explaining that evidence is only admissible under NRS 48.035(3) if "an actual witness . . . cannot describe the crime charged without referring to another 2The codefendant argued that the timing of the searches corresponded with hearing that he and appellant were publicly named as suspects in the SUPREME COURT murder and therefore was not indicative of either party's guilt. OF NEVADA 2 (0) 1947A 040
How later courts described this case
- explaining that evidence is only admissible under NRS 48.035(3) if "an actual witness . . . cannot describe the crime charged without referring to another 2The codefendant argued that the timing of the searches corresponded with hearing that he and appellant were publicly named as suspects in the SUPREME COURT murder and therefore was not indicative of either party's guilt. OF NEVADA 2 (0) 1947A 040
- holding that a district court's error in denying appellant's challenges for cause did not result in a due process violation requiring reversal because these prospective jurors were not empaneled and appellant failed to "establish that any of the jurors who [ultimately] sat in judgment against him were not fair or impartial!
- stating that “[hjearsay evidence is traditionally excluded ‘because it is not subject to the usual tests to show the credibility of the declarant. Lacking is cross-examination to ascertain a declarant’s perception, memory and truthfulness.’ ” (quoting Deutscher v. State, 95 Nev. 669, 684, 601 P.2d 407, 417 (1979))
- holding that NRS 48.035(3) does not apply when a witness is attempting to "explain" the charged crime by referring to the prior crime but, rather, only applies to allow the admission of evidence of a prior crime when a witness cannot "describe" the charged crime without referring to the prior crime
Written by the judges who cited it.
The opinion
Rose, J.,
with whom Hardesty, J., agrees,
concurring:
I agree with the analysis in the majority opinion on all issues, except two. First, I disagree with its conclusion that it was proper to join the counts stemming from the events of April 14 with the other counts. The reasons given for why the April 14 incident is admissible at the trial of the sexual assault/murder counts are generally unconvincing to me, and the counts relating to the April 14 incident should have been tried separately. But since the statement *589 Weber made on April 14 would have been admissible at the trial of the other charges to show consciousness of guilt and as an admission against interest, the error of joinder was harmless because the jury would have received some information about the subsequent conflict and none of the counts presented a close case of guilt. 1
Second, I would like to give a narrower definition to the term “connected together” by including considerations of whether the two crimes are truly related to each other and the prejudice caused the defendant by joinder, as well as whether evidence of the crimes is clearly cross-admissible. 2 My concern with adopting the standard of cross-admissibility is that it may present little restriction on the wholesale joining of numerous disparate criminal acts together for trial. When we look at the admissibility of prior bad acts in a criminal trial, a form of cross-admissibility that is governed by statute, we see that the standard has become a very expansive one.
NRS 48.045 states that character evidence, usually in the form of prior bad acts evidence, is inadmissible to prove conduct but that prior bad acts are admissible for other purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. It is a general rule, with lots of exceptions. Our jurisprudence starts off well enough by declaring that the admission of prior bad or criminal acts at trial is disfavored and should be strictly limited.
We have often held that the use of uncharged bad act evidence to convict a defendant is heavily disfavored in our criminal justice system because bad acts are often irrelevant and prejudicial and force the accused to defend against vague and unsubstantiated charges. The principal concern with admitting such acts is that the jury will be unduly influenced by the evidence, and thus convict the accused because it believes the accused is a bad person. 3
In practice, however, we have seen a broad interpretation of the exceptions contained in NRS 48.045, with the prosecution continually offering prior bad acts committed by a defendant. And too often, the district courts are willing to permit the admission of prior bad act evidence. Once admitted, the district court’s decision is cloaked with the presumption of propriety and will not be disturbed unless it is manifestly wrong. 4 The end result is that this court usually affirms the introduction of prior bad act evidence, *590 even when its admissibility may seem marginal, 5 or when the prior bad act is remote in time. 6
Our recent decision in Tabish v. State 7 is a good example of this point and the close relationship between NRS 48.045 and cross-admissibility. Tabish and a codefendant were charged with the robbery and murder of Ted Binion, and included in the information were counts against Tabish alleging the kidnapping, beating, and extortion of a Leo Casey that happened two months earlier. The district court refused to sever the counts, and one issue on appeal was whether the district court erred in not severing the Casey counts from the Binion counts. Although the only defendant involved in both crimes was Tabish, the prosecutor argued that the evidence contained in the Casey counts was admissible under NRS 48.045 at the murder trial to show motive, plan, and identity. We concluded that although the Casey counts arguably had some relevance to the murder charges, this evidence was far more prejudicial than probative, and therefore the district court committed reversible error in not severing the counts for trial. 8 In my view, this case demonstrates that a prior bad act should have more than arguable relevance to the later crime before it is deemed cross-admissible and that the prejudicial impact that joinder has on a defendant should be seriously considered, as was done in Tabish.
I am hopeful that the district courts will be reluctant to join unrelated criminal acts for trial unless it is shown that the evidence of both crimes is clearly cross-admissible, that the two criminal incidents appear to be closely connected together, and that no substantial prejudice will occur to the defendant.
See Tabish v. State, 119 Nev. 293, 307-09 , 72 P.3d 584, 593-94 (2003).
NRS 173.115(2).
Tavares v. State, 117 Nev. 725, 730 , 30 P.3d 1128, 1131 (2001) (footnote omitted).
Gallego v. State, 101 Nev 782, 789, 711 P.2d 856, 861 (1985); Brinkley v. State, 101 Nev 676, 679-80, 708 P.2d 1026, 1028-29 (1985).
See Honeycutt v. State, 118 Nev. 660, 672-73 , 56 P.3d 362, 370 (2002) (affirming the district court’s decision admitting evidence of a prior, unrelated sexual assault).
Bolin v. State, 114 Nev. 503, 517-21 , 960 P.2d 784, 793-96 (1998).
119 Nev. 293 , 72 P.3d 584 .
Id. at 308-09 , 72 P.3d at 593-94 .