Wade v. State

• Decision Date: 11 October 1999
• Docket Number: No. 29235.,29235.
• Citation: 986 P.2d 438,115 Nev. 290
• Parties: Timothy Frank WADE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

986 P.2d 438

115 Nev. 290

Timothy Frank WADE, Appellant, v. The STATE of Nevada, Respondent.

No. 29235.

Supreme Court of Nevada.

October 11, 1999.

John B. Routsis and William J. Routsis, II, Reno, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City; Richard A. Gammick, Dist. Atty. and Terrence P. McCarthy, Deputy Dist. Atty., Washoe Co., for respondent.

OPINION

PER CURIAM:

In Wade v. State, 114 Nev. 914, 966 P.2d 160 (1998), this court affirmed appellant Timothy Frank Wade's conviction of one count of conspiracy to sell a controlled substance and one count of sale of twenty-eight (28) grams or more of methamphetamine. Appellant has petitioned this court for rehearing on that decision. Although we deny rehearing, we issue this opinion modifying our prior opinion.

The facts of this case are recounted in detail in the previous issued opinion. In brief, appellant was the target of a federal drug trafficking investigation. Federal Drug Enforcement Agency (DEA) agents used a confidential information, Clay Hodges, to arrange meetings between appellant and DEA agents. Under the direction of the DEA, Hodges taped a number of telephone and face-to-face conversations with appellant. Ultimately, Hodges arranged for an agent to purchase two pounds of methamphetamine for $21,000 from appellant, Nancy Lyn Woods, and Heriberto Islas.

Appellant was subsequently tried and convicted in state court on conspiracy and trafficking charges. At the trial below, Hodges could not be located and did not appear as a witness. The trial court permitted the state to play the tape-recorded conversations between Hodges and appellant for the jury during its case-in-chief.

During oral argument before this court, counsel for appellant focused primarily on two assignments of error: (1) that the district court erroneously admitted the taped conversations; and (2) that the state failed to disclose potentially exculpatory evidence regarding Hodges to the defense. On rehearing, appellant again focuses on these issues and contends that this court overlooked or misapprehended material matters relating to these contentions. See NRAP 40(c).

Admission of the taped conversations

United States v. Tangeman, 30 F.3d 950, 952 (8th Cir.1994), held that an unavailable informant's tape-recorded statements were properly admitted at trial because they were offered to provide context for the defendant's admissions and not to prove the truth of the matters asserted. In our prior opinion, we adopted the approach taken in Tangeman and concluded that the district court did not err in admitting the recordings of conversations between Hodges and appellant. We held that Hodges' tape-recorded statements were not hearsay because the state "did not introduce Hodges' statements on the tapes to prove the truth of the matter asserted, but only for the limited purpose of providing a context for [appellant's] statements." Wade, 114 Nev. at 918, 966 P.2d at 162-63.

On rehearing, appellant complains that this court improperly relied on Tangeman because the jury in that case was specifically instructed that voices on the tape other than the defendant's were to be considered only to place the defendant's statements in context. See Tangeman, 30 F.3d at 952. Because no such special, limiting instruction was given at his trial, appellant now asserts that this court improperly applied the rationale of Tangeman to his case.

In the proceedings below, the state emphasized, on the record, that it had "no problem" with giving the jury a limiting instruction similar to the instruction in Tangeman. Further, the district court specifically indicated, on the record, its willingness to give such an instruction. With the exception of objections to the wording of the instructions respecting appellant's procuring agent and entrapment defenses, however, defense counsel specifically stipulated, on the record, that he had no objection to the instructions provided in this case. Appellant never requested a special, limiting instruction similar to the one given in Tangeman. Under these circumstances, appellant cannot now be heard to complain that the court did not give the instruction.¹ See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (defense counsel's failure to request an instruction precludes appellate consideration of the issue).

Moreover, the cases other than Tangeman cited in our earlier opinion held that recorded statements of an unavailable informant are admissible when used only to provide context for the defendant's statements, even without a limiting instruction. See United States v. Inadi, 475 U.S. 387, 398 n. 11, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); United States v. McKneely, 69 F.3d 1067 (10th Cir.1995). Thus, the district court's failure to give a limiting instruction in the instant case was not reversible error, and this court did not misapprehend any material matter in concluding that Hodges' recorded statements were properly admitted.²

Alleged failure to disclose potentially exculpatory evidence

This court's prior opinion states that "the DEA refused to disclose the [confidential informant] file on Hodges to the State." Wade, 114 Nev. at 919, 966 P.2d at 163. On rehearing, and without any citation to the record, appellant contends that "[t]his `fact' is untrue." Again without citation to the record, appellant further asserts: "It is uncontested that the D.A. possessed the confidential informant file. The D.A. requested the C.I. file and it was turned over to him."

We cannot ascertain conclusively from this record whether the DEA in fact "refused" to disclose information to the state. Therefore, upon further reflection, it appears that our prior opinion could have more aptly stated that "appellant was not provided with all the information he requested in discovery relating to the confidential informant." Nonetheless, we emphasize that appellant has not pointed this court to any specific evidence of record that firmly establishes that the statement in our prior opinion is "untrue." Rather, our independent review of the record, the briefs, the oral argument tape, and the points and authorities submitted by the parties on rehearing discloses strong reasons to infer that the DEA failed or "refused to disclose" at least some information to the state.

For example, in discussing evidence appellant requested in discovery concerning the DEA's confidential informant file, the state represented to this court in its answering brief on appeal:

[I]t is clear that the prosecutor never had the evidence. If he had it, defense counsel could have copied it. If it existed at all, the DEA had it. The DEA is not subordinate to the State and was not acting on behalf of the State of Nevada when it prepared the CI file.

In addition, at oral argument before this court, counsel for the state was asked if anything was omitted from the file provided to defense counsel. Counsel responded:

Oh I'm sure there was. The DEA did not furnish us with everything they had. They furnished us with ... the file labeled "Tim Wade." Certainly, the DEA has access to other information. They had information in other files under other names-phone records and the like.³

Additionally, in its opposition to the instant petition for rehearing, the state argues: "[Appellant] has not yet identified any exculpatory information which was possessed by the District Attorney but withheld from the defense. If we had it or could get it, we would surrender it."

Although the above-quoted remarks of counsel for the state strongly suggest that the DEA may well have refused to disclose information to the state, we acknowledge that this is an unresolved factual issue. However, "[t]his court is not a fact-finding tribunal; that function is best performed by the district court." See Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983). It is the responsibility of counsel for the parties to create an adequate appellate record by assuring that appropriate objections and contested factual matters are resolved in the first instance in the district court.

Although it may not be entirely clear whether the DEA "refused" to disclose all of Hodges' C.I. file to the state, it is abundantly clear from the above-quoted remarks and argument that the state does indeed contest whether it possessed all of the C.I. file. We therefore reject as wholly unfounded appellant's claim that "[i]t is uncontested that the D.A. possessed the confidential informant file. The D.A. requested the C.I. file and it was turned over to him." The question is quite emphatically contested by the state.

Appellant next contends on rehearing that this court's opinion inaccurately states that appellant's counsel "conceded that he did not believe that the State had any knowledge of the DEA's C.I. file on Hodges." According to appellant, this statement was correct in February 1996, prior to trial, but not in July 1996, at the time of trial. Even assuming, however, that this court misapprehended counsel's remarks at oral argument in this regard, we fail to perceive a material misapprehension warranting rehearing.

Next, and again without reference to any specific statement from the oral argument before this court, appellant asserts on rehearing: "It was at oral argument that defense counsel was first made aware the State conceded error by admitting the C.I. file was not completely turned over." We have been unable to discover any statements from the oral argument before this court which would permit us to conclude that the state has "conceded error." In any event, the unsupported allegation does not warrant rehearing.

Appellant has failed to demonstrate that our prior opinion misstated, overlooked, or misapprehended any material facts or law relating to the discovery issues raised on appeal. See NRAP 40(c). Appellant argued on appeal that the state's failure to provide the evidence he requested during discovery required reversal of...