Perez, IV (Marcial) v. State

Opinion

that Perez testified on cross-examination that becoming a convicted felon

would affect his employment as an electrician and general foreman in the

union where he makes $43 an hour, result in the loss of his clearance for

entering vaults and other high-security areas in casinos, and impact the

custody of his child. The State argues that the fact that Perez lied to the

police during the collateral incident was relevant to show that he will do

anything to prevent a criminal conviction and to otherwise protect his job

and his status as the primary custodian of his child.

"We review a district court's decision to admit or exclude

evidence for an abuse of discretion." Mclellan v. State, 124 Nev. 263, 267,

182 P.3d 106, 109 (2008). "An abuse of discretion occurs if the district

court's decision is arbitrary or capricious or if it exceeds the bounds of law

or reason." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005)

(internal quotation marks omitted).

Whenever a criminal defendant takes the witness stand, he

becomes a witness and places his credibility at issue. See 2 Wharton's

Criminal Evidence § 9:21 (15th ed. 1997). The State is permitted to

impeach a defendant's credibility by inquiring into collateral matters on

cross-examination "with questions about specific acts as long as the

impeachment pertains to truthfulness or untruthfulness and no extrinsic

evidence is used." Ford v. State, 122 Nev. 796, 806, 138 P.3d 500, 507

(2006) (quoting Collman v. State, 116 Nev. 687, 703, 7 P.3d 426, 436

(2000)); see NRS 50.085(3). However, the collateral matter in this case

does not plainly pertain to truthfulness. The fact that Perez told a police

SUPREME COURT OF NEVADA 2 (0) 1947A ze officer that he had no reason to burglarize cars and later pleaded guilty to

tampering with cars does not demonstrate he was untruthful because the

crime that he denied and the crime that he admitted to are two different

crimes. See NRS 200.060 (defining burglary); NRS 205.274 (defining tampering with cars). Therefore, we conclude that the district court

abused its discretion by allowing the State to cross-examine Perez

regarding this collateral matter.

The State also is not permitted to impeach a defendant with

extrinsic evidence of collateral matters unless the "extrinsic evidence [is]

relevant to prove [the defendant's] motive to testify in a certain way, i.e.,

bias, interest, corruption or prejudice." Lobato v. State, 120 Nev. 512, 519,

96 P.3d 765, 770 (2004). Here, the collateral fact that Perez may have lied

to a police officer during an unrelated investigation in another case does

not demonstrate or even suggest that Perez had motive to testify in a

certain manner in this case. Instead, it has the effect of improperly

impeaching Perez's credibility by contradicting his cross-examination

testimony. See id. ("NRS 50.085(3) limits the admissibility of extrinsic evidence for the purpose of attacking credibility based upon specific

instances of conduct attributable to the witness. Unless in some way

related to the case and admissible on other grounds, extrinsic prior bad act

evidence is always collateral and therefore inadmissible to attack

credibility."). Therefore, we conclude that the district court abused its

discretion by allowing the State to present rebuttal evidence regarding

this collateral matter.

SUPREME COURT OF NEVADA 3 (0) 1947A en Harmless error analysis Perez claims that the error in admitting extrinsic evidence of

the collateral incident was not harmless because the record plainly

demonstrates that the district court and the parties believed that the

admission of this evidence would likely have a strong influence on the

jury's verdict. The State acknowledges that there is no dispute that the

trial boiled down to credibility, but it argues that any error was harmless

because Perez's story changed on numerous occasions, his testimony did

not match the physical evidence, and his testimony did not support his

theory of self-defense.

"A nonconstitutional error, such as the erroneous admission of

evidence at issue here, is deemed harmless unless it had a substantial and

injurious effect or influence in determining the jury's verdict." Newman v.

State, 129 Nev. , 298 P.3d 1171, 1181 (2013) (internal quotation marks omitted). The record on appeal—including the recordings of the

311 and 911 calls and Perez's police interview—demonstrates that this

was a close case. As the jury's verdict hinged almost entirely upon its

assessment of the witnesses' credibility, we cannot say that the district

court's error was harmless.

Motion for mistrial Perez claims that the district court erred by denying his

motion for a mistrial after the State's rebuttal witness improperly testified

that he had previously spoke with Perez while investigating "an auto

burglary." However, we need not reach this issue because, as set forth

SUPREME COURT OF NEVADA 4 (0) 1947A et. above, the introduction of improper impeachment evidence was not

harmless and mandates reversing the judgment of conviction and

remanding the case for a new trial.

Accordingly, we

ORDER the judgment of the district court REVERSED AND

REMAND this matter to the district court for proceedings consistent with

this order.'

Pickering

, J. Parraguirre Saitta

cc: Hon. Michelle Leavitt, District Judge Justice Law Center Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

'The fast track statement does not comply with the formatting requirements of NRAP 3C(h)(1) and NRAP 32(a)(4) because it is not paginated. We caution appellant's counsel that failure to comply with the applicable rules when filing briefs in this court may result in the imposition of sanctions. See NRAP 3C(n).

SUPREME COURT OF NEVADA 5 (0) 1947A 910124