Nevada Supreme Court: November 2008 Archives

Valdez v. State - The facts of this capital case are highly unusual in that when the jury returned its verdict of guilt on the charge of first-degree murder, the foreperson announced that they had also reached a decision as to whether Valdez should receive the death penalty.  In other words, the jury decided the penalty before the penalty hearing.  The Nevada Supreme Court, in a 5-2 conviction reverses the judgment.  The opinion is authored by Justice Hardesty.  Justices Gibbons and Parraguirre dissented.free download the songs of

The Court first concludes that the district court (Judge Bonaventure) erred by failing to instruct the jury in writing, after the close of argument, that it was not to deliberate as to Valdez's possible penalty until after the sentencing hearing.free download the songs of

The Court next finds that the jury acted improperly by deliberating the penalty while deciding the issue of guilt and that the district court abused its discretion in denying a mistrial based upon this misconduct.free download the songs of

The Court next clarifies the proper harmless-error analysis for prosecutorial misconduct of constitutional and nonconstitutional dimenstion.  The Court finds that the prosecutors engaged in several instances of misconduct throughout the trial and that this misconduct contributed to the cumulative error that warrants reversal of the judgment of conviction.free download the songs of

Disclosure - I am counsel for Valdez.free download the songs of

The Court issued a third opinion today, Boucher v. Shaw.  It involves a certified question from the Ninth Circuit under NRAP 5 concerning whether under NRS 608 individual managers can be held liable as employers for unpaid wages.free download the songs of

 free download the songs of

 free download the songs of

In re: William M. & In re: Marques B. - these are consolidated appeals from juvenile court orders certifying the appellants for criminal proceedings as adults on charges involving the use of a firearm.  The Court summarizes its holding:free download the songs of

" These appeals center on Nevada's presumptive certification statute, which consists of NRS 62B.390(2) and (3).  These provisions create a rebuttable presumption that juveniles who are over 13 years of age and charged with certain enumerated offenses fall outside of the jurisdiction of the juvenile court and must therefore be transferred to the district court for adult criminal proceedings.  In particular, we examine NRS 62B.390(3)(b)'s rebuttal requirements in light of the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.  Under NRS 62B.390(3)(b), to rebut the presumption of certification, the juvenile court must find clear and convincing evidence that the juvenile's criminal actions were substantially influenced by substance abuse or emotional or behavioral problems that may be appropriately treated within the jurisdiction of the juvenile court.  Appellants argue that NRS 62B.390(3)(b) requires juveniles to admit to the charged, but unproven, criminal actions, which implicates the Fifth Amendment right against self-incrimination and the constitutionality of the presumptive certification provisions.free download the songs of

            Thus in resolving these appeals, we initially determine whether the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings.  We conclude that the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings under the United States Supreme Court's decision in In re Gault. Necessarily, we overrule that part of this court's decision in Marvin v. State that improperly concluded that the Fifth Amendment right against self-incrimination did not apply to juveniles in waiver proceedings.free download the songs of

            Given the Fifth Amendment's applicability to juvenile certification proceedings, we next address whether NRS 62B.390(3)(b)'s rebuttal terms impinge on the right against self-incrimination by requiring the juvenile to either accede to the criminal court's jurisdiction despite having a substance abuse or emotional or behavioral problem, or to admit guilt, even though that admission could later be used against him in juvenile or adult court proceedings.  We hold that, by requiring a juvenile to admit to the charged criminal conduct in order to overcome the presumption of adult certification, the presumptive certification statute, NRS 62B.390(2) and (3), violates the juvenile's Fifth Amendment right against self-incrimination."free download the songs of

Congratulations on the great victory to Kristina Wildeveld & Amicus ACLU of Nevada, National Juvenile Defender Center and Juvenile Law Center.free download the songs of

The Nevada Supreme Court will sit en banc and will hear oral arguments in Carson City on December 1 and 2:free download the songs of

Monday, December 1, 2008

49351 V AND S RAILWAY VS. WHITE PINE COUNTY
2:00 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) free download the songs of

Tuesday, December 2, 2008

50625 REGENCY TOWERS VS. DIST. CT. (LAS VEGAS INT'L COUNTRY CLUB)
9:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) free download the songs of

49396 RIVERA VS. PHILIP MORRIS, INC. (NRAP 5)
11:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) free download the songs of

Learning something new

| | Comments (0) | TrackBacks (0)

While perusing through the newest posting of unpublished orders I found State v. District Court (Martinez), which is an order denying the State's original petition for a writ of mandamus or procedendo.  I thought I was up on all of the writs: the habeas, the mandamus, the prohibition and even the coram nobis.  Procedendo was a new one to me -- so I consulted the source of information on all subjects, Wikipedia, and learned the following:free download the songs of

"In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment.free download the songs of

"The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be."free download the songs of

State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (Ohio 1937).free download the songs of

The writ of procedendo ad judicium was the earliest remedy for the refusal or neglect of justice on the part of the courts.It was an original writ, issuing out of chancery to the judges of any subordinate court, commanding them in the king's name to proceed to judgment, but without specifying any particular judgment. In case of disobedience or of neglect on the part of the judges to whom it was addressed, or refusal by them to act, they were liable to punishment for contempt.free download the songs of

Inherently, the most important limitation on this jurisdiction is that the writ of mandamus is not a proper remedy to control or direct the decisions of inferior courts in matters wherein they have judicial cognizance and discretion. In other words, so far as the writ affects the action of inferior courts, its use is not to be extended to compel the rendition of a particular judgment, in accordance with the views of a higher court.free download the songs of

In re Press Printers & Publishers, Inc., 12 F.2d 660, 664 (3d Cir. 1926)free download the songs of

It corresponds to certiorari, except that certiorari is a higher court's order to a lower court to send the record of a case to it for appellate review."free download the songs of

It appears that there are no Nevada published opinions concerning the writ of procedendo.  Anyway, something new for a Friday morning.  Thought I should share.  Back to work.free download the songs of

Nevada Supreme Court issues an opinion

| | Comments (0) | TrackBacks (0)

Yea!!free download the songs of

Olivares v. State - Olivares was convicted of first-degree murder with use of a deadly weapon.  His counsel raised questions about his competency prior to trial, but the district court (Judge Bonaventure) refused to hold a hearing.  The Court, sitting en banc, concludes that the district court abused its discretion and denied Olivares his rights to due process by failing to hold the hearing.  The judgment is reversed and the case is remanded to the district court to conduct a competency hearing and a new trial in the event that Olivares is found competent to stand trial.free download the songs of

Congrats to Norm Reed and Nancy Lemcke of the Clark County Public Defender's Office.free download the songs of

New unpublished decisions have been posted by the Nevada Supreme Court.  SCR 123 states that these unpublished orders shall not be regarded as precedent and shall not be cited as legal authority.free download the songs of

State v. Spina - the Court denies the State's appeal from an order of the district court dismissing a charge of first-degree murder with use of a deadly weapon.  The State had argued that the defendant could be charged with felony murder based upon an allegation of burglary with "ex-felon in possession of a firearm" as the predicate felony for burglary.  The Court agreed with the district court that "burglary cannot be predicates solely on entry into a structure or vehicle by an ex-felon in possession of a firearm."  The Court also agreed with the district court that "ex-felon in possession of a firearm" is not inherently dangerous.  "Thus, there is no justification for the imputation of implied malice under the felony-murder rule.  Accordingly, we conclude that it would be impermissible to allow the State to bootstrap 'ex-felon in possession of a firearm' into burglary in order to sustain a conviction for murder in the first-degree under the felony-murder rule."free download the songs of

* There appears to be no case authority in Nevada directly addressing this issue.  I'm puzzled by the Court's decision not to publish this decision as an opinion. free download the songs of

Ledezma v. State - the Court rejects the defendant's argument that NRS 453.3405, which allows for a lesser sentence if the defendant offers substantial assistance to law enforcement, violates his equal protection rights because persons, like him, who are subject to an INS immigration hold cannot be released from custody and participate in "buys" for police officers.free download the songs of

Mejia v. State - the Court finds that the district court abused its discretion in failing to appoint counsel for post-conviction proceedings in a case in which the defendant was convicted of sexual assault on a minor and lewdness with a minor and was serving life sentences.free download the songs of

 Winston v. State - the Court finds a jury instruction on implied malice as it relates to attempted murder to be incorrect, but finds the error to be harmless.free download the songs of

This Week

| | Comments (0) | TrackBacks (0)

Monday, November 10free download the songs of

US Supreme Court orders released (no new cert grants were ordered)free download the songs of

10:00 - US Supreme Court oral argument in Chambers v. United States (whether failure to report to prison is a "violent felony" under the Armed Career Criminals Act).free download the songs of

11:00 - US Supreme Court oral argument in United States v. Hayes (whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of "domestic violence").free download the songs of

1:00 - US Supreme Court oral argument in Melendez-Diaz v. Massachusetts (whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in prosecution).free download the songs of

 free download the songs of

Tuesday, November 11 free download the songs of

Holiday.  Courts closed.free download the songs of

 free download the songs of

Wednesday, November 12free download the songs of

10:30 - Nevada Supreme Court oral argument in Jeffries v. Statefree download the songs of

11:30 - Nevada Supreme Court oral argument in Courtesy Cars v. Morganfree download the songs of

1:30 - Nevada Supreme Court oral argument in Perez-Marquez v. Statefree download the songs of

United States Supreme Court oral argument in Pleasant Grove City, UT v. Summum (whether donated monuments displayed in public parks qualify as private speech, thus requiring municipalities to display monuments from all other donors).free download the songs of

United States Supreme Court oral argument in Bell v. Kelly (whether the deferential standard in the federal habeas corpus statute should be applied to claims a state court did not conisder).free download the songs of

 free download the songs of

 free download the songs of

Thursday, November 13free download the songs of

Nevada Supreme Court opinion release dayfree download the songs of

10:00 - Nevada Supreme Court oral argument in Anderson v. Ruppco Inc.free download the songs of

10:30 - Nevada Supreme Court oral argument in Madruga v. Aguilarfree download the songs of

1:30 - Nevada Supreme Court oral argument in Fields v. Statefree download the songs of

 free download the songs of

Friday, November 14free download the songs of

10:00 - Nevada Supreme Court oral argument in Ferguson v. Landmark Homesfree download the songs of

10:30 - Nevada Supreme Court oral argument in State Engineer v. Morris Delee Revocable Trustfree download the songs of

11:30 - Nevada Supreme Court oral argument in Cadle Co. II vs. Fountainfree download the songs of

1:30 - Nevada Supreme Court oral argument in Las Vegas Paving v. Nevada Powerfree download the songs of

 free download the songs of

 free download the songs of

Wednesday, November 12, 2008

47176 JEFFRIES (CHRISTOPHER) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

47582 COURTESY CARS VS. MORGAN
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

47691 PEREZ-MARQUEZ (OSCAR) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

Thursday, November 13, 2008

48037 ANDERSON VS. RUPPCO INC.
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

48548 MADRUGA VS. AGUILAR
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

49417 FIELDS (LINDA) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

Friday, November 14, 2008

49561 FERGUSON VS. LANDMARK HOMES & DEV., INC. C/W 49038
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

49038 FERGUSON VS. LANDMARK HOMES & DEV., INC. C/W 49561
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

49410 STATE ENGINEER VS. MORRIS DELEE REVOCABLE TRUST
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

49488 CADLE COMPANY II VS. FOUNTAIN
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

49766 LAS VEGAS PAVING VS. NEVADA POWER CO.
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) free download the songs of

Interesting unpublished decisions

| | Comments (0) | TrackBacks (0)

There's not much to discuss concerning today's published opinion, but a few unpublished decisions are interesting.free download the songs of

 free download the songs of

Dolores-Alvarez v. State - The non-English speaking defendant represented himself at trial.  A Faretta canvass was conducted by the district court, but it did not include a warning that there could be negative consequences to relying on an interpreter in front of a jury.  The Nevada Supreme Court finds that such a warning was not required.  The Court also finds that reversal was not warranted based upon a claim of misconduct, though the Court did find the prosecutor's arguments to be improper:free download the songs of

"We observe that some of the prosecutor's statements were problematic -- especially the comment about the victim's motives for recanting her story and the comment that the victim 'deserved to be believed.'  Nonetheless, due to the overwhelming evidence of Alvarez's guilt, the prosecutor's remarks were not prejudicial.  Accrodingly, the prosecutor's statements do not rise to the level of plain error and Alvarez is not entitled to relief on this claim."free download the songs of

State v. Stotler - The Court dismisses the State's appeal from an order granting the defendant's motion to suppress evidence.  Although the State filed a notice of appeal with the clerk of the district court, it failed to file a second notice of appeal in the Nevada Supreme Court within 5 judicial days of the district court's ruling, as required by NRS 177.015(2).  The Court rejects the State's request to excuse the mistake based upon ignorance of the law and notes that the statutory requirements to invoke the Court's jurisdiction cannot be excused or waived.  The same issue was presented, with the same result, in State v. Knight.free download the songs of

City of Las Vegas v. Eighth Judicial District Court - A municipal court imposed a civil penalty for the act of selling an alcoholic beverage without a valid license and acquitted the defendant of the criminal charge.  The City challenged this ruling in district court.  The district court found that the Double Jeopardy Clause prevented the district court from granting the City's requested relief.  The Nevada Supreme Court rejected the City's petition for a writ of mandamus, but reminded the district court and municipal court that  the violation of the city code provision at issue defined a criminal offense.free download the songs of

Reiger v. State - The Court considers whether reversal is required based upon disparagement of the defense by the district court judge (Judge Glass).  The Court considers the issue despite the absence of objection at trial based upon Oade v. State, 114 Nev. 619, 622, 960 P.2d 336, 338 (1998).  It reviewed the legal standard and then noted the following:free download the songs of

"Here, the district court mocked defense counsel's impachement of Kelly Souther, an eyewitness, regarding his ability to perceive the Crown Royal bag exit Reiger's driver's side window as Souther was sitting in his car.  Attempting to clarify Souther's line of sight during cross-examination, defense counsel asked Souther: 'your eyes are outside your [car] window, right?'  Without any prompting, the district court interjected: 'I don't know that his eyes were literally outside his window, Mr. Speed.'  The literal absurdity of defense counsel's question, however, would not have been detected by a rational juror had the court not gratuitously remarked upon it.  Moreover, in this one-eyewitness case, the court's sarcasm was especially unwelcome since it came during Souther's impeachment, a critical point in the evidence for the defense given that Reiger's defense theory depended almost exclusively on raising doubts regarding Souther's perception of events."free download the songs of

The Court also noted other remarks which evidenced "some irritation with defense counsel" and noted that the record confirmed that the district court directed commands to sit down disproportionately at the defense.  The Court found that the district court's remarks raised concerns under Nevada Code of Judicial Conduct Canon 3B, which requires judges to be "patient, dignified and courteous" when interacting  with counsel and litigants.  The Court nonetheless found that reversal was not warranted as the district court did not fine defense counsel and did not comment on the merits of the defense in front of the jury.  The Court also found that the district court's exasperated tone was animated out of concern for expediting the trial rather than true animus for the defense and the evidence against the defendant was strong.  "Thus, although inappropriate at times, we conclude that the district court's conduct did not constitute plain error."free download the songs of

Nevada Supreme Court issues 1 opinion

| | Comments (0) | TrackBacks (0)
A civil case: Waldman v. Maini - something about life insurance, the trust doctrine and the Uniform Simultaneous Death Act.  I stopped reading after the third paragraph, so you're on your own for analysis.

This Week

| | Comments (0) | TrackBacks (0)

Monday, November 3free download the songs of

US Supreme Court hears argument in Wyeth v. Levine (actions under state law for ineffective drug laws), Ysursa v. Pocatello Education Association (1st Amendment and payroll deductions for political contributions), and Carcieri v. Kemprthorne (tribal trust lands).free download the songs of

Nevada Supreme Court holds en banc oral arguments.free download the songs of

 free download the songs of

Tuesday, November 4free download the songs of

Election dayfree download the songs of

US Supreme Court hears argument in FCC v. Fox Television (fines for broadcast of isolated expletives), US v. Eurodif (contracts for uranium and anti-dumping laws) and Jimenez v. Quarterman (whether the reinstatement of an appeal under Texas law tolls or restarts the one-year deadline to file a habeas petition under federal law).free download the songs of

Nevada Supreme Court holds en banc oral arguments, including arguments in Mack v. Estate of Mack and Higgs v. State.free download the songs of

 free download the songs of

Wednesday, November 5free download the songs of

US Supreme Court hears argument in Negusie v. Mukasey (federal immigration law and refugees who in engaged in persecution due to threats of death or bodily harm) and Van de Kamp v. Goldstein (whether supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants).free download the songs of

Bar Admissions Ceremony - Northern Nevadafree download the songs of

 free download the songs of

Thursday, November 6free download the songs of

Nevada Supreme Court opinion release dayfree download the songs of

 free download the songs of

Friday, November 7free download the songs of

Bar Admissions Ceremony - Las Vegasfree download the songs of

Clark County Bar Association - New Admittees and Meet Your Judges Celebrationfree download the songs of

 free download the songs of

About this Archive

This page is a archive of entries in the Nevada Supreme Court category from November 2008.free download the songs of

Nevada Supreme Court: October 2008 is the previous archive.free download the songs of

Nevada Supreme Court: December 2008 is the next archive.free download the songs of

Find recent content on the main index or look in the archives to find all content.free download the songs of

Nevada Supreme Court: November 2008: Monthly Archives

Powered by Movable Type 4.0