Fletcher (Katherine) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
KATHERINE DEE FLETCHER, No. 82047
Appellant,
VS. FILE
THE STATE OF NEVADA,
Respondent. AU 2 5 2022
TH A. BROWN
CL OF UPREAIE COURT
ORDER OF AFFIRMANCE
CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with the use of a deadly weapon. Second
Judicial District Court, Washoe County; Egan K. Walker, Judge.
As relevant to this appeal, the State charged appellant
Katherine Fletcher in 2016 by information with first-degree murder with
the use of a deadly weapon. The jury convicted Fletcher on that charge and
the court sentenced her to life without the possibility of parole with a
consecutive sentence of 8-to-20 years for the deadly weapon enhancement.
Fletcher appeals, contending that the district court (1) violated her due-
process rights by refusing to disqualify Judge Walker, and (2) abused its
discretion when it allowed the State to introduce statements she gave to her
medical expert after she withdrew her not-guilty-by-reason-of-insanity
plea.
The district court did not abuse its discretion when it denied Fletcher's
motion to disqualify Judge Walker
Relying on the Fourteenth Amendment's Due Process Clause,
Fletcher asserts that "Judge Walker's various comments about and
characterizations of Fletcher" based on his knowledge of her unrelated
family court cases "built up to the [objective] level of potential or perceived
bias that warrants disqualification or recusal." She also argues that Judge
Walker's comments made during trial "made clear the danger that [Judge
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Walker] would not be able to hold the clear balance between the State and
Fletcher." We disagree.
We review a decision regarding a motion to disqualify a judge
for an abuse of discretion. Ivey v. Eighth Judicial Dist. Court, 129 Nev 154,
162, 299 P.3d 354, 359 (2013). Under the Due Process Clause, "[r]ecusal is
required when, objectively speaking, 'the probability of actual bias on the
part of the judge . . . is too high to be constitutionally tolerable." Rippo v.
Baker, 580 U.S. 285„ 137 S. Ct. 905, 907 (2017) (quoting Withrow v.
Larkin, 421 U.S. 35, 47 (1975)). Of note, the Due Process Clause "sometimes
demand[s] recusal even when a judge `ha[s] no actual bias." Id. (quoting
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986)). The test is "not
whether a judge harbors an actual, subjective bias, but instead whether, as
an objective matter, 'the average judge in his position is likely to be neutral,
or whether there is an unconstitutional potential for bias." Williams v.
Pennsylvania, 579 U.S. 1, 8 (2016) (quoting Caperton v. A.T. Massey Coal
Co., 556 U.S. 868, 881 (2009)). While various statutes and judicial codes of
conduct "provide more protection than due process requires," the due-
process standard is "confined to rare instances." Caperton, 556 U.S. at 890(emphasis added).
As evidence of bias, Fletcher points to Judge Walker's pretrial
remark where he said to her, "I questioned as your presiding judge in the
child welfare case your competency, let alone your competency in a—in the
context of the most serious criminal allegations that can be lodged against
a human being." T-Te made that observation in the context of a sealed Young
1 Fletcher relied only on the Due Process Clause in seeking Judge
Walker's recusal. Thus, we address whether due process required Judge
Walker's disqualification, and not whether other bases for recusal existed.
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v. State, 120 Nev. 963, 102 P.3d 572 (2004), hearing in which he was
evaluating Fletcher's request to replace her attorney, and he denied the
request in part because he reasoned that Fletcher's attorney appropriately
questioned Fletcher's competency. That comment alone does not rise to the
extraordinary level necessary to implicate a due-process violation, i.e., it
does not demonstrate an unconstitutionally high risk of bias or that Judge
Walker had a stake in the outcome of Fletcher's criminal case.2 Indeed,
judges have an obligation to question competency if a reasonable doubt as
to the defendant's competency arises during litigation. See Goad v. State,
137 Nev. 167, 185, 488 P.3d 646, 662 (Ct. App. 2021) ("FA] trial court must
order a hearing sua sponte to determine whether a defendant is competent
when there is reasonable doubt about his or her competency.").
Fletcher also takes issue with statements Judge Walker made
during a sealed hearing on her mid-trial Young motion.3 While Judge
2 Fletcher has the burden to show recusal is warranted. Ybarra v.
State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011). Fletcher, relying on
portions of the hearing transcript, cut at unnatural intervals, and thus
lacking context, failed to show that Judge Walker's remarks presented an
unconstitutionally high risk of bias requiring his recusal. See id. (observing
that the party asserting a challenge against a judge must establish
sufficient factual grounds to support disqualification); see also Prabhu v.
Levine, 112 Nev. 1538, 1549, 930 P.2d 103, 111 (1996) (explaining that "Olt
is the appellant's responsibility to ensure that the record on appeal contains
the material to which exception is taken" and holding that "[i]f such
material is not contained in the record on appeal, the missing portions of
the record are presumed to support the district court's decision" (quoting
Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991), rev'd on other
grounds, 504 U.S. 127 (1992))).
3Fletcherdoes not explain specifically what comments amounted to
an "angered rebuke of Fletcher," but she appears to refer to comments Judge
Walker made when he denied her motion to substitute counsel.
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Walker referenced his familiarity with Fletcher from the prior hearings and
family court cases, he denied her motion to substitute counsel because she
"offered no facts and no assertions which justify an irreconcilable
breakdown" beyond her "own choice[ ] .. . to be mean to your attorney, for
lack of a better term," which he determined did not rise to an irreconcilable
conflict warranting new counsel under Young. Thus, although he
referenced his prior experience with Fletcher, Judge Walker relied on the
facts in the instant case and the appropriate standard under Young in
denying her motion to substitute counsel.
Moreover, the statements as a whole do not rise to the
exceptional level warranting disqualification under the Due Process Clause.
While Judge Walker acknowledged that he was the family-court judge who
approved the plan to terminate Fletcher's custodial rights, that did not give
him an interest in the resolution of this criminal case because it is a
separate legal proceeding.4 Cf. In re Murchison, 349 U.S. 133, 135, 137
(1955) (concluding that a judge who charged two petitioners with contempt
4 Fletcher appears to claim that she signed a stipulation for Judge
Walker to determine her sentence only because of Judge Walker's
"scolding." However, the comments Fletcher perceives as "scolding" do not
warrant recusal. Judge Walker informed the jury that he would impose
Fletcher's sentence after the parties • orally stipulated to that sentencing
arrangement. When Judge Walker requested a signed stipulation to that
effect, Fletcher refused to do so. Judge Walker informed Fletcher that he
was "concern[ed]" that her decisions were a "tactical choice" to "delay" the
proceedings and asked her to consider that her waffling about who should
impose a sentence may present poorly with the jurors and reflect in their
sentencing decision. Judge Walker assured Fletcher that "any sentence [he]
would impose would not be because of passion, prejudice, sympathy,
revenge or otherwise." These statements do not reference Fletcher's prior
cases or otherwise indicate bias warranting his disqualification on due
process grounds.
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and/or perjury and "then tried both petitioners in open court, [and]
convicted and sentenced them," should have been disqualified because
"[h]aving been a part of [the one-man judge-grand jury] process a judge
cannot be, in the very nature of things, wholly disinterested in the
conviction or acquittal of those accused"). Thus, the facts here do not
present one of the "rare instances" where the Due Process Clause requires
the judge's disqualification. See Caperton, 556 U.S. at 890.
Fletcher's reliance on Echavarria v. Filson, 896 F.3d 1118 (9th
Cir. 2018), is unavailing. In Echavarria, the defendant attempted to rob a
Las Vegas bank, and killed FBI agent John Bailey during the robbery. Id.
at 1120. The FBI was intimately involved in Echavarria's investigation and
prosecution. Id. at 1120-21. Judge Jack Lehman presided over
Echavarria's case. Id. at 1123. Agent Bailey had previously investigated
Judge Lehman for corruption, fraud, and perjury, but Echavarria was
unaware of this until after his trial and sentencing. Id. at 1123-25. In
resolving the disqualification issue on appeal, the court held that Judge
Lehman's failure to recuse himself violated Echavarria's due process rights
because "raln average judge in [Judge Lehman's] position would have feared
that rulings favoring Echavarria, tipping the outcome towards acquittal or
a sentence less than death, could cost him his reputation, his judgeship, and
possibly his liberty." Id. at 1131. The facts here do not support a finding
that any rulings in favor of Fletcher would risk Judge Walker's career,
reputation, or freedom. Rather, Judge Walker engaged in routine judicial
actions and, in fact, made several rulings favorable to Fletcher, such as
granting her initial Young motion. There is no showing of a personal stake
in the outcome of this case on the part of Judge Walker that would be
comparable to that of Judge Lehman, and thus, Echavarria does not support
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disqualification here. Therefore, based on all of the above, we conclude that
the district court did not abuse its discretion by denying Fletcher's motion
to disqualify Judge Walker.
The district court did not abuse its discretion when it admitted as evidence
statements Fletcher rnade during a psychological exarnination, along with
the doctor's notes regarding those statements
Fletcher asserts that the district court's order allowing the
State to present statements she made in her psychological evaluation after
she entered a not-guilty-by-reason-of-insanity plea violated her Fifth
Amendment right against self-incrimination. Fletcher later withdrew that
plea. She contends that the error was not harmless because her statements
were the only evidence the State presented to show that Fletcher had a gun
on the day of the killing.
The district court's order did not run afoul of Fletcher's due-
process rights because she voluntarily made the statements to her own
expert and did not make them as part of a court-ordered psychiatric
evaluation. Estelle v. Smith, 451 U.S. 454, 469 (1981) (recognizing that
"Molunteered statements . . . are not barred by the Fifth Amendment," and
such statements may be admitted as evidence (omission in original))
(quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966)). Fletcher initially
entered a not-guilty-by-reason-of-insanity plea on February 13, 2019. The
State moved for a mental examination of Fletcher on February 22, which
the court granted on May 24. Fletcher concedes that she provided the at-
issue statements to Dr. Melissa Piasecki before the court-ordered
psychiatric evaluation by a different evaluator, and Dr. Piasecki evaluated
Fletcher at Fletcher's request. Thus, Fletcher's statements were not
compelled and were not protected by the Fifth Amendment. See McKenna
v. State, 98 Nev. 38, 39, 639 P.2d 557, 558 (1982) (recognizing that the Fifth
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Amendment prohibits the State from using a defendant's confidential
statements made during a court-ordered psychiatric evaluation to obtain a
conviction). Accordingly, we conclude that the district court did not abuse
its discretion when it adraitted the statements Fletcher made to Dr.
Piasecki.5 McLellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008)
(applying an abuse of discretion standard to district court decisions to admit
or exclude evidence).6
Based on the foregoing, we
ORDER the judgment of conviction AFFIRMED.
J.
Silver
, J.
Cadish
Adefu tiAr J.
Pickering
J
5 Giventhat Fletcher failed to provide cogent argument or relevant
authority in support of her various remaining arguments against the
statements' admissibility, we are not persuaded that those arguments
warrant reversal. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6
(1987) (explaining that appellate courts will not consider claims
unsupported by cogent argument and relevant authority).
6We are not persuaded by the State's assertion that plain error review
should apply to the district court's evidentiary decision.
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cc: Hon. Egan K. Walker, District Judge
Oldenburg Law Office
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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