Unpublished order of the day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  So a new feature - "unpublished order of the day" - will now appear.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  The unpublished order is 18 pages.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. 



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This page contains a single entry by JoNell published on September 29, 2010 10:02 AM.

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