January 2010 Archives

Nevada Supreme Court issues opinion

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Great Basin Water Network v. State Eng'r: "In this appeal, we must determine a narrow, yet fundamental question: whether the State Engineer violated his statutory duty under NRS 533.370(2) by failing to rule on Southern Nevada Water Authority's (SNWA) 1989 water appropriation applications within one year.  NRS 533.370(2), as it existed in 1989, required the State Engineer to approve or reject each water appropriation application within one year after the final protest date.  The State Engineer, however, could postpone taking action beyond one year if he obtained written authorization from the applicant and protestants or if there was an ongoing water supply study or court action.  None of those conditions occurred by the end of 1991.  However, in 2003, the Legislature amended NRS 533.370 to permit the State Engineer to postpone action on pending applications made for a municipal use.  The district court summarily determined, among other issues, that the amendment applied to SNWA's 1989 applications, thus enabling the State Engineer to take action on applications filed 14 years earlier.

            The parties to this appeal dispute whether SNWA's 1989 applications were "pending" in 2003 under the legislative amendment and, therefore, whether the amendment applied retroactively to those applications.  We conclude that "pending" applications are those that were filed within one year prior to the enactment of the 2003 amendment.  And, in the absence of statutory language and legislative history demonstrating an intent that the amendment apply retroactively to SNWA's 1989 applications, we determine that the State Engineer could not take action on them under the 2003 amendment to NRS 533.370.

            Because we determine that the 1989 water appropriation applications were not pending in 2003, we conclude that the State Engineer violated his statutory duty by failing to take action within one year after the final protest date.  Thus, we reverse the order of the district court and remand for a determination of whether SNWA must file new groundwater appropriation applications or whether the State Engineer must re-notice SNWA's 1989 applications and reopen the period during which appellants may file protests."

Oral argument calendar: Feb. 11

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Huesner (Allen) v. State, Docket No. 52023
Las Vegas- 10:00 a.m. - Justices Hardesty, Douglas, and Pickering
.

The evidence presented at trial demonstrated that after Allen Heusner had been served with a temporary protective order, he broke into the home he shared with his wife, beat to death the man with whom his wife had been having an intimate relationship, and set a blanket on fire.  Heusner was convicted of first-degree murder, first-degree arson, and burglary while in possession of a deadly weapon.  Heusner raises numerous issues on appeal.    ISSUES:  Did the district court err in allowing the State to pursue a theory of felony murder with the predicate felony being burglary based upon entry with an intent to murder?  Did the district court abuse its discretion by admitting prior bad act evidence? Did the district court abuse its discretion when it instructed the jury that it did not have to be unanimous on the theory supporting the first-degree murder conviction? Did the admission of evidence of Heusner's post-arrest silence violate his Fifth Amendment right against self-incrimination? 

Love (Sherri) v. State, Docket No. 52403
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

Sherri Love is appealing her conviction for murdering her 7-year-old daughter, attempting to murder her 8-year-old son, and abusing and neglecting her son by killing his sister in front of him and stabbing him in the hand.  This incident occurred in Clark County several days after Love left a detoxification program, where she was being treated for alcoholism and drug addiction.  ISSUES: Did the district court properly instruct the jury?

Polk (Levenral) v. State, Docket No. 52733
Las Vegas- 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This appeal challenges witness testimony, Nevada's deadly weapon enhancement, the district court's ability to dismiss an injured juror prior to consulting with the parties, and whether a juror who lost consciousness during trial should have been dismissed.   Levenral Polk is appealing his second conviction for murdering a long-time friend, by shooting him from a car.  Polk was initially convicted of first-degree murder, but was granted a new trial by a federal court.  At his second trial in Clark County, Polk was convicted of second-degree murder with the use of a deadly weapon and discharging a firearm out of a motor vehicle. ISSUES: Did the district court improperly permit a witness to offer hearsay evidence about forensic test results when that witness did not perform the forensic testing? Is the deadly weapon enhancement statute unconstitutional in light of the United States Supreme Court's decision in District of Columbia v. Heller?  Did the district court abuse its discretion by dismissing an injured juror prior to consulting the parties?  Did the district court err when it failed to dismiss a juror who lost consciousness during trial?

Oral argument calendar: Feb. 10

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Tsai (Paul) v. Hsu (Ann), Docket No. 50549
Las Vegas
(Regional Justice Center) - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

This case involves a 1996 settlement agreement in a divorce proceeding between Paul Tsai and Ann Hsu.  Part of the agreement provided that a parcel of land owned by the parties in Las Vegas was to be held in trust to pay for their children's educational expenses.  No trust documents were created at the time the settlement agreement was reached, but apparently the parties quitclaimed the property to their children.  After the divorce, the children lived with Hsu in Hong Kong where they attended private elementary and secondary schools, paid for by Hsu.  In 2007, the property was sold for a sizeable amount of money.  The parties now dispute the allocation of the proceeds from the sale of the property.  ISSUES:  Did the parties transfer their entire interest in the property to their children?  Was the trust meant to finance the children's private elementary and secondary school education when Tsai never consented to sending the children to private elementary and secondary schools?  Did the district court lack jurisdiction to make rulings regarding the trust? 

Salas (Miguel) v. State, Docket No. 51385
Las Vegas
(Regional Justice Center) - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

In this appeal, issues are raised about the grand jury indictment of Miguel Salas, who was a juvenile at the time of an auto theft that led to a high speed chase and a head-on collision.  Salas was certified to stand trial as an adult following the incident in which he and Alberto Spindola broke into and stole an automobile in Las Vegas.  The pair attempted to evade capture by fleeing at high-speed from a police officer.  The chase ended in a head-on collision with another car.  Salas was arrested, certified as an adult, and charged with numerous felony violations.    The justice court, however, dismissed charges of robbery with the use of a deadly weapon and conspiracy to commit robbery for lack of probable cause, but bound over Salas to the district court on the remaining charges.  The State then convened a grand jury, which indicted Salas on the two previously dismissed charges.  Salas was found guilty at trial on all but three charges.  This appeal followed.  ISSUES:  Did the district court abuse its discretion in determining that the State provided Salas with reasonable notice of the grand jury proceedings?  Did the district court have jurisdiction to proceed on the grand jury indictment?  Did Salas demonstrate "exceptional circumstances" to show the district court abused its discretion in failing to remand his case to the juvenile court?  Did the State present sufficient evidence to convict Salas of robbery and conspiracy to commit robbery?

Callara v. Las Vegas Hilton, Docket No. 51645
Las Vegas
(Regional Justice Center) - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons

This is an appeal of a split verdict at trial in a personal injury case.  Roseann Callara slipped and fell in the parking/valet parking drop-off area of the Las Vegas Hilton after which two employees of Hilton moved her to a nearby bench.  Subsequently, Callara sued Hilton for neglecting to keep the area clean and for moving her after she fell.  At trial, a jury returned a verdict in favor of Callara on her claim that Hilton employees negligently moved her after she fell.  The jury, however, ruled  for Hilton on the claim of failing to keep the area clean.  This appeal followed.  ISSUES:  Did the district court abuse its discretion when it concluded that Hilton should not be held to admissions made pre-trial?  Did the district court abuse its discretion by refusing to submit the admissions to the jury as evidence?  Did the district court abuse its discretion by allowing previously undisclosed witness testimony, and by directly questioning that witness?  Did Hilton have an obligation to create records regarding when areas of its property had been cleaned and should a jury instruction have been given that the Hilton spoiled evidence when Hilton did not destroy any records, but instead never created the records that Callara sought? 

Cacho (Ashton) v. State, Docket No. 51647
Las Vegas (Regional Justice Center) - 1:30 p.m. - Justices Cherry, Saitta, and Gibbons

In this case, Ashton Cacho is appealing his 2008 conviction by a Clark County jury for one count each of open or gross lewdness and indecent exposure, and four counts of lewdness with a child under the age of 14.    ISSUES:  Are the convictions redundant?  Did the district court err in not conducting a competency hearing regarding the child victim?  Did the State withhold exculpatory evidence and/or engage in prosecutorial misconduct?  Did the State present sufficient evidence to support the jury's verdict? 

Gamble (Clarence) v. State, Docket No. 52521
Las Vegas
(William S. Boyd School of Law) - 10:00 a.m. - Chief Justice Parraguirre, and Justices Hardesty and Pickering (Justice Douglas voluntarily recused himself from participation in this matter)

Numerous issues are raised in this appeal by Clarence Gamble, who was convicted of shooting and killing a woman with whom he was romantically involved.  At trial, Gamble claimed he acted in self-defense.  However, eyewitness testimony indicated otherwise.  Gamble was convicted of first-degree murder with the use of a deadly weapon and aggravated stalking.  Gamble now appeals the judgment of conviction.  ISSUES:  Did the district court err in refusing to dismiss the aggravated stalking charge?  Did the district court err in denying Gamble's objections to the State's use of peremptory challenges to excuse two prospective African-American jurors?  Did the district court err in instructions given to the jury?  Did the prosecutor commit misconduct warranting reversal of Gamble's convictions? 

Valley Health System v. Garcia (Waneira), Docket No. 50507 c/w 50509 and 50684
Las Vegas
(William S. Boyd School of Law) - 11:00 a.m. - Justices Hardesty, Douglas, and Pickering

This is an appeal of a jury verdict in a medical malpractice case.  In 1995, Waneira Garcia was about 39 weeks pregnant when she arrived at Valley Hospital in Las Vegas complaining of potential complications with her pregnancy.  Her daughter was delivered via Caesarian section, and suffers from ongoing developmental delays that will likely require ongoing medical treatment.  Garcia attributed her baby's problems to the negligence of the hospital and filed a lawsuit alleging medical malpractice against her OB/GYN doctor, Joseph Watson, M.D., the hospital, and two of its employees, Mary Kathryn Watts and Madonna Sturgeon.  The district court entered a default judgment against Sturgeon for her failure to appear at the trial.  A jury found in favor of Dr. Watson, but determined that the hospital and its named employees were negligent and awarded Garcia damages and attorney fees.  This appeal followed.  ISSUES:  Did the district court err in entering a default judgment against Sturgeon for her failure to attend the trial?  Did the district court err in instructing the jury?  Did the district court abuse its discretion in awarding attorney fees to Garcia?

Oral argument calendar: Feb. 9

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Boorman v. Nev. Memorial Cremation Society, Docket No. 52492
Bishop
Gorman High School - 10:00 a.m. - Full Court

This case stems from a request from the United States District Court, District of Nevada, for a Supreme Court decision on legal matters where there is no controlling Nevada precedent.  In the incident leading to the legal action, Richard Boorman succumbed to a lethal dose of alcohol and drugs while in Las Vegas for a bachelor party.  Richard's body was transported to the Clark County coroner for autopsy, where his internal organs were removed.  The coroner maintains that the organs were then placed in a plastic bag and left with the body.  Richard's body was then sent to the mortuary, which embalmed it before returning it to family members in London, England, without his internal organs.  After discovering the absence of Richard's organs, the family filed an action against Memorial Cremation Society, Clark County, and the employees of both entities, alleging, among other claims, negligent and intentional infliction of emotional distress, breach of fiduciary duty, and conversion, related to the mishandling of Richard's body.  Because no clearly controlling Nevada precedent for these issues exists, the district court certified several questions to the Supreme Court.  ISSUES:  What class of persons may bring a claim for negligent or intentional infliction of emotional distress for the mishandling of a deceased person's remains?  Does that person need to be present and observe the negligent act?  Does that person need to demonstrate some physical manifestation of emotional distress?  Does a county coroner's office owe a duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person's organs such that the coroner's office could be liable for emotional distress claims? Does a claim for conversion of a deceased human body or its parts exist under Nevada law, and if so, what class of person may bring such a claim?  If such a claim exists, may a plaintiff recover emotional distress damages arising out of conversion of the human remains?

Chao (Greg) v. State, Docket No. 50336
Bishop
Gorman High School - 11:00 a.m. - Full Court

This appeal raises treaty issues between the United States and Canada. Greg Chao, a Canadian citizen who was apprehended in Canada, is appealing his conviction in Clark County for robbery and first-degree murder in the death of Don Idiens, a fellow Canadian, who was in Las Vegas for an extended vacation.  ISSUES:  Did the district court err when it declined to suppress a statement Chao made to Las Vegas Metropolitan Police Department detectives while he was in custody in Canada because the statement was allegedly obtained in violation of a treaty between the United States and Canada? Did the district court err in permitting the State to introduce evidence of Chao's testimony at the Canadian extradition hearing because such testimony is akin to testimony in a suppression hearing in Nevada, which is inadmissible under NRS 47.090? 

Oral argument calendar: Feb. 2

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Crawford & Co. v. Strong-Puzey,

Docket No. 52282

Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

This case involves a workplace injury and whether an injured party who accepts a lump-sum settlement can reopen the claim.  In the underlying case, Connie Strong-Puzey underwent surgery on her ankle to repair damage caused by a workplace injury.  During the surgery, Strong-Puzey experienced a low level of oxygen saturation.  Following surgery, she demonstrated a marked change in her behavior and a decline in both her mental and physical health.  Nevertheless, Strong-Puzey elected to receive a lump-sum permanent partial disability award from her employer, which limited her ability to reopen her workers' compensation claim unless she developed new injuries or a change in circumstance.  After accepting this award, Strong-Puzey was diagnosed with hypoxic encephalopathy, which a neurologist connected to a lack of oxygen during surgery.  Strong-Puzey sought to reopen her claim but the appeals officer denied her request.  Strong-Puzey then sought judicial review in the district court in Carson City.  The district court granted her petition and ordered her claim be reopened.  This is an appeal of the district court decision. ISSUES:  Whether a claimant who has knowledge of a condition--but accepts a lump-sum settlement--can then reopen that claim based on a change of circumstances or newly acquired injury.  Whether the district court erroneously substituted its judgment for that of the appeals officer.

Mandatory e-filing begins Feb. 1

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From lvcourtsblog.com:

Pursuant to Administrative Order 09-12, electronic filing will be mandatory in the Eighth Judicial District Court on February 1, 2010 for all Civil and Domestic case filings.

Criminal filings will continue to be accepted over the counter at this time and may also be electronically filed.

Our current E-File vendor is Wiznet. Their website address is www.wiznet.com; their customer service telephone number is (800) 297-5377.

The court will provide a limited number of workstations for filing in the Courthouse for use by pro se litigants.

If you have any questions about the Court's requirements or processes, you can contact the Eighth Judicial District Court's Wiznet desk at 702-671-0514 (Civil/Criminal) and (702) 455-5941 or (702) 455-2357 (Family).

US Supreme Court issues two opinions

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In Briscoe v. Virginia, the Court accepted certiorari on issues concerning the Confrontation Clause and expert testimony.  After hearing oral argument, the Court summarily vacated the judgment of the Supreme Court of Virginia and remanded the case for further proceedings not inconsistent with Melendez-Diaz v. Massachusetts

In Hemi Group v. City of New York, the Court addresses a civil RICO action and finds that because the City of New York cannot show that it lost tax revenue "by reason of" an alleged RICO violation (based on failure to provide customer information for internet cigarette purchases), it cannot state a RICO claim.  The plaintiff must show a direct relationship, "but for" causation and proximate causation.

The Court granted certiori in two cases, that were consolidated for oral argument: Abbott v. United States and Gould v. United States.  They present the question of (1) whether the term "any other provision of law" of 18 USC 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction.  Scotusblog provides the opinion below, petition for cert. and the response.

Via Scotusblog, the US Supreme Court issued several opinions this week:

Wood v. Allen - Interpretation of 28 USC 2254(d)(2) and its requirement that federal habeas relief not be granted, in relevant part, unless the state court's decision was based "on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."  The issue of whether the state court unreasonably applied Strickland is not addressed. 

South Carolina v. North Carolina - original action concerning apportionment of river water, the opinion addresses the standard for a nonstate entity's intervention in an original action.

Kucana v. Holder - judicial review of discretionary immigration decisions by the Attorney General is prohibited only for determinations made discretionary by statute, not by regulation. 

Presley v. Georgia - per curiam, 7-2 - In addition to a First Amendment right of access to jury selection, there is also a Sixth Amendment right to public proceedings for the accused.  Before closing the courtroom, trial courts are obligated to take every reasonable measure to accomodate public attendance at criminal trials.

Wellons v. Hall - per curiam, 5-4 - The Court decides the defendant was entitled to discovery.  It pretty much speaks for itself:

"From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell, 556 U. S. ___, ___ (2009) (slip op., at 17-18). We do not know how the court would have ruled if it had the benefit of our decision in that case.

Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurorsand a bailiff had planned a reunion, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts," 554 F. 3d 923, 930 (CA11 2009). The judge had not reported any of this to the defense."

 

 

Judicial Dept. Filings - last day

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Candidates have file for judicial seats:

Supreme Court Seat A - Justice Hardesty

Supreme Court Seat E - Justice Parraguirre

Dept. 26 - Bruce Gale, Kurt Harris, Gloria Sturman

Dept. 27 - Nancy Allf, Blain Beckstead

Dept. 28 - Lucinda Coumou, Jack Howard, Ronald Israel

Dept. 29 - Kenneth Pollock, Susan Scann

Dept. 30 - Michael Davidson, Patricia Palm, Jerry Wiese

Dept. 31 - Phil Dabney, Joanna Kishner, Joshua Kunis, Marc Risman

Dept. 32 - Rob Bare, Donn Ianuzi, Ellen Stoebling

Family Dept. A - Bill Voy

Family Dept. B - Gloria Sanchez

Family Dept. C - Steve Jones, Maria Maskall, Denise Pifer

Family Dept. D - Robert Teuton

Family Dept. E - Chuck Hoskin

Family Dept. F - Ellen Bezian, Bill Gonzalez

Family Dept. S - David Churchill, R. Nathan Gibbs, Ethan Kottler, Tony Liker, Greta Muirhead, Vincent Ochoa, Rebecca Wallace

Family Dept. T - John Jensen, Terrance Marren, Michele Mercer, Gayle Nathan, Carl Piazza

Justice Court 2 - Joseph Sciscento

Justice Court 3 - Tony Abbatangelo, Lary Lamoreux, Janiece Marshall, Nicholas Perrino

Justice Court 4 - Melissa Saragosa 

Justice Court 6 - William Kephart, Kristine Kuzemka, Rachael Stafford

Justice Court 7 - Karen Bennett, Robert Kurth

Justice Court 9 - Joe Bonaventure

Justice Court 10 - Melanie Andress-Tobiasson

Justice Court 13 - Suzan Baucum, Frank Coumou, James Gubler, Jonathan Schulman, Richard Scow

Justice Court 14 - Colby Beck, Amber Candelaria, Conrad Hafen, Bernie Zadrowski

Searchlight - Stanton Colton, Richard Faber, Richard Hill, Dave "Batman" Thompson

Washoe County District Court Dept. 15 - David Hardy

Washoe County Family Court 5 - Deborah Schumacher

Washoe County Family Court 11 - Chuck Weller

Reno Justice Court Dept. 2 - Pete Sferrazza

Reno Justice Court Dept. 3 - Jack Schroeder

Reno Justice Court Dept. 4 - Cotter Conway, Eric Nickel, Scott Pearson, Lewis Taitel

Reno Justice Court Dept. 5 - David Clifton

Sparks Justice Court, Dept. 2 - Kevin Higgins, Christian Wilson

 

In an unpublished order, in Snyder v. State, the Nevada Supreme Court finds that trial counsel was ineffective based upon the failure to thoroughly investigate all potential defenses prior to advising her to plead guilty to second degree murder.  The client had an extensive history of psychological problems.

Nevada Supreme Court issues 1 opinion

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The Nevada Supreme Court has issued its first opinion of the year.  In Higgs v. State, the Court, sitting en banc, in an opinion authored by Justice Hardesty, affirms the conviction for first degree murder of Chaz Higgs.  The Court rejects Higgs' argument that expert testimony should be subject to the standard set forth by the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals and rejects the claim that the nevada Supreme Court's decision in Hallmark v. Eldridge adopted the standard set forth in Daubert inferentially.  The Court also rejected Higgs' claims concerning the district court's refusal to continue the trial, sufficiency of the evidence, jury instructions on spoliation of evidence, and cumulative error.

 

Justice Cherry and Justice Saitta authored separate opinions concurring in part and dissenting in part.  They agreed with the majority's decision to reject Daubert, but found that the district court abused its discretion in denying the motion to continue the trial.

 

 

In Smith v. Spisak, the US Supreme Court reverses an order of the 6th Circuit granting habeas relief to a death row inmate.  The Court finds that a decision by the Ohio Supreme Court was not clearly contrary to the Supreme Court's decisions in Mills v. Maryland, which concerned jury unanimity for mitigating circumstances.

US Supreme Court changes some rules

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Via Scotusblog

The Supreme Court released revisions in its Rules, effective on Feb. 16.  The Court will no longer consider any request to extend the deadline for filing amicus briefs at the merits stage. It also shortened the word limit on reply briefs on the merits from 7,500 to 6,000.  A press release announcing the revisions is here.  The order implementing the changes, and the text of the revisions themselves, are at this link.

 

Oral argument calendar: Jan. 13 & 14

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January 13, 2010, Oral Arguments

McKinney (Craig) v. Martinez (Rick),
Docket No. 49172
Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

This is a dispute over an agreement for an employee to purchase a pickup truck from his employer.  Craig McKinney worked for Fire Extinguisher Service Center, which is owned by Rick and Shannon Martinez (collectively, FESC).  While still employed by FESC, McKinney entered into a contract with Rick Martinez to take over the payments on a pickup truck.  After McKinney was fired, he stopped making payments on the truck and FESC eventually sold the truck.  McKinney sued FESC, alleging several claims.  With respect to the truck transaction, McKinney alleged breach of contract and unjust enrichment.  A jury in Churchill County found in favor of FESC.  After the trial, McKinney made a motion requesting that the court issue judgment in his favor notwithstanding the verdict and for a new trial, based on alleged juror misconduct because of a relationship between the jury foreman and Rick Martinez.   The district court partially granted the motion for judgment notwithstanding the verdict, directing a verdict for McKinney on the breach of contract and unjust enrichment claims.  However, the district court denied his motion for a new trial.  Both McKinney and FESC have appealed the district court's post-trial decisions.  ISSUES:  Did the district court err in granting McKinney's motion for judgment notwithstanding the verdict?  Did the district court err in denying McKinney's motion for a new trial? 

Builders Insurance Company v. Employers Insurance Company of Nevada,
Docket No. 50905
Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

This appeal involves a district court decision to deny judicial review in a workers' compensation matter.  Robert Phillips experienced pain in his hands while working for Fletcher Roofing.  Phillips was laid off by Fletcher and later filed a workers' compensation claim against the employer.  Because Phillips had worked intermittently for Becker General Contractors after being laid off by Fletcher, Fletcher made a motion that Becker be made a party to the matter.  Becker was insured by Builders Insurance Company.  The motion to include Becker was served on Becker but not on its insurance company, Builders.  Becker denied responsibility for Phillips's injury, but did not contact Builders.  After a hearing, an appeals officer ruled that Becker was responsible for Phillips's claim.  Becker still did not contact Builders until the time for judicial review had passed.  Builders filed a motion to have the hearing officer's decision set aside, but it was denied.  Builders then filed a petition for judicial review in the district court in Carson City, but that also was denied.  ISSUE:  Did the district court err in denying the petition for judicial review? 

Felton (Stephanie) v. Felton (Steven),
Docket No. 51442
Carson City - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons

This is an appeal of district court decisions on property distribution and spousal support in a Washoe County divorce decree.  When Stephanie Felton and Steven Felton divorced after a 12-year marriage, the district court awarded a livestock business to Steven and the couple's house and interest in a hair salon to Stephanie.  The district court determined that no alimony should be awarded.  Stephanie has appealed the divorce decree.  ISSUES:  Did the district court err in its distribution of community property?  Did the district court err in denying spousal support? 

January 14, 2010, Oral Arguments

Kelly (Winston) v. State of Nevada,
Docket No. 52017
Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

In this case, Winston Kelly is appealing his convictions of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.  Kelly was arrested in Elko County after a sheriff's deputy found him sleeping in the truck of a missing person.  While being interrogated by law enforcement officers about the missing person's whereabouts, Kelly requested an attorney, but no action was taken on his request.  The law enforcement officers also made numerous religious references during the interrogation, including asking Kelly if he thought God would forgive him.  Kelly eventually confessed to stabbing the victim to death and drew a map that led to the victim's body.  Before trial, Kelly made a motion to suppress the statements he made during the interrogation and all evidence obtained as a result of those statements, including the map and the victim's body.  The district court determined that Kelly's confession and the map were inadmissible at trial because law enforcement violated Kelly's Miranda rights, but evidence of the victim's body was admissible because under the totality of the circumstances, Kelly's confession was voluntary.  ISSUE:  Did the district court err in denying Kelly's motion to suppress evidence of the victim's body? 

Ritter (Matthew) v. State of Nevada Supreme Court,
Docket No. 52753
Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

Matthew Ritter is appealing his conviction in Elko County for trafficking in methamphetamine.  After Ritter was transported to jail in a police patrol car on an outstanding warrant, a police officer found almost 398 grams of methamphetamine under the front passenger seat of the patrol car.  Ritter was charged with trafficking.  At trial, the State presented evidence that no other person was transported in the patrol car between the time Ritter was taken to jail on the outstanding warrant and when the officer found the methamphetamine.  ISSUES:  Does sufficient evidence support Ritter's conviction?  Did the district court properly admit evidence of Ritter's prior methamphetamine-related convictions?

The US Supreme Court issued a per curiam decision this morning in McDaniel v. Brown.  The Court concluded that the 9th Circuit misapplied Jackson v. Virginia in finding insufficient evidence to support the conviction based upon evidence presented after the conviction. 

Brown acknowledged the 9th Circuit's erroneous analysis and asked that the case be remanded for analysis under the correct standard and for consideration of unresolved issues.  The State asked for a reversal without remand.  The Court finds that the due process issue, concerning erroneous expert testimony on DNA, was not preserved but remands the case for consideration of an ineffective assistance of counsel claim.

Via Scotusblog, the US Supreme COurt granted cert. today in Dolan v. United States.  The case presents the issue of whether a district court decision to enter a restitution order beyond the 90-day time limit prescribed by 18 USC 3664(d)(5) must be vacated.

Next week at the US Supreme Court

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via Scotusblog:

Mon., Jan. 11:

Alabama v. North Carolina (132 Original) -- interstate dispute over enforcement of regional pact on disposal of radioactive wastes; responses to Special Master's report

Briscoe v. Virginia (07-11191) -- scope of crime lab analysts' role in a criminal trial; sequel to Melendez-Diaz v. Massachusetts, on Sixth Amendment Confrontation Clause rights

Tue., Jan. 12:

U.S. v. Comstock (08-1224) -- constitutionality of prolonged imprisonment of sex offenders after sentences completed

Abbott v. Abbott (08-645) -- parents' rights under Hague Convention on child custody

Wed., Jan. 13:

American Needle v. National Football League (08-661) -- antitrust liability of pro sports leagues for joint commercial activity

Jerman v. Carlisle (08-1200) -- legal error as an excuse for violation of debt collection law

This and That

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Good news and bad news: the Nevada Supreme Court has vacated the death penalty for Herbert Wesley, based upon an invalid aggravating circumstance, and has ordered a new penalty trial; but an execution date for the first week of February 2010 has been set for death row inmate Robert McConnell based upon his Washoe County conviction.

Note - the Sun article states that Nevada's last execution was in 1996.  This is not accurate.  Mack was executed in 2006.

The Nevada Supreme Court has approved a revised code of judicial conduct.  It does not appear that the revisions have been posted to the Nevada Supreme Court's website.

Yesterday, the 9th Circuit, in a 2-1 opinion in Harrison v. Gillespie, found that a defendant's right against double jeopardy would be violated if the State were allowed to seek the death penalty in a second trial.

The jury returned a verdict of guilt on the charge of first-degree murder.  Following the penalty trial, the jury reported that it was deadlocked, and two juror notes indicated that the deadlock was between life with parole, and life without. Harrison's counsel asked to poll the jurors on whether there was unanimous agreement that as to whether aggravated circumstances existed and whether they found that mitigating circumstances outweighed aggravators. The trial court denied the request, and declared a mistrial. The State of Nevada wants to seek the death penalty in a second penalty trial.  Harrison's counsel filed a petition for a writ of mandamus or prohibition with the Nevada Supreme Court, which was denied without analysis of the issue presented.  Harrison then filed a petition pursuant to 28 USC 2241 for a writ of habeas corpus in federal court.  It was summarily denied.  On appeal, the 9th Circuit (Judge Reinardt joined by Senior Judge Hug) granted relief and reversed the district court's denial of the petition. The panel held the trial court abused its discretion by declaring a mistrial without first granting petitioner's request to poll the jury to determine whether it had acquitted petitioner of the death penalty. The panel further held that, because no other alternative would adequately protect petitioner's rights under the Double Jeopardy Clause, the State could not seek and the court could not impose the death penalty at a sentencing retrial. Judge Silverman dissented, after finding that the federal constitution does not require a state trial judge to inquire into the unfinished deliberations of a discretionary matter before declaring a mistrial.

This and That

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The New York Times notes in an editorial, Prisons and Budgets, that the US has less than 5% of the world's population, but about 25% ot is prisoners.  The costs of such incarcerations are a huge issue for many states.

Adam Liptak reports on the decision by the American Law Institute to abandon efforts at creating a modern framework for the death penalty.  The ALI disavowed the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

A case concerning prosecutorial conduct has been dismissed by the US Supreme Court as moot, after an Iowa county and two men freed after spending 26 years in prison for murder settled the case for $12 million.  Prosecutors had knowingly used false evidence to convict the two men.  The case was argued before the Court in November.   

Via Sentencing Law & Policy, The Department of Justice has established new guidance for federal prosecutors regarding criminal discovery.

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