Entries tagged with “deadly weapon” from Harmfulerror

Mitchell (David) v. State,
Docket No. 50305
Carson City - 10:00 a.m. - Justices Cherry, Saitta and Gibbons

In this case, David Winfield Mitchell is appealing his conviction for murdering Sheila Jo Harris in 1982 in Carson City, Nevada.  Mitchell eluded charges for a quarter century until the advent of DNA testing provided evidence of his guilt.  Mitchell was convicted of first-degree murder with the use of a deadly weapon.  While that appeal was pending, the State filed a motion to correct the sentence, in which it argued that the district court had improperly sentenced Mitchell on the deadly weapon enhancement pursuant to sentencing guidelines in place at the time of conviction when it should have sentenced him pursuant to the guidelines in place at the time he committed the crime.  The district court granted the State's motion and filed an amended judgment of conviction in which it imposed an equal sentence of life without the possibility of parole for the deadly weapon enhancement as was required by statutes in place at the time Mitchell committed the crime. ISSUES:  Did the district court lack jurisdiction to resentence Mitchell while his appeal was pending?  Do the various other miscellaneous errors claimed by Mitchell warrant reversal of his conviction? 

Fraser (Ryan) v. State,
Docket No. 53675
Carson City - 10:30 a.m. - Justices Cherry, Saitta and Gibbons

This case arises out of an incident where appellant Ryan Fraser digitally penetrated a four-year-old girl.  The victim then told numerous adults that Fraser sexually abused her, but her accounts of the abuse varied.  In relation to the victim, the State charged Fraser with two counts of sexual assault of a child under the age of 14 years.  Before trial, the Lyon district court found the victim competent to testify. The district court also ruled that the victim's out-of-court statements regarding the sexual abuse and testimony about a prior bad act were admissible. At trial, the victim testified that Fraser performed cunnilingus on her.  During cross-examination, she also confirmed that the State's lead prosecutor told her what to say during trial. In response to the witness tampering allegations, the district court permitted the prosecutor to testify.  Following trial, the jury convicted Fraser of one count of sexual assault for the digital penetration of a child. Fraser now appeals.  ISSUES:  Did the district court abuse its discretion by allowing the prosecutor to testify at trial?  Did the district court abuse its discretion by finding E.G. competent to testify? Did the district court violate Fraser's Sixth Amendment rights or abuse its discretion by admitting testimony about the victim's hearsay statements? Did the district court abuse its discretion by admitting evidence of an uncharged prior bad act of child sexual assault?

Vanisi (Siaosi) v. State of Nevada (Death Penalty),

Docket No. 50607

Carson City - 10:00 a.m. - Full court

This is Siaosi Vanisi's appeal from a district court order denying his post-conviction petition for a writ of habeas corpus in a death penalty case.  Vanisi was convicted by a Washoe County jury of first-degree murder, robbery with the use of a deadly weapon, two counts of robbery with a firearm, and grand larceny, for the 1998 murder of a UNR Police sergeant, and the subsequent theft of a car and robbery of two stores.  Vanisi previously appealed his convictions and death sentence, which were affirmed by the Nevada Supreme Court in 2001.  Vanisi then filed a petition for a writ of habeas corpus in the district court, arguing that his conviction was invalid for numerous reasons.  The district court denied the habeas corpus petition and Vanisi has appealed that decision to the Supreme Court.  ISSUES:  Does the jury's consideration of an invalid aggravating circumstance warrant a new penalty hearing?  Was Vanisi's trial counsel ineffective?  Was Vanisi's counsel for his appeal ineffective?  Did the district court err in finding Vanisi competent to proceed with his post-conviction petition? 

Mack (Darren) v. State of Nevada,

Docket No. 51143

Carson City - 10:30 a.m. - Full court (Justice Hardesty voluntarily recused himself from participation in this matter)

Darren Mack is appealing his convictions of first-degree murder and attempted murder with the use of a deadly weapon.  Mack pleaded guilty to first-degree murder for the killing of his estranged wife.  Mack also pleaded guilty to the shooting of the Washoe County Family Court Judge who was presiding over the couple's divorce, pursuant to North Carolina v. Alford, in which a defendant pleads guilty without actually admitting guilt.  Before he was sentenced, Mack requested that he be allowed to withdraw his guilty pleas, claiming that he did not fully understand the nature and consequences of the pleas.  This request was denied.  Mack was then sentenced to 20 years to life for first-degree murder, and 96 to 240 months for attempted murder, and a consecutive sentence of 96 to 240 months for the use of a deadly weapon.  ISSUES:  Should an understanding of lesser-included offenses be factored into determining whether a defendant's guilty plea is knowing and voluntary?  Should Nevada follow Rule 11 of the Federal Rules of Criminal Procedure, which governs pleas in federal courts?  

Reno Newspapers, Inc. v. Governor Jim Gibbons,

Docket No. 53360

Carson City - 11:30 a.m. - Full court

This appeal arises from a dispute between Governor Jim Gibbons and the Reno Gazette-Journal (RGJ) over a request by the newspaper for some of the Governor's e-mails.  In 2008, the RGJ made a public records request for e-mails between Governor Gibbons and 10 people over a six-month time period.  In the event that the Governor objected to the request, the RGJ asked that it alternatively be provided with a log indicating, for each e-mail, the sender, all recipients, the message date, and the basis on which access was being denied.  The Governor denied the request, claiming that the requested e-mails were either privileged or not considered public records.  The RGJ filed a petition for a writ of mandamus in the district court, seeking access to the e-mails or the alternative log.  After a hearing and a review of the e-mails by the judge, the district court granted the writ as to six e-mails, and denied the writ as to the remaining e-mails.  The RGJ is now appealing the district court's decision.   ISSUES:  What is a public record for purposes of the Nevada Public Records Act?  Should the district court have ordered the Governor to produce the requested log rather than personally reviewing the e-mails and determining which e-mails should be provided? 

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.