Campbell (Daveyon) v. State ( 2013 )

been attacked by a person who was considered a family friend and his
grave injuries at the time he made the challenged statements to Holloway.
To be admitted under the excited utterance exception to the
hearsay rule, a statement must have been made when the declarant was
still "under the stress of the startling event." Medina v. State, 122 Nev.
346, 352, 143 P.3d 471, 475 (2006); see NRS 51.035; NRS 51.095. "The
elapsed time between the event and the statement is a factor to be
considered but only to aid in determining whether the declarant was
under the stress of the startling event when he or she made the
statement." Id. Although a transcript of the evidentiary hearing is not
included in the appendix, nothing in the record suggests that the district
court's factual findings are undeserving of deference, see generally Rincon
v. State, 122 Nev. 1170, 1177, 147 P.3d 233, 238 (2006) (observing that, in
reviewing the denial of a motion to suppress, this court "does not act as a
finder of fact" and that a district court's factual findings are "entitled to
deference on appeal and will not be overturned by this court if supported
by substantial evidence"), and the district court's application of the law is
sound. We therefore conclude that appellant has not demonstrated that
the district court abused its discretion by admitting Holloway's testimony.
See Thomas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006)
(observing that admissibility of evidence falls within the sound discretion
of the district court).
Appellant next argues that, in response to two questions the
jury submitted to the district court during deliberations, the district court
improperly directed the jurors to review certain instructions to assist them
in answering those questions. In doing so, appellant contends, the district
court highlighted instructions requested by the State while denying his
request to highlight an instruction related to his theory of defense. "The
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trial judge has wide discretion in the manner and extent he answers a
jury's questions during deliberation." Tellis v. State, 84 Nev. 587, 591, 445
P.2d 938, 941 (1968). After hearing comments by the parties, the district
court settled on eight instructions it deemed relevant to the jurors'
questions. In a written note, the district court advised the jurors that the
district court "was not at liberty to supplement instructions" and directed
them to consider certain identified instructions that might be of assistance
in answering the questions. The district court further advised the jurors
that its intent was not to "overly emphasize any of these instructions over
others, but merely to direct [the jury's] attention to instructions which
may assist in answering [the jury's] questions" and that "Instruction
number two instructs [the jury] to not single out any certain sentence or
any individual point or instruction and ignore others, but to consider all of
the instructions as a whole." Given the district court's written instruction
to the jurors and our presumption that the jurors followed that
instruction, see Allred v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250
(2004), we conclude that appellant has not shown that the district court
abused its discretion in this regard.
Having considered appellant's arguments and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
J.
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cc: Hon. Carolyn Ellsworth, District Judge
Hofland & Tomsheck
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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(0) 1947A