Brueggemann (Adam) v. State ( 2014 )

 Brueggemann concedes that he was represented by counsel at
the preliminary hearing and that counsel cross-examined the victim.
However, he contends that his cross-examination was limited when
counsel attempted to delve into alleged text messages the victim sent
Brueggemann. Additionally, Brueggemann argues that he was denied an
adequate opportunity to cross-examine the victim because, at the time of
the preliminary hearing, he had not been provided certain discovery that
revealed the inconsistency in the victim's testimony.' Our review of the
record shows that counsel thoroughly cross-examined the victim at the
preliminary hearing. Moreover, trial counsel challenged the victim's
credibility at trial by highlighting inconsistencies in his story during
closing argument. As to the justice court's limitation of the cross-
examination, our review of the record reveals that the justice court merely
ruled that counsel's question had been asked and answered and did not
unconstitutionally limit counsel's cross-examination of the victim.
Therefore, we conclude that the district court did not err by admitting the
victim's preliminary hearing testimony on this basis.
Second, Brueggemann contends that the district court erred
by allowing the State to use the victim's preliminary hearing testimony at
trial when the State's motion to admit the testimony was untimely and the
State failed to show good cause. NRS 174.125(3)(a) required the State to
file its motion to admit the victim's preliminary hearing testimony at least
15 days before trial. Here, the State submitted its motion one week before
"While Brueggemann asserts that later discovery revealed an
inconsistency in the victim's testimony, he fails to assert what
inconsistency was revealed.
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trial. Because the State's motion was untimely, it was required to show
good cause for the delay. NRS 174.125(4); Hernandez, 124 Nev. at 648,
188 P.3d at 1132. "[T]o establish good cause for making an untimely
motion to admit preliminary hearing testimony, the [proponent of the
testimony] must provide an affidavit or sworn testimony regarding its
efforts to procure the witness prior to the pretrial motion deadline." Id.
This court reviews a district court's finding that the prosecution exercised
constitutionally reasonable diligence to procure a witness's attendance as
a mixed question of law and fact, giving deference to the district court's
findings of fact. Id. at 646-47, 188 P.3d at 1131-32. However, we "will
independently review whether those facts satisfy the legal standard of
reasonable diligence." Id. at 647, 188 P.3d at 1132.
Here, the State included an affidavit with its motion to admit
the challenged testimony in which a State investigator and the prosecutor
outlined their efforts to secure the victim's presence at trial. The
investigator averred that he contacted the victim to coordinate a time and
place to serve a subpoena for the initial trial date, but shortly after
speaking with the victim, all subsequent calls went unanswered. The
prosecutor had contact with the victim from the inception of the case until
three months before trial, and in each conversation the victim affirmed his
interest in the case. After numerous calls and voicemails went
unanswered, the prosecutor attempted to locate the victim using police
records, contacting the victim's reported address on a traffic citation. The
investigator attempted to locate the victim utilizing power, telephone, and
public assistance records. Despite these efforts, the victim did not appear
at trial. The district court found that the State showed good cause for the
late filing of the motion. We conclude that the record demonstrates that
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the State exercised reasonable diligence in attempting to secure the
victim's presence at trial and therefore established good cause for the late
filing of its motion to admit his prior testimony. Accordingly, we conclude
that the district court did not err by admitting the victim's preliminary
hearing testimony.
Third, Brueggemann argues that the district court erred by
allowing the State to present evidence of other bad acts at trial,
specifically that Brueggemann was stopped in a vehicle matching the
description of the getaway car eleven days after the robbery and that a
revolver was discovered in the vehicle. The district court concluded that
the traffic stop was not a prior bad act, therefore a Petrocelli hearing was
not required, and that the evidence was relevant and admissible.
Brueggemann fails to demonstrate that the district court abused its
discretion by determining the traffic stop was not a bad act subject to NRS
48.045(2) and admitting the evidence. See NRS 48.015; Melellan v. State,
124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ("We review a district court's
decision to admit or exclude evidence for an abuse of discretion.").
Fourth, Brueggemann contends that the district court erred by
allowing hearsay testimony to be admitted at trial. Brueggemann claims
that the victim's statements about the attackers' description and the items
taken were erroneously admitted through an officer's testimony. We
review a district court's determination as to whether a statement falls
within a hearsay exception for an abuse of discretion. Rodriguez v. State,
128 Nev. „ 273 P.3d 845, 848 (2012). As the victim's statements
were made shortly after he was robbed at gunpoint and while he was still
under the stress of the event, the statements fell within the excited
utterance exception to the hearsay rule. See NRS 51.095; Rowland v.
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State, 118 Nev. 31, 42-43, 39 P.3d 114, 121 (2002). Therefore, we conclude
that the district court did not abuse its discretion by admitting the
statements.
Fifth, Brueggemann argues that the district court erred by
giving jury instructions #33 and #43, which instructed the jury on
coconspirator and aiding and abetting liability respectively. Brueggemann
argues that both instructions did not identify the required specific intent.
"This court reviews a district court's decision settling jury instructions for
an abuse of discretion or judicial error; however, whether the instruction
was an accurate statement of the law is a legal question that is reviewed
de novo." Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339
(2009) (citation omitted). Given that jury instructions regarding intent
must be read together and not in isolation, see Greene v. State, 113 Nev.
157, 167 68, 931 P.2d 54, 61 (1997) overruled on other grounds by Byford
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v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000), we conclude that the
jury instructions as a whole clearly specified the intent required to convict
Brueggemann of the charged crimes. 2 Therefore, we conclude that
Brueggemann has not shown that the district court abused its discretion.
2We note that instruction #4 informed the jury that "N o prove the
defendant guilty of a specific intent crime on a theory of co-conspirator
liability, the State must prove beyond a reasonable doubt that the
defendant possessed the specific intent to commit the crime charged."
Furthermore, instruction #41 informed the jury that "No find a defendant
guilty for the specific intent crime of another under an aiding or abetting
theory of principal liability, the state must prove beyond a reasonable
doubt that the aider or abettor knowingly aided the other person with the
specific intent that the other person commit the charged crime."
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Sixth, Brueggemann contends that the district court erred by
denying his motion to dismiss for prosecutorial misconduct. He alleges
that the misconduct occurred when, during trial preparation, two
prosecutors met with a codefendant, while she was on probation and
without her attorney present, in an attempt to persuade her to testify
against Brueggemann at trial. The district court conducted an evidentiary
hearing, during which the codefendant testified, and denied the motion,
concluding that the prosecutors' conduct did not directly relate to
Brueggemann's rights but instead affected the codefendant. We review a
district court's denial of a motion to dismiss for an abuse of discretion.
Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008). Brueggemann
fails to offer any argument or citation to legal authority in support of his
claim; rather he merely repeats the codefendant's testimony from the
evidentiary hearing and summarily claims that he was denied a fair trial.
We conclude that Brueggemann fails to demonstrate that the district court
abused its discretion.
Seventh, Brueggemann argues that the cumulative effect of
the above errors denied him a fair trial. Because we found no error, there
are no errors to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
/ J.
Hardesty
' J.
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cc: Hon. Elizabeth Goff Gonzalez, District Judge
Bush & Levy, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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