Rudin v. State, 38567.

• Decision Date: 01 April 2004
• Docket Number: No. 38567.,38567.
• Parties: Margaret RUDIN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

86 P.3d 572

120 Nev. 121

Margaret RUDIN, Appellant, v. The STATE of Nevada, Respondent.

No. 38567.

Supreme Court of Nevada.

April 1, 2004.

Marcus D. Cooper, Public Defender, and Craig D. Creel, Deputy Public Defender, Clark County, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.¹

OPINION

AGOSTI, J.

This is an appeal from a judgment of conviction on Count I, unauthorized surreptitious intrusion of privacy by listening device and Count II, murder with use of a deadly weapon. Appellant Margaret Rudin argues that she is entitled to a new trial because: (1) the district court abused its discretion by admitting unreliable expert testimony, (2) the State deprived her of her right to a fair trial by engaging in repeated instances of prosecutorial misconduct, (3) the district court deprived her of her right to a fair trial by engaging in repeated instances of judicial misconduct, and (4) one of her trial counsel was unable to adequately prepare for trial depriving her of her right to a fair trial. We conclude that Rudin's arguments are without merit and, accordingly, we affirm the judgment of conviction.

FACTS

The victim, Ronald (Ron) Rudin, and the appellant, Margaret Rudin (Rudin), were married in September 1987. Ron owned a realty company that was located in a strip mall which he also owned. Rudin and Ron shared a private residence located directly behind the mall.

According to Rudin's sister, Dona Cantrell, Rudin would often complain that Ron was stingy, and that Rudin hoped he would die from his poor health. In 1991, following an altercation between Rudin and Ron's employees, Ron forbade Rudin from entering his realty office before 5:00 p.m. Around this same time, Ron also removed a phone line shared between his office and his residence after his employees claimed that Rudin had been eavesdropping on their conversations. After Ron terminated the shared phone line, Rudin and Cantrell secretly placed hidden listening devices in Ron's office. These devices transmitted a signal to a receiver and recorder that Rudin kept in the residence and allowed her to eavesdrop undetected.

According to Ron's attorney, Patricia Brown, Ron had characterized Rudin, who was a forty-percent beneficiary of his trust, as becoming increasingly "vicious and violent." Accordingly, in 1991, Ron executed a secret directive to the trustees of his estate that they take "extraordinary steps" to investigate the cause of his death if he died by "violent means." The directive also provided that any beneficiary who caused his death was not to receive any assets from his estate. In 1993, Ron increased Rudin's share in his trust to sixty percent.

In 1994, eavesdropping with the aid of her listening devices, Rudin discovered that Ron was involved in a romantic affair with a woman who was also a former employee. During this same time period, Rudin developed a close relationship with Yehuda Sharon. On the evening of December 18, 1994, a tenant at Ron's strip mall stated that she spotted Ron walking towards Rudin's antique store which was also located at the mall. Around 8:10 p.m., a friend of Rudin's testified that she called the residence and spoke to Ron, who told her that Rudin was not there. Rudin claims that she called Ron from her cellular phone between 8:30 and 9:30 p.m. Her cellular phone records, however, contain no record of this call. Rudin claims that after the call she worked late at her antique store until about 1:15 a.m. on December 19, 1994. A friend of Rudin's, Jeanne Nakashima, testified that she was with Rudin at the antique store from approximately 9:15 p.m. until 12:45 a.m.² At 2:20 a.m., Rudin stopped by the office of Carol Kawazoe, who was working late with her husband at her tax preparation office, which was also located at the strip mall. Kawazoe, who had never previously met Rudin, testified that Rudin introduced herself and spent no less than thirty minutes making pleasant conversation with Kawazoe and her husband. According to Rudin, she then returned home and discovered that Ron and his vehicle were gone. Rudin claims that she was not worried because she believed that Ron was probably upset that she had been working so much and had likely decided to go out by himself.

On Monday morning, December 19, 1994, Ron did not appear at the realty office although he ordinarily opened the office on Monday mornings. One of Ron's employees called his residence and received no answer.

On the evening of December 19, 1994, Yehuda Sharon, Rudin's close friend, rented a large passenger van from a rental car agency in Las Vegas. According to Sharon, he had rented the van to pick up a shipment of holy oils from a business in Santa Fe Springs, California. Sharon had directed the rental car agency to remove the back passenger seat from the van. Sharon returned the van on December 23, 1994, with 348 miles logged. Sharon told investigators that he drove to California on December 22, 1994, but that he never reached his planned destination because he decided to turn around midway due to a trucker's comment that it was raining in California.

On December 20, 1994, two of Ron's employees went to a local police station to report Ron's disappearance. The police officer contacted Rudin and explained that she would accept the report made by the two employees unless Rudin was going to make a report. Rudin made a missing persons report early that afternoon.

On December 21, 1994, Rudin hired a day laborer, Augustine Lovato, to clean some stains on the carpet in front of her washer and dryer. According to Lovato, the stains had already been partially cleaned and appeared to be a dark brown substance.

On December 22, 1994, police detectives interviewed Rudin at her antique store and, with Rudin's permission, performed a cursory search of the residence. The search revealed nothing unusual. Rudin's sister, Cantrell, testified that on or about that same day she visited Rudin at Rudin's residence. She noticed that Rudin was reviewing Ron's will and trust documents, which Rudin had retrieved from Ron's realty office the previous Monday, December 19, 1994.

On December 23, 1994, Ron's car was discovered parked in an alley behind the Crazy Horse Too Saloon in Las Vegas. The car was locked, and the police retrieved two sets of keys to the vehicle from the car's interior. The police also noted that dirt had been tracked onto all four floorboards of the car. Upon further investigation, several latent fingerprints were lifted from the vehicle, none of which belonged to Ron or Rudin.

On the evening of December 25, 1994, Rudin hired a locksmith and gained entry into Ron's realty office. According to Cantrell, she and Rudin spent several hours in Ron's office gathering various documents that Rudin said she would need, including numerous financial documents, documents relating to the suicide of Ron's former wife and documents reflecting that a family member of Ron's former wife had years earlier made a death threat against Ron.

On December 29, 1994, Cantrell was working with Rudin at her antique shop when Detective Frank Janise entered the store and asked to speak with Rudin. After speaking with Rudin, Detective Janise approached Cantrell in another part of the store. According to Cantrell, she was speaking with Detective Janise when Rudin approached them and told the detective, "Ron always wears black pants and Ron always wears black boots." Cantrell testified that Rudin later indicated to Cantrell that Rudin had "caught" herself talking about Ron in the past tense and had made a point of going back to speak with the detective.

Cantrell also claimed that, around this same time, she helped Rudin gather several documents from inside an antique desk in Rudin's antique shop. The documents included a notebook with an entry in Rudin's handwriting itemizing Ron's total assets. Additionally, Cantrell stated that she retrieved a certificate from a firearm safety course that Rudin had completed in November 1993, along with a handwritten note stating that "it's you or him; get him first."

On January 12, 1995, Rudin hired Lovato to help her turn the master bedroom into an office. Lovato dismantled the bed, which had been stripped of its bedding, and removed the mattress and bedspring. Lovato claimed that Rudin instructed him to remove all the furniture from the room and cut out the 9-by 12-foot area of carpeting directly underneath the bed. According to Lovato, as he cut the carpet he noticed dark reddish brown stains and a strong odor that he likened to the odor of his dogs after they had been chewing on rabbits. After he began working on the carpet, Lovato claims that Rudin told him that she had gotten good news from her attorneys and, therefore, he should remove all of the carpet because she was going to recarpet the entire master bedroom. While removing the carpet, Lovato noticed several reddish brown splatters on a large glamour shot of Rudin that was hanging over the area where the bed had been.

Lovato testified that when he returned to do some additional work several days later, the master bedroom was newly carpeted, and the glamour shot portrait had been moved to the guest room. The reddish brown splatters were no longer on the photo. Lovato also claimed that at some point he heard a gurgling sound coming from the master bathroom, where he observed a reddish brown blob bubbling out of the bathtub drain. Lovato testified that Rudin returned to the residence with a U-Haul truck, into which he loaded the mattress, box spring and a cardboard wardrobe closet. Later, at Rudin's direction, he unloaded the items in an alley and abandoned them there.

That same day, Rudin asked Lovato to mail a package addressed to her mother. Lovato forgot to mail the...