September 2010 Archives

In Rio All Suite Hotel v. Phillips, the Nevada Supreme Court, in an en banc opinion authored by Justice Hardesty, considers a case in which an employee injured her ankle while descending a staircase at work.  The Court addresses "the standard to be applied to determine whether an employee seeking workers' compensation benefits has demonstrated, pursuant to NRS 616C.150(1), that her injury 'arose out of' her employment.  In situations in which an employee's injury is caused by a neutral risk--a risk that is not personal to the employee or solely employment-related--we adopt the increased-risk test, which evaluates whether the employee was exposed to a risk greater than that faced by the general public.  If so, then the employee's injury is deemed to have arisen out of his or her employment."  The Court finds that the frequency with which the employee was required to use the stairs subjected her to a significantly greater risk of injury than the risk faced by the general public.  

This is the Court's 34th opinion this year.  The Court has issued published opinions in 3 criminal cases.

Unpublished order of the day

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The Nevada Supreme Court issued a large number of unpublished decisions yesterday.  A few concern proper person appeals in cases that are decades old.  These appeals raise the same two issues, both of which fall flat.  Ewing v. State is representative of the group.

The defendants in these post-conviction cases argue that the procedural defaults that apply to habeas cases do not apply to their cases because the district court lacked subject matter jurisdiction over the original convictions.  Specifically, they claim "that the statutes under which [they] were charged and convicted are unconstitutional, as they did not contain the enacting clause mandated by Article 4, Section 23 of the Nevada Constitution."  The Court disagrees and finds that "while the Nevada Revised Statutes (NRS) 'constitute the official codified version of the Statutes of Nevada and may be cited as prima facie evidence of the law,' the actual laws of Nevada are contained in the Statutes of Nevada.  NRS 200.170(3).  Therefore, the sections of the Nevada Revised Statutes under which appellant was convicted were not unconstitutional for failure to include an enacting clause,indicating that the district court did not lack subject matter jurisdiction over appellant."  The Court also finds that the district court did not lack subject matter jurisdiction to impose a deadly weapon enhancement.

I would give an "A" for creativity.   

Unpublished order of the day

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The Nevada Supreme Court has issued only 3 published decisions in criminal cases this year - which makes a blog about criminal cases by the Nevada Supreme Court a bit sparse.  So a new feature - "unpublished order of the day" - will now appear.  Do not use these cases as precedent, but consider them as a guide to various issues.

Today's feature: Gallegos v. State - filed September 28, 2010.  The unpublished order is 18 pages.
This is a Washoe County case in which the defendant was convicted of first-degree murder.  The Court addresses four issues:
1 - admission of hearsay evidence and evidence of uncharged criminal conduct
2 - sufficiency of the evidence
3 - jury instructions on first-degree murder and consciousness of guilt
4 - admission of criminal history and victim impact testimony during the sentencing hearing.

As set forth below, most of the order does not break new ground or address new issues.  One issue, however, is of some interest.  The Court addresses whether victim impact speakers, in a non-capital case, may give their opinion to the jury as to which sentence should be imposed.  The Court finds the testimony admissible.  In   Randell v. State, 109 Nev. 5, 846 P.2d 278 (1993), the Court held that victim impact speakers could recommend a sentence in non-capital cases, but that sentencing hearing took place before a judge, not a jury.  In Randell, the Court concluded that a "district court is capable of listening to the victim's feelings without being subjected to an overwhelming influence by the victim in making its sentencing decision."  In this case, the Court extends Randell to cases in which the jury decides the sentence rather than the judge.  It relies upon NRS 176.015(3)(b), and its provision that the victim may reasonably express any views concerning the person responsible, to reach this conclusion.  

The Court finds that a message by the defendant left on the cell phone of a witness was not hearsay because it was the defendant's own statement.  The Court finds another statement admissible as a prior inconsistent statement.  The Court next finds that other statements were not introduced to prove the truth of the matter asserted, but were instead offered as context for actions taken by the witnesses.  The Court finds statements of a witness to be admissible as prior consistent statements.  The Court finds  a photo of a methamphetamine pipe to be admissible under the res gestae doctrine as it was the State's theory that the altercation with the victim took place because the defendant wanted to get more methamphetamine.

The Court finds the jury instructions on first-degree murder to be correct and not plain error.  The Court finds an instruction on consciousness of guilt, based upon the defendant's attempts to destroy evidence, to be proper and to be supported by the evidence at trial. 

The Court finds sufficient evidence, under both premeditation and felony murder theories, to support the conviction.

The Court finds evidence of the defendant's prior criminal history be relevant for the sentencing hearing. 


Oral Argument Calendar: Oct. 4

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Landreth v. Malik,

Docket No. 49732

Carson City-10:30 a.m. - Full Court

This is rehearing concerning the scope of family court jurisdiction.  On December 24, 2009, this court entered a decision reversing a default judgment and determining that the Clark County family court lacked jurisdiction to adjudicate the parties' claims. Landreth v. Malik, 125 Nev. ___, 221 P.3d 1265 (2009).  This court's majority opinion concluded that the family court's jurisdiction is limited to matters specifically enumerated in NRS 3.223.  In his petition for rehearing, Malik argues that NRS 3.223 does not control the subject matter jurisdiction of the family courts, but is actually an assignment statute that designates which cases are to be heard in family court.   ISSUES:  Does the family court have jurisdiction over claims involving meretricious relationships and implied contracts to hold property as community property between unmarried but cohabiting parties? 


Dieudonne (Abell) v. State of Nevada,

Docket No. 54491

Carson City-11:30 a.m. - Full Court

This appeal is about the sentencing process utilized following Abell Dieudonne's guilty plea in Clark County to charges of conspiracy to commit robbery, robbery with use of a deadly weapon, and second-degree murder. Dieudonne entered a guilty plea before District Court Judge Elizabeth Gonzalez with the anticipation that Judge Gonzalez would be the judge who sentenced him. However, following entry of his plea, the case was transferred to Judge Douglas Smith for sentencing. During the sentencing hearing, victim impact speakers were not sworn in, some did not qualify as victim impact speakers, and some used racial epithets, curse words, and threats directed at Dieudonne.  ISSUES:  (1) Was Dieudonne entitled to be sentenced by the judge who took his guilty plea, and (2) Did the district court err by allowing victim impact witnesses to use profanity, call Dieudonne names, and make threats against Dieudonne during their victim-impact statements and, if so, should the case be remanded for resentencing before a different district court judge?
Via Scotusblog:  The US Supreme Court has announced that beginning with its October Term 2010, audio recordings of all oral arguments heard by the Court will be available, free to the public on the Court's website -, at the end of each argument week.

US Supreme Court grants cert. in 14 cases

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Via Scotusblog:

Title: Kentucky v. King
Issue(s): Under what circumstances can lawful police action impermissibly "create" exigent circumstances that preclude warrantless entry?

Opinion below (Supreme Court of Kentucky)

Title: United States v. Tinklenberg
Issue(s): Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial. (Kagan, J., recused.)

Title: Freeman v. United States

Issue(s): federal sentencing guidelines for crack offenders for cases in which the defendant entered a guilty plea.

Title: Bullcoming v. New Mexico 
Issue(s): Whether admission of a blood alcohol report, through the testimony of a qualified analyst who did not conduct and observe the testing, is admissible under Crawford. v. Washington and Melendez-Diaz v. Massachusetts.

Title: Sykes v. United States
Issue(s): Whether a prior conviction for resisting law enforcement is a violent felony for the ACCA sentencing enhancment.



Title: Smith v. Bayer Corp.

Issues: Collateral estoppel, whether issues are identical, jurisdiction over absent members of a class


Title: Astra USA, Inc. v. Santa Clara County

Issue(s): Whether, in the absence of a private right of action to enforce a statute, federal courts have the federal common law authority to confer a private right of action simply because the statutory requirement sought to be enforced is embodied in a contract. (Kagan, J., recused.)

Opinion below (9th Circuit)


Title: Federal Communications Commission v. AT&T, Inc.

Issue(s): Whether Exemption 7(C) of the Freedom of Information Act -- which exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy" - protects the "privacy" of corporate entities. (Kagan, J., recused.)



The two cases below are consolidated.

Title: General Dynamics Corp. v. United States
Issue(s): Whether the government can maintain its claim against a party when it invokes the state-secrets privilege to completely deny that party a defense to the claim.

Title: The Boeing Company v. United States
Issue(s): Whether the Due Process Clause of the Fifth Amendment permits the government to maintain a claim while simultaneously asserting the state-secrets privilege to bar presentation of a prima facie valid defense to that claim.



Title: J. McIntyre Machinery v. Nicastro
Docket: 09-1343
Issue(s): May a state exercise in personam jurisdiction over a foreign manufacturer solely because the manufacturer targets the US market and the product is purchased by a consumer in the forum state.

Title: Goodyear v. Brown
Issue(s): Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant.

Title: Stern v. Marshall
Issue(s): (1) Whether the Ninth Circuit's interpretation of 28 U.S.C. § 157(b)(2)(C) contravenes congressional intent; (2) whether Congress may authorize core jurisdiction over debtors' compulsory counterclaims to proofs of claim; and (3) whether the Ninth Circuit contravened Supreme Court precedent and created a circuit split by holding that Congress cannot constitutionally authorize non-Article III bankruptcy judges to enter final judgment on all compulsory counterclaims to proofs of claim.

Opinion below (9th Circuit)

Title: Schindler Elevator Corp. v. US ex rel. Kirk
Issue(s): Whether a federal agency's response to a Freedom of Information Act request is a "report . . . or investigation" within the meaning of the False Claims Act public disclosure bar, 31 U.S.C. § 3730(e)(4). (Kagan, J., recused.)