Entries tagged with “prosecutorial misconduct” from Harmfulerror

Sims (Stanley) v. State,
Docket No. 52640
Churchill County High School - 9:45 a.m. - Justices Cherry, Saitta and Gibbons

Washoe County auto broker Stanley Sims is appealing his conviction for failing to pay several Arizona automobile dealerships for the cars they delivered to his customers. A grand jury indicted Sims on five counts of embezzlement. Sims filed a petition for habeas corpus, made several motions to dismiss the indictment, and sought to have the prosecutor disqualified, all of which were denied by the district court. Specifically, Sims sought to have the case dismissed on the basis that the prosecutor committed misconduct when he destroyed the grand jury record by retaining the exhibits, documents, and packets relied on by the grand jury; and ignored his obligation to present exculpatory evidence to the grand jury.  Sims made several pre-trial motions, attempting to dismiss the charge for inadequate notice, and urged the district court to determine essential jury instructions, all of which the district court denied.  However, the district court granted the State's request to amend the grand jury's indictment--striking factual language of Sims as a bailee, and the requirement of the intent to defraud. Sims entered a conditional guilty plea, and was sentenced to probation with the requirement that he pay restitution.  Sims retained his right to appeal and this appeal followed. ISSUES: Did the district court err by refusing to dismiss Sims' indictment due to prosecutorial misconduct? Does the alleged lack of a complete record prevent the prosecutor from justifying the indictment? Does the alleged lack of a complete record violate Sims' Sixth Amendment rights and undermine the grand jury's legal basis for the indictment? Did the district court err by refusing to disqualify the prosecutor?  Did the district court err in denying Sims' motion to dismiss for insufficient evidence?  Did the district court err by amending the indictment? Did the district court err by denying Sims' motion to determine essential jury instructions? Does cumulative error require reversal?

 Alford (Brian) v. State,
Docket No. 53415
Churchill County High School - 11:00 a.m. - Justice Michael Cherry

Brian Lamont Alford is appealing his conviction for first-degree murder with the use of a firearm in the death of Jerome Castro.  In the incident, Castro and Alford fought in Castro's Reno home and Alford used the butt of the gun he carried to beat Castro.  A single shot was fired that went through Castro's arm and struck him in the forehead, but did not penetrate or fracture his skull.  Castro later died from his injuries.  ISSUES:  Is the evidence sufficient to support Alford's conviction?  Did the district court abuse its discretion by giving certain jury instructions and admitting certain evidence?  Did the district court err in curtailing the cross-examination of key witnesses? Did the district court abuse its discretion in denying Alford's pretrial writ of habeas corpus?  Did the district court err in granting the State's motion to amend? Did the district court err in denying Alford's motion for a new trial?  Should Alford's conviction be reversed because of prosecutorial misconduct or under the doctrine of cumulative error? (Disclaimer:  This synopsis is intended to provide only general information about this case before the Nevada Supreme Court.  It is not intended to be all inclusive or reflect all positions of the parties.)

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?

San Juan (Elias) v. PSC Industrial Outsourcing,
Docket No. 50033
Carson City - 10:00 a.m. - Chief Justice Parraguirre and Justices Douglas and Pickering

This is a personal injury and workers' compensation case that arose from an explosion at DTI's plant that killed one employee and injured others.  The explosion occurred when inflammable gases from aerosol cans ignited.  DTI was hired by PSC Industrial Outsourcing to decant the aerosol cans.  The employees received workers' compensation benefits for their injuries even though DTI failed to make workers' compensation contributions.  In addition, the employees sued DTI, PSC, and others for their injuries.  The plaintiff argued that PSC owed the employees a duty that could not be delegated to anyone else because PSC contracted with DTI for the performance of inherently dangerous work.  PSC moved for summary judgment and the district court granted the motion.  ISSUES:  Did PSC owe the employees a duty that could not be delegated?  Does the general rule that workers' compensation benefits are the exclusive remedy for workplace injuries apply when DTI was not insured under the workers' compensation system? 

Gonski (Donald) v. District Court (PN II, Inc.),
Docket No. 53414
Carson City - 10:30 a.m. - Justices Hardesty, Douglas, and Pickering

This writ proceeding arises from a district court order compelling arbitration in a constructional defect matter in Washoe County.  Donald and Linda Gonski filed a lawsuit against the builder of their home, PN II, Inc., alleging constructional defects in the home.  The builder asked the district court to compel the parties to resolve their dispute through binding arbitration, which the builder argued is required by the home purchase agreement.  The Gonskis argued that, because the purchase agreement purported to incorporate a second arbitration clause pertaining to defects, but also referred to a statutory dispute resolution process, the purchase contract was unclear and confusing as to whether defect disputes must be arbitrated.  The Gonskis also argued that the purchase agreement failed to provide adequate notice that, by agreeing to arbitrate, important rights were being forfeited.  The district court granted the builder's request to compel the parties to participate in arbitration.  The Gonskis then filed this petition with the Nevada Supreme Court challenging the district court's order.  ISSUES:  Is arbitration of the Gonskis' case required by the parties' agreement? 

Docket No. 52510

Carson City - 11:30 a.m. - Justices Hardesty, Douglas, and Pickering

Randy Gamwell is appealing his conviction by a jury in Washoe County for burglary and first-degree kidnapping.  Before trial, a psychiatrist retained by Gamwell's counsel contacted the victim regarding an evaluation of Gamwell.  The prosecutor advised the victim not to speak to the psychiatrist.  Gamwell requested that the charges against him be dismissed because the prosecutor's advice violated Gamwell's right to interview witnesses.  The district court denied the request.  During closing argument, the prosecutor told the jury that the presumption of innocence no longer applied and referred to Gamwell's decision not to testify in his own defense.  After the jury returned its verdict, Gamwell moved for a judgment of acquittal on the kidnapping charge because it appeared that the jury based its verdict on the victim having suffered substantial bodily harm, although no jury instructions addressed that issue.  The district court also denied this motion.  ISSUES: Should the district court have granted the motion to dismiss because of the prosecutor's advice to the victim?  Did the State engage in prosecutorial misconduct during closing argument warranting reversal?  Should the district court have granted the motion for judgment of acquittal? 

The New York Times notes in an editorial, Prisons and Budgets, that the US has less than 5% of the world's population, but about 25% ot is prisoners.  The costs of such incarcerations are a huge issue for many states.

Adam Liptak reports on the decision by the American Law Institute to abandon efforts at creating a modern framework for the death penalty.  The ALI disavowed the structure it had created "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

A case concerning prosecutorial conduct has been dismissed by the US Supreme Court as moot, after an Iowa county and two men freed after spending 26 years in prison for murder settled the case for $12 million.  Prosecutors had knowingly used false evidence to convict the two men.  The case was argued before the Court in November.   

Via Sentencing Law & Policy, The Department of Justice has established new guidance for federal prosecutors regarding criminal discovery.

Thiede (Cody) v. State of Nevada

            Carson City - 10:00 a.m. - Justices Cherry, Saitta, and Gibbons

Docket No. 50164

In this case, Cody Thiede is appealing his jury conviction in Lincoln County for one count each of sexual assault of a child under 14 years of age, lewdness with a child under 14 years of age, and first-degree kidnapping.  The charges were based on two incidents involving a single victim, S.C.  During the trial, the district judge questioned a nurse regarding the physical examination of the victim and also questioned a sheriff's deputy about conflicting testimony regarding locks on the victim's bedroom door.  Thiede argues that this questioning by the judge improperly elicited testimony that favored the State's case.  Thiede also argues that the prosecutor committed misconduct by, among other actions, commenting on Thiede's exercising his right to remain silent and commenting on the victim's demeanor.  ISSUES:  Was the trial judge biased?  Did the prosecutor engage in misconduct warranting reversal of the judgment of conviction?

Thiede (Cody) v. State of Nevada

            Carson City - 10:30 a.m. - Justices Cherry, Saitta, and Gibbons

Docket No. 50603

In this case, Cody Thiede is appealing his conviction by a jury in Lincoln County for two counts of lewdness with a child under 14 years of age.  The charges were based on three incidents involving a single victim, J.J.  Thiede argues that the prosecutor committed misconduct by vouching for the victim's veracity, inflaming the jurors' passions, and referring to facts not in evidence.  ISSUES:  Did the prosecutor engage in misconduct warranting reversal of the judgment of conviction? 

Madsen (Patrick) v. State of Nevada

            Carson City - 11:30 a.m. - Justices Cherry, Saitta, and Gibbons

Docket No. 51270

In this case, Patrick Madsen is appealing his conviction in Lincoln County on two counts each of sexual assault of a child under 14 years of age and lewdness with a child under 14 years of age.  At the sentencing hearing, a letter from the victim's mother was provided to the court and counsel stating that Madsen should receive the maximum sentence for several reasons, including that he gave the victim a sexually transmitted disease.  Madsen asked the district court to set aside the verdict and for a new trial, arguing that the prosecution withheld the letter, but that motion was denied.  Madsen now appeals his conviction and the denial of his motion for new trial.  ISSUES:   Did the district court err in denying appellant's motion to dismiss the lewdness counts because the lewdness charges were redundant and duplicative in relation to the sexual assault charges?  Did the district court err in denying appellant's motion to set aside the verdict and for new trial? 

The Nevada Supreme Court provides a live webcast of its oral arguments.  The link appears on the Court's home page shortly before arguments begin.  Audio recordings of arguments are generally available a few hours after the argument.

Alvarez v. Smith - Whether local law enforcement agencies may seize and retain custody indefinitely of personal property without judicial or administrative review of the lawfulness of the continued detention of the property. Argument scheduled for 10/14/09

Beard v. Kindler.  Under the adequate-state-ground doctrine, does a state procedural rule like Pennsylvania's fugitive waiver rule preclude federal habeas corpus review even though the state procedural rule is discretionary?Argument scheduled for 11/2/09.

Black v. United States - Whether the "honest services" clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants "reasonably contemplated identifiable economic harm," and if the defendants' reversal claim is preserved for review after they objected to the government's request for a special verdict.

Bloate v. United States -  Whether time granted at the request of a defendant to prepare pretrial motions qualifies as "delay resulting from other proceedings concerning the defendant" and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. Argument scheduled for 10/6/09.

Briscoe v. Virginia - If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

Florida v. Powell - Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?  

Graham v. Florida - Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of non-homicide.Argument scheduled for 11/9/09

Hemi Group v. New York City - Whether city government meets the Racketeer Influenced and Corrupt Organizations Act standing requirement that a plaintiff be directly injured in its "business or property" by alleging non commercial injury resulting from non payment of taxes by non litigant third parties. Argument scheduled for 11/3/09

Johnson v. United States - Whether under the federal Armed Career Criminal Act a prior state conviction for battery is in all cases a "violent felony," even when the state held that offense does not have as an element the use or threatened use of physical force.  Argument scheduled for 10/6/09  

Maryland v. Shatzer - Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years later. Argument scheduled for 10/5/09 

McDaniel v. Brown - Nevada case - Whether, on federal habeas review, the evidence underlying the defendant's conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).  Argument taken off calendar.

Padilla v. Kentucky - Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? Argument scheduled for 10/13/09  

Pottawattamie County v. McGhee - Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant's "substantive due process" rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.  Argument scheduled for 11/4/09

Smith v. Spisak - Did the Sixth Circuit contravene AEDPA by improperly extending Mills v. Maryland [re: mitigation jury instructions in a capital case]? Argument scheduled for 10/13/09

Sullivan v. Florida - Does imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?  Argument scheduled for 11/9/09

United States v. Comstock - Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

United States v. Stevens - Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment? Argument scheduled for 10/6/09

Weyhrauch v. United States - Whether, to convict a state official for depriving the public of its right to the defendant's honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.

Wood v. Allen - Whether the state court's conclusion-that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel-was based on an unreasonable determination of the facts and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision.  Argument scheduled for 11/4/09

In an unpublished decision of December 31, the Nevada Supreme Court granted a new penalty hearing in the capital case of Jones v. State.  The Court found ineffective assistance of trial counsel based upon failure to investigate mitigating evidence and failure to prepare for the penalty phase.  The Court also found extensive prosecutorial misconduct in the closing argument on the penalty phase.  The Court acknowledged that it relied upon an erroneous standard of review on direct appeal when it affirmed Jones' death sentence despite a finding of prosecutorial misconduct because of "overwhelming evidence of guilt."  "Rather than focusing on the evidence of guilt, when reviewing prosecutorial misconduct committed during a penalty hearing, the focus of the prejudice inquiry should be on the penalty proceedings and whether the misconduct 'so infected the proceedings with unfairness as to make the results a denial of due process."  Someone puzzling is the fact that the opinion with the erroneous standard was published, but the Court's acknowledgement of its use of incorrect standard is unpublished, so the erroneous standard appears to stand as valid despite its obvious flaw.  The Court affirms Jones' judgment of conviction as to issues raised concerning the guilt phase.

Disclosure: I am counsel for Jones.

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:

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

Disclosure - I am counsel for Valdez.

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.

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."