The Prior Inconsistent Statement Project, Part 7 (Nevada)

Nevada is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let’s take a look at the case law.

The key case in the Silver State seems to be Bolden v. State, 624 P.2d 20 (Nev. 1981). In Bolden, on February 14, 1979, Rudy Bolden

pointed a .38 caliber revolver at a food checker in a grocery store and grabbed a handful of currency from the cash register. He fled the premises. The checker, soon after the robbery, identified an old photograph of Bolden from 250 prints at the police station. She repeated the identification several weeks later from a more recent picture. Finally, the checker made positive in-court identification of Bolden.

The Bolden case did not involve a prior inconsistent statement or a recantation. Instead, after Bolden was convicted, he claimed that the evidence presented at trial did not support the jury’s verdict based upon his alibi evidence. In rejecting Bolden’s appeal, the Supreme Court of Nevada concluded that

This Court has repeatedly held as recently as Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978) “that where ‘there is conflicting testimony presented, it is for the jury to determine what weight and credibility to give to the testimony.’…Where, as here, there is substantial evidence to support the jury’s verdict, it will not be disturbed on appeal. 

Since the Bolden case, Nevada courts have cited this holding to conclude that convictions were valid despite recantations of prior inconsistent statements. Let’s look at two of these cases.

First, Holmes v. State, 2015 WL 4068469 (Nev.App. 2015), Lafayette Holmes appealed his convictions for three counts of robbery, conspiracy to commit robbery, and battery with intent to commit a crime. According to the court,

Alleged coconspirator Maurnique Johnson testified regarding the second robbery that she told detectives she and Holmes planned the robbery together; but at trial she recanted stating only she planned the robbery. The State then impeached Johnson with her prior statement to police. Further, the victim testified that while Johnson was hitting her, Holmes threatened her with a gun. We conclude the jury could find beyond a reasonable doubt that Holmes conspired with the Johnson to commit robbery. See NRS 199.480; NRS 200.380(1). It is for the jury to determine the weight and credibility to give conflicting testimony, and the jury’s verdict will not be disturbed on appeal where, as here, substantial evidence supports its verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).

Second, in Gunnels v. State, 2009 WL 1437612 (Nev. 2009), Todd Gunnels was convicted of of one count of felony battery constituting domestic violence. In rejecting Gunnels appeal, the court concluded that

Our review of the record on appeal reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. At trial, Carlin Police Officer Dennis Fobes testified that the victim flagged him down at 1:30 a.m. on April 16, 2006, so that she could report that a bartender at the Peacock Bar was drinking while tending bar and had been mean to her. During the conversation, Officer Fobes noticed that the victim’s eye appeared puffed out and asked her about it. The victim stated that Gunnels struck her. However, she refused to pursue charges and the two parted. About two hours later, Officer Fobes was dispatched to Gunnels’ address, where he observed the victim with additional facial injuries. Officer James Mathes testified that the victim told him that Gunnels punched her in the face. The victim recanted her statements that Gunnels struck her at the preliminary hearing and at trial. The parties stipulated that they had a domestic relationship.

We conclude that the jury could reasonably infer from this evidence that Gunnels used unlawful force upon a woman with whom he had a domestic relationship. See NRS 200.481(l)(a); NRS 33.018(l)(a). Although the victim recanted her statements, it was for the jury to determine the weight and credibility to give the conflicting testimony, and the jury’s verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair, 108 Nev. at 56, 825 P.2d at 573.

As you can probably see, these cases don’t really answer the question of whether recanted prior inconsistent statements alone can support a conviction. In both cases, there was other evidence of the defendant’s guilt, with the court in both cases noting that a “jury’s verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict.” But what if there weren’t substantial evidence? In other words, what if the only evidence “supporting” the verdict were a witnesses’s recanted prior inconsistent statement. Nevada courts seemingly haven’t answered this question yet.

-CM