Latest Nevada Supreme Court Decisions

Quisano v. State of Nevada (published NV Court of Appeals) (sentencing upheld)

Defendant's 3-year-old child died from blunt force trauma to the head.  Originally charged with murder, defendant pled to charges of voluntary manslaughter and child abuse with substantial bodily harm.  

  • State failed to turn over statements and evidence (social services documents and testimony in family court proceedings) from girlfriend regarding concerns about defendant's parenting.  At sentencing, State used these prior statements to impeach the girlfriend.  Quisano objected as the State had never turned over this discovery.  State argued it was a "victim-impact statement."
  • Appellate Court held it was not a Brady violation as it was exculpatory evidence.
  • But held that Clark County DA office has an "open-file" policy which means the DA must turn over all evidence, inculpatory and exculpatory, at all stages of the case including sentencing.
  • Though the Court found prosecutor engaged in misconduct, determined it would not have changed the outcome of the sentence.
  • There is some great language about proprietorial misconduct for failing to comply with the open-file policy.

Brown v. State of Nevada (unpublished) (affirmed in part, reversed and remanded in part)

Defendant was found guilty at jury trial of robbery with the use of a deadly weapon - a knife. 

  • Court held that district court's jury instruction which stated "a knife is a deadly weapon" was reversible error.
  • The jury must determine if a knife is a deadly weapon.

 

 

Martinez v. State of Nevada (unpublished) (reversed and remanded)

District court revoked defendant's probation because he was unable to pass the physical fitness tests at boot camp.  Court found district court abused discretion by revoking probation.  Remanded for new hearing.

Cox v. State of Nevada (unpublished) (affirmed in part, reversed in part)

Defendant accused of a hit-and-run car accident involving three-year-old Samantha.  Jury trial found him guilty of both (1) leaving the scene of an accident and (2) battery with the use of a deadly weapon resulting in substantial bodily harm.

  • Court reversed the battery conviction.
  • "Because the State had to prove that Cox intended to hit Samantha with his car, the district court erred in allowing the State to argue that Cox could be guilty of aggravated battery if he purposely drove in a dangerous manner."
  • An intent to drive dangerously does not establish the required mens rea to prove an aggravated battery charge under NRS 200.481(2)(e)(2).

Notable Unpublished Supreme Court Decisions

Edward Manuel Thompson Jr. v. State of Nevada (order reversing and remanding)

  • Monique Bork's newborn son was diagnosed with shaken baby syndrome in 2006.  Bork's son died in 2011 and the death was deemed a homicide as a result of non-accidental head trauma the child sustained in 2006.  Thompson was charged with first degree felony murder by child abuse.
  • The Court held that the trial court committed reversible error because it gave the incorrect jury instruction defining child abuse as applied to felony murder theory.
  • Child abuse as used to support felony murder is "physical injury of non-accidental nature to a child under the age of 18 years."  NRS 200.030(6)(b).  The trial court incorrectly used the definition of child abuse in NRS 200.508(4)(a) which improperly included the theories of maltreatment.

The next five cases are orders affirming several co-defendants' convictions that stem from the same case facts.  This case revolved around Club Exclusive II, an 'enterprise' where woman employees were trained to entice customers to pay for promised sexual services.  The customers would pay thousands of dollars on false promise of sexual acts, when in fact, the defendants provided no sexual services, but merely danced around a pole briefly, or massaged the customers' feet, before leaving after less than an hour.  The defendants were charged with participating in transactions involving act in the course of an enterprise with the knowing intent to defraud by means of false representation known to be false and with the intent to induce reliance causing a loss great than $250; racketeering; theft; attempting to obtain money under false pretenses; and fraud.

Brittani Lampkin v. State of Nevada (affirming jury verdict)

  • Appellant argued there was insufficient evidence to support her jury conviction.  The Court found that her mere-presence argument was belied by the record.  Lampkin attended staff meetings, knew that the club was a 'hustle,' and elicited payments from an officer.

Nicole Seaton v. State of Nevada (affirming jury verdict)

  • On appeal, Seaton argued she did not have adequate notice on the indictment of the racketeering charge.  The Court found Seaton had practical notice.
  • Court found there was sufficient evidence to support the jury verdict as Seaton was an employee who was instructed on how to get the customers' money.

Gia Buford aka Jacqueline Buford v. State of Nevada (affirming jury verdict)

  • Buford argued that legislature intended to repeal the statute codifying the common law offense of obtaining money by false pretenses when it enacted the comprehensive theft statute and requested that the Supreme Court find the former repealed by implication.  The Court examined both statutes, found subtle distinctions based upon intent element, and declined to hold NRS 205.380 (obtaining money by false pretenses) repealed by implication.
  • Buford also argued that a conviction for obtaining money under false pretenses and theft arising out of the same transaction violate double jeopardy.  The Court did not address because Buford failed to provide a "cogent argument."
  • Court found there was sufficient evidence to support convictions as she hired, supervised, and instructed the attendants who interacted with the victims.  That oversight/supervision supported Buford's conviction as a principal.

Jennifer Munoz v. State of Nevada (order affirming conviction)

  • Munoz argued that district court abused its discretion in denying defense instructions on the failure to collect material evidence, witness immunity, and racketeering.  Court found no error.

James Balgas v. State of Nevada (order affirming conviction)

  • Balgas was found guilty of racketeering but acquitted on charges of robbery, theft, coercion, and multiple transactions involving fraud or deceit in the course of an enterprise or occupation.  The Court held that a defendant's acquittal for a predicate offense does not invalidate a racketeering conviction that alleged commission of that predicate offense in order to allege a sufficient number of predicate offenses. 
  • The Court found there was sufficient evidence to support conviction.  Balgas was the bouncer at Club Exclusive II who monitored the club's fraudulent practices by video feed and intervened to remove protesting victim from the premises.

David Colvin v. State of Nevada (order dismissing appeal)

  • Colvin appealed district courts order denying a pre-sentence motion to disqualify a judge.
  • Court noted that there is no statute or court rule that provides for an appeal from an order denying a motion to disqualify a judge.

 

 

 

 

 

Evan Eugene Moore v. State of Nevada (order vacating judgment and remanding)

  • Moore is currently serving two consecutive sentences of 20 years to life for murder with the use of a firearm.  After direct appeal, he filed a pro per post-conviction writ of habeas corpus in district court.  The state filed an opposition and Moore filed a reply.
  • The district court did nothing for 4 years.  Moore filed a motion to expedite the decision in 2014.  There were no responses or orders pertaining to these motions.
  • A year later, in 2015, the State filed a motion to dismiss Moore's habeas corpus petition arguing is should be dismissed under NRCP 41(e) rule which permits the dismissal of a civil action for failure to bring the case to trial after 5 years had passed.  The district court dismissed pursuant to NRCP 41(e).
  • The Court held that NRCP 41(e) cannot apply to post-conviction proceedings as "habeas corpus proceedings are unique - neither civil nor criminal for all purposes." (quoting Means v. State, 120 Nev. 1001 (2004).  Remanded for further proceedings.

Bobby Richards v. 8th Judicial District and the State of Nevada (order granting petition)

  • District court manifestly abused its discretion when it granted State's discovery request for correspondence between defense counsel and an expert witness.
  • The Court found correspondence was squarely a "memorandum that [was] prepared by...the defendant's attorney in connection with the investigation or defense of the case," NRS 174.245(2)(a) and therefore not subject to discovery or inspection.

 

Larry Edward Adams v. State of Nevada (order affirming in part, reversing in part and remanding)

  • Adams was convicted in 1986 of two counts 1st degree murder and burglary for shooting his wife and three year-old daughter.  He was sentenced to death for each murder.
  • Adams filed his third post-conviction petition approximately twenty years after remmitur.  The petition was procedural barred absent a demonstration of good cause and prejudice.
  • The Court remanded for district court to hold an evidentiary hearing and determine whether Adams' claim that the State withheld impeachment evidence concerning a key witness' true identity and criminal history constitutes good cause to overcome the procedural bar
  • Adams also makes several claims that he was factually innocent of first degree murder, burglary, and there were not enough aggravators to support the death penalty.  The Court rejected those arguments. 

Steven Fondo v. State of Nevada (order affirming conviction)

  • Fondo was convicted of burglary, robbery, first-degree kidnapping and unlawful taking of a motor vehicle.  He pretended to have a gun and stole a cab.
  • Fondo argued he should have been allowed to introduce records of his prescription medication because the records went to his anticipated defense of voluntary intoxication (voluntary intoxication my negate specific intent).  The Court found that there was insufficient foundation as defendant's grandmother was not aware if defendant took the prescribed medication on that day.
  • The Court also found that statements made by Fondo during the robbery where he told the cabdriver that he had killed someone yesterday were admissible as evidence of threat/force element of robbery.  Taped phone calls from jail where Fondo stated he was "broke" and "getting desperate" was admissible to show motive and intent. 
  • The Court also rejected Fondo's claim that his statements to police were not voluntary and rejected numerous arguments regarding defense proposed jury instructions.

Published Opinions - December 31, 2015

Barber v. State of Nevada (conviction reversed for insufficient evidence of burglary)

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  •  Cold case hit out of Clark County.  Home burglary where latent palm print on outside of window which was determined to be point of entry matched Mr. Barber.  Defendant was 17 at the time of the alleged burglary, but was arrested and charged when he had already turned 18.
  • Procedural issue involving juvenile jurisdiction and NRS 62D.310(3) decision that juvenile court maintains jurisdiction over a 'juvenile' even after the expiration of the 1 year period.
  • Insufficient evidence at trial to support burglary because the print was outside of the structure and to support burglary there must be evidence of entry.

State of Nevada v. Boston (vacated district court order and remanded for further proceedings)

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  • Defendant, age 16, was found guilty of kidnapping 1st degree, multiple counts of sexual assault with a deadly weapon, robbery, lewdness with a minor, and a number of other charges.  He was sentenced to 14 consecutive life with the possibility of parole sentences and an additional 92 years.  Defendant would have to serve 100 years before he would be considered for parole.
  • U.S. Supreme Court Graham (2010) applies therefore it is unconstitutional and cruel and unusual punishment when an aggregate sentence imposed against a juvenile offender convicted of more than one non-homicide offense is the equivalent of a life-without-parole sentence.
  • Assembly Bill 267 remedied Defendant's claim as it added a new subsection of NRS Chapter 213 which makes prisoners eligible for parole after 15 years if their sentences were for non-homicide crimes committed when they were juveniles.

Gonzalez v. State of Nevada (reversed conviction and remanded for new trial)

  • Gang related shooting where defendant argued he shot in defense of others.  Jury found defendant guilty of 1st degree murder with a deadly weapon and gang enhancement.  During trial, the judge refused to provide answers to two juror questions regarding conspiracy theory and refused to bifurcate the guilt and gang-enhancement portion of the trial. 
  • "In situations where a jury's question during deliberations suggests confusion or lack of understanding of a significant element of the applicable law, the judge has a duty to give additional instructions on the law to adequately clarify the jury's doubt or confusion."
  • "To provide the defendant with a fair trial, the guilt phase of trial must be bifurcated from gang-enhancement phase."
  • Court also found that a jury instruction that intertwined self-defense and defense of others was unduly confusing to jury.
  • Judge should have given a cautionary jury instruction on accomplice-distrust as the state's witness' testimony was uncorroborated that the killing was a premeditated plan versus a spontaneous clash between rival bikers.