Big Changes to Nevada DUI Laws

Starting October 1, 2018...

There will be big changes for DUI offenders in the State of Nevada.  In 2017, the Nevada legislation passed several amendments changing the current DUI laws to be implemented, or take effect, October 1, 2018.  Anyone arrested or charged October 1 or after will be subject to these new changes.

Interlock Nevada

Mandatory Interlock Device

Anyone who is arrested for driving with .08 BAC (or .02 BAC if under 21) will have to get an interlock device, if driving, for 90 days.  If that person is convicted, meaning goes through the court process and is found guilty and sentenced, then the judge may order an interlock device for another six (6) months.  This is significant change, as previously Nevada only required interlock if the person had a BAC of .18 or higher and only after conviction.

If you fail to install that breath interlock device while you have a restrictive license, your license could then be suspended for three years for a first offense, or five years for a second offense or more.

Extended Loss of Driver's License

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Now, a person whose test shows a BAC of .08 or higher will automatically lose their driver's license for 185 days for a first DUI offense.  This is substantially higher than the previous 90 days for a first time offender.  You can apply for a restricted license (to drive to and from work) after 93 days, but must first show proof of the interlock device and the SR-22 insurance rider. 

 

Right to Confrontation and Hidden Evidence

Justin Odell Langford vs. State of Nevada

(Unpublished Supreme Court Order Affirming)

Justin Langford appealed from a judgment of conviction, pursuant to a jury verdict of lewdness with a child under the age of 14. His victim H.H., told a nurse assistant at school that her stepfather, Langford, was sexually abusing her. Based on H.H.'s allegations, Las Vegas Metropolitan Police Department (LVMPD) detectives arrested Langford. Investigators recovered bedding, a white rag, and bottle of baby oil in his dresser. After DNA testing, the white towel was found to have both Langford’s and H.H.’s DNA.

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Langford learned at his preliminary hearing that H.H. was receiving counseling because of the alleged abuse. He filed a pretrial motion for production of H.H.’s psychiatric records. The district court denied Langford's motion.

On appeal, Langford argued that his Sixth Amendment right to confront and cross-examine his accusers entitled him to H.H.'s psychiatric records, as they were a source of cross-examination material. The court disagreed. The Confrontation Clause is not "a constitutionally compelled rule of pretrial discovery," (Pennsylvania v. Ritchie, 1987). Rather, "the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination." 

“Langford failed to show that H.H.’s medical records were favorable to his defense-e.g., that they contained impeachment evidence, or that they were suppressed by the State” as the records were not in its possession. The other witness’ testimony and corroborating DNA evidence suggested the outcome of the proceeding would not have been different even if Langford were to have impeached H.H.’s testimony. The court found that there was no Sixth Amendment violation and it was further determined that Langford was not entitled to relief. The order of his judgement of conviction was affirmed.

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James Robert Pete vs. State of Nevada

(Unpublished Supreme Court Order of Affirmance)

James Pete was convicted of first-degree murder and sentenced to life without the possibility of parole. Pete appealed both his judgment of conviction and the subsequent district court's denial of his motion for a new trial. During his trial, Pete admitted to stabbing and killing his victim. Pete argued he did so in self-defense, as his victim had attacked him first.

Pete’s first complaint was that the district court abused its discretion in allowing Detective Mogg to give opinion testimony despite Pete's objection.

The State used Mogg's experience as a homicide detective and with blood spatter as the foundation for admitting his opinion that the victim was lying down when attacked. He further testified that the pattern of wounds indicated that the victim was not actively moving when stabbed; thus negating Pete’s self-defense. Mogg's opinion drew upon specialized knowledge, not deductions a layperson may have drawn. To that extent, Mogg offered an expert opinion. The Court of Appeals found that the district court erred in admitting his expert testimony as an opinion testimony and the State also failed to provide the required advance notice to Pete about their new witness. Despite this error, the admission of this evidence did not substantially and adversely affect the jury's verdict, which is required for non-constitutional error to merit a reversal.

Pete also questioned the district court judge's impartiality, asserting that the judge showed favoritism in helping the State lay foundation for Mogg's opinion testimony. Reversal is warranted if the district court's actions prejudiced Pete's right to a fair trial (Oade v. State, 1998). Such prejudice did not occur here. To the Court of Appeals, the district court judge appeared to have acted out of concern for judicial expediency, and noted that the premeditation of the murder would have been found regardless. Thus, there was no impermissible assistance or favoritism that denied Pete a fair trial. The Supreme Court found that all the arguments and claims did not warrant reversal. The Court subsequently affirmed the judgment of the district court in denying Pete’s motion for a new trial.

Benny Hammons vs. State of Nevada

(Court of Appeals order reversing and remanding)

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Appellant Hammons appealed on the basis of the district court dismissing his postconviction petition for writ of habeas corpus. He claimed that they had improperly denied his petition without first holding an evidentiary hearing, which was necessary as he claimed actual innocence. A witness at trial emailed Hammons' sister, stating that she had found the safe in the desert and that it was not damaged when she found it. When this witness met with the prosecutor, he showed her a picture of a different safe that was damaged. She told the prosecutor it was not the safe that she had found. This evidence, Hammons argued, violated Brady by being false evidence brought by the prosecutor. The district court received Hammons’ petition with a copy of the witness email, but they rejected “for failing to provide reliable evidence” as the email could have easily been fabricated.

According to Berry v. State (2015), “a petitioner claiming actual innocence is entitled to an evidentiary hearing on a claim of actual innocence if he presents specific factual allegations that, if true, and not belied by the record, would show that it is more likely than not that no reasonable juror would have convicted him." The Court of Appeals found that the district court had failed to apply the Berry standard as Hammons met his burden of proof and was legally entitled to an evidentiary hearing regarding his actual innocence claim. The Court reversed and remanded his case to hold an evidentiary hearing on his claim of actual innocence.

Travis Lieberwirth vs. State of Nevada

(Court of Appeals Affirming)

Travis Lieberwirth appealed from a judgment of conviction pursuant to a guilty plea of burglary. Lieberworth claimed that his substantial rights were affected at his sentencing.

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Two individuals were allowed to make victim impact statements, despite the fact that their house was burglarized while Lieberwirth was proven to still be in custody. Their burglary had little to no relevance to Lieberwirth as he obviously had not committed the crime because he was in custody at the time. Lieberworth had the burden of proof to show that “actual prejudice or a miscarriage of justice,” had occurred with the use of their statements. The Court of Appeals stated that there is nothing showing that the District Court solely relied on the victim impact statement in determining sentencing and as such, there was no prejudice. His order of judgment of conviction was affirmed.

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Michael Howard Rachlin v. Renee Baker (Warden) and The State of Nevada

(Court of Appeals Reversed and Remanded)

Appellant Michael Rachlin appealed from an order dismissing his postconviction petition for a writ of habeas corpus at the district court. Rachlin plead guilty to his charges, but argued that he was misinformed by his counsel that he was not allowed to file a direct appeal.

On appeal, the Court of Appeals concluded that the district court erred by denying appellant’s claim without first holding an evidentiary hearing. The Court found that Rachlin successfully demonstrated that counsel’s performance was deficient and due to the misinformation that appellant could not file a direct appeal, there was a reasonable probability that the outcome of the proceedings would have been different (Strickland v. Washington, 1984).

The Court of Appeals cites Toston v. Nevada (2011), to demonstrate that counsel has a duty to inform defendants that have pled guilty about their rights to appeal when defendants inquire or may receive benefit from such advice. When counsel misinforms their client about the right to appeal, the right to appeal is meaningless because the client may have been deterred from requesting a direct appeal due to the misinformation.

The Court of Appeals reversed and remanded the matter back to the District Court to hold an evidentiary hearing as Rachlin had been misinformed about his right.

Biased Juror, Punishment For Hurt Feelings, & Substantial Mental Harm

Jericho Brioady vs. State of nevada

(Supreme Court Order remanding and reversing)

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        Pursuant to a jury conviction of two counts of lewdness with a minor under the age of fourteen, Appellant Jericho Brioady filed a motion for a new trial on the basis of juror misconduct.
        Eleven days after the entry of the jury verdict, Brioady discovered that during voir dire one of the jurors had failed to disclose that they had been a victim of childhood molestation. The District Court denied Appellant’s motion because Brioady failed to demonstrate prejudice that arose from the alleged misconduct of Juror Three. 
        On appeal, the State argued that the appellant’s motion had surpassed the 7 day time limit pursuant to NRS 176.515(4) and was therefore untimely. The Nevada Supreme Court ruled that the information relating to the juror misconduct was newly discovered evidence and satisfies the two year requirement for motions of new trial on the  grounds of newly discovered evidence ( NRS 176.515).
        In order to obtain a new trial on the basis of juror misconduct, a party must demonstrate that a juror has failed to answer honestly material questions and then further show that the correct response to those questions contain sufficient grounds for challenge. The Supreme Court further wrote that while there are a litany of reasons and motives for a juror to conceal information, the reasons that “affect a juror’s impartiality can truly be said to affect the fairness of a trial.” In addition, the Supreme Court cited that a juror’s impartiality can be determined “upon whether or not [a juror] is guilty of intentional concealment.”
         In this case, the Supreme Court argued that the court records indicate that Juror Three had intentionally chose not to disclose her prior childhood molestation and withheld this information throughout voir dire. From the trial proceedings to deliberations, Juror Three had revisited her childhood molestation, which showed that her childhood molestation was serious enough to Juror Three. In addition, the Supreme Court ruled that her disclosure to material questions asked during voir dire deprived Appellant of any opportunity to issue a peremptory challenge to excuse the Juror. The Supreme Court reversed the judgement of the District Court and remanded for a new trial.

Robert WILLIAM Downs II vs. State of Nevada

(Supreme Court Order unpublished affirming)

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         Pursuant to a jury verdict of  first-degree kidnapping and three counts of abuse, neglect or endangerment of a child resulting in substantial bodily and/or mental harm,  Robert Downs appealed on the grounds that the district court had erred by not providing a Mendoza instruction, insufficient evidence to support first-degree kidnapping, allowing a social worker to provide expert medical opinions, not requiring the State to prove ‘substantial’ mental harm under NRS 200.508(1), allowing a detective to give expert medical opinion, and finally that all of these issues provide cumulative effect of error to warrant a reversal of his conviction. 
         Mendoza requires that to convict someone of both kidnapping and child abuse, the prosecution would have to show that the movement of the child (constituting the element of kidnapping) was not incidental to the child abuse charges. In this case, Downs was suspected of having bound the “child's hands and feet together and gagged the child; these acts constitute the restraint involved in the kidnapping charge.” The jury instructions included that kidnapping is done with the “intent to hold or detain... that person for the purpose of inflicting substantial bodily harm.” The Court held that as the child was bound and gagged, and that injuries were inflicted through the process, it was found that these elements went beyond simple child abuse. There was a substantial increase of risk, danger, and harm to the child through the binding and gagging, thus supporting Down’s first-degree kidnapping conviction and showing the Mendoza factors were proven. 
         Another issue Downs argued was about the jury instruction for child abuse. They had left out ‘substantial’ from the ‘substantial mental harm’ element in the NRS statute regarding child abuse. This allowed for the State to not have to prove the ‘substantial’ element, but only simply mental harm suffered by the victim. The Nevada Supreme Court found that the jury instruction about mental harm of the child was erroneous because it omitted “substantial” for “mental harm.”  In addition, the Court found that the social worker and the detective who both testified had erroneously given medical expert testimonies without being experts. Despite these errors, the Court held that Downs did not show prejudice from these errors and affirmed his judgment. 

Johnathan Perez vs. State of nevada

(Supreme Court Order unpublished affirming)

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        Perez was convicted of second-degree murder with use of a deadly weapon and discharge of firearm from a structure or vehicle. He had been selling marijuana to a few men who were all in the same vehicle when one of them left to take a phone call. Perez pulled out his gun and shot the man from inside the car three times. The victim died. Perez was charged with murder with use of a deadly weapon, discharge of a firearm from inside a vehicle, and possession of a firearm by ex-felon. He plead guilty after his trial to the possession charge, and the jury found him guilty of the other two charges.
         Perez argued that there was insufficient evidence at trial to show the elements of robbery arguing the district court abused its discretion by instructing the jury with those elements. During the trial, evidence was presented about the victim’s phone not being recovered with his body. There was nothing else proving the intent of Perez to rob his eventual victim and take his phone, thus the Court deemed that the district court had indeed abused their discretion by allowing the jury instruction for robbery. The Court found that though the district court had erred, it was harmless. An instructional "error is harmless when it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.“ However, because the jury only found him guilty of second-degree and no robbery, there was no instructional error. The Court affirmed his conviction.

Monte MCDANIEL  VS. STATE of nevada

(Court of Appeals Order affirming)

        Monte McDaniel appealed from an order of the district court revoking his probation and an amended judgment of conviction. McDaniel argued that the district court abused their discretion by increasing his sentence right after they had agreed to a shorter sentence. The district court initially sentenced McDaniel to a prison term of 24 to 60 months, suspended the sentence, and placed McDaniel on probation. At the revocation hearing, the district court revoked McDaniel's probation and orally modified his sentence to 12 to 60 months in prison. McDaniel then made a comment referring to his probation officer as a “bitch.” The district court recalled the matter and witnesses informed the court what they had heard. The district court then decided with McDaniel’s conduct and the current case, that imposition of the original prison term of 24 to 60 months was justified. 
       McDaniel first argued the district court abused its discretion by increasing his sentence after they had just orally pronounced a shorter sentence and that the district court should have punished him with in-court conduct with contempt, rather than increasing his prison term. McDaniel further asserted that he did not know that using an explicative would result in a lengthier sentence, and that he should have been given an opportunity to dispute the allegation. The court found that they had the authority to alter its oral modification of his sentence because they had not yet entered a written judgment of conviction modifying the sentence. In addition, McDaniel failed to show that he was required to receive notice that inappropriate court conduct could result in a longer sentence. The court also gave him an opportunity to explain his explicative language, McDaniel out-right denied saying anything, but the district court relied on their witnesses testimony that he had. Accordingly, the court ruled that McDaniel is not entitled to relief and there was no error in his amended judgment of conviction.

FREDERICK harold HARRIS JR. VS. STATE of nevada

(Court of Appeals Order affirming)

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        Frederick Harold Harris, Jr., appealed from a judgment of conviction, pursuant to a jury verdict, 36 counts for numerous crimes including sexual assault with a minor under 14 years of age; lewdness with a child under the age of 14; child abuse, neglect, or endangerment; first degree kidnapping; coercion; administration of a drug to aid in the commission of a crime; sexual assault with a minor under 16 years of age; sexual assault; battery with intent to commit sexual assault; pandering; and living from the earnings of a prostitute. 
         Harris was convicted for physically and sexually abusing several children in the same family. Harris asserted in his appeal that the district court erred in limiting his cross-examination regarding a book authored by the mother of the children. The district court allowed for the book written by the children’s mother to be used as the State’s evidence in trial. The Court of Appeals agreed with Harris that the district court erred by limiting his cross-examination of the mother about the book. The book entitled titled “Secret Revenge” depicts the story of a rape victim who murders her rapist. The district court had ruled that the book's title was too prejudicial to be discussed in court, but allowed questioning regarding the book's contents. The appellate court ruled that the district the title of the book was relevant and more probative than prejudicial to show witness bias. They also ruled that since Harris was allowed to cross-examine the mother regarding the book's contents and the mother denied that the book had anything to do with Harris, the error was harmless. Harris also argued that the district court improperly allowed the State to introduce testimonial hearsay statements into evidence.
          The Court of Appeals also found that Harris was correct in stating the State presented testimonial hearsay at trial. The state called a detective as witness to testify about a statement made by Harris’ girlfriend in a police investigation a few years prior. The statement regarded the two children disclosing sexual abuse by Harris to his girlfriend. This statement was testimonial in the fact that it was made during a police investigation, and hearsay as it was a statement made out of court to prove the truth of the matter at issue. Harris argued that this testimony being admitted into trial violated the Confrontation Clause because though the girlfriend could have been called as a witness, she did not testify. Thus, Harris did not have the ability to question her regarding her statements. 
          Regardless of these errors, the Court of Appeals found that “the error complained of did not contribute to the verdict obtained" and affirmed the judgment of conviction.

Joshua AGUILAR  VS. STATE of nevada

(Court of Appeals Order affirming)

          Aguilar appealed from a judgment of conviction for battery with a deadly weapon causing substantial bodily harm and assault with a deadly weapon. He argued that the district court erred in denying his motion to suppress statements he made during a recorded police interrogation, his main point being that he had invoked his right to remain silent. 
        After Aguilar was arrested, he was read his Miranda rights and then was interrogated about the crime. Aguilar stated that he invoked his right to remain silent, but the police continued to question him. This resulted in Aguilar making statements that were used against him at trial. For a suspect to invoke his right to silence, he must do so "unambiguously."(Berghuis vs. Thompkins 2010).  The district court held a suppression hearing regarding the statements. One of the police officers who conducted the interrogation testified and the court also listened to the recording of the interrogation. It was determined that “Aguilar did not unambiguously invoke his right to remain silent.“ To do so unambiguously means that the invocation of remaining silent must be straightforward and obvious enough for anyone to be able to interpret their Miranda rights as being invoked. The lower court deemed his invocation as being too ambiguous and open to interpretation. The Court of Appeals did not have access to the recording of the interrogation nor the transcript, as it was the appellate burden to provide the appellate record.  As the interrogation/transcript was not deprived, the Appellate Court affirmed the conviction.

Toy Guns, Amended Complaints, and Mayhem

CITY OF HENDERSON vs. GIANo AMADO

(Supreme Court Order remanding and reversing)

This was an appeal from a district court order granting a writ of mandamus from a dismissal of criminal complaints. Giano Amado was arrested for a battery constituting domestic violence when he pushed his aunt to the floor. He posted a bail bond the same day and was released. Another criminal complaint was filed in a separate case charging him with misdemeanor battery constituting domestic violence against his nephew. Both the aunt and nephew failed to show to trial dates, so the City voluntarily dismissed both complaints. The next day, the criminal complaints were refiled as “Amended Criminal Complaints," using the same case numbers. Amado filed a motion to dismiss these amended complaints in the court, arguing that new case numbers should have been used for the new criminal complaints. The district court agreed with Amado and accordingly dismissed his criminal complaints, requiring the city to have had to file with new case numbers.

The City of Henderson filed an appeal on the grounds that the district court had wrongly granted Amado’s petition for a writ of prohibition that resulted in dismissal of the amended complaints. The City argued that the NRS statute 174.085(5) allows prosecution the “right to file another complaint” and it does not specifically say they must file with a new case number. The City argued prosecution can file a “subsequent complaint in the original case” under the original case number. As it dealt with the same matter as the previous criminal complaint, according to NRS 174.085(6)(a) that in these cases the case must be presented before the judge who had heard the initial complaint. To ensure this, the City used the same case number so it would successfully go to the same judge.

The Supreme Court of Nevada concluded that the City of Henderson was correct in its reasoning for maintaining the same case number and held that the district court acted arbitrarily and capriciously, abusing their discretion by dismissing the complaints against Amado. The Supreme Court of Nevada reversed and remanded this issue back to the district court.

MICHAEL DAVID PEREZ vs. STATE OF NEVADA

(Supreme Court Unpublished Order affirming in part, reversing in part and remanding)

Michael Perez appeals from his judgment of conviction for battery constituting domestic violence with substantial bodily harm, mayhem, and preventing or dissuading a witness from testifying or producing evidence. Perez had picked up his girlfriend from her job as a stripper. When she asked if he was okay, he hit her in the face. For the 20 minute drive back to their home, he continuously punched her face. When they arrived home, he went to sleep and Cynthia texted her mother asking her to call the police. They arrived to find her covered in blood and her face swollen. Later at the hospital, it was found that, “Cynthia suffered multiple fractures to 19 facial bones, contusion or bruising, damage one eye orbit, and a tear duct and bone were dislodged. Her jaw was broken...her injuries could be permanent and disfiguring.”

The extent of damage Perez had inflicted led prosecutors to charge him with not only battery with substantial bodily harm, but also mayhem. The elements for substantial bodily harm are: "Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or prolonged physical pain." Mayhem, in contrast, is defined as “unlawfully depriving a human being of a member of his or her body, or disfiguring, or rendering it useless..." Prosecution argued that it was quite obviously a case of domestic battery with substantial bodily harm, but also that it was mayhem in that he left her face, nose, and jaw useless until plastic surgery could correct it.

Perez argues that he could not be convicted of both battery constituting domestic violence with substantial bodily harm and mayhem, as they are mutually exclusive charges. In addition, the elements to prove substantial bodily harm are first needed to prove mayhem, supporting his claim that they must be mutually exclusive. Separate and distinct acts can support multiple convictions for two mutually exclusive offenses, but the Court found that it was the same action of beating his victim that caused these two charges. Thus, the Court reversed his conviction of battery constituting domestic violence with substantial bodily harm, as it was the lesser penalty, in favor of keeping the higher mayhem charge. Perez brought a variety of other claims about prosecutorial misconduct and cumulative error, but the Court reversed and remanded for the particular issue of the mutually exclusive charges.

RODNEY WILSON  VS. STATE OF NEVADA

(Court of Appeals Order affirming) 

Appellant Rodney Wilson appeals under NRAP 4(c) from a judgment of conviction, pursuant to a jury verdict, of burglary, theft, and possession of a dangerous weapon.

A motel manager who knew Wilson testified that Wilson had approached him outside of the motel and asked for money. The manager refused and Wilson left. A security guard for a business across the street then noticed an African-American male enter the office, and soon leave with a cash register. The guard then viewed a vehicle drive from the parking lot. He called 911. A police officer saw a vehicle that resembled the description provided to 911, and followed the vehicle as it attempted to flee. The vehicle crashed, the driver fled on foot. Additional officers arrived and a K-9 unit discovered Wilson. He was then taken into custody. The stolen cash register and bag were discovered in Wilson's vehicle. The officer conducted a search incident to arrest and located brass knuckles in Appellant’s shorts pocket. Wilson admitted to an officer he had been driving the vehicle and, when questioned about the motel theft, Wilson responded "times are hard." During the interview, he admitted to being the driver of the vehicle and to possessing brass knuckles.

Wilson argued the district court erred by failing to grant a mistrial when a State's witness mentioned she found a toy gun in Wilson's vehicle. Wilson also argues the district court's admonition to the jury to disregard the statement was insufficient because it directed the jury to disregard mention of a gun, rather than the toy gun the witness had mentioned.

The record demonstrates that both parties had agreed not to discuss the toy gun that was discovered in Wilson's vehicle, but a crime scene analyst mentioned it during her testimony. Wilson immediately objected and moved for a mistrial, asserting the jury may believe Wilson used the toy gun during the commission of the crimes. Defense argued that the jury can infer that the Wilson may have possessed a 'gun' and therefore was more dangerous and/or more likely to commit the crime.

The district court concluded the statement was inadvertent and so brief that a mistrial was not warranted. Given the district court's denial of the motion for mistrial, the defense requested a curative instruction and the district court instructed the jury to disregard the witness' statement regarding the gun. The judgement was affirmed accordingly.

DEVION LAWRENCE VS. STATE OF NEVADA

 (Court of Appeals Order affirming) 

Appellant Devion Lawrence appeals from a Supreme Court order denying his motion to modify sentence. Lawrence asserts his sentence should be modified because the district court failed to make the factual findings about his non-existent criminal history, as required by NRS 193.165 before imposing the deadly weapon enhancement. In a prior appeal, the Supreme Court found that the district court had erred in not making a factual finding according to the statute and Mendoza-Lobos vs. State (factual findings must be recorded with the court for each factor of the deadly weapon enhancement statute), but still found that this error was not to Lawrence’s extreme detriment. Accordingly, Lawrence asks the Court of Appeals to modify his sentence of 14 years (144 months sentence and 26 months for the deadly weapon enhancement) to a term of 1 to 6 years.

The Court of Appeals found that Lawrence's claim fell outside the narrow scope of claims permissible in a motion to modify sentence because it did not allege that his sentence was based on mistaken assumption about his criminal record, but that these findings were not accurately documented with the court. This again did not result in extreme detriment to him or his sentence, and therefore he is not warranted relief. The Court of Appeals affirmed his conviction sentence and denied his motion.

DANIEL PORTER VS. STATE OF NEVADA

(Court of Appeals Order affirming) 

Daniel Sylvester Porter appeals from a judgment of conviction pursuant to a jury verdict of sexual assault with use of a deadly weapon, battery with intent to commit sexual assault with use of a deadly weapon, first degree kidnapping with use of a deadly weapon, and robbery with use of a deadly weapon. Porter was accused of stealing a woman's car and sexually assaulting her. On appeal, Porter asserts (1) the district court abused its discretion by denying his motion to continue trial to conduct further DNA analysis; (2) insufficient evidence supports his convictions for sexual assault, kidnapping, and battery: (3) his three convictions for sexual assault were redundant, and (4) his sentence constitutes cruel and unusual punishment.

During trial, Porter informed the court that he would like a continuance so he could acquire his own DNA expert to have the DNA re-tested. The Court denied Porter’s motion because it was untimely made on the first day of trial. Porter was present during the DNA expert testimony and received a copy of the transcript of the hearing. Porter was unable to demonstrate prejudice because he was aware of and in possession of the DNA information for the entirety of his case. Moreover, Porter did not show that had the court granted his continuance, he would have been able to find a DNA expert or secure the re-testing of the DNA. Further, Porter simply could not demonstrate prejudice because there was no indication that a DNA expert called by the defense would have produced information any different than that produced by the State.

Porter also argued that there was insufficient evidence for his convictions. DNA evidence showed Porter as the perpetrator. It was further concluded that the separate sexual assault convictions were not redundant and did not implicate double jeopardy. This was because Porter was found to have committed three distinct acts of sexual assault--digital penetration, anal, and vaginal penetration. Though they were part of the same situational act, each form of penetration is a distinct and separate act in itself. This also proves that his sentence was not cruel or unusual, as he was found guilty on all charges beyond a reasonable doubt. The judgement was affirmed accordingly.

BRUCE SHELTON VS. STATE OF NEVADA

(Court of Appeals Order affirming) 

Appellant Bruce Timothy Shelton appeals from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit larceny, two counts of burglary, and grand larceny.  On appeal, appellant contends the district court erred in admitting evidence of three uncharged prior thefts, in which the appellant allegedly participated, because they were more prejudicial than probative.

At trial, the district court allowed evidence of three uncharged thefts at trial. Prosecution contends that the evidence of the three thefts were needed to show "a motive, plan, or scheme."

According to Petrocelli, this prior bad act evidence was not being used to show Shelton’s propensity to commit crimes. Shelton only called into question the third prong of Petrocelli, that the bad act evidence must be more probative than prejudicial to be admitted. The court concluded that the evidence negated Sheldon's defense that he was simply at the wrong place at the wrong time. The Court of Appeals found that the evidence merely showed that Shelton had played the same role in each of the burglaries, thus proving the probative value of the prior bad acts to the current charged crimes because Shelton had played the same role of the ‘distractor’ while his co-conspirators did the actual burglarizing. The Court of Appeals decided that the district court had not erred in allowing the prior bad act evidence, and affirmed Shelton’s conviction.

BRANDON GUEVARA-PONTIFES VS. STATE OF NEVADA

(Court of Appeals Order affirming) 

Guevara-Pontifes appealed from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping, battery with intent to commit sexual assault, and sexual assault.

Guevara-Pontifes contended that the State mischaracterized the evidence when it described the Sexual Assault Response Team ("SART") examiner's testimony as claiming that the victim's bite mark was the worst she had ever seen, and was so serious that it would be included in future SART training sessions. Mischaracterizing it as the "worst" bite wound that Ms. Bristol "had ever seen" served only to improperly inflame the jury's emotions. The Court of Appeals determined that the witnesses' characterization had no substantial effect on the jury verdict.

Guevara-Pontifes also contends that, at his sentencing hearing, the State impermissibly argued that he should be sentenced more severely based upon his failure to express remorse. The Court of Appeals decided that the State merely argued his defense contained several inconsistencies which should undermine his request for leniency.

Lastly, Guevara-Pontifes argued that text messages translated by the victim should not have been admitted as evidence. The State had the victim translate Mr. Pontifes’ text messages and statements for the State, calling into question accuracy and bias. The Court of Appeals addressed this issue in a footnote and determined that the court did not abuse its discretion in allowing the unorthodox translations in court or the subsequent sentence, as none of the issues he brought up on appeal were found to have no merit. The judgement was affirmed accordingly.

Juvenile Prostitution, Voicemail Evidence, Hearing Miranda warnings, and Obtaining prison records

A.J. vs. 8th Judicial District Court of Nevada

 (Supreme Court Published writ of mandamus granted)

A.J. , age15 at the time of her arrest., was observed by LVPD walking back and forth on the street. At first she refused to give up her name or identifying information, but eventually explained that the past three months she had been working as a prostitute for an older man who had recruited her. She was arrested for soliciting prostitution and loitering with the purpose of prostitution. The State charged her with only obstructing an officer. The case was transferred to the juvenile courts sexually exploited youth calendar. She was adjudicated as a delinquent for the obstructing, receiving 12 months of probation. She was also put into the care of the Clark County Department of Family Services(CCDFS), as well as having conditions placed on her with the Division of Child and Family Services.

A.J. had ran away from the home CCDFS had put her into, and was again stopped for soliciting prostitution to an undercover police officer. A second petition followed for violating her probation curfew and associating with places involved with prostitution. A third petition followed as she ran away again from CCDFS care. The petition cited her for violating probation and being in an unauthorized location.

A.J. files this petition arguing that she should have never been adjudicated, according to protections afforded in NRS 62C.240. A.J. argues that this statute dictates that if the ‘underlying circumstances’ of the arrest involved prostitution or solicitation of a child less than 18 years of age, then there are protections afforded for the minor to exclude any possibility of adjudication, and instead supervision by the juvenile court and a consent decree. It also allows for medical treatment and counseling for these sexually exploited children.

The State argued that this statute needs to be triggered by a specific petition charging for prostitution, so it is up to prosecutorial discretion to decide the charge, which then would call for the NRS protections if necessary. A.J. argued that the legislative history behind the statute does not support that, and the Supreme Court agreed. The ‘underlying circumstances’ of the arrest or charge having a basis in prostitution is enough for NRS 62C.240 to be applied. Though A.J. never got a petition specifically for prostitution, she still should have received the applicable NRS protections as the circumstances she was arrested under involved her prostitution. She should have never been put on formal probation or adjudicated, but instead put under court supervision with a consent decree.

Her petition was granted; her adjudication in juvenile court will be taken back for court supervision and a consent decree, according to NRS 26C.240.

RICHARD DAVID MORROW vs. Warden

(Supreme Court Unpublished order of reversal and remand)

Morrow is an inmate in custody of the Nevada Department of Corrections. This appeal follows from the district court denying Morrows petition for a writ of mandamus concerning access to his inmate prison records. NDOC keeps an Institutional File (I-File) on each inmate, including their legal status, disciplinary activities, other inmate activities, education programs or work programs, Parole Board reviews and inmate correspondence. Inmates are allowed to review their file according to NDOC AR 568.01(1) “for the purpose of challenging the accuracy or completeness of certain non-confidential information contained therein.” Morrow requested to review his file, but documents were omitted. He filed an internal administrative grievance to recover the removed documents. He was denied. He then filed a writ of mandamus to the district court, which they also denied as the respondents seemed to have complied.

The Court reversed the district court’s order denying Morrow's request and remanded it. It was found that Morrow was correct in filing a writ of mandamus for the production of his inmate records, and that the district court was wrong in allowing the respondents to withhold the documents. The district court failed to even analyze the documents to verify if the statute exceptions for withholding even applied to his records. This matter was remanded so another hearing could be held to determine whether the documents Morrow requested implicate NDOC AR 568.02.

TROY RICHARD WHITE vs. STATE OF NEVADA  

(Supreme Court Unpublished order affirming)

White appealed from his judgment of conviction by jury verdict for second-degree murder with the use of a deadly weapon, attempted murder with the use of a deadly weapon, carrying a concealed firearm, and five counts of child abuse, neglect, or endangerment.

White and his wife had become estranged. White found out that she had been dating a mutual friend. He went to her house to talk, and after a heated discussion he shot and killed her. Their friend who had been dating the wife was also shot three times, but survived. White fled to Arizona and turned himself in.

White argued that the murder was a result of prolonged provocation, entitling him to a manslaughter charge under heat of passion theory. The Court found that this claim failed. Text messages showed White being very upset, he still had a ‘cool head’ when he arrived at his wife’s home. It was after the discussion escalated that he shot and killed her, so the prolonged provocation claim was not credible.

White also appealed the district court's decision to allow his text messages from the day of the incident, but not his voicemails from the same day. The voicemails were excluded from the trial as hearsay. White argues that the voicemails qualified for a hearsay exception to prove his state of mind the day of the incident. The Court agreed with White stating that the voicemails did qualify under the hearsay exception and the district court erred.  However, because the text messages already posed by the State in trial adequately showed White's state of mind, the Court concluded it was harmless error.

** Author's Note:  Though the Court affirmed his conviction, it seems problematic that the district court erred in excluding the voicemails in trial. The Court says this error was harmless. However, text messages are indecphierable in interpretation in comparison to a voicemail where the person’s voice and volume give more indication to the person's state of mind, rather than simple words typed out in a text message. The Court claiming that the texts adequately showed White’s state of mind is wrong by assuming the voicemails would not add anything more to White’s defense.

STEVE GARCIA VS. STATE OF NEVADA

(Court of Appeals Unpublished order of affirming)

Appellant Steve Garcia Garcia argued the district court erred in denying his claims of ineffective assistance of trial counsel. Garcia argued his trial counsel was ineffective for failing to exclude evidence related to gang activities. He also asserted the State was improperly permitted to question a detective regarding his status as a member of the gang unit and the detective's conclusion that the victims were not involved in gang activity, which left the impression that Garcia was involved with a gang. Garcia acknowledged his counsel filed a motion in limine regarding this issue, but argued it was filed improperly past the motion deadlines for trial and the district court would have afforded the motion greater consideration if it had been filed in a timely manner. Garcia failed to demonstrate his counsel's performance was deficient or resulting prejudice. Since the court concluded Garcia was not entitled to relief, the judgement of the district court was affirmed.

THOMAS SJOBERG VS. STATE OF NEVADA

(Court of Appeals Unpublished order affirming)

Thomas Justin Sjoberg appealed from a judgment of conviction, pursuant to a jury verdict, of lewdness with a child under the age of 14. Sjoberg argued the district court erred in denying his pre-sentence motion to withdraw his guilty plea. A defendant may move to withdraw a guilty plea before sentencing, according to NRS 176.165, and a district court may grant a defendant's motion to withdraw his guilty plea before sentencing for any reason where permitting withdrawal would be fair and just.

In his motion, Sjoberg asserted he should be entitled to withdraw his plea because his counsel was ineffective for failing to move to suppress statements he made to a Sheriff's Deputy. Sjoberg argued his statements should have been suppressed because he did not voluntarily, knowingly, and intelligently waive his rights because he has hearing difficulties and was not provided with a hearing device or interpreter to permit him to understand the Deputy's questions and the advisement of his Miranda rights. The district court, after reviewing the recorded interview, concluded Sjoberg could hear and understand the Deputy. The district court noted Sjoberg repeated the deputy's questions multiple times during the interview and responded to the questions in an appropriate and coherent manner. In addition, the district court concluded, based upon the testimony presented at the evidentiary hearing, Sjoberg could read lips and he had a clear view of the Deputy's face during the interview. Accordingly, Sjoberg did not demonstrate that the district court abused its discretion by denying his motion to withdraw his guilty plea. Therefore, since Sjoberg failed to demonstrate he was entitled to relief, the judgement of the conviction was affirmed.

GREGORY SQUIRES VS. STATE OF NEVADA

(Court of Appeals Unpublished order affirming in part, reversing in part and remanding)

Appellant Gregory Squires appealed from an order of the district court denying his post-conviction petition for a writ of habeas corpus filed on March 23, 2016. Squires claimed that the district court erred by denying his ineffective-assistance-of-counsel claims.

Squires claimed counsel was ineffective for failing to explain the law to him so he could make an informed choice regarding a plea offer and for failing to inform him about other plea offers. It was concluded that Squires presented specific facts that, if true, would entitle him to relief. While the district court correctly noted there was discussion on the record at calendar call prior to trial regarding plea offers, the discussion does not reveal whether counsel specifically informed Squires of each plea offer made by the State or whether counsel erred by advising Squires to reject a favorable plea offer. Therefore, the district court's determination on this issue was reversed and remanded this case to the district court to hold an evidentiary hearing on this issue. Accordingly, the judgement of the district court was ordered affirmed in part, and remand the matter to the district court for further proceedings.

DANIEL WILSON VS. STATE OF NEVADA

(Court of Appeals Unpublished order affirming)

Daniel Mark Wilson appealed from a judgment of conviction, pursuant to a jury verdict, of causing substantial bodily harm to another by driving a vehicle while under the influence of alcohol and/or controlled substance, and leaving the scene of an accident involving personal injury.

Wilson contended that his conviction should have been reversed due to prosecutorial misconduct. During closing argument, the prosecutor told the jury that "the presumption of innocence no longer applied because the attorney averred that the State had "presented proof beyond a reasonable doubt that [Wilson] committed each and ever[y] element of the crime." The State concedes this was an error. "A prosecutor may suggest that the presumption of innocence has been overcome; however, a prosecutor may never properly suggest that the presumption no longer applies to the defendant." Wilson, however, did not preserve this error for review because he failed to object to the comment in trial. The review of the record showed that he did not demonstrate that the prosecutor's improper comment resulted in actual prejudice or a miscarriage of justice as there was overwhelming evidence of guilt and the jury was properly instructed on the presumption of innocence. Judgement was affirmed accordingly.

JOSE DUPREY VS. STATE OF NEVADA

(Court of Appeals Unpublished order of reversal and remand)

Jose Duprey appealed from a judgment of conviction, pursuant to a jury verdict, for battery with use of a deadly weapon constituting domestic violence and preventing or dissuading a witness or victim from reporting a crime or commencing prosecution. Duprey was arrested for allegedly fighting with his girlfriend and hitting her with a baseball bat. Duprey represented himself. He wasconvicted and sentenced to 10 to 25 years under the large habitual criminal statute. The issue is whether Duprey's waiver of his right to assistance of counsel was knowing, intelligent, or voluntary?

The reason being is that during Duprey's Faretta canvass, the district court did not mention the possibility of habitual criminal adjudication and specifically advised Duprey he was facing a two- to ten-year sentence if convicted of the battery charge. The State filed notice of its intent to seek punishment as a habitual criminal after Duprey's Faretta canvass. The district court never subsequently addressed the habitual criminal notice with Duprey, nor inquired whether Duprey received the notice, nor informed Duprey of the potential sentence he faced under NRS 207.010. The record did not demonstrate he was otherwise adequately informed. In light of said information, Duprey's waiver of his right to assistance of counsel was no longer knowing, intelligent, and voluntary.

Therefore, the judgement was reversed and remanded.

First Amendment Issues with the Amazon Alexa

By Alexis Fisher

How technology influences our lives and infringes on our rights is a question that courts across the county struggle to answer.  In Bentonville, Arkansas, the court was asked to decide whether Amazon had to turn over recordings from the Amazon Echo device located in the home of James Bates.  Mr. Bates is accused of murder after his co-worker, Victor Collins, was found dead in Mr. Bates’ home after a night of partying with another co-worker and Bates.  Bentonville police collected the Echo device as evidence.  The prosecutor subpoenaed Amazon for access to Bates' account information and any recordings or transcripts associated with the Alexa device. Amazon sent the account information but refused to give up any more information than that.  Amazon filed a motion to quash the subpoena arguing customer privacy and that the data/recordings were protected under the First Amendment.

How does the Amazon Echo device work?

The Echo is a device that while on, captures sound awaiting certain command words to activate the Alexa Voice Services (AVS), which runs through a cloud computing service by Amazon.  If you take apart an Echo device, you will find several speakers, microphones, and a small smart computer.  Alexa responds to commands such as "Alexa, what is the weather?" or "Alexa, play music," and responds accordingly.  The Alexa can be programmed further for more actions, such as enabling smart home devices. The worry about this technology stems from its voice activation, the very thing that makes this technology so appealing. The microphones are always on, listening for the activation word, usually “Alexa” or “Amazon” depending upon its programming. After the awake word, it automatically starts recording after the voice command and uploads it into the Alexa app, as well as Amazon's storage cloud.

How is this protected free speech?

The First Amendment guarantees the right of freedom to exercise religion, speech, assembly, and have power of the press. Protected speech can be anything from political beliefs, reading and viewing habits, to the actual words one speaks, withholding hate speech or speech that incites immediate harm or violence to others. Amazon argued that these protected forms of speech may be found on the Echo device, pursuant to its voice activation and expressive content that the user may access through the Echo.

In Amazon’s motion to quash, the company argued that it “seek(s) to protect the privacy rights of its customers when the government is seeking their data from Amazon, especially when that data may include expressive content protected by the First Amendment.”  This expressive content they are trying to protect is the verbal requests posed to Alexa by the user, as well as the expressive material contained within Alexa’s responses, as they are protected speech owned by Amazon.  This is two-fold argument.  For example, Amazon is arguing that if one was to state “Alexa, tell me about ISIS,” that search query question would be protected free speech and Alexa’s answer would also be protected free speech. 

Courts have previously determined that a search engine’s results are protected by the First Amendment, regardless of censorship claims.  Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014). The actual queue of ‘results’ Alexa gives the user, or the actual content Alexa provides, is outright owned by Amazon as they produced it and programmed the shown results for the user.  Langdon v. Google Inc., et al. WL 530156, Civ. Act. No. 06-319-JJF (D. Del. 2007) held that search engine providers have First Amendment protection of their search results.

As for the second issue, whether the user’s question posed to Alexa is protected speech, is not as well defined. Amazon argues that not only the results produced by Alexa, but also the voice recordings and transcripts of the user’s commands to Alexa should also be protected by the First Amendment as these records contain expressive content.  Some courts have agreed with Amazon and found that search terms are protected free speech.  “Amazon and the Intervenors have established that the First Amendment protects the disclosure of individual’s reading, listening, and viewing habits.” Amazon.com LLC v. Lay 758 F. Supp. 2d 1168 (W.D. Wash. 2010). Amazon's motion to quash the search warrant explains further, “Courts have recognized that government demands for records of an individual’s requests for and purchases of expressive material implicate First Amendment concerns.” Such materials and records are expressive in that they may release very private ‘expressive’ information about the individual. Such expressive materials, especially purchases of literature or movies, has been protected in cases such as United States v. Rumely, 345 U.S. 41, 57-58 (U.S.S.C. 1953), McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (U.S.S.C. 1995), and In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Media L. Rep. at 1599-1601 (U.S. Dist. Ct. DC 1998).

Other courts have disagreed and found the actual search history or input to the search engine or device is not protected by the First Amendment.  In United States v. Allen, 53 M.J. 402, 409 (C.A.A.F. 2000), the Court allowed the seizure and use of search history to be used even without a warrant.  The reasoning was that there is little to no reasonable expectation of privacy when using the Internet, as the information is being released to the internet access provider regardless. Therefore, the expectation of privacy is not supported by the First Amendment when using a search engine.

There is an additional issue with devices such as Alexa, however. A device that is always listening for a command word, and then begins a sound recording whenever the command word is given, potentially allows for a lot of intrusion on an individual in their own home.  Modern ‘smart’ electronic devices contain a multitude of data that can “reveal much more in combination than any isolated record,” allowing those with access to it to reconstruct “[t]he sum of an individual’s private life.” Riley v. California, 134 S. Ct. 2473, 2489 (U.S.S.C. 2014).  Amazon argues that First Amendment protection should be extended not only over Alexa’s searches and responses, but as well as the actual recordings and transcripts of what the user is commanding Alexa to do.

Here the issue was not decided by the Arkansas court as the defendant consented to release the recordings and data from his Echo device. If he had not consented, one can wonder if Amazon’s argument against releasing the records would have been successful. Their argument is trying to protect not only consumer rights and privacy, but against infringements upon the First Amendment right to freedom of speech. If Amazon had been forced to give up the information pursuant to the warrant, it could have set a dangerous precedent leading to compromised First Amendment rights for individuals owning any sort of voice activated device - fueling the worry that these devices can be used against them.

Evidentiary Hearings, Miranda Rights, and Victim Testimony

John Henry II vs. State of Nevada

(Court of Appeals Unpublished order affirming in part, reversing and remanding in part)

John Henry II appealed a district court order denying his post-conviction petition for a writ of habeas corpus. Appellant claimed that the district court erred by rejecting his claim that defense counsel was ineffective for failing to investigate the facts surrounding his home invasion charge.

Henry argued that he could not be convicted of invasion of the home because the home was in fact his. The lower court denied his motion pointing out that Henry failed to provide any evidence to support his ownership claim. On appeal, Henry showed that the police used his listed address on his arrest warrant, proving that Henry was a lawful resident of that home. The Court of Appeals ruled that the lower court erred by rejecting the appellant’s claim without conducting an evidentiary hearing and they remanded the matter back.

 

Marshall Prentice vs. State of Nevada    

(Court of Appeals Unpublished order affirming)

Marshall Prentice plead to robbery with the use of a deadly weapon; grand larceny auto; two counts of conspiracy to commit robbery (with the intent to promote, further or assist a criminal gang); robbery with the use of a deadly weapon (with the intent to promote, further or assist a criminal gang); burglary while in possession of a firearm, (with the intent to promote, further or assist a criminal gang); attempted robbery with the use of a deadly weapon (with the intent to promote, further or assist a criminal gang); and murder with the use of a deadly weapon (with the intent to promote, further or assist a criminal gang).  As part of his plea deal, Prentice kept his appellant rights regarding a pre-trial suppression issue. 

On appeal, Prentice asserted the district court erred and his first statement to the detectives should have been suppressed. At the time of the first interview, Prentice was in the hospital and had not been formally arrested. He was not read his Miranda' rights prior to the interview, thus his confession was involuntary and coerced.

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This case raises the question as to "whether a reasonable person in the suspect's position would feel 'at liberty to terminate the interrogation and leave.'"

Prentice voluntarily took himself to North Vista Hospital for treatment of gunshot wounds. Because Prentice had reported he had been robbed and shot, a single police officer in full uniform was dispatched to the hospital to take Prentice's statement. In the hospital room, Prentice confessed to activities which implicated him in the Nettleton shooting.

It was concluded that a reasonable person in Prentice's position would have felt at liberty to terminate the interview and request the officers to leave. Therefore, it was determined that Prentice was not in custody for Miranda purposes when the detectives first interviewed him and accordingly Miranda warnings were unnecessary.

Implicit and explicit promises that mislead a defendant into a confession can render a confession involuntary. Because Prentice was not in custody for Miranda purposes during his first interview with the detectives and because it was concluded his confession was voluntary and not the product of coercion, the Court of Appeals further concluded that the district court did not err by denying Prentice’s motion to suppress and the judgement of conviction was affirmed.

Dillon James Potts vs. State of Nevada

(Court of Appeals Unpublished Opinion order of affirmance)

Defendant Dillon Potts appealed from a judgment of conviction pursuant to a jury verdict of larceny from the person. Potts claimed insufficient evidence supporting his conviction. The victim's testimony was the only evidence presented in support of the charge, but the victim gave contradictory and implausible testimony throughout the trial and often did not make sense. Potts asserted the victim's testimony was not credible because the victim was coached throughout the process by the State. Moreover, the victim was also under the influence of lithium during his testimony.

Despite the inconsistencies of the victim's testimony coupled with her being under the influence of medication, this was not enough to convince the Court of Appeals that he was entitled to relief or that the outcome of his trial would have been different.  The Court of Appeals found that Potts failed to demonstrate he was entitled to relief and ordered his judgement of conviction affirmed.

Right to Post-Conviction Counsel and Correcting Court's Mistake

Guillermo Renteria-Novoa vs. State of Nevada

(Supreme Court Published Opinion order reversing and remanding)

Defendant Renteria was convicted of 36 felony sexual offenses and sentenced to life in prison with the possibility of parole after 85 years. Following the conviction, Mr. Renteria filed a timely pro se post-conviction petition for a writ of habeas corpus and requested counsel be appointed.

Post-conviction counsel is assigned on a discretionary basis by the District Court.  In this case, the district court declined appointing post-conviction counsel because the defendant was not present during the hearing. The State incorrectly claimed that before a defendant can be appointed counsel, they must show that their claim is not “frivolous."  The State was referring to case law which was overturned by repealed law in 1993.  NRS 117.345(2) (1969) was repealed when the legislature changed the standard to a set of discretionary factors, none of which included the word “frivolous.”

The Defendant appealed that decision.  The Supreme Court found the lower court erred as it had already been determined defendant was indigent, had a limited understanding of the law and the English language.  

Linda Rae Cooney vs. State of Nevada

(Supreme Court Unpublished order reversing and remanding)

Pursuant to a jury verdict of attempted murder with the use of a deadly weapon, battery with use of a deadly weapon resulting in substantial bodily harm constituting domestic violence, bribing/intimidating a witness to influence testimony, and stalking utilizing the Internet or network site, electronic mail, text messaging or other similar means of communication. Appellant Cooney argues that the District Court committed a reversible error by allowing the State to admit a 1992 shooting case as evidence during trial. 

In this current case (2011), Ms. Cooney shot her son, Kevin, in the neck at their residence.  After shooting her son, she called her other son, Chris. They engaged in a 16 minute conversation over telephone.  After this conversation, Ms. Cooney called the paramedics.

At trial, the State was allowed to refer to and bring in as prior act evidence a case from 1992.  Ms. Cooney had shot and killed her ex-husband, but she was ultimately acquitted of all charges. The District Court allowed the case to be admitted as evidence during trial because the State used the 1992 case to demonstrate that Ms. Cooney was familiar with firearms, had previously discharged a firearm against another human being, and to establish a reasonable basis for Kevin’s girlfriend (the victim of the stalking charge), to fear Ms. Cooney at the time of the second shooting.

On appeal, the Supreme Court found that the lower court abused its discretion in allowing the 1992 shooting case in trial because the probative value of the 1992 case did not substantially outweigh the danger of unfair prejudice.  The Supreme Court argues that the State could have demonstrated in other methods that the appellant was familiar with firearms without informing the jury that the appellant had shot and killed her ex-husband.

The Supreme Court also ruled that the evidence of the 1992 shooting case was unquestionably and unfairly prejudicial in Ms. Cooney’s current case. The inclusion of the 1992 case does nothing more than to emphasize the Appellant’s bad character and predisposition to commit violence, which may have invariably influenced the decision of the jury. The Supreme Court reversed and remanded the issue and allowed Ms. Cooney to hold another trial. 

Edward Seth Trzaska vs. Clerk of 8th Judicial Dist. Ct. and State of Nevada

(Supreme Court Unpublished order granting petition)

Seeking a writ of mandamus directing the district court clerk to file the petitioner's pro se motion to modify/correct an illegal sentence.  There was confusion at the court about what should happen with these documents.  Appellant Trzaska was in possession of a legal representative to assist him in a pending post-conviction habeas proceeding.  On an unrelated issue, Trzaska filed a pro se motion to correct an illegal sentence.  Instead of filing this motion with the court, the court clerk sent the document to the petitioners’ appointed attorney for post-conviction habeas proceedings.  The motion was dismissed for being a fugitive filing. 

The State argued a motion to modify an illegal sentence was ‘properly dismissed as a fugitive document’ as he had a representative for all post-conviction proceedings, not just for post-conviction habeas proceedings.  However, the motion to correct an illegal sentence was found by the Court to be a separate issue from the post-conviction petition for a writ of habeas corpus.  The Court ruled that the documents at issue had nothing to do with the post-conviction habeas proceedings, and thus the lower court clerk failed in not filing them and was wrong by instead forwarding these unrelated documents to his post-conviction attorney.  The Court grants Trzaska's petition to correct his illegal sentence.

 

 

 

 

Is Your Fingerprint the Golden Ticket for Police?

By Bryanna GuTierrez and Ristenpart Law  

           In 2014, a small circuit court judge in Virginia Beach issued a decision which is quickly being adopted by courts across the country.  The defendant, Charles Baust, was accused of assaulting and strangling his girlfriend.  The girlfriend told police that Baust had a video recorder in the room where the assault took place and that the images were relayed to Baust’s cellphone.  Baust’s cellphone was locked by fingerprint and passcode.  The State filed a motion to compel Baust to give up his passcode and use his fingers to unlock the phone.  The judge granted the State’s motion in part, allowing police to force Baust to use his finger to unlock the phone, but denied compelling Baust to tell the police his passcode (Commonwealth of Virginia v. David Charles Baust, 2014).

            Why is forcing someone to unlock their phone with the fingerprint acceptable, but not forcing them to give up their passcode?  The court in Commonwealth of Virginia v. David Charles Baust, hinged the decision on the word “testimonial.”  The Fifth Amendment to the U.S. Constitution protects all of us from self-incrimination.  An act is "testimonial" when the accused is forced to reveal his knowledge of facts relating him to the offense, or share his thoughts and beliefs with the government.  The court reasoned that forcing Baust to disclose his passcode was testimonial as it was his knowledge.  In contrast, the fingerprint of the defendant, if used to access his phone, is non-testimonial and does not require the defendant to "communicate any knowledge" at all.        

Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forced the defendant to disclose the contents of his own mind.
— Commonwealth of Virginia v. Baust

            Historically, courts have ruled that physical characteristics are not protected by the Fifth Amendment.  The United States Supreme Court has repeatedly decided that the Fifth Amendment privilege offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.

            However, legal experts argue that providing a fingerprint to open access to a phone can be self-incriminating.  In California in 2015, U.S. magistrate Judge Alicia Rosenberg approved a warrant that forced defendant Paystar Bkhchadzhyan to unlock her phone with the touch ID for the FBI.  The judge rejected her attorneys argument that she was being forced to testify “without uttering a word” as unlocking her phone was a form of authentication of its contents. 

            In Illinois 2016, a federal judge denied the government’s blanket request for a warrant to force all individuals in a given location to use their fingerprints to unlock Apple devices in the area.  An Illinois magistrate Judge, David Weisman, determined that the government had not presented sufficient evidence for the request to justify Fourth Amendment (which protects against unreasonable search and seizures) intrusions.  The judge further determined that although a fingerprint is not itself testimony, that it is a “production of information” that results from a person to unlock a device with a finger could be deemed incriminating and accordingly could violate the Fifth Amendment against self-incrimination.

           The problem is that the courts are trying to apply a 225-year-old law to the new and rapidly transforming area of technology and privacy law.  The Founding Fathers did not draft our amendments with the idea that finger scans would grant government access to all aspects of your life contained in a cellphone.  Thus far, the courts have upheld that the Fifth Amendment does not protect people’s right against self incrimination by compelling them to unlock their phones with their fingerprints.

           However, opponents have argued that unlocking a phone is incriminating testimony as it requires a user to authenticate the contents of the device.  Furthermore, opponents have further argued that trying to take an originalist approach by trying to apply the law exactly as it was intended at its creation, may not be all that reasonable as the framers of the Constitution could not have possibly made the law with the thought in mind that over 200 years later in a rapidly changing technological society phones would be unlocked with a fingerprint scan.  

What to do in this situation:

           The best answer is to simply only use a pass code instead of the touch ID to unlock your phone.  Every phone is capable of turning off touch ID.  If typing in a pass code each time is not convenient, shutting down your Iphone completely and then restarting your phone will require your pass code immediately rather than allowing the fingerprint scan to unlock it.  Additionally, if your Iphone is not unlocked for 48 hours or after five bad attempts, it will automatically require the pass code rather than the fingerprint scan.

Opening and Closing Statements, Audio Recordings, and Right to Self-Represent

STATE OF NEVADA vs. STANFORD DEWITT GREENLEE JR.

(Unpublished Court of Appeals order affirming in part, reversing in part, and remanding first-degree kidnapping)

Greenlee was convicted by jury verdict to first-degree kidnapping, battery with the intent to commit a crime, and sexual assault. On appeal, he argued ineffective counsel and the district court vacated his first-degree kidnapping charge and battery with intent to commit a crime. The State appealed and Greenlee cross-appealed from a district court order granting and denying in part a post-conviction petition for a writ of habeas corpus. These appeals both challenge the court’s ruling on ineffective assistance of counsel claims.

The defense theory was consent. In the opening statement, defense counsel stated the victim was asleep during the sexual encounter, thereby negating consent.

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The State’s appeal claims that the court made error in finding the defense counsel’s opening statement as deficient and so prejudicial to the defendant that it required a new trial. The State argues that this was not a deficiency by counsel because, despite the defense counsel's statement "asleep" during opening, the defense did their job in supporting the consensual encounter claim throughout trial.  The State also argued even if defense counsel was ineffective for admitting victim was asleep during sex, it would not have made a difference in the outcome of trial as there was video evidence showing the victim unconscious.

Greenlee cross-appeals on multiple issues regarding his ineffective counsel. Specifically, arguing his counsel failed to object to an illegal sentence for first-degree kidnapping. The district court stated that the victim did not suffer substantial bodily harm as a result of the kidnapping, so his original sentence given to him was improper. He should have been sentenced to life with the possibility of parole after 5 years. The Court of Appeals settles this matter by affirming in part that the district court’s ruling that this sentencing was illegal, but upheld the conviction. The Court also reversed in part and remanded back to the lower court to reinstate the original conviction, re-sentence him correctly on the first-degree kidnapping charge and enter a corrected judgment of conviction.

MARCUS BURRELL vs. STATE OF NEVADA

(Unpublished Court of Appeals order affirming first-degree kidnapping)

Appellant Marcus Lavell Burrell appeals from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit robbery, two counts of first-degree kidnapping, and two counts of robbery with the use of a deadly weapon.

Burrell claims insufficient evidence supports his convictions for first-degree kidnapping. He further asserts that, even if the evidence was sufficient, any movement of the victims was incidental to the robbery and did not substantially increase the risk of harm to the victims and, therefore, his dual convictions for first-degree kidnapping and robbery cannot stand.

The State charged Burrell by information with first-degree kidnapping with the use of a deadly weapon against victims by luring them to the crime scene under the false pretense of purchasing shoes. Once at the location, he and co-defendant pointed guns at victims and took their property. Therefore, the court concluded that the evidence was sufficient to support the convictions for first-degree kidnapping.

RONALD RUETTEN vs. STATE OF NEVADA

(Unpublished Court of Appeals order affirming conviction of trafficking/possession of a controlled substance and stun device)

Pursuant to a jury verdict of two counts of trafficking of a controlled substance and one count each of possession of a controlled substance for the purpose of sale, maintaining a place for the purpose of selling or using a controlled substance, and being a felon in possession of an electronic stun device, Appellant Ruetten appeals to the upper court on several grounds, one of the arguments involves the admittance of audio recordings as evidence during trial.

Ruetten claims that the District Court erred in letting a State witness lay foundation for, and narrate audio recordings of phone calls made by the defendant in county jail. Ruetten claimed that the State's witness, a detective, lacked the sufficient personal knowledge to testify to the voice on the audio recording and that the resulting narrative invaded the province of the jury and reduced the State’s burden of proof. The Court of Appeals concluded that the lower court did not abuse its discretion in holding that the State had met the minimal threshold to admit the voice recognition testimony as evidence.

AMMAR HARRIS vs. STATE OF NEVADA

(Unpublished Supreme Court order of reversal and remand for sexual assault and robbery)

Appeal from a judgement of conviction by a jury verdict on three counts of sexual assault and one count of robbery. Harris claims that the district court abused its discretion by denying his motion for self-representation at jury trial. The district court denied his motion on the basis that Harris lacked the adequate legal skills and knowledge to represent himself.

The Nevada Supreme Court decided that this was an improper basis for denial of the motion. The court determined that the “right to self-representation is an unqualified right, so long as the waiver of counsel is intelligent and voluntary, and "may not be denied solely because the court considers the defendant to lack reasonable legal skills or because of the inherent inconvenience often caused by pro se litigants (litigants representing themselves in court without the assistance of an attorney)" and moreover, “("[A] criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation, as the deprivation of the right to self-representation is reversible, never harmless, error." The court ordered the judgement of the district court reversed and remanded, so Harris can represent himself.

MAZEN ALOTAIBI vs. STATE OF NEVADA

(Unpublished Supreme Court order affirming sexual assault)

This is an appeal from a judgment of conviction, pursuant to a jury verdict. The defendant argued that the district court erred in failing to instruct the jury that statutory sexual seduction is a lesser-included offense of sexual assault with a minor under 14 years of age. The Nevada Supreme Court concluded that statutory sexual seduction was not a lesser-included offense of sexual assault with a minor as it was possible to commit sexual assault without committing statutory sexual seduction. An offense was considered to be “necessarily included” with the offense charged if “the offense charged cannot be committed without committing the lesser offense." Thus, the court ruled the Alotaibi was not entitled to a jury instruction on the subject and affirmed the conviction.

JAVIER RIGHETTI vs. EIGHTH JUDICIAL DISTRICT

(Published Supreme Court Order affirming conviction of murder)

Righetti was charged with murder under three theories (premeditated, felony murder rule, and murder by torture). Righetti plead guilty, admitting to only two theories (murder by torture and felony murder rule). By doing this, Righetti hoped to eliminate the possibility for the death penalty by using precedent established in McConnell and Wilson.

McConnell established that if a defendant is found guilty of first-degree murder under a felony murder theory, the prosecution may not use the same felony underlying felony murder as an aggravating circumstance to make the defendant eligible for death penalty. Wilson followed on the ruling in McConnell, but established that it did not apply where the defendant pled guilty to murder count alleging both felony murder and premeditated murder.

The defendant thought that if he pled guilty to the murder charge, that he was free to choose the theories to base his guilty plea on. The prosecution allegedly did not understand the defendant's plea was to only two theories and filed a motion to set aside the guilty plea. The district court granted State's motion and reset the murder count for trial. The defendant then filed a petition to the Nevada Supreme Court for a writ of prohibition or mandamus directing the District Court to reinstate a guilty plea and vacate a trial date. The Nevada Supreme court affirmed the District Court's decision to dismiss the guilty plea as it established that a defendant “does not have a right to plead guilty à la carte in order to avoid the State’s charging decisions."

STATE OF NEVADA vs. ZACHARY KELSEY

(Unpublished Court of Appeals order affirming in part, reversing in part, and remanding)

The State of Nevada appeals from an order of the district court granting in part and denying in part, a post-conviction petition for a writ of habeas corpus filed on September 15, 2014. At the evidentiary hearing, defense counsel testified he decided to waive closing argument because he did not believe the State's closing argument was very vigorous and believed the State's rebuttal closing argument would be much more persuasive. The district court found that waiving closing argument was ineffective assistance.

The State argues the district court erred by granting the post-conviction petition when it found trial counsel was ineffective for waiving respondent Kelsey's right to present a closing argument. In its order, the district court concluded counsel's decision to waive closing argument was deficient and not a tactical decision. Kelsey demonstrated prejudice because there was a possibility of a different outcome at trial had counsel presented a closing argument. We conclude the district court erred by granting Kelsey's claim that counsel was ineffective for waiving closing argument.

Waiving Counsel, Common Scheme/Plan, Competency and More

JOE HUDSON VS. STATE OF NEVADA

(Unpublished Court of Appeals order of reversal and remand)

An appeal from a judgement of conviction by a jury for battery with the use of a deadly weapon constituting domestic violence (strangulation). Hudson went to trial and was convicted then sentenced as a habitual offender. He claims he did not know of habitual penalty, and thus appealed his conviction as he did not “knowingly, intelligently, and voluntarily” waive his right to counsel when he chose self-representation for trial.

In reviewing the record, the Appellate Court determined Hudson was told by the district court judge of the potential sentences he was facing when he was canvassed regarding rejecting a plea deal. The district court however, did not discuss the possibility of habitual criminal adjudication.  It is not clear that the district court informed Hudson of the possibility of habitual sentencing enhancement in his case.  Therefore, the Appellate Court determined that the record as a whole did not show that his waiver was reasonable—"given the U.S. Supreme Court's mandate that we 'indulge in every reasonable presumption against waiver' of the right of counsel.'" Accordingly, the Court of Appeals ordered that the judgement of the lower court was wrong to accept his waiver of counsel, reversed and remanded for a new trial.

CHARLES BUBAK  VS. STATE OF NEVADA

(Unpublished Court of Appeals order of reversal and remand)

Bubak appealed his judgment of conviction, pursuant to a jury verdict of possessing visual presentations depicting sexual conduct of a child. He appealed because of the district court's failure to hold a Petrocelli hearing and also because of issues with late discovered inculpatory evidence. Bubak says these caused great prejudice in his trial and should have constituted a mistrial.

Bubak's bought a computer a few years back that had the program Limewire installed. 128 empty files were found in the Limewire program, labeled as explicit content concerning minors. These files were admitted into trial without any other supporting remnants of explicit content; and without a Petrocelli hearing to admit it as bad act evidence. The lower court’s reasoning for this error was that the State never filed the evidence according to NRS as bad act evidence, so the court could not hold a Petrocelli hearing to analyze the potential bad acts evidence. The Court of Appeals held that this evidence was improperly admitted.

Police found no other remnants of the empty files, until the night before the States expert witness testified. The expert claimed he found an image of the opening scene of an explicit video depicting child pornography. The defense was told minutes before trial resumed. Defense asked for a continuance to be able to examine the newly found evidence, but the judge rejected as they already knew about the files. The Appellate Court ruled it prejudicial that as the defense could not have their own expert witness examine the evidence and they were not prepared to cross-examine the states witness with this new and inculpatory evidence. The case was reversed and remanded for a new trial in this matter.

JOHN HICKEY VS. STATE OF NEVADA

(Unpublished Court of Appeals order of affirmance)

This was an appeal from an amended judgment of a guilty plea entered for two burglary counts. Hickey claimed that the District Court erred in denying his motion to dismiss the indictment since the state failed to provide reasonable notice of the Grand Jury proceedings. Hickey filed a motion to dismiss the indictment. Prior to the issue being ruled upon, Hickey voluntarily entered a guilty plea. The district court subsequently denied his motion to dismiss the indictment.  On appeal for the denial of the motion, the Court of Appeals affirmed that Hickey had waived his reasonable notice claim by pleading voluntarily.

Generally, entering into a guilty plea takes away the right to appeal anything that occurred before the plea. An exception would be NRS 174.035(3), which allows a defendant entering a guilty plea to preserve their right to appeal in writing on a specific pretrial motion, granted that they have consent of the district court and district attorney.

 

JERBY ALBERTO REYES VS. THE STATE OF NEVADA

 (Unpublished Supreme Court opinion reversal and remand)

Reyes was found guilty of two sexual assaults of minors under the age of 14. One incident occurred in 2006, but was not reported until 2011. The second occurred in 2012. He filed a motion to sever the trials. The court denied on the “grounds that the evidence of the separate crimes would be cross-admissible in the separate trials as bad acts.”

Reyes was accused but never charged with sexually assaulted his ex-girlfriends daughter in 2006. In 2012, he was accused of another sexual assault. Allegedly, he had tried to touch his friend's wife. When she turned him down, he went and assaulted her daughter. The Supreme Court found that each of his crimes were not an “integral part of an overarching plan explicitly conceived and executed by the defendant.” (Richmond v. State). Under NRS 173.115, the acts were not found to be part of a common scheme, and would not qualify as a bad act. The Court determined that a “scheme is a design or plan formed to accomplish some purpose” The Court reasoned that Reyes did not intentionally isolate the second child as his first target was the mother, therefore this was an independent crime from the first sexual assault where he targeted a minor. The Supreme Court reversed and remanded this matter.

FARID ASHRAF  VS. DIST. CT. OF NEVADA

(Unpublished Supreme Court order of affirmation)

Appellant Ashraf was accused with stabbing and killing his wife. He was born deaf, lacked education, and was not able to sufficiently communicate. Asfraf was competency evaluated, deemed incompetent to assist his counsel due to lack of communication, and was sent to Lake's Crossing.  Three and half years later, Ashraf claimed that the district court acted arbitrarily and capriciously by keeping him at Lake's in an attempt to teach him attain competentency. He claims that this delay violated his due process.

If, during the course of proceedings, it is concluded that the defendant has little substantial chance of attaining competency in the foreseeable future, the defendant must be dismissed from charges and put into an mental institution. Ashraf was committed at Lake’s Crossing. They held hearings with the district court every six months to evaluate his progress of competency. 

Ashraf asserts that there was an abuse of discretion at a hearing when the district court concluded that he could be rendered competent in the foreseeable future. He contends that the reports from hospital staff did not show significant improvement, and was supplemented by reports of his own experts and his inability to effectively communicate with counsel over three years of treatment. This demonstrated that his progress towards competency was very low. The Supreme Court still found that Ashraf failed to demonstrate that the lower court abused its discretion in concluding that he would be rendered competent in the foreseeable future. The Supreme Court affirmed the ruling of the lower court.  

Bright-Line Rule, Larceny, Financial hardship and restitution

ANTONI0 DEMAR WOODS v. STATE OF NEVADA

(Nevada Court of Appeals - battery by a prisoner reversed and remanded)

Antonio Woods accepted a guilty plea for battery by a prisoner, but he wanted to withdraw his plea arguing that his counsel was ineffective by advising him to enter the plea under coercion. The district court denied his pre-sentence motion to withdraw his plea.

 On appeal, the court ruled in favor of Mr. Woods due to the district court’s violation of the “bright-line” rule in Cripps v. State.  The “bright-line” prohibits any judicial participation in the formation or discussion of potential plea agreements with the exception that a judge may indicate on the record whether they are inclined to follow a particular sentencing recommendation of both parties. The court found that the presiding judges remarks of "you won't be remanded today" to the appellant during the plea colloquy violated the “bright-line rule.” It constituted judicial participation in the formulation of an answer by the defendant. The judges' remarks had a coercive effect on Mr. Wood’s decision to take the plea by making it appear there was another potential plea offer. The Court of Appeals deems the judges' remarks to be anything but harmless to the defendant and his decision to take the plea bargain, thus they reversed his conviction and remanded his matter as to give him the opportunity to withdraw his plea.

GABRIEL IBARRA v. STATE OF NEVADA

(Nevada Court of Appeals - larceny from the person overturned and vacated)

The appellant approached the victim and asked if he could use her cellphone. The victim eventually agreed and handed Mr. Ibarra her phone. Ibarra talked on the phone and walked away with it. Using an iPhone-tracking application, police found Ibarra and the iPhone in nearby bushes. 

On appeal, Ibarra contends that his conviction of larceny should be vacated due to insufficient evidence at trial to support the charge of larceny. Ibarra also argued that because the victim let him use her phone, he did not take the phone without the victim’s consent. The state, on the other hand, argued that Ibarra used a ruse to take the phone, therefore victim's 'consent' was not knowledgeable.

To prove that a defendant is guilty of larceny from the person the State of must show that the defendant NRS 205.270 (1). 

  1. Took property from the person of another
  2. without the person’s consent; and
  3. with the intent to steal or appropriate the property for his own use. 

Although the facts of the case supports Ibarra’s intent to steal the phone, it does not show that he initially took the phone from the victim’s person without her consent.  The appeals court ruled in favor of Ibarra that there was insufficient evidence to support the jury’s verdict of guilt for larceny from the person and overturned his conviction. 

MIGUEL RAMIREZ v. STATE OF NEVADA

(Nevada Court of Appeals - parole revocation reversed and remanded)

The court heard this appeal from the denial of the petition for a writ of habeas corpus. Ramirez challenged his parole revocation the basis of which was his alleged failure to pay $250 to the court. The defendant argued his due process rights were violated because he had no financial hardship hearing before his parole was revoked. The Court of Appeals found that the district court improperly dismissed his petition as a parole revocation necessitates procedural due process and a hearing for the parolee since there is a loss of liberty involved. The Court reversed and remanded this matter back to the district court.

ROSE SANCHEZ v. STATE OF NEVADA

(Nevada Court of Appeals - burglary conviction reversed and remanded)

Sanchezimage.jpg

The appellant appealed a burglary conviction.  Sanchez entered a guilty plea to this charge of burglary.  During sentencing, the prosecutor argued for restitution for a separate, uncharged burglary. 

Sanchez argued that this restitution the court ordered was an abuse of discretion by the district court, since her deal with the prosecutor led her to believe she would not have to pay for the uncharged, separate burglary. The appellate court in reviewing the record, determined that this separate, uncharged case was not part of the plea deal and not specifically mentioned at the entry of plea. As such, the Court of Appeals reversed the restitution for the uncharged burglary and remanded it back to the district court to amend the judgment of conviction.

The Insanity Defense, Prior Bad Acts, Broken Plea Agreements and Witness Testimony!

VICTOR CRUZ-GARCIA v. STATE OF NEVADA

(unpublished Supreme Court opinion affirming murder conviction)

Cruz-Garcia killed Beatriz Alvarez Torres and inured her two children. He was charged with 1st degree murder and 2 counts of attempted murder. He claimed the insanity defense to these counts, and the jury found him guilty of all charges.

After his conviction, his defense discovered that the State's office had withheld evidence of a rental payment they had made in behalf of the two surviving victims. He filed for a new trial based on this discovery, since it undermines the credibility and the testimony that the victims gave. His second main complaint in his appeal was that the insanity jury instructions were erroneous. 

 

AMADEO SANCHEZ v. STATE OF NEVADA

(unpublished Supreme Court opinion affirming murder conviction)

Amadeo Sanchez was convicted by a jury of first-degree murder with the use of a deadly weapon.  Sanchez allegedly shot his friend who owed him and the cartel drug repayment.

On appeal, Sanchez argued the district court should not have allowed evidence of prior acts (prior drug dealings, alleged physical assault, and cartel involvement.  Also, Sanchez argued that he was not allowed to impeach his wife's testimony regarding prior inconsistent statements.

The Court held that the testimony regarding prior bad acts was admissible under the "res gestae" doctrine NRS 48.035(3) finding that the "testimony was necessary to paint a complete picture of the crime" as the State was charging under both theories of first-degree murder and felony murder rule.

The Court also ruled that the prior inconsistent statement was inadmissible hearsay as Sanchez's wife told police she "had heard Carter [victim] had shot someone in the head or something like that."

Lastly, appellant argued that there was a problem with the jury instructions, specifically that the felony murder instruction should not have been included as the only evidence to support the felony murder theory was the prior bad acts.  The Court disagreed finding that "here was substantial evidence to justify a felony murder jury instruction."

 DEREK CONSTANTINO v. WARDEN

(unpublished Court of Appeals opinion affirming in part, reversing in part)

Constantino had entered into a plea agreement with prosecution.  He accepted their deal in return for early parole eligibility.  He filed a post-conviction writ of habeas corpus in district court arguing the State reneged on the plea deal and wanted to withdraw his guilty plea.  In addition, Constantino argues that the Nevada Department of Corrections (NDOC) improperly calculated his parole eligibility date. 

The Court of Appeals held that "because parole is an act of grace of the State, this renders Constantino's challenge to the calculation of his parole eligibility date moot as the only remedy available would be to order the parole board to conduct a hearing." (NRS 213.10705)  As the Court had no authority to order this and there is no statute or case law authority permitting a retroactive grant of parole, the Court denied this claim.

The Court did reverse and remanded Mr. Constantino second claim because the petition should have gone to the county where he was convicted.  White Pine mistakenly ruled on the issue when this case was actually from Washoe County.  The Court remanded for further proceedings on that issue with Washoe County.

 ANTONIO CASTILLO v. STATE OF NEVADA

(unpublished Court of Appeals opinion affirming battery convictions)

Antonio Castillo moved for mistrial after his judgment of conviction, on the basis of witness testimony prejudicing the jury. The jury had convicted him of battery with a deadly weapon causing substantial bodily harm, another count of battery with a deadly weapon but with the intent to promote and assist criminal gang activity, and also two counts of discharging a firearm into a structure with the intent to promote gang activity.

Castillo argues to the Court of Appeals that the district court erred in denying his motion for mistrial. The motion was brought forth after a witness was asked why she was not afraid, to which she replied "because most of them are in prison, and I don't have to worry about the 3 that are not." This statement put into question his custodial status in front of the jury, resulting in a mistrial because the jury could take this testimony to mean he is already in custody and therefore is guilty.

The district court did instruct the jury, "Do not allow whatever you think you heard her say affect your deliberations or thought process or decision-making in this case whatsoever in any manner."  Her statement was struck from the record.  The Court of Appeals upheld the ruling by the lower court and denied his claims for a mistrial.  The Court opined that the mistrial denial was justified because the statement was struck from the record.  The Court also pointed out that most of the jury did not even hear the statement in the first place as the record showed several jurors asked to hear the statement again that they were instructed to ignore.  The Court denied theappeal because Castillo did not prove how the testimony could have prejudiced the jury.

Inattentive Driving - New law to protect society or new way for police to stop whoever they want?

On August 1, 2016, a new law titled "Inattentive Driving" or also known as "Distracted Driving" took effect in Reno, Nevada.  This law states:

"No person while driving a motor vehicle may be engaged or occupied with an activity, other than driving the vehicle, that interferes or reasonably appears to interfere with the person's ability to drive the vehicle safely."  Reno City Code Sec. 6.06.725

It is punishable with up to a fine of $305.00.  The City of Reno states that this law is necessary because it will stop drivers from distracting behavior like grooming, eating, brushing their teeth while driving.  Police warn that they will also be looking for any distracting behavior like pets in the vehicle and/or children as that can take away the drivers attention.

inattentive driving distracted driving

The DMV of Nevada states:

"There are three main types of distraction:
• Visual — taking your eyes off the road
• Manual — taking your hands off the wheel
• Cognitive — taking your mind off driving."

The DMV also states that "talking to passengers, changing the music station, using a PDA/navigation system" are all distracting activities.

inattentive driving distracted driving

This is a classic example of law with good intentions, but so horribly written that it is vague and unconstitutional.  Let's start with the basics...how are we as society to know what is "distracting behavior?"  For example, I am driving with my hands at 10 and 2 while listening to Siri guide me to my destination.  Would it be inattentive driving because I am listening to directions?  This law does not give us any guidance as to what is defined as distracted behavior. 

This inattentive driving law allows police officers arbitrary discretion in how to enforce this law when picking and choosing who to pull over.  Police just have to state "I pulled over the suspect because she was looking to the right of the vehicle and appeared to not be concentrating on driving."  This gives police officers blanket probable cause to stop anyone and everyone.

inattentive driving distrated driving

Lastly, prosecution and defense of this new law will be problematic.  How does a prosecutor prove that you were distracted?  It will be the police officer's word against the driver.  Police officer says you looked distracted, had your mouth open, and appeared to be talking.  Your defense is that the officer was mistaken, you were not talking but focusing on the road.  Without any concrete evidence (pictures, video), prosecution is going to have a hard time proving beyond a reasonable doubt that you were distracted.  Conversely, defense will forced to argue against nebulous allegations.  Here, maybe your mouth was open because you are a mouth breather or had a cold, not because you were talking. 

Inattentive driving law is a bad law that must be challenged. 

If you are charged with inattentive (distracted) driving, call Ristenpart Law to fight against this law and these charges.  

Trial Taxes, Definition of Firearm Discharge, Limited Powers of P&P

State of Nevada v. Eighth Judicial District Court/Schneider

(published opinion affirming DUI conviction)

Ms. Schneider, accused of misdemeanor DUI, was found guilty after bench trial.  Before any argument at sentencing, the justice court remanded Ms. Schneider to jail to serve the remainder of the 48 hours jail time.  Ms. Schneider argued for the alternative 48 hours of community service as provided by NRS 484C.200(1)(a)(2).  The justice court policy at the time was to always sentence those who went to trial to 48 hours jail time and not give the option of community service.

Drunk driving

Schneider argued on appeal that the sentence was biased punishing her for "trial tax" and the judge abused his discretion.  The Court disagreed and ruled that the judge did not abuse his discretion in predetermining a sentence because the option was allowed for by law.

McNeill v. State of Nevada

(published opinion reversed Lifetime Supervision Violation and remanded)

Homeless

A convicted sex offender and homeless individual under lifetime supervision allegedly violated his restrictions and was charged with violating lifetime supervision conditions.  He was convicted and appealed on the grounds that the restrictions imposed on him by the State Board of Parole & Probation were overstepping into legislative function when it added conditions such as curfew, restricting his movement in sleeping arrangements, and drug testing. 

The Court reversed and remanded his convictions ruling NRS 213.1243 (conditions for lifetime supervision) does not enumerate powers for the P&P to impose additional conditions other than what the statute states.  Any discretion in these conditions would allow P&P to overstep their authority and legislate themselves.

Martinez-Hernadez v. State of Nevada

(published opinion reversing writ dismissal)

Martin-Hernadez was found guilty by a jury on assault with deadly weapon.  Sentenced to probation with 12-36 months suspended.  Martinez subsequently violated his probation and he stipulated to revocation.  While in prison, Martinez filed a writ petition for ineffective assistance of counsel and appeal deprivation.  Martinez was released and completed parole while his writ was progressing through the court system.

Probation

The State argued that because Martinez had already finished his sentence the writ was moot.  The Court disagreed and ruled "a post-conviction petition for writ of habeas corpus challenging the validating of a judgment of conviction challenging the validity filed while the petitioner is imprisoned or under supervision as a probationer or parolee does not become moot when the petitioner is released if there are continuing collateral consequences stemming from that conviction.  A criminal conviction creates a presumption that continuing collateral consequences exist."

Washington v. State of Nevada

(published opinion affirming discharge of firearm convictions)

In the early morning hours of November 5, 2013, Marque Hill, LaRoy Thomas, Nathan Rawls, and Ashley Scott were asleep in an apartment in Las Vegas when they were awakened by gunshots being fired into the apartment in rapid succession.  Scott was shot in the foot, Thomas shot in the ankle, and Rawls was killed.  Washington was then arrested and charged with ten (10) counts of discharging a firearm into a structure.  Washington was convicted of all ten counts.

On appeal, Washington argued double jeopardy precluded him from being charged and convicted on ten separate counts of discharging a firearm in rapid succession.  The Court ruled that Washington's argument actually raised an issue of redundancy versus double jeopardy. 

Cornella v. State of Nevada

(published opinion affirming vehicular manslaughter conviction)

hit and run, bike, vehicular manslaughter

Cornella was charged with both failure to yield and vehicular manslaughter after running through a stop sign and hitting and killing a 12 year old girl on her bike.  She succeeded in getting the first charge of failure to yield NRS 484B.257 dismissed on the grounds that the girl was on a bike and this did not meet the legal definition of "motorized vehicle" as defined in NRS 484A.320. 

Cornella was found guilty of vehicular manslaughter (NRS 484B.657(1)).  On writ of certiorari, Cornella challenged NRS 484B.657(1) for being too vague in vehicular manslaughter requiring an "act or omission" and "simple negligence."  Cornella also argued that simple negligence was insufficient to impute criminal intent. 

The Court held that act/omission as used in NRS 484B.675(1) equated to a traffic law violation.  The Court also ruled that simple negligence is the same as ordinary negligence as previously defined in Driscoll v. Erreguible (Nev. St Ct. 971).  The Court determined that the statute was not vague and that in the public welfare context, mere simple negligence is sufficient for criminal liability.  

McNamara v. State of Nevada

(published opinion affirming first degree kidnapping causing substantial bodily harm conviction)

kidnapping las vegas

James McNamara kidnapped and beat Kathryn Sharp in Illinois.  McNamara and Sharp then flew to Las Vegas.  Mrs. Sharp had wounds from the prior beating in Illinois that became badly infected.  While in Vegas, McNamara prevented her from seeking medical treatment.  McNamara was arrested in Nevada and charged with first degree kidnapping causing substantial bodily harm.  McNamara argued Nevada did not have jurisdiction because he did not cause the substantial bodily harm in the state of Nevada as the beating took place in Illinois.

The Court ruled that although McNamara did not beat Sharp in the state of Nevada, the fact that he precluded her from seeking medical treatment constituted substantial bodily harm in which Nevada has jurisdiction over. The Court interpreted NRS 171.020 "Not [to] require that there be partial execution of the actual crime" within Nevada, but rather that NRS 171.020 "only requires some carrying out of the criminal intent" within Nevada.  Nevada courts obtain territorial jurisdiction when proven by preponderance of the evidence that (1) a defendant has criminal intent (irrespective of where it was formed) and (2) he or she performs any act in this state in furtherance of that criminal intent.  

Manning v. State of Nevada

(published opinion reversing battry with intent to commit robbery conviction and remanding for new trial)

Robbery, battery

Manning roughly pushed past an old man, who fell to the ground and claimed that he felt a hand in his pocket as he was being pushed.  As a result, Manning was charged with robbery and battery with intent to commit a crime of robbery.  Manning's defense was that he roughly brushed past the man, but never tried to commit a robbery.  Defense counsel had requested a lesser included instruction of simple battery which judge denied.  The jury found Manning not guilty of robbery, but guilty of battery with intent to commit a crime of robbery. 

The Nevada Supreme Court reversed and remanded the case holding that the lower court should have provided the simple battery instruction.

Suspect PSI, Preliminary Hearing Power, and Definition of Possession...

Leron Blankenship v. State of Nevada (published opinion reversing and remanding for new sentencing)

Defense attorney argued at sentencing that the Division of P&P scoring calculation was based upon suspect and incorrect information (specifically not taking into account Mr. Blakenship was unemployable due to mental health disability).  He was penalized 6 points for being "unemployable" which put him in the borderline category and the recommendation was for prison.  With the 6 points, he would have been recommended for probation.

"The error must be such that it taints the PSI sentencing recommendation considered by the district courts."  The Court found that this error tainted the overall recommendation and sent it back for a new sentencing. 

** Some great explanation of how the Division scores and categorizes (pg.7-8)

Anthony Castaneda v. State of Nevada (published opinion overturning 14 out of 15 convictions for possession of child pornography)

Mr. Castaneda was charged with 15 counts of knowingly possessing child pornography.  He was convicted at jury trial.  On appeal, Mr. Castaneda argued that the State only proved a singular act of digital possession as the images were all seized on the same day.  The State argued that the word "any" in NRS 200.730 makes it a crime to possess every single photograph depicting child pornography "per-image based."  The Court found the State's argument flawed "this does not mean that each additional image possessed necessarily gives rise to a separate prosecutable offense." 

The Court ultimately overturned 14 of the convictions because it found the State failed to prove individual distinct crimes of possession as no evidence distinct downloads or in different locations.

Quinzale Mason v. State of Nevada (published opinion affirming conviction but remanding with instruction for corrected judgment)

Mr. Mason was found guilty at jury trial for numerous offenses attributed to firing a gun outside an apartment building, which missed the intended target and ricocheted, injuring a girl nearby.  On appeal, Mr. Mason argued that the district court erred at sentencing by failing to pronounce the aggregate minimum and maximum terms of imprisonment as required by NRS 176.035(1).

The Court agreed that the district court failed to do so and remanded for a corrected judgment.

Lecroy Grace v. 8th Judicial District Court (petition for writ of mandamus granted challenging a district court order reversing a justice court's order of suppression)

Mr. Grace was arrested an alleged probation violation.  During search incident arrest, an officer observed a baggie containing a white substance around Mr. Grace's foot.  Mr. Grace was charged with one count possession of a controlled substance.  The matter went to preliminary hearing and at the hearing, Defense orally moved to suppress the baggie of cocaine arguing no lawful arrest because the State filed to introduce evidence of Mr. Grace's probation violation, the claimed original reason for the arrest.

The State argued that the justice court lacked the authority to hear and rule on suppression issues.  The justice court ruled it did have authority and granted suppression.  The State appealed to the district court which overturned the suppression stating that the justice court did not have authority to decide suppression issues.  Mr. Grace filed this writ of mandamus asking for an order from the NV Supreme Court vacating the district court's order.

The Court found that justice courts do have the power to make determinations about the legality of proffered evidence at a preliminary hearing.  "We conclude that the justice courts have the power to suppress illegally obtained evidence because:

  1. NRS 47.020 and NRS 48.025 expressly authorize justice courts to do so;
  2. NRS 171.206 and Sargent show that justice courts have limited inherent authority to do so; and
  3. NRS 189.120 (which allows State to appeal a suppression issue at preliminary hearing), A.B. 65 (2007), and A.B. 193 (2015) show that the Legislature envisions justice courts as having that power."

Jury Misconduct... Incarcerated because Pregnant... Reckless Driving & More

Fredrick Bowman v. State of Nevada (published opinion reversing conviction and remanding for new trial because of jury misconduct - aka Ristenpart Law Won)

Defendant Bowman was arrested for a disturbance at a casino.  He was transported to Washoe County Jail and in the booking process, a small baggie of drugs were found on the floor near Mr. Bowman.  The State argued that the drugs fell from Mr. Bowman as the deputy was searching him.  Defense argued that the deputy inadvertently tracked the drugs into the booking room on the bottom of his police work boot.  The trial lasted 3 hours.  Jurors deliberated for 3 hours and indicated they were split 50 for guilt and 50 for acquittal.  District judge sent the jurors home to start deliberations again in the morning.  District judge failed to instruct jurors that they were not allowed to do independent research or experiments. 

At home, two different jurors conducted independent experiments regarding the State's and the Defense theories.  These jurors came back, the information was communicated to the other jurors at some point and the jury convicted.  Defense filed a motion for a new trial based upon the jurors' misconduct which was denied by the district judge. 

The Court held that the district judge erred in denying Mr. Bowman's motion for a new trial.  The Court held that it was "patently prejudicial for the district court to fail to give a jury instruction sua sponte prohibiting jurors from conducting independent research, investigations, or experiments."

The Court states "given the ease with which jurors may conduct independent research, investigations, and experiments, failure to give an instruction prohibiting jurors from such conduct in any civil or criminal case constitutes plain error."  The Court further states such an instruction should make clear jurors are not to:

  1. communicate with anyone in any way regarding the case or its merits - either by phone, email, text, Internet, or other means
  2. read, watch, or listen to any news or media accounts or commentary about the case
  3. do any research, such as consulting dictionaries, using the Internet, or using reference materials
  4. make any investigation, test a theory of the case, re-create any aspect of the case, or in any other way investigate or learn about the case on their own.

Justin Kelley v. State of Nevada (published opinion reversing reckless driving conviction)

Mr. Kelley, while driving an ATV, led police officers on a chase through the wilds of Wells, Nevada.  Defendant Kelley was charged with eluding a police officer (felony NRS 484B.550(3)(b)) and reckless driving (misdemeanor NRS484B.653(1)(a)).  Mr. Kelley plead no contest to the misdemeanor charge of reckless driving and then filed a motion to dismiss the felony eluding charge under Double Jeopardy theory arguing reckless driving was a lesser offense of eluding.  District court denied the motion.  Mr. Kelley plead guilty to the felony eluding charge. 

The Court examines the elements of reckless driving and eluding.  Under the Blockburger test, the Court determined that reckless driving is a lesser offense of eluding an officer charge.  As such, Mr. Kelley could not be punished for both crimes.

Since Mr. Kelley has already been convicted of the lesser, his conviction for the felony eluding violated double jeopardy and the Court reversed his conviction for eluding.

Lindsie Newman v. State of Nevada (published opinion affirming convictions)

Ms. Newman was on probation for a gross misdemeanor conspiracy to commit grand larceny when she picked up and pled to a new felony charge possession of a controlled substance.  She was placed on probation again for the new case.  During this time, Ms. Newman became pregnant.  Subsequently, Ms. Newman was suspected of violating her probation by possessing and using drugs.  At the probation revocation hearing, the district judge had to decide whether to run her sentences consecutively or concurrently.

The district judge stated his main concern was that Ms. Newman "stay in custody long enough for that child to be born."  The district judge decided to run the sentences consecutively because "I don't want to see you out doing anything until that child is born."  Ms. Newman appealed arguing it was an abuse of discretion for the district judge to sentence her to longer incarceration because she was pregnant.

The Court held that the district judge did not abuse discretion because the district judge considered several other factors (namely the nature of the crimes, the probation violations, and the several chances at reinstatement) when deciding to run the sentences concurrent.  The Court distinguished this case from a case in New Jersey where that court incarcerated a pregnant defendant charged with welfare fraud and agreed to release the woman once she had the baby.  Here, the Court found that Ms. Newman's pregnant status was not the only thing the district court considered so not abuse of discretion.

The Court makes a very strong statement "our decision is based solely upon the unique facts of this case.  Nothing in our opinion today should be construed to indicate that courts should consider a defendant's status as a pregnant addict when imposing a sentence."

Edmond Paul Price v. State of Nevada (unpublished opinion ordering limited remand for more facts whether Interstate Agreement on Detainers was violated)

In 2010, Mr. Price allegedly participated in a robbery and kidnapping with use of deadly weapon.  Mr. Price was in a California prison on unrelated matters when the Nevada district attorney decided to charge him for the above allegations.  In February 2011, the district attorney requested a retainer be lodged against Price.  On February 23, 2011, Mr. Price demanded a timely disposition of the matter under the Interstate Agreement on Detainer Article III under which the State has 180 days to bring the defendant to trial.  If the State fails to meet this requirement and time frame, then the case must be dismissed.  Mr. Price ultimately went to trial two years later in May, 2013.

The Court does a lengthy review of the court records to determine when the 180 days started and if they were tolled or suspended for any reasons.  The Court ultimately decided that there were insufficient facts in the record regarding the timing and reasoning for the trial date.  The Court ordered limited remand to determine whether Mr. Price's IAD right to a speedy trial was violated.

 

 

 

 

Premeditation for Murder? Kidnapping? Medical Exception to Sexual Assault? All Answered by the Nevada Supreme Court

Leonardo Cardoza v. State of Nevada (unpublished opinion reversing in part and remanding)

Defendant Cardoza had been drinking alcoholic beverages when he followed a girl and her boyfriend home in an alleged road rage incident and ran her over, killing her.  Cardoza was charged with first-degree murder with the use of a deadly weapon.  He was convicted at jury trial and his appellate attorney argued that the judge erred in instructing the jury on the elements for first-degree murder. 

  • The trial judge used an instruction similar to an instruction in Kazalyn v. State (1992) which impermissibly conflated the concepts of deliberation and premeditation, thus blurring the distinction between first- and second-degree murder.  The Court reiterated the only instruction that courts should use was set out in Byford v. State (2000).
  • The Court found this reversible error because the evidence of deliberation was not overwhelming (drunk, wandering around outside the vehicle after striking victim, crashing into fence, and stumbling back into victim's home) and the jury may not have found Cardoza guilty of first-degree murder had it been instructed that he must have weighed the reasons for or against his action and that an unconsidered and rash act is not deliberate per the Bydford instruction.

Michael Schofield v. State of Nevada (published opinion, kidnapping conviction reversed)

Defendant Schofield was accused of first-degree kidnapping for his son, Michael, whose legal custody belonged to ex-wife/mother.  During a visit with his son, Schofield ordered Michael to go into a grocery store with him.  Michael refused and tried to run away.  Schofield caught up with Michael, put him in a headlock or chokehold, dragged Michael outside, and threw Michael into his van.  Schofield was stopped by neighbors.  Schofield was charged with child abuse, domestic violence (strangulation), burglary, and first-degree kidnapping.  A jury convicted Schofield of child abuse and first-degree kidnapping, but acquitted him on domestic battery (strangulation) and burglary. 

  • On appeal, Schofield argued that the phrase "intent to keep" in the first-degree kidnapping statute NRS 200.310(1) was ambiguous and that there was insufficient evidence to support a kidnapping conviction.
  • The Court examines the word "keep."  Schofield argues that it means "permanently or for a protracted period of time."  The State argued keep meant "possess for any amount of time against a legal guardian's wishes."
  • The Court, using the rule of lenity in statutory interpretation, ruled "intent to keep" requires "an intent to keep a minor permanently or for a protracted period of time."
  • The Court, in examining the trial facts, found that no rational juror, beyond a reasonable doubt,could have found that Schofield intended to keep Michael permanently or for a protracted period. 

Donald Taylor v. State of Nevada (published opinion, affirming conviction for murder and robbery with deadly weapon)

Defendant Taylor was accused of robbing a drug associate and killing him during the robbery.  One eyewitness to the incident testified that she had turned her back prior to hearing the shooting.  The witness changed her identification of Taylor from "just [did not] recognize that to be him" to "it looks like him" after several pressing questions from the officer asking her to "focus" on the identification.  Another witness was asked to identify Taylor with a single picture of Taylor (aka single show-up). 

Investigating officers located a phone number in the deceased's cell phone that was linked to Taylor.  Officers retrieved Taylor's historical CSLI (cell phone location information) which shows incoming/outgoing calls and text messages, times, dates, duration of each, and the location of the cell towers routing the calls.  Officers did not get a warrant for the historical CSLI information.  The State introduced this evidence to show Taylor was in the area at the time of the murder and made prior calls to the victim. 

  • Taylor appealed arguing Fourth Amendment violation for the warrantless retrieval of the historical CSLI information.  The Court held that a warrant is not required for historical CSLI information as the police obtained a 18 USC Section 2703(d) order and listed "specific and articulable facts."
  • "Because Taylor does not have a reasonable expectation of privacy in business records made, kept, and owned by his provider, Sprint-Nextel, a warrant requiring probable cause was not required before obtaining that information."
  • Taylor also challenged the out-of-court and in-court witness identification.  The Court found that "exigent circumstances justified the show-up identification procedure.  Specifically, the show was necessary to quickly apprehend a dangerous felon." 
  • Lastly, the Court examined the prosecutor's closing PowerPoint where a slide had the word "GUILTY" superimposed on it.  Found that it did not deprive Taylor of a fair trial as "a photograph with the word 'guilty' across the front shown during closing arguments is not, on its own, sufficient for a finding of error." 

James Johnson v. State of Nevada (unpublished opinion affirming conviction)

Defendant Johnson was convicted of numerous counts alleging sexual assault and lewdness of a child under the age of 14.  Johnson's main appellate argument was that the trial court abused its discretion by allowing expert testimony regarding "grooming."

  • The Court held that district court did not abuse its discretion by admitting this testimony as it could aid the jury in "assessing the victim's resistance and delaying a victim's disclosure" and was relevant to assist the jury in "assessing the victim's credibility."

Joshua Jones v. State of Nevada (unpublished opinion affirming conviction)

Defendant Jones argued that the evidence presented at trial was insufficient to support the jury's finding of guilt for the crime of obtaining money under false pretenses and that separate acts cannot be aggregated to achieve the amount of $650 under NRS 205.380.  Jones was incarcerated and, via recorded phone jail calls, told his girlfriend to continue to file and collect his unemployment benefits for him.  Jones received nine (9) weekly payments totaling $1440. 

  • The Court found a jury could reasonable infer from this evidence that Jones, counseled, encouraged, hired, commanded, induced or otherwise procured another to obtain more than $650 by false pretenses.
  • Jones failed to raise the aggregation argument at trial so the Court refused to consider that argument. 

State of Nevada v. Dwight Solander and Janet Solander (unpublished reversal and remand)

The Solanders won a pretrial writ of habeas corpus after preliminary hearing by arguing the insertion of a catheter into the urethra of a minor under the age of 14 cannot constitute sexual assault.  The district court agreed and the State appealed the decision.  The Solanders were foster parents accused of catheterizing three foster girls as a form of punishment for urinary incontinence.  The Solanders denied catheterizing the girls, but argued that even if they did, it was for a legitimate medical purpose and without sexual motivation.  The trial court concluded that the statutory meaning or legislative intent of sexual assault did not include insertion of a catheter.

  • The Court examined NRS 200.366 (defines sexual assault) and NRS 200.364 (defines sexual penetration).  In 2015, state legislation amended NRS 200.364(5) to add "the term sexual penetration does not include any such conduct for medical purposes."
  • The Court concluded that neither "sexual assault" nor "sexual penetration" includes an element of sexual gratification or motivation.  The Court compared these statutes to NRS 200.364(6) which defines "statutory sexual seduction" as that statute expressly requires sexual motivation in addition to sexual penetration.
  • The Court rejected the Solanders' argument that the catheterization was for legitimate medical purposes as the preliminary hearing transcript showed that Solanders committed the catheterization as a form of punishment, not medical use.  "The reasons why a catheter was used, and the manner in which it was used, are questions of fact for the jury, not the court, to decide."

 

 

The Latest and Greatest NV Supreme Court Hits

Jason Duval McCarty v. State of Nevada (death penalty case reversed and remanded new trial)

McCarty was charged with killing two women.  McCarty denied killing the women or being present when they were killed, instead implicated Dominic Malone, but McCarty admitted to helping Malone discard evidence. 

Right to Counsel - At his initial appearance on May 30, 2006, McCarty's bail was set at 2 million dollars and he remained in custody.  Eight days later on June 7, 2006, McCarty had his first arraignment and counsel was appointed.  During those eight days, the State interrogated McCarty twice and he made numerous incriminating statements.

McCarty argued those statements should be suppressed because 6th Amendment attached at the proceeding on May 30, 2006, therefore he was interrogated in violation of his right to counsel.  The State argued McCarty's 6th Amendment right to counsel did not attach until the DA files "formal charges" on June 7, 2006.

  • The Court rejected the DA argument finding right to counsel under the 6th Amendment attached at the initial appearance on May 30, 2006 as it was an "initiation of judicial proceeding."
  • "Postattachment interrogation by the State is a critical stage at which the defendant has a right to be represented by counsel."
  • Thought it may be unreasonable that it took eight days for counsel to be appointed, case facts showed that the State read McCarty his Miranda warnings prior to the interrogations after the initial appearance.  The Court concluded that it appeared McCarty knowingly, voluntarily, and intelligently waived his right to counsel and therefore the statements were admissible.

Racial Discrimination During Jury Selection - The State used peremptory challenges in jury selection to remove two African-Americans from the venire.  One was a young African-American woman who was a full-time college student.  The State dug into her background and found she had a brother that had been incarcerated and also that she had a valid work card for an adult nightclub three years ago.  Defense objected under Batson and State argued it wasn't her race, but the fact she worked at the club, that was the basis for the challenge.  Defense argued the State's "race-neutral explanations were pretext for racial discrimination."

  • The Court found the State's explanation was just a "fortuitous excuse to remove this African-American juror."  The Court focused on the fact that the State did not run the other 35 potential jurors in the smaller venire to see if any of those people had strip club work cards.  The Court reasoned that if the State of Nevada is going to claim that they "cannot leave somebody who works at a strip club on their panel," then they should have checked all of the potential jurors' backgrounds for strip club work cards.
  • Also, the Court was troubled by the State's second claim that it kicked her off the jury because her brother had been incarcerated.  The Court compared her to another juror (Caucasian) whose father had been incarcerated.  The State asked the African-American juror 15 questions about her brother while the State asked the Caucasian only 1 question about whether he could be fair.  The State struck the African-American while kept the Caucasian on the jury. 
  • "Disparate questioning by prosecutors of struck veniremembers and those veniremembers of another race or ethnicity is evidence of purposeful discrimination."
  • Lastly, the Court blasts the District Court for failing to do a proper "sensitive inquiry" into all the relevant circumstances required by Batson.

Armando Vergara-Martinez v. State of Nevada (unpublished order conviction affirmed)

Vergara-Martinez was convicted by a jury of attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon resulting in substantial bodily harm constituting domestic violence, and mayhem.  He attacked his former girlfriend with a machete - splitting her head open and nearly severing her hands.

  • Vergara-Martinez argued that double jeopardy prohibited his dual conviction for battery resulting in substantial bodily harm and mayhem.  The Court disagreed because "each machete stabbing to [girlfriend's] person constituted its own distinct act of violence, resulting in distinct injuries to distinct body parts."  The State's charging document specified separate acts for each crime.
  • The Court found that it was not a violation of defendant's due process rights when the State amended the information to allow additional charges on the second day of trial. 
  • The Court found the numerous other appeal issues (doctor's testimony regarding "beheading," gruesome pictures admitted, and proposed jury instruction regarding specific intent) were not abuse of discretion. 

Deangelo R. Carroll v. State of Nevada (conviction affirmed)

Carroll was convicted at jury trial of conspiracy to commit murder and first-degree murder with a deadly weapon.  Carroll was hired by the Palomino Club to "knock off" victim because victim, who had been recently fired from the club, was spreading negative rumors about the club.  Carroll and three other men, including a man named Counts, met up with victim.  Counts shot the victim in the head.  Carroll was given $6,000 by the Palomino Club general manager to pay Counts for the murder.  Police tracked down Carroll because his phone number was the last number the victim called.  Carroll agreed to speak to detectives.  Carroll was driven in a police car to the station and placed in a small room at a table with his back to the wall, while the detectives sat between him and the exit.  The detectives did not give Carroll Miranda warnings before questioning him, but informed Carroll that he was speaking with them "voluntarily."  Carroll made numerous implicating statements.  Two hours into the interrogation and after Carroll already make implicating statements, detectives read Carroll his Miranda warnings and Carroll made further incriminating statements.

  • The Court found that those statements should have been suppressed.  The Court does a very thorough examination and analysis of why this was a custodial interrogation and Carroll should have been advised of Miranda rights.  The factors the Court focused on included:
    • police drove him to the station in their car so he could not leave
    • detectives deliberately and "strong-arm tactics" intimidated Carroll by taking him to the homicide office instead of questioning him at a more convenient location like his home which was closer
    • seating Carroll in a very small room, the furthest from the door, and putting a desk and two police detectives between him and the exit, Carroll was physically precluded from leaving the room unless the detectives stood, moved, and allowed him to leave
    • police did not allow Carrol to use his telephone when he said he needed to make a phone call
    • police told Carroll to "sit tight" and did not take him home when he said he wanted to go home
  • The Court further held that Carroll's post-Miranda statements should also be suppressed.  "Although the police recited the Miranda warnings, Carroll was just as dependent upon police to take him home and just as fearful he would go to jail after he received the warnings as before."

Despite the Court's ruling that these statements should have been suppressed, the Court upheld the error as "harmless" since there was "other powerful evidence of guilt."