Nevada Supreme Court: December 2008 Archives

Nevada Supreme Court issues opinion

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Nika v. State - In an en banc opinion authored by Justice Hardesty, with Justices Cherry and Saitta dissenting, the Court finds the following:  "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction.  Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder.  We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided.  Nika's conviction was final before Byford was decided.  Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial."  gunbound mp3 files

In reaching this decision, the Court criticizes the Ninth Circuit's opinion in Polk v. Sandoval:  "The fundamental flaw, however, in Polk's analysis is the underlying assumption that Byford merely reaffirmed a distinction between 'willfulness,' 'deliberation,' and 'premeditation.'  It was based on that assumption that Polk concluded that the Kazalyn instruction was erroneous and that the instructional error violated the federal Constitution by omitting an element of the offense.  That underlying assumption ignores our jurisprudence."gunbound mp3 files

The Court, however, also recognized that portions its holdings in Garner and Byford were not correct: "Despite our disagreement with the assumption underlying the decision in Polk, we acknowledge that the change effected by Byford properly applied to that case as a matter of due process.  The United States Supreme Court has indicated that for purposes of due process, the relevant consideration 'is not just whether the law changed' but also 'when the law changed.'  Thus, if the law changed to narrow the scope of a criminal statute before a defendant's conviction became final, then due process requires that the change be applied to that defendant.  In such cases, retroactivity is not at issue; rather, due process requires that the conviction be set aside if required by the change in the law. In this respect, our decision in Garner erroneously afforded Byford complete prospectivity because as a matter of due process, the change effected in Byford applies to convictions that were not yet final at the time of the change.  Polk involved such a conviction.  This case, however, does not. Because Nika's conviction was final when Byford was decided, whether the change effected in Byford applies to Nika is a matter of retroactivity analysis.  This court previously has held that Byford has no retroactive application on collateral review. We reaffirm that decision today."gunbound mp3 files

Interesting unpublished decisions

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The Nevada Supreme Court has made available a new batch of unpublished decisions.  They may not be cited as precedent.  A few are of interest:gunbound mp3 files

Lewis v. State - the Court finds plain error based upon a jury instruction concerning the value of a vehicle.  The instruction erroneously instructed the jury to determine the value of the vehicle at the time the vehicle was taken, rather than at the time it was possessed.  The result is a reduction from a class B felony to a class C and the Court vacates an order for $5,200 in restitution.gunbound mp3 files

Johnson v. State - the merits of the issues presented are not all that interesting, but it is worth noting that the defendant was convicted of three counts of second-degree murder based upon the shotgun killings of three people inside an apartment -- proof once again that the Byford instructions on first-degree murder reflect a meaningful change from the Kazalyn instructions.gunbound mp3 files

Bolden v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court had dismissed the petition because it was not served on the Attorney General and warden.  The Court finds that the defects were curable and the petition should not have been dismissed on those grounds.gunbound mp3 files

Ruffin v. State - the Court reverses an order of the district court dismissing a post-conviction petition for a writ of habeas corpus.  The district court denied the petition because the defendant did not attach trial transcripts to his petition.  The Court found that there is no statute mandating that transcripts be attached and it would be unreasonable and wasteful for an indigent defendant to provide copies of transcripts that already exist in the district court and prosecutor's files.  The procedural history is interesting in that the district court dismissed without prejudice a 1996 petition on this ground, the defendant filed two additional post-conviction petitions, the second and third petitions were dismissed as untimely, but the Court reached the merits of the first petition based upon the appeal from the third order.gunbound mp3 files

Valdominos v. State - the Court reverses a judgment of conviction for two counts of sexual assault after finding prosecutorial misconduct and error in refusing to give a defense proposed jury instruction on the legal effect of multiple sexual acts.  The Court finds that the prosecutor committed misconduct by making remarks which belittled or disparaged the defendant or his case and by improperly attacking the defendant's character.  Although the defense did not object at trial, the Court finds plain error in the prosecutors statement that insinuated the defendant had raped another woman and was a serial rapist.  Justice Maupin dissented -- he found that the State committed misconudct but believed the conviction was supported by overwhelming evidence.gunbound mp3 files

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Oral argument calendar: Jan. 6 & 7

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The Nevada Supreme Court will hear en banc arguments in Carson City on January 6 and 7.

Tuesday, January 6, 2009

48329 THOMAS VS. HARDWICK, M.D.
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

48609 NOGUERA (CARLOS) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

It appears that this is a Clark County case in which the appellant is represented by the Clark County Public Defender's Office.  It appears that he was was convicted of two counts of sexual assault and was sentenced to life in prison with the possibility of parole.  I do not know the issues presented. gunbound mp3 files

48847 CHAVEZ (JAMES) VS. STATE
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

I have no details about this case. gunbound mp3 files

49029 NC-DSH, INC. VS. GARNER
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

49198 FUNDERBURK (SAMAJA) VS. STATE
2:00 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

It appears that the appellant is represented by John Parris and that the appellant was convicted of several counts of robbery based upon a string of convenience store robberies.  He was initially charged with dozens of kidnapping counts, but those charges were dropped at the opening of trial.  I do not know the issues presented on appeal. gunbound mp3 files

50443 SMITH (JACOB) VS. STATE
2:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

I have no details about this case. gunbound mp3 files

Wednesday, January 7, 2009

50251 ADAMS VS. CITY OF SPARKS C/S NOS. 49504/49682
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

49682 ADAMS VS. CITY OF SPARKS C/W NOS. 49504/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

49504 ADAMS VS. CITY OF SPARKS C/W NOS. 49682/50251
10:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

49512 RICO-ARREOLA (OSCAR) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

It appears that this is a sexual assault case in which the defendant is represented by the Public Defender's Office.  I do not know the issues presented on appeal. gunbound mp3 files

50989 HD SUPPLY FACILITIES VS. BYMOEN (NRAP 5)
11:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) gunbound mp3 files

50497 FIELDS (JOHN) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court )gunbound mp3 files

I have no details about this case. gunbound mp3 files

Nevada Supreme Court issues 5 opinions

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Sheriff v. Burcham - In a 4-3 decision, with a majority decision authored by Justice Gibbons, the Court reverses the grant of a pretrial petition for a writ of habeas corpus and dismissing a charge of driving and/or being in actual control of a vehicle while under the influence of alcohol and causing death and/or substantial bodily harm.  The Court finds that the Cotter standard still applies for determining whether a defendant is "under the influence" despite a 1995 statutory change in NRS 484.3795.  To find someone "under the influence," a fact-finder must determine that the driver was impaired "to a degree which renders him incapable of driving safely."  The Court also concludes that expert testimony regarding retrograde extrapolation is not required for grand jury proceedings.  Justices Cherry, Douglas and Saitta concurred in the Cotter standard analysis but dissented as to the Court's holding regarding expert testimony for retrograde extrapolation.gunbound mp3 files

Nellis Motors v. State, DMV - evidentiary hearing standard for revoking emission-inspector licenses gunbound mp3 files

Settelmeyer v. Smith & Harmer - attorney fees and receivership fundsgunbound mp3 files

In re Lerner - public reprimand issued against attorney for assisting in the authorized practice of lawgunbound mp3 files

Howell v. State Engineer - judicial review of State Engineer decisions regarding title to water rightsgunbound mp3 files

This and That

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Justice Hardesty will become the Chief Justice in  2009.gunbound mp3 files

Margaret Rudin will receive a new trial.  Duh.  Who didn't see this coming.  Apparently Chris Owens, who stated to the RJ "I think it's a joke that the taxpayers will have to fund a new trial for someone who had three attorneys."  Gotta wonder if Mr. Owens would be so openly critical of a judge who was not retiring.   And for that matter, what about the joke on the taxpayers who had to fund the trial for Bryan Crawley, who received a sentence of life without the possibility of parole following a month long trial - the same sentence he would have received had the Clark County District Attorney's Office agreed to plea the case prior to trial in lieu of seeking the death penalty.  At a time when there is serious consideration of laying-off teachers and refusing hospital services because of financial concerns, did the D.A.'s office really need to incur well over $100,000 on behalf of the taxpayers in a case which could have easily been resolved prior to trial?gunbound mp3 files

The Maryland Commission on Capital Punishment has issued its Final Report to the General Assembly.  The Commission recommends abolishment of capital punishment after exploring racial disparities, jurisdictional disparities, socio-economic disparities, a comparison of costs associated with the death penalty, a comparison of the effects of prolonged court cases, the risk of innocent people being executed, and other issues.gunbound mp3 files

The Death Penalty Information Center has issued its Year End Report.  The Center notes that 2008 saw a 30-year low in new death sentences for the county at 111.  There were 284 death sentences in 1999.  There were 4 exonerations in 2008 and 37 executions, 95% of which were in the South. gunbound mp3 files

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Interesting unpublished decisions

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An unpublished order shall not be regarded as precedent and shall not be cited as legal authority.  SCR 123.gunbound mp3 files

Parker v. State - the Court finds a violation of the Double Jeopardy Clause for convictions of both grand larceny auto and robbery.  The Court rejects the State's argument that the taking of the car keys constituted a separate offense and notes that the keys were located inside the car.  The grand larceny auto conviction is reversed.gunbound mp3 files

State v. Mikayelyan - the Court affirms an order of the district court granting a post-conviction petition for a writ of habeas corpus.  It's such a rare thing for state courts to grant habeas relief that it is worth noting here.gunbound mp3 files

Colato v. State - the Court finds a Lozada violation based upon trial counsel's failure to file a notice of appeal.gunbound mp3 files

Martin v. State - driving with studded snow tires is sufficient by itself to provide an arresting officer with probable cause to conduct a traffic stop.  The Court finds, however, that the district court erred by denying Martin's application for deferral of judgment and treatment pursuant to recently enacted NRS 484.37941.gunbound mp3 files

Pelat v. State - the Court reverses a judgment for misdemeanor battery and remands the case for further proceedings based upon the admission of bad act testimony without a limiting instruction.gunbound mp3 files

Stinchfield v. State - the district court prematurely released a jury by letting the jury go after returning verdicts on the guilt phase.  The jury should have determined the defendant's sentence.  The Court finds that the district court used the appropriate remedy by selecting a new jury for the penalty hearing.  The Court rejects the defendant's argument that he was entitled to a new trial.gunbound mp3 files

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Oral argument calendar: Dec. 10

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47167 KLEIN VS. RAPOPORT
10:00 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas ) gunbound mp3 files

48559 TENNESON VS. FOSTER
10:30 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas ) gunbound mp3 files

50313 CLARK CO. SCHOOL DIST. VS. VIRTUAL EDUCATION SOFTWARE
11:30 AM 30 min
Las Vegas Courtroom - 17th Floor
Southern Panel (Hardesty/Parraguirre/Douglas ) gunbound mp3 files

About this Archive

This page is a archive of entries in the Nevada Supreme Court category from December 2008.gunbound mp3 files

Nevada Supreme Court: November 2008 is the previous archive.gunbound mp3 files

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