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Evidence in Nevada: A Survey of Current Nevada Supreme Court Decisions

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EVIDENCE IN NEVADA:
A SURVEY OF CURRENT NEVADA SUPREME COURT DECISIONS
BY GREGORY R. SHANNON
Several years ago, at a CLE seminar I attended, one of the presenters shared these words of wisdom: “I don’t know the law.” He wasn’t confessing his lack of preparation for the conference. He was making the point that, as attorneys, we can tell our clients what we think the law is, and how we think a court will rule, but it is the court that makes the final decision. To know the law, then, it is helpful to study the decisions of the courts. The theme for this month’s issue of Nevada Lawyer is evidence, a broad subject touching on countless practice areas – all of them, in fact. In this article we will briefly review the most recent decisions from the Nevada Supreme Court, addressing current evidentiary issues.
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The Cromer decision involves the introduction into evidence of a judgment of conviction for a criminal offense to prove civil liability. Aaron Cromer, a passenger in William Wilson’s car, was seriously injured when Wilson lost control, causing the car to leave the road and roll several times. Wilson was later convicted of felony driving under the influence and felony reckless driving. Cromer and his wife brought suit against Wilson in the Eighth Judicial District. As trial approached, the Cromers moved for summary judgment on the issue of liability, citing NRS 41.133, which states that a judgment of conviction is conclusive evidence of all facts necessary to establish civil liability. The District Court, however, denied the motion, reasoning that under NRS 41.141, Wilson was entitled to present a defense of comparative negligence. The jury returned a verdict in the Cromers’ favor of $4,530,785.50. Despite this outcome, the Cromers appealed, arguing that NRS 41.133 should have precluded Wilson’s comparative negligence argument. The Nevada Supreme Court was faced with the task of harmonizing NRS 41.133 and NRS 41.141,
Different Procedure, Same Outcome Cromer v. Wilson, 225 P. 3d 788 (2010)
two statutes that, read together, might be thought of as the unstoppable force and the immovable object. In an earlier case, Langon v. Matamoros, 121 Nev. 142, 143, 111 P .3d 1077, 1077 (2005), the court had recognized that a literal reading of 41.133 would negate the comparative negligence scheme of 41.141. Conversely, the court in Cromer recognized that 41.141: “…could theoretically insulate a defendant from liability, if the jury determined that the plaintiff’s comparative negligence exceeded that of the defendant. This would thwart the legislators’ purpose in passing NRS 41.133, which was intended to expand the rights of victims in litigation against offenders.” (225 P .3d at p. 791). The court resolved the conflict between these two evidentiary statutes by holding that 41.133 conclusively establishes liability, but evidence of comparative negligence can still be introduced to mitigate damages. The court agreed with the Cromers that summary judgment was appropriate on the question of liability, since NRS 41.133 established Wilson’s liability as a matter of law. The victory was Pyrrhic, however, since, in the court’s view, the admissibility of the mitigation evidence on the issue of damages rendered the outcome unchanged. Despite concurring with the Cromers’ position, the Nevada Supreme Court affirmed the District Court’s judgment.
revoked Taylor-Caldwell’s license and a state ALJ affirmed. However, on judicial review, the District Court reversed, interpreting 484.386(1) to require both breath tests to be at least .08 for revocation. The Supreme Court reversed the District Court, finding no such requirement in the text of the statute, and focusing particularly on the statute’s reference to the singular words “result” and “test”: There is nothing in the statute to indicate that “the result of a test” means two samples. A single test result over the legal limit is all the statute requires. Given the statutory requirement of two consecutive breath tests, the court’s decision may seem counterintuitive, but the court found that the purpose behind the two tests was to ensure proper equipment calibration, not to impose a further restriction on the DMV’s ability to revoke a driver’s license. As long as both tests are within .02 of each other and one of the tests gives a result of .08 or greater, the DMV is required to revoke a driver’s license.
This decision is an illustration of the uncertainties and vicissitudes of modern technology. NRS 484.3851 requires the immediate revocation of a driver’s license if a driver’s blood alcohol content is .08 or higher. NRS 484.386(1) sets out a number of requirements that must be met before the evidentiary breath test can be used for such a revocation, including the requirement that two consecutive breath samples must be taken, which may diverge by no more than .02 percent blood alcohol content. Taylor-Caldwell was stopped by the Nevada Highway Patrol on suspicion of driving under the influence. She submitted to two consecutive breath tests pursuant to 484.386(1). The first yielded a result of .073, the second a result of .083. The DMV
Different BAC, Same Outcome State, DMV v. Taylor-Caldwell, 126 Nev. Adv. Op. No. 14 (May 6, 2010)
Jesse “Ray” Thomas passed away from a heart attack caused by advanced-stage coronary artery disease. Two weeks before his death, he visited the emergency room complaining of chest pain and other symptoms, pursuant to which, under the relevant standard of care, he should have been admitted for observation and testing. Instead, he left the emergency room without any testing or treatment. Hospital records indicated that he left against medical advice, but his wife testified that he had been declared “fit as a fiddle” and was told he could safely leave. The treating emergency room physician, Dr. Hardwick, was unable to recall seeing Thomas but, over objection, was allowed to testify as to his pattern of conduct or habit in advising patients presenting symptoms similar to Thomas’s to be admitted for further testing. The jury returned a defense verdict for Dr. Hardwick and the hospital. The Supreme Court rejected appellant’s challenge to the introduction of the habit evidence, citing NRS 48.059(1), which specifically authorizes the introduction of evidence of a person’s habit or practice where the evidence is relevant to prove that the conduct of the person on a particular occasion was consistent with the person’s general habit or practice. However, the court noted its reluctance to introduce habit evidence given the possibility that such evidence might be used to prove a party’s propensity to act in conformity with its general character, which is inadmissible under NRS 48.045.
continued on page 8
Same Habit, Same Outcome Thomas v. Hardwick, 126 Nev. Adv. Op. No. 16 (May 27, 2010)
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EVIDENCE IN NEVADA
continued from page 7
Failure to Address Issue in Brief, Unfortunate Outcome Polk v. State, 126 Nev. Adv. Op. No. 19 (June 3, 2010)
The Polk decision is a cautionary tale for attorneys in appellate practice. In 1999, defendant Polk was indicted for a shooting and killing. A forensics analyst examined three gunshot residue samples taken from a vehicle believed to be involved in the shooting, as well as two control samples. Because the prosecutor did not receive the test results until after trial had commenced, the samples were not introduced into evidence and the analyst did not testify. Polk was nevertheless convicted. Several years later, in 2007, the Ninth Circuit reversed the conviction. Polk was tried again in 2008. By that time, the forensics analyst had retired and was no longer available for trial. Another analyst re-tested some, but not all, of the samples and testified to her findings at trial. Over defense objections, she also testified regarding one of the control samples that had been tested by the previous technician. She testified that the earlier analyst had found no gunshot residue on the control sample. The evidentiary issue thus raised is whether it was permissible for the second analyst to testify to the forensics analysis performed by the first analyst. On appeal, Polk argued that the second analyst’s testimony regarding the first analyst’s findings violated the confrontation clause, citing Crawford v. Washington, 541 U.S. 36 (2004) and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009). The state responded in its answering brief by referencing NRS 50.285, which authorizes expert witnesses to offer opinions based on evidence that may not otherwise be admissible. The state did not address Polk’s constitutional arguments or make a claim of harmless error. In fact, these arguments were not raised until oral argument. In his
reply brief, Polk argued that by failing to address the constitutional issue, the state confessed error. The Nevada Supreme Court had no difficulty finding that the Sixth Amendment right to confront witnesses trumped NRS 50.285. The closer and potentially more instructive question – whether the error was harmless – went unanswered. Instead, the court took the opportunity to express its displeasure with the state for its failure to address the constitutional issue raised by Polk. “This is a significant constitutional issue that compels a response.” As a sanction, the court granted Polk’s motion to exclude the state’s oral argument on the constitutional issues and harmless error. Accordingly, since the state was deemed to have failed to respond to Polk’s constitutional claims, the court reversed the conviction and remanded for a new trial, which, in this case, will be the third2.
No Oath, Same Outcome Buckwalter v. Dist. Ct., 126 Nev. Adv. Op. No. 21 (June 24, 2010)
In Buckwalter, the Nevada Supreme Court has addressed the issue of the sufficiency of a declaration rather than an affidavit in actions for medical malpractice. Defendants moved to dismiss pursuant to NRS 41A.071 for plaintiffs’ failure to attach to their complaint an affidavit submitted by a medical expert supporting the allegations contained in the complaint. The plaintiffs had attached a document, but it was labeled a declaration rather than an affidavit and was unsworn. Plaintiffs contended that the declaration complied with the requirements of NRS 53.0453 and was therefore sufficient to support the malpractice complaint. The Nevada Supreme Court agreed with the plaintiffs, holding that a declaration under 53.045 fulfilled the affidavit requirement of 41A.071. This case is notable not for the decision itself, but for the lengths to which the court went in order to decide the issue. The defendants had previously filed a motion to dismiss in District Court that the District Court dismissed for the reasons relied upon by the Nevada Supreme Court. The defendants then petitioned the Supreme Court for a writ of mandamus or prohibition to compel the District Court to dismiss. Ordinarily, the Supreme Court will not entertain a petition for a writ challenging the denial of a motion to dismiss. It did so on this occasion because it recognized the case as involving “an unsettled and potentially significant, recurring question of law.” The court went on to agree with the District Court, rejecting, as noted above, the defendants’ position and denying the petition. The court could simply have denied the petition ab initio. One must therefore assume that the court has decided to send a message with this decision, the message evidently being: do not bother district courts with challenges to medical expert declarations in lieu of affidavits.
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Does a pattern emerge when these cases are viewed together? Are there any general lessons we may learn? Why, yes. Almost all of the evidentiary issues in these cases arise from a collision of parties’ interests at the intersection of conflicting laws. They involve, not simply the court’s interpretation of statutory language, but a relative weighing and harmonizing of conflicting laws. In evaluating the strengths and weaknesses of a case, an attorney will be better able to advise clients and to advocate on their behalf by understanding this clash of authority and keeping the court’s weighing process in mind.
Conclusion
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GREGORY R. SHANNON is a former chief deputy DA for the Washoe County District Attorney’s Office and current member of the Editorial Board of the State Bar of Nevada. He may be reached at gshannon@charter.net.
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1 NRS Chapter 484 has been revised and split into new chapters. In deciding DMV v. Taylor-Caldwell, the Supreme Court used the old numbering system, which is used herein as well. The substance of the statutes discussed in this case is unchanged. 2 The harmless error question has been recently answered in Vega v. State, 126 Nev. Adv. Op. #33 (August 12, 2010). In Vega, a doctor testified to the observations of a nurse who was unavailable as a witness. The Supreme Court found the confrontation clause error to be harmless as it was duplicative of other properly introduced evidence. Vega is distinguishable from Polk, however, in two ways: first, Vega did not object to the testimony at trial, thereby failing to preserve the issue on appeal; second, the doctor offered her own, admissible, opinions independent of those of the nurse. 3 “Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration of its existence or truth signed by the declarant under penalty of perjury, and dated, in substantially the following form: …” [form signature block omitted]
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