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

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

COURT OF APPEALS 

OF 

NEVADA 

(0) 194M 

132 Nev., Advance Opinion 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

JONATHAN QUISANO, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 66816 

FILED 

FEB 1 8 2016 

CL 

TRAgE K. LINDEMAN 

F DErlY CLERK 

Appeal from a judgment of conviction, pursuant to aW Alford 

plea, 1of 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. 
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 ReviewJournal 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. 

COURT OF APPEALS 

OF 

NEVADA 2 

(0.) 1947e ce, 
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 

COURT OF APPEALS 

OF 

NEVADA 3 

(0) 9478 
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 

COURT OF APPEALS 

OF 

NEVADA 4 

(0) 19478 - 
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 2and 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. 

COURT OF APPEALS 

OF 

NEVADA 5 

(0) 19478 401(0 
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. 3Specifically, 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 crossexamining Rodrigues using information from an affidavit signed by an 

employee of the Clark County Department of Family Services (DFS), and 

dated September 4, 2014. 4In 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 

3Typically, 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. 

4Quisano 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. 

COURT OF APPEALS 

OF 

NEVADA 6 

(0) 1947B 
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. 

COURT OF APPEALS 

OF 

NEVADA 7 

(0) 1947B 
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." 6The 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." 

7The 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. 

COURT OF APPEALS 

OF 

NEVADA 8 

(D) 1947B 
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 openfile policy, and, therefore, was subject to a duty to disclose the affidavit; 8 

8The 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... 

COURT OF APPEALS 

OF 

NEVADA 9 

(01 19478 
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. 

9Quisano 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. 

COURT OF APPEALS 

OF 

NEVADA 10 

(0) 1947B e, 
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 

COURT OF APPEALS 

OF 

NEVADA 11 

(0) 1947B 
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 

10The State 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. 

COURT OF APPEALS 

OF 

NEVADA 12 

(0) 194713 
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 

COURT OF APPEALS 

OF 

NEVADA 13 

(0) 1947B 
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). 

COURT OF APPEALS 

OF 

NEVADA 14 

(0) 19478 eo 
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 

COURT OF APPEALS 

OF 

NEVADA 15 

(0) 1947B 0 
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 

COURT OF APPEALS 

OF 

NEVADA 16 

(ID) I 9478 e 
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 

COURT OF APPEALS 

OF 

NEVADA 17 

(0) 19470 e. 
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. 12These 

actions demonstrate that the State acted in accordance with its open-file 

120ur 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. 

COURT OF APPEALS 

OF 

NEVADA 18 

(0) 194Th e 
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. 14Yet, 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. 

14Based 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. 

COURT OF APPEALS 

OF 

NEVADA 19 

(0) 194713 
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. 15But 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." 

COURT OF APPEALS 

OF 

NEVADA 20 

(0) 19(011 
Quisano did not suffer prejudice when the prosecutor impeached 

Rodrigues with the undisclosed affidavit. 16First, 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)). 

COURT OF APPEALS 

OF 

NEVADA 21 

(0) 194Th 0 
defendant's substantial rights). Therefore, reversal of Quisano's sentence 

is not warranted on this basis. 17 

17Even 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 

continued on next page... 

COURT OF APPEALS 

OF 

NEVADA 22 

(0) 1947B <sato 
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." 

COURT OF APPEALS 

OF 

NEVADA 23 

(0) 19478 
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. 

COURT OF APPEALS 

OF 

NEVADA 24 

(0) 19478 
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. 

COURT OF APPEALS 

OF 

NEVADA 25 

(0) 1947B 
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 

CouFa OF APPEALS 

OF 

NEVADA 26 

(0) 1947B 
J. 

C.J. 

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. 

Silver 

I concur: 

COURT OF APPEALS 

OF 

NEVADA 27 

(0) I 94713 
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 

COURT OF APPEALS 

OF 

NEVADA 

(0) 194713 e 
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. 

COURT OF APPEALS 

OF 

NEVADA 2 

(0) 19473 
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 

COURT OF APPEALS 

OF 

NEVADA 3 

(0) 1947B s(gp4B4 
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 , 

continued on next page... 

COURT OF APPEALS 

OF 

NEVADA 4 

(0) 1947B 
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. 

COURT OF APPEALS 

OF 

NEVADA 5 

(0) 194713 
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 - 

COURT OF APPEALS 

OF 

NEVADA 6 

(0) I 9478 
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 

COURT OF APPEALS 

OF 

NEVADA 7 

(0) 19478 42fpo 
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 

2If we had the power to interpret a mere policy in the same manner 

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 

continued on next page... 

COURT OF APPEALS 

OF 

NEVADA 8 

(0) 1947B 
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," MerriamWebster 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. 

COURT OF APPEALS 

OF 

NEVADA 9 

(0) 1947B 
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: 3first, 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 

continued on next page... 

COURT OF APPEALS 

OF 

NEVADA 10 

(D) 194711 
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. 

COURT OF APPEALS 

OF 

NEVADA 11 

BB 1947B 
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. 4And, 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 

4The 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 deathpenalty 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. 

COURT OF APPEALS 

OF 

NEVADA 12 

(0) 19478 
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 

COURT OF APPEALS 

OF 

NEVADA 13 

(0) (947B en 
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. 

COURT OF APPEALS 

OF 

NEVADA 14 

(0) 19478 
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 

COURT OF APPEALS 

OF 

NEVADA 15 

(0) I,147B