IN THE SUPREME COURT OF THE STATE OF NEVADA
MANUEL MATA, No. 80814
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUL 0 9 2021
ELIZABETH A. BROWN
CLERK CO 7PRENIE COURT
3 \
BY
ORDER OF AFFIRMANCE DEPUTcl-C14-2M/
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, seconddegree murder with the use of a deadly weapon, attempted murder with the
use of a deadly weapon, trafficking in a controlled substance, and abuse,
neglect or endangerment of a child resulting in substantial bodily harm.'
Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
Failure to preserve evidence
First, appellant Manuel Mata argues that the district court
erred in denying his motion to dismiss the charges based on the State's
failure to preserve potentially exculpatory evidence. "'The State's failure to
preserve potentially exculpatory evidence may result in dismissal of the
charges if the defendant can show bad faith or connivance on the part of the
government or 'that he was prejudiced by the loss of the evidence."' Daniels
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
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v. State, 114 Nev. 261, 266-67,
956 P.2d 111, 115 (1998) (quoting Howard v.
State,
95 Nev. 580, 582,
600 P.2d 214, 215-216 (1979)). Mata takes issue
with law enforcement's failure to preserve residential surveillance video
and claims it would have substantiated his theory that he left the residence
before the incident and that someone else perpetrated the killings.2 Mata
alternatively contends that the district court erred by rejecting his proposed
instruction that the jury could infer that the lost or destroyed evidence
would have negatively impacted the prosecution. See Sanborn v. State,
107
Nev. 399, 408,
812 P.2d 1279, 1286 (1991) (providing that the State's
mishandling of evidence prejudiced the defendant and warranted an
adverse instruction informing the jury that the lost evidence was
irrebuttably presumed to be unfavorable to the State).
After the close of evidence, the district court considered the
evidence presented at trial where each of the witnesses who reviewed the
surveillance video testified that they did not see anything unusual or any
activity outside of Mata's residence at the time of the killings. We agree
with the district court's conclusion that Mata did not establish that law
enforcement acted in bad faith or that he was prejudiced. See Daniel v.
State, 119 Nev. 498, 520,
78 P.3d 890, 905 (2003) (providing that a
defendant must show "that it could be reasonably anticipated the evidence
in question would have been exculpatory and material!). Rather, he has
shown only "a hoped-for conclusion that the evidence would have supported
2At trial, witnesses presented conflicting testimony as to whether law
enforcement actually collected the surveillance video but Mata raises the
issue as a failure to preserve the evidence.
2
his case." Id. Because each witness testified that the surveillance video did
not show anything that corroborated his hoped-for conclusion, we conclude
the video would not have made his other speculative evidence admissible.
Therefore, we conclude that the district court did not abuse its discretion by
rejecting Mata's instruction and denying his motion to dismiss. See
Ouanbengboune v. State, 125 Nev. 763, 774,
220 P.3d 1122, 1129 (2009)
("This court reviews a district court's decision to issue or not to issue a
particular jury instruction for an abuse of discretion."); Hill v. State, 124
Nev. 546, 550,
188 P.3d 51, 54 (2008) (stating this court reviews a district
court's denial of motion to dismiss for abuse of discretion); see also Jackson
v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001) (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.").
Exclusion of photographs
Mata next argues that the district court erred in excluding
photographs depicting him with the victims in "happier times." "[A] district
court's decision to admit or exclude evidence [is reviewed] for an abuse of
discretion." Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008).
The State introduced photographs of the adult victim and the
juvenile victims for the purpose of identification. When presenting his case
in defense, Mata sought to introduce photographs that included himself and
his biological daughter because the State's photographs created a "false
narrative" he needed to rebut with a more accurate reflection of the family
unit. The district court excluded Mata's photographs as irrelevant and
because they only served as improper character evidence. We agree because
the fact that Mata and his biological daughter lived with the adult victim
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and her biological children as a family unit was not in dispute. See NRS
48.015 (defining "relevant evidence as that "having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence").
Moreover, the district court permitted Mata to present testimony frona
several witnesses that he was a good caretaker and had a positive
relationship with the adult victim's children, including the juvenile victims.
Therefore, we conclude that the district court did not abuse its discretion.
Prosecutorial misconduct
Mata next argues that the district court's refusal to grant a
mistrial based on prosecutorial misconduct denied him of his right to a fair
trial. This court reviews a district court's decision to deny a mistrial for
abuse of discretion. Rose v. State, 123 Nev. 194, 206-07,
163 P.3d 408, 417
(2007). "When considering claims of prosecutorial misconduct, this court
engages in a two-step analysis. First, we must determine whether the
prosecutor's conduct was improper. Second, if the conduct was improper,
we must determine whether the improper conduct warrants reversal."
Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008) (footnotes
omitted). Misconduct of a constitutional nature does not warrant reversal
if it is harmless beyond a reasonable doubt. Id. at 1189,
196 P.3d at 476.
"It is well settled that the prosecution is forbidden at trial to
comment upon an accused's election to remain silent following his arrest."
Morris v. State, 112 Nev. 260, 263,
913 P.2d 1264, 1267 (1996) (internal
quotation marks omitted). In this case, during closing argument, the State
utilized an electronic presentation that included a slide titled: "[t]o accept
the [d] efendant's [s]tory you would have to believe . . . ." The slide then
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listed 10 events that the jury would have to believe to credit Mata's theory
of defense. The State did not read or draw attention to the title of the slide,
nor did the State make a direct comment on Mata's post-arrest silence.
Rather, the prosecutor told the jury what he believed Mata would argue in
closing and focused on discrediting the theory of defense. Because we deem
the title of the slide to be, at most, a mere passing reference to Mata's post-arrest silence, we conclude that any error was harmless and the district
court acted within its discretion when it denied Mata's motion for a mistrial.
See Anderson v. State, 121 Nev. 511, 516,
118 P.3d 184, 187 (2005)
(recognizing that comments constituting misconduct that are "merely
passing in nature" are harmless beyond a reasonable doubt); Coleman v.
State, 111 Nev. 657, 665,
895 P.2d 653, 658 (1995) (considering "the
frequency and intensity of the references to" a defendant's silence when
determining if reversal is warranted).
Jury instruction
Finally, Mata argues that the district court erred in defining
"passion" in response to a jury question because the instruction gave an
incomplete definition of the term. We disagree because the district court's
answer appropriately addressed the jury's question. See Tellis v. State, 84
Nev. 587, 591,
445 P.2d 938, 941 (1968) (The trial judge has wide discretion
in the manner and extent he answers a jury's questions during
deliberation."). During deliberations the jury asked "What is passionr The
district court explained it wanted to answer the exact question asked and
provided the following answer: "Passion is defined as a strong and barely
controllable emotion." We conclude that the district court acted within its
discretion and discern no abuse of that discretion in rejecting Mata's more
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expansive instruction. See Jack.son, 117 Nev. at 120,
17 P.3d at 1000 ("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."). Accordingly, we
ORDER the judgment of conviction AFFIRMED.3
Hardesty
Sr.J.
Parraguirre
cc: Chief Judge, Eighth Judicial District Court
Department 3, Eighth Judicial District Court
David Schieck Law Office
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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