                                                       132 Nev., Advance Opinion
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   JONATHAN QUISANO,                                     No. 66816
                   Appellant,
                   vs.                                                             FILED
                   THE STATE OF NEVADA,
                   Respondent.                                                      FEB 1 8 2016
                                                                                   TRAgE K. LINDEMAN
                                                                              CL


                                                                                      F DErlY CLERK

                              Appeal from a judgment of conviction, pursuant to aW Alford
                   plea, 1 of voluntary manslaughter and child abuse, neglect, or
                   endangerment with substantial bodily harm. Eighth Judicial District
                   Court, Clark County; Valerie Adair, Judge.
                              Affirmed.



                   Philip J. Kohn, Public Defender, and Howard Brooks and Nancy Lemcke,
                   Deputy Public Defenders, Clark County,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
                   Clark County,
                   for Respondent.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.




                        ',See North Carolina v. Alford, 400 U.S. 25 (1970).


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                                                     OPINION

                    By the Court, SILVER, J.:
                                Appellant Jonathan Quisano pleaded guilty, pursuant to
                    Alford,   to voluntary manslaughter and child abuse, neglect, or
                    endangerment with substantial bodily harm. During the pendency of this
                    case, the Clark County District Attorney's office maintained a discovery
                    policy that provided for disclosure of all discovery to the defense. After
                    entry of Quisano's guilty plea, but before sentencing, the State obtained an
                    affidavit relevant to Quisano's case but did not disclose the affidavit to
                    Quisano. The State used the affidavit at Quisano's sentencing hearing to
                    impeach Christina Rodrigues—the victim's mother and Quisano's longtime
                    girlfriend—after she provided a favorable oral statement to the court on
                    Quisano's behalf, under the guise of a victim-impact statement. During
                    the sentencing hearing, the district court permitted the Las Vegas Review-
                    Journal to provide electronic coverage of the proceeding, although the
                    media outlet did not timely file a request for permission and the district
                    court did not enter a corresponding order or make the requisite
                    particularized findings on the record. In accordance with the guilty plea
                    agreement, the district court sentenced Quisano to serve a prison term of
                    4-10 years for voluntary manslaughter and a consecutive prison term of 6-
                    19 years for child abuse, neglect, or endangerment with substantial bodily
                    harm.
                                First, we consider whether the State failed to disclose the
                    affidavit in violation of Brady v. Maryland, 373 U.S. 83 (1963). We
                    conclude Quisano's Brady argument fails because the affidavit was not
                    favorable to him.



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                                Second, we evaluate whether the failure to disclose the
                   affidavit, notwithstanding the State's discovery policy, warrants reversal.
                   As a threshold matter, we conclude the State's discovery policy constituted
                   an open-file policy. In McKee v. State, 112 Nev. 642, 647-48, 917 P.2d 940,
                   943-44 (1996), the Nevada Supreme Court held that where a prosecutor
                   maintains an open-file policy, the prosecutor is under a duty to disclose all
                   evidence in the State's possession, regardless of whether the evidence is
                   inculpatory or exculpatory. We conclude that the duty set forth in McKee
                   extends through entry of the judgment of conviction and that the
                   prosecutor engaged in misconduct by failing to disclose the affidavit in
                   accordance with the State's open-file policy. Nevertheless, the misconduct
                   did not substantially affect the district court's sentencing determination or
                   prejudice Quisano and, therefore, does not warrant a new sentencing
                   hearing.
                                Third, we assess whether the district court erred by
                   permitting the Las Vegas Review-Journal to record Quisano's sentencing
                   hearing. Although we hold that the district court did not err by granting
                   the media outlet's untimely request, we conclude the district court did err
                   in not making particularized findings on the record regarding all of the
                   factors set forth in SCR 230(2) or issuing a written order granting the
                   media outlet's request. But those errors did not contribute to the district
                   court's sentencing determination. Accordingly, we conclude Quisano is not
                   entitled to relief on this basis.
                                Based on the foregoing, we affirm the judgment of conviction.
                                      FACTS AND PROCEDURAL HISTORY
                                On June 6, 2013, Khayden Quisano, the three-year-old child of
                   appellant Jonathan Quisano and Christina Rodrigues (Quisano's longtime
                   girlfriend), died as a result of injuries associated with blunt-force trauma
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                   to the head. At the time Khayden sustained his injuries, he was under the
                   sole supervision of Quisano, who was charged with murder shortly after
                   Khayden succumbed to his injuries. Quisano maintains that Ithayden was
                   injured after falling off a couch and hitting his head on a tile floor.
                   However, Quisano provided conflicting accounts regarding the
                   circumstances surrounding Khayden's injuries, and the medical experts
                   who testified at Quisano's preliminary hearing disagreed with each other
                   as to whether Khayden's injuries were consistent with a fall from a couch.
                               Prior to the commencement of trial, Quisano and the State
                   entered into a guilty plea agreement under which Quisano agreed to plead
                   guilty, pursuant to Alford, to one count of voluntary manslaughter and one
                   count of child abuse, neglect, or endangerment with substantial bodily
                   harm. Under the guilty plea agreement, the State retained the right to
                   argue but agreed it would not argue for a minimum sentence exceeding
                   ten years. Quisano pleaded guilty in accordance with the agreement on
                   June 25, 2014.
                               At Quisano's sentencing, a reporter from the Las Vegas
                   Review-Journal was present in the courtroom with a camera. Because the
                   media outlet did not file a timely request for permission to provide
                   electronic coverage of the proceeding, Quisano's counsel moved to exclude
                   it from recording the hearing or photographing the participants. In
                   evaluating Quisano's motion, the district court reasoned that permitting
                   the outlet to provide electronic coverage of the proceeding would serve the
                   public interest by facilitating public oversight of the judicial process. The
                   district court noted it generally grants all requests to provide electronic
                   coverage and would have granted a request from the outlet had it filed
                   one. Observing that other media outlets filed requests to provide

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                   electronic coverage of Quisano's case, the district court asked Quisano how
                   he would be prejudiced if the Las Vegas Review-Journal, as opposed to the
                   other media outlets, electronically covered the sentencing hearing.
                   Counsel for Quisano responded, "Where isn't actual prejudice other than
                   the fact that they shouldn't benefit from not following the rules any more
                   than we should." Based on the foregoing, the district court orally denied
                   Quisano's request to exclude the reporter from recording the proceeding.
                               After the district court ruled on Quisano's objection, the State
                   argued, consistent with the guilty plea agreement, that the district court
                   should sentence Quisano to consecutive sentences with a minimum term
                   totaling ten years but did not make a specific argument with regard to the
                   maximum term. In support of its argument, the State asserted that
                   Quisano provided inconsistent accounts of how Khayden sustained his
                   injuries and that the injuries were inconsistent with a fall from a couch.
                   The State also informed the district court that Quisano had a documented
                   history of child abuse and neglect 2 and argued that Quisano was likely to
                   reoffend.
                               Quisano argued for probation or a short prison term. In
                   support of that argument, Quisano asserted that Rhayden's injuries were
                   consistent with a fall from a couch, and that even if he caused Khayden's

                         2While   Quisano was living in Hawaii, one of his children, Jayden
                   Quisano, died of Sudden Infant Death Syndrome (SIDS). Subsequently,
                   Khayden was hospitalized with symptoms similar to SIDS. Tests at the
                   hospital revealed that Khayden suffered from a broken leg and broken
                   ribs—injuries deemed to be the result of nonaccidental trauma. Because
                   of those injuries, Child Welfare Services in Hawaii removed Khayden from
                   the family household. Nevertheless, Child Welfare Services ultimately
                   returned Khayden to Quisano and Rodrigues' care after completion of a
                   case plan.


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                   injuries, his acts were attributable to "a single momentary lapse or loss of
                   patience." After concluding his argument, Quisano requested that the
                   district court permit the victim's mother, Rodrigues, to address the court.
                   Rodrigues provided a victim-impact statement that consisted of a few
                   sentences. 3 Specifically, Rodrigues testified that "[Quisano] was a kind,
                   loving, caring, responsible father who showed love and affection to his
                   children every day" and that "[s]ending him to prison will harm more than
                   it will help."
                                In comparison, the State responded by extensively cross-
                   examining Rodrigues using information from an affidavit signed by an
                   employee of the Clark County Department of Family Services (DFS), and
                   dated September 4, 2014. 4 In the affidavit, the DFS employee averred as
                   follows:
                                      [Oln June 9, 2014, I requested case closure
                                of the dependency case as to the parents because
                                the natural mother, Christina Rodrigues,
                                articulated protective capacity. Christina
                                Rodriguez [sic] had come to recognize that
                                [Khayden1 died as a result of physical abuse by the
                                natural father, Jonathan Quisano. Christina
                                Rodrigues further expressed that Jonathan

                         3 Typically, in a victim-impact statement, the victim addresses "the
                   crime, the person responsible, the impact of the crime on the victim and
                   the need for restitution." NRS 176.015(3)(b). Although Rodrigues was a
                   victim of the crime because her child was killed, her victim-impact
                   statement actually addressed mitigating Quisano's sentence. Her entire
                   victim-impact statement consisted of less than one page of the sentencing
                   transcript.

                         4 Quisano pleaded guilty on June 25, 2014, and was sentenced on
                   October 7, 2014. Thus, the State obtained the affidavit after Quisano
                   pleaded guilty but before sentencing.

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                               Quisano should be punished for his abuse of
                               [Khayden] and that she believed Jonathan
                               Quisano should go to prison. 5
                               The State began by inquiring, over objections from Quisano,
                   whether Rodrigues believed Quisano should go to prison, and then later,
                   whether she believed that Quisano "committed abuse against [her] son
                   that died, Khayden." In response to Quisano's objection, the State
                   indicated that it was seeking victim-impact testimony, and the court
                   agreed, allowing the questioning Rodrigues answered that she did not
                   believe Quisano abused Khayden and that she hoped that he would
                   receive probation.
                               There were several more objections from Quisano prompting
                   the court to attempt to limit the inquiries by the prosecutor, but the court
                   relented when the State asked for "just a little leeway." The State then
                   asked whether Rodrigues remembered speaking with a judge in family
                   court and whether she stated that Quisano "committed abuse against [her]
                   son Khayden" and that "[Quisano] should be punished for his crime" with
                   imprisonment. Rodrigues responded, "[t]hat didn't come out of my
                   mouth." Finally, the State alleged, "you went to court one time and asked
                   for one thing, and you're coming to court now and asking for the complete
                   opposite." Quisano objected to the statement, and the district court




                         5Quisano and Rodrigues had three children: Jayden, Khayden, and
                   K.Q. As previously noted, Jayden died in Hawaii of SIDS. After the
                   events that gave rise to Quisano's conviction—specifically, Khayden's
                   death—K.Q. was placed in protective custody by DFS. Rodrigues
                   subsequently sought to regain custody of K.Q. The DFS employee
                   assigned to K.Q.'s dependency case prepared the subject affidavit following
                   an adjudicatory hearing on that matter.

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                   sustained the objection, noting that the affidavit discussed testimony
                   before another forum.
                                 After the State concluded its questioning of Rodrigues,
                   Quisano informed the district court that the State did not disclose the
                   affidavit during discovery. The State responded that "[it's not part of
                   discovery. This is a victim-impact statement." And Quisano replied:
                   "Judge, it's a document that's in the possession of the prosecution, and all
                   the way up to including sentencing is to be provided to the defense in
                   discovery. That's anything in aggravation or mitigation." 6 The district
                   court did not specifically address Quisano's final objection. But, given his
                   objections, Quisano requested that the district court designate the
                   affidavit as a court exhibit for the record, which the district court did. 7
                                 Before imposing sentence, the district court expressed
                   concerns regarding the conflicting medical evidence in the case, but it
                   stated that Quisano's prior substantiated record of child abuse in Hawaii
                   was "the tipping point for the Court." The district court sentenced



                         6Thus,  as addressed below in our discussion of the State's discovery
                   policy, Quisano raised a general objection, identifying a potential discovery
                   violation and questioning the temporal scope of the State's duty to disclose
                   discovery, but he did not use the precise words "it's a violation of the
                   State's discovery policy."

                         7 The  colloquy then continued, but the State did not argue in
                   response that its discovery policy did not require disclosure. Rather, the
                   prosecutor informed the district court that Quisano did not provide notice
                   that Rodrigues would give a victim-impact statement prior to the
                   sentencing hearing. The burden, however, is on the State to notify the
                   victim about the sentencing date, and the court must allow the victim to
                   testify. NRS 176.015(3)-(4). Moreover, notice of the victim's intent to
                   testify is not an element within the statute. Id.


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                   Quisano to serve a prison term of 4-10 years for voluntary manslaughter
                   and a consecutive prison term of 6-19 years for child abuse, neglect, or
                   endangerment with substantial bodily harm. Quisano now appeals
                                                    ANALYSIS
                                 Quisano contends that this court should vacate his sentence
                   and remand for a new sentencing hearing because (1) the State withheld
                   the affidavit in violation of Brady; (2) the State professed to have an open-
                   file policy, and, therefore, was subject to a duty to disclose the affidavit; 8


                         8 The  parties' initial briefs addressed the applicability of Brady;
                   however, neither party raised the issue of whether the State's discovery
                   policy constituted an open-file policy that created an ongoing duty to
                   disclose all evidence in the State's possession to Quisano. After
                   thoroughly reviewing the parties' briefs and the appendix, we concluded
                   that supplemental briefing was warranted. Accordingly, we exercised our
                   discretion to request supplemental briefing and issued an order directing
                   the parties to address whether the State has a continuing duty to provide
                   the defendant with discovery through sentencing under McKee v. State,
                   112 Nev. 642, 648, 917 P.2d 940, 944 (1996). See Sharma v. State, 118
                   Nev. 648, 651, 655-58, 56 P.3d 868, 870, 872-74 (2002) (explaining that the
                   supreme court ordered supplemental briefing after raising issues at oral
                   argument, and reaching issues addressed in the supplemental briefs). In
                   response, we received briefs from both Quisano and the State addressing
                   the question presented.

                         In addition to our discretion to request supplemental briefing, this
                   court also has discretion to consider issues raised for the first time on
                   appeal that involve recurring questions of law. See, e.g., Salazar ex rel.
                   Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir. 2010) ("[C]ourts
                   of appeals have discretion to address issues raised for the first time on
                   appeal, but exercise such discretion only in exceptional circumstances, as,
                   for example, in cases involving uncertainty in the law; novel, important,
                   and recurring questions of federal law; intervening change in the law; and
                   extraordinary situations with the potential for miscarriages of justice."
                   (internal quotation marks omitted)). Issues similar to that addressed
                   today have arisen in several cases before this court and, therefore, are
                                                                      continued on next page...
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                   and (3) the district court erred by allowing the Las Vegas Review-Journal
                   to provide electronic coverage of Quisano's sentencing hearing where the
                   outlet did not file a timely request for permission and the district court did
                   not issue an order or make particularized findings on the record. 9
                   Brady v. Maryland
                                Quisano contends that a new sentencing hearing is warranted
                   because the State withheld impeachment evidence in violation of Brady
                   and its progeny by failing to disclose the affidavit. Despite the State
                   having listed Rodrigues as a witness in its case-in-chief, the State counters


                   ...continued
                   likely to recur. Moreover, discovery and related sentencing issues occur
                   repeatedly, so it is appropriate for the court to clarify this area of the law.
                   Accordingly, the present case is "fully at issue and ready for decision."
                   Sharma, 118 Nev. at 651, 56 P.3d at 870.

                         9 Quisano  also contends that the district court erred by allowing the
                   State to cross-examine Rodrigues about matters exceeding the permissible
                   scope of NRS 176.015(3)—specifically, prior bad acts and family court
                   proceedings. We disagree. During its cross-examination of Rodrigues, the
                   State inquired about the acts underlying this case and an appropriate
                   sentence for Quisano. Both topics are permissible in a victim-impact
                   statement. See NRS 176.015(3) (providing that a victim may "41 easonably
                   express any views concerning the crime"); see also Randell v. State, 109
                   Nev. 5, 8, 846 P.2d 278, 280 (1993) (concluding a victim may express an
                   opinion regarding an appropriate sentence for the defendant in a
                   noncapital case). Neither the State nor Rodrigues referenced prior bad
                   acts during Rodrigues' victim-impact statement. And, to the extent that
                   the State inquired about family court proceedings, it only did so to lay a
                   foundation to impeach Rodrigues using the affidavit.

                         Quisano further asserts that the affidavit, the victim-impact
                   statement, and the State's violation of SCR 230 all constitute "impalpable
                   or highly suspect evidence." Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159,
                   1161 (1976). We have reviewed these arguments, and we conclude they
                   are without merit.

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                   that the affidavit does not fall within the scope of Brady and its progeny
                   because it was neither favorable to Quisano nor useful to impeach a
                   government witness, including Rodrigues, at trial.
                               "Determining whether the state adequately disclosed
                   information under Brady . . . requires consideration of both factual
                   circumstances and legal issues; thus, this court reviews de novo the
                   district court's decision." Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25,
                   36 (2000). The State violates a defendant's right to due process where it
                   suppresses or fails to disclose evidence that is favorable to the accused and
                   material to the issue of guilt or punishment. Brady v. Maryland, 373 U.S.
                   83, 87 (1963); Mazzan, 116 Nev. at 66, 993 P.2d at 36. To establish a
                   Brady violation, a defendant must prove the following three elements: (1)
                   the State withheld or failed to disclose evidence, (2) that evidence was
                   favorable to the defense, and (3) prejudice ensued.    Mazzan, 116 Nev. at
                   67, 993 P.2d at 37. Favorable evidence is not limited to exculpatory
                   evidence, but rather includes evidence that "provides grounds for the
                   defense to attack the reliability, thoroughness, and good faith of the police
                   investigation, to impeach the credibility of the state's witnesses, or to
                   bolster the defense case against prosecutorial attacks." Id.
                               Quisano's argument that the State violated Brady by failing to
                   disclose the affidavit lacks merit because the affidavit was not favorable to
                   Quisano. In the affidavit, a DFS employee alleges that Rodrigues
                   acknowledged Quisano's responsibility for the death of their son and
                   stated that Quisano should be imprisoned for his conduct. Even if the
                   State had disclosed the affidavit, it would not have provided Quisano with
                   a basis to attack the police investigation, impeach the State's witnesses, or
                   bolster his case against prosecutorial attacks.      See id.   Moreover, the

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                   affidavit was not exculpatory, as Quisano could not use it to explain away
                   the charges.     See King v. State, 116 Nev. 349, 359, 998 P.2d 1172, 1178
                   (2000) (defining exculpatory evidence "as evidence that will explain away
                   the charge"). Because the affidavit was not favorable to Quisano, his
                   argument fails, and we need not consider the remaining Mazzan factor. 10
                   Open-file policy
                                  Quisano argues that because the State professed to have an
                   open-file policy, it was subject to a duty to disclose all evidence—whether
                   inculpatory or exculpatory—in its possession. Quisano maintains that the
                   State's failure to comply with that duty unfairly surprised and prejudiced
                   him, and he contends that he is entitled to a new sentencing hearing.
                                  As a threshold matter, we consider whether, under the facts of
                   the present case, the State maintained an open-file policy. The record
                   includes several file-stamped "Receipt of Copy" forms, indicating that the
                   State furnished Quisano with various discovery materials. Each Receipt
                   of Copy includes a summary of the State's discovery policy in bold
                   typeface. That policy provides as follows:
                                  The State formally invites the defense to review
                                  the State's case file in the instant matter. This
                                  invitation is ongoing and is intended to make all
                                  discovery in the State's possession available and
                                  accessible to the defense. In addition, the State, at
                                  the request of the defense, will facilitate a review
                                  of the case file information housed at the Las
                                  Vegas Metropolitan Police Department
                                  (LVMPD) .       In addition, the State, at the

                         10 TheState also argues that it was not required to disclose the
                   affidavit under United States v. Ruiz, 536 U.S. 622 (2002). Given our
                   conclusion regarding Quisano's Brady argument, we need not reach that
                   issue.


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                               request of defense counsel, will also facilitate
                               access to all evidence at the evidence vault which
                               has been impounded ....
                               It is the desire of the State to provide the defense
                               with full access to all discovery in the possession of
                               the State. That access is available now.
                               The State acknowledges that its discovery
                               obligations are continuing and the State will make
                               all subsequent discovery received, if any, available
                               to the defense in compliance with the
                               requirements of NRS 174.235, as well as Brady v.
                               Maryland, 373 U.S. 83 (1963) and Giglio v. United
                               States, 405 U.S. 150 (1972).
                               The State also takes this opportunity to formally
                               request reciprocal discovery from the defense and
                               for the defense to provide timely access to any
                               discovery that it intends to use at trial.
                   The record reveals that the State never argued or even suggested to the
                   district court that the affidavit was not required to be disclosed under its
                   discovery policy.
                               On appeal, the State selectively quotes the third paragraph of
                   the policy and argues that it only committed to disclose evidence under
                   NRS 174.235, Brady, and Giglio. We note that if the policy allowed the
                   State to unilaterally assess whether materials are discoverable before
                   disclosing those materials to Quisano, the policy would serve no purpose
                   other than to signal the State's intent to comply with the law. However,
                   limiting the policy in that manner completely ignores the first and second
                   paragraphs of the policy, which set forth the State's intent to provide
                   access to "all discovery" in its possession to Quisano. Moreover, the
                   materials in the LVMPD case file and the evidence vault are not limited to
                   materials that are discoverable under NRS 174.235, Brady, and Giglio.
                   And, prior to the entry of Quisano's guilty plea, the State both frequently

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                   referenced the policy and invited Quisano to review the State's case file,
                   LVMPD's case file, and the evidence vault. These facts lead to the
                   inescapable conclusion that the State's discovery policy constituted an
                   open-file policy."
                                Having held that the State's discovery policy constitutes an
                   open-file policy, we next consider whether the prosecutor violated the
                   policy by failing to disclose the affidavit.
                                In McKee, the Nevada Supreme Court addressed whether a
                   prosecutor's open-file policy gives rise to a duty to disclose all inculpatory
                   and exculpatory evidence. 112 Nev. at 647-48, 917 P.2d at 943-44. There,
                   the prosecutor professed to have an open-file policy but withheld an
                   inculpatory photograph from the defense. Id. at 647, 917 P.2d at 943. At
                   trial, the prosecutor revealed the photograph, using it to impeach the
                   defendant after he testified. Id.

                         "Our dissenting colleague asserts that the State's discovery policy is
                   one of an administrative agency within the executive branch and that this
                   court lacks the constitutional authority to interpret such a policy. But the
                   record contradicts our dissenting colleague's assertion. As previously
                   noted, the record contains several Receipt of Copy forms. Those forms,
                   which required a signature from both the prosecutor and Quisano's
                   counsel, contemplated a contractual agreement, and the State acted in
                   accordance with that agreement to the extent it routinely disclosed
                   discovery to Quisano. We are not concerned, therefore, with a general
                   "office policy" at the Clark County District Attorney's office, and our
                   analysis does not raise a "constitutional question," as our dissenting
                   colleague suggests. Instead, we are giving effect to a contractual
                   agreement on discovery between Quisano and the prosecutor. And, in
                   interpreting the content and meaning of the open-file policy set forth in
                   that agreement, we apply the ordinary contract principles that appellate
                   courts routinely employ in the criminal context when interpreting plea
                   agreements. See State v. Crockett, 110 Nev. 838, 842, 877 P.2d 1077, 1079
                   (1994) (explaining that plea agreements are subject to contract principles).


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                                 In considering whether the prosecutor engaged in misconduct
                   by failing to disclose the photograph, the Nevada Supreme Court
                   acknowledged that "[p]rosecutors are put in the precarious position of
                   having to pursue criminal convictions zealously, while at the same time,
                   insure that defendants receive a fair and impartial trial."      Id. However,
                   the court in McKee heavily emphasized the importance of securing a just
                   conviction:
                                 Even more egregious, however, are attempts by
                                 representatives of the government to resort to
                                 these reprehensible means to shortcut their
                                 responsibility to ferret out all admissible evidence
                                 and use only that to meet their burden of proof
                                 We fear resort to such conduct indicates either an
                                 absence of sufficient evidence to convict or reflects
                                 shoddy government efforts that have failed to
                                 unearth admissible evidence.. . . He has no
                                 obligation to win at all costs and serves no higher
                                 purpose by so attempting. Indeed, "[fit is as much
                                 a duty to refrain from improper methods
                                 calculated to produce a wrongful conviction as it is
                                 to use every legitimate means to bring about a just
                                 one." [Berger v. United States, 295 U.S. 78, 88,
                                 (1934).]
                   Id. at 647, 917 P.2d at 943-44 (citation omitted). And, looking to
                   principles of contract law, the court cited several cases involving the
                   State's failure to comply with the terms of a plea agreement, McKee, 112
                   Nev. at 648, 917 P.2d at 944, including Cita v. State, where the court held
                   that "[w]hen the State enters a plea agreement, it is held to the most
                   meticulous standards of both promise and performance. . . . The violation
                   of the terms or the spirit of the plea bargain requires reversal." 107 Nev.
                   89, 91, 807 P.2d 724, 726 (1991) (internal quotation marks omitted).
                                 Based on these principles, the supreme court concluded "that a
                   prosecutor, as the agent of the State, is held to a high ethical standard and
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                   must abide by the promises he makes." McKee, 112 Nev. at 648, 917 P.2d
                   at 944. Thus, the supreme court reasoned that the open-file policy created
                   an expectation that the prosecutor would disclose all available evidence—
                   whether inculpatory or exculpatory—and the defendant reasonably relied
                   on that policy. Id. The court concluded the prosecutor's "act of deception
                   was clearly unfair, and extremely prejudicial to [the defendant]," and
                   therefore, the court determined that the prosecutor engaged in
                   misconduct. Id.; cf. Furbay v. State, 116 Nev. 481, 487-88, 998 P.2d 553,
                   557 (2000) (concluding that the State did not violate the defendant's rights
                   by failing to disclose inculpatory evidence where the district attorney's
                   office did not maintain an open-file policy).
                               In this case, the State contends that the duty set forth by the
                   Nevada Supreme Court in McKee does not extend through sentencing.
                   While McKee holds that an open-file policy subjects the State to a duty to
                   disclose all inculpatory and exculpatory evidence in its possession to the
                   defendant, the case does not provide guidance regarding the duration of
                   that duty. However, the Nevada Supreme Court's decision in Floyd v.
                   State, 118 Nev. 156, 42 P.3d 249 (2002), abrogated on other grounds by
                   Grey v. State, 124 Nev. 110, 178 P.3d 154 (2008), is informative on the
                   issue. Floyd concerned the application of two discovery statutes to the
                   penalty phase of a capital murder trial—specifically, NRS 174.234 and
                   NRS 174.245. Id. at 167, 42 P.3d at 257. Taken together, these statutes
                   provide that where a party intends to call a witness or offer certain
                   materials during its case in chief, it must disclose to the opposing party,
                   before trial, information relating to the witness and permit an opportunity
                   to inspect and copy the materials. Id. The case presented the question of
                   whether the phrase "case in chief," as used in NRS 174.234 and NRS

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                   174.245, encompasses the penalty phase of a capital murder trial.       Id. at
                   168, 42 P.3d at 257. In considering the issue, the Nevada Supreme Court
                   characterized as "unfounded" the assumption that the term "case in chief'
                   does not include both the guilt phase and penalty phase of a capital
                   murder trial.     Id.   The Floyd court concluded that "the term 'case in
                   chief[,]' [as used in those statutes,] encompasses the initial presentation of
                   evidence by either party in the penalty phase of a capital trial." Id. at 169,
                   42 P.3d at 258.
                               This reasoning in Floyd is illuminating on the present issue,
                   as it strongly implies that a duty to disclose evidence does not dissipate at
                   the end of the guilt phase of a trial, but remains in force until the
                   proceedings fully conclude in the trial court. And, capital cases do not
                   present the only situation in which the State provides discovery to
                   defendants specifically for use at sentencing. In cases involving enhanced
                   penalties, such as DUI, domestic violence, and habituality, the State
                   routinely gives defendants discovery that may be applicable only to
                   sentencing. See NRS 484C.400(2); NRS 200.485(4); NRS 207.016(2) This
                   type of discovery is generally inculpatory in nature, yet the State discloses
                   these materials for their admission or for argument at sentencing as
                   opposed to their utilization during trial.
                               This disclosure of discovery, which pertains exclusively to
                   sentencing, reflects an underlying recognition that defendants must have
                   an opportunity to review materials in order to prepare a defense for
                   sentencing proceedings, and it enhances judicial efficiency by averting
                   delays caused by the offer of surprise evidence.          See NRS 169.035
                   (explaining that the criminal procedure statutes are "intended to provide
                   for the just determination of every criminal proceeding" and providing

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                   that such statutes shall be "construed to secure simplicity in procedure,
                   fairness in administration and the elimination of unjustifiable expense
                   and delay"). As discovery materials are not limited to those materials
                   intended for use at trial, it follows that for purposes of the duty to disclose
                   under McKee, there is no basis to distinguish between trial and sentencing
                   proceedings in a noncapital case.
                                  The Nevada Supreme Court's reasoning in McKee rests on the
                   principle that if the State professes to disclose all evidence in its
                   possession, the defendant may reasonably rely on that promise. 112 Nev.
                   at 648, 917 P.2d at 944. Because at sentencing the State may argue facts
                   contained within discovery that ultimately could have a significant impact
                   on a defendant's sentence, it follows that a defendant's reliance on an
                   open-file policy following entry of a guilty or no contest plea or after a jury
                   verdict continues until sentencing concludes. See Miller v. Hayes, 95 Nev.
                   927, 929, 604 P.2d 117, 118 (1979) (holding the district court's jurisdiction
                   over the defendant continues until the judgment becomes final).
                                  Moreover, in the context of penalty or sentencing proceedings,
                   it is reasonable for a defendant to rely on an open-file policy where the
                   policy does not state that discovery "concludes upon the defendant
                   entering his guilty plea," but rather explicitly provides that "[Mils
                   invitation is ongoing," and where, as here, the record reflects that the
                   State regularly filed Receipt of Copy forms with the district court. 12 These
                   actions demonstrate that the State acted in accordance with its open-file


                         12 0ur
                              dissenting colleague's ultimate conclusion rests in part on the
                   assertion that the prosecutor believed that the open-file policy only
                   extended through trial and not through sentencing, but the record is
                   completely devoid of any factual finding in support of that assumption.


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                   policy on an ongoing basis throughout the proceedings. Therefore, a
                   defendant would reasonably expeet such discovery disclosures to continue
                   until the judgment becomes final. Thus, for the reasons stated, we hold
                   that the duty set forth in McKee extends through entry of the judgment of
                   conviction. 13
                                In the present case, the State maintained an open-file policy
                   and was subject to an ongoing duty to disclose all evidence in its
                   possession to Quisano. In light of the State's open-file policy, repeated
                   references to that policy, and regular discovery disclosures, Quisano could
                   reasonably rely on the State's promise under the open-file policy to provide
                   discovery as it became available, just like the defendant in McKee who
                   reasonably relied on the State's open-file policy. 14 Yet, similar to the
                   prosecutor in McKee who failed to disclose a photograph before introducing


                          mOur decision today does not address law enforcement materials
                   that the State is restricted from disclosing under federal or state law—for
                   example, National Crime Information Center (NCIC) records. See, e.g., 28
                   U.S.C. § 534(b) (2011). Neither does our decision address materials that
                   fall within an evidentiary privilege.

                         14 Based   on the record in the present case, the extent to which
                   Quisano relied on the State's open-file policy is unclear. But a defendant's
                   reliance on an open-file policy is not a prerequisite to the duty to disclose
                   as set forth in McKee. Instead, the reality that a defendant may rely on an
                   open-file policy is the rationale underlying the supreme court's conclusion
                   "that a prosecutor, as the agent of the State, is held to a high ethical
                   standard and must abide by the promises he makes." McKee, 112 Nev. at
                   648, 917 P.2d at 944; see also Furbay, 116 Nev. at 487, 998 P.2d at 557
                   (2000) (concluding that "[w]hen the prosecution purports to give all
                   inculpatory evidence in its control, it may not withhold evidence for later
                   use"). Because the duty to disclose arises when the State professes to have
                   an open-file policy, we need not reach the issue of whether Quisano
                   actually relied on the State's open-file policy.


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                   it at trial, here also, the prosecutor failed to disclose the affidavit to
                   Quisano prior to using it at Quisano's sentencing hearing. Because the
                   prosecutor withheld the affidavit from Quisano in violation of the open-file
                   policy, the prosecutor engaged in misconduct. See McKee, 112 Nev. at 648,
                   917 P.2d at 944 (concluding that the prosecutor engaged in misconduct by
                   failing to comply with an open-file policy).
                               In characterizing the prosecutor's violation of the open-file
                   policy as misconduct, we are constrained by the prosecutorial misconduct
                   standard applied in McKee and by the district court's comments regarding
                   the prosecutor anticipating Rodrigues appearing at sentencing on behalf of
                   Quisano. 15 But we are also mindful of the realities confronting today's
                   prosecutors—including high case volumes and differing case management
                   systems—and recognize that a prosecutor's failure to provide discovery
                   may be a mere unintentional oversight as opposed to a willful or
                   intentional act involving misconduct. Thus, we encourage district courts,
                   when imposing sanctions for a violation of an open-file policy, to make
                   factual findings on the record with regard to whether such a violation was
                   inadvertent, willful, or intentional. Without a factual finding that a
                   violation of an open-file policy was willful or intentional, this court is
                   reluctant to classify an unintentional violation as misconduct on the part
                   of the prosecutor.
                               Unlike in McKee,       where the prosecutor prejudiced the
                   defendant by impeaching him with the undisclosed photograph, here,


                          ThSpecifically, in reference to the prosecutor's copy of the affidavit,
                   the district court observed that "he probably has it all nice and highlighted
                   in his file because he may have anticipated that [Rodrigues] would just
                   show up."


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                   Quisano did not suffer prejudice when the prosecutor impeached
                   Rodrigues with the undisclosed affidavit. 16 First, the district court
                   sustained Quisano's objection after the State asserted, "you went to court
                   one time and asked for one thing, and you're coming to court now and
                   asking for the complete opposite." Second, at sentencing, the State did not
                   rely on its impeachment of Rodrigues, but rather argued that Quisano had
                   a prior record of child abuse against Khayden, and in the present case,
                   Khayden suffered injuries consistent with child abuse. Third, the district
                   court did not place value on the affidavit, which was merely marked as a
                   court exhibit, but rather, expressly stated that it found Quisano's history
                   of child abuse in Hawaii particularly influential in its sentencing
                   determination. Fourth, and most important, the district court sentenced
                   Quisano in accordance with the guilty plea agreement. The failure to
                   disclose the affidavit, although a violation of the State's open-file policy,
                   did not ultimately prejudice Quisano or result in a miscarriage of justice.
                   Valdez, 124 Nev. at 1190, 196 P.3d at 477 (holding that reversal is not
                   warranted under the plain-error standard unless the error affects the



                          l6Although Quisano raised a general objection that the State
                   violated discovery rules, he did not use the precise words "the State
                   violated its open-file policy," and the district court did not rule on that
                   issue. As such, we review for plain error because Quisano may not have
                   sufficiently raised an objection based on the violation of the open-file
                   policy. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)
                   (holding that unpreserved claims of prosecutorial misconduct are subject
                   to plain-error review). Even if error is plain from a review of the record,
                   we will not reverse Quisano's sentence under that standard unless
                   Quisano "demonstrates that the error affected his .. . substantial rights,
                   by causing 'actual prejudice or a miscarriage of justice?" See id. (quoting
                   Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).


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                   defendant's substantial rights). Therefore, reversal of Quisano's sentence
                   is not warranted on this basis. 17




                         17 Even if this court assumed that Quisano's objection at sentencing
                   was sufficient to preserve the open-file policy issue for review under the
                   harmless-error standard, Quisano's claim would nevertheless fail, as the
                   State's failure to disclose the affidavit neither prejudiced Quisano nor
                   affected the district court's sentencing determination. See Valdez, 124
                   Nev. at 1188-89, 196 P.3d at 476 (setting forth the harmless-error
                   standard for nonconstitutional error); see also McKee, 112 Nev. at 648, 917
                   P.2d at 944 (reviewing a prosecutor's failure to comply with an open-file
                   policy for nonconstitutional harmless error where the appellant properly
                   preserved the issue for appellate review).

                          Quisano further contends that the State was required to disclose the
                   affidavit under NRS 174.235 and the district court's order compelling
                   discovery, and therefore, he asserts that the district court abused its
                   discretion by permitting the State to cross-examine Rodrigues using the
                   affidavit. Even if we assume that NRS 174.235 or the discovery order
                   required the State to disclose the affidavit, Quisano would not be entitled
                   to relief because the facts in the present case do not establish that the
                   State's failure to disclose the affidavit prejudiced Quisano and because
                   Quisano does not otherwise argue that the State acted in bad faith. See
                   Evans v. State, 117 Nev. 609, 638, 28 P.3d 498, 518 (2001) ("The district
                   court has broad discretion in fashioning a remedy" for discovery violations,
                   and reversal is not appropriate "absent a showing that the State acted in
                   bad faith or that the nondisclosure caused substantial prejudice to the
                   defendant which was not alleviated by the court's order.").

                          We also note that the record does not support the State's assertion
                   that it did not intend to use Rodrigues as a witness. Based on the DFS
                   employee's efforts to memorialize Rodrigues' statements at the family
                   court proceeding, shortly before Quisano's plea, it appears that the State
                   intended to impeach Rodrigues at Quisano's trial. Moreover, as the DFS
                   employee summarized Rodrigues' testimony in an affidavit following entry
                   of Quisano's plea, but before sentencing, it appears that the State
                   anticipated that Rodrigues would provide an oral statement on behalf of
                   Quisano at sentencing. Tellingly, at Quisano's sentencing, the district
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                   Electronic coverage of Quisano's sentencing hearing
                               Quisano argues that this court should remand his case for a
                   new sentencing hearing because the district court erred by permitting a
                   reporter from the Las Vegas Review-Journal newspaper to electronically
                   record his sentencing hearing where the media outlet did not file a timely
                   request for permission and where the district court did not issue a written
                   order or make particularized findings on the record. The State argues
                   that the district court did not err because courts may grant untimely
                   requests to provide electronic coverage of courtroom proceedings and
                   because courts need not make explicit findings regarding the factors set
                   forth in SCR 230(2) on the record.
                               A district court's failure to follow the procedural requirements
                   for determining whether to permit electronic coverage of courtroom
                   proceedings amounts to nonconstitutional error, which we review for
                   harmless error.    See NRS 178.598 ("Any error, defect, irregularity or
                   variance which does not affect substantial rights shall be disregarded.").
                   Under that standard, we will not reverse unless the error substantially
                   influenced the district court's sentencing determination or had an
                   injurious effect on the defendant's sentence. See Knipes v. State, 124 Nev.
                   927, 935, 192 P.3d 1178, 1183 (2008) (concluding that the failure to apply
                   the procedural safeguards for juror questioning constitutes
                   nonconstitutional error and applying the federal test set forth in Kotteakos
                   v. United States, 328 U.S. 750 (1946)).




                   ...continued
                   court observed that the affidavit was "nicely highlighted. I suspect they
                   thought maybe [Rodrigues] would be showing up to speak."

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                               We recognize that the presence of cameras in the courtroom
                   can be a controversial topic, and without adequate safeguards, a camera's
                   presence may violate a criminal defendant's right to due process. The
                   United States Supreme Court, however, has refused to create a per se
                   constitutional rule against electronic coverage of courtroom proceedings.
                   See Chandler v. Florida, 449 U.S. 560, 573, 582-83 (1981). In Chandler,
                   the Court reasoned that technological advancements had limited the
                   degree to which cameras disrupt courtroom proceedings and that states
                   had enacted safeguards to protect against the dangers identified by earlier
                   caselaw. Id. at 576-77.
                               The procedural requirements set forth in SCR 230 are
                   examples of safeguards that serve to protect a criminal defendant's
                   constitutional rights by ensuring that district courts properly balance a
                   defendant's constitutional right to a fair trial with the media's and public's
                   interest in electronic coverage of courtroom proceedings.       See Chandler,
                   449 U.S. at 577 (recognizing that a trial court's consideration, on the
                   record, of a defendant's objection to media coverage functions as a
                   safeguard of the defendant's constitutional rights). Under SCR 230(2),
                   courtroom proceedings that are open to the public are presumptively
                   subject to electronic coverage. Participants in a courtroom proceeding
                   need not consent to electronic coverage. SCR 240(1). But media outlets
                   desiring to cover a courtroom proceeding by electronic recording or
                   photography must file a written request with the court at least 24 hours
                   before the proceeding commences. SCR 230(1). The district court,
                   however, may grant a request to provide electronic coverage "on shorter
                   notice or waive the requirement for a written request" entirely. Id.



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                               Under SCR 230(2), "[a] judge shall make particularized
                   findings on the record when determining whether electronic coverage will
                   be allowed." Specifically, the court must consider the following six factors:
                                     (a) [t]he impact of coverage upon the right of
                               any party to a fair trial; (b) [t]he impact of
                               coverage upon the right of privacy of any party or
                               witness; (c) Mlle impact of coverage upon the
                               safety and well-being of any party, witness or
                               juror; (d) Mile likelihood that coverage would
                               distract participants or would detract from the
                               dignity of the proceedings; (e) [tlhe adequacy of
                               the physical facilities of the court for coverage; and
                               (f) rainy other factor affecting the fair
                               administration of justice.
                   SCR 230(2). The court must also make its written order "a part of the
                   record of the proceedings." SCR 230(1).
                               In the present case, the district court permitted the Las Vegas
                   Review-Journal to provide electronic coverage of Quisano's sentencing
                   hearing even though the media outlet did not timely file a request for
                   permission—a determination expressly authorized by SCR 230(1). The
                   district court, however, failed to follow the procedure set forth in SCR 230
                   for granting or denying requests to provide electronic coverage of
                   courtroom proceedings. During Quisano's sentencing hearing, the district
                   court considered potential prejudice by media coverage to Quisano,
                   analyzed the public's benefit stemming from media coverage of the
                   courtroom proceeding, and examined the adequacy of the physical
                   facilities of the court for coverage. But the district court did not make
                   particularized findings on the record regarding all of the factors set forth
                   in SCR 230(2), and it did not issue a written order granting the outlet's
                   request.


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                               By failing to comply with these requirements, the district
                   court erred, but the error was harmless. Nothing in the record suggests
                   that the district court's error contributed to its sentencing determination,
                   nor does Quisano argue such was the case. See Knipes, 124 Nev. at 935,
                   192 P.3d at 1183. In fact, Quisano acknowledged that the presence of a
                   reporter from the Las Vegas Review-Journal with a camera in the
                   courtroom did not prejudice him.
                               Moreover, we agree with the district court's rationale for
                   granting the request of the Las Vegas Review-Journal. In particular, we
                   note the potential benefit to the public associated with electronic coverage
                   of courtroom proceedings. Those benefits include (1) access to and
                   knowledge of the justice system; (2) public oversight of the judicial process,
                   which curtails judicial abuse and enhances public confidence in the
                   judicial system; (3) increased awareness of societal problems, including
                   domestic violence and child abuse; and (4) protection of defendants' rights.
                   See Allowing Cameras and Electronic Media in the Courtroom: Hearing on
                   S. 721 Before the Subcomm. on Admin. Oversight and the Courts of the S.
                   Comm. on the Judiciary, 106th Cong. 19, 30 (2000) (statements of Judge
                   Nancy Gertner, United States District Court for the District of
                   Massachusetts, and Sen. Charles E. Schumer). Therefore, we conclude
                   that Quisano's argument fails.
                                                  CONCLUSION
                               Because the State maintained an open-file policy, it was
                   subject to a duty, which extended through entry of the judgment of
                   conviction, to disclose all evidence in the State's possession, regardless of
                   whether it was inculpatory or exculpatory. The prosecutor failed to
                   disclose the affidavit notwithstanding that duty, and therefore, he
                   engaged in misconduct. The misconduct, however, did not prejudice
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                   Quisano because the district court did not rely on the affidavit in
                   sentencing Quisano and sentenced Quisano in accordance with the guilty
                   plea agreement.
                               As to his two remaining arguments, Quisano failed to
                   establish reversible error. First, the prosecutor's failure to disclose the
                   affidavit did not violate Brady because the affidavit was not favorable to
                   Quisano. Second, although the district court erred by failing to make
                   particularized findings on the record regarding all of the factors set forth
                   in SCR 230(2), and by failing to enter a written order granting the Las
                   Vegas Review-Journal     permission to provide electronic coverage of
                   Quisano's sentencing hearing, the district court's error was harmless
                   because it did not contribute to the sentencing determination.
                   Accordingly, we affirm the judgment of conviction and sentence.



                                                                                      J.
                                                      Silver

                   I concur:



                                                   C.J.




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                   TAO, J., concurring in part and dissenting in part:
                                I agree with much that the majority writes, including the
                   portion of the opinion affirming the district court's decision to permit news
                   reporters to cover Quisano's sentencing hearing. Unfortunately, I cannot
                   join in the portion of its analysis relating to the scope and applicability of
                   the prosecutor's "open-file policy."
                                The majority judicially interprets the prosecutor's open-file
                   policy so that it now must be understood to apply not only to trial (which is
                   what the particular prosecutor in this case apparently understood it to
                   mean), but from now on to also extend beyond the determination of guilt
                   until entry of the judgment of conviction. The majority proffers this
                   interpretation as a matter of law, not based upon factual findings (as the
                   district court heard no sworn testimony or evidenceS and entered no factual
                   findings), and furthermore it does so on appeal de novo without deference
                   to the district court or to the prosecutor who wrote the policy.
                                As an exercise in public policy, the majority's reading of the
                   open-file policy probably has much in it to commend; one could argue that
                   there exist sound and good reasons why elected district attorneys in this
                   state should adopt voluntary open-file discovery policies that are both
                   generous and extend through the completion of sentencing, not just
                   through trial.   See Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann.
                   Rev. of Crim. Proc. viii (2015) ("There is reason to doubt that prosecutors
                   comply with [their] obligations fully."). Indeed, former Chief Judge
                   Kozinski of the United States Court of Appeals for the Ninth Circuit,
                   certainly no liberal firebrand, has written of an "epidemic of Brady
                   violations abroad in the land." United States v. Olsen, 737 F.3d 625, 626
                   (9th Cir. 2013) (Kozinski, C.J., dissenting). Whether or not that epidemic

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                   truly exists or has spread to Nevada, requiring more disclosure in criminal
                   cases beyond the requirements of Brady and Giglio might well represent
                   good policy, even if only as a preventative measure against future abuse.
                   It's possible, perhaps even likely, that with broader prosecutorial open-file
                   discovery policies and more presentencing discovery, Brady violations may
                   be more infrequent, criminal trials may be more free of error, and
                   sentences might be more appropriately tailored to the defendant and the
                   crime. See id. But see Brian P Fox, Note, An Argument Against Open-File
                   Discovery in Criminal Cases, 89 Notre Dame L. Rev. 425, 428 (2013)
                   (arguing that "open-file discovery would serve no actual purpose in
                   eliminating. . . prosecutorial misconduct").
                               But the problem here is that, even if all of these things are
                   true, the question before us is not whether this approach represents good
                   policy; the only question that should matter to us is whether it represents
                   good law. The majority reasons that because several statutes (NRS
                   174.234, NRS 174.245, NRS 484C.400(2), NRS 200.485(4), and NRS
                   207.016(2)) require the State to provide certain types of discovery in
                   connection with certain types of sentencing proceedings in certain types of
                   criminal cases, the prosecutor's open-file policy should be interpreted to
                   require the same thing in other types of cases not covered by those
                   statutes. But merely because the Legislature has imposed presentencing
                   discovery obligations upon prosecutors in some cases does not mean that
                   those obligations govern prosecutors in other cases that the Legislature
                   chose not to address. If anything, it suggests the exact opposite: that the
                   Legislature did not intend to create a general rule governing
                   presentencing discovery in all criminal cases.



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                                   So the court's holding today does not originate in any statute.
                       Instead, to reach its conclusion, the majority interprets the meaning of the
                       prosecutor's open-file policy as a question of law in the same way that the
                       Nevada Supreme Court has interpreted the meaning of criminal discovery
                       statutes. But prosecutorial policies are not legislative statutes, and the
                       two things cannot be interpreted using the same methods. I diverge from
                       the majority because its analysis of the open-file policy raises a serious
                       constitutional question regarding the power of the judiciary to "interpret"
                       (or "construct") the meaning of a prosecutorial policy against the
                       intentions of its author. Unlike my colleagues, I do not think that we have
                       any such power, and therefore, I do not think we can legitimately make
                       the prosecutor's open-file policy mean what the majority does.
                                   The proper place to begin is by considering the limits of our
                       judicial power. As an intermediate appellate court, our freedom of action
                       in resolving a particular case is bounded on many sides. Above, our power
                       is constrained by existing precedent of the Nevada Supreme Court under
                       principles of stare decisis. Hubbard v. United States, 514 U.S. 695, 718,
                       720 (1995) (Rehnquist, CA., dissenting) (stare decisis "applies a fortiori to
                       enjoin lower courts to follow the decision of a higher court"). Below, we
                       are limited by the issues actually raised, argued, and disposed of before
                       the district court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623
                       P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to
                       the jurisdiction of that court, is deemed to have been waived and will not
                       be considered on appeal."); State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d
                       1291, 1293 n.3 (1989) ("This court will not consider issues raised for the
                       first time on appeal."). Our review in many cases is further limited by the
                       factual findings made by the district court, which we cannot second-guess

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                   absent clear error, the existence of which should only rarely be found.   See
                   Somee v. State, 124 Nev. 434, 187 P.3d 152 (2008).
                               Additionally, in our tri-partite system of government,
                   wherever the other coequal branches of government have chosen to act, we
                   must accord deference to them on any issue that lies within their
                   constitutional power to address.     See Nev. Const. art. 3, § 1(1) ("The
                   powers of the Government of the State of Nevada shall be divided into
                   three separate departments,—the Legislative,—the Executive and the
                   Judicial; and no persons charged with the exercise of powers properly
                   belonging to one of these departments shall exercise any functions,
                   appertaining to either of the others, except in the cases expressly directed
                   or permitted in this constitution."). See generally Beazer Homes Nev., Inc.
                   v. Eighth Judicial Dist. Court, 120 Nev. 575, 578 n.4, 97 P.3d 1132, 1134
                   n.4 (2004) ("When a statute is clear, unambiguous, not in conflict with
                   other statutes and is constitutional, the judicial branch may not refuse to
                   enforce the statute on public policy grounds. That decision is within the
                   sole purview of the legislative branch."); City of Las Vegas v. Eighth
                   Judicial Dist. Court, 118 Nev. 859, 867, 59 P.3d 477, 483 (2002)
                   (invalidating vague statute because, to enforce it, "this court would have to
                   engage in judicial legislation and rewrite the statute substantially"),
                   abrogated on other grounds by State v. Castaneda, 126 Nev. 478, 245 P.3d
                   550 (2010). This deference applies equally to the Legislative and
                   Executive branches.'     See Holiday Ret. Corp. v. State, Div. of Indus.



                         "At least on civil matters, an administrative agency cannot interpret
                   a criminal law because criminal statutes "are for courts, not for the
                   Government, to construe." Abramski v. United States, U .S.
                   134 S. Ct. 2259, 2274 (2014). See Esquivel-Cantana v. Lynch,       F.3d      ,
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                   Relations, 128 Nev. 150, 154, 274 P.3d 759, 761 (2012) ("It is the
                   prerogative of the Legislature, not this court, to change or rewrite a
                   statute."); State, Div. of Ins. v. State Farm Mitt. Auto. Ins. Co., 116 Nev.
                   290, 293, 995 P.2d 482, 485 (2000) (courts give great deference to
                   executive branch agency decisions).        See generally United States v.
                   Armstrong, 517 U.S. 456, 464 (1996) NA] presumption of regularity
                   supports. . prosecutorial decisions and, in the absence of clear evidence
                   to the contrary, courts presume that they have properly discharged their
                   official duties." (internal citations and quotation marks omitted)). And of
                   course overarching everything is the Nevada Constitution, which created
                   the judicial branch and defines, as well as limits, its power to do anything
                   in any civil or criminal case. See Nev. Const, art. 6. See generally John G.
                   Roberts, Jr., Comment, Article III Limits on Statutory Standing, 42 Duke
                   L.J. 1219, 1230 (1993) ("Separation of powers is a zero-sum game. If one
                   branch unconstitutionally aggrandizes itself, it is at the expense of the
                   other branches."); Antonin Scalia, The Doctrine of Standing as an
                   Essential Element of the Separation of Powers, 17 Suffolk U.L. Rev. 881,
                   881 (1983) (recognizing that going beyond recognized judicial limits "will
                   inevitably produce—as it has during the past few decades—an
                   overjudicialization of the processes of self-governance").




                   ...continued
                       , 2016 WL 192009 (6th Cir. 2016) (Sutton, J., concurring in part and
                   dissenting in part) (stating that "the federal courts have never presumed
                   that, when an ambiguity arises in a criminal statute, the congressional
                   silence signals that Congress wants an executive-branch agency to fill the
                   gap"). The prosecutor's open-file policy is not itself either a criminal law
                   or an interpretation of a criminal statute.

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                               It seems to me that deciding what a prosecutor's open-file
                   policy should say, and what prosecutors are required to do under it, is an
                   exercise of a fundamentally prosecutorial (executive) function, and I
                   wonder whether we have any (judicial) power to make it mean what the
                   majority does when we have no evidence (literally none, as the district
                   court did not conduct an evidentiary hearing) that the district attorney
                   who wrote it intended to give it that meaning
                               Let's define exactly what is at stake here. Under Nevada law,
                   the elected district attorney is the public prosecutor within each county.
                   NRS 252.080. The Legislature has delegated limited "policymaking
                   authority" to each district attorney to govern the affairs of its own office.
                   See NRS 252.070(1) (referring to "policymaking authority for the office of
                   the district attorney"). The open-file policy here was adopted by the Clark
                   County District Attorney but not formally made into a regulation under
                   NRS Chapter 233B, the Nevada Administrative Procedures Act.
                   Therefore, it does not constitute an administrative regulation that would
                   have the force and effect of Nevada law.        See State ex rel. Nev. Tax
                   Comm'n v. Saveway Super Serv, Stations, Inc., 99 Nev. 626, 630, 668 P.2d
                   291, 294 (1983) ("A properly adopted substantive rule establishes a
                   standard of conduct which has the force of law.").
                               Consequently, the open-file policy at issue here is not a public
                   statute or administrative regulation; it is a unilaterally revocable office
                   policy voluntarily adopted by the Clark County District Attorney to govern
                   how its staff prosecutors handle criminal prosecutions.         See Kyles v.
                   Whitley, 514 U.S. 419, 437 (1995). The decision to adopt an open-file
                   policy belongs to the district attorney; it's an exercise of executive branch
                   prosecutorial power that courts generally have limited power to second -

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                     guess. A court cannot force a prosecutor to adopt a policy if he does not
                     want one; that decision is his alone to make in the exercise of his judgment
                     as an elected official. See id. (stating that the United States Constitution
                     does not "demand" that prosecutors adopt open-file policies).
                                    Normally, courts are required to give deference to an executive
                     branch agency that acts within its constitutional power, such as when it
                     enacts or interprets administrative regulations pursuant to Nevada's
                     Administrative Procedures Act, NRS Chapter 233B. See State, Div. of Ins.
                     v. State Farm Mitt. Auto. Ins. Co., 116 Nev. 290, 293, 995 P.2d 482, 485
                     (2000) ("When determining the validity of an administrative regulation,
                     courts generally give 'great deference' to an agency's interpretation of a
                     statute that the agency is charged with enforcing."); State Indus. Ins. Sys.
                     v. Miller,     112 Nev. 1112, 1119, 923 P.2d 577, 581 (1996) ("An
                     administrative agency such as SITS, charged with the duty of
                     administering an act, is impliedly clothed with power to construe the
                     relevant laws and set necessary precedent to administrative action. The
                     construction placed on a statute by the agency charged with the duty of
                     administering it is entitled to deference." (quoting State Indus, Ins. Sys. v.
                     Snyder, 109 Nev. 1223, 1228, 865 P.2d 1168, 1171 (1993))). Similar
                     deference exists when an executive branch agency adjudicates
                     administrative grievances over which it has statutory jurisdiction.        See
                     Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. „ 302 P.3d 1108,
                     1115 (2013).
                                    Because we must give deference when an agency creates,
                     interprets, or adjudicates formal administrative regulations that have the
                     force and effect of law, I assume a fortiori that we must give similar
                     deference (and perhaps even more) when the agency enacts something less

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                   than a formal administrative regulation, such as a voluntary office
                   discovery policy. The United States Court of Appeals for the District of
                   Columbia has described a federal executive agency policy as follows:
                               An agency policy statement does not seek to
                               impose or elaborate or interpret a legal norm. It
                               merely represents an agency position with respect
                               to how it will treat—typically enforce—the
                               governing legal norm. By issuing a policy
                               statement, an agency simply lets the public know
                               its current enforcement or adjudicatory approach.
                               The agency retains the discretion and the
                               authority to change its position—even abruptly—
                               in any specific case because a change in its policy
                               does not affect the legal norm. We thus have said
                               that policy statements are binding on neither the
                               public nor the agency.
                   Syncor Int? Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (internal
                   citations omitted). This seems an apt description of (or at least analogue
                   to) a Nevada prosecutor's open-file policy: something less than a formal
                   statute or regulation that can be retracted or rewritten as the district
                   attorney pleases. Because it is such a thing, I think a serious question
                   exists as to whether courts organized under Article VI have any power to
                   judicially "interpret" it as a question of law in the way that courts can
                   interpret a statute enacted by the Legislature or an administrative
                   regulation enacted under the Administrative Procedures Act. Thus, the
                   majority's unspoken premise—that we have the judicial power to make the
                   open-file policy extend through sentencing despite having no evidence that
                   the district attorney intended that—may be seriously flawed. 2


                         If we had the power to interpret a mere policy in the same manner
                         2
                   as we could a statute—as a question of law rather than fact and by using
                   the same rules of interpretation that we would apply to a statute—an
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                               That is not to say, however, that courts never have any power
                   whatsoever over executive branch policies. Although the branches of
                   government are separate and coequal, there are areas where, much like
                   the circles of a Venn diagram, the constitutional powers belonging to two
                   branches can sometimes overlap. For example, if a prosecutor's
                   employment were terminated because he allegedly violated an office policy
                   and he challenged the termination in court as illegal under Nevada
                   employment law, the questions of whether the employer complied with the
                   policy, and whether the policy complied with the law, would become ours
                   to resolve. See generally Terry v. Sapphire's Gentlemen's Club, 130 Nev.
                      , 336 P.3d 951 (2014). Similarly, if an executive branch agency fails to
                   follow its own regulations, the failure may sometimes implicate due
                   process concerns. See Woodard v. Los Fresnos Indep. Sch. Dist., 732 F.2d
                   1243, 1245 (5th Cir. 1984) (recognizing that the failure of an agency to
                   follow each and every regulation is not per se a denial of due process in


                   ...continued
                   interesting argument exists that the open-file policy might be read to
                   apply through sentencing. The open-file policy here states that the
                   discovery obligations imposed by it are "ongoing." "Ongoing" is commonly
                   defined as follows: "continuing without termination or interruption,"
                   Random House Unabridged Dictionary (2d ed. 1993), or "continuing to
                   exist, happen, or progress: continuing without reaching an end," Merriam-
                   Webster Online Dictionary (2015). Thus, the prosecutor's discovery
                   obligations are "ongoing," which, if we could engage in textual analysis, we
                   could conclude means that they do not end until the case is over, and
                   therefore, they do apply through sentencing. But that puts the cart before
                   the horse, because I am not sure we have the power to do that, or even if
                   we did, we necessarily would do so as a question of law, or that we would
                   interpret the policy by using the same rules of textual analysis that we
                   would apply to a legislative enactment, or that we could engage in this
                   analysis on appeal in a de novo manner.


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                   every instance, but it is when the regulation was required to be
                   implemented in order to satisfy the constitution); Derrickson v. Bd. of
                   Ethic., 703 F.2d 309, 315 (8th Cir. 1983) ("We agree that a state agency's
                   failure to follow its own ordinances or regulations may constitute a
                   deprivation of property without due process.").    See generally Wyman v.
                   State, 125 Nev. 592, 600, 217 P.3d 572, 578 (2009) (Nevada's due process
                   clause is coextensive with the Due Process Clause of the United States
                   Constitution).
                               Numerous other examples of this overlap exist; most relevant
                   here is that where an executive branch policy affects the way a criminal
                   case is prosecuted in court (and open-file discovery policies clearly do
                   that), it overlaps with the province of the judiciary, and courts possess
                   some constitutional power to ensure that the policy does not harm the
                   integrity of a judicial proceeding or result in fundamental unfairness.   See
                   United States v. Armstrong, 517 U.S. 456, 464 (1996) (providing that if
                   prosecutor's policy constitutes improper race-based "selective prosecution,"
                   resulting charges can be dismissed and conviction can be reversed);
                   Salaiscooper v. Eighth Judicial Dist. Court, 117 Nev. 892, 902-03, 34 P.3d
                   509, 516-17 (2001) ("selective prosecution" may violate the equal
                   protection clause).
                               Within this overlapping area, the court possesses some power
                   to regulate the meaning and operation of a prosecutorial policy. But,
                   broadly speaking, that power is conventionally exercised in one of a few
                   discrete ways: 3 first, a court can invalidate (or refuse to enforce) an


                         There are others: for example, if an executive branch agency
                   engages in illegal behavior, a court can issue an injunction or writ
                   prohibiting the behavior from continuing or resuming under pain of
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                   executive branch policy that is illegal or unconstitutional or results in
                   fundamental unfairness during a trial. What this really means is that the
                   court can't necessarily make the executive branch retract the policy, but it
                   can exclude from trial any evidence obtained under the policy, and it can
                   toss out any conviction in which the policy played a meaningful role. See
                   Armstrong, 517 U.S. at 465; see also Silvar v. Eighth Judicial Dist. Court,
                   122 Nev. 289, 129 P.3d 682 (2006) (invalidating county ordinance as
                   unconstitutionally vague).
                               Alternatively, the court can sanction a prosecutor, exclude
                   evidence from trial, and void a conviction if the prosecutor intentionally
                   violated the policy in a way that undermines the fairness of a trial.     See
                   McKee v. State, 112 Nev. 642, 648, 917 P.2d 940, 944 (1996) (providing
                   that when prosecutor represented that he would comply with open-file
                   policy but then didn't, he committed "an act of deception" that misled the
                   defendant and warranted reversal of criminal conviction).
                               What a court cannot do is to write or amend laws, regulations,
                   or policies for the other branches of government. See Holiday Ret. Corp. v.
                   State, Div. of Indus. Relations, 128 Nev. 150, 154, 274 P.3d 759, 761 (2012)
                   ("It is the prerogative of the Legislature, not this court, to change or
                   rewrite a statute."). See generally W. Va. State Bd. of Educ. v. Barnette,
                   319 U.S. 624, 651 (1943) (Frankfurter, J., dissenting) ("A court can only
                   strike down. It can only say 'This law or that law is void.' It cannot
                   modify . .").


                   ...continued
                   contempt But since those powers do not relate to the instant case, and
                   there is no allegation that the open-file policy here is illegal, these broad
                   categories will suffice to demonstrate my point.


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                                 The interesting question here is whether the court possesses
                   another power: to interpret the meaning of an executive branch policy as a
                   matter of law de novo, in the same way that it can interpret a legislative
                   enactment. I would say that the answer is unclear at best; no published
                   Nevada Supreme Court case has ever purported to interpret, according to
                   the rules of interpretation normally applied to statutes, the meaning of an
                   executive branch policy that is less than a law or regulation. 4 And, even if
                   such a theoretical power existed, I am not sure what rules of
                   interpretation would apply. The normal rules of statutory interpretation
                   are that the plain words of a statute govern unless they are ambiguous.
                   See State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004) ("We
                   must attribute the plain meaning to a statute that is not ambiguous."
                   (citing Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004)). Upon
                   a finding of ambiguity, the court's task then becomes to assess the intent
                   of the drafter, not to rewrite the policy into something different that the
                   court might think is better but the drafter did not intend.      See Beazer
                   Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 580, 97 P.3d
                   1132, 1135 (2004) ("In construing an ambiguous statute, we must give the
                   statute the interpretation that reason and public policy would indicate the


                         4 The cases principally relied upon by the majority are Floyd v. State,
                   118 Nev. 156, 42 P.3d 249 (2002), and McKee v. State, 112 Nev. 642, 917
                   P.2d 940 (1996). But neither case says anything about the power of a
                   court to "interpret" the meaning of a voluntary policy that is not a law or
                   regulation. Floyd was an exercise in the interpretation of two ambiguous
                   statutes, namely, NRS 174.234 and NRS 174.245, which the Nevada
                   Supreme Court held extend through the sentencing phase of a death-
                   penalty case. McKee simply held that a prosecutor commits an "act of
                   deception" when he misleads a defendant by promising to comply with a
                   policy, but then does not.


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                   legislature intended." (internal quotation marks and citation omitted));
                   Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885, 887 (1989) (providing
                   that when interpreting statutes, "[Ole legislature's intent should be given
                   full effect").
                                    But when an executive branch policy does not have the force
                   and effect of law, I am not sure why we would interpret it according to the
                   same rules that apply to laws. And even if we could, a law is created
                   following public legislative debate, and a regulation is created following
                   public notice and comment, but an executive branch policy requires
                   neither of these things. So when such a policy is ambiguous, I am not sure
                   how we could discern the "intent of the drafter" when there is no publicly
                   available history or debate to analyze. Thus, the answers to whether we
                   have the power to interpret an executive branch policy as a matter of law,
                   and how we would do it, are far from clear.
                                    Consequently, I would not so easily assume that we have the
                   power to engage in judicial construction of a prosecutor's policy at all.
                   Even if we did, I would think that, at a minimum, we must do so in a way
                   that gives considerable deference to the district attorney, rather than as a
                   question of law de novo. See generally Armstrong, 517 U.S at 464 (In the
                   federal system, "Mlle Attorney General and United States Attorneys
                   retain broad discretion to enforce the Nation's criminal laws ... . As a
                   result, Tale presumption of regularity supports' their prosecutorial
                   decisions and, in the absence of clear evidence to the contrary, courts
                   presume that they have properly discharged their official duties." (internal
                   citations and quotation marks omitted)). So, as long as the contents of an
                   open-file policy end up being unambiguous and legal, decisions on such
                   things as whether to adopt a policy at all, what it should say, and how far

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                   it should go, belong entirely to the district attorney and represent an
                   exercise of executive-branch power that lies outside of our power to
                   regulate.
                                In this case, nobody contends that the policy violates any
                   statute or is less protective of the defendant's right to discovery than the
                   Constitution requires under Brady or Giglio; everyone agrees that the
                   policy here goes much further than required by those cases. If the elected
                   district attorney decides that its voluntary discovery policy should be
                   broader than required, but expire before sentencing, there is little that
                   courts can do about that so long as the policy does not violate existing law
                   or the constitution or intrude upon judicial functions, which the policy
                   here did not.
                               Thus, in this case, the content and meaning, per se, of the
                   prosecutor's policy are none of our business and not ours to interpret. And
                   even if they somehow were, our options would naturally be limited to
                   invalidating the policy if it were illegal, imposing a sanction if it was
                   violated, or possibly (but far from surely) identifying the drafter's intent if
                   it were ambiguous. But here, nobody asserts that the policy is illegal,
                   unconstitutional, or ambiguous. Quite to the contrary, the majority
                   specifically concludes that no due process violation occurred under Brady
                   or Giglio and, furthermore, that no Nevada statute required the disclosure
                   of the affidavit that the prosecutor used against Quisano. The majority
                   does not even find the policy to be fundamentally unfair; rather, it affirms
                   Quisano's conviction and sentence precisely because it concludes that what
                   happened at sentencing under the existing open-file policy was not all that
                   unfair to Quisano.



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                                Yet the majority concludes that the policy—despite not being
                   ambiguous, illegal, or unfair—is in need of judicial construction
                   nonetheless. It then imposes upon it a construction as a matter of law
                   that reflects no deference to the district attorney and is unanchored to the
                   drafter's intention.
                                Where the constitutional power to do all of that comes from is
                   entirely unclear. Perhaps one could argue that it exists under Article 3,
                   Section 1(1) of the Nevada Constitution. But I am inclined to think it does
                   not.
                                Because the majority sees things differently, I respectfully
                   concur in much of the majority's opinion but dissent from the portion
                   relating to the scope and meaning of the open-file policy.




                                                             Tao




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