Can a grand jury consider suppressed evidence?

Posted on November 10, 2019November 16, 2019 by Jeff Jaeger

Gathrite v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Nov. 7, 2019)

At issue is whether evidence that has been suppressed in justice court proceedings on a felony complaint can be presented to the grand jury in support of an indictment.

Stemming from Gathrite’s alleged involvement in a deadly shooting, the State filed a criminal complaint in the justice court charging Gathrite with murder with use of a deadly weapon and possession of a firearm by a prohibited person. Before the preliminary hearing, Gathrite moved to suppress his statements to the police and the gun discovered as a result of his statements, alleging that the police had violated Miranda v. Arizona, 384 U.S. 436 (1966), and his Fifth Amendment privilege against self-incrimination. The justice court granted the motion and ordered the statements and the gun suppressed. The State did not ask the justice court to reconsider its decision or appeal the justice court’s decision to the district court. Instead, the State voluntarily dismissed the criminal complaint without prejudice and went to the grand jury solely on a charge of possession of a firearm by a prohibited person, presenting the evidence that the justice court had suppressed. The grand jury indicted Gathrite on one count of possession of a firearm by a prohibited person.

Continue reading “Can a grand jury consider suppressed evidence?” →

Does a defendant have the right to a jury trial on a charge of misdemeanor battery constituting domestic violence?

Posted on September 14, 2019September 14, 2019 by Jeff Jaeger

Andersen v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Sept. 12, 2019)

At issue is since Nevada limits the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, is the classification of the offense serious thereby requiring a jury trial.

Andersen was arrested and charged with first-offense battery constituting domestic violence (domestic battery), a misdemeanor pursuant to NRS 200.485(1)(a), and simple battery. Before the municipal court, Andersen made a demand for a jury trial, arguing that a conviction for domestic battery was a serious offense and thus compelled a jury trial. After the municipal court denied the demand for a jury trial, Andersen entered a no contest plea to the domestic battery charge, and the charge of simple battery was dismissed.

On appeal to the district court, Andersen’s sole contention was that he was erroneously denied the right to a jury trial. The district court disagreed and affirmed the conviction. Andersen then filed a writ petition.

Continue reading “Does a defendant have the right to a jury trial on a charge of misdemeanor battery constituting domestic violence?” →

Can a district court raise the bail amount originally set in justice court?

Posted on July 21, 2019 by Jeff Jaeger

Cameron, Jr. (Timmie) vs. Dist. Ct. (State) (Nev. Supreme Ct. – July 18, 2019)

A defendant challenged the district court’s decision to increase his bail from $25,000 to $100,000, arguing that the district court lacked good cause to support the increase.

The State charged Cameron with first-degree kidnapping with the use of a deadly weapon, robbery with the use of a deadly weapon, battery with the use of a deadly weapon, grand larceny of a firearm, burglary, coercion, and owner or possession of a firearm by a prohibited person. At the arraignment hearing, the justice court set bail at $25,000 with mid-level electronic monitoring. The State subsequently sought a grand jury indictment and the case was transferred to district court. The district court transferred bail and set it at $25,000 – the same amount as the justice court.

After setting bail, the district court invited the State to submit a written motion for its request to increase bail to $150,000. The State filed a motion seeking to increase bail, which Cameron opposed. The district court subsequently held a hearing on the State’s motion, heard arguments by the parties, and set bail at $100,000 and imposed house arrest.

Continue reading “Can a district court raise the bail amount originally set in justice court?” →

Does witness testimony at trial via two-way audiovisual violate a defendant’s right to confrontation?

Posted on June 9, 2019 by Jeff Jaeger

Lipsitz (Ryan) vs. State (Nev. Supreme Ct. – June 6, 2019)

Lipsitz was convicted of seven sexually related counts, including sexual assault and attempted sexual assault. He argued that the district court erred when it allowed the victim to testify by two-way audiovisual transmission, which violated his rights under the Confrontation Clause of the Sixth Amendment.

Lipsitz trespassed into a residential treatment facility, where he sexually assaulted the victim, an 18-year-old patient seeking treatment for substance abuse and trauma related to her experience as a victim of sex trafficking. On the morning in question, the victim fell asleep while reading in the recreation room around 4 a.m. Approximately one hour later, the victim awoke to find Lipsitz, whom she had never seen before, standing at the end of the couch. Lipsitz exposed himself and forced the victim to have sex with him. Lipsitz then attempted to force the victim to perform fellatio on him. When he failed, he became upset, mumbled something under his breath, and walked away. Another patient and several staff members at the treatment center saw Lipsitz exiting the treatment center through the front gate. He was nearby the center when police officers found him.

Continue reading “Does witness testimony at trial via two-way audiovisual violate a defendant’s right to confrontation?” →

When does a person reside in a dwelling for the purpose of Nevada’s home invasion statute?

Posted on September 9, 2018December 15, 2018 by Jeff Jaeger

Dunham (John) vs. State (Nev. Supreme Ct. – Sep. 26, 2018)

A defendant was convicted of home invasion under NRS 205.067 when he entered his wife’s second home. The issue is whether the word “resides” as used in the definition of “inhabited dwelling” in Nevada’s home invasion statute, NRS 205.067(5)(b), requires the “owner or other lawful occupant” to dwell permanently or continuously.

Dunham and his wife Patricia Scripko lived in a rented home in Monterey, California. In October 2015, Scripko purchased in her name only a condominium in Stateline, Nevada. Scripko testified that she originally planned to move to Stateline, but after the purchase, she lived in both the condominium and the Monterey home. Specifically, Scripko explained that she lived and worked in Monterey but spent occasional weekends at the condominium and, at one point, spent half her time in Monterey and half her time at the condominium. Dunham and Scripko began living separately in June 2016, and Dunham moved into the condominium while Scripko remained in Monterey.

Continue reading “When does a person reside in a dwelling for the purpose of Nevada’s home invasion statute?” →

When can one person consent to the search of another person’s living space?

Posted on September 2, 2018December 15, 2018 by Jeff Jaeger

Lastine v. State (Nev. Ct. App. – Aug. 30, 2018)

The Fourth Amendment to the United States Constitution and Article 1, Section 18 of the Nevada Constitution provide that the people possess an inviolable right against unreasonable searches and seizures. Under both provisions, warrantless searches are per se unreasonable subject to a few specific exceptions. One such exception is the consent of a third party who has authority over the premises or effects to be searched. The issues are 1) how does a person’s living arrangement within a third party’s residence affect that third party’s legal authority to consent to a search of the other person’s living space, and 2) can law enforcement officers rely upon the consent of a third party to search a room within a residence without asking about the living arrangements within that residence.

On Wednesday, January 7, 2016, Green’s vehicle was rear-ended by a truck while waiting at a traffic light on her drive home from work, and she suffered a whiplash injury. The driver of the truck drove away after striking Green’s car. Green and one witness told first responders they believed the driver was a man.

In the debris field on the road, a Nevada Highway Patrol trooper found a license plate that did not belong to Green’s car. The trooper ran the plate through dispatch and discovered the plate belonged to a truck registered to Andrew Lastine. Due to concurrent jurisdiction in the area, Washoe County Sheriffs Deputy Gamboa headed to the address listed on the truck’s registration.

Continue reading “When can one person consent to the search of another person’s living space?” →

When does expert witness testimony assist the trier of fact?

Posted on August 26, 2018December 15, 2018 by Jeff Jaeger

Mathews (Donovine) vs. State (Nev. Supreme Ct. – Aug. 23, 2018)

A defendant, Mathews’ conviction stems from an incident involving his girlfriend’s two-year-old son, who incurred burns on his hands while Mathews was babysitting him and his sibling. Mathews maintained that the burns happened accidentally, while the State argued that Mathews intentionally burned the child. The Supreme Court of Nevada determined whether the trial court abused its discretion in excluding Mathews’ expert witness.

On the morning of January 5, 2016, Mathews babysat his girlfriend Jasmin’s two children, C.J. and J.J., at Jasmin’s apartment while she went to a meeting at her apartment complex. Mathews’ account of the incident as told to detectives is that while he was babysitting, he boiled water on the stove and poured it into a mug to make instant coffee. After putting the water in the mug, he set it on the counter and went to change J.J.’s diaper. When he returned to the kitchen, C.J. was screaming, the backs of his hands were burned, and the mug was on the floor. Mathews maintains that C.J. accidentally spilled the water in the mug and burned himself, while the State contends that Mathews intentionally burned C.J.

Continue reading “When does expert witness testimony assist the trier of fact?” →

Is uncharged act evidence admissible in juvenile delinquency proceedings?

Posted on July 1, 2018December 15, 2018 by Jeff Jaeger

In Re: N.J., A Minor Child (Nev. Supreme Ct. – June 28, 2018)

The issue is whether the juvenile court abused its discretion in admitting uncharged acts as evidence.

On September 22, 2015, N.J. and a group of mutual acquaintances were at a park in Fallon, Nevada, when N.J. attempted to fight the victim in this case. According to witness testimony, N.J. believed that her boyfriend, T.H., was sexually intimate with the victim. The victim eluded an altercation and left the park.

Later that evening, the victim received a text message from T.H. The victim and TB, planned to visit Walmart to purchase pajamas. T.H. picked up the victim, but instead of visiting Walmart, they drove to an isolated area behind Walmart. After they parked the vehicle, N.J. pulled up in a vehicle behind them. N.J. left her vehicle and entered the vehicle carrying the victim. N.J. struck the temple of the victim’s head, threatened to hurt the victim if she did not stay away from T.H., and spat on the victim.

The State filed a delinquency petition in juvenile court charging N.J. with one count of battery and one count of harassment. During an evidentiary hearing, N.J. objected to the admission of testimony regarding two uncharged acts, namely testimony that she had (1) challenged the victim to a fight earlier in the day at the park, and (2) spat on the victim after the battery and harassment. With regard to the two uncharged acts, the district court overruled the objections based on the res gestae doctrine. The district court ultimately adjudicated N.J. delinquent on both counts. N.J. appealed.

Continue reading “Is uncharged act evidence admissible in juvenile delinquency proceedings?” →

Can a defendant be simultaneously convicted of robbery and kidnapping arising from a single course of events?

Posted on June 16, 2018December 15, 2018 by Jeff Jaeger

Guerrina (Robert) vs. State (Nev. Supreme Ct. – June 7, 2018)

The issue is whether the State produced sufficient evidence to sustain convictions for robbery and kidnapping when both convictions stem from a defendant’s actions over the course of a single incident.

Cuevas worked at FastBucks, a payday loan store in Henderson, Nevada. Each morning, she retrieved money from the store and deposited it in the bank before the store opened at 10 a.m. On most mornings, that money consisted of the business’s proceeds from the previous day only, but on Mondays it included proceeds from both Friday and Saturday.

One Monday morning, as Cuevas was walking toward the store, a man wearing a hat and sunglasses approached her. He carried a plastic bag and an object that Cuevas believed to be a knife. The man ordered Cuevas to unlock the FastBucks door and accompany him inside.

Continue reading “Can a defendant be simultaneously convicted of robbery and kidnapping arising from a single course of events?” →

Is a telephonic search warrant containing a false statement valid?

Posted on April 8, 2018December 15, 2018 by Jeff Jaeger

State vs. Sample (Gregory) (Nev. Supreme Ct. – Apr. 5, 2018)

Sample was arrested for driving under the influence of alcohol after failing a preliminary breath test (PBT). The results of the PBT were subsequently used to obtain a search warrant for an evidentiary blood draw. The district court suppressed the PBT results, concluding that they were obtained in violation of Sample’s Fourth Amendment rights, and also suppressed the evidentiary blood draw as the fruit of an illegal search. The State argued on appeal that the district court erred because Sample was under arrest at the time the PBT was administered, the PBT was a legal search incident to the arrest, and the blood evidence was legally obtained pursuant to the search warrant.

While on patrol one night, Deputy Swanson noticed a northbound vehicle cross over fog lines and double yellow lines, accelerate rapidly, cross into a southbound turn lane, and veer back into the northbound travel lane. Deputy Swanson first activated his overhead lights, and then activated his siren in an attempt to initiate a traffic stop. The vehicle did not stop and continued driving to Sample’s residence where it pulled into the driveway.

Continue reading “Is a telephonic search warrant containing a false statement valid?” →

Nevada Appellate Report

Thoughts and commentary on recent Nevada appellate cases

Category: Criminal Defense