                                                   130 Nev., Advance Opinion     17
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                THOMAS EDWIN BRANT,                                    No. 63787
                Appellant,
                vs.                                                              FILED
                THE STATE OF NEVADA,
                Respondent.
                                                                                 DEC 2 4 2014
                                                                                 AC/E K. LINDEMAN
                                                                            CL             taNt EQu RT
                                                                                 11EF DE.771 rT- ct.-EARK

                           Appeal from a judgment of conviction, pursuant to               ls jury
                verdict, of first-degree murder. Second Judicial District Court, Washoe
                County; Brent T. Adams, Judge.
                           Affirmed with instructions as to restitution.

                Jeremy Bosler, Public Defender, and John Reese Petty, Chief Deputy
                Public Defender, Washoe County,
                for Appellant.

                Catherine Cortez Masto, Attorney General, Carson City; Richard A.
                Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
                Attorney, Washoe County,
                for Respondent.




                BEFORE THE COURT EN BANC.

                                                 OPINION

                By the Court, PICKERING, J.:
                           A jury convicted Thomas Brant of the first-degree murder of
                Kimberly Seaton, whose body was found in a shallow grave in Brant's
                garage. Under questioning by the police, Brant confessed to strangling
                Seaton. Brant's theory of defense was that another man, Robert Belsey,
                killed her. The defense maintained that Brant came home one night to
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                  find Seaton dead in the living room; that Brant buried Seaton without
                  reporting her death because he did not want his sister, who owned the
                  house, to find out Seaton had been staying there; and that Brant's
                  confession to killing Seaton was false. In furtherance of these theories
                  Brant designated an expert to testify on police interrogation techniques
                  and also sought to introduce evidence of two incidents of domestic violence
                  in which Belsey had been involved three years earlier. The district court
                  excluded this evidence, and Brant appeals. We affirm.
                                                       I.
                                                       A.
                              More than a month elapsed between Seaton's disappearance
                  and the filing of a missing person report. On receiving the missing person
                  report, the police investigated, learned that Seaton's last-known address
                  was Brant's house, and went there to ask Brant about her. Brant denied
                  knowledge of Seaton's whereabouts. He told the police that Seaton had
                  moved out at his request some weeks earlier, after he came home one
                  night and Seaton, who was drunk and belligerent, verbally assaulted him.
                  Brant gave the police permission to search his house and, once that was
                  completed, the outbuildings on his property, including his detached
                  garage.
                              Brant unlocked the garage and opened the door but did not
                  follow the police inside. He and a detective (Detective Gallop) stayed
                  outside hunting for Brant's cat, which had gotten out during the search.
                  Beneath some pallets in the garage, the police found a body buried in a
                  mixture of loose dirt and kitty litter. At that point, the police halted the
                  search to obtain a search warrant. On being told by the officers that they
                  had "found something" in the garage, Brant swooned and leaned against a
                  tree for support. Teary-eyed, Brant said that he had "no idea" what they
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                                 Detective Gallop asked Brant to accompany him to the police
                   station to be interviewed, and Brant agreed. The two rode together in
                   Gallop's car. When they arrived, Brant asked to use the restroom. In the
                   restroom, standing at the sink washing his hands, Brant said to Gallop, "I
                   know what they found over there. She was dead when I got home Sunday
                   night."
                                 Gallop escorted Brant to an interview room and read Brant his
                   Miranda rights, which Brant waived. A nearly six-hour interrogation
                   followed, counting food, coffee, bathroom, and cigarette breaks.
                   Everything that occurred in the interview room, including the breaks, was
                   videotaped; the exchanges Detective Gallop had with Brant outside the
                   interview room, including at Brant's house and in the police station
                   restroom, were audiotaped. Under interrogation, Brant admitted that,
                   acting alone and without telling anybody, he buried Seaton in his garage.
                   Initially, Brant maintained that he found Seaton dead in his living room
                   and panicked; he explained that he secretly buried Seaton so that his
                   sister, who owned the house, would not find out Seaton had been living
                   there. Toward the end of the interrogation, Brant abandoned this
                   explanation and confessed to killing Seaton: Brant stated that he
                   "snapped" after Seaton verbally assaulted him and that he struck Seaton
                   repeatedly on the side of the head and face and strangled her, crushing
                   her throat.
                                 Brant's account of Seaton's death is consistent with the
                   injuries the police found on Seaton's body and with the coroner's findings
                   as to Seaton's injuries and cause of death.
                                                        B.
                                 When Brant was a teenager, he suffered a severe head injury
                   that left him with permanent brain damage, primarily to his frontal lobe.
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                Although the district court excluded Brant's police interrogation expert—a
                ruling Brant has appealed and that we discuss below—it did allow Brant
                to present expert testimony from a neuroradiologist, Dr. Anthony Bruno,
                and a neuropsychologist, Dr. Ted Young. Dr. Bruno reviewed Brant's
                radiology and testified to Brant's frontal lobe damage. Dr. Young
                reviewed the radiological reports, tested Brant, interviewed him, and
                reviewed Brant's work and family history, While Brant's brain injuries
                did not affect his intelligence—Brant's IQ tested well above average—they
                compromised Brant's "executive ability to resist impulses," and made him
                less focused and more reactive, especially under emotional stress, than a
                normal adult. Dr. Young found Brant's functionality surprising given the
                extent of the brain damage visible on his radiographs.


                                                        A.
                            Brant did not move to suppress his confession as involuntary.
                Rather, his contention was, and is, that the latter part of his confession—
                the part where he admits killing Seaton, in addition to finding her body
                and burying it in his garage—is false. To support his false-confession
                theory, Brant designated an expert on police interrogation techniques, Dr.
                Jorey Krawczyn. The district court excluded Dr. Krawczyn's testimony on
                the grounds that it would not assist the jury in understanding the
                evidence or deciding a fact in issue.
                            NRS 50.275 governs the admissibility of expert testimony. "To
                testify as an expert witness under NRS 50.275, the witness must
                satisfy. . . three requirements: (1) he or she must be qualified in an area of
                'scientific, technical or other specialized knowledge' (the qualification
                requirement); (2) his or her specialized knowledge must 'assist the trier of
                fact to understand the evidence or to determine a fact in issue' (the
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                 assistance requirement); and (3) his or her testimony must be limited 'to
                 matters within the scope of [his or her specialized] knowledge' (the limited
                 scope requirement)." Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d
                 646, 650 (2008) (quoting NRS 50.275). The district court has "wide
                 discretion" to determine the admissibility of expert testimony on a "case-
                 by-case basis." Higgs v. State, 126 Nev. 1, 18, 222 P.3d 648, 659 (2010).
                 Our review is deferential, and the district court's exercise of discretion will
                 not be disturbed unless abused. Hallmark, 124 Nev. at 498, 189 P.3d at
                 650.
                             To meet Hallmark's assistance requirement, the proponent of
                 the expert witness testimony must demonstrate that the testimony "is
                 relevant and the product of reliable methodology." Id. at 500, 189 P.3d at
                 651.   "Relevant evidence" is "evidence having any tendency to make the
                 existence of any fact that is of consequence to the determination of the
                 action more or less probable than it would be without the evidence," NRS
                 48.015, but, "[a]lthough relevant, evidence may be excluded if its probative
                 value is substantially outweighed by considerations of undue delay, waste
                 of time or needless presentation of cumulative evidence." NRS 48.035(2).
                 As for reliability, a "district court [should] consider whether the proffered
                 opinion is (1) within a recognized field of expertise; (2) testable and has
                 been tested; (3) published and subjected to peer review; (4) generally
                 accepted in the scientific community (not always determinative); and (5)
                 based more on particularized facts rather than assumption, conjecture, or
                 generalization." Higgs, 126 Nev. at 19, 222 P.3d at 660.
                             The district court held a pretrial hearing on the admissibility
                 of proposed expert witness testimony. Dr. Krawczyn did not testify at the
                 hearing or prepare a written report. The district court "assume[d]" that
                 Dr. Krawczyn "is qualified in methods of police interrogation" based on
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                defense counsel's representation that Dr. Krawczyn is a clinical
                psychologist who "provides lectures on interview and interrogation
                techniques utilizing body language and neuro-linguistic dynamics" and
                was being offered as an expert on police interrogation techniques.'
                Counsel further represented that Dr. Krawczyn had reviewed the audio-
                and videotapes of Brant's "interviews and interrogations," including "at
                the house, the . . . formalized interrogation [at the police station] and also
                all the smoke breaks in between." "Based upon what he saw in the
                review," Dr. Krawczyn "determined detective Gallop is using some
                standardized questions that [date] back to a 1956 polygraph operator's
                course and eventually progressed in the Criminal Division"; Gallop may
                have "used the Reid techniques," 2 but without asking Gallop, the defense
                "cannot with 100 percent certainty say that is the technique." There is "a
                question [of] is this a good technique to use with a brain injury" that "goes
                to susceptibility and reliability of the statement." Summing up, defense
                counsel stated that,




                      "The record does not contain Dr. Krawczyn's curriculum vitae,
                although it is discussed by counsel in the transcript of the pretrial
                hearing, and the admissibility of his testimony does not appear to have
                been briefed in writing in the district court. The transcript reflects that
                counsel lodged a copy of United States v. Hall, 974 F. Supp. 1198 (C.D. Ill.
                1997), affd, 165 F.3d 1095 (7th Cir. 1999), with the clerk after the district
                court deemed Dr. Krawczyn's testimony inadmissible.

                      2The record does not explain the reference to the "Reid technique"
                but our research indicates that it refers to a manual of interrogation
                techniques, Fred E. Inbau & John E. Reid, Criminal Interrogation and
                Confessions (1962), that now is in its fifth edition, Fred E. Inbau, John E.
                Reid, Joseph P. Buckley & Brian C. Jayne, Criminal Interrogation and
                Confessions (5th ed. 2013).

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                             • . . there are identified factors or. . . interrelated
                             components that are part of the concept of
                             interrogative susceptibility that just better form
                             the social interaction between the interrogat[or
                             and] the interviewee. This is what we need the
                             expert to go through, the factors and explain how
                             these factors came together. 3
                             "[T]he phenomenon of false confessions is a growing area of
                 psychological and social science," and we "do not foreclose the possibility
                 that under appropriate circumstances expert testimony [in this arena]
                 could be relevant to a defendant's case and helpful to a jury."
                 Commonwealth v. Hoose,       5 N.E.3d 843, 863 (Mass. 2014); People v.
                 Bedessie, 970 N.E.2d 380, 388-89 (N.Y. 2012); see United States v. Adams,
                 271 F.3d 1236, 1244 (10th Cir. 2001). For this court to find an abuse of
                 discretion in the exclusion of such testimony, though, there needed to be a
                 specific proffer, supported by scientific or other proof, citing particularized
                 facts, establishing that the testimony is relevant and reliable. The proffer
                 in this case does not provide us the information needed to undertake that
                 analysis.
                             At first blush, Brant's frontal lobe injuries suggest that his
                 case may fall in line with cases such as United States v. Shay, 57 F.3d 126,
                 133 (1st Cir. 1995), where the appellate court remanded for the trial court
                 to consider expert psychiatric testimony intended to establish that the
                 defendant suffered from an identifiable mental disorder causing him to
                 make grandiose, self-inculpatory statements. See also David A. Perez, The
                 (In)admissibility of False Confession Expert Testimony,      26 Touro L. Rev.



                       3 Counseldisclaimed any intention of having Dr. Krawczyn "invade
                 the province of the jury and make the final conclusion or opinion as to
                 whether Mr. Brant's statement in its entirety or particular [s is] false."

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                23, 63-64 (2010) ("admitting psychiatric testimony is not the same as
                admitting false confession expert testimony: the former informs the jury
                about a technical topic (i.e., a mental illness), while the latter draws
                conclusions for the jury regarding the credibility of a particular
                statement"). But the record before us does not establish a link between
                frontal lobe injuries like Brant's and a tendency to falsely incriminate
                oneself. On the contrary, at the hearing on the admissibility of experts,
                Brant's neuropsychologist, Dr. Young, testified that, to his knowledge, no
                research or studies have established such a correlation:
                            Prosecution: So, Doctor, with regard to
                            the. .. question about whether somebody with
                            this particular injury would be more likely to lie?
                            Dr. Young: Yes.
                            Prosecution: Would they be more likely to lie to
                            incriminate themselves or bring negative
                            consequences upon themselves?
                            Dr. Young: Well, yeah. I think that is a question I
                            can't answer. I don't know of any research that
                            addressed that kind of question. I really don't
                            know how to respond.
                Dr. Krawczyn's proposed testimony offered no contest to Dr. Young on this
                point. See also Adams, 271 F.3d at 1246 (distinguishing Shay as a case
                involving "a mental disorder characterized by an extreme form of
                pathological lying" on which expert testimony would be of assistance, as
                opposed to a case not involving such pathology).
                            This leaves the fact that, in interrogating Brant, Detective
                Gallop may have used the Reid technique (or a 1956 polygraph operator's
                technique) and the suggestion that a susceptible witness may make
                unreliable statements to establish the relevance and reliability of Dr.
                Krawcyzn's testimony. But with no evidence to establish a scientific or
                other recognized basis for challenging the interrogation techniques
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                   utilized in this case—which Dr. Krawczyn should have been able to
                   identify if they were problematic, since he had complete audio- and
                   videotapes of Brant's interview and interrogation—we have only Dr.
                   Krawczyn's ipse dixit that the techniques possibly used may have
                   influenced Brant's confession. This is not enough to establish an abuse of
                   discretion in excluding such testimony. See Bedessie, 970 N.E.2d at 388
                   (upholding the exclusion of expert testimony on an assertedly false
                   confession where the expert's "descriptions of the allegations on which he
                   purported to base his expert opinion were general or vague and not, in
                   fact, linked to any published analysis"); United States v. Jacques, 784 F.
                   Supp. 2d 59, 66 (D. Mass. 2011) (excluding expert testimony that "the Reid
                   technique enhanced the risk of an unreliable confession" where the expert
                   proffering this opinion did not point to data or studies that established
                   this); see also People v. Linton, 302 P.3d 927, 957-58 (Cal. 2013) (upholding
                   the exclusion of expert testimony on false confessions where, as here, the
                   jury had before it complete recordings of the defendant's interrogation and
                   the proffered expert testimony was "highly speculative"); Hoose, 5 N.E.3d
                   at 863-64 (to like effect). 4
                                Brant complains that he needed Dr. Krawczyn to establish
                   that the phenomenon of false confessions exists. But he accomplished that
                   through Detective Gallop, who acknowledged under cross-examination
                   that false confessions can and do occur. And, as discussed above, the



                         4Linton, 302 P.3d at 957, and Hoose, 5 N.E.3d at 863, both
                   emphasize that the defendant did not recant his confession and that the
                   evidence did not otherwise cast doubt on the veracity of the challenged
                   confession, which is also true here. Indeed, Brant appears to have
                   affirmed his confession that he killed Seaton in the interview of him that
                   his neuropsychologist, Dr. Young, conducted. 1 J.A. 48-50.

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                proffer with respect to Dr. Krawczyn does not establish what else Dr.
                Krawczyn might have said that would be of assistance to the jury.
                            "We have consistently held that this Court will not speculate
                as to the nature and substance of excluded testimony."    Burgeon v. State,
                102 Nev. 43, 47, 714 P.2d 576, 579 (1986) (citing Van Valkenberg    V.   State,
                95 Nev. 317, 594 P.2d 707 (1979)). Without a more detailed, properly
                substantiated proffer, we cannot say the district court abused its
                discretion in excluding Dr. Krawczyn's testimony.
                                                     B.
                            Brant next challenges as judicial misconduct two unobjected-
                to statements by the district judge that he asserts improperly vouched for
                Detective Gallop's credibility and disparaged the defense. The first
                statement occurred during Gallop's cross-examination. After Gallop
                testified that he did not adhere to the Reid or any other particular
                interrogation technique, the district judge cautioned counsel that, "we
                don't need to spend a lot of time on a technique that he was not using in
                this interrogation." The second occurred at the end of Gallop's testimony,
                where the district judge stated, "Detective Gallop you have been very
                patient. You are excused." Since the defense did not object to the
                statements, plain error review obtains. Oade v. State, 114 Nev. 619, 622,
                960 P.2d 336, 338 (1998).
                            This court has cautioned district judges against "making
                comments concerning the facts of any case at trial." Shannon v. State, 105
                Nev. 782, 788, 783 P.2d 942, 946 (1989); see Kinna v. State, 84 Nev. 642,
                647, 447 P.2d 32, 35 (1968) ("The court may not hamper or embarrass
                counsel in the conduct of the case by remarks or rulings which prevent
                counsel from presenting his case effectively or from obtaining full and fair
                consideration from the jury."). Detective Gallop's testimony took
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                considerable time, interrupted as it was by testimony from an otherwise
                unavailable witness and the screening of Brant's videotaped confession. It
                thus is not clear that the district judge's comment respecting Gallop's
                patience disparaged the defense. But assuming that it could be taken as
                disparagement, and assuming further that the judge improperly
                commented on Gallop's testimony about not using the Reid technique, the
                comments did not amount to plain error. The comments occurred over the
                course of a nine-day trial, in which the evidence of guilt was strong, and
                did not prejudice Brant in the presentation of his defense.   See McNair v.
                State, 108 Nev. 53, 63, 825 P.2d 571, 578 (1992) (no reversible error when
                the "departures from strict judicial impartiality were brief episodes within
                the context of the entire trial"); Randolph v. State, 117 Nev. 970, 985, 36
                P.3d 424, 434 (2001).
                                                     C.
                            Last, Brant challenges the district court's refusal to allow him
                to introduce evidence of "other crimes, wrongs or acts" by the man whom
                Brant theorized was the real killer, Robert Belsey. NRS 48.045(2). Belsey
                had known Seaton for many years and gave inconsistent statements about
                his feelings toward her and about Brant, which the district court allowed
                Brant to explore through Belsey and the officer who interviewed Belsey,
                Detective English. Through Belsey's ex-girlfriend, Stavas, Brant also
                sought to introduce evidence of two prior incidents of domestic violence
                involving Belsey and Stavas three or four years earlier to impeach Belsey's
                credibility and to establish identity and modus operandi. In Bigpond v.
                State, 128 Nev. „ 270 P.3d 1244, 1245-46 (2012), we clarified that
                evidence of "other crimes, wrongs or acts" may be admitted for a
                nonpropensity purpose other than the nonpropensity purposes listed in
                NRS 48.045(2).
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                               On appeal, Brant contends that Belsey's prior acts of domestic
                 violence should have been admitted to contradict Belsey's testimony that
                 he "had never been violent to a woman" But the cited statement was not
                 properly before the jury, because the district court sustained the objection
                 to defense counsel's question asking Belsey whether he had struck his
                 former girlfriend. And, even if there was a statement to impeach,
                 impeachment with extrinsic evidence on a collateral matter generally is
                 not permitted. NRS 50.085(3); McKee v. State, 112 Nev. 642, 646, 917 P.2d
                 940, 943 (1996) ("It is error to allow the State to impeach a defendant's
                 credibility with extrinsic evidence relating to a collateral matter."). 5
                                                        D.
                               One final point remains: The district court ordered restitution
                 of $3,624.51 when the amount should have been $2,128.59. Brant filed his
                 notice of appeal before his objection to the restitution amount was
                 resolved. Since the parties have stipulated in this appeal that the district
                 court should reduce the restitution ordered to $2,128.59, we direct the
                 district court to correct the restitution amount in the judgment of
                 conviction.




                       5We  also find no abuse of discretion in the exclusion of the prior bad
                 acts evidence offered, to the extent argued on appeal for other
                 nonpropensity purposes, as the two incidents were remote in time, too
                 dissimilar to establish identity or modus operandi, and cumulative insofar
                 as they were offered as indirect impeachment of Belsey's credibility on the
                 points on which direct impeachment was allowed. See Ledbetter v. State,
                 122 Nev. 252, 259, 129 P.3d 671, 676 (2006) ("A district court's decision to
                 admit or exclude [prior bad act] evidence under NRS 48.045(2) rests
                 within its sound discretion and will not be reversed on appeal absent
                 manifest error.").

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                              For these reasons, with the exception of the correction ordered
                with respect to the restitution appropriate, we affirm.




                                                                                    J.
                                                       Pickering I




                                                  C.J.
                Gibbons



                Hardesty

                    ishdot
                Parraguirre


                 1.,Dotles\ a-3               ,   J.
                Douglas


                      Azi?
                                              ,   J.
                Saitta




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