Nevada Supreme Court issues opinion

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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."  key para microsoft word

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."key para microsoft word

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."key para microsoft word



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This page contains a single entry by JoNell published on December 31, 2008 9:28 AM.key para microsoft word

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