Entries tagged with “unpublished decisions” from Harmfulerror
In an unpublished Order of Reversal and Remand in Monroe v. State, the Nevada Supreme Court finds that a the district court erred in refusing to conduct an evidentiary hearing on a suppression motion. The five page order includes a nice summary of the law concerning automobile searches made pursuant to an investigatory stop.
In an unpublished Order Denying Petition in Bacon v. State, the Nevada Supreme Court finds that the proper person petitioner has filed numerous, arguably frivolous documents and finds that there has been a waste of judicial resources. The Court cautions Bacon that he may forfeit all deductions of time earned as a prisoner.
McNight v. The Public Restroom Co. is a civil appeal in which the Court finds that in lacks jurisdiction. The order is not interesting, but I like the name of the case.
In an unpublished Order of Reversal and Remand in Brunsen v. State, the Nevada Supreme Court finds that the district court erred in failing to conduct an evidentiary hearing on the defendant's presentence motion to withdraw his guilty plea and in failing to appoint conflict-free counsel for that hearing.
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The Court has not posted an unpublished dispositions in the last month. The date of the last unpublished decision is January 16, 2009.
The Nevada Supreme Court has issued several unpublished orders resolving appeals in criminal cases. Some are of interest, though they may not be cited as precedent under SCR 123.
In Dealba v. State, the Court reverses a judgment of conviction of one count each of robbery with use, attempted murder with use, and possession of a firearm by an ex-felon. The district court allowed a detective to testify about several statements made by Dealba's co-defendant following the co-defendant's arrest. The trials of the two defendants were not severed. The co-defendant did not testify, but the district court did order that Dealba's name be replaced with the word "individual" in the interrogation transcript of the co-defendant. No limiting instruction was given. The Court finds that it was error to fail to give the jury a limiting instruction under Richardson v. Marsh, 481 U.S. 200 (1987). The Court rejects Dealba's argument that the use of the word "individual" as a redaction was error. The Court finds that the error was not harmless and notes that neither of the two victims were able to identify Dealba.
In Hodson v. State, the Court affirms a judgment and rejects the defendant's First Amendment arguments concerning his conviction for one count of making a bomb threat.
In Spinks v. State, the Court affirms an order of restitution for $16,040.49, on a reckless driving and DUI conviction, based upon the victim's medical expenses relating to a pre-existing heard condition which the victim argued was exacerbated by the car accident involved in the DUI incident. No medical or expert testimony was presented to establish causation. The Court upheld the district court's retitution order based upon the testimony of the victim and receipts for the expenses. This one is pretty interest and fairly controversial. I'm surprised it's an unpublished disposition.
In Croft v. State, the Court affirms an order of the district court denying a post-conviction petition for a writ of habeas corpus, but also finds that the district court was wrong to find that the petition was a "fugitive document" because the defendant filed the petition in proper person and his trial counsel had not filed a motion to withdraw. "A post-conviction petition for a writ of habeas corpus is a collateral proceeding from the underlying criminal conviction, and thus, the fact that trial counsel had not withdrawn from the case when appellant filed his petition had no bearing upon the propriety of the filing of the petition in proper person." This is a basic proposition, but the fact that it had to be explained to a seasoned judge should have warranted publication of the order as an opinion so as to provide guidance to the district courts.
Downs v. Napolitano - an inmate non-lawyer may not not receive a contingency fee for preparing a medical malpractice action. The Court will not recognize an action for breach of contract based upon an act which violates state law.
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.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
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.
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.
Colato v. State - the Court finds a Lozada violation based upon trial counsel's failure to file a notice of appeal.
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.
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.
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.
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.
New unpublished decisions have been posted by the Nevada Supreme Court. SCR 123 states that these unpublished orders shall not be regarded as precedent and shall not be cited as legal authority.
State v. Spina - the Court denies the State's appeal from an order of the district court dismissing a charge of first-degree murder with use of a deadly weapon. The State had argued that the defendant could be charged with felony murder based upon an allegation of burglary with "ex-felon in possession of a firearm" as the predicate felony for burglary. The Court agreed with the district court that "burglary cannot be predicates solely on entry into a structure or vehicle by an ex-felon in possession of a firearm." The Court also agreed with the district court that "ex-felon in possession of a firearm" is not inherently dangerous. "Thus, there is no justification for the imputation of implied malice under the felony-murder rule. Accordingly, we conclude that it would be impermissible to allow the State to bootstrap 'ex-felon in possession of a firearm' into burglary in order to sustain a conviction for murder in the first-degree under the felony-murder rule."
* There appears to be no case authority in Nevada directly addressing this issue. I'm puzzled by the Court's decision not to publish this decision as an opinion.
Ledezma v. State - the Court rejects the defendant's argument that NRS 453.3405, which allows for a lesser sentence if the defendant offers substantial assistance to law enforcement, violates his equal protection rights because persons, like him, who are subject to an INS immigration hold cannot be released from custody and participate in "buys" for police officers.
Mejia v. State - the Court finds that the district court abused its discretion in failing to appoint counsel for post-conviction proceedings in a case in which the defendant was convicted of sexual assault on a minor and lewdness with a minor and was serving life sentences.
Winston v. State - the Court finds a jury instruction on implied malice as it relates to attempted murder to be incorrect, but finds the error to be harmless.
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."
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