Fernandez (Jose) v. State ( 2013 )

 trial. Fernandez responded that he did not know to notice the witness
because he just learned about the information. During jury deliberations
Fernandez obtained a three-page signed statement from the inmate
describing the eyewitness' confession in detail. After two days of
deliberation, the jury returned a guilty verdict on all counts.
"This court reviews the district court's decision regarding a
motion for continuance for an abuse of discretion." Rose v. State, 123 Nev.
194, 206, 163 P.3d 408, 416 (2007). "Each case turns on its own particular
facts, and much weight is given to the reasons offered to the trial judge at
the time the request for a continuance is made." Higgs v. State, 126 Nev.
222 P.3d 648, 653 (2010). "This court has held denials of motions
for reasonable continuances to be an abuse of discretion where the purpose
of the motion is to procure important witnesses and the delay is not the
particular fault of counsel or the parties." Lord v. State, 107 Nev. 28, 42,
806 P.2d 548, 557 (1991), limited on other grounds by Summers v. State,
122 Nev. 1326, 1331, 148 P.3d 778, 782 (2006). "Where . . . the jury's
determination of guilt or innocence heavily depends upon their assessment
of the credibility of the defendant and [his accuser], testimony which
corroborates one party and discredits the other is material and essential."
Banks v. State, 101 Nev. 771, 774, 710 P.2d 723, 725 (1985).
The only reasons given by the district court for its denial of
Fernandez's motion was the timing of the motion and Fernandez's failure
to notice the witness before trial. Contrary to the district court's
assertion, Fernandez's failure to notice the inmate as a witness did not
preclude the court from admitting his testimony. NRS 174.234(3)(a) only
requires the court to prohibit unnoticed witnesses from testifying where
the party acted in bad faith. At the time the district court denied the
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continuance there was no evidence of bad faith. While judicial economy is
an important concern when considering a motion for a continuance, the
court should also consider the benefit that the moving party anticipates
and the likelihood that such a benefit will result. See People v. Barnett,
954 P.2d 384, 436 (Cal. 1998). Here, a potentially exculpatory witness was
sitting in a cell less than a block away from the courtroom and the district
court denied a brief continuance based on its unsupported belief that the
defendant was misleading the court. Had the inmate testified in the
manner proffered by Fernandez's attorney, such testimony would have
supported Fernandez's claim that he did not kill the victim and
undermined the testimony of the State's key eyewitness who himself had
been charged with the murder before negotiating a plea agreement with
the State in exchange for testifying against Fernandez. After considering
the facts and circumstances of this case and the reasons given by the
district court in denying the request for a brief continuance, we conclude
that the district court abused its discretion by denying Fernandez's
motion.
Furthermore, we cannot say that this error was harmless. See
NRS 178.598; Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476
(2008) (explaining that this court will only reverse non-constitutional error
if the error substantially affects the jury's verdict); see also Banks, 101
Nev. at 774, 710 P.2d at 725 (considering whether testimony was material
to defense). While Fernandez admitted that he fought with the victim, he
claimed that the State's eyewitness was the one who repeatedly stabbed
the victim and slit his throat in the bathroom. This theory was supported
by the gash on the eyewitness' hand, testimony that the eyewitness' DNA
was found in the bathroom, and the eyewitness' attempt to flee the
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country shortly after the murder. In light of the importance of the
eyewitness' testimony and the relative strength of the corroborating
evidence, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 1
cc: Hon. Douglas W. Herndon, District Judge
Law Offices of C. Conrad Claus
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
1 Because we reverse Fernandez's judgment of conviction and
remand this matter for a new trial we need not address Fernandez's other
claims of error.
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