Newcastle (Mike) v. State ( 2014 )

 deadly weapon causing substantial bodily harm. See NRS
200.481(2)(g)(2). While he contends that other evidence contradicted this
testimony, it was for the jury to determine the weight and credibility to
give the conflicting testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d
20, 20 (1981).
Second, Newcastle argues that the district court erred in
denying his motion to dismiss based on a violation of Brady v. Maryland,
373 U.S. 83 (1963). He asserts that the State failed to disclose video
evidence that indicated that Officer Green handled the purported weapon,
a large mixing paddle, without gloves and had checked the weapon out to
other inmates that day. The video also showed the door to the crime scene
could be opened without breaking the evidence tape. We conclude that
this claim lacks merit. w[T]here are three components to a Brady
violation: the evidence at issue is favorable to the accused; the evidence
was withheld by the state, either intentionally or inadvertently; and
prejudice ensued, i.e., the evidence was material." Browning v. State, 120
Nev. 347, 369, 91 P.3d 39, 54 (2004) (quoting Mazzan v. Warden, 116 Nev.
48, 67, 993 P.2d 25, 37 (2000)). Evidence explaining the presence of
another's DNA on the purported weapon and showing that the crime scene
was not secure was favorable to Newcastle. However, the State did not
withhold the evidence, but produced it during trial. The district court
permitted Newcastle to recall Officer Green for examination about the
statement he made in the video. Moreover, Newcastle failed to
demonstrate the late disclosed evidence was material. In light of the
evidence that he was found standing above the victim holding a large
mixing paddle, admitted that he "did it," and the victim's blood was found
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on the paddle and his clothing, he failed to demonstrate prejudice
resulting from the late disclosure.
Third, Newcastle argues that the district court erred in
denying his motion for a new trial based on juror misconduct. He
contends that two jurors expressed the sentiment that Newcastle "was in
prison for a reason," which seemed to indicate they were disregarding the
instruction regarding Newcastle's presumption of innocence. In order to
"prevail on a motion for a new trial based on juror misconduct, the
defendant must present admissible evidence sufficient to establish: (1) the
occurrence of juror misconduct, and (2) a showing that the misconduct was
prejudicial." Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 447, 455 (2003).
"A jury's failure to follow a district court's instruction is intrinsic juror
misconduct." See Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475
(2008). "[O]ily in extreme circumstances will intrinsic misconduct justify
a new trial." Id. at 565, 80 P.3d at 456. We conclude that the district
court did not abuse its discretion in concluding that this situation did not
arise to such a level. See Servin v. State, 117 Nev. 775, 792, 32 P.3d 1277,
1289 (2001) (reviewing district court decision on timely motion for new
trial for abuse of discretion). The comments may have indicated that the
jurors had disregarded the instructions by considering improper,
unadmitted character evidence. However, considering the aforementioned
evidence of Newcastle's guilt and that the expressed sentiment of the
jurors would be the same regarding any of the other possible perpetrators,
Newcastle failed to demonstrate a "reasonable probability or likelihood
that the juror misconduct affected the verdict." Meyer, 119 Nev. at 564, 80
P.3d at 455.
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Having considered Newcastle's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
-10-A AA J.
Hardesty
J.
------AeCrA'
Douglas
J.
cc: Hon. Steve L. Dobrescu, District Judge
State Public Defender/Ely
State Public Defender/Carson City
Attorney General/Carson City
Attorney General/Ely
White Pine County Clerk
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