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(Unpublished Court of Appeals order affirming in part, reversing in part, and remanding first-degree kidnapping)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(Unpublished Court of Appeals order affirming first-degree kidnapping)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