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116 Nev. 1, 1 (2000)

REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 116

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��������116 Nev. 1, 1 (2000) Mulder v. State��������

MICHAEL JOSEPH MULDER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 32506

January 18, 2000 992 P.2d 845

Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first degree murder,

robbery upon a victim over the age of 65, and burglary while in possession of a firearm, and from a sentence of

death. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.

Defendant was convicted in the district court of first degree murder, robbery upon victim over the age of 65,

and burglary while in possession of a firearm, and was sentenced to death. Defendant appealed. The supreme

court held that: (1) indictment was not invalidated by presence of homicide detectives during grand jury

testimony; (2) trial court did not abuse its discretion in denying defendant's pretrial request to delay penalty

hearing by sixty days; (3) trial court did not abuse its discretion in determining that witness was not qualified to

testify as expert; (4) trial court improperly permitted such witness to give expert opinion testimony; (5) evidence

was sufficient to support convictions; (6) evidence was sufficient to support aggravating circumstances; and (7)

death sentence was neither excessive nor imposed under influence of passion, prejudice, or any arbitrary factor.

Affirmed.

��������116 Nev. 1, 2 (2000) Mulder v. State��������

[Rehearing denied March 1, 2000]

Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special Public Defender,

Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland,

Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law.

Murder defendant waived challenge to indictment on ground that presence of two homicide detectives during one witness's grand

Page 2

jury testimony was improper by failing to raise such issue before trial court. NRS 172.235(1).

2. Grand Jury.

Indictment charging defendant with murder was not invalidated by presence of two homicide detectives during one witness's grand

jury testimony, where grand jury had given detectives permission to be present. NRS 172.235(1)(g).

3. Criminal Law.

Granting or denying motion for a continuance is within sound discretion of district court.

4. Criminal Law.

Trial court did not abuse its discretion in denying capital murder defendant's pretrial request to delay penalty hearing by sixty days.

Applicable statute required hearing to be held “as soon as practicable,” continuance requested was not modest, need for delay was

occasioned by defendant's refusal to cooperate with his attorneys in preparation of mitigating evidence, and defense suffered no

prejudice from lack of continuance in that it was able to present testimony of three witnesses in mitigation and was not prevented from

presenting additional witnesses. NRS 175.552(1)(a).

5. Criminal Law.

Witness's testimony before grand jury was not hearsay and was properly admitted in murder prosecution, where witness testified at

trial and was subject to cross-examination.

6. Criminal Law.

Whether expert testimony will be admitted, as well as whether witness is qualified to be an expert, is within district court's

discretion, and reviewing court will not disturb that decision absent clear abuse of discretion.

7. Criminal Law.

Before witness may testify as to his or her expert opinion, district court must first determine that witness is qualified expert. NRS

50.275.

8. Criminal Law.

In determining whether witness is qualified to testify as expert, court should refrain from making comments which would demean

credibility and expertise of the witness. It is function of jury, not the court, to determine weight and credibility to give such testimony.

NRS 50.275.

��������116 Nev. 1, 3 (2000) Mulder v. State��������

9. Criminal Law.

In ruling on whether witness may testify as an expert, court must take care not to use terms such as “qualified as an expert” or

“certified as an expert” when referring to witness in presence of the jury, but should simply state that “the witness may testify,” or

sustain any objection to request to permit witness to testify as expert. NRS 50.275.

10. Criminal Law.

Trial court did not abuse its discretion in determining that witness proffered as expert in fingerprint comparison was not qualified

to testify as expert in fingerprint comparison, where witness's voir dire testimony revealed that he in fact had little, or at least

questionable, expertise in that area and that his expertise lay mostly in examining questioned documents, using skills such as

handwriting analysis. NRS 50.275.

11. Criminal Law.

Trial court improperly permitted witness, proffered as defense expert in fingerprint comparison but determined by court to lack

necessary qualifications to testify as expert, to offer fingerprint comparison testimony in murder prosecution, where such testimony

could not reasonably be categorized as lay opinion testimony. NRS 50.265, 50.275.

12. Criminal Law.

If witness fails to qualify as an expert, court should not permit the witness to testify unless witness may otherwise be considered a

lay witness. NRS 50.265, 50.275.

13. Criminal Law.

Trial court's erroneous receipt, in murder prosecution, of expert opinion testimony on fingerprint comparison from witness not

qualified as expert favored defendant, who had proffered witness, and was therefore harmless.

14. Criminal Law.

Prosecutor's voir dire of witness proffered by murder defendant as expert in fingerprint comparison was not misconduct, where

prosecutor's questions clearly concerned witness's qualifications.

15. Criminal Law.

Murder defendant's failure to object to prosecutor's comment, during closing argument in guilt phase, indicating that defendant's

witness on fingerprint comparison was not an expert, waived appellate review of such comment, as it was neither plain nor patently

prejudicial error.

16. Criminal Law.

To sustain conviction, sufficient evidence must exist that establishes guilt beyond reasonable doubt as determined by rational trier

of fact.

17. Criminal Law.

Trier of fact determines weight and credibility to give conflicting testimony, and on appeal reviewing court will not disturb verdict

which is supported by sufficient evidence.

18. Homicide.

Evidence of premeditation and deliberation is usually indirect, and circumstantial evidence may constitute sufficient evidence.

19. Homicide.

Page 447

A. Proof of malice

[Headnotes 10, 11]

Nevada law requires clear and convincing evidence of malice before punitive damages may be recovered.

NRS 42.005(1). “ ‘A plaintiff is never entitled to punitive damages as a matter of right.' ” Dillard Department

Stores v. Beckwith, 115 Nev. 372, 380, 989 P.2d 882, 887 (1999) (quoting Ramada Inns v. Sharp, 101 Nev. 824,

826, 711 P.2d 1, 2 (1985)). Rather, where the district court has determined that the conduct at issue is, as a

threshold matter, subject to civil punishment, the allowance or denial of exemplary or punitive damages rests

entirely in the discretion of the trier of fact. See Smith's Food & Drug Cntrs. v. Bellegarde, 114 Nev. 602, 606,

958 P.2d 1208, 1211 (1998); Ramada Inns v. Sharp, 101 Nev. 824, 826, 711 P.2d 1, 2 (1985). Accordingly, this

court will not overturn an award of punitive damages supported by substantial clear and convincing evidence of

malice.

[Headnote 12]

NRS 42.001(3) defines express or implied malice as “conduct which is intended to injure a person or

despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.” There is

substantial evidence in the record to support the jury's finding that Dean Witter and House acted maliciously or

with a conscious disregard of Elfreda's rights.

House testified that he falsely notarized a full trading authorization on the precious metals account and that

he allowed Jack to transfer stock out of Elfreda's account after her death, despite a Dean Witter policy requiring

House to freeze her account. Additionally, there was evidence presented that would have supported an inference

that House or Brooks either forged Elfreda's active asset account documents or knew that they were forged.

Indeed, although House and Brooks testified that Elfreda signed these opening documents granting Jack control

over her account, two handwriting experts concluded that three different pens were used to sign these documents

and that the signatures were not Elfreda's.

[Headnote 13]

With respect to the jury instruction given on Dean Witter's punitive liability, we first address the threshold

matter of whether Dean Witter preserved this issue on appeal. The Estate contends that Dean Witter waived its

right to appeal its liability for puni����� �������� �� �������� �

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��� � ��� � 116 Nev. 598, 613 (2000) Evans v. Dean Witter Reynolds, Inc.������ ��

tive damages by failing to object to the vicarious liability instruction that was given to the jury. We agree, in

part, with the Estate's contention.

A review of the record reveals that Dean Witter did not specifically object to the language of the vicarious

liability instruction and failed to proffer the alternate theory of punitive liability based on a complicity theory.

See, e.g., Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (holding that the failure to object

or request a special instruction precludes appellate review).

However, at trial, Dean Witter did generally object to the giving of any punitive damage instruction on the

grounds that it was unconstitutional and not supported by the evidence. In so doing, Dean Witter preserved the

right to argue on appeal that there was not substantial evidence in support of the punitive damage claim based on

the theory given at trial, namely malice and vicarious liability. The jury was instructed on a vicarious liability

theory via jury instruction 15:

Dean Witter Reynolds, Inc., is a corporation and as such can act only through its officers and

employees. Any act or omission of an officer or employee within the scope of authority or employment is

in the law the act or omission of such corporation.

This instruction properly set forth a theory of punitive liability under Nevada law as it existed at the time of

Page 448

trial.
15

See Ramada, 101 Nev. at 826, 711 P.2d at 2 (implying that either a vicarious or complicity theory of

principal liability was appropriate). We therefore will review this matter to determine whether there was

substantial evidence of vicarious liability.

[Headnote 14]

In the instant case, we conclude that there was substantial evidence to support a finding that Dean Witter was

vicariously liable for the malicious acts of Brooks and House. First, Brooks was in charge of the daily affairs of

the Stateline branch, held both the branch office manager license and a registered principal license, and was

acting within the scope of his authority when he participated in the notarization of the full trading authorization.

Second, :
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15

We note that in 1998, after the trial of this matter, we rejected the application of “vicarious,” punitive

liability and instead adopted the Restatement (Second) of Torts “complicity” theory of punitive liability. See

Bellegarde, 114 Nev. at 610-11, 958 P.2d at 1214. We also note that, given the state of our punitive damage law

as of the trial of this case, there was no ground upon which the district court could reject instructions based upon

either theory. We conclude, however, based upon the analysis below, that a review of this case under a

complicity theory of liability would not change the result.

........................................

��� � ��� � 116 Nev. 598, 614 (2000) Evans v. Dean Witter Reynolds, Inc.������ ��

House was senior vice president of Dean Witter and acted in the scope of authority as a manager of Elfreda's

account.

Accordingly, in interpreting the evidence in a light most favorable to the Estate, we conclude that there was

clear and convincing evidence in the record to support the jury's finding that Dean Witter and House were liable

for maliciously conspiring with Jack Gardner to convert Elfreda's securities. Dean Witter and House contend that

their acts were negligent at best, and that they were only complying with the requests by a person with authority

to act on behalf of Elfreda Gardner. However, the record supports a finding that House and/or Brooks either

forged or knew that Jack Gardner forged Elfreda's signature on the active asset account documents, thus giving

him the power to transfer several million dollars worth of Elfreda's assets from the active asset account.

B. Excessiveness as a matter of law

NRS 42.005(1)(a) limits the amount of punitive damages to three times the compensatory damages in

instances where such damages are equal to or exceed $100,000.00.

[Headnotes 15, 16]

Further, in determining whether a punitive damages award is excessive, we consider numerous factors

including the defendant's financial position, culpability, and the extent to which this culpability offends one's

sense of justice. See Wohlers v. Bartgis, 114 Nev. 1249, 1267, 969 P.2d 949, 962 (1998) (citing Ace Truck v.

Kahn, 103 Nev. 503, 509-10, 746 P.2d 132, 136-37 (1987)). Finally, this court considers the gravity of the

injury suffered by the plaintiff and the means necessary to deter future similar conduct. See id.

[Headnote 17]

In the case at bar, we see nothing excessive about the $6,000,000.00 punitive award against Dean Witter.

These awards are well within the statutory parameters of NRS 42.005, which would have permitted an award not

to exceed $7,800,000.00, three times the compensatory damages award of $2,600,000.00. Further, these awards

did not annihilate either Dean Witter or House; both awards constituted a relatively small portion of the net

Page 894

jurisdiction of said Court so as not to conflict with that of the several courts of Record.

Nev. Const. art. 6, § 9.

[Headnotes 17-22]

Article 6, section 9, gives the Legislature the authority to define the jurisdiction of municipal courts. Under

NRS 5.050(3)(c), the Legislature gave the municipal courts subject matter jurisdiction over bail and property

bonds. We conclude that in giving municipal courts general jurisdictional power over bail and property bonds,

the Legislature also granted by implication every power necessary for municipal courts to exercise that power,

including the power to charge and collect reasonable filing fees.
4
To conclude otherwise would render the

municipal courts ineffectual.

A mere naked power is useless and meaningless. The power must be exercised and it must function to be

meaningful . . . . Judicial function includes the right to exercise any� ������� �

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__________


4

NRS 4.060, which establishes a court fee schedule, and NRS 266.550(2) and NRS 5.073(2), which authorize

municipal courts to charge and collect fees, are in addition to the courts' inherent judicial powers to charge and

collect reasonable fees. When the Legislature, by statute, authorizes the exercise of an inherent judicial power,

the courts may acquiesce out of comity or courtesy; however, such statutes are merely legislative authorizations

of independent rights already belonging to the judiciary. See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209

(2000) (citing Goldberg v. District Court, 93 Nev. 614, 616, 572 P.2d 521, 522 (1977); see also Lindauer v.

Allen, 85 Nev. 430, 434, 456 P.2d 851, 854 (1969); accord State v. Mitchell, 672 P.2d 1, 9 (Kan. 1983); accord

Barland v. Eau Claire County, 575 N.W.2d 691, 696 n.8 (Wis. 1998). A statute that attempts to limit or destroy

an inherent judicial power is unconstitutional. See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209 (2000) (citing

Goldberg, 93 Nev. at 616-17, 572 P.2d at 522); see also Lindauer v. Allen, 85 Nev. 430, 434, 456 P.2d 851, 854

(1969); accord Mitchell, 672 P.2d at 9; accord State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300

(1983).

��������116 Nev. 1213, 1221 (2000) Blackjack Bonding v. Las Vegas Mun. Ct.��������

lesser power that can be subsumed under, or is included as an integral part of, the broader heading of

“Judicial Power”; that is, any power or authority that is inherent or incidental to a judicial function is

properly within the realm of judicial power. . . .

In addition to the constitutionally expressed powers and functions of each Department, (the

Legislative, the Executive, and the Judicial) each possesses inherent and incidental powers that are

properly termed ministerial. Ministerial functions are methods of implementation to accomplish or put

into effect the basic function of each Department. No Department could properly function without the

inherent ministerial functions. Without the inherent powers of ministerial functions each Department

would exist in a vacuum. It would be literally helpless.

State v. Dist. Ct., 116 Nev. 953, 962, 11 P.3d 1209, 1214 (2000) (quoting Galloway v. Truesdell, 83 Nev. 13,

20-21, 422 P.2d 237, 242-43 (1967)) (emphasis omitted).

Blackjack relies on Camacho v. Samaniego, 831 S.W.2d 804 (Tex. 1992), and Hogoboom v. Superior Court,

59 Cal. Rptr. 2d 254 (Ct. App. 1996), to argue that municipal courts may not collect fees absent statutory

authority. We disagree because both of these cases are distinguishable on the facts from the case at bar.

Camacho addresses whether a commissioner's court had the authority to impose a bail bond fee collected by

a sheriff to help defray the sheriff's administrative costs. 831 S.W.2d at 811, 815. These facts are distinguishable

Page 895

from the case at bar because the fees imposed by the commissioner's court did not pertain to internal, judicial

department business. Therefore, the fees in Camacho would not fall under a court's inherent judicial powers. In

fact, inherent judicial powers are not even discussed in Camacho.

Hogoboom addresses whether the imposition of a filing fee by a local court was preempted by a schedule of

court fees promulgated by the Legislature. 59 Cal. Rptr. 2d at 265. This case offers no support to Blackjack's

argument. In discussing the history of the statutory fee schedule, the Hogoboom court acknowledged that every

court in California has the inherent power to make its own rules, provided these rules are not inconsistent with

the laws of the state or the Judicial Council. Id. at 259. It was not until 1872 that the California Legislature

prohibited courts from using their rule-making power to charge fees. Id. at 260. The legislature imposed this

restriction to make court fees uniform. Id.

We conclude that Hogoboom is distinguishable from the case at bar for two reasons: (1) the case at bar does

not involve a preemption challenge; and (2) Nevada, unlike California, has no statute that expressly forbids a

court from charging a fee.

��������116 Nev. 1213, 1222 (2000) Blackjack Bonding v. Las Vegas Mun. Ct.��������

Furthermore, we conclude that Hogoboom bolsters the City's argument that the courts have inherent powers to

charge and collect fees. Id. at 260. Hogoboom implies that prior to 1872, California courts had inherent judicial

powers to impose fees and that the judiciary acquiesced to the Legislature's determination to establish a

statewide, statutory fee schedule to promote uniformity of court fees. Id.

Hence, we conclude that Blackjack's reliance on Camacho and Hogoboom to argue that municipal courts

may not collect fees without statutory authority is misplaced.

[Headnote 23]

Finally, we note that in reaching its decision, the district court relied on specific statutory authorization rather

than on inherent judicial powers. We will affirm the order of the district court if it reached the correct result,

although for different reasons. Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987).

Accordingly, we affirm the district court's order granting the City's motion to dismiss Blackjack's ultra vires

and unjust enrichment claims. We conclude that Blackjack could prove no set of facts that would entitle it to

relief on these claims in light of the municipal court's inherent authority to charge and collect reasonable bail

bond fees.

CONCLUSION

We conclude that the Nevada Constitution and various provisions of Nevada statutes indicate that the

municipal courts have the inherent power to charge and collect reasonable fees. Hence, we agree that the Las

Vegas Municipal Court legitimately assessed filing fees on bail bonds, and we affirm the district court's order of

dismissal.

Rose, C. J., and Agosti, J., concur.

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