JOHN PAUL LYTLE, Appellant, v. THE STATE OF NEVADA, Respondent
Lytle v. State
with whom Mowbray, C. J., joins,
JOHN PAUL LYTLE, Appellant, v. THE STATE OF NEVADA, Respondent.
JOHN PAUL LYTLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21404
September 6, 1991
816 P.2d 1082
William B. Terry, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, John Lukens, Deputy District Attorney, Clark County, for Respondent.
OPINION
Per Curiam:
John Lytle stands convicted of open and gross lewdness and lewdness with a minor, his five-year-old stepdaughter. Lytle was charged with having engaged in self-stimulation in the company of his stepdaughter.
Although the child did testify, numerous hearsay statements made by the child to her mother, Lytle's ex-wife, and to certain police and juvenile agents were admitted at trial.
Appellant contends that the admission of the child-victim's hearsay statements at trial was improper under NRS 51.385 and was violative of his rights under the confrontation clause of the sixth amendment of the United States Constitution. Outside the jury's presence, prior to evidence being presented, the prosecution indicated its intention to offer hearsay statements of the victim. The prosecution stated that there was specific statutory authorization for admission of the hearsay statements under NRS 51.385 and that if defense counsel did not object, no hearing on the statements' trustworthiness need be held. Defense counsel did not object to the admission of the hearsay statements largely because the statements had been previously admitted in a custody proceeding in juvenile court. No finding with respect to reliability or trustworthiness was made by the court, and five witnesses were allowed to testify regarding hearsay statements made by the victim.
NRS 51.385 was adopted in 1985 and has yet to be interpreted by this court. The statute's plain language requires that a hearing as to trustworthiness be held prior to admission of the child's hearsay statements. NRS 51.385 reads in pertinent part as follows:
1. In addition to any other provision for admissibility made by statute or rule of court, a statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child is admissible in a criminal proceeding regarding that sexual conduct if the:
(a) Court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and
(b) Child either testifies at the proceeding or is unavailable or unable to testify.
(Emphasis added.)
NRS 51.385 clearly requires a hearing for the purpose of determining the trustworthiness of the offered hearsay statements prior to the statements being brought before the jury. The State contends that the hearing is required only if the defendant objects to the introduction of the hearsay. This contention is simply not consistent with the clear language of NRS 51.385, which allows hearsay statements only if the "court finds, in a hearing out of the presence of the jury" sufficient guarantees of trustworthiness. The admission of the child-victim's hearsay statements without a hearing to determine trustworthiness was not made in accordance with the specific requirements of NRS 51.385.
Whether the admission of the statements without some showing in a judicial hearing of their trustworthiness was violative of appellant's confrontation clause rights as they were recently interpreted in Idaho v. Wright, . U.S. ., 110 S.Ct. 3139 (1990), need not be addressed, because the mandatory language of NRS 51.385 was not complied with by the district court. We conclude that the district court's failure to follow the specific requirements of NRS 51.385 alone justifies the reversal of appellant's convictions.
Appellant makes other contentions on appeal including a claim of ineffective assistance of counsel. These contentions need not be addressed based upon our finding of reversible error with respect to the requirements of NRS 51.385.
Based upon the lower court's failure to conduct a hearing under NRS 51.385 prior to the admission of the hearsay testimony, we hereby reverse appellant's convictions and remand the case to the district court for retrial in strict compliance with the language of NRS 51.385.
Under the opening phrase of NRS 51.385(1), this hearing is required unless the hearsay is otherwise admissible under a recognized exception to the hearsay rule. No such exception was mentioned by the trial judge, and we conclude that the hearsay statements admitted in this case do not fit any recognized hearsay exceptions.