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.