July 2009 Archives

I have a fast-track statement due, so you're on your own for details:

Funkerburk v. State - NRS 193.165's definition of a "deadly weapon" may be applied to a charge of burglary while in possession of a deadly weapon under NRS 205.060(4).  The district court did not err in instruction the jury that a BB gun is a firearm.

Berry v. State - The district court did not err by instructing the jury on NRS 202.253(2)'s definition of "firearm" even though the defendant was not charged with possession or use of a firearm and NRS 193.165 does not reference NRS 202.253.  Also, whether the weapon was unloaded or inoperable at the time of the crime is irrelevant.  The Court finds, however, that a toy pellet gun is not a deadly weapon.  Finally, the Court finds that the open and gross lewdness statute is not unconstitutionally vague.

Commission on Ethics v. Hardy - the legislature cannot delegate to another branch of government its authority to discipline a legislator's conduct if that conduct involves a core legislative function.

Allstate Insurance Co. v. Miller - bad faith and insurance, special verdict forms 

Chavez v. State - testimony from a preliminary hearing may be admissible at trial, under the 6th Amendment and Crawford v. Washington.  Factors concerning admissibility include the discovery made available to the defendant at the time of the preliminary hearing and the extent of cross-examination allowed by the magistrate judge.

Grosjean v. Imperial Palace -  qualified immunity does not shield private actors from civil liability in an action under 42 USC 1983, punitive damages of $500,000 were the result of continued attorney misconduct so a new trial as to the damages is warranted, and a defendant may not recover damages under state law for identical conduct if he is granted a damage award under 1983.  The portion of the opinion addressing attorney misconduct should be reviewed by criminal practitioners as the Court's ruling could be applied easily to criminal cases.

E-Filing available for civil cases

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From the Nevada Supreme Court:

Effective July 30, 2009, the Nevada Supreme Court Clerk's Office will be accepting both civil and criminal documents for filing through our web-based electronic filing (e-filing) system.  The system is available 24 hours a day, seven days a week for the submission of filings.  The system allows attorneys and district court clerks to file documents; pay filing fees; view and print electronic versions of documents and docket sheets; and receive electronic notifications when other parties or participants file to your cases.
To get started e-filing documents, please visit our website at http://www.nevadajudiciary.us/index.php/supremecourt.html  and click on Court E-filing. 
If you encounter any problems with the e-filing system, please contact the Supreme Court of Nevada Clerk's Office at (775) 684-1600.
Please note:  the e-filing system will be down starting at 5 p.m. on July 29, 2009, for about 15 minutes, so during this time no one will be able to access their account or do any filings.

via Sentencing Law and Policy, The Sentencing Project issued a new report yesterday: No Exit: The Expanding Use of Life Sentences in America,  Nevada is featured throughout the report, and not in a good way.  Among its other findings:

In five states--Alabama, California, Massachusetts, Nevada, and New York--at least 1 in 6 people in prison are serving a life sentence.  In Nevada, 16.4 percent of the prison population is service a sentence of life or life without the possibility of parole -- that is 2,217 people.  450 people, or 3.3% of the prison population, are serving an LWOP sentence. 

Juveniles serve life sentences in nearly every state, but more than 50% of the national population is located in five states: California (2,623), Texas (422), Pennsylvania (345), Florida (338), and Nevada (322).  Given our relative population to these other states, this is shocking.  69 of these juvenile offenders are serving LWOP sentences.

Looking at overall life sentences, the report notes that in four states, more than 10% of the life population were juveniles at the time of their offense. These states are Nevada (14.5%), Nebraska (13.2%), Maryland (11.6%), and Arizona (10.4%).  Nevada leads the country in this shameful statistic.

Racial, ethnic and gender data are also provided.

 

McConnell v. State - the Court, sitting en banc, issues a per curiam decision affirming an order of the district court dismissing McConnell's post-conviction petition for a writ of habeas corpus in a capital case.  The Court concludes, in addressing an issue of first impression in Nevada, that challenges to Nevada's lethal injection procedures are not properly raised in a state court habeas petition.  The Court also finds that McConnell's guilty plea was knowingly and voluntarily entered and he did not have a right to effective assistance of stand-by counsel.  The Court next find that appellate counsel was not ineffective for failing to challenge a penalty phase instruction on the ground that it did not specify that the aggravating factors had to outweigh the mitigating factors beyond a reasonable doubt before it could impose death.  The Court next finds that appellate counsel was not ineffective for failing to challenge the Court's mandatory review of death sentences on the ground that there are no standards for the review; for failing to argue that it was prejudicial to have his trial and appeal reviewed by elected judges; for failing to challenge the death qualification process for jurors; and for failing to adequately address the aggravating circumstances issue presented in McConnell I (felony murder aggravators cannot be used if felony murder is the basis for the judgment).

The good news is that the Court rejects the State's argument that McConnell I was wrongly decided and should be overturned.  (Footnote 15).

V&S Railway v. White Pine County - summary judgment in an eminent domain action, scope of NRS 334.030.

From the Nevada Appeal:

"In an unusual move, the Nevada Supreme Court Tuesday ordered a Las Vegas woman released from prison.

The order comes a month after the court reversed the conviction of Joy Winston as an habitual criminal, concluding the state failed to present sufficient evidence to support the jury verdict.

Winston, 52, was convicted of burglary for allegedly trying to steal CDs from Wal-Mart. That conviction was used by the Clark County District Court to impose a life sentence after declaring Winston an habitual

criminal.

She was imprisoned in March 2008, facing a minimum 10 years before becoming eligible for parole.

The high court ruled June 3 that there wasn't enough evidence to support the burglary conviction and, therefore, that the habitual criminal sentence could not stand.

Winston's lawyer petitioned the high court for her release two weeks ago saying despite that ruling, the district court has refused to order her release and she was still in prison.

The order issued Tuesday grants that petition. It states that "because our decision was based on a determination that the state had presented legally insufficient evidence to support the guilty verdict, the Double Jeopardy Clause of the United States Constitution precludes a second trial."

Justices Michael Cherry, Nancy Saitta and Mark Gibbons disagreed with the district judge's claim she had no jurisdiction to release Winston. They directed the Supreme Court Clerk to issue an order for the district court to discharge the woman from custody."

 

The Executive Judicial Committee of the Eighth Judicial District Court has announced a plan for reassigning caseloads for five judicial departments in the Eighth Judicial District Court. The reassignments will involve the following judges: Judge Doug Smith, Judge Elizabeth Gonzalez, Judge Mark Denton, Judge Allan Earl and Judge Kathleen Delaney. While the actual caseload transfer will occur the weekend of July 25 and 26, 2009, the changes will be in effect starting Monday, July 27, 2009.

Effective Monday, July 27, 2009, the judicial department calendars will reflect the following changes:

  • Judge Doug Smith, Department 8, will acquire Judge Elizabeth Gonzalez's Criminal Caseload (Criminal Track 3).
  • Judge Allan Earl, Department 19, will be receiving approximately 800 of Judge Doug Smith's Civil Cases through a random reassignment.
  • Judge Allan Earl, Department 19, will be receiving approximately 400 of Judge Kathleen Delaney's Civil Cases through a random reassignment.
  • Judge Kathleen Delaney, Department 25 will be receiving approximately 50% of Judge Mark Denton's Business Court Cases through a random reassignment.

Effective July 27, 2009, any pending or future District Court matters, for reassigned cases, will be heard in the department consistent with the information above.

In the event the attorney has not exercised a peremptory challenge and wishes to do so, he/she must exercise the peremptory challenge in accordance with Supreme Court Rule 48.1 and the case will be randomly reassigned.

To confirm the newly assigned department or future court dates, parties may view the Eighth Judicial District Court's on-line case inquiry information at https://www.clarkcountycourts.us/Anonymous/default.aspx.

Via lvcourtsblog.com

 

This and That

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It looks like the Nevada Supreme Court will not be releasing any opinions today.  I suggest the following for your Thursday reading time:

Supreme Court Receives Indigent Defense Study.  The study is available here.

The new Nevada Rules of Appellate Procedure are in effect (as of July 1, 2009).  They are difficult to find on the Court's website, but this link will take you to them.

The Nevada Supreme Court is cranky because some lawyers routinely fail to complete their CLE.

It's a huge surprise to some of us who handle appeals in criminal cases, but it appears that the Nevada Supreme Court is actually interested in hearing requests for bail pending appeal.  It has even agreed to hear oral argument on the issue in one case.  I recommend that we all start filing bail motions in appropriate appeals.  Sample motions are available here.

In an unpublished decision, which has been the subject of great media attention, the Nevada Supreme Court held that the DMV was wrong to deny a personalized license plate of "HOE," as in Lake Tahoe, but shorter.  The Court finds that the DMV's exclusive reliance on www.urbandictionary.com was wrong. The decision in DMV v. Junge is available here.  The Volokh Conspiracy gives its take on the Court's analysis.

The Ninth Circuit issued a great Batson decision yesterday:  Ali v. Hickman.  It's a must read for both trial and appellate counsel.

Karl Roved testified under oath, but in a closed-door appearance, about his role in the dismissal of US Attorneys, including Nevada US Attorney Dan Bogden.

It's been a bad month for Washoe County District Attorney Dick Gammick.  The Ninth Circuit has affirmed in part and reversed in part a ruling of a federal district court concerning allegations that Gammick and his staff interferred with the work of a school district truancy officer.  The officer claimed that Gammick Assistant District Attorney John Helzer and Washoe County retaliated against for contacting the Nevada Attorney General about his concerns over the accuracy of a nurse in the Child Abuse Response and Evaluation program.  The Circuit found that a First Amendment retaliation claim was improperly dismissed because the speech at issue involved a matter of public concern and was made by the officer, who was a former detective, as a private citizen rather than his official capacity. The Circuit also found that the district court properly determined that the Defendants did not enage in any adverse action related to Botello's employment as a school police officer. The order in Botello v. Gammick is available here. Gammick is facing additional problems as three women contend that they were verbally abused by an employee of the Washoe County District Attorney's Office and that officials, including Gammick, retaliated against them when they complained about the alleged harassment.

 

48991 - Wesley (Herbert) vs. State (Death Penalty-PC)

July 06 (10:00 AM)

Full Court

Herbert Wesley was convicted of two counts of first-degree murder with the use of a deadly weapon for the stabbing deaths of his father, Isaac Wesley, and his stepmother, Doella Wesley, in Clark County. He was also convicted of robbery with the use of a deadly weapon for the theft of property belonging to the victims. This court affirmed the judgment of conviction and death sentence on direct appeal. Subsequently, Wesley filed a post-conviction petition for a writ of habeas corpus, which was denied.  The denial of that petition is the subject of this appeal. ISSUES: Did the district court err by denying Wesley's post-conviction petition as procedurally barred?  Were trial and appellate counsel ineffective?  Is Wesley entitled to a new penalty hearing under McConnell v. State?

49478 - Chappel (James) vs. State (Death Penalty)

July 06 (10:30 AM)

Full Court

After he was mistakenly released from jail, James Chappell went to the home of Deborah Panos, his ex-girlfriend and the mother of his three children, and stabbed her to death with a kitchen knife. A Clark County jury convicted Chappell of burglary, robbery, and first-degree murder and sentenced him to death. This court affirmed Chappell's conviction and death sentence on direct appeal. Chappell sought post-conviction relief in the district court and was granted a new penalty hearing. At the conclusion of the second penalty hearing, the jury again sentenced Chappell to death.  Chappell is now appealing that judgment of conviction.  ISSUES: Was there sufficient evidence to support the use of sexual assault as an aggravating circumstance to justify the death penalty?  Did the district court improperly deny Chappell's motion to compel additional review by the district attorney's death penalty review committee?   Did the district court err by not dismissing three potential jurors for cause?  Did the district court err by admitting certain evidence at the second penalty hearing, including hearsay evidence, presentence investigation reports, victim impact testimony, and Chappell's trial testimony?  Did the prosecutor commit misconduct during closing arguments?

50166 Foster vs. Dingwall
July 06 (11:30 AM)

Full Court

This is an appeal from a $72 million judgment awarded by the Clark County district court in a contract action after the court struck the appellants' pleadings and entered a default judgment as a sanction for discovery misconduct.  ISSUES: Did the district court err when it struck appellants' pleadings and entered a default judgment in favor of the respondents?  Did the district court err in calculating the sanctions?  Did the district court err by awarding compensatory and punitive damages and attorney fees?  Was the district court's award of special master fees appropriate?

 

52110 Mendoza-Lobos (Douglas) vs. State

July 06 (1:30 PM)

Full Court

Douglas Mendoza-Lobos is appealing his conviction in Washoe County for burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon.  ISSUES: Did the district court's statement on the record satisfy the requirements of NRS 193.165(1) in determining the length of the enhancement sentence?  Did the district court impose an excessive sentence by running the sentences for each count consecutively?

53079 Yarber (Robert) vs. State
July 06 (2:00 PM)

Full Court

Robert Yarber appeals from his conviction in Washoe County, pursuant to a guilty plea, for attempted murder with the use of a deadly weapon.  ISSUES: Did the district court err by failing to make findings about the basis for imposing a term for the deadly weapon enhancement that was equal to the term for the crime of attempted murder?

 Webcasting of the argument is available at the Court's website.

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