Nevada Supreme Court: 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Unpublished order of the day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The Nevada Supreme Court issued a large number of unpublished decisions yesterday.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?