Nevada Appellate Courts Advance Opinions for June 4, 2020
- What factors are considered to help determine whether the Nevada Supreme Court should consider an error’s harmlessness when the State has not argued harmlessness in a death penalty case.
Tag: Fifth Amendment
Nevada Appellate Courts Advance Opinions for December 26, 2019
Nevada Appellate Courts Advance Opinions for December 26, 2019
- Does a 26-month delay between the filing of charges and a person’s arrest violate that person’s Sixth Amendment right to a speedy trial.
High Desert State Prison v. Sanchez
- Does attempted lewdness with a child under 14 constitute a continuing offense.
- How should a district court determine an award of good time credits when the charged offense is continuous in nature.
White v. State, Div. of Forestry
- Is a person who suffers an industrial injury while incarcerated, but who subsequently is released and seeks workers’ compensation disability benefits due to that injury, entitled to have the benefits calculated at the minimum wage guaranteed under the Nevada Constitution.
- When does the spousal exception to the Nevada Real Estate Education, Research and Recovery Fund apply to permit a spouse to recover from the fund.
- Can duress be asserted to a crime that is not punishable by death, but requires proof of intent to commit a crime that is punishable by death.
BENKO VS. QUALITY LOAN SERV. CORP.
- Do trustees who exercise the power of sale under a deed of trust pursuant to NRS Chapter 107 engage in collection activities under Chapter 649 such that they must be licensed under that chapter.
- Can a district court consider previously sealed criminal convictions when determining whether to grant a petition to seal other criminal records.
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Nevada Appellate Courts Advance Opinions for November 7, 2019
Nevada Appellate Courts Advance Opinions for November 7, 2019
Gathrite v. Eighth Jud. Dist. Ct.
- Can evidence that has been suppressed in justice court proceedings on a felony complaint be presented to the grand jury in support of an indictment.
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Can a grand jury consider suppressed evidence?
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.
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Nevada Appellate Courts Advance Opinions for August 2, 2018
Nevada Appellate Courts Advance Opinions for August 2, 2018
- Does the Parole Board’s use of the Static-99R recidivism risk assessment comply with the relevant statutory provisions governing parole review for prisoners convicted of sexual offenses.
SHORES VS. GLOBAL EXPERIENCE SPECIALISTS, INC.
- Must a noncompete agreement that imposes a nationwide restriction be limited to the geographical areas in which an employer has particular business interests.
N. NEVADA HOMES, LLC VS. GL CONSTR., INC.
- What is the proper method of determining the prevailing party when faced with both a settlement and a damages recovery.
IN RE: PARENTAL RIGHTS AS TO S.L., N.R.B., H.R.B., W.C.B. C/W 71889
- Does the termination of parental rights bases on the parents’ refusal to admit to abuse violate their Fifth Amendment rights.
SFR INVESTMENTS POOL 1, LLC VS. BANK OF NEW YORK MELLON (NRAP 5)
- Does NRS 116.31168(1)’s incorporation of NRS 107.090 require a homeowner’s association to provide notices of default and/or sale to persons or entities holding a subordinate interest even when such persons or entities did not request notice, prior to the amendment that took effect on October 1, 2015.
GRANADA-RUIZ (GAMBINO) VS. DIST. CT. (STATE)
- When does double jeopardy prohibit a retrial.
- Does an order for immediate occupancy permitting a party to occupy a permanent easement vest a right to compensation.
NEVADA RECYCLING AND SALVAGE, LTD VS. RENO DISPOSAL CO., INC.
- Were the appellants injured in their business and therefore have standing to assert their claim under the Nevada Unfair Trade Practice Act (UTPA).
- Must the defense place intent or absence of mistake at issue before the State can seek admission of prior act evidence.
RIPPO (MICHAEL) VS. STATE (DEATH PENALTY-PC)
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Nevada Appellate Courts Advance Opinions for July 26, 2018
Nevada Appellate Courts Advance Opinions for July 26, 2018
- Can a probationer’s testimony at a revocation hearing be used in a subsequent criminal proceeding.
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Is Nevada’s medical marijuana registry unconstitutional?
Doe vs. State, Legislature of the 77th Session (Nev. Supreme Ct. – Dec. 7, 2017)
In November 2000, the Nevada Constitution was amended to allow the possession and use of marijuana for the treatment or alleviation of various medical conditions. This amendment also required the Legislature to establish a registry of patients who were authorized to use marijuana for medical purposes. As a result, the Legislature enacted Assembly Bill 453, allowing registry identification cardholders to use medical marijuana without fear of state prosecution for certain marijuana-related offenses. Subsequently, the Legislature established two fees to defray the costs of administering the registration program: an application fee and a processing fee. In this appeal, the Supreme Court of Nevada examined whether Nevada’s medical marijuana registry violates the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.
In 2015, appellant John Doe applied for, and received, a registry identification card after his doctor recommended he try medical marijuana to treat his migraine headaches. Doe subsequently filed suit against the Nevada Legislature, the Governor, and the Department of Health and Human Services (the DHHS) (collectively, respondents). In particular, Doe argued that the medical marijuana registry and its associated fees violated his due process and equal protection rights, and his right against self-incrimination. Doe also argued that the DHHS committed fraud and was unjustly enriched by the registration fees.
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Can a defendant be prosecuted twice for the same offense if he or she fails to comply with the terms of a plea agreement?
Sweat (Lonnie) vs. Dist. Ct. (State) (Nev. Supreme Ct. – Oct. 5, 2017)
The Double Jeopardy Clause protects a defendant from multiple prosecutions for the same offense. This opinion addresses whether a defendant’s failure to comply with the terms of a plea agreement with the State constitutes a waiver of that protection.
On May 9, 2016, the State charged Sweat by way of criminal complaint with battery constituting domestic violence, a category C felony. In Nevada, battery constituting domestic violence is a felony if the defendant has two or more prior convictions for domestic violence within seven years. Because Sweat had priors in 2010 and 2011, the State opted to proceed as a felony. Pursuant to negotiations with the State of Nevada, Sweat agreed to plead guilty in justice court to one count of battery constituting domestic violence, a misdemeanor, and in district court to one count of battery constituting substantial bodily harm, a felony. In exchange for his pleas, the State agreed to drop the charge of battery constituting domestic violence as a felony. Per the agreement, Sweat pleaded guilty to the misdemeanor battery constituting domestic violence and was immediately sentenced to time served. Sweat also waived his right to a preliminary hearing and was bound over to district court for entry of plea on the felony count of battery causing substantial bodily harm.
Can a parent be compelled to admit to a crime to maintain their parental rights?
In Re: Parental Rights as to A.D.L. and C.L.B., Jr. (Nev. Supreme Ct. – Oct. 5, 2017)
In this opinion, the Supreme Court of Nevada considered whether a parent’s Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.
In April 2010, Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra’s children were being abused and neglected. The caller alleged that the face of Keaundra’s infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had tried to kiss the iron. Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.
Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra’s care, and C.L.B., Jr. was taken to see Dr. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.
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