Entries tagged with “Nevada Supreme Court” from Harmfulerror

I have a fast-track statement due, so you're on your own for details:

Funkerburk v. State - NRS 193.165's definition of a "deadly weapon" may be applied to a charge of burglary while in possession of a deadly weapon under NRS 205.060(4).  The district court did not err in instruction the jury that a BB gun is a firearm.

Berry v. State - The district court did not err by instructing the jury on NRS 202.253(2)'s definition of "firearm" even though the defendant was not charged with possession or use of a firearm and NRS 193.165 does not reference NRS 202.253.  Also, whether the weapon was unloaded or inoperable at the time of the crime is irrelevant.  The Court finds, however, that a toy pellet gun is not a deadly weapon.  Finally, the Court finds that the open and gross lewdness statute is not unconstitutionally vague.

Commission on Ethics v. Hardy - the legislature cannot delegate to another branch of government its authority to discipline a legislator's conduct if that conduct involves a core legislative function.

Allstate Insurance Co. v. Miller - bad faith and insurance, special verdict forms 

Chavez v. State - testimony from a preliminary hearing may be admissible at trial, under the 6th Amendment and Crawford v. Washington.  Factors concerning admissibility include the discovery made available to the defendant at the time of the preliminary hearing and the extent of cross-examination allowed by the magistrate judge.

Grosjean v. Imperial Palace -  qualified immunity does not shield private actors from civil liability in an action under 42 USC 1983, punitive damages of $500,000 were the result of continued attorney misconduct so a new trial as to the damages is warranted, and a defendant may not recover damages under state law for identical conduct if he is granted a damage award under 1983.  The portion of the opinion addressing attorney misconduct should be reviewed by criminal practitioners as the Court's ruling could be applied easily to criminal cases.

From the Nevada Supreme Court:

Effective July 30, 2009, the Nevada Supreme Court Clerk's Office will be accepting both civil and criminal documents for filing through our web-based electronic filing (e-filing) system.  The system is available 24 hours a day, seven days a week for the submission of filings.  The system allows attorneys and district court clerks to file documents; pay filing fees; view and print electronic versions of documents and docket sheets; and receive electronic notifications when other parties or participants file to your cases.
To get started e-filing documents, please visit our website at http://www.nevadajudiciary.us/index.php/supremecourt.html  and click on Court E-filing. 
If you encounter any problems with the e-filing system, please contact the Supreme Court of Nevada Clerk's Office at (775) 684-1600.
Please note:  the e-filing system will be down starting at 5 p.m. on July 29, 2009, for about 15 minutes, so during this time no one will be able to access their account or do any filings.

From the Nevada Appeal:

It looks like the Nevada Supreme Court will not be releasing any opinions today.  I suggest the following for your Thursday reading time:

Supreme Court Receives Indigent Defense Study.  The study is available here.

The new Nevada Rules of Appellate Procedure are in effect (as of July 1, 2009).  They are difficult to find on the Court's website, but this link will take you to them.

The Nevada Supreme Court is cranky because some lawyers routinely fail to complete their CLE.

It's a huge surprise to some of us who handle appeals in criminal cases, but it appears that the Nevada Supreme Court is actually interested in hearing requests for bail pending appeal.  It has even agreed to hear oral argument on the issue in one case.  I recommend that we all start filing bail motions in appropriate appeals.  Sample motions are available here.

In an unpublished decision, which has been the subject of great media attention, the Nevada Supreme Court held that the DMV was wrong to deny a personalized license plate of "HOE," as in Lake Tahoe, but shorter.  The Court finds that the DMV's exclusive reliance on www.urbandictionary.com was wrong. The decision in DMV v. Junge is available here.  The Volokh Conspiracy gives its take on the Court's analysis.

The Ninth Circuit issued a great Batson decision yesterday:  Ali v. Hickman.  It's a must read for both trial and appellate counsel.

Karl Roved testified under oath, but in a closed-door appearance, about his role in the dismissal of US Attorneys, including Nevada US Attorney Dan Bogden.

It's been a bad month for Washoe County District Attorney Dick Gammick.  The Ninth Circuit has affirmed in part and reversed in part a ruling of a federal district court concerning allegations that Gammick and his staff interferred with the work of a school district truancy officer.  The officer claimed that Gammick Assistant District Attorney John Helzer and Washoe County retaliated against for contacting the Nevada Attorney General about his concerns over the accuracy of a nurse in the Child Abuse Response and Evaluation program.  The Circuit found that a First Amendment retaliation claim was improperly dismissed because the speech at issue involved a matter of public concern and was made by the officer, who was a former detective, as a private citizen rather than his official capacity. The Circuit also found that the district court properly determined that the Defendants did not enage in any adverse action related to Botello's employment as a school police officer. The order in Botello v. Gammick is available here. Gammick is facing additional problems as three women contend that they were verbally abused by an employee of the Washoe County District Attorney's Office and that officials, including Gammick, retaliated against them when they complained about the alleged harassment.

MGM Mirage v. Nevada Ins. Guaranty Ass'n - self-insured employers under the Workers' Compensation Act are not barred from recovering payment from the Nevada Insurance Guaranty Assocation for their covered workers' compensation claims payable by their isolvent excess insurance carrier.

St. James Village, Inc. v. Cunningham - servient estate, unilateral relocation of easements and inconvenience of dominant estate owners. 

Reading these opinions reaffirms my desire to practice criminal law.  I'm skippping analysis of both.

Here's the new website address:  http://www.nevadajudiciary.us/.

It's definitely prettier and the unpublished orders are much easier to find.

The Nevada Supreme Court issued its seventh opinion of the year.

In Collins v. State, the Court finds that NRS 0.060(2)'s definition of substantial bodily harm as "prolonged physical pain" is not unconstitutionally vague.

The Nevada Supreme Court did not release any published opinions this week. The Court published its most recent opinions on January 29, 2009.  To date, there are 6 published decisions this year.

The Court has not posted an unpublished dispositions in the last month.  The date of the last unpublished decision is January 16, 2009.

Nevada Governor Jim Gibbons is proposing what I consider to be the most outrageous, deficient and insulting budget I can imagine.  The 2870 page document is available here.  Many of his proposed cuts will have a direct impact upon criminal justice issues - both in the short and long terms.

The Governor proposes that state employees take the brunt of the budget cuts: by a 6% reduction in pay, elimination of merit increases and longevity pay.  State employees would also pay more for insurance benefits.  The Governor also proposes a substantial reallocation of some property tax funds from Washoe and Clark County.  If those are approved, additional cuts in county budgets could also have a significant impact on the courts, public defenders, the detention center, mental health treatment, and other programs paid for by the counties.

The Nevada Supreme Court proposed budget is at page 255 of the PDF (Courts - 1 in the document).  The proposed budget shows a drastic cut in the budge for Information Services.  The amount in 2007-08 was $628,178.  The Court's request is for $160,034, and the Governor proposes $177,023, for 2009-10.  The Court requested $20,401 for training of legal staff, the Governor proposes $10,300.  The Court requests $113,333 for funding in order to complete a case management system, which the Governor proposes to fund as a re-appropriation from funds not previously spent.  The Governor's plan to suspend merit increases results $19,616 less for 2009-10 and $55,468 less ofr 2010-11.  The longevity payments suspension would mean $18,800 less in 2009-10 and $21,150 less for 2010-11.  Cuts in the insurance subsidy to current and retirmed employees would result in a reduction of $178,850 for 2009-10 and $226,270 for 2010-11.

The Governor does not propose cuts in district court judge salaries.  Their budget is at page 264 of the PDF (Court - 10 in the document).  He proposes a reduction in the amount allocated to senior judges of $147,456 below that requested by the courts and approximately $300,000 less than the amount spent this year on senior judges.  With a whole new batch of senior judges adding to the existing roles, it will be interesting to see how this plays out.

The law school had a proposed budget of $14,365,171, but the Governor recommends a budget of $12,688,982 for 2009-10.  The budget is at page 783 of the PDF (NSHE - 89 in the document).

The State Public Defender's budget is at page 1404 of the PDF (DHHS Director's Ofc - 43 in the document).  The current budget is $2,665,016.  The Governor proposes $2,666,269 for 2009-10 and $2,700,503 for 2010-11.  These small increases reflect that the funding needed for indigent defense, especially in the rural counties, will not increase in any meaningful manner, as mandated by the Indigent Defense Commission and its performance standards.

The Governor proposes the closure of the Nevada State Prison on July 1, 2009 and notes that this will eliminate 10 medical staff positions and result in a budget reduction of approximately $1,000,000.  This is at page 2100 of the PDF (Corrections - 13).  It does not appear that additional medical positions will be added at other prisons which will take the inmates from NSP - despite the existing lawsuit and enormous concerns over prison medical care.  He proposes adding approximately 150 inmates to Ely State Prison, but allocates no new funds for them.  Instead, he claims the cost per inmate will drop from $68.25 per day to $60.75 per day.  This is nuts.  Other prisons reflect similar increases in inmate population, decreases in cost per inmate per day, and no explanation as to how this is possible other than a much lower guard per inmate ratio - which is a significant issue of public safety at many of the facilities. 

While substantial cuts are being imposed, the Governor proposes increases in the budgets of other departments.  Some of the increases are beyond puzzling.  For example, at page 144 of the PDF (Elected - 105 in the document), is the proposed budget for the Council for Prosecuting Attorneys.  The Council develops training for prosecutors, coordinates the development of policies for conducting criminal and civil litigation and coordinates proposed legislation.  Most of the funding comes from court assessments, but there is no reason that this funding could not be sent to more critical functions of state government.  The 2007-08 budget was $221,066.  The agency requested $255,200 for 2009-10, but the Governor, despite cutting many other areas, proposes a budget of $269,580.  Likewise, the Governor recommends $264,445 for 2010-11, nearly $30,000 more than the agency's proposed budge of $235,597.  I'm not opposed to DA training, but this is a function that can easily be performed in-house within the DA's existing budget during times of financial crisis.

The Nevada Supreme Court has issued a stay of discovery ordered by Judge Mosley in the capital case of State v. Curtis Bonilla.  I don't remember how to download a pdf and the order is not published on the Court's website, so here's the text:

"This is an original petition for a writ of mandamus or prohibition challenging a district court order granting the State's motion for production of discovery pursuant to NRS 174.245, including materials to be presented during the penalty phase in a death penalty case.  Petitioner requests a stay of the proceedings and requests this court to prohibit the district court from ordering pretrial discovery of petitioner's penalty phase evidence before a finding of guilt is returned.  Cause appearing, we grant a stay of the district court's order to the extent that it compels discovery of petitioner's penalty phase evidence before the jury returns a verdict on the guilt phase of the trial.

Further, we have reviewed the petition, and it appears that petitioner has set forth issues of arguable merit and may have no plain, speedy and adequate remedy in the ordinary course of the law.  Accordingly, the State, on behalf of respondents, shall have 10 days from the date of this order within which to file an answer, including authorities, against issuance of the requested writ." 

I stopped doing "In the news" awhile back as it was too time consuming, but there's too much going on today to let it go.  Check out the following:

Las Vegas Review Journal publisher Sherman Frederick claims on his blog, The Complete Las Vegan (both an arrogant and a confusing name in my book) that a couple of the Nevada Supreme Court justices are feuding over the suggestion of a voluntary pay freeze:  Supreme Court brawl over pay freeze?

Yesterday Frederick's blog criticized Judge Hardcastle based upon her caseload:  Good judges, bad judges.  Be sure to check out the comments.

Ex-Judge Halverson's husband was sentenced to 3 to 10 years on his conviction for battery with a deadly weapon resulting in substantial bodily harm.

Oral argument audio files are available for arguments held before the Nevada Supreme Court on January 6 and 7.  Criminal cases include:

Fields v. State

Rico-Arreolla v. State

Smith v. State

Funderburk v. State

Chavez v. State

Noguera v. State

These are not official, they do not include unpublished dispositions, and they may not be entirely correct, but here they are:

Number of published opinions: 103

Criminal: 35

Civil: 57

Family: 1

Bar: 1

Judicial Discipline: 1

Certified question: 2

Election: 6

Affirmed or Petition Denied: 42

Reversed or Petition Granted: 38

Affirmed in part, reversed in part: 22

Other: 2

Criminal Cases:

Favorable to Defense: 13

Favorable to Prosecution: 16

Mixed: 5

Death Penalty: 4

Death sentences reversed: 1

Death sentences affirmed: 3

En Banc: 64

Splits

Gibbons, Maupin, Hardesty, Parraguirre majority/Cherry, Douglas, Saitta concur & dissent - 1

Gibbons, Maupin, Hardesty, Parraguirre, Douglas, Saitta majority/Cherry concurs - 1

Gibbons, Maupin, Hardesty, Parraguirre, Douglas, Saitta majority/Cherry concurs & dissents - 2

Gibbons, Maupin, Hardesty, Parraguirre, Cherry, Saitta majority/Douglas concurs - 1

Gibbons, Maupin, Hardesty, Parraguirre, Cherry, Saitta majority/Douglas dissents - 1

Gibbons, Maupin, Douglas, Cherry majority/Hardesty, Parraguirre, Saitta concur - 1

Gibbons, Douglas, Cherry, Saitta majority/Hardesty, Maupin, Parraguirre concur & dissent - 1

Gibbons, Hardesty, Parraguirre, Douglas, Cherry, Saitta majority/Maupin concurs & dissents - 1

Gibbons, Hardesty, Parraguirre, Douglas, Saitta majority/Maupin, Cherry concur & dissent - 1

Gibbons, Hardesty, Douglas, Cherry majority/Maupin, Parraguirre concur & dissent -1

Gibbons, Maupin, Parraguirre, Douglas, Cherry, Saitta majority/Hardesty dissents - 1

Maupin, Hardesty, Douglas, Cherry, Saitta majority/Gibbons, Parraguirre dissent - 1

Maupin, Hardestym Parraguirre, Douglas majority/Gibbons, Cherry dissent - 1

Maupin, Hardesty, Parraguirre, Saitta majority/Gibbons, Douglas, Cherry concur & dissent - 1

Panels:

Hardesty, Parraguirre, Douglas - 24

Splits:

Douglas, Parraguirre majority/Hardesty concurs & dissents - 1

Maupin, Cherry, Saitta - 6

Gibbons, Maupin, Cherry - 1

Gibbons, Maupin, Saitta - 1

Gibbons, Cherry, Saitta - 2

District court judge records:

Adair - affirmed - 3, affirmed in reversed - 3

Adams - reversed -2

Bell, Stew - affirmed in part & reversed in part - 1, reversed - 4

Bonaventure - reversed - 2

Breen - affirmed - 2, affirmed in part & reversed in part - 1, reversed - 1

Cherry - affirmed - 1, affirmed in part & reversed in part - 1

Cory - reversed - 2

Denton - reversed - 2

Dobrescu - affirmed - 1

Earl - affirmed - 1

Elliott - affirmed - 1

Estes - affirmed - 2

Flanagan - affirmed - 1

Gamble - affirmed in part & reversed in part - 1

Glass - affirmed in part & reversed in part - 3, reversed - 1

Gonzales - affirmed - 1, affirmed in part & reversed in part - 3, reversed - 1

Griffin - affirmed - 2, reversed - 1

Hardcastle - affirmed - 1, affirmed in part & reversed in part - 1

Herndon - affirmed - 3, reversed - 1

Lane - affirmed - 1

Leavitt - reversed - 2

Loehrer - affirmed - 1, affirmed in part & reversed in part - 2

Lueck - reversed - 1

Miley - affirmed in part & reversed in part - 1

Mosley - affirmed - 1, affirmed in part & reversed in part - 2, reversed - 1

Palikowski - affirmed - 1

Polaha - reversed - 1

Puccinelli - reversed - 1

Robison - affirmed

Saitta - reversed - 3

Steinheimer - affirmed - 4

Thompson - affirmed - 1, affirmed & reversed in part - 1

Togliatti - affirmed - 3, reversed - 1

Vega - affirmed - 2, reversed - 3

Villani - affirmed - 1

Voy - affirmed - 1, reversed - 1

Wagner - affirmed - 2

Wall - affirmed - 1, affirmed in part & reversed in part - 1

Walsh - affirmed - 1, reversed - 1

Judicial Discipline Commission - affirmed in part & reversed in part - 1

Secretary of State - affirmed - 2, affirmed in part & reversed in part - 2, reversed - 1

State Bar - affirmed - 1

State Board of Equalization - reversed - 1

On December 31, 2008, the Nevada Supreme Court adopted amendments to the Nevada Rules of Appellate Procedure in a 116 page order.  Despite my suggestion/protest, the Court is allowing 4-to-a-page transcripts in all cases, meaning that I will get to read thousands of pages in 6-point font.  The Court won't allow me to file briefs in a 6-point font, so my only means of protest in this blog -- thus the small print for this post and this post only.  Color me cranky.  Other changes are for the most part reasonable and welcome.  The amendments shall be effective July 1, 2009 and apply to all appeals docketed in the Court on or after that date.  The Court orders the State Bar of Nevada to develop a CLE about the changes.

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.

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

Settelmeyer v. Smith & Harmer - attorney fees and receivership funds

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

Howell v. State Engineer - judicial review of State Engineer decisions regarding title to water rights

Justice Hardesty will become the Chief Justice in  2009.

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?

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.

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. 

Monday, December 1

The United States Supreme Court hears argument in Kansas v. Colorado (water rights) and 14 Penn Plaza LLC v. Pyett (wjehther collective bargaining agreements may require mandatory arbitration of civil rights claims).

The United States Supreme Court releases its order list.  Certiorari was not granted in any new cases.

The Nevada Supreme Court hears argument in V and S Railway v. White Pine County.

Tuesday, December 2

The United States Supreme Court hears argument in Entergy Corp. v. EPA (Clean Water Act) and Fitzgerald v. Barnstable School Committee (whether Title IX barred future constitutionally based gender discrimination claims against federally funded schools.

The United States Supreme Court may release one or more opinions.

The Nevada Supreme Court hears argument in Regency Towers v. Dist. Ct. and Rivera v. Philip Morris.

Wednesday, December 3

The United States Supreme Court hears argument in Philip Morris v. Williams (punitive damages and state procedural rule) and Haywood v. Drown (Supremacy Clause and jurisdiction over federal constitutional claims).

NACJ Board Meeting - noon at the Federal Public Defender's Office.

State Bar CLE - Internet for Lawyers - 9 am or 1:30 pm.

Thursday, December 4

Nevada Supreme Court opinion release day.

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:

"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.

"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."

State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (Ohio 1937).

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.

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.

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

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."

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.

Yea!!

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.

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

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

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:

"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."

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.

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.

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:

"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."

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."

State v. Harte - The Court, sitting en banc, affirms an order of a district court partially granting a post-conviction petition for a writ of habeas corpus in a death penalty case.  The Court rejects the State's argument that McConnell v. State (felony murder cannot be used as the sole basis for liability for first degree murder and also used as an aggravating circumstance) was wrongly decided.  The Court also rejects the State's argument that there should be a new trial, rather than just a new penalty hearing, in capital cases in which the sole aggravating circumstance is found invalid under McConnell.  The majority opinion is authored by Justice Maupin and joined by Justices Gibbons, Douglas and Cherry.  Justices Hardesy, Parraguirre and Saitta concur but express a belief that there are three fundamental flaws in McConnell's analytical framework.

Hernandez v. State - The Court, sitting en banc, affirms a district court order denying a post-conviction petition for a writ of habeas corpus in a capital case.  In doing so, the Court declines to extend McConnell v. State to bar the dual use of torture as a theory of first-degree murder and as an aggravating circumstance to support a death sentence.  The Court, however, finds the aggravating circumstance of burglary to be invalid under McConnell, reweighs the aggravating and mitigating evidence and affirms the death sentence.  The Court rejects other post-conviction claims.  Justice Cherry dissents in part after finding that the defendant should have received a new penalty hearing because the jury may have imposed a sentence of less than death without the invalid aggravating circumstance.

Cortinas v. State - The Court (Justices Hardesty, Parraguirre & Douglas) holds that traditional harmless-error review applies when a general verdict based on multiple theories of liability may rest on a legally invalid alternative theory.  The Court also reaffirms its prior holdings that robbery is a general intent offense.

Rubio v. State - Counsel's affirmative misrepresentations of immigration consequences is an exception to the general rule that deportation is a collateral consequence that does not affect the voluntariness of a guilty plea.  Misrepresentations by a court interpreter, however, are not an exception to the general rule.  The Court also rules that the district court abused its discretion in failing to hold an evidentiary hearing on claims of ineffective assistance of counsel.

Opinions in civil cases: 

Rivero v. Rivero -

Cook v. Sunrise Hospital & Medical Center -

Five Star Capital Crop. v. Ruby -

Estate of LoMastro v. American Family Ins. -

Village League v. State, Bd. of Equalization -

Mesagate HOA v. City of Fernley -

Lehrer McGovern Bovis v. Bullock Insulation