138 Nev.., Advance Opinion I I
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL PHILLIP ANSELMO, No. 81382
Appellant,
vs.
THE STATE OF NEVADA,
FLÍ
Respondent.
EF DEPUTY CLERK
Appeal from a district court order dismissing a postconviction
petition for genetic marker analysis. Second Judicial District Court,
Washoe County; Lynne K. Simons, Judge.
Reversed and remanded with instructions.
Holland & Hart LLP and Sydney R. Gambee, J. Robert Smith, and Jessica
E. Whelan, Las Vegas; Rocky Mountain Innocence Center and Jennifer
Springer, Salt Lake City, Utah,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Marilee Cate, Appellate Deputy District Attorney,
Washoe County,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
OPINION
By the Court, CADISH, J.:
This appeal presents issues concerning Nevada's statutory
scheme governing postconviction petitions for genetic marker analysis. A
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jury convicted appellant of first-degree murder in 1972. In 2018, he filed a
postconviction petition for genetic marker analysis, seeking to examine the
DNA found on various pieces of evidence under a procedure that was not
available at the time of his trial. The district court concluded that appellant
failed to show a reasonable possibility that the State would not have tried
him, or the jury would not have convicted him, had he obtained exculpatory
evidence through the testing because the jury heard similar exculpatory
evidence but nevertheless convicted him.
Under NRS 176.09183(1), the district court must assume that
the requested genetic marker analysis will produce exculpatory DNA
evidence and order such analysis if a reasonable possibility exists that the
petitioner would not have faced prosecution or conviction had the
exculpatory results been obtained before trial. Applying that statute to the
facts here, we conclude that the district court acted outside the bounds of
its discretion in denying appellant's petition, as the State tried appellant on
a felony-murder theory based on rape and DNA evidence that would have
excluded appellant as the perpetrator necessarily creates a reasonable
possibility that he would not have faced prosecution or conviction for felony-murder.
Additionally, the existence or nonexistence of evidence relevant
to the claims in the petition for genetic marker analysis necessarily impacts
the district court's resolution of the petition. Thus, to the extent the
custodian's inventory of evidence merely described the packaging holding
the evidence in the State's possession, rather than the items of evidence
contained therein, we agree with appellant that the inventory lacked
sufficient detail for the district court to determine whether the evidence on
which appellant sought testing existed. Consequently, appellant's motion
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for relief as to the inventory should have been granted. Accordingly, we
reverse the district court's order and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The female victim disappeared from a hotel employee parking
lot near the Cal-Neva Lodge at Lake Tahoe on July 15, 1971. Two days
later, appellant Michael Anselmo found the victim's body and reported it to
the police. The responding officers noted that the victim was nude. Several
days later, Anselmo told the police where they could find the victim's jacket
and keys, which the police recovered.
After conducting an autopsy, the coroner concluded that the
victim died from strangulation. He further concluded that the perpetrator
manually strangled the victim with his right hand. The perpetrator also
stabbed the victim 15 times, which the coroner concluded was a contributing
cause of death. The autopsy revealed evidence of sexual assault, and the
coroner recovered semen from the victim. The semen did not contain any
sperm, which indicated that either the male supplier was sterile or had a
vasectomy, or the sperm degenerated before the victim's body was found.
Several officers interviewed Anselmo at different times.
Throughout those interrogations, Anselmo asserted that another
individual, John Soares, killed the victim. During an interview on July 18,
Anselmo went into a comatose state and law enforcement transported him
to the hospital. After the hospital discharged Anselmo, Detective Gordon
Jenkins interrogated him. While AnseImo initially reaffirmed that Soares
committed the murder, he eventually confessed to the crime. The State
charged Anselmo with first-degree murder.
At trial, the State argued that Anselmo committed first-degree
murder under the felony-murder rule. Specifically, the State introduced
evidence that the victim had sexual intercourse between 12 and 24 hours
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before her death and that, due to the timeline of her activities, the only time
the intercourse could have occurred was shortly before the victim's death.
The State emphasized that the victim was found nude and that "the facts
scream out to tell [the jury] that the victim "was murdered in the
perpetration of rape." In support, the State introduced evidence that the
victim had an inflamed cervix and the coroner recovered semen from the
victim's vaginal cavity. The forensic pathologist testified that there was no
sperm found in the semen, which could be due to either the degenerative
nature of sperm or the sterility of the semen's supplier.
Alternatively, the State argued that Anselmo committed first-degree murder under a willful, deliberate, and premeditated theory. In
support, the State introduced evidence that the perpetrator stabbed the
victim in the neck and chest 15 times. It argued that the perpetrator forced
the victim from the parking lot to the clearing where the police recovered
her body, which showed the perpetrator had time to form premeditation.
The State also introduced evidence that Anselmo had been lurking in the
employee parking lot during the early morning hours the day before the
victim went missing. It introduced evidence of a struggle occurring in the
car that the victim was using that night. Finally, the State relied on the
fact that Anselmo (1) knew the body's location; (2) knew the location of the
victim's jacket and keys, which the perpetrator had tossed into Lake Tahoe;
and (3) confessed to committing the crime.
Anselmo's primary defense theory was that John Soares
murdered the victim. Anselmo testified that he saw Soares in Reno the day
before the victim went missing. On the night the victim went missing,
Anselmo stated that he played pool and other games at the Cal-Neva
Lodge's lounge until 1 a.m. When he left the club, Anselmo testified that he
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heard a scream and went to investigate it. He alleged that Soares emerged
from the bushes near the Lodge, took Anselmo into the brush, and showed
Anselmo the victim's body. AnseImo claimed Soares threatened him to keep
quiet and directed Anselmo to throw the victim's coat into Lake Tahoe,
which Anselmo conceded he did.
In support of this theory, Anselmo pointed to evidence that
police in the Lake Tahoe area had received a report that Soares was in the
area. In closing argument, Anselmo reminded the jury that he had
consistently told police that Soares killed the victim. He argued his
confession was both involuntary and inconsistent with the facts of the
killing. Specifically, he pointed out that he confessed to choking the victim
with her nylon shirt while the pathologist concluded that the perpetrator
likely choked the victim with his right hand. He identified other
inconsistencies, like the fact that he confessed to stabbing the victim 3 to 4
times, whereas the autopsy identified approximately 15 stab wounds, and
the fact that his description of the knife did not match the actual stab
wounds. Further, he argued that the fact that he could show police where
he disposed of the victim's jacket and keys, but not the knife, supported his
innocence because he claimed Soares told him to dispose of the jacket and
keys, not the knife. Finally, he argued that he could not have been the
source of the semen recovered because he was not sterile. The jury found
Anselmo guilty of first-degree inurder and sentenced him to life without the
possibility of parole. The jury's verdict was a general verdict that did not
indicate which theory of first-degree murder the jury relied on to convict
Anselmo.
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In October 2018, Anselmo filed a postconviction petition
requesting genetic marker analysis of the victim's clothes, the victim's
fingernail clippings, blonde hair found in the victim's car, and the rape kit.
He argued that the testing, which did not exist at the time of trial, would
create a reasonable possibility that the jury would not have convicted him
because it would reveal that another individual killed the victim. The
district court found that Anselmo met the procedural requirements of NRS
176.0918 and set a hearing on the petition, directing the agency having
custody of the evidence to prepare an inventory of all evidence related to
Anselmo's claims. After the evidence custodians filed several inventories,
Anselmo moved for an order to show cause, arguing the inventories were
insufficient because they failed to identify all the evidence in the State's
possession. In particular, he asserted that the inventories described the
packaging in which the evidence was stored, as opposed to the evidence
itself, or that the inventories were otherwise vague.
The State opposed the motion to show cause, arguing that the
statutory scheme did not require the evidence custodians to open sealed
evidence and provide descriptions of the contents therein. The district court
denied the motion, concluding that the inventories were sufficient and that
Anselmo failed to provide authority showing the evidence custodians were
required to identify to whom the evidence belonged or to what the evidence
pertained at the time of the crime.
The district court held a hearing on the petition. Anselmo
argued that exculpatory DNA evidence would have contradicted his
confession in which he claimed to have had sex with the victim. Regarding
judicial estoppel, he asserted that the statutory scheme does not prohibit
individuals who confessed to the crime from seeking genetic marker
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analysis. The State argued that the jury heard similar exculpatory evidence
that another person committed the crime and still convicted Anselmo. The
State asserted that overwhelming evidence supported the conviction, and
thus, exculpatory genetic marker evidence would not create a reasonable
possibility that Anselmo would not have been tried or convicted otherwise.
It also contended that judicial estoppel applied because Anselmo confessed
to committing the crime at a Pardons Board hearing in 2005.
The district court dismissed Anselmo's petition. It concluded
that the jury heard similar exculpatory information when the pathologist
testified that the semen may not have been from Anselmo. It further found
that the felony-murder theory was secondary to the States premeditated- and-deliberate-murder theory, and "[t]hus, the fact that Mr. Anselmo's
DNA may or may not be found inside or on [the victim] is not of
consequence." The court also observed that the jury found Anselmo guilty
beyond a reasonable doubt after (1) hearing testimony about his suspicious
behavior on the night the victim disappeared and during the searches and
discovery of her body, (2) considering evidence as to his inconsistent
statements to law enforcement and his knowledge of the location of the
victim's belongings, and (3) considering his confession and corresponding
argument that it was made involuntarily. The district court made no
findings regarding the States judicial estoppel argument.
DISCUSSION
The district court abused its discretion by denying Anselmo's petition
because Anselmo demonstrated a reasonable possibility that he would not
have been tried or convicted if exculpatory results had been obtained from
the genetic marker analysis
Anselmo argues that he satisfied the reasonable-possibility
standard. Specifically, he asserts that the identity of the perpetrator is in
question, as he denied that he was the perpetrator and he does not match
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the description of the perpetrator that one of the victim's roommates gave.
He also contends that the presumed presence of another individual's DNA
creates a reasonable possibility that he would not have been tried or
convicted because it (1) supports his contention that his confession was
coerced and corroborates his earlier statements that another individual
murdered the victim, (2) corroborates his testimony that he disposed of the
victim's jacket and keys at the direction of the actual perpetrator, (3) gives
the jury reason to believe his similarly exculpatory evidence, and (4) might
contradict Soares's testimony that Soares was not in the Tahoe area at the
time of the murder. We agree.
While we review an order denying a petition for genetic marker
analysis for an abuse of discretion, NRS 176.09183(1) (providing that the
district court must order genetic marker analysis "if the court finds" that
the enumerated requirements are satisfied), we review questions of
statutory interpretation de novo, Washington v. State, 132 Nev. 655, 660,
376 P.3d 802, 806 (2016). When interpreting a statute, we look to the
statutes plain language. Id. If a statutes plain language is unambiguous,
we enforce the statute as written. Id.
As relevant here, a court must order a genetic marker analysis
if it finds that
(a) The evidence to be analyzed exists;
(b) Except as otherwise provided in
subsection 2, the evidence was not previously
subjected to a genetic marker analysis, including,
without limitation, because such an analysis was
not available at the time of trial; and
(c) One or more of the following situations
applies:
(1) A reasonable possibility exists that
the petitioner would not have been
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prosecuted or convicted if exculpatory results
had been obtained through a genetic marker
analysis of the evidence identified in the
petition . . .
NRS 176.09183(1) (emphasis added). The plain language of the statute
requires the district court first to assume that the genetic marker evidence
would be exculpatory and then ask whether there is a "reasonable
possibility" that the petitioner would not have been convicted or prosecuted
in light of the exculpatory genetic marker evidence.] Such an interpretation
is consistent with the statutory scheme, as the results of the genetic marker
testing must be "favorable to the petitionee for the petitioner to then move
for a new trial based on newly discovered evidence, NRS 176.09187, and is
consistent with other jurisdictions interpretations of analogous statutes,
see, e.g., Lambert v. State, 435 P.3d 1011, 1019 (Alaska Ct. App. 2018)
("Importantly, the defendant need not show any likelihood that the DNA
results will actually be favorable to his claim of innocence. Instead, he need
only show that, assuming the results are as favorable as the defendant has
shown they could be, these favorable results would raise a reasonable
probability that the outcome of the defendanes trial would be different."
(emphasis and internal quotation marks omitted)).
The "reasonable possibilitf standard is satisfied if there is "a
real possibility that the [exculpatory] evidence would have affected the
1The governing statute does not require the petitioner to show, or
even assert, that he is actually innocent of the crime. Instead, the petition
need only explain " [t]he rationale for why a reasonable possibility exists
that the petitioner would not have been prosecuted or convicted if
exculpatory results had been obtained through a genetic marker analysis
of' the identified evidence. NRS 176.0918(3)(b).
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result."2 Roberts v. State, 110 Nev. 1121, 1132,
881 P.2d 1, 8 (1994)
(emphasis and internal quotation marks omitted), overruled on other
grounds by Foster v. State, 116 Nev. 1088,
13 P.3d 61 (2000); cf James v.
State, 137 Nev., Adv. Op. 38, 492 P.3d 1, 5 (2021) (concluding that a
reasonable possibility does not exist "[w]hen the results of the analysis
would be irrelevant to the States theory of the crime or the defendant's
defense). The first theory the State proposed in closing arguments was
felony murder based on rape. While the State also presented a willful,
deliberate, and premeditated theory as an alternative, the jury returned a
general guilty verdict. Thus, the jury could have convicted Anselmo on the
felony-murder theory based on the rape of the victim. Therefore, genetic
marker evidence that definitively excludes Anselmo as the supplier of the
semen recovered from the victim creates a reasonable possibility that the
jury would not have convicted Anselmo because it directly contradicts the
States felony-murder theory. Moreover, as Anselmo points out, genetic
material recovered from under the victim's fingernails would allow a jury to
infer that the victim fought back against the perpetrator and, if analyzed
and shown to be exculpatory, would create a reasonable possibility that the
jury would not have convicted Anselmo, as it supports the defense theory
that another individual assaulted the victim.
The States contrary arguments are not persuasive. While the
State asserts that the jury considered and rejected similarly exculpatory
evidence, the evidence it identifies is not the same as the presumed
2 1n analyzing whether this standard is met, we look at the actual
charge of which the petitioner stands convicted, which is first-degree
murder. No party has argued that we should look at whether Anselmo
would have been prosecuted or convicted of any crime as opposed to the
crime the State chose to prosecute and of which the jury convicted him.
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exculpatory evidence the genetic marker analysis would produce. For
example, the State points out that the pathologist testified that the semen
may not have been AnseImes due to the lack of sperm. But that testimony
still allowed the jury to conclude that Anselmo may have provided the DNA,
and indeed, the State argued that Anselmo was the source of the semen and
that the sperm had simply degenerated. NRS 176.091.83, however, requires
the district court to assume that the DNA evidence would exclude Anselmo,
and thus, the jury would have received evidence that the semen was not
from Anselmo. Moreover, the fact that the State had other circumstantial
evidence of Anselmes guilt does not preclude a reasonable-possibility
finding because the district court must ask only whether there is a real
possibility that the jury would not have convicted Anselmo if it had
exculpatory genetic marker testing results.3
3The State argues that the principle of judicial estoppel provides
additional support for the district court's dismissal of Anselmes petition
because Anselmo allegedly took an inconsistent position in a Pardons Board
hearing. judicial estoppel applies if, among other things, the same party
takes two different positions in judicial or quasi-judicial administrative
proceedings. Marcuse v. Del Webb Cmtys., Inc., 123 Nev. 278, 287,
163 P.3d
462, 468-69 (2007). However, the State provides no authority or analysis to
support the proposition that a Pardons Board hearing is a quasi-judicial
proceeding for purposes of applying judicial estoppel and instead assumes
that it is. Because not every administrative hearing is quasi-judicial, see
State ex rel. Bd. of Parole Comrn'rs v. Morrow, 127 Nev. 265, 273-74,
255
P.3d 224, 229-30 (2011) (adopting the judicial functions test to determine
when an administrative hearing is a quasi-judicial hearing), and it is not
obvious that a Pardons Board hearing would qualify, we conclude that the
State's argument is not cogent, and thus, we need not consider it, Maresca
v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) (concluding that this court
need not address issues not cogently argued and supported by relevant
authority).
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The district court abused its discretion when it concluded that the State's
inventory was sufficient
Anselmo argues that the States inventory of the evidence was
insufficient because it lacked sufficient detail to identify the evidence
remaining in the State's custody. We agree to the extent that the inventory
described the packaging of some of the items of evidence as opposed to the
actual evidence contained within it.4
Reviewing the district court's interpretation of NRS
176.0918(4) de novo, Washington, 132 Nev. at 660, 376 P.3d at 806, we
conclude that an inventory that describes only the packaging in which the
evidence is contained, as opposed to the actual evidence, is insufficient. The
purpose of making postconviction genetic testing available to a convicted
felon is to evaluate evidence that may contain genetic marker information
pertinent to the investigation and prosecution that led to the conviction,
NRS 176.0918(1), and to that end, NRS 176.0918(4)(c)(2) requires the State
to provide a detailed list "of all evidence relevant to the claims in the
4The State argues that we lack jurisdiction to review the district court
order denying Anselmo's motion regarding the sufficiency of the inventory
because (1) the inventory order is not a final judgment and (2) the evidence
custodians are not parties to this appeal. Neither argument is persuasive.
While the inventory order is not a final judgment, we may review "any
decision of the [district] court in an intermediate order or proceeding,
forming a part of the record." NRS 177.045. Further, because we have the
statutory authority to review an order denying a petition for genetic marker
testing, NRS 176.09183(6), we may likewise review this intermediate
decision pertaining to the allegedly insufficient evidence inventory.
Moreover, NRS 176.0918(4)(c) gives the district court the authority to order
each evidence custodian to provide an inventory of all relevant evidence.
Thus, should we conclude that the evidence inventories are insufficient, we
can instruct the district court to exercise its authority over the evidence
custodians to require that the custodians provide sufficiently detailed
inventories of the evidence.
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petition . . . that may be subjected to genetic marker analysis." Here, the
inventory, while sufficiently detailed regarding some pieces of evidence,
described the containers of other pieces of evidence as opposed to the
evidence itself. For example, the inventory described some pieces of
evidence as "small paper canister," "film canister," and "one cardboard
'FONDA ONE PINT U.S. LIQUID MEASURE canister." The inventory as
to those pieces of evidence does not satisfy the statutory directive to produce
an inventory of relevant evidence that may be tested because the district
court cannot determine what evidence is inside a "small paper canister" or
"film canistee for purposes of evaluating its relevancy or whether it should
be tested. Accordingly, the district court improperly denied Anselrno's
motion for an order to show cause related to the insufficient evidence
inventory. See Club Vista Fin. Servs., LLC v. Eighth Judicial Dist. Court,
128 Nev. 224, 228,
276 P.3d 246, 249 (2012) (noting that discovery orders
are generally reviewed for an abuse of discretion); cf State v. Nye, 136 Nev.
421, 423-25,
468 P.3d 369, 371-72 (2020) (holding, in the context of an
inventory search, that an inventory was insufficient because it did not detail
all the contents of the defendant's bag).
The States contrary arguments are not persuasive. First, the
crux of the States argument is that there is no statutory requirement that
evidence custodians must open or manipulate sealed containers until the
district court orders testing of an item in that container. However, the
district court can only order testing if it finds "Mlle evidence to be analyzed
exists." NRS 176.09183(1)(a). The district court cannot determine whether
relevant evidence exists if the inventory merely describes the evidence
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container, e.g., "film canister," as opposed to the evidence itse1f.5 Similarly,
the State's argument that it need not open a sealed container until the court
orders that item to be tested lacks merit, as such an interpretation would
frustrate the detailed statutory scheme that requires the inventory after
the petition meets the requirements and then allows a hearing for the court
to determine exactly which, if any, pieces of evidence it should order to be
tested. See NRS 176.0918(4)(c); NRS 176.09183(1)(a).
CONCLUSION
When determining whether to grant a petition for genetic
marker analysis under NRS 176.09183(1)(a), the district court must assume
that the analysis will produce exculpatory evidence and then ask whether
there is a reasonable possibility that the petitioner would not have been
tried or convicted due to that exculpatory evidence. Further, an. evidence
custodian's inventory of evidence is insufficient if it merely describes the
packaging in which evidence is contained as opposed to the evidence within.
On the record before us, the district court abused its discretion by denying
Anselmo's petition for genetic marker analysis because he showed a
5At oral argument before this court, the State expressed concern that
opening the sealed items may affect the chain of custody. However, opening
and testing of evidence in sealed containers does not break the chain of
custody as long as the evidence custodians follow their established
•procedures for handling evidence. See Burns v. Sheriff, 92 Nev. 533, 534-
35,
554 P.2d 257, 258 (1976) (concluding that the chain of custody was
established when the arresting officer testified that he placed the evidence
in a sealed and initialed envelope in the evidence locker, and the chemist
testified that she retrieved the sealed envelope from the evidence locker,
opened the envelope and tested the evidence within it, and then placed the
evidence back in the evidence vault in a newly resealed and initialed
envelope).
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reasonable possibility that, assuming exculpatory results, the jury would
not have convicted him. The district court also abused its discretion when
it concluded the inventory was sufficient as to the items that were identified
only by their packaging because such a description does not satisfy the
statutory requirement for an evidence inventory. Accordingly, we reverse
the district court's order and remand for further proceedings. Upon
remand, the district court must instruct the evidence custodians to submit
a new evidence inventory that details the evidence within the containers it
previously identified but did not open. After the district court receives and
reviews the new evidence inventories, it must order genetic marker analysis
of any relevant evidence it concludes exists.
Ce4*
Cadish
We concur:
(411.
J.
Herndon
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