Moore (Herbie) v. State

• Court: Nevada Supreme Court
• Decided: May 13, 2014
• Docket: 63389
• Status: Unpublished

Opinion

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

SUPREME COURT OF NEVADA 2 (0) 194M en 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

SUPREME COURT OF NEVADA 3 (0) (947A .(Ari i. f 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 SUPREME COURT OF NEVADA 4 (0) 1947A