                               Ross and his codefendant, Keith Coulter, were tried together
                   and convicted. The issues on appeal are: (1) whether the district court
                   abused its discretion by excluding his codefendant's letter and affidavit
                   and (2) whether the district court abused its discretion by denying Ross's
                   motion to sever."
                   The district court abused its discretion by excluding a letter and affidavit
                   by codefendant Coulter
                               We review a district court's exclusion of evidence for an abuse
                   of discretion and will reverse "[a] decision [that] is arbitrary or capricious
                   or if it exceeds the bounds of law or reason."   Coleman v. State, 130 Nev.,
                   Adv. Op. 26, 321 P.3d 901, 908 (2014) (internal quotations omitted).
                               During opening arguments, Ross's attorney mentioned that
                   Coulter sent a letter to the defense. Coulter objected. Outside the
                   presence of the jury, Ross's attorneyS explained that Coulter, who was in
                   the Clark County Detention Center on an unrelated matter at the time,
                   had sent him a letter purportedly exonerating Ross from any involvement
                   in Smalley's murder. Ross's attorney used the letter to prepare an
                   affidavit for Coulter's signature and subsequently had an investigator visit
                   Coulter at the jail, where Coulter purportedly admitted to writing the
                   letter and thus signed the affidavit. The district court sustained Coulter's
                   objection and refused to admit his letter and affidavit on the basis that
                   they were not statements against Coulter's interest and were not
                   trustworthy.




                         'Because each of these issues warrants the reversal and remand of
                   Ross's convictions, we do not consider other issues raised in this appeal.

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                        Coulter's letter and affidavit are statements against penal interest
                              Hearsay is an out-of-court "statement offered in evidence to
                  prove the truth of the matter asserted," NRS 51.035, and is inadmissible
                  unless it falls within an exemption or exception, NRS 51.065(1). A
                  statement against interest• is excepted from the hearsay bar and is
                  admissible, provided that
                                  [a] statement which at the time of its
                              making ...
                                    (b) So far tended to subject the declarant to
                              civil or criminal liability . . . that a reasonable
                              person in the position of the declarant would not
                              have made the statement unless the declarant
                              believed it to be true is not inadmissible under the
                              hearsay rule if the declarant is unavailable as a
                              witness. A statement tending to expose the
                              declarant to criminal liability and offered to
                              exculpate the accused in a criminal case is not
                              admissible unless corroborating circumstances
                              clearly indicate the trustworthiness of the
                              statement.
                  NRS 51.345(1).
                              "[T]he against interest requirement is not limited to
                  confessions of criminal responsibility. What is required is that the
                  statement 'tend to subject' the declarant to criminal liability."      United
                  States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989) (quoting United States
                  v. Layton, 720 F.2d 548, 559 (9th Cir. 1983)). In Candoli, an unavailable
                  declarant made an out-of-court statement that he had the only keys to a
                  building on the night that an arson occurred in that building.     Id. at 508.
                  The statement was made to an investigator who the declarant knew was
                  investigating the fire, and the declarant had previously been arrested in
                  relation to the fire, which indicated that the declarant realized that the
                  statement was inculpatory and he would not have made it unless he
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                believed it to be true. Id. at 509. The Candoli court found that it was a
                statement against the declarant's penal interest, even though it was not a
                clear confession of criminal responsibility. Id.
                            Here, Coulter was not available as a witness because he, as a
                defendant, exercised his right not to testify.     See Funches v. State, 113
                Nev. 916, 922-23, 944 P.2d 775, 778-79 (1997) (holding that a defendant is
                considered unavailable to testify when invoking his Fifth Amendment
                right not to testify). While Coulter did not directly admit to any of the
                crimes surrounding Smalley's murder, his letter nonetheless puts him
                near the scene of the murder, as well as in possession of the car that was
                seen by police fleeing from the scene. Although his letter did not expressly
                state the date that the described events occurred, it does state that the
                letter is "in regards to your client Mr. [E]ugene [R]oss, and the current
                matter at hand," and that he was giving "my account of what happened."
                The letter also states that "on the day of the incident," Coulter borrowed
                Ross's car. These two statements indicate that the events described in the
                letter took place on the day and night of Smalley's murder.
                            The letter also states that Coulter and two friends then went
                to an apartment where there was "a lot of commotion" and he saw
                "Lashaye," Barksdale's middle name, run out of the apartment. It is
                undisputed that Barksdale was arrested after running outside of the
                apartment where Smalley was murdered; thus, Coulter's statement puts
                him near the crime scene around the time of the murder. Lastly, Coulter
                describes pulling the car into another apartment complex around the
                corner. As Ross's car was seen by police fleeing from the murder scene,
                and was later discovered in a nearby apartment complex, this statement



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                puts Coulter in possession of Ross's car near the crime scene immediately
                after Smalley's murder.
                              Coulter's affidavit also puts Coulter in possession of Ross's car
                on the morning of Smalley's murder. The affidavit states that on
                February 25, 2006, the day before Smalley's murder, Coulter borrowed
                Ross's car. It also states that he gave Ross the keys to the car on February
                26, 2006, the morning of Smalley's murder. As Ross was arrested near
                Smalley's apartment while possessing his car keys on the morning of
                February 26, 2006, Coulter's affidavit puts him near Smalley's apartment
                on the morning of his murder.
                              Thus, Coulter's letter and affidavit place him near the crime
                scene on the morning of Smalley's murder and in possession of a car seen
                fleeing from the crime scene. This same car was later found to contain
                substantial evidence relating to Smalley's murder. At the time he made
                his statements, Coulter was in the Clark County Detention Center for an
                unrelated parole violation and had not yet been charged with any crimes
                related to Smalley's murder. Like the declarant in Candoli, Coulter had
                reason to know that the statement could be inculpatory, as he would have
                known the nature of the crime that Ross had been charged with, as well as
                the fact that Ross's car was involved.      See Candoli, 870 F.2d at 508-09.
                Therefore, because Coulter's letter would tend to subject him to criminal
                liability for Smalley's death and a reasonable person in his position would
                not have made the statement unless he believed it to be true, we hold that
                Coulter's letter and affidavit were statements against his penal interest. 2


                      2 The portion of the affidavit stating that "Ross is innocent of any
                criminal charges," however, is not inculpatory because it does not state
                any facts that would connect Coulter to the charged crimes. Therefore,
                                                                      continued on next page...
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                         Corroborating circumstances indicate that Coulter's letter and
                         affidavit are trustworthy
                               "[T]he statutory test for determining the admissibility of
                   statements against penal interest under NRS 51.345 is whether the
                   totality of the circumstances indicates the trustworthiness of the
                   statement or corroborates the notion that the statement was not
                   fabricated to exculpate the defendant."   Walker v. State, 116 Nev. 670, 676,
                   6 P.3d 477, 480 (2000). In analyzing whether corroborating circumstances
                   indicate that a statement against interest is trustworthy, this court has
                   identified the following factors:
                               (1) whether the declarant had at the time of
                               making the statement pled guilty or was still
                               exposed to prosecution for making the statement,
                               (2) the declarant's motive in making the statement
                               and whether there was a reason for the declarant
                               to lie, (3) whether the declarant repeated the
                               statement and did so consistently, (4) the party or
                               parties to whom the statement was made, (5) the
                               relationship of the declarant with the accused, and
                               (6) the nature and strength of independent
                               evidence relevant to the conduct in question.
                   Coleman, 130 Nev., Adv. Op. 26, 321 P.3d at 909 (internal quotations
                   omitted).




                   ...continued
                   this sentence is not a statement against his penal interest and is not
                   admissible under this hearsay exception. See LaGrand v. Stewart, 133
                   F.3d 1253, 1267-68 (9th Cir. 1998) ("[A] statement that includes both
                   incriminating declarations and corollary declarations that, taken alone,
                   are not inculpatory of the declarant, must be separated and only that
                   portion that is actually incriminating of the declarant admitted under the
                   exception.").

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                               As Coulter's letter and affidavit are offered to exculpate Ross,
                  corroborating circumstances must demonstrate their trustworthiness to
                  establish their admissibility.    See id.   Applying Coleman, the following
                  considerations suggest that the letter was not trustworthy: Coulter and
                  Ross were close friends, the physical evidence suggests that Ross was at
                  the crime scene, and Coulter appears to have written the letter in an
                  attempt to exonerate Ross. However, the following considerations suggest
                  that the letter and affidavit were trustworthy: Coulter had not been
                  charged with any crimes related to Smalley's murder at the time that he
                  wrote the letter and signed the affidavit, Barksdale testified that Coulter
                  was present at the murder scene, the physical evidence corroborated
                  Coulter's account, Coulter made the statement to an officer of the court in
                  Ross's attorney, and Coulter later signed an affidavit repeating much of
                  the content of the letter.
                               Furthermore, Coulter's affidavit carries an additional "indicia
                  of trustworthiness because he memorialized it on paper, under oath, and
                  presented it as truth to a court of law."    Luna v. Cam bra, 306 F.3d 954,
                  963 (9th Cir. 2002), amended by 311 F.3d 928 (2002). This indicia of
                  trustworthiness is bolstered by the fact that Coulter's previous
                  involvement in the criminal justice system indicates that he "knew or
                  should have known that his declaration could be used against him in a
                  subsequent criminal trial"       Id. at 963-64 (noting that declarant's prior
                  involvement in the criminal justice system indicated that he did not make
                  the statement unwittingly or without understanding the ramifications of
                  the statement). Lastly, Ross's attorney stated that his investigator would




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                   testify that Coulter was not offered anything in exchange for signing the
                   affidavit.
                                We hold that, on balance, the Coleman factors in this case
                   indicate that the letter and affidavit are trustworthy. Therefore, because
                   Coulter's letter and affidavit were statements against his penal interest
                   and were trustworthy, the district court abused its discretion by excluding
                   them from evidence.
                          The district court's error was not harmless
                                An error is harmless if the court can determine "beyond a
                   reasonable doubt that the error complained of did not contribute to the
                   verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967).
                                Ross's theory of defense was that he had not been in
                   possession of his car when Smalley was murdered because he loaned it to
                   Coulter. Both Coulter's letter and affidavit strongly support this theory
                   because they state that Coulter had borrowed Ross's car the night of
                   Smalley's murder. Because we cannot determine beyond a reasonable
                   doubt that the district court's decision to exclude this evidence did not
                   contribute to Ross's guilty verdict, we hold that the district court's error
                   was not harmless. As a result, it warrants the reversal and remand of
                   Ross's conviction.
                   Significant irregular events impaired Ross's right to a fair trial
                                "A criminal defendant has a fundamental right to a fair trial
                   secured by the United States and Nevada Constitutions." Watters v. State,
                   129 Nev., Adv. Op. 94, 313 P.3d 243, 246 (2013) (internal quotations
                   omitted). The district court has a duty to "protect the defendant's right to
                   a fair trial" and to "provid[e] order and decorum in trial proceedings."



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                Rudin v. State, 120 Nev. 121, 140, 86 P.3d 572, 584 (2004) (internal
                quotations omitted); see also United States v. Evanston, 651 F.3d 1080,
                1091 (9th Cir. 2011) (stating that the district court is to manage the trial
                so as to avoid causing "a significant risk of undermining the defendant's
                due process rights to a fair trial and impartial jury").
                            An occurrence that "[is] so intrinsically harmful [to the
                concept of a fair trial] [constitutes a structural error that] require[s]
                automatic reversal . . . without regard to their effect on the outcome [of the
                proceeding]." Knipes v. State, 124 Nev. 927, 934, 192 P.3d 1178, 1182-83
                (2008) (second and fifth alterations in original) (quoting Neder v. United
                States, 527 U.S. 1, 7 (1999)); see also Cortinas v. State, 124 Nev. 1013,
                1024, 195 P.3d 315, 322 (2008) (observing that a structural error "affect[s]
                the very framework within which the trial proceeds" (internal quotations
                omitted)). Thus, an incident or incidents that significantly undermine a
                defendant's right to a fair trial can be structural error and require
                automatic reversal of a conviction.
                            In the present case, there were significant incidents that
                potentially affected the fairness of Ross's trial. Specifically, several jury
                irregularities occurred, including a juror's outburst and contempt
                proceedings, a juror's conversation with unknown individuals at a bar
                about the other juror's contempt proceedings, and improper
                communication between Ross's mother and a juror. In the most
                significant of these juror-related incidents, Ross's mother approached the
                assembled jurors in the morning before that day's trial proceedings and
                borrowed a juror's cell phone. Ross's mother then placed a call to a
                prospective witness in the presence of multiple jurors. Finally, Ross's



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                       mother attempted to pay the juror with one-half of a cigarette. The
                       district court did not remove any juror for this incident.
                                   Subsequent to the incident involving Ross's mother, the
                       district court confiscated the juror's cell phone and held a hearing outside
                       of the jury's presence. During the hearing, the district court answered a
                       call placed to the confiscated cell phone. This call originated from the
                       number that Ross's mother had called, and the district court attempted to
                       speak with the caller. The district court then detained Ross's mother and
                       initiated contempt proceedings against her.
                                   While none of these irregularities may have individually
                       impaired Ross's right to a fair trial or the jury's ability to be fair and
                       impartial, they collectively undermined Ross's right to a fair trial to the
                       point that they "affect[ed] the very framework within which the trial
                       proceed[ed]."   Cortinas, 124 Nev. at 1024, 195 P.3d at 322; cf. Valdez v.
                       State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) ("The cumulative
                       effect of errors may violate a defendant's constitutional right to a fair trial
                       even though errors are harmless individually." (internal quotations
                       omitted)). Thus, the effect of these irregularities also requires us to
                       reverse and remand Ross's convictions.
                       The district court abused its discretion by denying Ross's motion to sever
                       his and Coulter's trials
                                   We review the district court's denial of Ross's motion to sever
                       his and Coulter's trials for an abuse of discretion.    See Chartier v. State,
                       124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008). Severance is appropriate
                       "if there is a serious risk that a joint trial would compromise a specific
                       trial right of one of the defendants, or prevent the jury from making a




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                reliable judgment about guilt or innocence." Id. at 765, 191 P.3d at 1185
                (internal quotations omitted); see also NRS 174.165(1) (providing that
                severance is appropriate to prevent prejudice to a defendant or the State).
                One way that a joint trial may be prejudicial is when "defenses [are]
                antagonistic to the point that they are 'mutually exclusive."   Rowland v.
                State, 118 Nev. 31, 45, 39 P.3d 114, 122 (2002). "Defenses are mutually
                exclusive when the core of the codefendant's defense is so irreconcilable
                with the core of [the defendant's] own defense that the acceptance of the
                codefendant's theory by the jury precludes acquittal of the defendant."
                Marshall v. State, 118 Nev. 642, 646, 56 P.3d 376, 378 (2002) (alteration in
                original) (internal quotations omitted).
                            Here, Ross and Coulter each presented defenses based on the
                theories that each was not at the scene of the crime and did not commit
                the charged acts. To support these theories, each defendant developed
                evidence and made arguments suggesting that the other was present.
                            Ross presented a theory that Coulter was the man in the red
                beanie who battered and attempted to kill Paton. Barksdale, Paton, and a
                police officer who arrived at the scene all testified that one of the
                perpetrators was wearing a read beanie. A red beanie was later found
                discarded near the crime scene containing the DNA of Coulter, as well as
                DNA that the forensic analyst could not exclude as coming from Ross.
                Ross's attorney cross-examined Barksdale to clarify her testimony that she
                saw Coulter, not Ross, wearing the beanie. Ross argued that Coulter had
                borrowed Ross's car and used Ross's gun, which had been inside the car
                when Coulter borrowed the car. While cross-examining one of the State's




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                witnesses, Ross also proffered evidence that Coulter had previously been
                issued a traffic citation while driving Ross's car. In addition, Ross
                presented a witness who identified Coulter as being near the scene of the
                crime. Lastly, Ross argued that the reason he had gunshot residue on his
                hands was because he was handed his car keys from Coulter, implying
                that Coulter was in the apartment when Smalley was shot.
                             Coulter presented a theory that Ross was the man in the red
                beanie Coulter's attorney cross-examined Paton to clarify testimony that
                she saw Ross, and not Coulter, wearing the red beanie. In closing
                arguments, Coulter also argued that the possible presence of Ross's DNA
                on the beanie suggested that Ross, and not Coulter, was wearing it the
                night of Smalley's murder. Because both Ross and Coulter developed
                evidence and presented arguments that the other was the man in the red
                beanie, and that they themselves were not present at the time of the
                murder, their defenses were so antagonistic as to be mutually exclusive.
                Thus, this mutual exclusivity caused "a serious risk that [the] joint trial
                would .. . prevent the jury from making a reliable judgment about guilt or
                innocence," Chartier, 124 Nev. at 765, 191 P.3d at 1185 (internal
                quotations omitted), because the acceptance of Coulter's theory would
                cause a risk that it would necessarily reject Ross's theory of defense.
                Therefore, the district court abused its discretion by denying Ross's motion
                to sever the trials. As a result, reversal is warranted, and we order the
                district court to sever Ross's and Coulter's trials on remand.
                Conclusion
                             The district court abused its discretion by excluding Coulter's
                letter and affidavit from evidence, and this error was not harmless.
                Furthermore, significant irregularities deprived Ross of a fair trial.

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                 Lastly, the district court abused its discretion by refusing to sever Ross's
                 and Coulter's trials. Therefore, we
                                 ORDER the judgment of conviction REVERSED AND
                 REMAND this matter to the district court for proceedings consistent with
                 this order. 3


                                                                                       J.
                                                       Parraguirre mes"



                                                       Douglas




                                                       Saitta


                                                                                   ,   J.




                 PICKERING, J., with whom HARDESTY, C.J., agrees, concurring in part
                 and dissenting in part:
                                 I agree that reversal and remand for a new trial are required
                 by the denial of severance and juror misconduct issues in this case. But I


                        30n remand, we instruct the district court clerk to reassign this case
                 to a different department.

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                do not agree, and therefore dissent from, the majority's holding that the
                district court abused its discretion in not admitting the Coulter affidavit
                and letter under the exception NRS 51.345(1) makes to the hearsay rule,
                NRS 51.035, for statements against penal interest. Appellant did not cite
                NRS 51.345(1) in his opening brief as a basis for admitting this evidence
                and, as to the letter, goes so far as to state in his reply brief, p. 5, that it
                was "not sought to be introduced." I therefore question whether the
                statement-against-penal-interest exception is properly before the court on
                this appeal. See Bisch v. Las Vegas Metro. Police Dep't, 129 Nev., Adv. Op.
                36, n.2, 302 P.3d 1108, 1112, n.2 (2013) (declining to consider arguments
                not raised or supported in opening brief). As a substantive matter, our
                review is for an abuse of discretion by the district court.   Coleman v. State,
                130 Nev., Adv. Op. 26, 321 P.3d 901, 908 (2014). Here, I would hold that
                the district court acted within the ambit of permissible discretion in
                concluding that the affidavit, authored by Coulter while in jail on a parole
                violation, was not against Coulter's penal interest or trustworthy but,
                rather, designed to exonerate Ross and distance Coulter from the events
                giving rise to the charges in this case.




                                                                                       J.
                                                       Pickering

                I concur:


                                              , C.J.
                Hardesty



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           4r
                cc:   Hon. Michelle Leavitt, District Judge
                      Dayvid J. Figler
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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