Moore (Herbie) v. State ( 2014 )

 opportunity to view Moore and be familiar with his appearance, and the
certainty with which she identified Moore and the attendant
circumstances of the identification did not suggest a due process violation.
The record supports the district court's findings and we conclude that it
did not abuse its discretion in this regard. See Browning v. State, 104
Nev. 269, 274, 757 P.2d 351, 354 (1988) (discussing in-court
identifications); Jones v. State, 95 Nev. 613, 617, 600 P.2d 247, 250 (1979).
Second, Moore contends that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory or
impeachment evidence before the preliminary hearing. "Brady and its
progeny require a prosecutor to disclose evidence favorable to the defense
when that evidence is material either to guilt or to punishment." State v.
Huebler, 128 Nev. „ 275 P.3d 91, 95 (2012) (internal quotation
marks omitted), cert. denied, U.S. , 133 S. Ct. 988 (2013). However,
Brady only requires the State "to turn over the evidence in time for it to be
of use at trial." United States v. Fernandez, 231 F.3d 1240, 1248 n.5 (9th
Cir. 2000); see also United State v. Gordon, 844 F.2d 1397, 1403 (9th Cir.
1988) ("Brady does not necessarily require that the prosecution turn over
exculpatory material before trial. To escape the Brady sanction, disclosure
must be made at a time when disclosure would be of value to the accused."
(internal quotation marks omitted)); United States v. Wilson, 160 F.3d
732, 742 (D.C. Cir. 1998) ("[A] new trial is rarely warranted based on a
Brady claim where the defendants obtained the information in time to
make use of it."). Here, the record demonstrates that Moore received a
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transcript of Angel Grant's police statement a full two years before his
case went trial, and it does not demonstrate a reasonable probability that
the result of the preliminary hearing would have been different if the
statement had been provided sooner. See Sheriff Washoe Cnty. v.
Middleton, 112 Nev. 956, 961, 921 P.2d 282, 286 (1996) ("[P]robable cause
to bind a defendant over for trial may be based on slight, even marginal
evidence." (internal quotation marks omitted)). Accordingly, we conclude
that this contention is without merit.
Third, Moore contends that the State obtained Laura
Fradiue's testimony through coercion by threatening to place her in jail
and take her children away. Because Moore failed to object to Fradiue's
testimony on these grounds at trial, we review this contention for plain
error. See Mclellan, 124 Nev. at 269, 182 P.3d at 110. `Witness
intimidation by a prosecutor can warrant a new trial if it results in a
denial of the defendant's right to a fair trial." Rippo v. State, 113 Nev.
1239, 1251, 946 P.2d 1017, 1025 (1997). The record reveals that Fradiue
testified on direct examination that a uniformed officer and homicide
detective came to her house to talk about an incident involving her car.
The detective told her that she would have been taken to jail and her
children would have been taken away if a different officer had responded
to the incident. And she did not feel threatened by the officers or that she
had to tell them "one thing in order not to be arrested or not have [her]
children taken or anything." However, on cross-examination she testified
that the officers told her that her children would be taken away if she lied
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or did not cooperate with them and this scared her as a mother. Because
the circumstances under which Fradiue talked to the police were
presented to the jury and constituted factors that the jury could weigh
when assessing the credibility of her testimony, see Wise v. State, 92 Nev.
181, 183, 547 P.2d 314, 315 (1976), we conclude that Moore has not
demonstrated plain error.
Having concluded that Moore is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
J.
Douglas
CHERRY, J., dissenting:
I dissent. I would have set the matter for oral argument.
J.
Cherry
cc: Hon. Elissa F. Cadish, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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