138 Nev., Advance Opinion 1441
IN THE SUPREME COURT OF THE STATE OF NEVADA
LARRY DECORLEON BROWN, No. 81962
Appellant,
vs.
THE STATE OF NEVADA, FILED -
Respondent.
Appeal from a second amended judgment of conviction,
pursuant to a jury verdict, of conspiracy to commit robbery, robbery with
the use of a deadly weapon, and murder with the use of a deadly weapon,
and pursuant to an Alford plea, of ownership or possession of a firearm by
a prohibited person. Eighth Judicial District Court, Clark County; Valerie
Adair, Judge.
Affirmed.
JoNell Thomas, Special Public Defender, Clark County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Karen L. Mishler, Chief Deputy District Attorney, Clark
County,
for Respondent.
BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
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OPINION
By the Court, SILVER, J.:
In this appeal from a judgment of conviction, we consider
whether a jury may consider footwear impression evidence without the aid
of expert testimony and conclude that such was proper here. We also
consider whether the district court violated the defendant's rights under the
Confrontation Clause by allowing a witness to testify via two-way video and
limiting that witness's testimony to avoid disclosing trade secrets.
Although the district court failed to make express findings under Lipsitz v.
State, 135 Nev. 131,
442 P.3d 138 (2019), regarding the propriety of the two-way video, we determine reversal is not warranted here. We also conclude
that the district court did not abuse its discretion by limiting the witness's
testimony, and we affirm.
FACTS AND PROCEDURAL HISTORY
The State indicted appellant Larry Brown on charges of
conspiracy to commit robbery, robbery with the use of a deadly weapon,
murder with the use of a deadly weapon, and ownership or possession of a
firearm by a prohibited person. Brown entered an Alford1 plea as to the
possession charge but proceeded to trial on the remaining charges. These
charges arose from the 2017 death of Kwame Banks, who was shot and
killed outside a Las Vegas apartment complex. Responding officers found
Banks's body lying between two cars in a pool of blood. Two bullet cartridge
cases were nearby, and bloody shoe prints led away from the body. A torn
latex glove was near the body, and the remainder of that glove was near the
apartment complex exit. A separate black glove was lying in front of some
Worth Carolina v. Alford, 400 U.S. 25 (1970).
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parked cars near the body. Officers also discovered three cell phones in the
vicinity: one under Banks's body, one a few feet away in some landscaping
rocks, and one near the exit. Banks's pockets appeared to have been
searched, but Banks still had about $1,900 in cash, earrings, and a bracelet
on his person.
Detectives learned that before his death Banks agreed to sell
marijuana to Anthony Carter, Brown's codefendant, and to an unidentified
third party. Banks drove a car to an apartment complex to do the sale. The
detectives found Banks's car the next day, approximately a half mile from
the crime scene, burned and missing its license plates. Detectives also
learned that a patrol officer had come upon the car the night of the murder
and observed a white mid-sized SUV pick up an African-American male and
drive off. Detectives were able to obtain video surveillance showing the
white SUV, which the State presented to the jury.
Police investigated the three cell phones and determined that
two belonged to Banks and the third was registered to Brown under an
Atlanta, Georgia, address and phone number. Following the murder, police
executed a search warrant for Brown's home and found a white SUV and
shoes that had prints which appeared to match the shoeprints at the crime
scene.2 Brown was later located in Atlanta, where he was arrested following
a brief chase. Detectives thereafter linked the DNA on both the torn latex
glove found near the body and the black cloth glove to Brown, but the
murder weapon was never recovered.
Detectives used technology from a private company called
Cellebrite to extract information from Banks's phones, but they were unable
20ne of the shoes had a reddish-brown stain, but it tested negative for
blood.
to access the contents of Brown's phone. Police then sent Brown's phone to
Cellebrite, which initially was also unable to extract the data. Following a
Cellebrite software update and pursuant to a second search warrant, police
again sent the phone to Cellebrite, which this time successfully extracted
the data. The employee who performed the successful extraction was Brian
Stofik.
Notably, the extracted information contained a series of text
messages between Carter and Brown in the days leading up to the murder,
indicating they were planning to meet to do something involving an
unidentified third person. Those messages included the address where the
murder occurred and statements such as, "He have money in middle console
2 sum time mostly on him and in trunk in bags if he riding heavy he keep
small pocket nife on right side," and, "If u need Nard he on stand by," as
well as messages sent shortly before the murder such as, "Tonight the Night
my brother," "Just seen you text okkk COOL!!!!," "How are we looking," "He
suppose to be Pullen up my man that want the bags not here either. . . I
told him be here at 9:30," and, "On standby."
Before trial, Brown moved to strike evidence of footwear
impressions, arguing that such evidence required expert testimony. The
State countered that it did not intend to present an expert because one was
not needed as the photograph of the crime scene—showing the shoeprint
and the photograph of the shoes found at Brown's residence later
impounded into evidence—were independently admissible. The district
court agreed and denied the motion. Brown also moved to preclude all cell
phone information obtained from Cellebrite. Brown asserted that he should
be able to cross-examine Cellebrite about its proprietary software that
allows Cellebrite to duplicate the phone's data without actually reviewing
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the information on it, as well as Cellebrites processes for ensuring no
information is changed during the extraction and return processes. At
Brown's request, the district court agreed to have a sealed hearing outside
the jury's presence to allow Brown to question Cellebrites witness prior to
his testimony at trial.
Early during trial, the State learned that it would be unable to
reschedule Cellebrite employee Brian Stofik's testimony as necessary to
have Stofik appear in person. Noting that Stofik would be testifying to
whether the copy of the phone returned to law enforcement was accurate,
the State argued that good cause existed to allow Stofik to testify
audiovisually because Cellebrite had an employee shortage at the time of
trial, rescheduling Stofik's testimony so that he could testify. in person
would cost an extra $10,000 to the State, and Stofik's testimony could be
taken over two-way video. Brown made a Crawford3 objection, arguing that
because Cellebrite worked with law enforcement, it should be willing to
come to court. But Brown acknowledged that two-way video would be
acceptable "if that's what's necessary." The court concluded Stofik could
effectively testify over two-way video.
During trial, a detective testified to finding the cell phones and
to the techniques the department used to obtain information about the cell
phones and link one of them to Brown. The detective also testified that both
of Banks's phones contained a contact named "POE ATL" and that the
department traced that contact's number to Anthony Carter. Another
detective testified to using Cellebrite software and other tools to extract and
analyze information from the phones. Texts on one of Banks's phones
3Crawford v. Washington, 541 U.S. 36 (2004).
5
showed that on the morning of the murder, Carter set up a meeting between
Banks and an unidentified third person. Phone records admitted at trial
also established that Carter was in contact with both Banks and Brown in
the minutes leading up to the murder. Additionally, cell tower evidence
placed Brown's and Carter's phones in the vicinity of the crime scene in the
hours leading up to the murder.
Before Stofik testified, the district court held a sealed hearing,
during which Stofik explained Cellebrites process for receiving and
returning phones and for extracting information from those phones. As to
Brown's phone, Stofik explained the phones chain of custody and what he
did to extract the data without going into specifics about Cellebrites trade
secrets. He also verified that the information provided to police mirrored
what was on the phone and explained how Cellebrite used a "hashing"
system to check accuracy. On cross-examination, Brown asked Stofik which
of its products was used to extract the data and about the circumstances
under which a particular Cellebrite device would be unable to unlock a
phone. Stofik declined to answer these questions due to proprietary
interests, and the district court thereafter determined the latter question
was irrelevant. Although Stofik was not the employee who attempted to
extract information the first time the phone was sent to Cellebrite,4 Stofik
explained Cellebrite documented that, during its first attempt, it did not
examine or alter any of the applications or data on the device.
Brown then made a Crawford objection, arguing he had the
right to confront all involved Cellebrite employees about the chain of
custody. He also argued the evidence was not properly authenticated
4That employee left Cellebrites employment before Stofik arrived.
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because Stofik failed to establish the process or system used to extract the
data. The district court concluded that the proprietary coding and
programming did not need to be presented to the jury, as those areas were
technically difficult and could cause the jury undue confusion. The district
court overruled the objections and allowed the parties to question Stofik
regarding how Cellebrite downloaded and returned the phone information
while ensuring its accuracy.
Stofik's subsequent trial testimony matched his testimony at
the sealed hearing. Based on Stofik's testimony, the State moved to admit
the sealed evidence bag that held the phone, documenting the phone's chain
of custody. On cross, Brown primarily asked Stofik about Cellebrite's
process and whether Cellebrite ever examined the data on the phone. Later,
another detective testified to the messages on Brown's cell phone, which
testimony the district court admitted over Brown's objection.
The State also introduced photographs of the bloodied footwear
impression taken at the crime scene during its case-in-chief, but the
prosecution did not ask any witness at trial to compare those crime scene
photographs against the shoes recovered from Brown's residence. However,
during closing arguments, the State suggested that the jury should compare
them during deliberations.
Brown presented evidence to counter the inference that he fled
to Atlanta following the crime and to counter the State's evidence that he
fled from officers once located in Atlanta. Brown also testified in his defense
and denied meeting or knowing Banks. He asserted that on the day of the
murder he was in contact with Carter because he wanted to buy marijuana.
They agreed to meet outside a convenience store not far from where Banks
was murdered, but while Brown was waiting for Carter, three masked men
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robbed and beat Brown, taking his money and his phone.5 He testified that
one of the assailants sounded like Carter and that there were no witnesses
to the crime. Brown testified he first learned of the murder after he
returned to Atlanta. During cross-examination, the State asked Brown
about the text message conversations with Carter, and Brown testified that
he did not know what the text message about the knife meant, explaining
that he was also calling Carter during that time and that Carter, who was
simultaneously texting other people, sent Brown that text on accident.
When asked why he had texted "ce thirty seconds later, Brown explained
that there was an intervening phone call and that the text was in reference
to that conversation. He further testified that the text message with the
address of the crime was on his phone because he may have dropped Carter
off or picked him up at that location, although he also denied having ever
been at that location.
The jury convicted Brown on all counts, leading to an aggregate
sentence of 30 years and 4 months to life in prison. This appeal followed.
DISCUSSION
Brown raises several arguments on appeal, two of which we
elect to address in this opinion: first, whether the district court improperly
admitted evidence of the bloodied footwear impressions without requiring
expert testimony; and second, whether the district court violated Brown's
rights under the Confrontation Clause by allowing Stofik to testify via two-
5Brown did not present any corroborating evidence, such as
surveillance video or eyewitness testimony.
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way video and by limiting the scope of his testimony to avoid disclosing
trade secrets.6
The footwear impression evidence in this case was admissible without expert
testimony
Brown argues that the district court abused its discretion in
admitting footwear impression evidence without forensic expert testimony
because associating footwear impressions with specific shoes is unreliable,
prejudicial, and confusing, outweighing any probative value the evidence
could have had.7 Specifically, he contends that the jury needed expert
testimony to properly consider the footwear impression evidence admitted
at trial and that the States suggestion during closing argument that the
jury should compare the evidence was improper. We review the district
6Brown additionally argues the district court violated Batson v.
Kentucky,, 476 U.S. 79 (1986), during jury selection and erred by admitting
certain text messages and search history from Brown's girlfriend's phone.
We have considered the record in light of the relevant law and conclude
these arguments are without merit.
7Brown also argues that the footwear impression evidence is
inadmissible as irrelevant because it is scientifically invalid, based
on the 2016 publication of the President's Council of Advisors on
Science and Technology (PCAST). See President's Council of
Advisors on Sci. & Tech., Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods (Sept.
2016), https://obamawhitehouse.archives.gov/sites/defaultlfiles/microsites/
ostp/PCAST/pcast forensic_science_report_final.pdf. But the Department
ofjustice has since rejected key components of that report, and because this
issue may be resolved through existing caselaw, we need not consider the
PCAST report. See United States Dein of Justice, Statement on the
PCAST Report: Forensic Science in Criminal Courts: Ensuring Scientific
Validity of Feature-Comparison Methods (Jan. 13, 2021), https://
www.justice.gov/olp/page/file/1352496/download.
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coures evidentiary rulings for abuse of discretion. Mclellan v. State, 124
Nev. 263, 267,
182 P.3d 106, 109 (2008).
Relevant evidence is generally admissible, NRS 48.025(1), and
laypersons may draw inferences that are both rationally based on the
observer's perception and helpful to determine a fact in issue, NRS 50.265
(addressing lay-witness testimony). Expert testimony, however, is needed
"to provide the trier of fact [with] a resource for ascertaining truth in
relevant areas outside the ken of ordinary laity." Valentine v. State, 135
Nev. 463, 472,
454 P.3d 709, 718 (2019) (alteration in original) (internal
quotation marks omitted); see also NRS 50.275 ("If scientific, technical or
other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert . . . may testify to matters within the scope of such knowledge."). In
a similar context—considering whether a witness is a lay witness or expert
witness—we evaluate the substance of the testimony: "[D]oes the testimony
concern information within the common knowledge of or capable of
perception by the average layperson or does it require some specialized
knowledge or skill beyond the realm of everyday experiencer Burnside v.
State, 131 Nev. 371, 382-83,
352 P.3d 627, 636 (2015). To address Brown's
argument, we likewise consider whether comparing footwear impressions
to footwear is within an ordinary range of knowledge and capable of
perception by the average person, or whether such evidence requires an
experes explanation.
We have never addressed this particular issue, and a survey of
other jurisdictions reveals that other courts have come to differing
conclusions. Some have upheld the use of expert testimony regarding
footwear impression evidence where the circumstances of the case call for
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an expert's review. See, e.g., State v. Cooke, 914 A.2d 1078, 1097-98 (Del.
Super. Ct. 2007) (concluding expert testimony on a footwear impression was
admissible where the expert opined that the "perimeter shaped lugs on the
impression may have come from the defendant's boots); State v. Poole, 688
N.E.2d 591, 600-01 (Ohio Ct. App. 1996) (determining that footwear
impression evidence was beyond the jury's comprehension where the expert
in that case testified to taking specific measurements from various points
on the defendant's shoe and comparing those measurements to
corresponding points on a plaster cast).
However, other courts have determined expert testimony is
unnecessary to admit footwear impression evidence. See, e.g., McNary v.
State, 460 N.E.2d 145, 147 (Ind. 1984) (admitting lay opinion comparing a
shoe to shoeprints left in snow and pointing to other law holding that "[f1 or
the reason that footprints are large and the points of similarity are obvious
(contrasted with fingerprints or palm prints), expert testimony is not
required and the comparison may properly be made a subject of non-expert
testimony" (quoting Johnson v. State, 380 N.E.2d 566, 569 (Ind. Ct. App.
1978))); Castellon v. State, 302 S.W.3d 568, 572 (Tex. App. 2009) (concluding
an analyst was qualified to compare shoe prints left on papers on the ground
at the crime scene and in the getaway car against the defendant's shoes,
and recognizing that this "field of expertise . . . is not complef and "Texas
courts have long admitted lay and expert testimony on shoe print
comparison"); State v. Yalowski, 404 P.3d 53, 60 (Utah Ct. App. 2017)
(concluding that a technician's testimony as a lay witness comparing
footwear impression photographs to the pattern on a pair of shoes was
admissible because the technician based his opinion on personal
observations, the jurors were free to "form [ 1 their own conclusions based on
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their observation of the photographs," and the technician "did not opine
'using terms of certainty or about the 'degree of similarity' between the
patterns"); see also State v. Hall, 344 S.E.2d 811, 812-13 (N.C. Ct. App.
1986) (allowing police officers to testitt that shoe prints appeared to match
the defendant's shoes where "the officers though not experts in identifying
shoe prints were qualified to compare shoes and shoe prints and testify with
respect thereto . . . that they saw and compared both the shoe prints and
shoes involved was foundation enough for their conclusion that the shoes and
prints matched' (emphasis added)).8
Based on the foregoing, we conclude that a juror may make
personal observations and draw general inferences regarding the
similarities between footwear impressions and footwear. Cf. NRS 50.265
(explaining a lay witness may testify to an inference rationally based on the
witness's perception where it is helpful to determining a fact in issue); NRS
52.045 (allowing jurors to make comparisons between handwriting samples
without requiring the aid of an expert). We conclude, in turn, such evidence
generally need not be supported by expert testimony to be admissible.8
8See also State v. Haarala, 398 So. 2d 1093, 1098 (La. 1981)
(concluding that a police officer could testify as a lay witness that the
shoeprints he observed "were of the same pattern as would have been made
by the defendant's shoes"); State v. McInnis, 988 A.2d 994, 995-96 (Me.
2010) (same); State v. Walker, 319 N.W.2d 414, 417-18 (Minn. 1982) (same).
8This is not to say that expert testimony regarding footwear
impressions is never necessary for such evidence's admission. Depending
on the circumstances surrounding either the evidence or the nature of the
testimony, expert testimony may be appropriate. See NRS 50.275 ("If
scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by special knowledge, skill, experience, training or
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Here, the photographs of the bloodied shoe prints near Banks's
body and the shoes found in Brown's girlfriend's home are independently
relevant circumstantial evidence. I° See Commonwealth v. Hawk, 709 A.2d
373, 376 (Pa. 1998) ("Evidence that merely advances an inference of a
material fact may be admissible, even where the inference to be drawn
stems only from human experience."); United States v. Lloyd, 462 F.3d 510,
517 (6th Cir. 2006) (determining that, despite the fact that the expert did
not identify a shoe print as definitely matching defendant's shoe, the
probative value of shoe print evidence was high where defendant was
arrested a short distance from crime scene wearing shoes that matched a
education may testify to matters within the scope of such knowledge."
(emphases added)).
loIn response to our concurring colleague, irrespective of whether the
State presented expert testimony of footwear comparison, we emphasize
that the photographs of Brown's shoes were independently relevant and
admissible. Here, Brown's shoes were presumptively tested by the crime
scene analyst for the presence of blood. The crime scene analyst testified
that Brown's shoes tested negative for the presence of blood. Thus, this
evidence is relevant and independently admissible. See NRS 48.025(1) ("All
relevant evidence is admissible[.1"); see also NRS 48.035(1)-(2) (establishing
that relevant and admissible evidence should be excluded where "its
probative value is substantially outweighed by certain considerations that
would warrant exclusion (emphasis added)). And we have long held that
the weight to be given to admissible evidence is left to the jury's
determination. See Wheeler v. State, 91 Nev. 119, 120,
531 P.2d 1358, 1358
(1975) ("The jury is the sole and exclusive judge of . . . the weight to be given
the evidence."). Brown's arguments that the district court erred by
admitting the photograph of Brown's shoes without a footwear expert are
doubly unavailing because, importantly, the photographs of Brown's shoes
were alternatively relevant and exculpatory to explain to the jury that
Brown's shoes did not contain the victim's blood that could be seen in the
photographs depicting the bloody shoe prints at the crime scene.
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shoe print at crime scene); see also NRS 48.025 (relevant evidence is
generally admissible). Moreover, the photograph of the footwear impression
evidence was admitted for the jury's overall observation, and the State
elicited no testimony during trial regarding the evidence that would require
specialized testimony for the jury to understand. Cf. NRS 50.275 (regarding
expert testimony). And while expert testimony may have further assisted
the jury in forming a particular conclusion about the evidence, this, without
more, does not render the photograph inadmissible or require expert
testimony to be independently admissible. Yalowski, 404 P.3d at 60
("Simply because a question might be capable of scientific determination,
helpful lay testimony touching on the issue and based on personal
observation does not become expert opinion." (quoting State v. Ellis, 748
P.2d 188, 191 (Utah 1987))).
Finally, the prosecutor did not improperly argue during closing
that during deliberations the jury should compare the footwear impressions
to the shoes found in Brown's residence. Once evidence is admitted during
trial, the prosecutor is free to argue inferences from that evidence. See
Rimer v. State, 131 Nev. 307, 330,
351 P.3d 697, 714 (2015) (noting that
attorneys are free to argue inferences from the evidence admitted at trial
during closing arguments). Here, the prosecutor argued to the jury
regarding two admitted pieces of evidence, and in doing so, he did not, as
Brown contends, improperly shift the burden to the defense where these
pieces of circumstantial evidence were of independent significance and
nothing in Nevada law either prohibits the prosecutor from arguing as to
the evidence's meaning and inferences or requires the prosecutor to base
any such argument on expert testimony. Thus, we determine that the
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district court did not abuse its discretion by admitting the footwear
impression evidence without accompanying expert testimony.
The district court did not violate Brown's rights under the Confrontation
Clause
Brown argues that the district court violated his rights under
the Confrontation Clause by allowing the Cellebrite employee to testify via
video conference where the district court failed to make the requisite
findings under Lipsitz v. State, 135 Nev. 131,
442 P.3d 138 (2019). Brown
also argues that the district court improperly limited his ability to cross-examine Stofik because protecting proprietary information and trade
secrets is an invalid reason for limiting cross-examination and, moreover,
these limitations prevented Brown from understanding Cellebrite's
practices and methods and offering adequate rebuttal evidence. Brown
further contends that, absent the cell phone evidence, there was no evidence
to support the conspiracy charge.
"The Confrontation Clause of the Sixth Amendment guarantees
that Uri all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him."' State v. Eighth Judicial
Dist. Court (Baker), 134 Nev. 104, 106,
412 P.3d 18, 21 (2018) (alteration in
original) (quoting U.S. Const. amend. VI). Whether a district court's
decision violated a defendant's Confrontation Clause rights is a question of
law that we review de novo. Chavez v. State, 125 Nev. 328, 339,
213 P.3d
476, 484 (2009).
Two-way video does not constitute a reversible Confrontation Clause
error here
‘"[T]he Confrontation Clause reflects a preference for face-toface confrontation at trial, but that preference 'must occasionally give way
to considerations of public policy and the necessities of the case.'" Lipsitz v.
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State, 135 Nev. 131, 136,
442 P.3d 138, 143 (2019) (emphasis omitted)
(quoting Maryland v. Craig, 497 U.S. 836, 849 (1990)); see also SCR Part
IX-A(B) Rule 4(1) (explaining a witness may testify via two-way video if
necessary to advance an important public policy and the testimony's
reliability is assured). Specifically, in-person cross-examination may not be
required under the Confrontation Clause if "denial of such confrontation is
necessary to further an important public policy and only where the
reliability of the testimony is otherwise assured." Lipsitz, 135 Nev. at 136,
442 P.3d at 143 (internal quotation marks omitted). But the district court
must first find that this alternative method of testimony is necessary. See
id. at 136-37, 442 P.3d at 143 (explaining that such "procedure [may] be
used only after the trial court hears evidence and makes a case-specific
finding that the procedure is necessary to further an important state
interest" (internal quotation marks omitted)). However, even where a
Confrontation Clause error occurs, "reversal is not required ‘if the State
could show beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'" Medina v. State, 122 Nev. 346, 355,
143
P.3d 471, 477 (2006) (quoting Sullivan v. Louisiana,
508 U.S. 275, 279
(1993)); see also NRS 178.598 ("Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.").
Brown's argument focuses on whether the district court made
the appropriate findings on Lipsitz's first prong: whether the denial of in-person cross-examination was necessary to further an important public
policy. The district court did not expressly make this finding. Stofik was
originally scheduled to testify at trial in person, and the State indicated
below that moving the testimony to another date, as necessary to
accommodate the coures calendar, would place an undue burden on
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Cellebrites business and would substantially increase the prosecution's
costs. The State argued that in-person testimony would not serve any
purpose that could not also be served through audiovisual testimony, and
Brown did not contest this point, instead arguing that he would "like to have
them live obviously and testify before the jury and let us cross-examine
[Stofik in person]," asserting that companies who worked with law
enforcement "need [ ] to come to court, periocr and that financial concerns
were an inadequate reason for failing to appear in person. The district court
then agreed with the State that Stofik could effectively testify via two-way
video, without specifically addressing what public policy would be served,
as required by Lipsitz.n And although the State raises several
considerations on appeal that may, upon further information, be sufficient
to establish a public policy reason supporting audiovisual testimony over
in-person testimony in this case, those arguments and correlating findings
were not made below. Cf. Lipsitz, 135 Nev. at 137-38, 442 P.3d at 144
(recognizing that protecting the defendant's right to speedy trial when a
witness is unable to testify in person on the day set for trial supports the
public policy prong).
However, we conclude that neither the district coures failure to
make express findings nor its decision to allow Stofik to testify via two-way
video contributed to the verdict, and we therefore conclude any error does
11Neither party raised Lipsitz in the district court or asserted that the
district court must make findings regarding the public policy served by two-way video.
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not warrant reversal here.12 The record demonstrates that Brown wanted
a Cellebrite employee to testify in order to address his concerns regarding
foundational issues, such as the chain of custody of the phone and that
Cellebrites extraction of the data did not alter the contents of the phones
data. The record reflects that Brown was able to cross-examine Stofik on
these two points at trial and even more extensively at a sealed hearing that
occurred during trial.
Further, Stofik's chain-of-custody testimony was cumulative of
other evidence admitted at trial. Stofik did not conduct any analysis or
observation of the phones content. Rather, Stofik's job consisted of using
Cellebrites software to make a copy of the phone's data on a local drive and
then a thumb drive, using a unique identifier to ensure accuracy of the copy
on the thumb drive. Detectives who handled the phone, transmitted it to
Cellebrite, and conducted the forensic analysis of the phone's data upon its
return from Cellebrite testified in person at trial, and the State admitted
other evidence, such as the sealed evidence bag used to transport the phone
to and from Cellebrite, establishing the phones chain of custody. Indeed,
the record shows that, through the cross-examination of Detective Michael
Mangione, Brown was able to present to the jury the very same chain-ofcustody defect Brown asserts Stofik was unable to properly address during
his cross-examination, namely, that the cell phone was sent twice to
Cellebrite for data extraction.13 Thus, Brown had the opportunity to cross-
12We nevertheless caution that district courts, in considering
Confrontation Clause arguments, should make express findings on the
record regarding the factors enumerated in Lipsitz.
13Stofik was unable to explain why Cellebrites first attempt to unlock
the phone failed because he was not the Cellebrite employee who first tried
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examine multiple witnesses regarding the phone's chain of custody, as well
as to cross-examine Stofik concerning the reliability of the copy. Delaware
v. Fensterer, 474 U.S. 15, 22 (1985) ("[T]he Confrontation Clause is
generally satisfied when the defense is given a full and fair opportunity to
probe and expose . . . infirmities through cross-examination . . . .").
Critically, too, Brown himself testified at trial, and the
prosecutor cross-examined him about the text messages. Brown
acknowledged those messages were tied to his phone number, and he
attempted to explain the context and meaning of several of the messages,
including, notably, one sent by Carter shortly before the murder regarding
items Banks may have in his car, and Brown's quick affirmative response.
From Brown's own testimony, therefore, the jurors could determine that
Brown sent the text messages and that he, in effect, confirmed the contents
of the text messages were accurate. Thus, having determined that the use
of two-way video does not require reversal under the particular facts of this
case, we next consider whether the district court improperly limited Stofik's
testimony.
The district court did not improperly limit witness testimony
It is well-established that a criminal defendant has the right to
"explore and challenge through cross-examination the basis of an expert
witness's opinion." Blake v. State, 121 Nev. 779, 790,
121 P.3d 567, 574
(2005). However, it is equally well-established that a defendant's right to
confrontation is not unlimited and does not entitle the defense to "cross-
the extraction. Stofik did the second extraction, which was successful, and
at the time of trial, the employee who had attempted the first extraction no
longer worked at Cellebrite. However, Detective Mangione explained that
the phone was sent a second time to Cellebrite once police became aware of
a Cellebrite software update.
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examination that is effective in whatever way, and to whatever extent, the
defendant might wish." Pantano v. State, 122 Nev. 782, 790,
138 P.3d 477,
482 (2006) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)); see
also Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir. 2021); United States v.
Williams, 892 F.3d 242, 247 (7th Cir. 2018); Boyer v. Vannoy,
863 F.3d 428,
448-49 (5th Cir. 2017); Davis v. Workman,
695 F.3d 1060, 1080 (10th Cir.
2012); Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011); United States v.
Thompson, 538 F. Supp. 3d 1122, 1130 n.40 (D. Nev. 2021); Evans v. State,
859 S.E.2d 593, 611 (Ga. Ct. App. 2021); Shively v. Commonwealth,
542
S.W.3d 255, 260 (Ky. 2018). "[T]he Confrontation Clause is generally
satisfied when the defense is given a full and fair opportunity to probe and
expose [a witness's] infirmities through cross-examination." Pantano, 122
Nev. at 790,
138 P.3d at 482 (internal quotation marks omitted).
Moreover, the district court retains wide latitude to impose
reasonable limits on cross-examination, such as excluding interrogation
that is only marginally relevant or would confuse the issues. See NRS
48.025(2) ("Evidence which is not relevant is not admissible."); NRS
48.035(1) ("Although relevant, evidence is not admissible if its probative
value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues or of misleading the jury."); Leonard v. State, 117
Nev. 53, 72,
17 P.3d 397, 409 (2001); see also Van Arsdall,
475 U.S. at 679;
United States v. Fattah, 914 F.3d 112, 180 (3d Cir. 2019) (providing
examples of reasons for limiting the scope of cross-examination); United
States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979) (explaining the trial
court's decision to limit cross-examination will not be disturbed absent a
clear abuse of discretion); Davis, 695 F.3d at 1081 ("There is no recognized
constitutional right for criminal defendants to present evidence that is not
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relevant and not material to his defense." (internal quotation marks
omitted)); Smith v. State, 796 S.E.2d 666, 670 (Ga. 2017) (recognizing trial
courts retain wide latitude to limit cross-examination).
In considering whether the Confrontation Clause is satisfied
despite limits on cross-examination, courts should consider the jury's ability
to assess the witness's credibility and specifically "whether a reasonable
jury would have received a significantly different impression of the witness'
credibility had counsel pursued the proposed line of cross-examination."
United States v. Mastin, 972 F.3d 1230, 1239-40 (llth Cir. 2020) (internal
quotation marks omitted). Courts should also weigh "the relevance of the
excluded evidence, the weight of the interests justifying exclusion, and
whether the exclusion of evidence left the jury with sufficient information
to assess the credibility of the witness." Gibbs, 996 F.3d at 602 (internal
quotation marks omitted).
WO have never addressed whether a court may limit testimony
in a criminal trial to protect proprietary rights in trade secrets. However,
both Nevada and federal law accord special protection to trade secrets in
civil litigation, see NRCP 26(c)(1)(G); FRCP 26(c)(1)(G), and other courts
have determined trade secrets present a significant private interest that
must be weighed in determining the extent to which disclosure is required.
See, e.g., Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp.
2d 572, 581-82 (E.D. Va. 2009) (compiling law). In considering whether to
limit cross-examination regarding trade secrets, therefore, a court should
consider whether, given the importance of the private interest at stake, the
cross-examination is designed to harass, annoy, or humiliate the witness;
whether it would cause prejudice or place the witness in danger; and
whether it would confuse the issues, be repetitive of other testimony, be
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speculative or vague, or be only marginally relevant. Cf. Leonard, 117 Nev.
at 72,
17 P.3d at 409.
Considering the record in this case, we conclude the district
court did not clearly abuse its discretion by limiting cross-examination. It
is not clear to us that the excluded evidence was so relevant as to necessitate
admission, given the interests at stake. Brown cross-examined Stofik
regarding the core issues of chain of custody and the reliability of the
evidence, and the district court's concern that delving into technical details
may unnecessarily confuse the jury is a valid one. See NRS 48.035.
Moreover, the district court found that at least part of Brown's cross-examination was of no relevance, and we agree that the circumstances
under which Cellebrite would be unable to unlock a phone is of little, if any,
relevance here and limiting that line of questioning was proper. As to the
general limits on cross-examining Cellebrite regarding the details of its
technology, Brown did not, and on appeal Brown still has not, provided any
reason why Cellebrite's extraction process is not reliable. See People v.
Cialino, 831 N.Y.S.2d 680, 682 (N.Y. Crim. Ct. 2007) ("The defendant has
not provided the court with a reasonable basis to believe that any software
changes and upgrades have caused the [device] used in this case to be
unreliable."). Finally, to the extent Brown was unable to cross-examine
Stofik on possible deficiencies in the chain of custody, those deficiencies
would go to the weight of the evidence rather than its admissibility and do
not amount to a Confrontation Clause violation here, where Stofik testified
to the data duplication process and its safeguards and Brown had the
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opportunity to cross-examine Stofik on those points.14 Cf. United States v.
Gorman, 312 F.3d 1159, 1163 (10th Cir. 2002) ("[D]eficiencies in the chain
of custody go to the weight of the evidence, not its admissibility. . . ."
(internal quotation marks omitted)); see also Sorce v. State, 88 Nev. 350,
352-53,
497 P.2d 902, 903 (1972) (explaining that establishing the chain of
custody does not require that all possibility of tampering be eliminated or
that each custodian testify to her or his involvement, so long as the evidence
provides reasonable certainty that there was no tampering or substitution).
In sum, the record does not show that limiting the testimony
left the jury with insufficient information to judge Stofik's credibility
regarding the core issues or that a reasonable jury would have received a
significantly different impression of Stofik's credibility had the district court
not limited the scope of cross-examination. And importantly, as explained
above, ultimately Brown's own testimony independently established the
accuracy of those text messages. Accordingly, we determine that the district
court did not violate the Confrontation Clause by limiting Stofik's testimony
to avoid disclosing Cellebrites trade secrets.15
14To the extent Brown argues the district court should have allowed
cross-examination on these points in the sealed hearing specifically, we
disagree for the reasons stated here.
15Even had the district court erred, we conclude any error would have
been harmless under the facts of this case. See Medina v. State, 122 Nev.
346, 355,
143 P.3d 471, 477 (2006) (setting forth considerations for
determining harmless error). The record belies Brown's argument that no
other evidence besides the text messages established conspiracy. Cell tower
evidence placed Brown and Carter near the crime scene. Cell phone records
showed that Carter was in contact simultaneously with both Brown and
Banks immediately before the murder. Critically, Brown's phone and DNA
were found at the crime scene. All of this evidence supports the existence
of a conspiracy. See Nunnery v. Eighth Judicial Dist. Court, 124 Nev. 477,
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CONCLUSION
We conclude that the jury could consider photographs of
footwear impressions along with those of Brown's shoes without the aid of
an expert witness here because both pieces of evidence were independently
admissible as circumstantial evidence. We further determine reversal is
not warranted for the district court's failure to make express findings under
Lipsitz v. State, 135 Nev. 131,
442 P.3d 138 (2019), regarding the use of two-way video for a witness's testimony, and that the district court did not abuse
its discretion by limiting cross-examination to avoid disclosing trade
secrets. Accordingly, we affirm the judgment of conviction.16
Silver
I concur:
44
) J.
Cadish
480, 186 P.3d 886, 888 (2008) (defining a conspiracy as an agreement
between at least two people for an unlawful purpose).
16Brown also argues cumulative error warrants reversal. Because we
find no errors to cumulate, we reject this argument. See Pascua v. State, 122
Nev. 1001, 1008 n.16,
145 P.3d 1031, 1035 n.16 (2006) (rejecting appellant's
argument of cumulative error where the "errors were insignificant or
nonexistenr).
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PICKERING, J., concurring:
I join the majority but write separately to explain the
admissibility of the photographs of the tread of Brown's shoe and the shoe
print found at the crime scene, despite the State not having introduced any
lay or expert witness testimony establishing their relationship to each
other.
To start, only relevant evidence is admissible. See NRS 48.025.
And to be relevant, evidence must have some effect on a fact "of
consequence in the case. NRS 48.015. Here, that fact is Brown's disputed
presence at the murder scene at the time of the murder. Foundation is a
special aspect of relevance because "evidence cannot have a tendency to
make the existence of a disputed fact more or less likely if the evidence is
not that which its proponent claims." Rodriguez v. State, 128 Nev. 155, 160,
273 P.3d 845, 848 (2012) (quoting United States v. Branch,
970 F.2d 1368,
1370 (4th Cir. 1992)). "[T]he party offering the evidence, by deciding what
she offers it to prove, can control what will be required to satisfy the
[foundation] requirement." 31 Charles Alan Wright & Victor James Gold,
Federal Practice and Procedure § 7104 (2d ed. 2021); see also Rodriguez, 128
Nev. at 160-61,
273 P.3d at 848-49. "But there is a significant limitation on
the power of a party offering evidence to decide what she claims it to be: the
party's claims must be consistent with the item's relevance." 31 Wright &
Gold, supra, § 7104.
Understanding that, a proper foundation for the State to
introduce the photograph of Brown's shoe entails more than a showing that
the photograph depicts Brown's shoe. A photograph of a suspect's shoe,
without more, no matter how accurately and painstakingly done, is
irrelevant to a murder case. See id. (discussing hypothetical in which the
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prosecution introduces a gun as an exhibit but fails to connect it with the
crime); see also Huddleston v. United States, 485 U.S. 681, 689 (1988)
(explaining that relevancy is a matter of relations). For the photograph to
be admissible under the State's theory, the State needed to lay a foundation
establishing that the photograph depicts Brown's shoe and that Brown's
shoe could have made the print at the crime scene on the night of the
murder.1 In other words, for the photographs of Brown's shoe and the crime
scene shoe print to come in, the State needed to connect them. See, e.g.,
United States v. Lloyd, 462 F.3d 510, 517 (6th Cir. 2006) (explaining that if
the government's evidence showed only that a right shoe made a print at
the crime scene and the defendant wore a right shoe, then the defendant
"would be correct" that this "would have little, if any, probative value);
State v. Sigman, 261 N.W. 538, 539 (Iowa 1935) ("The fact that a heel mark
was found upon a slip of paper lying on the floor near the safe might be a
strong circumstance tending to connect the defendant with the commission
of the crime . . . if the evidence showed that the heel mark on the exhibit
had distinctive peculiarities on it similar to those on the heel of defendant's
shoe . . . ." (emphasis added)). Otherwise, they were irrelevant.2
1 In closing argument, the State urged the jury to look at the crime
scene print, asking them, "can you look at that as reasonable men and
women and say that's not Larry Brown's shoe in the middle? I'll let you
make that determination."
21 disagree that the photographs were independently relevant
circumstantial evidence. Without a connection, the photograph of Brown's
shoe shows only that Brown owned shoes, and the photograph of the crime
scene print shows only that the murderer wore shoes. Neither of these facts
alters the probabilities of the case in any way. See NRS 48.015.
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Boiled down, then, this is a problem of foundation, related to
the concept of conditional relevancy. See Rodriguez, 128 Nev. at 160, 162
n.5, 273 P.3d at 848, 849 n.5 (explaining that foundation is a "special aspect
of relevancy," essentially "a question of conditional relevancy") (quoting
United States v. Branch, 970 F.2d 1368, 1370-71 (4th Cir. 1992)); David S.
Schwartz, A Foundation Theory of Evidence, 100 Geo. L.J. 95, 110 (2011)
("While foundation is often held to be a special case of conditional relevance,
the reverse is true: conditional relevance is an aspect of foundation."). By
statute, the requirement of foundation "as a condition precedent to
admissibility is satisfied by evidence or other showing sufficient to support
a finding that the matter in question is what its proponent claims." NRS
52.015(1) (emphasis added). So here, the district court's task was deciding
whether there was sufficient evidence for the jury to reasonably find that
Brown's shoe could have made the print at the scene. See Huddleston, 485
U.S. at 690 ("The court simply examines all the evidence in the case and
decides whether the jury could reasonably find the conditional fact—here,
that the televisions were stolen—by a preponderance of the evidence.").
This is an unusual case. The picture of the bloody shoe print is
clear and depicts the tread pattern of the footwear that made it.
Correspondingly, the sole of Brown's shoe has a matching "V"-patterned
tread running down the middle. Given the similarities between the design
of Brown's tread and the crime scene print, their obvious distinctive
features, and other evidence indicating Brown's presence, the court did not
abuse its discretion in finding that the jury could rely on its own knowledge
and common sense to draw the conclusion that Brown's shoe could have
made the print at the crime scene. See NRS 52.015(2) (explaining that the
statutory examples of foundation are illustrative, not restrictive);
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Middleton v. State, 114 Nev. 1089, 1105,
968 P.2d 296, 307 (1998)
(acknowledging the jury's capacity "to make logical inferencee from
evidence); Fed. R. Evid. 901(b)(3) (explaining that comparison by an expert
witness or the trier or fact may lay a foundation for evidence); Fed. R. Evid.
901(b)(4) (stating that foundation may be shown based on distinctive
characteristics). Of course, Brown was free to urge the jury to find
otherwise, through evidence or argument. See Rodriguez, 128 Nev. at 162
n.5, 273 P.3d at 849 n.5 (explaining that even after evidence is admitted,
the opponent may challenge its foundation).
i
This conclusion should be limited based on the unusually
obvious characteristics of the evidence in question, particularly given the
extensive critiques of feature-comparison methods of forensic science
evidence. See, e.g., Jane Campbell Moriarty, Deceptively Simple: Framing,
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4
Intuition, and Judicial Gatekeeping of Forensic Feature-Comparison
Methods Evidence, 86 Fordham L. Rev. 1687, 1688 (2018) ("For decades,
scientists and legal academics have been highly critical of claims that
[feature-comparison methods of forensic science evidence have] a reliable
foundation and can reliably match a known and unknown sample."). The
State could not, for example, introduce a photograph of a fingerprint found
at the crime scene and a photograph of the defendant's fingerprint, without
other evidence (generally, expert testimony) establishing that the crime
scene print was consistent with the defendant's. See 5 Jones on Evidence
§ 34A:36, 34A:40 (7th ed. Supp. 2022) (explaining that admitting fingerprint
evidence involves an expert "comparing the latent prints lifted from the
crime scene or other crime-relevant location" and the defendant's prints).
Without such testimony, the photographs would lack foundation, see NRS
47.070(1); NRS 52.015(1), and the jury would be asked to come to a
conclusion that is beyond its ability, knowledge, and common sense. See 31
Wright & Gold, supra, § 7208 ("[T]he court may refuse to permit a jury to
make [a] comparison [for purposes of authentication under Federal Rule of
Evidence 901(b)(3)] where the jury cannot reasonably be expected to reach
a reliable conclusion because the complexity or esoteric nature of the
matters to be compared requires an expert.").
Moreover, and for similar reasons, the evidence rules instruct
district courts to exclude relevant evidence where its "probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury." NRS 48.035(1). As a result, the
district court has discretion to exclude probative evidence that will cause
the jury to unfairly speculate, especially where there is a danger that the
jury will simply assume the evidence favors the State because the State
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chose to introduce it. See, e.g., Graham v. Firestone Tire & Rubber Co., 357
N.W.2d 666, 668 (Mich. Ct. App. 1984) (approving trial court's exclusion of
evidence because of the "danger of unfair innuendo and jury speculation");
Grant v. State, 205 P.3d 1, 20 (Okla. Crim. App. 2009) (approving trial
court's exclusion of records because "[m]any of these reports contain
information and terminology which might be confusing to someone outside
the world of psychology and psychiatry"). Because prejudice "does not
inhere in evidence but arises from the way in which a particular jury will
respond to it," it is for the district court to proactively assess what a jury is
likely to make of evidence that is offered for admission. 22A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 5215.1 (2d ed.
2014).
Thus, while I reach the same conclusion as the majority as to
the admissibility of the photographs, these bedrock principles guide my
analysis, and I would limit our holding to the application of those principles
to these unique facts. Because I do not believe that the district court abused
its discretion in finding that the photographs were authenticated, relevant,
and not more unfairly prejudicial than probative, and otherwise join the
majority opinion, I concur.
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6
