS), and dated September 4, 2014.4 In the affidavit, the DFS employee averred as follows:

[O]n June 9, 2014, I requested case closure of the dependency case as to the parents because the natural mother, Christina Rodrigues, articulated protective capacity. Christina Rodriguez [sic] had come to recognize that [Khayden] died as a result of physical abuse by the natural father, Jonathan Quisano. Christina Rodrigues further expressed that Jonathan Quisano should be punished for his abuse of [Khayden] and that she believed Jonathan Quisano should go to prison.5

The State began by inquiring, over objections from Quisano, whether Rodrigues believed Quisano should go to prison, and then later, whether she believed that Quisano "committed abuse against [her] son that died, Khayden." In response to Quisano's objection, the State indicated that it was seeking victim-impact testimony, and the court agreed, allowing the questioning. Rodrigues answered that she did not believe Quisano abused Khayden and that she hoped that he would receive probation.

There were several more objections from Quisano prompting the court to attempt to limit the inquiries by the prosecutor, but the court relented when the State asked for "just a little leeway." The State then asked whether Rodrigues remembered speaking with a judge in family court and whether she stated that...

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