Quisano v. State , 2016 NV 9 ( 2016 )

132 Nev., Advance Opinion
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
JONATHAN QUISANO, No. 66816
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. FEB 1 8 2016
TRAgE K. LINDEMAN
CL
F DErlY CLERK
Appeal from a judgment of conviction, pursuant to aW Alford
plea, 1 of voluntary manslaughter and child abuse, neglect, or
endangerment with substantial bodily harm. Eighth Judicial District
Court, Clark County; Valerie Adair, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Howard Brooks and Nancy Lemcke,
Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
',See North Carolina v. Alford, 400 U.S. 25 (1970).
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OPINION
By the Court, SILVER, J.:
Appellant Jonathan Quisano pleaded guilty, pursuant to
Alford, to voluntary manslaughter and child abuse, neglect, or
endangerment with substantial bodily harm. During the pendency of this
case, the Clark County District Attorney's office maintained a discovery
policy that provided for disclosure of all discovery to the defense. After
entry of Quisano's guilty plea, but before sentencing, the State obtained an
affidavit relevant to Quisano's case but did not disclose the affidavit to
Quisano. The State used the affidavit at Quisano's sentencing hearing to
impeach Christina Rodrigues—the victim's mother and Quisano's longtime
girlfriend—after she provided a favorable oral statement to the court on
Quisano's behalf, under the guise of a victim-impact statement. During
the sentencing hearing, the district court permitted the Las Vegas Review-
Journal to provide electronic coverage of the proceeding, although the
media outlet did not timely file a request for permission and the district
court did not enter a corresponding order or make the requisite
particularized findings on the record. In accordance with the guilty plea
agreement, the district court sentenced Quisano to serve a prison term of
4-10 years for voluntary manslaughter and a consecutive prison term of 6-
19 years for child abuse, neglect, or endangerment with substantial bodily
harm.
First, we consider whether the State failed to disclose the
affidavit in violation of Brady v. Maryland, 373 U.S. 83 (1963). We
conclude Quisano's Brady argument fails because the affidavit was not
favorable to him.
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Second, we evaluate whether the failure to disclose the
affidavit, notwithstanding the State's discovery policy, warrants reversal.
As a threshold matter, we conclude the State's discovery policy constituted
an open-file policy. In McKee v. State, 112 Nev. 642, 647-48, 917 P.2d 940,
943-44 (1996), the Nevada Supreme Court held that where a prosecutor
maintains an open-file policy, the prosecutor is under a duty to disclose all
evidence in the State's possession, regardless of whether the evidence is
inculpatory or exculpatory. We conclude that the duty set forth in McKee
extends through entry of the judgment of conviction and that the
prosecutor engaged in misconduct by failing to disclose the affidavit in
accordance with the State's open-file policy. Nevertheless, the misconduct
did not substantially affect the district court's sentencing determination or
prejudice Quisano and, therefore, does not warrant a new sentencing
hearing.
Third, we assess whether the district court erred by
permitting the Las Vegas Review-Journal to record Quisano's sentencing
hearing. Although we hold that the district court did not err by granting
the media outlet's untimely request, we conclude the district court did err
in not making particularized findings on the record regarding all of the
factors set forth in SCR 230(2) or issuing a written order granting the
media outlet's request. But those errors did not contribute to the district
court's sentencing determination. Accordingly, we conclude Quisano is not
entitled to relief on this basis.
Based on the foregoing, we affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
On June 6, 2013, Khayden Quisano, the three-year-old child of
appellant Jonathan Quisano and Christina Rodrigues (Quisano's longtime
girlfriend), died as a result of injuries associated with blunt-force trauma
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to the head. At the time Khayden sustained his injuries, he was under the
sole supervision of Quisano, who was charged with murder shortly after
Khayden succumbed to his injuries. Quisano maintains that Ithayden was
injured after falling off a couch and hitting his head on a tile floor.
However, Quisano provided conflicting accounts regarding the
circumstances surrounding Khayden's injuries, and the medical experts
who testified at Quisano's preliminary hearing disagreed with each other
as to whether Khayden's injuries were consistent with a fall from a couch.
Prior to the commencement of trial, Quisano and the State
entered into a guilty plea agreement under which Quisano agreed to plead
guilty, pursuant to Alford, to one count of voluntary manslaughter and one
count of child abuse, neglect, or endangerment with substantial bodily
harm. Under the guilty plea agreement, the State retained the right to
argue but agreed it would not argue for a minimum sentence exceeding
ten years. Quisano pleaded guilty in accordance with the agreement on
June 25, 2014.
At Quisano's sentencing, a reporter from the Las Vegas
Review-Journal was present in the courtroom with a camera. Because the
media outlet did not file a timely request for permission to provide
electronic coverage of the proceeding, Quisano's counsel moved to exclude
it from recording the hearing or photographing the participants. In
evaluating Quisano's motion, the district court reasoned that permitting
the outlet to provide electronic coverage of the proceeding would serve the
public interest by facilitating public oversight of the judicial process. The
district court noted it generally grants all requests to provide electronic
coverage and would have granted a request from the outlet had it filed
one. Observing that other media outlets filed requests to provide
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electronic coverage of Quisano's case, the district court asked Quisano how
he would be prejudiced if the Las Vegas Review-Journal, as opposed to the
other media outlets, electronically covered the sentencing hearing.
Counsel for Quisano responded, "Where isn't actual prejudice other than
the fact that they shouldn't benefit from not following the rules any more
than we should." Based on the foregoing, the district court orally denied
Quisano's request to exclude the reporter from recording the proceeding.
After the district court ruled on Quisano's objection, the State
argued, consistent with the guilty plea agreement, that the district court
should sentence Quisano to consecutive sentences with a minimum term
totaling ten years but did not make a specific argument with regard to the
maximum term. In support of its argument, the State asserted that
Quisano provided inconsistent accounts of how Khayden sustained his
injuries and that the injuries were inconsistent with a fall from a couch.
The State also informed the district court that Quisano had a documented
history of child abuse and neglect 2 and argued that Quisano was likely to
reoffend.
Quisano argued for probation or a short prison term. In
support of that argument, Quisano asserted that Rhayden's injuries were
consistent with a fall from a couch, and that even if he caused Khayden's
2While Quisano was living in Hawaii, one of his children, Jayden
Quisano, died of Sudden Infant Death Syndrome (SIDS). Subsequently,
Khayden was hospitalized with symptoms similar to SIDS. Tests at the
hospital revealed that Khayden suffered from a broken leg and broken
ribs—injuries deemed to be the result of nonaccidental trauma. Because
of those injuries, Child Welfare Services in Hawaii removed Khayden from
the family household. Nevertheless, Child Welfare Services ultimately
returned Khayden to Quisano and Rodrigues' care after completion of a
case plan.
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injuries, his acts were attributable to "a single momentary lapse or loss of
patience." After concluding his argument, Quisano requested that the
district court permit the victim's mother, Rodrigues, to address the court.
Rodrigues provided a victim-impact statement that consisted of a few
sentences. 3 Specifically, Rodrigues testified that "[Quisano] was a kind,
loving, caring, responsible father who showed love and affection to his
children every day" and that "[s]ending him to prison will harm more than
it will help."
In comparison, the State responded by extensively cross-
examining Rodrigues using information from an affidavit signed by an
employee of the Clark County Department of Family Services (DFS), and
dated September 4, 2014. 4 In the affidavit, the DFS employee averred as
follows:
[Oln June 9, 2014, I requested case closure
of the dependency case as to the parents because
the natural mother, Christina Rodrigues,
articulated protective capacity. Christina
Rodriguez [sic] had come to recognize that
[Khayden1 died as a result of physical abuse by the
natural father, Jonathan Quisano. Christina
Rodrigues further expressed that Jonathan
3 Typically, in a victim-impact statement, the victim addresses "the
crime, the person responsible, the impact of the crime on the victim and
the need for restitution." NRS 176.015(3)(b). Although Rodrigues was a
victim of the crime because her child was killed, her victim-impact
statement actually addressed mitigating Quisano's sentence. Her entire
victim-impact statement consisted of less than one page of the sentencing
transcript.
4 Quisano pleaded guilty on June 25, 2014, and was sentenced on
October 7, 2014. Thus, the State obtained the affidavit after Quisano
pleaded guilty but before sentencing.
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Quisano should be punished for his abuse of
[Khayden] and that she believed Jonathan
Quisano should go to prison. 5
The State began by inquiring, over objections from Quisano,
whether Rodrigues believed Quisano should go to prison, and then later,
whether she believed that Quisano "committed abuse against [her] son
that died, Khayden." In response to Quisano's objection, the State
indicated that it was seeking victim-impact testimony, and the court
agreed, allowing the questioning Rodrigues answered that she did not
believe Quisano abused Khayden and that she hoped that he would
receive probation.
There were several more objections from Quisano prompting
the court to attempt to limit the inquiries by the prosecutor, but the court
relented when the State asked for "just a little leeway." The State then
asked whether Rodrigues remembered speaking with a judge in family
court and whether she stated that Quisano "committed abuse against [her]
son Khayden" and that "[Quisano] should be punished for his crime" with
imprisonment. Rodrigues responded, "[t]hat didn't come out of my
mouth." Finally, the State alleged, "you went to court one time and asked
for one thing, and you're coming to court now and asking for the complete
opposite." Quisano objected to the statement, and the district court
5Quisano and Rodrigues had three children: Jayden, Khayden, and
K.Q. As previously noted, Jayden died in Hawaii of SIDS. After the
events that gave rise to Quisano's conviction—specifically, Khayden's
death—K.Q. was placed in protective custody by DFS. Rodrigues
subsequently sought to regain custody of K.Q. The DFS employee
assigned to K.Q.'s dependency case prepared the subject affidavit following
an adjudicatory hearing on that matter.
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sustained the objection, noting that the affidavit discussed testimony
before another forum.
After the State concluded its questioning of Rodrigues,
Quisano informed the district court that the State did not disclose the
affidavit during discovery. The State responded that "[it's not part of
discovery. This is a victim-impact statement." And Quisano replied:
"Judge, it's a document that's in the possession of the prosecution, and all
the way up to including sentencing is to be provided to the defense in
discovery. That's anything in aggravation or mitigation." 6 The district
court did not specifically address Quisano's final objection. But, given his
objections, Quisano requested that the district court designate the
affidavit as a court exhibit for the record, which the district court did. 7
Before imposing sentence, the district court expressed
concerns regarding the conflicting medical evidence in the case, but it
stated that Quisano's prior substantiated record of child abuse in Hawaii
was "the tipping point for the Court." The district court sentenced
6Thus, as addressed below in our discussion of the State's discovery
policy, Quisano raised a general objection, identifying a potential discovery
violation and questioning the temporal scope of the State's duty to disclose
discovery, but he did not use the precise words "it's a violation of the
State's discovery policy."
7 The colloquy then continued, but the State did not argue in
response that its discovery policy did not require disclosure. Rather, the
prosecutor informed the district court that Quisano did not provide notice
that Rodrigues would give a victim-impact statement prior to the
sentencing hearing. The burden, however, is on the State to notify the
victim about the sentencing date, and the court must allow the victim to
testify. NRS 176.015(3)-(4). Moreover, notice of the victim's intent to
testify is not an element within the statute. Id.
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Quisano to serve a prison term of 4-10 years for voluntary manslaughter
and a consecutive prison term of 6-19 years for child abuse, neglect, or
endangerment with substantial bodily harm. Quisano now appeals
ANALYSIS
Quisano contends that this court should vacate his sentence
and remand for a new sentencing hearing because (1) the State withheld
the affidavit in violation of Brady; (2) the State professed to have an open-
file policy, and, therefore, was subject to a duty to disclose the affidavit; 8
8 The parties' initial briefs addressed the applicability of Brady;
however, neither party raised the issue of whether the State's discovery
policy constituted an open-file policy that created an ongoing duty to
disclose all evidence in the State's possession to Quisano. After
thoroughly reviewing the parties' briefs and the appendix, we concluded
that supplemental briefing was warranted. Accordingly, we exercised our
discretion to request supplemental briefing and issued an order directing
the parties to address whether the State has a continuing duty to provide
the defendant with discovery through sentencing under McKee v. State,
112 Nev. 642, 648, 917 P.2d 940, 944 (1996). See Sharma v. State, 118
Nev. 648, 651, 655-58, 56 P.3d 868, 870, 872-74 (2002) (explaining that the
supreme court ordered supplemental briefing after raising issues at oral
argument, and reaching issues addressed in the supplemental briefs). In
response, we received briefs from both Quisano and the State addressing
the question presented.
In addition to our discretion to request supplemental briefing, this
court also has discretion to consider issues raised for the first time on
appeal that involve recurring questions of law. See, e.g., Salazar ex rel.
Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir. 2010) ("[C]ourts
of appeals have discretion to address issues raised for the first time on
appeal, but exercise such discretion only in exceptional circumstances, as,
for example, in cases involving uncertainty in the law; novel, important,
and recurring questions of federal law; intervening change in the law; and
extraordinary situations with the potential for miscarriages of justice."
(internal quotation marks omitted)). Issues similar to that addressed
today have arisen in several cases before this court and, therefore, are
continued on next page...
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and (3) the district court erred by allowing the Las Vegas Review-Journal
to provide electronic coverage of Quisano's sentencing hearing where the
outlet did not file a timely request for permission and the district court did
not issue an order or make particularized findings on the record. 9
Brady v. Maryland
Quisano contends that a new sentencing hearing is warranted
because the State withheld impeachment evidence in violation of Brady
and its progeny by failing to disclose the affidavit. Despite the State
having listed Rodrigues as a witness in its case-in-chief, the State counters
...continued
likely to recur. Moreover, discovery and related sentencing issues occur
repeatedly, so it is appropriate for the court to clarify this area of the law.
Accordingly, the present case is "fully at issue and ready for decision."
Sharma, 118 Nev. at 651, 56 P.3d at 870.
9 Quisano also contends that the district court erred by allowing the
State to cross-examine Rodrigues about matters exceeding the permissible
scope of NRS 176.015(3)—specifically, prior bad acts and family court
proceedings. We disagree. During its cross-examination of Rodrigues, the
State inquired about the acts underlying this case and an appropriate
sentence for Quisano. Both topics are permissible in a victim-impact
statement. See NRS 176.015(3) (providing that a victim may "41 easonably
express any views concerning the crime"); see also Randell v. State, 109
Nev. 5, 8, 846 P.2d 278, 280 (1993) (concluding a victim may express an
opinion regarding an appropriate sentence for the defendant in a
noncapital case). Neither the State nor Rodrigues referenced prior bad
acts during Rodrigues' victim-impact statement. And, to the extent that
the State inquired about family court proceedings, it only did so to lay a
foundation to impeach Rodrigues using the affidavit.
Quisano further asserts that the affidavit, the victim-impact
statement, and the State's violation of SCR 230 all constitute "impalpable
or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
1161 (1976). We have reviewed these arguments, and we conclude they
are without merit.
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that the affidavit does not fall within the scope of Brady and its progeny
because it was neither favorable to Quisano nor useful to impeach a
government witness, including Rodrigues, at trial.
"Determining whether the state adequately disclosed
information under Brady . . . requires consideration of both factual
circumstances and legal issues; thus, this court reviews de novo the
district court's decision." Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25,
36 (2000). The State violates a defendant's right to due process where it
suppresses or fails to disclose evidence that is favorable to the accused and
material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S.
83, 87 (1963); Mazzan, 116 Nev. at 66, 993 P.2d at 36. To establish a
Brady violation, a defendant must prove the following three elements: (1)
the State withheld or failed to disclose evidence, (2) that evidence was
favorable to the defense, and (3) prejudice ensued. Mazzan, 116 Nev. at
67, 993 P.2d at 37. Favorable evidence is not limited to exculpatory
evidence, but rather includes evidence that "provides grounds for the
defense to attack the reliability, thoroughness, and good faith of the police
investigation, to impeach the credibility of the state's witnesses, or to
bolster the defense case against prosecutorial attacks." Id.
Quisano's argument that the State violated Brady by failing to
disclose the affidavit lacks merit because the affidavit was not favorable to
Quisano. In the affidavit, a DFS employee alleges that Rodrigues
acknowledged Quisano's responsibility for the death of their son and
stated that Quisano should be imprisoned for his conduct. Even if the
State had disclosed the affidavit, it would not have provided Quisano with
a basis to attack the police investigation, impeach the State's witnesses, or
bolster his case against prosecutorial attacks. See id. Moreover, the
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affidavit was not exculpatory, as Quisano could not use it to explain away
the charges. See King v. State, 116 Nev. 349, 359, 998 P.2d 1172, 1178
(2000) (defining exculpatory evidence "as evidence that will explain away
the charge"). Because the affidavit was not favorable to Quisano, his
argument fails, and we need not consider the remaining Mazzan factor. 10
Open-file policy
Quisano argues that because the State professed to have an
open-file policy, it was subject to a duty to disclose all evidence—whether
inculpatory or exculpatory—in its possession. Quisano maintains that the
State's failure to comply with that duty unfairly surprised and prejudiced
him, and he contends that he is entitled to a new sentencing hearing.
As a threshold matter, we consider whether, under the facts of
the present case, the State maintained an open-file policy. The record
includes several file-stamped "Receipt of Copy" forms, indicating that the
State furnished Quisano with various discovery materials. Each Receipt
of Copy includes a summary of the State's discovery policy in bold
typeface. That policy provides as follows:
The State formally invites the defense to review
the State's case file in the instant matter. This
invitation is ongoing and is intended to make all
discovery in the State's possession available and
accessible to the defense. In addition, the State, at
the request of the defense, will facilitate a review
of the case file information housed at the Las
Vegas Metropolitan Police Department
(LVMPD) . In addition, the State, at the
10 TheState also argues that it was not required to disclose the
affidavit under United States v. Ruiz, 536 U.S. 622 (2002). Given our
conclusion regarding Quisano's Brady argument, we need not reach that
issue.
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request of defense counsel, will also facilitate
access to all evidence at the evidence vault which
has been impounded ....
It is the desire of the State to provide the defense
with full access to all discovery in the possession of
the State. That access is available now.
The State acknowledges that its discovery
obligations are continuing and the State will make
all subsequent discovery received, if any, available
to the defense in compliance with the
requirements of NRS 174.235, as well as Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972).
The State also takes this opportunity to formally
request reciprocal discovery from the defense and
for the defense to provide timely access to any
discovery that it intends to use at trial.
The record reveals that the State never argued or even suggested to the
district court that the affidavit was not required to be disclosed under its
discovery policy.
On appeal, the State selectively quotes the third paragraph of
the policy and argues that it only committed to disclose evidence under
NRS 174.235, Brady, and Giglio. We note that if the policy allowed the
State to unilaterally assess whether materials are discoverable before
disclosing those materials to Quisano, the policy would serve no purpose
other than to signal the State's intent to comply with the law. However,
limiting the policy in that manner completely ignores the first and second
paragraphs of the policy, which set forth the State's intent to provide
access to "all discovery" in its possession to Quisano. Moreover, the
materials in the LVMPD case file and the evidence vault are not limited to
materials that are discoverable under NRS 174.235, Brady, and Giglio.
And, prior to the entry of Quisano's guilty plea, the State both frequently
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referenced the policy and invited Quisano to review the State's case file,
LVMPD's case file, and the evidence vault. These facts lead to the
inescapable conclusion that the State's discovery policy constituted an
open-file policy."
Having held that the State's discovery policy constitutes an
open-file policy, we next consider whether the prosecutor violated the
policy by failing to disclose the affidavit.
In McKee, the Nevada Supreme Court addressed whether a
prosecutor's open-file policy gives rise to a duty to disclose all inculpatory
and exculpatory evidence. 112 Nev. at 647-48, 917 P.2d at 943-44. There,
the prosecutor professed to have an open-file policy but withheld an
inculpatory photograph from the defense. Id. at 647, 917 P.2d at 943. At
trial, the prosecutor revealed the photograph, using it to impeach the
defendant after he testified. Id.
"Our dissenting colleague asserts that the State's discovery policy is
one of an administrative agency within the executive branch and that this
court lacks the constitutional authority to interpret such a policy. But the
record contradicts our dissenting colleague's assertion. As previously
noted, the record contains several Receipt of Copy forms. Those forms,
which required a signature from both the prosecutor and Quisano's
counsel, contemplated a contractual agreement, and the State acted in
accordance with that agreement to the extent it routinely disclosed
discovery to Quisano. We are not concerned, therefore, with a general
"office policy" at the Clark County District Attorney's office, and our
analysis does not raise a "constitutional question," as our dissenting
colleague suggests. Instead, we are giving effect to a contractual
agreement on discovery between Quisano and the prosecutor. And, in
interpreting the content and meaning of the open-file policy set forth in
that agreement, we apply the ordinary contract principles that appellate
courts routinely employ in the criminal context when interpreting plea
agreements. See State v. Crockett, 110 Nev. 838, 842, 877 P.2d 1077, 1079
(1994) (explaining that plea agreements are subject to contract principles).
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In considering whether the prosecutor engaged in misconduct
by failing to disclose the photograph, the Nevada Supreme Court
acknowledged that "[p]rosecutors are put in the precarious position of
having to pursue criminal convictions zealously, while at the same time,
insure that defendants receive a fair and impartial trial." Id. However,
the court in McKee heavily emphasized the importance of securing a just
conviction:
Even more egregious, however, are attempts by
representatives of the government to resort to
these reprehensible means to shortcut their
responsibility to ferret out all admissible evidence
and use only that to meet their burden of proof
We fear resort to such conduct indicates either an
absence of sufficient evidence to convict or reflects
shoddy government efforts that have failed to
unearth admissible evidence.. . . He has no
obligation to win at all costs and serves no higher
purpose by so attempting. Indeed, "[fit is as much
a duty to refrain from improper methods
calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just
one." [Berger v. United States, 295 U.S. 78, 88,
(1934).]
Id. at 647, 917 P.2d at 943-44 (citation omitted). And, looking to
principles of contract law, the court cited several cases involving the
State's failure to comply with the terms of a plea agreement, McKee, 112
Nev. at 648, 917 P.2d at 944, including Cita v. State, where the court held
that "[w]hen the State enters a plea agreement, it is held to the most
meticulous standards of both promise and performance. . . . The violation
of the terms or the spirit of the plea bargain requires reversal." 107 Nev.
89, 91, 807 P.2d 724, 726 (1991) (internal quotation marks omitted).
Based on these principles, the supreme court concluded "that a
prosecutor, as the agent of the State, is held to a high ethical standard and
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must abide by the promises he makes." McKee, 112 Nev. at 648, 917 P.2d
at 944. Thus, the supreme court reasoned that the open-file policy created
an expectation that the prosecutor would disclose all available evidence—
whether inculpatory or exculpatory—and the defendant reasonably relied
on that policy. Id. The court concluded the prosecutor's "act of deception
was clearly unfair, and extremely prejudicial to [the defendant]," and
therefore, the court determined that the prosecutor engaged in
misconduct. Id.; cf. Furbay v. State, 116 Nev. 481, 487-88, 998 P.2d 553,
557 (2000) (concluding that the State did not violate the defendant's rights
by failing to disclose inculpatory evidence where the district attorney's
office did not maintain an open-file policy).
In this case, the State contends that the duty set forth by the
Nevada Supreme Court in McKee does not extend through sentencing.
While McKee holds that an open-file policy subjects the State to a duty to
disclose all inculpatory and exculpatory evidence in its possession to the
defendant, the case does not provide guidance regarding the duration of
that duty. However, the Nevada Supreme Court's decision in Floyd v.
State, 118 Nev. 156, 42 P.3d 249 (2002), abrogated on other grounds by
Grey v. State, 124 Nev. 110, 178 P.3d 154 (2008), is informative on the
issue. Floyd concerned the application of two discovery statutes to the
penalty phase of a capital murder trial—specifically, NRS 174.234 and
NRS 174.245. Id. at 167, 42 P.3d at 257. Taken together, these statutes
provide that where a party intends to call a witness or offer certain
materials during its case in chief, it must disclose to the opposing party,
before trial, information relating to the witness and permit an opportunity
to inspect and copy the materials. Id. The case presented the question of
whether the phrase "case in chief," as used in NRS 174.234 and NRS
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174.245, encompasses the penalty phase of a capital murder trial. Id. at
168, 42 P.3d at 257. In considering the issue, the Nevada Supreme Court
characterized as "unfounded" the assumption that the term "case in chief'
does not include both the guilt phase and penalty phase of a capital
murder trial. Id. The Floyd court concluded that "the term 'case in
chief[,]' [as used in those statutes,] encompasses the initial presentation of
evidence by either party in the penalty phase of a capital trial." Id. at 169,
42 P.3d at 258.
This reasoning in Floyd is illuminating on the present issue,
as it strongly implies that a duty to disclose evidence does not dissipate at
the end of the guilt phase of a trial, but remains in force until the
proceedings fully conclude in the trial court. And, capital cases do not
present the only situation in which the State provides discovery to
defendants specifically for use at sentencing. In cases involving enhanced
penalties, such as DUI, domestic violence, and habituality, the State
routinely gives defendants discovery that may be applicable only to
sentencing. See NRS 484C.400(2); NRS 200.485(4); NRS 207.016(2) This
type of discovery is generally inculpatory in nature, yet the State discloses
these materials for their admission or for argument at sentencing as
opposed to their utilization during trial.
This disclosure of discovery, which pertains exclusively to
sentencing, reflects an underlying recognition that defendants must have
an opportunity to review materials in order to prepare a defense for
sentencing proceedings, and it enhances judicial efficiency by averting
delays caused by the offer of surprise evidence. See NRS 169.035
(explaining that the criminal procedure statutes are "intended to provide
for the just determination of every criminal proceeding" and providing
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that such statutes shall be "construed to secure simplicity in procedure,
fairness in administration and the elimination of unjustifiable expense
and delay"). As discovery materials are not limited to those materials
intended for use at trial, it follows that for purposes of the duty to disclose
under McKee, there is no basis to distinguish between trial and sentencing
proceedings in a noncapital case.
The Nevada Supreme Court's reasoning in McKee rests on the
principle that if the State professes to disclose all evidence in its
possession, the defendant may reasonably rely on that promise. 112 Nev.
at 648, 917 P.2d at 944. Because at sentencing the State may argue facts
contained within discovery that ultimately could have a significant impact
on a defendant's sentence, it follows that a defendant's reliance on an
open-file policy following entry of a guilty or no contest plea or after a jury
verdict continues until sentencing concludes. See Miller v. Hayes, 95 Nev.
927, 929, 604 P.2d 117, 118 (1979) (holding the district court's jurisdiction
over the defendant continues until the judgment becomes final).
Moreover, in the context of penalty or sentencing proceedings,
it is reasonable for a defendant to rely on an open-file policy where the
policy does not state that discovery "concludes upon the defendant
entering his guilty plea," but rather explicitly provides that "[Mils
invitation is ongoing," and where, as here, the record reflects that the
State regularly filed Receipt of Copy forms with the district court. 12 These
actions demonstrate that the State acted in accordance with its open-file
12 0ur
dissenting colleague's ultimate conclusion rests in part on the
assertion that the prosecutor believed that the open-file policy only
extended through trial and not through sentencing, but the record is
completely devoid of any factual finding in support of that assumption.
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policy on an ongoing basis throughout the proceedings. Therefore, a
defendant would reasonably expeet such discovery disclosures to continue
until the judgment becomes final. Thus, for the reasons stated, we hold
that the duty set forth in McKee extends through entry of the judgment of
conviction. 13
In the present case, the State maintained an open-file policy
and was subject to an ongoing duty to disclose all evidence in its
possession to Quisano. In light of the State's open-file policy, repeated
references to that policy, and regular discovery disclosures, Quisano could
reasonably rely on the State's promise under the open-file policy to provide
discovery as it became available, just like the defendant in McKee who
reasonably relied on the State's open-file policy. 14 Yet, similar to the
prosecutor in McKee who failed to disclose a photograph before introducing
mOur decision today does not address law enforcement materials
that the State is restricted from disclosing under federal or state law—for
example, National Crime Information Center (NCIC) records. See, e.g., 28
U.S.C. § 534(b) (2011). Neither does our decision address materials that
fall within an evidentiary privilege.
14 Based on the record in the present case, the extent to which
Quisano relied on the State's open-file policy is unclear. But a defendant's
reliance on an open-file policy is not a prerequisite to the duty to disclose
as set forth in McKee. Instead, the reality that a defendant may rely on an
open-file policy is the rationale underlying the supreme court's conclusion
"that a prosecutor, as the agent of the State, is held to a high ethical
standard and must abide by the promises he makes." McKee, 112 Nev. at
648, 917 P.2d at 944; see also Furbay, 116 Nev. at 487, 998 P.2d at 557
(2000) (concluding that "[w]hen the prosecution purports to give all
inculpatory evidence in its control, it may not withhold evidence for later
use"). Because the duty to disclose arises when the State professes to have
an open-file policy, we need not reach the issue of whether Quisano
actually relied on the State's open-file policy.
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it at trial, here also, the prosecutor failed to disclose the affidavit to
Quisano prior to using it at Quisano's sentencing hearing. Because the
prosecutor withheld the affidavit from Quisano in violation of the open-file
policy, the prosecutor engaged in misconduct. See McKee, 112 Nev. at 648,
917 P.2d at 944 (concluding that the prosecutor engaged in misconduct by
failing to comply with an open-file policy).
In characterizing the prosecutor's violation of the open-file
policy as misconduct, we are constrained by the prosecutorial misconduct
standard applied in McKee and by the district court's comments regarding
the prosecutor anticipating Rodrigues appearing at sentencing on behalf of
Quisano. 15 But we are also mindful of the realities confronting today's
prosecutors—including high case volumes and differing case management
systems—and recognize that a prosecutor's failure to provide discovery
may be a mere unintentional oversight as opposed to a willful or
intentional act involving misconduct. Thus, we encourage district courts,
when imposing sanctions for a violation of an open-file policy, to make
factual findings on the record with regard to whether such a violation was
inadvertent, willful, or intentional. Without a factual finding that a
violation of an open-file policy was willful or intentional, this court is
reluctant to classify an unintentional violation as misconduct on the part
of the prosecutor.
Unlike in McKee, where the prosecutor prejudiced the
defendant by impeaching him with the undisclosed photograph, here,
ThSpecifically, in reference to the prosecutor's copy of the affidavit,
the district court observed that "he probably has it all nice and highlighted
in his file because he may have anticipated that [Rodrigues] would just
show up."
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Quisano did not suffer prejudice when the prosecutor impeached
Rodrigues with the undisclosed affidavit. 16 First, the district court
sustained Quisano's objection after the State asserted, "you went to court
one time and asked for one thing, and you're coming to court now and
asking for the complete opposite." Second, at sentencing, the State did not
rely on its impeachment of Rodrigues, but rather argued that Quisano had
a prior record of child abuse against Khayden, and in the present case,
Khayden suffered injuries consistent with child abuse. Third, the district
court did not place value on the affidavit, which was merely marked as a
court exhibit, but rather, expressly stated that it found Quisano's history
of child abuse in Hawaii particularly influential in its sentencing
determination. Fourth, and most important, the district court sentenced
Quisano in accordance with the guilty plea agreement. The failure to
disclose the affidavit, although a violation of the State's open-file policy,
did not ultimately prejudice Quisano or result in a miscarriage of justice.
Valdez, 124 Nev. at 1190, 196 P.3d at 477 (holding that reversal is not
warranted under the plain-error standard unless the error affects the
l6Although Quisano raised a general objection that the State
violated discovery rules, he did not use the precise words "the State
violated its open-file policy," and the district court did not rule on that
issue. As such, we review for plain error because Quisano may not have
sufficiently raised an objection based on the violation of the open-file
policy. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)
(holding that unpreserved claims of prosecutorial misconduct are subject
to plain-error review). Even if error is plain from a review of the record,
we will not reverse Quisano's sentence under that standard unless
Quisano "demonstrates that the error affected his .. . substantial rights,
by causing 'actual prejudice or a miscarriage of justice?" See id. (quoting
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).
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defendant's substantial rights). Therefore, reversal of Quisano's sentence
is not warranted on this basis. 17
17 Even if this court assumed that Quisano's objection at sentencing
was sufficient to preserve the open-file policy issue for review under the
harmless-error standard, Quisano's claim would nevertheless fail, as the
State's failure to disclose the affidavit neither prejudiced Quisano nor
affected the district court's sentencing determination. See Valdez, 124
Nev. at 1188-89, 196 P.3d at 476 (setting forth the harmless-error
standard for nonconstitutional error); see also McKee, 112 Nev. at 648, 917
P.2d at 944 (reviewing a prosecutor's failure to comply with an open-file
policy for nonconstitutional harmless error where the appellant properly
preserved the issue for appellate review).
Quisano further contends that the State was required to disclose the
affidavit under NRS 174.235 and the district court's order compelling
discovery, and therefore, he asserts that the district court abused its
discretion by permitting the State to cross-examine Rodrigues using the
affidavit. Even if we assume that NRS 174.235 or the discovery order
required the State to disclose the affidavit, Quisano would not be entitled
to relief because the facts in the present case do not establish that the
State's failure to disclose the affidavit prejudiced Quisano and because
Quisano does not otherwise argue that the State acted in bad faith. See
Evans v. State, 117 Nev. 609, 638, 28 P.3d 498, 518 (2001) ("The district
court has broad discretion in fashioning a remedy" for discovery violations,
and reversal is not appropriate "absent a showing that the State acted in
bad faith or that the nondisclosure caused substantial prejudice to the
defendant which was not alleviated by the court's order.").
We also note that the record does not support the State's assertion
that it did not intend to use Rodrigues as a witness. Based on the DFS
employee's efforts to memorialize Rodrigues' statements at the family
court proceeding, shortly before Quisano's plea, it appears that the State
intended to impeach Rodrigues at Quisano's trial. Moreover, as the DFS
employee summarized Rodrigues' testimony in an affidavit following entry
of Quisano's plea, but before sentencing, it appears that the State
anticipated that Rodrigues would provide an oral statement on behalf of
Quisano at sentencing. Tellingly, at Quisano's sentencing, the district
continued on next page...
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927, 935, 192 P.3d 1178, 1183 (2008) (concluding that the failure to apply
the procedural safeguards for juror questioning constitutes
nonconstitutional error and applying the federal test set forth in Kotteakos
v. United States, 328 U.S. 750 (1946)).
...continued
court observed that the affidavit was "nicely highlighted. I suspect they
thought maybe [Rodrigues] would be showing up to speak."
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We recognize that the presence of cameras in the courtroom
can be a controversial topic, and without adequate safeguards, a camera's
presence may violate a criminal defendant's right to due process. The
United States Supreme Court, however, has refused to create a per se
constitutional rule against electronic coverage of courtroom proceedings.
See Chandler v. Florida, 449 U.S. 560, 573, 582-83 (1981). In Chandler,
the Court reasoned that technological advancements had limited the
degree to which cameras disrupt courtroom proceedings and that states
had enacted safeguards to protect against the dangers identified by earlier
caselaw. Id. at 576-77.
The procedural requirements set forth in SCR 230 are
examples of safeguards that serve to protect a criminal defendant's
constitutional rights by ensuring that district courts properly balance a
defendant's constitutional right to a fair trial with the media's and public's
interest in electronic coverage of courtroom proceedings. See Chandler,
449 U.S. at 577 (recognizing that a trial court's consideration, on the
record, of a defendant's objection to media coverage functions as a
safeguard of the defendant's constitutional rights). Under SCR 230(2),
courtroom proceedings that are open to the public are presumptively
subject to electronic coverage. Participants in a courtroom proceeding
need not consent to electronic coverage. SCR 240(1). But media outlets
desiring to cover a courtroom proceeding by electronic recording or
photography must file a written request with the court at least 24 hours
before the proceeding commences. SCR 230(1). The district court,
however, may grant a request to provide electronic coverage "on shorter
notice or waive the requirement for a written request" entirely. Id.
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Under SCR 230(2), "[a] judge shall make particularized
findings on the record when determining whether electronic coverage will
be allowed." Specifically, the court must consider the following six factors:
(a) [t]he impact of coverage upon the right of
any party to a fair trial; (b) [t]he impact of
coverage upon the right of privacy of any party or
witness; (c) Mlle impact of coverage upon the
safety and well-being of any party, witness or
juror; (d) Mile likelihood that coverage would
distract participants or would detract from the
dignity of the proceedings; (e) [tlhe adequacy of
the physical facilities of the court for coverage; and
(f) rainy other factor affecting the fair
administration of justice.
SCR 230(2). The court must also make its written order "a part of the
record of the proceedings." SCR 230(1).
In the present case, the district court permitted the Las Vegas
Review-Journal to provide electronic coverage of Quisano's sentencing
hearing even though the media outlet did not timely file a request for
permission—a determination expressly authorized by SCR 230(1). The
district court, however, failed to follow the procedure set forth in SCR 230
for granting or denying requests to provide electronic coverage of
courtroom proceedings. During Quisano's sentencing hearing, the district
court considered potential prejudice by media coverage to Quisano,
analyzed the public's benefit stemming from media coverage of the
courtroom proceeding, and examined the adequacy of the physical
facilities of the court for coverage. But the district court did not make
particularized findings on the record regarding all of the factors set forth
in SCR 230(2), and it did not issue a written order granting the outlet's
request.
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By failing to comply with these requirements, the district
court erred, but the error was harmless. Nothing in the record suggests
that the district court's error contributed to its sentencing determination,
nor does Quisano argue such was the case. See Knipes, 124 Nev. at 935,
192 P.3d at 1183. In fact, Quisano acknowledged that the presence of a
reporter from the Las Vegas Review-Journal with a camera in the
courtroom did not prejudice him.
Moreover, we agree with the district court's rationale for
granting the request of the Las Vegas Review-Journal. In particular, we
note the potential benefit to the public associated with electronic coverage
of courtroom proceedings. Those benefits include (1) access to and
knowledge of the justice system; (2) public oversight of the judicial process,
which curtails judicial abuse and enhances public confidence in the
judicial system; (3) increased awareness of societal problems, including
domestic violence and child abuse; and (4) protection of defendants' rights.
See Allowing Cameras and Electronic Media in the Courtroom: Hearing on
S. 721 Before the Subcomm. on Admin. Oversight and the Courts of the S.
Comm. on the Judiciary, 106th Cong. 19, 30 (2000) (statements of Judge
Nancy Gertner, United States District Court for the District of
Massachusetts, and Sen. Charles E. Schumer). Therefore, we conclude
that Quisano's argument fails.
CONCLUSION
Because the State maintained an open-file policy, it was
subject to a duty, which extended through entry of the judgment of
conviction, to disclose all evidence in the State's possession, regardless of
whether it was inculpatory or exculpatory. The prosecutor failed to
disclose the affidavit notwithstanding that duty, and therefore, he
engaged in misconduct. The misconduct, however, did not prejudice
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Quisano because the district court did not rely on the affidavit in
sentencing Quisano and sentenced Quisano in accordance with the guilty
plea agreement.
As to his two remaining arguments, Quisano failed to
establish reversible error. First, the prosecutor's failure to disclose the
affidavit did not violate Brady because the affidavit was not favorable to
Quisano. Second, although the district court erred by failing to make
particularized findings on the record regarding all of the factors set forth
in SCR 230(2), and by failing to enter a written order granting the Las
Vegas Review-Journal permission to provide electronic coverage of
Quisano's sentencing hearing, the district court's error was harmless
because it did not contribute to the sentencing determination.
Accordingly, we affirm the judgment of conviction and sentence.
J.
Silver
I concur:
C.J.
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TAO, J., concurring in part and dissenting in part:
I agree with much that the majority writes, including the
portion of the opinion affirming the district court's decision to permit news
reporters to cover Quisano's sentencing hearing. Unfortunately, I cannot
join in the portion of its analysis relating to the scope and applicability of
the prosecutor's "open-file policy."
The majority judicially interprets the prosecutor's open-file
policy so that it now must be understood to apply not only to trial (which is
what the particular prosecutor in this case apparently understood it to
mean), but from now on to also extend beyond the determination of guilt
until entry of the judgment of conviction. The majority proffers this
interpretation as a matter of law, not based upon factual findings (as the
district court heard no sworn testimony or evidenceS and entered no factual
findings), and furthermore it does so on appeal de novo without deference
to the district court or to the prosecutor who wrote the policy.
As an exercise in public policy, the majority's reading of the
open-file policy probably has much in it to commend; one could argue that
there exist sound and good reasons why elected district attorneys in this
state should adopt voluntary open-file discovery policies that are both
generous and extend through the completion of sentencing, not just
through trial. See Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann.
Rev. of Crim. Proc. viii (2015) ("There is reason to doubt that prosecutors
comply with [their] obligations fully."). Indeed, former Chief Judge
Kozinski of the United States Court of Appeals for the Ninth Circuit,
certainly no liberal firebrand, has written of an "epidemic of Brady
violations abroad in the land." United States v. Olsen, 737 F.3d 625, 626
(9th Cir. 2013) (Kozinski, C.J., dissenting). Whether or not that epidemic
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truly exists or has spread to Nevada, requiring more disclosure in criminal
cases beyond the requirements of Brady and Giglio might well represent
good policy, even if only as a preventative measure against future abuse.
It's possible, perhaps even likely, that with broader prosecutorial open-file
discovery policies and more presentencing discovery, Brady violations may
be more infrequent, criminal trials may be more free of error, and
sentences might be more appropriately tailored to the defendant and the
crime. See id. But see Brian P Fox, Note, An Argument Against Open-File
Discovery in Criminal Cases, 89 Notre Dame L. Rev. 425, 428 (2013)
(arguing that "open-file discovery would serve no actual purpose in
eliminating. . . prosecutorial misconduct").
But the problem here is that, even if all of these things are
true, the question before us is not whether this approach represents good
policy; the only question that should matter to us is whether it represents
good law. The majority reasons that because several statutes (NRS
174.234, NRS 174.245, NRS 484C.400(2), NRS 200.485(4), and NRS
207.016(2)) require the State to provide certain types of discovery in
connection with certain types of sentencing proceedings in certain types of
criminal cases, the prosecutor's open-file policy should be interpreted to
require the same thing in other types of cases not covered by those
statutes. But merely because the Legislature has imposed presentencing
discovery obligations upon prosecutors in some cases does not mean that
those obligations govern prosecutors in other cases that the Legislature
chose not to address. If anything, it suggests the exact opposite: that the
Legislature did not intend to create a general rule governing
presentencing discovery in all criminal cases.
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So the court's holding today does not originate in any statute.
Instead, to reach its conclusion, the majority interprets the meaning of the
prosecutor's open-file policy as a question of law in the same way that the
Nevada Supreme Court has interpreted the meaning of criminal discovery
statutes. But prosecutorial policies are not legislative statutes, and the
two things cannot be interpreted using the same methods. I diverge from
the majority because its analysis of the open-file policy raises a serious
constitutional question regarding the power of the judiciary to "interpret"
(or "construct") the meaning of a prosecutorial policy against the
intentions of its author. Unlike my colleagues, I do not think that we have
any such power, and therefore, I do not think we can legitimately make
the prosecutor's open-file policy mean what the majority does.
The proper place to begin is by considering the limits of our
judicial power. As an intermediate appellate court, our freedom of action
in resolving a particular case is bounded on many sides. Above, our power
is constrained by existing precedent of the Nevada Supreme Court under
principles of stare decisis. Hubbard v. United States, 514 U.S. 695, 718,
720 (1995) (Rehnquist, CA., dissenting) (stare decisis "applies a fortiori to
enjoin lower courts to follow the decision of a higher court"). Below, we
are limited by the issues actually raised, argued, and disposed of before
the district court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623
P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to
the jurisdiction of that court, is deemed to have been waived and will not
be considered on appeal."); State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d
1291, 1293 n.3 (1989) ("This court will not consider issues raised for the
first time on appeal."). Our review in many cases is further limited by the
factual findings made by the district court, which we cannot second-guess
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absent clear error, the existence of which should only rarely be found. See
Somee v. State, 124 Nev. 434, 187 P.3d 152 (2008).
Additionally, in our tri-partite system of government,
wherever the other coequal branches of government have chosen to act, we
must accord deference to them on any issue that lies within their
constitutional power to address. See Nev. Const. art. 3, § 1(1) ("The
powers of the Government of the State of Nevada shall be divided into
three separate departments,—the Legislative,—the Executive and the
Judicial; and no persons charged with the exercise of powers properly
belonging to one of these departments shall exercise any functions,
appertaining to either of the others, except in the cases expressly directed
or permitted in this constitution."). See generally Beazer Homes Nev., Inc.
v. Eighth Judicial Dist. Court, 120 Nev. 575, 578 n.4, 97 P.3d 1132, 1134
n.4 (2004) ("When a statute is clear, unambiguous, not in conflict with
other statutes and is constitutional, the judicial branch may not refuse to
enforce the statute on public policy grounds. That decision is within the
sole purview of the legislative branch."); City of Las Vegas v. Eighth
Judicial Dist. Court, 118 Nev. 859, 867, 59 P.3d 477, 483 (2002)
(invalidating vague statute because, to enforce it, "this court would have to
engage in judicial legislation and rewrite the statute substantially"),
abrogated on other grounds by State v. Castaneda, 126 Nev. 478, 245 P.3d
550 (2010). This deference applies equally to the Legislative and
Executive branches.' See Holiday Ret. Corp. v. State, Div. of Indus.
"At least on civil matters, an administrative agency cannot interpret
a criminal law because criminal statutes "are for courts, not for the
Government, to construe." Abramski v. United States, U .S.
134 S. Ct. 2259, 2274 (2014). See Esquivel-Cantana v. Lynch, F.3d ,
continued on next page...
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Relations, 128 Nev. 150, 154, 274 P.3d 759, 761 (2012) ("It is the
prerogative of the Legislature, not this court, to change or rewrite a
statute."); State, Div. of Ins. v. State Farm Mitt. Auto. Ins. Co., 116 Nev.
290, 293, 995 P.2d 482, 485 (2000) (courts give great deference to
executive branch agency decisions). See generally United States v.
Armstrong, 517 U.S. 456, 464 (1996) NA] presumption of regularity
supports. . prosecutorial decisions and, in the absence of clear evidence
to the contrary, courts presume that they have properly discharged their
official duties." (internal citations and quotation marks omitted)). And of
course overarching everything is the Nevada Constitution, which created
the judicial branch and defines, as well as limits, its power to do anything
in any civil or criminal case. See Nev. Const, art. 6. See generally John G.
Roberts, Jr., Comment, Article III Limits on Statutory Standing, 42 Duke
L.J. 1219, 1230 (1993) ("Separation of powers is a zero-sum game. If one
branch unconstitutionally aggrandizes itself, it is at the expense of the
other branches."); Antonin Scalia, The Doctrine of Standing as an
Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881,
881 (1983) (recognizing that going beyond recognized judicial limits "will
inevitably produce—as it has during the past few decades—an
overjudicialization of the processes of self-governance").
...continued
, 2016 WL 192009 (6th Cir. 2016) (Sutton, J., concurring in part and
dissenting in part) (stating that "the federal courts have never presumed
that, when an ambiguity arises in a criminal statute, the congressional
silence signals that Congress wants an executive-branch agency to fill the
gap"). The prosecutor's open-file policy is not itself either a criminal law
or an interpretation of a criminal statute.
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It seems to me that deciding what a prosecutor's open-file
policy should say, and what prosecutors are required to do under it, is an
exercise of a fundamentally prosecutorial (executive) function, and I
wonder whether we have any (judicial) power to make it mean what the
majority does when we have no evidence (literally none, as the district
court did not conduct an evidentiary hearing) that the district attorney
who wrote it intended to give it that meaning
Let's define exactly what is at stake here. Under Nevada law,
the elected district attorney is the public prosecutor within each county.
NRS 252.080. The Legislature has delegated limited "policymaking
authority" to each district attorney to govern the affairs of its own office.
See NRS 252.070(1) (referring to "policymaking authority for the office of
the district attorney"). The open-file policy here was adopted by the Clark
County District Attorney but not formally made into a regulation under
NRS Chapter 233B, the Nevada Administrative Procedures Act.
Therefore, it does not constitute an administrative regulation that would
have the force and effect of Nevada law. See State ex rel. Nev. Tax
Comm'n v. Saveway Super Serv, Stations, Inc., 99 Nev. 626, 630, 668 P.2d
291, 294 (1983) ("A properly adopted substantive rule establishes a
standard of conduct which has the force of law.").
Consequently, the open-file policy at issue here is not a public
statute or administrative regulation; it is a unilaterally revocable office
policy voluntarily adopted by the Clark County District Attorney to govern
how its staff prosecutors handle criminal prosecutions. See Kyles v.
Whitley, 514 U.S. 419, 437 (1995). The decision to adopt an open-file
policy belongs to the district attorney; it's an exercise of executive branch
prosecutorial power that courts generally have limited power to second -
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guess. A court cannot force a prosecutor to adopt a policy if he does not
want one; that decision is his alone to make in the exercise of his judgment
as an elected official. See id. (stating that the United States Constitution
does not "demand" that prosecutors adopt open-file policies).
Normally, courts are required to give deference to an executive
branch agency that acts within its constitutional power, such as when it
enacts or interprets administrative regulations pursuant to Nevada's
Administrative Procedures Act, NRS Chapter 233B. See State, Div. of Ins.
v. State Farm Mitt. Auto. Ins. Co., 116 Nev. 290, 293, 995 P.2d 482, 485
(2000) ("When determining the validity of an administrative regulation,
courts generally give 'great deference' to an agency's interpretation of a
statute that the agency is charged with enforcing."); State Indus. Ins. Sys.
v. Miller, 112 Nev. 1112, 1119, 923 P.2d 577, 581 (1996) ("An
administrative agency such as SITS, charged with the duty of
administering an act, is impliedly clothed with power to construe the
relevant laws and set necessary precedent to administrative action. The
construction placed on a statute by the agency charged with the duty of
administering it is entitled to deference." (quoting State Indus, Ins. Sys. v.
Snyder, 109 Nev. 1223, 1228, 865 P.2d 1168, 1171 (1993))). Similar
deference exists when an executive branch agency adjudicates
administrative grievances over which it has statutory jurisdiction. See
Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. „ 302 P.3d 1108,
1115 (2013).
Because we must give deference when an agency creates,
interprets, or adjudicates formal administrative regulations that have the
force and effect of law, I assume a fortiori that we must give similar
deference (and perhaps even more) when the agency enacts something less
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than a formal administrative regulation, such as a voluntary office
discovery policy. The United States Court of Appeals for the District of
Columbia has described a federal executive agency policy as follows:
An agency policy statement does not seek to
impose or elaborate or interpret a legal norm. It
merely represents an agency position with respect
to how it will treat—typically enforce—the
governing legal norm. By issuing a policy
statement, an agency simply lets the public know
its current enforcement or adjudicatory approach.
The agency retains the discretion and the
authority to change its position—even abruptly—
in any specific case because a change in its policy
does not affect the legal norm. We thus have said
that policy statements are binding on neither the
public nor the agency.
Syncor Int? Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (internal
citations omitted). This seems an apt description of (or at least analogue
to) a Nevada prosecutor's open-file policy: something less than a formal
statute or regulation that can be retracted or rewritten as the district
attorney pleases. Because it is such a thing, I think a serious question
exists as to whether courts organized under Article VI have any power to
judicially "interpret" it as a question of law in the way that courts can
interpret a statute enacted by the Legislature or an administrative
regulation enacted under the Administrative Procedures Act. Thus, the
majority's unspoken premise—that we have the judicial power to make the
open-file policy extend through sentencing despite having no evidence that
the district attorney intended that—may be seriously flawed. 2
If we had the power to interpret a mere policy in the same manner
2
as we could a statute—as a question of law rather than fact and by using
the same rules of interpretation that we would apply to a statute—an
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That is not to say, however, that courts never have any power
whatsoever over executive branch policies. Although the branches of
government are separate and coequal, there are areas where, much like
the circles of a Venn diagram, the constitutional powers belonging to two
branches can sometimes overlap. For example, if a prosecutor's
employment were terminated because he allegedly violated an office policy
and he challenged the termination in court as illegal under Nevada
employment law, the questions of whether the employer complied with the
policy, and whether the policy complied with the law, would become ours
to resolve. See generally Terry v. Sapphire's Gentlemen's Club, 130 Nev.
, 336 P.3d 951 (2014). Similarly, if an executive branch agency fails to
follow its own regulations, the failure may sometimes implicate due
process concerns. See Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d
1243, 1245 (5th Cir. 1984) (recognizing that the failure of an agency to
follow each and every regulation is not per se a denial of due process in
...continued
interesting argument exists that the open-file policy might be read to
apply through sentencing. The open-file policy here states that the
discovery obligations imposed by it are "ongoing." "Ongoing" is commonly
defined as follows: "continuing without termination or interruption,"
Random House Unabridged Dictionary (2d ed. 1993), or "continuing to
exist, happen, or progress: continuing without reaching an end," Merriam-
Webster Online Dictionary (2015). Thus, the prosecutor's discovery
obligations are "ongoing," which, if we could engage in textual analysis, we
could conclude means that they do not end until the case is over, and
therefore, they do apply through sentencing. But that puts the cart before
the horse, because I am not sure we have the power to do that, or even if
we did, we necessarily would do so as a question of law, or that we would
interpret the policy by using the same rules of textual analysis that we
would apply to a legislative enactment, or that we could engage in this
analysis on appeal in a de novo manner.
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every instance, but it is when the regulation was required to be
implemented in order to satisfy the constitution); Derrickson v. Bd. of
Ethic., 703 F.2d 309, 315 (8th Cir. 1983) ("We agree that a state agency's
failure to follow its own ordinances or regulations may constitute a
deprivation of property without due process."). See generally Wyman v.
State, 125 Nev. 592, 600, 217 P.3d 572, 578 (2009) (Nevada's due process
clause is coextensive with the Due Process Clause of the United States
Constitution).
Numerous other examples of this overlap exist; most relevant
here is that where an executive branch policy affects the way a criminal
case is prosecuted in court (and open-file discovery policies clearly do
that), it overlaps with the province of the judiciary, and courts possess
some constitutional power to ensure that the policy does not harm the
integrity of a judicial proceeding or result in fundamental unfairness. See
United States v. Armstrong, 517 U.S. 456, 464 (1996) (providing that if
prosecutor's policy constitutes improper race-based "selective prosecution,"
resulting charges can be dismissed and conviction can be reversed);
Salaiscooper v. Eighth Judicial Dist. Court, 117 Nev. 892, 902-03, 34 P.3d
509, 516-17 (2001) ("selective prosecution" may violate the equal
protection clause).
Within this overlapping area, the court possesses some power
to regulate the meaning and operation of a prosecutorial policy. But,
broadly speaking, that power is conventionally exercised in one of a few
discrete ways: 3 first, a court can invalidate (or refuse to enforce) an
There are others: for example, if an executive branch agency
engages in illegal behavior, a court can issue an injunction or writ
prohibiting the behavior from continuing or resuming under pain of
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executive branch policy that is illegal or unconstitutional or results in
fundamental unfairness during a trial. What this really means is that the
court can't necessarily make the executive branch retract the policy, but it
can exclude from trial any evidence obtained under the policy, and it can
toss out any conviction in which the policy played a meaningful role. See
Armstrong, 517 U.S. at 465; see also Silvar v. Eighth Judicial Dist. Court,
122 Nev. 289, 129 P.3d 682 (2006) (invalidating county ordinance as
unconstitutionally vague).
Alternatively, the court can sanction a prosecutor, exclude
evidence from trial, and void a conviction if the prosecutor intentionally
violated the policy in a way that undermines the fairness of a trial. See
McKee v. State, 112 Nev. 642, 648, 917 P.2d 940, 944 (1996) (providing
that when prosecutor represented that he would comply with open-file
policy but then didn't, he committed "an act of deception" that misled the
defendant and warranted reversal of criminal conviction).
What a court cannot do is to write or amend laws, regulations,
or policies for the other branches of government. See Holiday Ret. Corp. v.
State, Div. of Indus. Relations, 128 Nev. 150, 154, 274 P.3d 759, 761 (2012)
("It is the prerogative of the Legislature, not this court, to change or
rewrite a statute."). See generally W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 651 (1943) (Frankfurter, J., dissenting) ("A court can only
strike down. It can only say 'This law or that law is void.' It cannot
modify . .").
...continued
contempt But since those powers do not relate to the instant case, and
there is no allegation that the open-file policy here is illegal, these broad
categories will suffice to demonstrate my point.
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The interesting question here is whether the court possesses
another power: to interpret the meaning of an executive branch policy as a
matter of law de novo, in the same way that it can interpret a legislative
enactment. I would say that the answer is unclear at best; no published
Nevada Supreme Court case has ever purported to interpret, according to
the rules of interpretation normally applied to statutes, the meaning of an
executive branch policy that is less than a law or regulation. 4 And, even if
such a theoretical power existed, I am not sure what rules of
interpretation would apply. The normal rules of statutory interpretation
are that the plain words of a statute govern unless they are ambiguous.
See State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004) ("We
must attribute the plain meaning to a statute that is not ambiguous."
(citing Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004)). Upon
a finding of ambiguity, the court's task then becomes to assess the intent
of the drafter, not to rewrite the policy into something different that the
court might think is better but the drafter did not intend. See Beazer
Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 580, 97 P.3d
1132, 1135 (2004) ("In construing an ambiguous statute, we must give the
statute the interpretation that reason and public policy would indicate the
4 The cases principally relied upon by the majority are Floyd v. State,
118 Nev. 156, 42 P.3d 249 (2002), and McKee v. State, 112 Nev. 642, 917
P.2d 940 (1996). But neither case says anything about the power of a
court to "interpret" the meaning of a voluntary policy that is not a law or
regulation. Floyd was an exercise in the interpretation of two ambiguous
statutes, namely, NRS 174.234 and NRS 174.245, which the Nevada
Supreme Court held extend through the sentencing phase of a death-
penalty case. McKee simply held that a prosecutor commits an "act of
deception" when he misleads a defendant by promising to comply with a
policy, but then does not.
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legislature intended." (internal quotation marks and citation omitted));
Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885, 887 (1989) (providing
that when interpreting statutes, "[Ole legislature's intent should be given
full effect").
But when an executive branch policy does not have the force
and effect of law, I am not sure why we would interpret it according to the
same rules that apply to laws. And even if we could, a law is created
following public legislative debate, and a regulation is created following
public notice and comment, but an executive branch policy requires
neither of these things. So when such a policy is ambiguous, I am not sure
how we could discern the "intent of the drafter" when there is no publicly
available history or debate to analyze. Thus, the answers to whether we
have the power to interpret an executive branch policy as a matter of law,
and how we would do it, are far from clear.
Consequently, I would not so easily assume that we have the
power to engage in judicial construction of a prosecutor's policy at all.
Even if we did, I would think that, at a minimum, we must do so in a way
that gives considerable deference to the district attorney, rather than as a
question of law de novo. See generally Armstrong, 517 U.S at 464 (In the
federal system, "Mlle Attorney General and United States Attorneys
retain broad discretion to enforce the Nation's criminal laws ... . As a
result, Tale presumption of regularity supports' their prosecutorial
decisions and, in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official duties." (internal
citations and quotation marks omitted)). So, as long as the contents of an
open-file policy end up being unambiguous and legal, decisions on such
things as whether to adopt a policy at all, what it should say, and how far
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it should go, belong entirely to the district attorney and represent an
exercise of executive-branch power that lies outside of our power to
regulate.
In this case, nobody contends that the policy violates any
statute or is less protective of the defendant's right to discovery than the
Constitution requires under Brady or Giglio; everyone agrees that the
policy here goes much further than required by those cases. If the elected
district attorney decides that its voluntary discovery policy should be
broader than required, but expire before sentencing, there is little that
courts can do about that so long as the policy does not violate existing law
or the constitution or intrude upon judicial functions, which the policy
here did not.
Thus, in this case, the content and meaning, per se, of the
prosecutor's policy are none of our business and not ours to interpret. And
even if they somehow were, our options would naturally be limited to
invalidating the policy if it were illegal, imposing a sanction if it was
violated, or possibly (but far from surely) identifying the drafter's intent if
it were ambiguous. But here, nobody asserts that the policy is illegal,
unconstitutional, or ambiguous. Quite to the contrary, the majority
specifically concludes that no due process violation occurred under Brady
or Giglio and, furthermore, that no Nevada statute required the disclosure
of the affidavit that the prosecutor used against Quisano. The majority
does not even find the policy to be fundamentally unfair; rather, it affirms
Quisano's conviction and sentence precisely because it concludes that what
happened at sentencing under the existing open-file policy was not all that
unfair to Quisano.
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Yet the majority concludes that the policy—despite not being
ambiguous, illegal, or unfair—is in need of judicial construction
nonetheless. It then imposes upon it a construction as a matter of law
that reflects no deference to the district attorney and is unanchored to the
drafter's intention.
Where the constitutional power to do all of that comes from is
entirely unclear. Perhaps one could argue that it exists under Article 3,
Section 1(1) of the Nevada Constitution. But I am inclined to think it does
not.
Because the majority sees things differently, I respectfully
concur in much of the majority's opinion but dissent from the portion
relating to the scope and meaning of the open-file policy.
Tao
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