Harmfulerror

Wednesday, January 14, 2009

50325 SPRINGMAN (STANLEY) VS. STATE
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

49481 OWENS VS. SANTA BARBARA VILLAGE
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

48590 MILLER (CLIFFORD) VS. STATE
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

48731 WARREN VS. BANCTECH, LLC C/W 48845
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

48845 WARREN VS. PARADISE SPA OWNERS ASS'N C/W 48731
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

Thursday, January 15, 2009

48939 DOUMANI VS. DOUMANI
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

49377 MOON VS. SIERRA INT'L, INC.
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

50051 DAVESHWAR (SANJIV) VS. STATE
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Cherry/Saitta/Gibbons )

Friday, January 16, 2009

46917 ONE BEACON INSURANCE CO. VS. BARRETT
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Hardesty/Cherry/Gibbons )

48676 HAGER VS. MACTEC
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Hardesty/Cherry/Saitta )

Monday, January 5 - Nevada Supreme Court Investiture

Tuesday, January 6 - Nevada Supreme Court hears en banc arguments & administrative hearing on ADKT 411  (at 3 pm in Carson and Las Vegas)

Wednesday, January 7 - Nevada Supreme Court hears en banc arguments

Thursday, January 8 - Nevada Supreme Court opinion release day

The United States Supreme Court will meet for a private conference on Friday and will not hear arguments this week.  Oral arguments will resume on January 12.

All criminal cases:

Judges Mosley & Hardcastle

All civil cases:

Judges Bell, Smith, Walsh, Silver, Delaney

Civil, criminal and business court cases:

Judge Gonzalez

Civil and business court cases:

Judge Denton

Civil and criminal cases:

Judges Cory, Vega, Herndon, Cadish, Togliatti, Leavitt, Villani, Barker, Wall, Adair, Miley & Bixler

Civil, criminal and mental health:

Judge Glass

Civil and construction defect:

Judges Williams and Johnson

Construction defect, endoscopy pretrial, business court conflicts & settlement conferences:

Judge Earl

On Monday, January 5, the following changes will be implemented in district court case assignments:

All Dept. 8 (former Gates/now Smith) cases will transfer to Dept. 6 (Cadish).

All Dept. 6 (Cadish) cases will transfer to Dept. 8 (Gates/Smith).

All Dept. 7 (Bell/Bell) cases will transfer to Dept. 4 (Hardcastle).

All Dept. 15 (Loehrer/Silver) cases will transfer to Dept. 23 (vacant/Miley).

All Dept. 23 (vacant/Miley) cases will transfer to Dept. 15 (Loehrer/Silver).  Dept. 15 will be located in courtroom 10A.

Criminal cases from Dept. 3 (Herndon) will transfer to Dept. 5 (Glass).

Civil cases from Dept. 3 (Herndon) will transfer to Dept. 17 (Villani).

Criminal cases from Dept. 5 (Glass) will transfer to Dept. 17 (Villani).

All Dept. 17 (Villani) cases will transfer to Dept. 3 (Herndon).

Criminal cases from Dept. 1 (Cory) will transfer to Dept. 20 (Wall).

Criminal cases from Dept. 20 (Wall) will transfer to Dept. 1 (Cory).

Dept. 7 (Bell/Bell) and Dept. 25 (new/Delaney) will have all civil cases, which will be oppulated via random assignment from existing civil cases.  Dept. 25 will be located in courtroom 1B.

Probate cases will be heard by Judge Ritchie, Family Division Dept. H, at Family Court Courtroom 14.

Nika v. State - In an en banc opinion authored by Justice Hardesty, with Justices Cherry and Saitta dissenting, the Court finds the following:  "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction.  Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder.  We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided.  Nika's conviction was final before Byford was decided.  Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial." 

In reaching this decision, the Court criticizes the Ninth Circuit's opinion in Polk v. Sandoval:  "The fundamental flaw, however, in Polk's analysis is the underlying assumption that Byford merely reaffirmed a distinction between 'willfulness,' 'deliberation,' and 'premeditation.'  It was based on that assumption that Polk concluded that the Kazalyn instruction was erroneous and that the instructional error violated the federal Constitution by omitting an element of the offense.  That underlying assumption ignores our jurisprudence."

The Court, however, also recognized that portions its holdings in Garner and Byford were not correct: "Despite our disagreement with the assumption underlying the decision in Polk, we acknowledge that the change effected by Byford properly applied to that case as a matter of due process.  The United States Supreme Court has indicated that for purposes of due process, the relevant consideration 'is not just whether the law changed' but also 'when the law changed.'  Thus, if the law changed to narrow the scope of a criminal statute before a defendant's conviction became final, then due process requires that the change be applied to that defendant.  In such cases, retroactivity is not at issue; rather, due process requires that the conviction be set aside if required by the change in the law. In this respect, our decision in Garner erroneously afforded Byford complete prospectivity because as a matter of due process, the change effected in Byford applies to convictions that were not yet final at the time of the change.  Polk involved such a conviction.  This case, however, does not. Because Nika's conviction was final when Byford was decided, whether the change effected in Byford applies to Nika is a matter of retroactivity analysis.  This court previously has held that Byford has no retroactive application on collateral review. We reaffirm that decision today."

Today the Ninth Circuit Court of Appeals, in an opinion authored by Justice Bybee, found a sentence of 28 years to life imprisonment, under California's three strikes law, for failure to update an annual sex offender registration to be cruel and unusual punishment under the Eighth Amendment.  The Circuit found that California's registration requirement creates a regulatory offense and the sentence imposed to be grossly disproportionate to the offense.  This is a must read opinion for anyone with a failure to register or failure to change address case in which the State is seeking habitual criminal adjudication.  The opinion is Gonzalez v. Duncan.

The Nevada Supreme Court has made available a new batch of unpublished decisions.  They may not be cited as precedent.  A few are of interest:

Lewis v. State - the Court finds plain error based upon a jury instruction concerning the value of a vehicle.  The instruction erroneously instructed the jury to determine the value of the vehicle at the time the vehicle was taken, rather than at the time it was possessed.  The result is a reduction from a class B felony to a class C and the Court vacates an order for $5,200 in restitution.

Johnson v. State - the merits of the issues presented are not all that interesting, but it is worth noting that the defendant was convicted of three counts of second-degree murder based upon the shotgun killings of three people inside an apartment -- proof once again that the Byford instructions on first-degree murder reflect a meaningful change from the Kazalyn instructions.

Bolden v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court had dismissed the petition because it was not served on the Attorney General and warden.  The Court finds that the defects were curable and the petition should not have been dismissed on those grounds.

Ruffin v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court denied the petition because the defendant did not attach trial transcripts to his petition.  The Court found that there is no statute mandating that transcripts be attached and it would be unreasonable and wasteful for an indigent defendant to provide copies of transcripts that already exist in the district court and prosecutor's files.  The procedural history is interesting in that the district court dismissed without prejudice a 1996 petition on this ground, the defendant filed two additional post-conviction petitions, the second and third petitions were dismissed as untimely, but the Court reached the merits of the first petition based upon the appeal from the third order.

Valdominos v. State - the Court reverses a judgment of conviction for two counts of sexual assault after finding prosecutorial misconduct and error in refusing to give a defense proposed jury instruction on the legal effect of multiple sexual acts.  The Court finds that the prosecutor committed misconduct by making remarks which belittled or disparaged the defendant or his case and by improperly attacking the defendant's character.  Although the defense did not object at trial, the Court finds plain error in the prosecutors statement that insinuated the defendant had raped another woman and was a serial rapist.  Justice Maupin dissented -- he found that the State committed misconudct but believed the conviction was supported by overwhelming evidence.

 

The Nevada Supreme Court will hear en banc arguments in Carson City on January 6 and 7.

Tuesday, January 6, 2009

48329 THOMAS VS. HARDWICK, M.D.
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

48609 NOGUERA (CARLOS) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that this is a Clark County case in which the appellant is represented by the Clark County Public Defender's Office.  It appears that he was was convicted of two counts of sexual assault and was sentenced to life in prison with the possibility of parole.  I do not know the issues presented. 

48847 CHAVEZ (JAMES) VS. STATE
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

49029 NC-DSH, INC. VS. GARNER
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49198 FUNDERBURK (SAMAJA) VS. STATE
2:00 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that the appellant is represented by John Parris and that the appellant was convicted of several counts of robbery based upon a string of convenience store robberies.  He was initially charged with dozens of kidnapping counts, but those charges were dropped at the opening of trial.  I do not know the issues presented on appeal. 

50443 SMITH (JACOB) VS. STATE
2:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

Wednesday, January 7, 2009

50251 ADAMS VS. CITY OF SPARKS C/S NOS. 49504/49682
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49682 ADAMS VS. CITY OF SPARKS C/W NOS. 49504/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49504 ADAMS VS. CITY OF SPARKS C/W NOS. 49682/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

49512 RICO-ARREOLA (OSCAR) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

It appears that this is a sexual assault case in which the defendant is represented by the Public Defender's Office.  I do not know the issues presented on appeal. 

50989 HD SUPPLY FACILITIES VS. BYMOEN (NRAP 5)
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

50497 FIELDS (JOHN) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )

I have no details about this case. 

Sheriff v. Burcham - In a 4-3 decision, with a majority decision authored by Justice Gibbons, the Court reverses the grant of a pretrial petition for a writ of habeas corpus and dismissing a charge of driving and/or being in actual control of a vehicle while under the influence of alcohol and causing death and/or substantial bodily harm.  The Court finds that the Cotter standard still applies for determining whether a defendant is "under the influence" despite a 1995 statutory change in NRS 484.3795.  To find someone "under the influence," a fact-finder must determine that the driver was impaired "to a degree which renders him incapable of driving safely."  The Court also concludes that expert testimony regarding retrograde extrapolation is not required for grand jury proceedings.  Justices Cherry, Douglas and Saitta concurred in the Cotter standard analysis but dissented as to the Court's holding regarding expert testimony for retrograde extrapolation.

Nellis Motors v. State, DMV - evidentiary hearing standard for revoking emission-inspector licenses 

Settelmeyer v. Smith & Harmer - attorney fees and receivership funds

In re Lerner - public reprimand issued against attorney for assisting in the authorized practice of law

Howell v. State Engineer - judicial review of State Engineer decisions regarding title to water rights

From the Nevada Supreme Court:

"The Commission on Judicial Selection has received applications from 15 attorneys to fill two vacancies at the Eighth Judicial District Family Court that are the result of Family Court judges being elected in November to other positions, Chief Justice William Maupin announced.

Family Court Judge Stefany Miley was elected to a civil/criminal judgeship, replacing Judge Elizabeth Halverson on the Department 23 bench. Judge Miley will be vacating her Department F seat at Family Court.

Family Court Judge Sandra Pomrenze was elected to the newly created Department P at Family Court and will be vacating her Department E seat at Family Court.

This will be the second interview and deliberation process that will be open to the public. The Commission voted on Dec. 18, 2007 to change its rules and open the traditionally confidential processes and provide access to most application information.

The applicants, in alphabetical order, are:

Philip J. Dabney, 49, Las Vegas, attorney in private practice
William B. Gonzalez, 47, Las Vegas, Clark County Deputy Public Defender
Gregory G. Gordon, 38, Henderson, attorney in private practice
Fernando Guzman, 59, Las Vegas, attorney in private practice
Kurt K. Harris, 45, Henderson, attorney in private practice
Charles J. Hoskin, 45, Las Vegas, attorney in private practice
John Howard, Jr., 61, Las Vegas, attorney in private practice
Ronald J. Israel, 54, Las Vegas, attorney in private practice
Keith M. Lyons, Jr., 47, Las Vegas, attorney in private practice
Terrance Marren, 60, Las Vegas, Senior District Court Judge
Aurora M. Maskall, 45, Las Vegas, attorney in private practice
Michele Mercer, 46, Las Vegas, attorney in private practice
Vincent Ochoa, 56, Las Vegas, attorney in private practice
Morrisa Schechtman, 49, Las Vegas, attorney in private practice
Dawn T. Throne, 38, Las Vegas, attorney in private practice

The deadline for applications was 5 p.m. on Friday, Dec. 19, 2008.

The Commission will conduct interviews Feb. 9 and 10, 2009, in Las Vegas. Following the interviews, the Commission will submit the names of three nominees for each vacancy to Governor Jim Gibbons, who will appoint the replacements from the lists.

No time limit exists within which the Governor must make a judicial appointment. However, if appointments are not made within 30 days following submission of names by the Commission, the Governor may make no other appointments to public office."

Additional information is available at the link above.