CRAIG MELZO v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder. Second Judicial District Court, Washoe County; Scott N. Freeman, Judge.

Appellant Craig Melzo challenges his conviction for the murder of his son, Zayden. Melzo and Madisson Jester began a relationship in 2019, and Jester became pregnant three weeks later. Zayden Melzo was born in March 2020. Zayden was healthy at birth and at two post-natal appointments in the two weeks following his birth. The day after Zayden's second post-natal appointment, Melzo left the apartment he shared with Jester and returned to find her and Zayden packed to move out. Melzo and Jester argued about her leaving with Zayden but eventually decided to continue living together. After the argument Jester left the apartment to run some errands, leaving Melzo alone with Zayden. When Jester returned to the apartment, Zayden was limp and unresponsive. Jester immediately brought Zayden to the hospital. While at the hospital, Zayden was treated for increased intercranial pressure, subdural and subarachnoid hemorrhages, and retinal hemorrhaging. Zayden's condition worsened over several days and he died upon cessation of life support at the hospital.

After an investigation into Zayden's death, Melzo was charged with first-degree murder, and convicted at a jury trial. After the trial, the Washoe County Public Defender's office reached out to jurors to ask about their experience. Some jurors expressed doubt around Melzo's guilt, and Melzo moved for a new trial based on juror misconduct, which the district court denied. Melzo appeals, challenging multiple trial errors and the denial of his motion for a new trial. We affirm.

Melzo first contends the State and district court improperly quantified the reasonable doubt standard during voir dire. During voir dire, the State asked jurors whether they would be able to follow jury instructions about reasonable doubt, or whether they would hold the State to a higher standard of proving its case beyond all doubt. Melzo objected to the repetition of the question, though not to the question's substance. Unless the defendant demonstrates plain error, “[t]he ‘failure to specifically object on the grounds urged on appeal preclude[s] appellate consideration on the grounds not raised below.’ ” Lamb v. State, 127 Nev. 26, 40, 251 P.3d 700, 709 (2011) (second alteration in original) (quoting Pantano v. State, 122 Nev. 782, 795 n.28, 138 P.3d 477, 485 n.28 (2006)). Thus, Melzo has waived the argument that the State or district court improperly quantified reasonable doubt, and this court will review only for plain error.

“Before this court will correct a forfeited error, an appellant must demonstrate that: (1) there was an ‘error’; (2) the error is ‘plain,’ meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant's substantial rights.” Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (citing Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)). To affect the defendant's substantial rights, the conduct must cause “actual prejudice or a miscarriage of justice.” Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (quoting Green, 119 Nev. at 545, 80 P.3d at 95) (citing United States v. Olano, 507 U.S. 725, 734 (1993)).

The State and district court's statements about reasonable doubt during voir dire closely mirror reasonable doubt instructions we have previously approved, and we discern no error from a casual inspection of the record. See, e.g., Tucker v. State, 92 Nev. 486, 490 n.6, 553 P.2d 951, 953 n.6 (1976) (approving of an instruction which stated “[t]he law does not require demonstration or that degree of proof which, excluding all possibility of error, produces absolute certainty”). Further, the district court informed the jury that nothing said during voir dire constituted the formal definition of reasonable doubt, and the court provided the jury with the unadorned statutory definition of reasonable doubt at the end of trial. We conclude the discussion of reasonable doubt during voir dire did not affect Melzo's substantial rights.

Melzo next asserts the district court abused its discretion by excluding other act evidence about Jester. This court reviews a decision to admit or exclude other act evidence for an abuse of discretion. Hubbard v. State, 134 Nev. 450, 454, 422 P.3d 1260, 1264 (2018) (citing Rhymes v. State, 121 Nev. 17, 21-22, 107 P.3d 1278, 1281 (2005)). Before admitting evidence of other acts, the district court must determine “(1) the prior bad act is relevant to the crime charged and for a purpose other than proving the defendant's propensity, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Bigpond v. State, 128 Nev. 108, 117, 270 P.3d 1244, 1250 (2012). While the evidence in question concerns Jester, not Melzo, the exclusion of other act evidence applies equally to witnesses. Mortensen v. State, 115 Nev. 273, 280, 986 P.2d 1105, 1110 (1999). Melzo sought to introduce evidence that Jester used marijuana while pregnant and left the hospital against medical advice after falling while pregnant with Zayden. As the district court noted, however, Melzo did not present evidence that either of Jester's other acts caused or contributed to Zayden's injury. Melzo therefore failed to establish that the evidence was relevant or admissible for a proper purpose. Thus, the district court did not abuse its discretion by excluding the evidence.

Continuing our analysis of other act evidence, Melzo asserts the district court abused its discretion by admitting evidence concerning Melzo's controlling nature. Specifically, Melzo objected to testimony that he controlled Zayden's feeding schedule, and that he left Jester at a doctor's appointment without a car. Beginning with Jester's testimony that Melzo fed Zayden on a strict schedule, and at times refused to let Jester feed Zayden, we conclude the evidence was irrelevant to the crime charged, as it did not tend to show anything other than the character of Jester and Melzo's relationship. While it was an abuse of discretion to admit the evidence, to warrant reversal the evidence must have had a “substantial and injurious effect or influence in determining the jury's verdict.” Newman v. State, 129 Nev. 222, 236, 298 P.3d 1171, 1181 (2013) (quoting Tavares v. State, 117 Nev. 72 5, 732, 30 P.3d 1128, 1132 (2001)) (citing collected cases). Melzo had the opportunity to testify about his concerns with Zayden's feeding, and why he was particular about Zayden's feeding schedule. Thus, Melzo remedied any potential prejudice from the admission of the evidence, and we discern no substantial or injurious effect on the jury's verdict.

As to the testimony that Melzo left Jester at a doctor's appointment without a vehicle, Melzo failed to object and we examine for plain error. Melzo was able to cure any prejudice from this statement by testifying that he briefly left the doctor's appointment to pick up his phone so Jester could contact him if necessary. This evidence does not create actual prejudice, and there is no plain error.

Melzo's next two arguments concern the testimony of Dr. Moore, a treating physician and expert witness for the State. First, Melzo contends Dr. Moore's testimony violated the Confrontation Clause of the Sixth Amendment when he stated he consulted with other doctors to determine Zayden's cause of death. “[W]hether a defendant's Confrontation Clause rights were violated is ‘ultimately a question of law that must be reviewed de novo.’ ” Chavez v. State, 1.25 Nev. 328, 339, 213 P.3d 476, 484 (2009) (quoting United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007)) (collecting cases). The Confrontation Clause guarantees the right of a criminal defendant to confront adverse witnesses. U.S. Const. amend. VI. That right is violated if a witness makes an out-of-court statement that is testimonial in nature. Crawford v. Washington, 541 U.S. 36, 54 (2004). A statement qualifies as testimonial if “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (quoting Crawford, 541 U.S. at 51-52).

Here, Dr. Moore testified that Zayden's case was “reviewed by many faculty in the community, including the pediatric ICU.” Due to Melzo's timely objection, Dr. Moore did not testify further about the nature of this review, so nothing in the record indicates a reference to any reports or statements that a reasonable witness would anticipate being used at trial, and we conclude the out of court statements were not testimonial in nature. Even if the evidence were inadmissible, the district court sustained Melzo's objection and ordered the jury to disregard the testimony. Any error in admitting the testimony was cured.

Melzo also asserts Dr. Moore vouched for the testimony of another witness when he testified he followed the recommendations of another physician because of his reputation as a skilled doctor. “A witness may not vouch for the testimony of another or testify as to the truthfulness of another witness.” Perez v. State, 129 Nev. 850, 861, 313 P.3d 862, 870 (2013) (citing Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992)). Dr. Moore did not vouch for the truthfulness of the other witness, but rather explained why he relied on the other witness's clinical skills while treating Zayden.

Melzo's next two arguments concern the expert testimony which indicated Zayden's head injuries came from abusive head trauma. Melzo first argues the State's experts could not testify to the mechanism of Zayden's injuries as they did not possess relevant biomechanical qualifications. Because Melzo did not preserve the issue by objecting, plain error review applies. This court's precedent firmly allows “a medical doctor [to] offer an opinion regarding causation so long as there is a sufficient foundation for the conclusion.” Risk v. Simao, 132 Nev. 189, 197, 368 P.3d 1203, 1209 (2016); see also id. (collecting cases from other jurisdictions holding the same); Khoury v. Seastrand, 132 Nev. 520, 535-36, 377 P.3d 81, 91-92 (2016) (allowing a neurologist's expert testimony on the cause of an injury); Murphy v. S. Pac. Co., 31 Nev. 120, 125-31, 101 P. 322, 325-26 (1909) (considering expert testimony on whether an impact could cause varicose veins). The testifying treating physicians and experts had a sufficient basis to testify to the cause of Zayden's injuries based on their treatment of Zayden and review of the records in his case, and thus did not testify outside of their scope of expertise.

Melzo also asserts the State's experts relied on unsound science when they testified Zayden's injuries could be caused by abuse. The scientific consensus surrounding abusive head trauma has certainly changed over the last several decades. Abusive head trauma was the widely accepted explanation for a distinct triad of symptoms—cerebral edema, subdural hemorrhages, and retinal hemorrhages. Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome & the Criminal Courts, 87 Wash. U. L. Rev. 1, 4 (2009). Throughout the 1990s, the scientific consensus was the only possible cause of the symptom triad was abuse. Id. at 11. Consequently, convictions could be obtained without further differential diagnosis, or inquiry into possible accidental trauma, if the symptom triad was present. Further, defendants were often unable to present evidence the triad of symptoms were caused by underlying medical issues or accidental injury. See, e.g., Allison v. State, 448 P.3d 266, 273 (Alaska Ct. App. 2019) (overturning a conviction based on the exclusion of defense evidence that a child died of natural causes rather than shaking).

Scientific progress, including the advent of the MRI, has demonstrated the triad of symptoms can be triggered by accidental trauma or medical disorders mimicking abusive head trauma. Tuerkheimer, supra at 12-15. This progression in scientific understanding has prompted courts to reexamine convictions where the defendant was not given the opportunity to present evidence of alternate causation. See Allison, 448 P.3d at 270-73 (reversing a conviction because the trial court excluded evidence of a genetic disorder which may have caused the child's symptoms); People v. Bailey, 41 N.Y.S.3d 625, 627 (N.Y. App. Div. 2016) (granting a new trial because new evidence showed a short fall could have caused the child's symptoms); State v. Edmunds, 746 N.W.2d 590, 595-96 (Wis. Ct. App. 2008) (granting a new trial because change in the science of abusive head trauma gave possible alternate explanations for a child's injuries). Notably, the scientific community still recognizes abuse as a potential cause of the symptom triad. It is simply no longer the only potential cause. Tuerkheimer, supra at 17-18.

Here, the State's witnesses inquired into the cause of Zayden's injuries. Physicians tested Zayden for infection and metabolic disorder, and doctors and investigators asked if Zayden had suffered any accidental trauma, which Melzo and Jester both denied. Melzo also was able to present expert testimony that shaking would not have been able to cause Zayden's injuries, an argument the defendants in the cases cited above were not permitted. Because other potential causes of Zayden's injuries were examined and ruled out, we conclude the State's experts employed reliable science when they testified that abuse was the likeliest cause of Zayden's injuries.

Moving to closing arguments, Melzo contends the State committed prosecutorial misconduct. Melzo failed to object to the alleged misconduct and we review for plain error. To determine whether the State engaged in misconduct, “this court engages in a two-step analysis. First, we must determine whether the prosecutor's conduct was improper. Second, if the conduct was improper, we must determine whether the improper conduct warrants reversal.” Valdez, 124 Nev. at 1188, 196 P.3d at 476 (internal citations omitted).

Melzo first argues the State shifted the burden of proof during closing. “It is a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt.” Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). During rebuttal the State argued “[d]oubt to be reasonable must be actual. Not mere possibility or, not mere speculation. [The expert witness's testimony], that was mere speculation. That was mere possibility.” The State did not shift the burden while arguing the credibility of Melzo's witnesses, and thus did not commit prosecutorial misconduct.

The State also argued the following during rebuttal:

Now, this is defense's theory of the case I don't know really what happened, but could have been natural causes could have been an accident. It could have been a bleeding disorder it had could have been in this could have been that. That is not what the law requires. Proximate cause that trauma that injury, approximately caused Zayden's dealt [sic]. Ladies and gentlemen, I do not have to tell you the type of actual injury that Zayden suffered, in the sense I don't have to tell you or show you how he did it. Just that when he was alone with that child, he did something. It was abuse. And it caused Zayden's death.

While Melzo is correct the State may not generally comment on the defense's failure to produce evidence, it may “comment on the evidence at hand and whether it substantiated the defense theory.” Burns v. State, 137 Nev. 494, 503, 495 P.3d 1091, 1102 (2021). This statement from rebuttal merely articulates the State's burden and how Melzo's evidence did not substantiate his theory of the case; it is not an attempt to shift the burden of proof to the defense.

Turning to the State's comments about a defense expert, “[d]isparaging remarks directed toward defense counsel ‘have absolutely no place in a courtroom, and clearly constitute misconduct.’ ” Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004) (quoting McGuire v. State, 100 Nev. 153, 158, 677 P.2d 1060, 1063-64 (1984)). This may include comments which imply experts have been paid to testify in a certain way. Id. at 899, 102 P.3d at 85. The State discussed the defense expert witness's credibility along with his compensation during closing argument:

And again, look at Mr. Maches. Does he have motive, bias to not speak truthfully? Sure. He's being paid 5,000 dollars a day. 5,000 dollars a day. 8,000 dollars for a 90-page report, and then 5,000 dollars a day. And, you know, I asked Mr. Maches numerous times, what have you done in this case? Did you give [the defense attorney] questions? Yep, gave her questions. He wanted to know what these witnesses were testifying to. He became a sad advocate of the case, simply because he was so involved in the case.

The State's comments toe the line of acceptability for two reasons. First, we have previously disapproved of references to an expert witness's compensation, such as those here. See Butler, 120 Nev. at 899, 102 P.3d at 85. Second, referring to a defense's expert witness as “a sad advocate for the case” verges on the type of disparagement we have taken issue with in previous cases. See, e.g., id. at 899, 102 P.3d at 84 (finding misconduct where an attorney described an expert as a “high falootin’ expert, getting paid over $200 an hour” who put on an “infomercial”); Sipsas v. State, 102 Nev. 119, 125, 716 P.3d 231, 234 (1986) (finding misconduct where the prosecutor referred to a medical expert as “[t]he hired gun from Hot Tub Country. Have stethoscope, will travel”). Nevertheless, the statements here do not rise to the level of plain error. The State's conduct, while borderline, was not so egregious as to be misconduct apparent from a casual inspection of the record. Further, given the length of the trial and the amount of evidence presented, we are unconvinced this passing remark during closing caused actual prejudice or a miscarriage of justice. Melzo also argues the State introduced impermissible character evidence during closing, but has waived this argument by failing to support it with citation to the record, or to any authority. See Thomas v. City of N. Las Vegas, 122 Nev. 82, 91 n.18, 127 P.3d 1057, 1064 n.18 (2006) (finding no merit to an argument unsupported by citation to the record).

Lastly, Melzo argues the district court erred by denying his motion for a new trial after jurors expressed doubt and reported potential juror misconduct in a survey conducted by the Washoe County Public Defender's office. “A denial of a motion for a new trial based upon juror misconduct will be upheld absent an abuse of discretion by the district court.” Meyer v. State, 119 Nev. 554, 561, 80 P.3d 447, 453 (2003) (citing United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001) and Tanksley v. State, 113 Nev. 997, 1003, 946 P.2d 148, 151 (1997)). “Before a defendant can prevail on a motion for a new trial based on juror misconduct, the defendant must present admissible evidence sufficient to establish: (1) the occurrence of juror misconduct, and (2) a showing that the misconduct was prejudicial.” Id. at 563, 80 P.3d at 455 (citing United States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998) and United States v. Williams-Davis, 90 F.3d 490, 496-97 (D.C. Cir. 1996)).

The district court is generally precluded from considering evidence of a juror's subjective thoughts and feelings during the deliberation process. See NRS 50.065(2)(a)-(b). This includes any juror statements describing “the effect that the alleged misconduct had upon some of the jurors, or how the jury conducted its deliberations.” Meyer, 119 Nev. at 567, 80 P.3d at 457. Here, most of the evidence gathered through the investigation is precluded due to its subjective nature. The jurors spoke subjectively about deliberation when they indicated that they “felt like Mr. Melzo got railroaded and didn't want to convict Mr. Melzo,” and “had doubt during deliberations and still has doubt that Mr. Melzo is guilty.”

Only two pieces of evidence from the affidavits are statements of objective fact. First, a juror stated she “conceded to the verdict in part because another juror mentioned that Mr. Melzo could get another trial if they wrongfully convicted him.” While this comment is concerning, we have previously held that district courts should not consider juror discussions related to sentencing unless there is some evidence the discussion relied on extrinsic information. See Meyer, 119 Nev. at 567, 80 P.3d at 457 (citing United States v. Brito, 126 F.3d 397, 414 (5th Cir. 1998)). No evidence establishes any probability the comment about a potential mistrial came from extrinsic information, and the district court correctly declined to consider the statement.

Second, a juror stated “[t]wo of the other jurors stood up throughout the deliberations while all others were sitting and those jurors were talking over others.” “[I]ntimidation or harassment of one juror by another, or other similar situations ․ are generally not admissible to impeach a verdict.” Meyer, 119 Nev. at 562, 80 P.3d at 454. The juror here described conduct intrinsic to the jury, that falls far below intimidation or harassment, and again the district court correctly declined to consider the statement. The district court did not abuse its discretion in refusing to consider the juror statements while denying the motion for a new trial. Accordingly, we,

ORDER the judgment of the district court AFFIRMED.

Parraguirre, J.

Bell, J.

Stiglich, J.