Nevada Reports 1996 (112 Nev.) PDF

112 Nev.
1, 1 (1996)
REPORTS OF CASES
determined by the
Supreme Court
of the
STATE OF NEVADA
____________
Volume 112
____________
112 Nev. 1, 1 (1996) Staude v. State
DAVID E. STAUDE, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25416
January 4, 1996 908 P.2d 1373
Appeal from a judgment of conviction, pursuant to a jury verdict, of first degree murder
and conspiracy to commit murder. Seventh Judicial District Court, White Pine County;
Merlyn H. Hoyt, Judge.
The supreme court held that: (1) defendant failed to preserve for appellate review ruling
that evidence of his prior conviction was admissible for impeachment purposes; (2) although
trial court erred in failing to give jury approved version of Allen charge, charge as given did
not coerce jury into reaching verdict; and (3) separate life sentence imposed for defendant's
being a habitual criminal was error.
Convictions affirmed; one sentence vacated.
[Rehearing denied May 3, 1996]
James J. Jackson, State Public Defender, and James P. Logan, Appellate Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, and Rusty Jardine, Deputy Attorney General,
Carson City, for Respondent.
1. Criminal Law.
Ruling on motion in limine is advisory, not conclusive. After denial of pretrial motion to exclude evidence, party must object at
time evidence is sought to be introduced in order to preserve objective for appellate review.
2. Criminal Law.
Ruling that defendant's prior conviction for manslaughter was admissible for impeachment purposes was not preserved for
appellate review, where, before his first trial, defendant moved in limine to exclude prior conviction which was denied, and at second
trial, defendant did not renew motion to exclude the evidence, nor express desire to testify.
3. Criminal Law.
Although Allen instruction given to jury when it appeared deadlocked improperly focused only on jurors supporting acquittal, and
trial court erred in not using instruction approved in Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980), charge given was not unduly
coercive, as it still clearly informed jurors that they were not to give up a conscientious conclusion for sake of reaching verdict. After
receiving charge, jury deliberated for nearly five more hours before reaching guilty verdict, suggesting that instruction did not coerce
jury.
4. Criminal Law.
Where jury sentenced defendant convicted of first degree murder to life in prison with possibility of parole, district court erred in
adding consecutive life sentence with possibility of parole for being a habitual criminal, as court was required to sentence on
substantive crime charged, and then invoke recidivist statute to determine penalty. Any enhancement of jury-determined penalty by
trial court was improper under sentencing statute. NRS 175.552.
5. Criminal Law.
Statute providing that when jury finds defendant guilty of first degree murder, jury shall determine penalty to be given absent
written stipulation otherwise by defendant and both attorneys, precludes habitual criminal enhancement by court of penalty imposed by
jury. NRS 175.552.
OPINION
Per Curiam:
The victim in this case, Joseph Beeson, was an inmate at Ely State Prison (ESP). On August 20, 1990, he was found dead in his cell
with a ligature around his neck and multiple stab wounds in his upper body. ESP inmates Kevin Reynolds, Todd Evans, and appellant
David E. Staude were charged with crimes related to the killing. Reynolds pled guilty to second degree murder. Evans testified for the State
against Staude in return for a gross misdemeanor charge. Staude was charged with murder. His first trial ended in a mistrial due to attrition
of jurors. After a second trial, he was convicted of first degree murder and conspiracy to commit murder.
trial, he was convicted of first degree murder and conspiracy to commit murder.
Staude asserts a number of errors on appeal, including the ruling that evidence of his prior
conviction was admissible for impeachment purposes and the instruction given the jury when
it appeared to be deadlocked. Staude also asserts, and the State agrees, that the court
improperly gave him a separate sentence for being a habitual criminal.
FACTS
In August 1990, Joseph Beeson was housed in Unit 1-A, a closed transition unit, at ESP.
Beeson shared a cell with Tuffy Hampton. Beeson was white, and Hampton was black. The
evidence showed that such an arrangement was highly unusual in prison because most
inmates strongly disapprove of cellmates of different races. Hampton was then moved out of
Unit 1-A to general population. No one in the unit would agree to bunk with Beeson.
Appellant Staude was housed in Unit 1-A at this time. Prior to Beeson's death, Staude
indicated to his caseworker at ESP that he was very upset and angry about black and white
inmates being housed together in his unit.
On the afternoon of August 20, 1990, a correctional officer discovered Beeson lying
facedown on his bunk, with blood on and around him. The staff doctor soon arrived and
pronounced Beeson dead. Undersheriff Harry Collins investigated the crime scene that
afternoon and found in Beeson's cell a prison-made knife and a shirt with the name Little
Red, inmate Kevin Reynolds's nickname. A cell-to-cell search of the unit uncovered a pair of
blue sweatpants with human blood on them in the cell occupied by Staude and Evans. The
pants were damp and inside a laundry bag marked Staude. Collins noticed that Staude had
several fresh scratches on his face, neck, chest, and arms, a puncture wound in his upper left
thigh, and abrasions on the ulnar side (opposite the thumb) of both hands. The sweatpants had
a hole in the upper left thigh area.
Evans testified as follows. He was housed with Staude in Unit 1-A when Beeson was
killed. Around August 1, 1990, Staude and Reynolds told him they were going to attack
Beeson. Evans suggested that they do it in Beeson's cell to avoid getting shot up. He provided
Reynolds with a knife. On the day of the murder, they told Evans, We're going to do it.
Evans was out of his cell sitting at a table when he saw Staude and Reynolds go up to
Beeson's cell; he later saw them come out of it around 2:30 p.m. Staude was wearing a blue
shirt and sweatpants. When Evans returned to his and Staude's cell, Staude was shredding
clothes and flushing them down the toilet. Staude told Evans that he and Reynolds had killed
Beeson: Beeson fought with them, Reynolds stabbed him a few times, and Staude
strangled him with a shoelace.
Reynolds had killed Beeson: Beeson fought with them, Reynolds stabbed him a few times,
and Staude strangled him with a shoelace. Staude said Reynolds had missed Beeson and
stabbed Staude in the leg during the struggle.
Evans further testified that when he was charged in this matter, he agreed to testify in
return for the State's reducing his charge to a gross misdemeanor, conspiracy to possess a
dangerous weapon, and moving him to another prison. Evans had been a lieutenant in the
Aryan Circle, a white supremacist prison gang, at the time of the murder. Staude wished to
join the Aryan Circle, and killing Beeson was a means to do so.
The inmate in the cell above Beeson's when the murder occurred heard a fight through the
vent. He later saw Staude with red on the side of his face. This inmate testified that Staude
told him, I can't believe we did it, or he did it. I can't particularly say. It was either, they did
it, he did it, or we did it.
Dr. Ellen Clark, a pathologist, conducted the autopsy on Beeson and testified as follows.
The ligature around Beeson's neck had caused his death. Beeson received several stab
wounds; one was serious, penetrating his left lung and the sack surrounding his heart. The
wounds on his body indicated that there had been a struggle. The ligature had been applied
with substantial force, and the abrasions on Staude's hands, which were worse on the outer
edges of his little fingers, were fresh and could have been caused by the ligature which killed
Beeson. The wound on Staude's left thigh was consistent with the puncture wounds on
Beeson's body.
Staude did not testify. He called ten witnesses; nine of them were inmates, including
Reynolds. Reynolds testified that he killed Beeson. He denied that Staude helped him do so.
When asked if Evans helped him, Reynolds said he could not say because he did not want to
be a snitch. He said that Evans's reputation was that he was a dope fiend and a rat.
Testimony for Staude by other inmates was to the effect that Evans was a liar and a drug
addict. One inmate testified that Evans had admitted that he had killed Beeson and put it off
on Staude.
During deliberations, the district court received a note from the jury forewoman that the
jurors were having trouble reaching a unanimous verdict. Staude objected to the instruction
which the district court proposed to give the jury, which stated in part that a dissenting juror
should consider whether the doubt in his or her mind is a reasonable one, when it makes no
impression on the minds of so many of his or her fellow jurors. He requested a neutral
instruction which applied to jurors voting for conviction as well as those having a reasonable
doubt. The court did not change the instruction and gave it to the jury at about 4:40 p.m.
on November 10, 1993. The jury returned with a verdict almost five hours later at about 9:30
p.m. It found Staude guilty of first degree murder and of conspiracy to commit murder.
After the sentencing phase for the murder count, the jury sentenced Staude to life with the
possibility of parole. The district court added a consecutive life sentence with the possibility
of parole for being a habitual criminal and a consecutive six year sentence for conspiracy to
commit murder.
DISCUSSION
The ruling that Staude's prior conviction for voluntary manslaughter was admissible for
impeachment purposes
Before his first trial, Staude moved in limine to exclude evidence of his 1987 convictions
for voluntary manslaughter, burglary, and grand larceny. The district court denied the motion.
At the second trial, Staude did not renew the motion to exclude the evidence, nor did he
express a desire to testify. Staude now asserts that his prior conviction for manslaughter
should have been excluded because it was an assaultive crime which had only slight probative
value in regard to veracity and was highly prejudicial because it paralleled the crime for
which he was being tried. See Givens v. State, 99 Nev. 50, 53, 657 P.2d 97, 99 (1983),
overruled on other grounds, Talancon v. State, 102 Nev. 294, 301 n.3, 721 P.2d 764, 768 n.3
(1986).
[Headnotes 1, 2]
Staude has failed to preserve this issue for appeal. A ruling on a motion in limine is
advisory, not conclusive; after denial of a pretrial motion to exclude evidence, a party must
object at the time the evidence is sought to be introduced in order to preserve the objection
for appellate review. Teegarden v. State, 563 P.2d 660, 662 (Okla. Crim. App. 1977); cf. Daly
v. State, 99 Nev. 564, 568, 665 P.2d 798, 801 (1983). We conclude therefore that this issue
was not preserved for appellate review.
The instruction given the jury when it appeared deadlocked
[Headnote 3]
Staude contends that the instruction given to the jury when it appeared deadlocked, often
called an Allen charge, was error because it was not the instruction approved by this court in
Wilkins v. State, 96 Nev. 367, 373-74 n.2, 609 P.2d 309, 313 n.2 (1980). Staude specifically
argues that the instruction given was not neutral because it was directed only at jurors having
a reasonable doubt.
The district court gave the jury an instruction which this court deemed satisfactory in
Hudson v. State, 92 Nev. 84, 88-89 n.3, 545 P.2d 1163, 1166 n.3 {1976), four years before
Wilkins.
545 P.2d 1163, 1166 n.3 (1976), four years before Wilkins. The instruction stated in part that
a dissenting juror
should consider whether the doubt in his or her mind is a reasonable one, when it
makes no impression on the minds of so many jurors equally honest, equally intelligent,
with him or her, who have heard the same evidence with an equal desire to arrive at the
truth under the sanction of the same oath.
In contrast, the instruction later approved in Wilkins is directed at all jurors, not just those
with reasonable doubts.
1

The judicial concern in regard to Allen charges is that they not coerce jurors into reaching
a verdict. This court has reluctantly approved the Allen charge if it clearly informs the jury
that each member has a duty to adhere conscientiously to his or her own honest opinion, and
if it avoids creating the impression that there is anything improper, questionable or contrary to
good conscience for a juror to create a mistrial. Wilkins, 96 Nev. at 373, 609 P.2d at 312. In
order to ensure that juries are so informed, we expressly approved the American Bar
Association version of the Allen charge and set it forth for the future guidance of our district
courts. Id., 609 P.2d at 313.
The Hudson charge used by the district court improperly focused only on jurors supporting
acquittal, and the court erred in not using the instruction approved in Wilkins. We expressly
direct the district courtsshould they find use of an Allen charge absolutely necessaryto
employ the version set forth in Wilkins. However, we conclude that the charge given below
was not unduly coercive in this case. It still clearly informed the jurors that they were not to
give up a conscientious conclusion for the sake of reaching a verdict.
__________

1
The approved instruction reads in whole:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is
necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an
agreement, if you can do so without violence to individual judgment. Each of you must decide the case
for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to reexamine your own views and change your opinion if
convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of
evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a
verdict.
You are not partisans. You are judgesjudges of the facts. Your sole interest is to ascertain the truth
from the evidence in the case.
Wilkins v. State, 96 Nev. 367, 373-74 n.2, 609 P.2d 309, 313 n.2 (1980) (quoting ABA Project on Minimum
Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to 5.4 (1968)).
sake of reaching a verdict. Also, after receiving the charge, the jury deliberated for nearly five
more hours before reaching the guilty verdict. Although not dispositive of the issue, this fact
suggests that the instruction did not coerce the jury into agreeing to a verdict. See Wilkins, 96
Nev. at 373, 609 P.2d at 313.
The separate sentence imposed for habitual criminality
[Headnote 4]
The jury sentenced Staude to life in prison with the possibility of parole for first degree
murder. The district court added a consecutive life sentence with the possibility of parole for
being a habitual criminal and a consecutive six year sentence for conspiracy to commit
murder. The separate life sentence imposed for habitual criminality was error. See Cohen v.
State, 97 Nev. 166, 169, 625 P.2d 1170, 1172 (1981); Lisby v. State, 82 Nev. 183, 189, 414
P.2d 592, 595-96 (1966). The trial court must sentence on the substantive crime charged . . .
, and then invoke the recidivist statute to determine the penalty. Hollander v. State, 82 Nev.
345, 353, 418 P.2d 802, 807 (1966).
[Headnote 5]
Furthermore, in cases such as this one, enhancement of the jury-determined penalty by the
trial court is improper. The Legislature has provided in NRS 175.552 that when a jury finds a
defendant guilty of first degree murder, the jury shall determine the penalty to be given,
absent a written stipulation otherwise by the defendant and both attorneys. In this case, the
jury determined that Staude's sentence should be life imprisonment with the possibility of
parole. The district court attempted to enhance that sentence by adding a consecutive life
sentence for Staude's being a habitual criminal, pursuant to NRS 207.010. We hold that NRS
175.552 precludes habitual criminal enhancement by the court of a penalty for first degree
murder imposed by the jury. We note, however, that since a jury should be apprised of
relevant prior convictions during the penalty hearing after a first degree murder conviction
and since the possible penalties for first degree murder are as severe or even more severe than
those for habitual criminality, the inapplicability of habitual criminal enhancement to first
degree murder penalties will not prevent juries from imposing appropriate sentences on
habitual offenders.
Therefore, we vacate the second sentence of life imprisonment imposed in this case for
habitual criminality. The lawful sentences, for murder and conspiracy to commit murder,
stand.
Other assertions of error
One remark by the prosecutor improperly asked the jury to put itself in the victim's place.
itself in the victim's place. See Williams v. State, 103 Nev. 106, 109, 734 P.2d 700, 703
(1987); Jacobs v. State, 101 Nev. 356, 359, 705 P.2d 130, 132 (1985). However, Staude
failed to object to the remark, and any prejudice was minimal. We have considered Staude's
other assertions of error and conclude that they lack merit.
CONCLUSION
Staude failed to preserve for appellate review the district court's ruling that evidence of his
prior conviction was admissible for impeachment purposes. The district court erred in failing
to give the jury the approved version of the Allen charge; however, the charge given did not
coerce the jury into reaching a verdict. Accordingly, we affirm Staude's convictions for first
degree murder and conspiracy to commit murder. The separate life sentence imposed for
Staude's being a habitual criminal was error. We therefore vacate that sentence.
____________
112 Nev. 8, 8 (1996) Knittle v. Progressive Casualty Ins. Co.
LILLIAN A. KNITTLE, Appellant, v. PROGRESSIVE CASUALTY INSURANCE
COMPANY and DOUGLAS CUNNINGHAM, Respondents.
No. 26160
January 4, 1996 908 P.2d 724
Appeal from an order dismissing a cause of action for failure to state a claim upon which
relief can be granted. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Victim of automobile accident while pedestrian in crosswalk sought declaratory judgment
that motorcycle insurance policy covered insured tort-feasor while driving car. The district
court dismissed action. Victim appealed. The supreme court held as matter of first impression
that action for declaratory relief presented no justiciable controversy ripe for judicial
determination while tort action was pending.
Affirmed.
Edward M. Bernstein & Associates and John R. Provost, Las Vegas, for Appellant.
Burton, Bartlett & Glogovac, Reno, for Respondents.
Declaratory Judgment.
Accident victim's action for declaratory judgment that motorcycle insurance policy covered insured tort-feasor when driving car
presented no justiciable controversy ripe for judicial determination prior to tort judgment.
no justiciable controversy ripe for judicial determination prior to tort judgment. Since victim's rights against liability insurer were
contingent on successful litigation of pending tort suit, she could not assert legally protectible interest creating justiciable controversy
ripe for declaratory relief. NRS 30.030.
OPINION
Per Curiam:
This case presents the question of whether a plaintiff pursuing a tort action against a defendant may, before obtaining a judgment
against the defendant, bring an action for declaratory judgment against the defendant's insurer to determine insurance coverage. We hold
that such an action for declaratory relief presents no justiciable controversy ripe for judicial determination and affirm the district court's
order dismissing the cause of action in this case.
FACTS
On April 4, 1994, appellant Lillian Knittle filed a complaint for injuries against Douglas Cunningham. The year before, Cunningham
was driving a car and negligently struck Knittle as she stood in a crosswalk in Las Vegas.
1
She sought damages in excess
of $10,000.
On April 20, 1994, Knittle filed an amended complaint, adding a second cause of action
against respondent Progressive Casualty Insurance Company (Progressive). In addition to the
facts in her first complaint, she provided the following facts. The car driven by Cunningham
belonged to another person, who carried insurance on the car. That person's insurer had paid
Knittle the full policy limits of $15,000. Cunningham carried a motorcycle insurance policy
with Progressive. Knittle submitted a claim to Progressive, but Progressive denied it stating
that the motorcycle policy excluded coverage for Cunningham's use of a vehicle. This
exclusion was ambiguous.
Progressive moved to dismiss pursuant to NRCP 12(b)(5), arguing that Knittle's claim was
not ripe for adjudication and was an impermissible direct action against an insurer. On July
13, 1994, the district court held a hearing on the matter. On July 22, 1994, the court filed an
order dismissing Knittle's cause of action against Progressive for failure to state a claim upon
which relief can be granted.
__________

1
In reviewing a dismissal under NRCP 12(b)(5) for failure to state a claim upon which relief can be granted,
this court must accept all factual allegations of the complaint as true. Breliant v. Preferred Equities Corp., 109
Nev. 842, 845, 858 P.2d 1258, 1260 (1993).
DISCUSSION AND CONCLUSION
In reviewing a dismissal under NRCP 12(b)(5) for failure to state a claim upon which
relief can be granted, this court must accept all factual allegations of the complaint as true,
construe the pleading liberally, and draw every fair intendment in favor of the non-moving
party. Breliant v. Preferred Equities Corp., 109 Nev. 842, 845, 858 P.2d 1258, 1260 (1993).
Such a dismissal is valid only if it appears beyond a doubt that the plaintiff could prove no set
of facts entitling him or her to relief. Id.
The issue presented in this appeal is whether a plaintiff suing a defendant for an alleged
tort may bring an action for declaratory judgment against the defendant's insurance company
regarding insurance coverage before obtaining a judgment against the defendant. This is a
matter of first impression in Nevada.
2

NRS 30.030 provides that courts shall have power to declare rights, status and other legal
relations whether or not further relief is or could be claimed. This court has held that
declaratory relief is available only when the following conditions exist:
(1) there must exist a justiciable controversy; that is to say, a controversy in which a
claim of right is asserted against one who has an interest in contesting it; (2) the
controversy must be between persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy, that is to say, a legally
protectible interest; and (4) the issue involved in the controversy must be ripe for
judicial determination.
Doe v. Bryan, 102 Nev. 523, 525, 728 P.2d 443, 444 (1986) (quoting Kress v. Corey, 65 Nev.
1, 26, 189 P.2d 352, 364 (1948)).
The Colorado Supreme Court held that a plaintiff does not have standing to sue for
declaratory relief against a defendant's insurer before obtaining a judgment against the
defendant. Farmers Ins. Exchange v. District Court, 862 P.2d 944 (Colo. 1993). The court
concluded that the plaintiff had
no legally protected right or cognizable interest at stake unless and until she has
established [the defendant's] liability. Her rights are contingent on her successful
litigation of the personal injury suit. When the rights of the plaintiff are contingent on
the happening of some event which cannot be forecast and which may never take
place, a court cannot provide declaratory relief.
__________

2
In Rivera v. Nevada Medical Liab. Ins. Co., 107 Nev. 450, 814 P.2d 71 (1991), a patient sexually assaulted by
her doctor filed a declaratory relief action against the doctor's insurer, asking the district court to find that the
insurer had to provide coverage for the assault. Apparently, the patient sought this declaratory relief without
suing or obtaining any judgment from the doctor. The ripeness of the claim for declaratory relief was not
challenged below or on appeal, and this court did not consider that issue.
contingent on the happening of some event which cannot be forecast and which may
never take place, a court cannot provide declaratory relief.
Id. at 948. The court distinguished cases in which insurers or insureds were allowed to seek
declaratory relief, stating that these cases arose only after the insured has made a demand on
the insurance company to defend a lawsuit or to pay a claim or judgment. Id. at 949.
The Utah Court of Appeals ruled similarly in Boyle v. National Union Fire Ins. Co., 866
P.2d 595 (Utah Ct. App. 1993), where plaintiffs filed a tort action against the officers,
directors, and partners of a company in regard to money which the plaintiffs had invested in
the company. The court concluded that a declaratory relief action brought by plaintiffs against
the defendants' insurer was not ripe for adjudication because it
would have placed the trial court in the position of trying to guess what facts might he
determined in a trial on the tort claim, and then to apply those hypothetical facts to the
insurance policies.
Id. at 598.
We find the concerns and reasoning expressed in these cases persuasive. We therefore
conclude that since Knittle's rights against Progressive are contingent on her successful
litigation of a pending tort suit, Knittle can assert no legally protectible interest creating a
justiciable controversy ripe for declaratory relief. Accordingly, we affirm the district court's
order dismissing the claim for declaratory relief against Progressive.
____________
112 Nev. 11, 11 (1996) Kolnik v. State, Emp. Sec. Dep't
ZEEV KOLNIK, Appellant, v. NEVADA EMPLOYMENT SECURITY DEPARTMENT,
STATE OF NEVADA, STANLEY P. JONES, in His Capacity as Director of the
Nevada Employment Security Department, LINDA K. LEE, in Her Capacity as
Chairman, BOARD OF REVIEW, Nevada Employment Security Department and
YELLOW CHECKER STAR, a Nevada Corporation, Respondents.
No. 25813
January 4, 1996 908 P.2d 726
Appeal from an order of the district court denying a petition for judicial review of an
administrative agency decision denying unemployment benefits. Eighth Judicial District
Court, Clark County; Gerard J. Bongiovanni, Judge.
Cab driver who was discharged for being in two chargeable accidents within three-year
period sought review of Employment Security Division (ESD) Board of Review's decision
denying him unemployment benefits. The district court upheld denial of benefits and cab
driver appealed. The supreme court, Rose, J., held that cab driver's second accident within
three-year period did not demonstrate carelessness or negligence to the extent required to find
an element of wrongfulness and, therefore, misconduct so as to deny unemployment benefits.
Reversed.
Shearing, J., dissented.
Jon Sasser and David Olshan, Nevada Legal Services, Las Vegas, for Appellant.
Crowell, Susich, Owen & Tackes, Carson City, and Law Offices of Jeffrey L. Eskin, Las
Vegas, for Respondents.
1. Social Security and Public Welfare.
When analyzing the concept of misconduct in determining whether claimant is eligible for unemployment benefits, trier of fact
must consider the legal definition in context with the factual circumstances surrounding the conduct at issue. NRS 612.385.
Whether unemployment compensation claimant's negligence was of such a nature as to constitute willful misconduct, and thereby
disqualify him from receiving benefits, was a question of law. NRS 612.385.
3. Administrative Law and Procedure.
Although court may decide pure questions of law without giving deference to agency's determination, agency's conclusions of law
which are closely related to agency's view of the facts are entitled to deference and should not be disturbed if court determines that they
are supported by substantial evidence and substantial evidence is that which reasonable mind could find adequate to support
conclusion.
Substantial evidence is that which reasonable mind could find adequate to support conclusion.
Mere counting of cab driver's accidents could not justify denial of unemployment compensation benefits on ground of misconduct.
NRS 612.385.
With the amount of driving that unemployment compensation claimant was doing as cab driver, claimant's second chargeable
accident within three-year period did not demonstrate carelessness or negligence to the extent required to find an element of
wrongfulness and, therefore, misconduct and thus, claimant did not engage in work related misconduct sufficient to deny him
unemployment benefits. NRS 612.385.
OPINION
By the Court, Rose, J.:
Zeev Kolnik (Kolnik) worked as a driver for Yellow Checker Star Cab company (Yellow)
from November 14, 1990, to December 28, 1992, when he was suspended pending
investigation of his second traffic accident. On December 30, 1992, Kolnik was discharged
for being in two chargeable accidents within three years.
Kolnik applied for unemployment benefits with the Nevada Employment Security
Division (ESD). ESD denied Kolnik's application citing work-related misconduct. Kolnik
appealed ESD's decision to its appeals referee who agreed with the initial ESD determination
denying unemployment benefits. The appeals referee's decision was subsequently upheld by
the ESD Board of Review (the Board). Kolnik then requested judicial review by the district
court. The district court upheld the denial of unemployment benefits and dismissed the
petition for judicial review. Kolnik now appeals to this court.
We conclude as a matter of law that the evidence in this case did not support a finding of
work-related misconduct sufficient to warrant a denial of benefits.
FACTS
Kolnik worked as a cab driver for Yellow from November 14, 1990, to December 28,
1992. He testified that there was a lot of pressure to perform well as a cab driver and that he
worked ten to eleven hours a day, starting his shifts at approximately 7:00 a.m. On December
28, 1992, a work-related accident resulted in his suspension pending an investigation. Two
days later, at a scheduled supervisors meeting, the supervisors voted to discharge Kolnik
based on his involvement in two work-related car accidents.
The supervisors based their decision on a collective bargaining agreement between Yellow
and the Industrial, Technical, and Professional Employee Division, National Maritime Union,
AFL-CIO. The relevant portion of this agreement was also included in an employee handbook
that Kolnik received when he was hired. The relevant portion states:
No warning letter need be given to any driver before discharge if the cause of such
action is:
. . . .
(22) Two chargeable accidents during any three (3) year period.
Mr. Wolf, Kolnik's supervisor, testified that traffic citations are not always determinative of a
chargeable accident. Wolf also testified that if the insurance carrier determines the driver to
be at fault and orders the company to pay damages, it is a chargeable accident.
Kolnik's first accident occurred on December 21, 1991. His cab struck another vehicle as
he attempted to make a right hand turn at an intersection. Kolnik was cited for failing to yield
on a right hand turn when the light was red. This citation was later reduced by the justice
court to an illegal parking offense. Yellow's insurance carrier paid approximately $8,000 in
damages and bodily injuries stemming from the accident.
After the first accident, Kolnik read and signed a statement which acknowledged that if he
was involved in another chargeable accident within three years, he could be terminated.
Kolnik's second accident occurred a year and a week later on December 28, 1992. The
accident occurred at approximately 7:00 a.m., shortly after his shift started. It was raining that
morning, and Kolnik was exiting a freeway off-ramp. Upon exiting, Kolnik failed to see that
another car ahead of him was stopping or slowing down. When Kolnik did notice this, he
applied the brakes to his cab. Despite this, his cab skidded and collided with the right rear of
the other car. Kolnik attributed the skidding to the wet condition of the road. Yellow received
a report from Kolnik immediately after the accident occurred. Damages to the cab totaled
$340. Kolnik received a traffic citation for failure to use due care, which was subsequently
squelched because Kolnik attended traffic school.
After his termination, ESD denied Kolnik unemployment benefits, based on the collective
bargaining agreement and the citation for the second accident. ESD determined that Kolnik
had engaged in work-related misconduct.
Kolnik appealed ESD's decision to an appeals referee. On March 12, 1993, the appeals
referee determined that, pursuant to NRS 612.385
1
, [t]he preponderance of evidence
establishes that the claimant was negligent in the performance of his duties on December 28.
This action showed a disregard for the employer's best interest by causing damage to the
employer's property.
__________

1
NRS 612.385 states:
A person is ineligible for benefits for the week in which he has filed a claim for benefits, if he was
discharged from his last or next to last employment for misconduct connected with his work, and remains
ineligible until he earns remuneration in covered employment equal to or exceeding his weekly benefit
amount in each of not more than 15 weeks thereafter as determined by the administrator in each case
according to the seriousness of the misconduct.
Misconduct in connection with the work has been established. The referee's decision noted
that, in light of the prior citation and because the road was wet, Kolnik should have
redoubled his efforts to ensure that he used more caution.
The Board upheld the referee's decision on March 26, 1993, adopting the referee's findings
of fact and reasons for denial of unemployment benefits. Kolnik requested judicial review.
On March 15, 1994, the district court upheld ESD's decision and dismissed Kolnik's petition
for judicial review. Kolnik appealed to this court.
DISCUSSION
In this case, Kolnik is not disputing his termination, merely the denial of his
unemployment benefits due to the finding of misconduct. Our dissenting colleague, however,
seems to have merged these two issues: misconduct warranting termination and misconduct
warranting a denial of unemployment benefits. The only issue contested in the instant case is
whether Kolnik's two accidents constituted willful misconduct sufficient to prevent his
collection of benefits.
Under NRS 612.385, a person is ineligible for unemployment benefits if he has engaged in
misconduct.
The term misconduct has been defined by the Employment Security Department as
follows: . . . a deliberate violation or disregard on the part of the employee of
standards of behavior which his employer has the right to expect. Carelessness or
negligence on the part of the employee of such a degree as to show a substantial
disregard of the employer's interests or the employee's duties and obligations to his
employer are also considered misconduct connected with the work. . . .
Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968).
2
We have determined that
ordinary negligence in isolated instances, or good faith errors in judgment or discretion, are
excluded from the definition of misconduct. Id. at 41, 436 P.2d at 222.
[Headnote 1]
When analyzing the concept of misconduct, the trier of fact must consider the legal
definition in context with the factual circumstances surrounding the conduct at issue. Garman
v. State, Employment Security Dep't, 102 Nev. 563, 565, 729 P.2d 1335, 1336 (1986).
Nevada decisions have stated that the employee's conduct which prompted the termination
must have an element of wrongfulness in order to constitute misconduct so as to prevent
the terminated employee from receiving unemployment benefits."
__________

2
Barnum does not identify the source of the material quoted.
conduct which prompted the termination must have an element of wrongfulness in order to
constitute misconduct so as to prevent the terminated employee from receiving
unemployment benefits. Id.
[Headnotes 2-4]
Whether Kolnik's negligence was of such a nature as to constitute willful misconduct is a
question of law. Seyler v. Com., Unemp. Comp. Bd. of Review, 481 A.2d 1262, 1264 (Pa.
Commw. Ct. 1984). Although the court may decide pure questions of law without giving
deference to an agency's determination, an agency's conclusions of law which are closely
related to an agency's view of the facts are entitled to deference and should not be disturbed if
the court determines that they are supported by substantial evidence. SIIS v. Khweiss, 108
Nev. 123, 126, 825 P.2d 218, 220 (1992). Substantial evidence is that which a reasonable
mind could find adequate to support a conclusion, State, Emp. Security v. Hilton Hotels, 102
Nev. 606, 608, 729 P.2d 497, 498 (1986).
[Headnote 5]
Relying on Barnum as the standard for evaluating misconduct, the referee concluded that
Kolnik's actions showed a disregard for Yellow's best interest by causing damage to its
property. However, we conclude that the necessary element of wrongfulness is lacking and
that the mere counting of accidents cannot justify denial of benefits. Cf. Continental Oil
Company v. Bd. of Review of Indus. Comm., 568 P.2d 727 (Utah 1977) (declining to
conclude that a claimant was not entitled to benefits based on misconduct after being
involved in three accidents, including two for driving under the influence of alcohol).
[Headnote 6]
Nothing in the record implies that Kolnik acted intentionally or recklessly in either of the
accidents. With the amount of driving Kolnik was doing as a cab driver, we cannot conclude
that Kolnik's second accident demonstrated carelessness or negligence to the extent required
to find an element of wrongfulness and therefore misconduct. Accordingly, we conclude that
the appeals referee abused her discretion in finding that Kolnik had engaged in work-related
misconduct sufficient to deny unemployment benefits.
Based on our disposition of this appeal, we find it unnecessary to reach the merits of
Kolnik's other arguments.
CONCLUSION
We conclude that in this case two accidents did not constitute misconduct sufficient to
deny employment benefits and that substantial evidence did not support the conclusion
reached by the appeals officer.
stantial evidence did not support the conclusion reached by the appeals officer. Accordingly,
we reverse the district court's order denying benefits.
Steffen, C. J., and Young and Springer, JJ., concur.
Shearing, J., dissenting:
I would afirm the order of the district court denying the petition for judicial review of the
agency decision denying unemployment benefits. This court has no sound justification for
concluding as a matter of law, that two accidents in which a taxicab driver was involved were
not misconduct. This court is not to substitute its judgment of the evidence for that of the
administrative agency. State, Dep't of Mtr. Vehicles v. Beckstead, 107 Nev. 456, 458, 813
P.2d 995, 996 (1991). The majority recognizes this rule too, and therefore couches its opinion
in terms of lack of substantial evidence. However, the majority's own recitation of the
evidence and Kolnik's testimony show that there was substantial evidence from which a trier
of fact could conclude that the accidents were the result of misconduct.
This court stated in Fremont Hotel v. Esposito, 104 Nev. 394, 397, 760 P.2d 122, 123-24
(1988):
Misconduct may be established by a deliberate violation or disregard on the part of the
employee of standards of behavior which his employer has a right to expect. Barnum
v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968).
It should be clear that an employer of a professional driver has a right to expect that that
professional driver will drive carefully and will not negligently cause automobile accidents
resulting in damage to the employer. Even the public has a right to expect careful professional
drivers, not negligent ones. The majority appears to add a requirement that a taxicab driver
must either recklessly or intentionally cause an automobile accident before the accident can
be characterized under NRS 612.385 as misconduct connected with his work. There is no
basis for such an added requirement, especially for a professional driver. The definition
quoted by the majority supports the finding of misconduct in the circumstances here since it
states:
Carelessness or negligence on the part of the employee of such a degree as to show a
substantial disregard of the employer's interests or the employee's duties and obligations
to his employer are also considered misconduct connected with the work. . . .
Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968).
In this case, there was evidence that Kolnik's negligence caused both accidents resulting
in thousands of dollars of damage to the employer.
caused both accidents resulting in thousands of dollars of damage to the employer. This
demonstrates substantial disregard for the employer's best interests. The collective bargaining
agreement under which Kolnik was working provided that the conduct was sufficient cause
for discharge. Two chargeable accidents within three years were essentially defined by the
collective bargaining agreement as misconduct sufficient for discharge. Kolnik had two
chargeable accidents within nearly one year. This evidence should be sufficient for the
appeals officer to base its finding of misconduct under NRS 612.385.
In Fremont this court stated the appropriate standard as follows:
[B]oth this court and the district court are restricted in the review of the administrative
agency proceedings. The district court does not hold a trial de novo.
When analyzing the concept of misconduct, the trier of fact must consider the legal
definition, Barnum, in context with the factual circumstances surrounding the
conduct at issue. Misconduct then becomes a mixed question of law and fact. Jones
v. Rosner, 102 Nev. 215, 719 P.2d 805 (1986). Findings of misconduct must be
given deference similar to findings of fact, when supported by substantial evidence
in the lower court. Id.
104 Nev. at 397, 760 P.2d at 124, quoting Garman v. State, Employment Security Dep't, 102
Nev. 563, 565, 760 P.2d 1335, 1336 (1986).
This court has no basis for overturning the administrative agency's decision.
____________
112 Nev. 18, 18 (1996) State v. Stull
THE STATE OF NEVADA, Appellant, v. LYNETTE LAVERNE STULL, Respondent.
No. 25821
January 4, 1996 909 P.2d l180
Appeal from an order of the district court dismissing criminal charges. Second Judicial
District Court, Washoe County; James A. Stone, Judge.
After bailing prison escapee out of county jail where escapee was being held for
shoplifting, defendant was charged with aiding prisoner to escape, concealing escaped
prisoner, and conspiracy to escape. The district court dismissed charges. State appealed. The
supreme court, Rose, J., held that: (1) defendant could be convicted of aiding prisoner to
escape if defendant knew escapee was escaped prisoner when she bailed him out of jail,
and {2) evidence was sufficient to charge defendant with aiding escape.
112 Nev. 18, 19 (1996) State v. Stull
convicted of aiding prisoner to escape if defendant knew escapee was escaped prisoner when
she bailed him out of jail, and (2) evidence was sufficient to charge defendant with aiding
escape.
Reversed and remanded.
Springer, J., dissented.
Frankie Sue Del Papa, Attorney General, and John E. Simmons, Deputy Attorney General,
Carson City, for Appellant.
Fred H. Atcheson, Reno, for Respondent.
1. Escape.
Defendant who bailed prison escapee out of county jail where escapee was being held for shoplifting could be convicted of aiding
prisoner to escape if defendant knew escapee was escaped prisoner when she bailed him out of jail. Escapee's escape from prison was
not complete at time he was put in jail since he had not reached temporary safety, and although defendant claimed she didn't know it
was escapee she was bailing out of jail since escapee gave police a false name upon his arrest, defendant aided and abetted escape if
she actually knew escapee's true identity. NRS 212.100.
2. Escape.
Escape is a continuing offense.
3. Escape.
Escape is not a continuing offense with regard to liability for assisting or concealing escape. NRS 212.100, 212.130.
4. Escape.
Crime of aiding escape ends once escapee reaches temporary safety. NRS 212.100.
5. Criminal Law.
Evidence was sufficient to charge defendant with aiding escape. Defendant bailed escapee from prison out of county jail, and
although defendant claimed she didn't know she was bailing out escapee since escapee had given police a false name following his
shoplifting arrest, it could be inferred that she did know it was escapee since defendant used an alias when identifying herself at jail
and told investigating prison officials she hadn't spoken to or seen escapee, but when asked how she knew to come to jail to post bail,
defendant changed her story and said escapee had called her and asked her to bail out a friend. NRS 212.100.
OPINION
On the morning of October 8, 1993, respondent Lynette Laverne Stull (Lynette) bailed Howard Stull (Stull) out of Washoe County Jail.
Just hours before, Stull had escaped from the Northern Nevada Restitution Center (NNRC), where he had been incarcerated. The Reno
police arrested him that morning for shoplifting, and he gave them a false name.
112 Nev. 18, 20 (1996) State v. Stull
shoplifting, and he gave them a false name. Lynette bailed him out under that name. Lynette
claims that she thought she was bailing Stull's friend out and that she never saw Stull that
morning. Lynette and Stull were arrested two weeks later at a house in Seattle, Washington.
The State charged Lynette with two felonies, aiding a prisoner to escape and concealing an
escaped prisoner, and one gross misdemeanor, conspiracy to escape. The justice court bound
her over for trial. She petitioned the district court for pretrial habeas relief and filed a motion
to dismiss all of the charges. The court granted the latter, and the State appealed.
We conclude that given the circumstances under which Lynette bailed Stull out of jail, she
can be prosecuted for aiding in his escape. We therefore reverse the district court's order and
remand this case for further proceedings.
FACTS
The following evidence was presented to the justice court at the preliminary hearing and to
the district court at the hearing on the motion to dismiss. Stull was an inmate at NNRC in
October 1993. Lynette lived in Sparks at that time and visited Stull regularly, indicating that
she was his wife and signing the visitor's log as Lynette Stull. She visited him on the
afternoon of October 7, 1993, and spoke with him on the phone the same night. Sometime
during the night of October 7 or the morning of October 8, Stull escaped from NNRC.
At 6:30 a.m. on October 8, a Reno police officer arrested Stull for shoplifting at the Reno
Hilton. Stull identified himself to the officer as Charles Benjamin Wilson, and although the
officer suspected Stull was lying, she booked him under this name. At 9:48 a.m. the same
day, Lynette paid $315 to bail Wilson' out of Washoe County Jail. She did so under the name
of Lynette Brown. Lynette testified that she and Stull were not married, but that she had lived
with him for more than eight years and was his common law wife; she considered Brown her
legal name. She also testified that she did not know Wilson' was actually Stull at the time she
bailed him out. She testified that Stull called her around 8:30 a.m. the morning of October 8
and asked her to bail out his friend, Charles Benjamin Wilson. The State did not present
evidence to establish that Lynette and Stull saw each other at the jail.
Around 9:30 a.m. on October 8, staff at NNRC could not account for Stull. The facility
was locked down at 10:00 a.m., and an emergency count confirming his absence was
completed by 10:25 a.m. Lynette went to NNRC around 1:00 p.m. that day and was told that
Stull had escaped. She responded that she had not seen Stull since the day before and had
not spoken to him that day.
112 Nev. 18, 21 (1996) State v. Stull
not seen Stull since the day before and had not spoken to him that day. An NNRC officer and
Sparks police visited Lynette at her home around 2:30 p.m. that afternoon. Lynette again
denied seeing or talking to Stull that day. Stull was not found at her home.
On October 22, 1993, Lynette's vehicle was located in Seattle. Stull and Lynette were
arrested that day at the house where the vehicle was parked. Lynette was found in the
backyard of the house with her three dogs. When Seattle police asked her identity, she said
Lynette Brown. When asked about Stull, she told the police that she had not seen him for
about a year. The police noticed someone through a basement window of the house. A Seattle
police officer testified that when he asked the owner of the house if Stull was there, the owner
said, They arrived last night. Stull was found in the basement. The defense offered an
affidavit from the owner declaring that Lynette had arrived at the house the morning of
October 22, sometime after Stull had gotten there. Lynette testified that Stull had called her to
come to Seattle, that she had arrived at the house when everyone was sleeping, and that a few
hours later, when she was arrested, she was unaware that Stull was there. Stull was released
on bail in Seattle and has vanished.
The State of Nevada charged Lynette with aiding a prisoner to escape, a felony violation of
NRS 212.100; concealing an escaped prisoner, a felony violation of NRS 212.130; and
conspiracy to escape, a gross misdemeanor violation of NRS 199.480, 212.090, and 212.095.
Lynette moved to dismiss, and the district court held a hearing on the motion. The court
granted the motion because it did not know the answer to certain legal questions. Three issues
concerned the court. First, can Lynette be liable for bailing an escapee out of jail? Second,
does the statute defining accessories to a crime apply to the relationship that Lynette and Stull
had? Third, does this case arise out of a bail contract with the Washoe County Sheriff, rather
than an escape from the custody of the Nevada Department of Prisons (DOP)?
DISCUSSION
Whether Lynette can be criminally liable for bailing an escapee out of jail
[Headnote 1]
NRS 212.100 provides in part:
Every person who, with intent to effect or facilitate the escape of a prisoner, whether
the escape is effected or attempted or not, . . . aids or assists a prisoner in escaping or
attempting to escape from the lawful custody of a sheriff or other officer or person [is
guilty of a crime].
112 Nev. 18, 22 (1996) State v. Stull
We conclude that if Lynette knowingly bailed Stull out of jail, this action would constitute
intentionally assisting a prisoner to escape from the lawful custody of the DOP.
[Headnote 2]
To avoid this conclusion, Lynette asserts that her alleged assistance to Stull came after his
escape from DOP custody was complete. Escape is a continuing offense. Campbell v. District
Court, 101 Nev. 718, 723, 710 P.2d 70, 72 (1985), appeal dismissed, 476 U.S. 1154 (1986).
However, Lynette argues that the holding in Campbell applies only to the escapee and only to
the running of the statute of limitations. She cites U.S. v. Vowiell, 869 F.2d 1264 (9th Cir.
1989), for support. Vowiell concluded that United States v. Bailey, 444 U.S. 394 (1980),
which held that escape is a continuing offense and which Campbell relied on, deals only
with the law of escape as it relates to the escapee, and not at all with assisting an escape, nor
with a conspiracy to assist an escape. Vowiell, 869 F.2d at 1269. Under federal statutory law,
the crime of assisting an escape is distinct from the crime of harboring or concealing an
escaped prisoner. This fact was central to the Vowiell court's conclusion that escape was not a
continuing offense in regard to assisting an escape. Id. at 1267-68, 1269.
[Headnote 3]
The Nevada Legislature has also distinguished the crimes of aiding an escape and
concealing an escaped prisoner. NRS 212.100; NRS 212.130. Therefore, we agree that it is
not appropriate to consider escape a continuing offense in regard to liability for assisting an
escape. However, Vowiell does not apply to the facts of the instant case because Stull's escape
was not complete at the time Lynette allegedly assisted him.
The issue in Vowiell was whether a co-conspirator's hearsay statement was admissible
against the accused. Vowiell was an inmate charged with assisting the escape and conspiring
to assist the escape of three other inmates. Id. at 1266. The hearsay statement was made four
days after the three inmates cut through a fence and fled the correctional institute in
Pleasanton, California, and while they were still at large; one had reached San Francisco and
two had reached Bakersfield. Id. at 1265. The Ninth Circuit Court reasoned that the escapees
had reached temporary safety by the time the hearsay statement was made, so the conspiracy
to assist the escape had ended, and therefore the co-conspirator exception to the hearsay rule
did not apply. Id. at 1267-68. The court concluded that at this point, [a]ny further assistance
could have, at most, constituted harboring or concealing. Id. at 1268. The charged
conspiracy did not encompass this uncharged offense. Id.
112 Nev. 18, 23 (1996) State v. Stull
By contrast, in this case Lynette's alleged act of assistance occurred within hours after Stull
fled from NNRC, when he was still in Reno and still had not reached a place of temporary
safety. In fact, he was being held in jail, in imminent danger that authorities would discover
his true identity and status as an escaped prisoner. Bailing him out under these circumstances
could constitute assisting his escape.
Lynette also claims that Stull had already escaped the lawful custody of DOP by the time
he was arrested at the Reno Hilton; therefore, she could not have violated NRS 212.100. She
reasons that by bailing Stull out of jail, she lawfully secured his release only from the custody
of the Washoe County Sheriff. She invokes the rule of lenity for statutory interpretation of
criminal statutes. Shrader v. State, 101 Nev. 499, 505-06, 706 P.2d 834, 838 (1985) (criminal
statutes must be liberally construed to favor the accused in resolving ambiguities).
Lynette's reading of NRS 212.100 ignores the analysis of the offenses of escape and aiding
an escape which Vowiell and other courts have made. Furthermore, her reading would, if
followed, lead to absurd results. Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871
P.2d 935, 938 (1994) (a statute should always be construed so as to avoid absurd results).
Lynette asserts that once Stull made his way out of the prison facility, he was no longer in the
custody of DOP under the statute. Following this construction, if she had been waiting for
Stull in a car across the street from the facility and driven him away, she would not be liable
for aiding his escape because he would no longer have been in the custody of DOP the
moment he was beyond the bounds of NNRC.
[Headnote 4]
Per Vowiell, the crime of aiding an escape ends once the escapee reaches temporary safety.
Vowiell, 869 F.2d at 1268. When the physical control has ended by flight beyond
immediate active pursuit, the escape is complete. After that aid to the fugitive is no longer
aiding his escape.' Id. (quoting Orth v. United States, 252 F. 566, 568 (4th Cir. 1918)).
Here, Lynette bailed Stull out around 9:48 a.m. As noted, he had not reached temporary
safetyhe was confined in jail. He had not fled beyond immediate active pursuit because he
was still in Reno and such pursuit did not even commence until around 10:00 a.m., when
NNRC staff locked down the facility and began an emergency count. We conclude that Stull's
escape from NNRC was not complete until sometime after he was released from the jail.
Therefore, if Lynette intentionally bailed him out of jail knowing his true identity, she aided
in his escape.
Lynette also asserts that in posting bail, her liability is limited to that of a surety, as set
forth in the bail bond.
112 Nev. 18, 24 (1996) State v. Stull
to that of a surety, as set forth in the bail bond. She offers no authority for this proposition.
The district court's concern with the bail contract and which entity it was with is misplaced.
We do not see how posting bail and assuming the attendant civil liability could nullify or
preclude criminal liability that might arise from that posting any more than driving a car
could limit a driver's liability to motor vehicle and traffic laws in the context of driving an
escapee away from a prison.
[Headnote 5]
The record shows that a few hours after Stull made his way out of NNRC, he phoned
Lynette and she bailed him out of Washoe County Jail. In doing so, she identified herself as
Lynette Brown rather than Lynette Stullthe name which she normally used and the name
which she shared with the escapee. Later that day, she told prison authorities that she had not
talked to Stull that day, even though she later admitted that he had called her on the phone
that morning and had her bail someone out of Washoe County Jail. In light of this record, we
conclude that the State has made out a legally and factually sufficient case for the prosecution
of Lynette for the criminal offense of aiding Stull's escape.
Whether sufficient evidence of concealing an escaped prisoner exists to bind Lynette over for
trial
In her motion to dismiss, Lynette challenged the sufficiency of the evidence to bind her
over for trial on the charge of concealing an escaped prisoner. The district court did not rule
on this issue, and Lynette is free to raise this issue again after remand of this case.
Whether the law of accessories and Lynette's alleged common law marriage to Stull are
relevant
The district court queried whether NRS 195.030, which defines accessories to a crime,
applied in this case. NRS 195.030 states that the wife of an offender is not chargeable as an
accessory to a crime, and Lynette claims to be Stull's common law wife. However, this line of
reasoning is irrelevant because the State did not charge Lynette as an accessory.
CONCLUSION
The district court erred in dismissing this case for the reasons it stated. If Lynette bailed
Wilson' out of jail knowing that Wilson' was Stull, she assisted in Stull's escape from
NNRC. Stull's escape was not complete at that time because he had not reached temporary
safety. Lynette's bail contract with the Washoe County Sheriff does not preclude her
prosecution.
112 Nev. 18, 25 (1996) State v. Stull
Accordingly, we reverse the district court's order and remand for further proceedings.
Steffen, C. J., and Young and Shearing, JJ., concur.
Springer, J., dissenting:
I agree with the trial court. I do not see how the bailed
1
prisoner could be said to have
escaped when he was voluntarily released by his jailers. If the prisoner did not escape, Stull
could not be guilty of aid[ing] or assist[ing] a prisoner in escaping.
It may be that Stull was guilty of some kind of criminal misconduct, but it was not
assisting an escape. Stull bailed out of jail a body called Wilson. It happened that the
body was really named Stull. Whatever the name of the body, it got out of jail by virtue of
lawful process and not by escape. A jailer's negligent release of the wrong person from
custody can never, in my view, fall into the category of escape.
____________
112 Nev. 25, 25 (1996) Walch v. State
ANNE ROBIN WALCH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25824
January 4, 1996 909 P.2d 1184
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of felony
theft. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
The supreme court, Rose, J., held that: (1) defendant's mere status as party to joint
accounts with person over whom defendant had power of attorney did not provide her with
lawful authority to use account assets for her own benefit and, therefore, did not preclude her
conviction for theft, and (2) ordering defendant to pay restitution in amount of $14,646.32
was not arbitrary.
Affirmed.
James J. Jackson, State Public Defender, and Robert E. West, Deputy Public Defender,
__________

1
The verb bail means to set at liberty a person arrested or imprisoned. See Black's Law Dictionary 127 (5th
ed. 1979). There was no need here for the prisoner to escapehe was set at liberty by the authorities.
112 Nev. 25, 26 (1996) Walch v. State
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District Attorney,
and Egan K. Walker and Anne E. Langer, Deputy District Attorneys, Carson City, for
Respondent.
1. Embezzlement.
Defendant's mere status as party to joint accounts with person over whom defendant had power of attorney did not provide her
with lawful authority to use account assets for her own benefit and, therefore, did not preclude her conviction for theft. Defendant's role
as joint legal owner of accounts was not distinct from and did not trump her role as attorney in fact in regard to account funds. NRS
205.0832.
2. Criminal Law.
Ordinarily, if party fails to raise issue in trial court, supreme court need not consider it on appeal.
3. Criminal Law.
If, as a matter of law, defendant could not have been convicted of theft, her conviction would be patently prejudicial error and,
therefore, supreme court would address issue, even though defendant did not offer instruction on her theory or object to instruction
given.
4. Criminal Law.
Asserted error in ordering defendant, convicted of felony theft, to pay restitution in amount of $14,646.32, which was not raised in
trial court, was neither plain nor constitutional in magnitude and, therefore, supreme court would not consider it on appeal.
5. Criminal Law.
Ordering defendant, convicted of felony theft, to pay restitution in amount of $14,646.32 was not arbitrary, given that record
supported finding that amount of theft exceeded $14,646.32.
OPINION
Nell Laird (Nell), an elderly woman, gave a durable power of attorney to appellant Anne Robin Walch. In handling Nell's financial
affairs, Walch opened two joint accounts in her and Nell's names into which she placed the bulk of Nell's funds. Walch wrote a number of
checks on these two accounts which she spent for her and her family's benefit. She also deposited some of Nell's funds directly in her own
account and cashed checks made out to Nell. The State prosecuted Walch for theft. At her trial, she maintained that Nell allowed her to
borrow the funds in question and that she intended to pay them back. Nell was not competent to testify. The jury found Walch guilty.
On appeal Walch raises two issues for the first time. She argues that as joint owner of the funds in the two accounts, she had lawful
authority to withdraw them and could not be guilty of theft. She also argues that the amount of restitution ordered by the district court was
arbitrary and improper. We conclude that these arguments are not persuasive and affirm the judgment of conviction.
112 Nev. 25, 27 (1996) Walch v. State
these arguments are not persuasive and affirm the judgment of conviction.
FACTS
Nell is an elderly resident of Carson City in her nineties. Ron Machado is a friend of Nell's
who lives with her and assists her in her daily life. In early 1990, Machado was severely
beaten at home by three intruders and left somewhat disabled physically and mentally. Shortly
after that, Darlene Roullard, a CPA, began handling both Nell's and Machado's financial
affairs. Machado became dissatisfied with Roullard. He told Walch, a friend of his, about
this, and they agreed that Walch would assume control of his financial affairs.
On December 20, 1991, Nell executed a document providing Walch with a durable power
of attorney for her. The document expressly precluded Walch from using Nell's assets for
Walch's own legal obligations, including but not limited to support of the agent's
dependents. On that same day, Walch received the bulk of Nell's funds, approximately
$11,000.00, from Roullard. Walch deposited $2,000.00 from this $11,000.00 into her
personal account on December 23, 1991. She did this by endorsing Nell's name on a check
drawn from an account held by Nell and Machado.
With the remaining sum of approximately $9,000.00, Walch opened a joint account for her
and Nell at First Interstate Bank (FIB) on December 24, 1991. Nell herself signed the check
for this deposit. Walch applied for and received an ATM card with the account. She listed
herself as Nell's guardian on the application. Walch changed this FIB account to a trust
account, to which only she had access, on January 8, 1992. Walch also opened a second joint
account for her and Nell at Bank of America (later U.S. Bank) with an additional $1,950.00
which she had earlier received from Nell. (This account and the FIB account are referred to as
the two accounts.) She later lied to a sheriff's detective and told him that this money had
come from the $11,000.00 first received from Roullard.
Machado had given a power of attorney to Walch as well. He became irritated with Walch
and formally revoked this power. On March 13, 1992, Machado also had Nell execute a
revocation of Walch's power of attorney and place that power in him. Machado said Walch
knew of the revocation within a week or so. Walch said she learned of it around August 1992.
However, she continued to tell a number of people, including a realtor, social worker, and
assistant sheriff, that she had such power because she continued to handle Nell's and
Machado's affairs despite the revocations.
112 Nev. 25, 28 (1996) Walch v. State
In September 1992, Nancy Hunter, a State of Nevada social worker, received a report that
Nell might not be properly cared for. Hunter visited Nell at home and spoke with her and
Machado. She found no major problems and decided to wait and monitor the situation.
Hunter spoke to Walch on the phone the next day. Walch informed Hunter that she was the
guardian of both Nell and Machado.
In October 1992, Hunter received a report that Nell was very upset because her house was
being sold. Hunter went to Nell's home and found that this was true. She subsequently met
with Walch and discussed the matter. Walch told her that the plan was to sell the house and
buy a bed and breakfast in Virginia City, where Nell would live, Machado would conduct
tours, and Walch and her husband would run the bed and breakfast and a catering business.
Hunter informed Walch that she thought such a move would not benefit Nell either personally
or financially. Hunter asked Walch to meet with Dennis Green, an assistant sheriff who acted
as a public guardian for the consolidated municipality.
Green, Hunter, and Walch met at Nell's on October 19, 1992, to discuss Walch's relation
and actions in regard to Nell. Initially, Walch indicated she held some kind of guardianship
but later backed off from that position and said she held a power of attorney for Nell. A day
or two later at Hunter's office, Walch provided Hunter with some legal documents, apparently
regarding her power of attorney. Hunter gave Walch guidelines for guardians used by Washoe
County courts. Later that day, Walch returned to Hunter's office and said she had looked at
the guidelines and needed to clear things up. Walch said she did not want to get arrested in
front of her children and indicated that she had taken more than $10,000.00 from Nell. Walch
never told Hunter that the money was taken as a loan or with Nell's permission.
Machado testified that Walch made a similar admission to him around the same time.
However, she told Machado that she had intended to repay the money when her husband
received a disability settlement, but no settlement had been made.
The assistant sheriff, Green, attempted to meet with Walch after her admission to Hunter,
but Walch never went to the sheriff's department to meet him. Green discovered that Nell's
finances were in a shambles. She was behind in her property taxes, water bill, telephone
bill, and medical bills, her 1991 income taxes were not filed, and her FIB account was
overdrawn. In October 1992, Nell's monthly income was about $1,980.00. By March 15,
1993, with Green helping to manage Nell's affairs and after paying off the overdue bills, they
had accumulated about $3,000.00.
On the morning of December 8, 1992, Joe Strande, a sheriff's detective, executed a
search warrant at Walch's home.
112 Nev. 25, 29 (1996) Walch v. State
detective, executed a search warrant at Walch's home. Walch cooperated and provided him
with a tray of documents relating to Nell's finances. Strande also possessed a warrant to arrest
Walch, but did not serve her with it. He asked her to go to the sheriff's office, and she did so
that afternoon. Strande read Walch her Miranda rights and interviewed her, reviewing a
number of the documents with her. Walch identified dozens of checks drawn on the two
accounts, totaling $11,009.28, which had been used for the benefit of her and her family.
Strande testified that Walch said she felt she had overextended her authority in doing this and
that Nell was not capable of understanding how much of Nell's money she had used. Walch
told Strande that she considered the money to be a loan and that she would pay it back when
her husband received his social security disability. She also maintained that Nell gave her
permission to use the money if she needed it and that she told Nell when she did so.
Walch was subsequently arrested and received a jury trial. Nell never testified because the
district court examined her and found her incompetent to testify. Walch testified that in return
for her services to Nell and Machado, Nell allowed her to borrow money for her family's
needs. She planned to repay Nell from her husband's settlement. She never borrowed money
without Nell's authorization, and she deposited checks payable to Nell into her own account
only with Nell's permission. Walch wrote four checks from her own account and deposited
them into the two accounts, allegedly to repay borrowed money. She denied ever telling
Hunter, the social worker, that she had a guardianship over Nell.
Other relevant evidence included the following. Walch deposited a number of checks,
either drawn on the two accounts or payable to Nell, directly into her and her husband's
account. Walch admitted to closing out a money market account held by Nell, totaling about
$2,700.00. However, she claimed that she sent the money in the form of a check to Machado
as an emergency loan, even though the bank records showed the money had been taken in
cash. Walch withdrew about $1,900.00 in ATM transactions from the FIB account in January
and February 1992; apparently some of this money was spent for Nell and some for Walch's
family.
In regard to Nell's mental acuity during the period that Walch had access to Nell's assets,
the evidence varied. Roullard, the CPA, testified that when she handled Nell's finances, Nell
thoroughly understood her income and how funds were being spent. Machado and the realtor
believed that Nell understood what she was doing when she signed the documents for the sale
of her house. However, no one disputed that Nell was extremely upset and agitated by the
prospect of a sale when two weeks later the realtor brought people into the house to view
it.
112 Nev. 25, 30 (1996) Walch v. State
and agitated by the prospect of a sale when two weeks later the realtor brought people into the
house to view it. The notary public present when Nell executed the power of attorney in favor
of Walch testified that Nell read and understood the documents. Dr. Bruce Gray testified for
Walch. He detected no dementia when he treated Nell as late as March 1992. In September
1992, Hunter, the social worker, concluded Nell was impaired in her understanding of things
and that she needed care. Walch at one point told Detective Strande that Nell was not
capable of understanding how much of Nell's money Walch had used.
The jury found Walch guilty of felony theft. Walch was sentenced to five years in prison.
The sentence was suspended, and she was placed on probation. As a condition of probation,
she was to serve six months in jail. Restitution in the amount of $14,646.32 was also ordered.
DISCUSSION
Whether as a matter of law Walch could not be guilty of theft because she owned the funds in
the two accounts as a joint tenant
[Headnote l]
At trial, Walch's defense theory was that Nell had knowingly authorized Walch's use of the
money to benefit her family. The jury rejected it, and there was more than substantial
evidence to support a finding that Nell did not authorize Walch's use of the money in this
way. For the first time on appeal, Walch argues that as a party to the two accounts, which
were opened as joint accounts with Nell, she had lawful authority to withdraw any or all of
the funds from those accounts. Walch did not offer an instruction along these lines and did
not object to the instructions on theft given to the jury.
[Headnotes 2, 3]
Ordinarily, if a party fails to raise an issue below, this court need not consider it on appeal.
Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983).
However, if as a matter of law Walch could not be convicted of theft in this case, her
conviction would be patently prejudicial error which this court should redress. Libby v. State,
109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993).
NRS 205.0832 provides in pertinent part:
A person commits theft if, without lawful authority, he knowingly:
1. Controls any property of another person with the intent to deprive that person of
the property.
2. Converts, makes an unauthorized transfer of an interest in, or without
authorization controls any property of another person, or uses the services or
property of another person entrusted to him or placed in his possession for a
limited, authorized period of determined or prescribed duration or for a limited use.
112 Nev. 25, 31 (1996) Walch v. State
another person, or uses the services or property of another person entrusted to him or
placed in his possession for a limited, authorized period of determined or prescribed
duration or for a limited use.
(Emphasis added.) If the value of the property stolen was greater than or equal to $250.00, the
theft is a felony. NRS 205.0835.
Walch argues that funds deposited in the two accounts became her and Nell's joint legal
property and that she therefore had lawful authority to withdraw them and use them as she
wished. To support this argument, Walch cites authority such as NRS 100.085(1) and Walnut
Valley State Bank v. Stovall, 574 P.2d 1382, 1384 (Kan. 1978). She further notes that the
transfer of solely owned property to oneself and another as joint tenants may be manifested by
a signed account signature card. Weinstein v. Sodaro, 91 Nev. 638, 640, 541 P.2d 531, 532
(1975).
None of this authority establishes that Walch's status as a joint account holder shields her
from liability for theft in this case. The effect of NRS 100.085(1) is to protect a depository,
such as a bank, from liability if it pays money out to a joint tenant of an account.
1
Stovall
involved the validity and effect of a garnishment order on a joint account held by a debtor and
her spouse. Sodaro determined whether or not a joint account with rights of survivorship was
created. Walch does not show how any of this law affords immunity to her as a joint tenant in
a criminal prosecution for theft.
In effect, Walch urges this court to adopt the following view. Her role as a fiduciary
toward Nell, which her power of attorney placed her in, was wholly distinct from her role as
joint legal owner of the funds in the two accounts, which were created after the power of
attorney was conferred. Although her power of attorney precluded her use of Nell's funds for
her own benefit, it authorized her to place those funds into the two accounts.
2
Thereafter, in
dealing with the funds, she no longer acted in her capacity as Nell's attorney in fact, with its
attendant limitations, but in an unlimited capacity as joint legal owner of the account funds. If
we accepted Walch's view that her role as owner was distinct from and trumped her role as
attorney in fact in regard to the account funds, absolutely no legal constraint would prevent
her from diverting Nell's funds to her own use regardless of the consequences to Nell.
__________

1
NRS 100.085(1) provides that money deposited in the name of multiple parties may be paid to any one of the
persons named and that such payment is a valid and sufficient release and discharge of the depository.

2
Walch continued to handle Nell's assets even after formal revocation of the power of attorney. After this
revocation, Walch's lack of authority to funnel Nell's funds into the two accounts for Walch's own eventual use is
even more obvious.
112 Nev. 25, 32 (1996) Walch v. State
consequences to Nell. Walch admits to a civil obligation to repay Nell, but under her view,
even if she had taken the money from the two accounts without Nell's knowledge and without
any agreement to repay it, she would have acted lawfully as joint owner of the funds. We, of
course, reject such a view.
Because Walch was charged under NRS 205.0832, we need not struggle with technical
distinctions between embezzlement, larceny, and other similar offenses, as long as the State
charged the appropriate subsection or subsections of the statute. Enacted in 1989, NRS
205.0832 consolidates all such kindred offenses under the rubric of theft.
Under such statutes the elements of the several offenses have not been changed, but
the distinctions between the offenses are not important in a prosecution for theft, and it
is not necessary to decide whether the offense committed was technically a larceny or
an embezzlement, since accused may be convicted of theft on proof of the commission
of any of the acts denounced in the statute.
29A C.J.S. Embezzlement 2 (1992) (footnotes omitted).
In applying its own state's consolidated theft statute, the Arizona Supreme Court stated:
The obvious purpose in enacting this omnibus theft statute was to eliminate technical
distinctions between various types of stealing and to deal with all forms in a single
statute, thus simplifying prosecution for the unlawful acquisition of property
belonging to others. A restrictive interpretation of the statute would thus conflict with
the legislative objective by reinstating the technical, common law restrictions and
definitions which the legislature sought to eliminate.
State v. Tramble, 695 P.2d 737, 741 (Ariz. 1985) (citation omitted).
The Kansas Supreme Court agreed that the primary purpose of the consolidated theft
statute was to eliminate the complexities of pleading and proving the vague historical
distinctions in the various types of theft. State v. Saylor, 618 P.2d 1166, 1169 (Kan. 1980).
However, if the prosecutor is unsure as to what the evidence will disclose at trial, the correct
procedure is to charge the defendant in the alternative under those subsections to [the
consolidated theft statute] which may possibly be established by the evidence. Id. at 1171.
This procedure ensures that the defendant's defense is not prejudiced. Id.
In this case, Walch was charged under NRS 205.0832(1) and (2). We conclude that the
jury properly convicted her under either or both of these subsections.
112 Nev. 25, 33 (1996) Walch v. State
In regard to monies which Walch took from the two accounts for her own use, the jury
could have properly found that Walch acted without lawful authority when she placed Nell's
funds into the two accounts in the first place. It could have concluded that Walch placed
Nell's funds into the two accounts with the intention of withdrawing them later for her own
benefit. If so, Walch's felonious intent and actions commenced before such monies reached
the two accounts, and her status as a joint legal owner of the account funds would not shield
her from culpability for theft of funds subsequently withdrawn and misused. In addition,
Walch several times took money from Nell which was not in either of the two accounts. In
regard to either conduct, the jury could have found that Walch knowingly and without lawful
authority controlled Nell's funds intending to deprive her of the funds, a violation of NRS
205.0832(1). In regard to either conduct, the jury could also have found that Walch
knowingly and without lawful authority used Nell's funds entrusted to her or placed in her
possession for a limited use, a violation of NRS 205.0832(2).
We conclude that Walch's mere status as a party to the joint accounts did not provide her
with lawful authority to use Nell's assets for her own benefit and therefore did not preclude
her conviction for theft.
Whether the district court imposed an arbitrary amount of restitution on Walch
[Headnotes 4, 5]
The district court ordered Walch to pay restitution in the amount of $14,646.32. This was
apparently the figure recommended by the Division of Parole and Probation in the
presentence report. At the sentencing, the prosecutor told the court that if it liked he could
point to the exhibits admitted at trial which would substantiate that amount. He called it a
conservative figure based on the monies that the defendant identified to Detective Strande
and the monies which were identified to the jury through cross-examination and through bank
records, witnesses, as monies clearly removed from the victim's account and consumed by the
defendant, or placed into her own account. At no time did Walch question or object to this
amount. Her counsel informed the court that he and Walch had reviewed the presentence
report and had no material errors to correct. He asked the court to grant Walch probation with
conditions that the Court considers appropriate, including restitution in such an amount as
the Court finds just in this case, having heard all the evidence.
Walch now contends that this amount of restitution was arrived at without a clear basis
and that nothing in the record indicates which monies the jury considered stolen.
112 Nev. 25, 34 (1996) Walch v. State
which monies the jury considered stolen. She claims that the amount is so arbitrary that it
violates due process. However, she does not analyze the record in any way to show that the
amount is excessive. The asserted error is neither plain nor constitutional in magnitude.
Therefore, since Walch failed to raise this issue below, this court need not consider it now.
Montesano v. Donrey Media Group, 99 Nev. 644, 650 n.5, 668 P.2d 1081, 1085 n.5 (1983).
The claim lacks merit anyway, since the record supports a finding that the amount of the theft
exceeded $14,646.32. Therefore, the district court did not err in ordering restitution in the
amount of $14,646.32.
CONCLUSION
Walch's status as joint holder of the two accounts did not preclude the jury from finding
that she stole funds which passed through the accounts. Moreover, the record showed that she
took funds from Nell that never even passed through the two accounts. The amount of
restitution ordered was not arbitrary, but supported by the record. We therefore affirm the
judgment of the district court.
The trial judge readily saw what was wrong with this case: [T]he case was tried as an
embezzlement case, but the information was a theft information . . . . This is really about all
that has to be said; Walch might have been an embezzler, but she was charged with and
convicted of larceny.
Walch was accused under the theft statute, NRS 205.0832, which has two
subparagraphs. Subparagraph 1 is the larceny paragraph and relates to a person who
[c]ontrols any property of another person with the intent to deprive that person of the
property. Subparagraph 2 is the embezzlement paragraph and relates to a person who
[c]onverts . . . property of another person entrusted to him . . . . (My emphasis.)
The charging document relates only to the larceny paragraph, subparagraph 1, and charges
that the defendant controlled a certain person's property with the intent to deprive her of
that property, traditional larceny parlance, except for the word controlled,
1
which the
legislature chose to use in place of the traditional language of larceny, "steals, takes and
carries away," when the crime of theft was added to the NRS in 19S9.
__________

1
Control is a broader, if vaguer, term than the crisp and directive terms taking and carrying away. Under
the present statute, [c]ontrol' means to act so as to prevent a person from using his own property . . . . NRS
205.0823 (Emphasis added). Like taking and carrying away another's property, preventing a person from using
his or her own property is in
112 Nev. 25, 35 (1996) Walch v. State
traditional language of larceny, steals, takes and carries away, when the crime of theft was
added to the NRS in 1989.
If a crime has been committed here, the crime is necessarily that of embezzlement as
defined in subparagraph 2 of NRS 205.0832. Embezzlement is committed by one who
converts the property of another after having been entrusted with another's property. At most,
Walch is guilty of converting property that was entrusted to herthe crime of embezzlement.
Walch was not charged with embezzlement. She was not charged with converting property
entrusted to her, even though, as remarked by the trial judge, the case was tried as an
embezzlement case.
If it had chosen to do so, the legislature could have, instead of setting out the two different
crimes in two different paragraphs, merged larceny and embezzlement into one overarching
offense. As an example of this kind of legislation, the English Theft Act of 1968 provides that
any person who dishonestly appropriates the property of another is guilty of theft. Under
this kind of statute, the crimes of larceny and embezzlement are merged and become one.
Such is not the case here; and Nevada's theft statute retains, in two separate paragraphs, the
distinction between taking from possession (larceny) and taking while in possession
(embezzlement).
Walch was charged with larceny (NRS 205.0832(1)); yet, the only crime that is supported
by the evidence is that of embezzlement (NRS 205.0832(2)). If Walch did anything morally
or legally wrong, it was in converting money entrusted to her and lawfully in her possession,
as stated in the embezzlement statute, without authorization. The two crimes, defined in
two separate paragraphs, are quite different in their scope; and, certainly, Walch should not be
expected to defend against a larceny charge when the only possible crime involved here was,
as recognized by the trial judge, that of embezzlement. Walch's larceny conviction should be
set aside.
__________
essence a trespass and an invasion of another's property rights. Subparagraph 1 of NRS 205.0832 is still,
essentially, a larceny statute. There was certainty no trespass here, as both the defendant and the alleged victim,
Nell Laird, were joint owners of the money, and Walch did not prevent Laird in any way from using her own
property. Both Walch and Laird had legal control of the money in question. This is, of course, the reason
that, necessarily, the case was tried as an embezzlement case.
____________
112 Nev. 36, 36 (1996) Kerley v. Kerley
NANCY KERLEY, Appellant, v. THOMAS KERLEY, Respondent.
No. 23220
THOMAS KERLEY, Appellant, v. NANCY KERLEY, Respondent.
No. 23506
January 31, 1996 910 P.2d 279
Consolidated appeals from findings of fact, conclusions of law, judgment, and divorce
decree. Ninth Judicial District Court, Douglas County; Archie E. Blake, Judge.
Divorce decree and judgment were entered and the district court denied separate post-trial
motions filed by husband and wife. Separate appeals were taken, but consolidated. The
supreme court affirmed in part and remanded, 111 Nev. 462, 893 P.2d 358 (1995). On
rehearing, the supreme court held that conveyance of real property during marriage from
husband and wife to husband alone was presumed to be a gift of wife's interest absent clear
and convincing evidence otherwise.
Rehearing granted; remanded with instructions.
Scarpello & Alling and Richard Glasson, Stateline, for Nancy Kerley.
Jack Sheehan, Minden, and Robert A. Grayson, Carson City, for Thomas Kerley.
1. Husband and Wife.
Quit claim deed conveying title to real property from husband and wife as joint tenants to husband alone was presumed to be a gift
of wife's interest unless clear and convincing evidence established otherwise and, thus, trial court's determination that conveyance
created presumption of community property was error. NRS 123.130, 123.220.
Spouse to spouse conveyance of title to real property creates presumption of gift that can only be overcome by clear and
convincing evidence.
Property acquired by gift during marriage is separate property rather than community property. NRS 123.130, 123.220.
OPINION ON REHEARING
Per Curiam:
In Kerley v. Kerley, 111 Nev. 462, 893 P.2d 358 (1995), we reversed and remanded to the district court the issue of apportionment of
the real property located at 1045 Verde Way. Thomas Kerley now petitions this court for rehearing.
112 Nev. 36, 37 (1996) Kerley v. Kerley
[Headnote 1]
In our prior opinion in this matter, we held that the formula set out in Malmquist v.
Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), did not apply to the apportionment of the
Verde Way property. Part of the reason for our holding was our reliance on the district court's
legal conclusion that the real property deeds executed between Thomas and Nancy conveying
title to the Verde Way property created a presumption of community property, and that the
Verde Way property was community property. The district court's legal conclusion was
erroneous, and we overlooked this error in our prior opinion. Specifically, the error of law
stated in our prior opinion is included in the following quotation:
In 1982, Thomas conveyed the Verde Way property to himself and Nancy as joint
tenants (1982 Deed). In the spring of 1983, Thomas and Nancy executed a quitclaim
deed to the Verde Way property vesting title in Thomas's name only (1983 Deed). . . .
. . . The district court concluded that because the 1982 Deed and the 1983 Deed were
obtained and acquired during the marriage, Verde Way therefore would be presumed to
be held as community property per NRS 123.220. This presumption, the district court
added, could be overcome by clear and convincing evidence, but the court concluded
that Thomas had failed to overcome the presumption.
Kerley v. Kerley, 111 Nev. 462, 464, 893 P.2d 358, 359 (1995).
[Headnotes 2, 3]
We have consistently held that a spouse to spouse conveyance of title to real property
creates a presumption of gift that can only be overcome by clear and convincing evidence.
Graham v. Graham, 104 Nev. 473, 760 P.2d 772 (1988); Todkill v. Todkill, 88 Nev. 231, 495
P.2d 629 (1972); Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); Petition of Fuller,
63 Nev. 26, 159 P.2d 579 (1945). Moreover, property acquired by gift during marriage is
separate property pursuant to NRS 123.130, and therefore is not community property pursuant
to NRS 123.220. Therefore, the 1983 quitclaim deed vesting title in Thomas's name only is
presumed to be a gift of Nancy's interest unless clear and convincing evidence establishes
otherwise.
Accordingly, we grant rehearing, and we remand to the district court the issue concerning
the Verde Way property for further proceedings consistent with this opinion.
1

__________

1
We have considered petitioner's other contentions raised in his petition for rehearing, and we conclude they
are without merit.
____________
112 Nev. 38, 38 (1996) Oh v. Wilson
JONG MIN OH, Appellant, v. CARL WILSON, and STATE FARM INSURANCE
COMPANIES, Respondents.
No. 26122
January 31, 1996 910 P.2d 276
Appeal from an order granting summary judgment in favor of respondents. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Victim of automobile accident brought action to rescind release of bodily injury claims
against alleged tort-feasor and liability insurer. The district court entered summary judgment
in favor of defendants. Victim appealed. The supreme court held that questions of fact
precluded summary judgment on claim for rescission based on unilateral mistake.
Ian Christopherson and Cliff W. Marcek, Las Vegas, for Appellant.
Edwards, Hale & Hansen and Thomas E. Winner, Las Vegas, for Respondents.
1. Judgment.
Whether accident victim was unilaterally mistaken as to effect of releasing alleged tort-feasor and liability insurer and whether
insurer knew or should have known of mistake were questions of fact precluding summary judgment in action to rescind release on
basis of unilateral mistake. Victim had limited understanding of English, signed release three days after accident and only received
$200.
2. Release.
Unilateral mistake standing alone is insufficient to invalidate release, but it can be basis of rescission if other party had reason to
know of mistake.
3. Contracts; Release.
Courts may inquire into adequacy of consideration when it is relevant to ascertaining whether fraud, lack of capacity, mistake,
duress, or undue influence exist, but inadequacy of consideration standing alone does not justify rescission of contract or release.
OPINION
Per Curiam:
Appellant Jong Min Oh, an eighteen-year-old immigrant from Korea, was involved in a low-impact automobile collision with
respondent Carl Wilson for which Wilson was responsible. Oh sustained both property damage and bodily injuries. Within three days of the
accident, Oh met with representatives of respondent State Farm Insurance Companies {"State Farm").
112 Nev. 38, 39 (1996) Oh v. Wilson
State Farm Insurance Companies (State Farm). Oh received a check for his property
damage and a check for $200, which Oh characterizes as for not to go to hospital. In
exchange for the $200 check, Oh signed a form in which he agreed to release Wilson and
State Farm from any and all potential liability for bodily injury arising out of the accident
(the release).
Oh incurred expenses exceeding $2000 in medical treatment for his whiplash resulting
from the accident. He then filed a complaint against respondents to rescind the release on the
ground of, inter alia, unilateral mistake. Oh alleged that he did not understand that by signing
the release he was foregoing any future claim for bodily injury. Respondents filed a motion
for summary judgment, which the district court granted, asserting that the release was valid
and binding.
[Headnote 1]
On appeal, Oh argues that the district court erred in granting summary judgment, because
genuine issues of fact exist as to whether he was unilaterally mistaken, State Farm knew of
his mistake, and there was inadequate consideration for Oh to sign the release. We agree.
Summary judgment is only appropriate when, after a review of the record viewed in a light
most favorable to the non-moving party, there remain no issues of material fact, and the
moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985). In determining whether summary judgment is proper,
the non-moving party is entitled to have the evidence and all reasonable inferences accepted
as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 431, 433 (1989). This
court's review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105 Nev. 183,
185, 772 P.2d 1281, 1282 (1989).
[Headnote 2]
We conclude that there is a genuine issue of material fact regarding whether Oh was
unilaterally mistaken as to the effect of the release he signed. Oh submitted an affidavit
clearly stating that he did not understand that he was giving up any rights to a bodily injury
claim by signing the release. Thus, a genuine issue of material fact exists as to Oh's unilateral
mistake. However, Oh's misunderstanding does not preclude summary judgment because, as
respondents point out, unilateral mistake standing alone is insufficient to invalidate a release.
Chwialkowski v. Sachs, 108 Nev. 404, 834 P.2d 405 (1992). As this court stated in
Chwialkowski:
A release may be rescinded if obtained by mutual mistake or inadequate consideration.
Hanson v. Oljar, 752 P.2d 187, 190 {Mont.
112 Nev. 38, 40 (1996) Oh v. Wilson
190 (Mont. 1988). Likewise, a unilateral mistake can be the basis for a rescission if the
other party had reason to know of the mistake or his fault caused the mistake. Home
Savers v. United Security Co., 103 Nev. 357, 358-59, 741 P.2d 1355, 1356-57 (1987).
Id. at 406, 834 P.2d at 406. A unilateral mistake can be the basis of a rescission if the other
party had reason to know of the mistake. Id. Thus, the issue before this court is narrowed to
whether a genuine issue of material fact exists as to whether State Farm knew or should have
known of Oh's mistake regarding the release. The facts and circumstances surrounding the
transaction as set forth in Oh's affidavit create a genuine issue of material fact as to whether
State Farm knew or should have known of Oh's mistake.
In Binard v. Carrington, 414 N.W.2d 900 (Mich. 1987), the court stated:
[I]n order to be sustained as a valid release, a release must be fairly and knowingly
made. . . . Where fraud or mistake is alleged, the intent of the parties should be
considered. Factors having a bearing on the issue of intent include (1) the haste (or lack
thereof) with which the release was obtained, (2) the amount of consideration, (3) the
circumstances surrounding the release, including the conduct and intelligence of both
the releasor and the releasee, and (4) the actual presence of an issue of liability.
Id. at 902 (citations omitted). The foregoing factors pertinent to evaluating an allegation of
mistake are particularly relevant to the case at hand. Oh alleges that he was mistaken as to the
effect of the release regarding his personal injury claim. According to Binard, State Farm's
intent in obtaining the release is at issue. An application of the factors enumerated above to
the facts of the instant case shows that a genuine issue of material fact exists regarding
whether State Farm knew of Oh's mistake. State Farm obtained the release with haste, i.e., in
three days. The amount of consideration for Oh to forego any future claim for personal injury
when he had yet to receive medical attention appears inadequateonly $200. As far as the
circumstances of the transaction and the intelligence of the parties are concerned, Oh may be
intelligent, but his limited understanding of the English language put him at a disadvantage.
Thus, these facts and circumstances demonstrate that there is a genuine issue of material fact
regarding whether State Farm knew or should have known of Oh's unilateral mistake and
therefore, summary judgment is precluded.
Relying upon language from Chwialkowski, Oh further claims that inadequate
consideration is a ground for setting aside a release.
112 Nev. 38, 41 (1996) Oh v. Wilson
that inadequate consideration is a ground for setting aside a release. Although unilateral
mistake is dispositive of the instant case, because the law in Nevada is unclear regarding
whether inadequate consideration is a sufficient and independent ground for setting aside a
contract of release, we address this issue.
In Chwialkowski, this court stated that [a] release may be rescinded if obtained by . . .
inadequate consideration. 108 Nev. at 406, 834 P.2d at 406. While Chwialkowski does state
that inadequate consideration is a ground for rescinding a release, we now clarify that holding
to conclude that it is more properly construed as a factor relevant in the application of other
rules. For example, under the foregoing analysis set forth in Binard for unilateral mistake,
inadequate consideration is a factor for determining whether the other party knew or should
have known of the mistaken party's misunderstanding. Binard, 414 N.W.2d at 902. According
to the Restatement (Second) of Contracts:
To the extent that the apportionment of productive energy and product in the economy
are left to private action, the parties to transactions are free to fix their own valuations. .
. . [I]n many situations there is no reliable external standard of value, or the general
standard is inappropriate to the precise circumstances of the parties. . . .
Ordinarily, therefore, courts do not inquire into the adequacy of consideration. . . .
Gross inadequacy of consideration may be relevant to issues of capacity, fraud and the
like, but the requirement of consideration is not a safeguard against imprudent and
improvident contracts except in cases where it appears that there is no bargain in fact.
Restatement (Second) of Contracts 79 cmt. c (1979) (emphasis added). The Restatement
further states:
Although the requirement of consideration may be met despite great difference in the
values exchanged, gross inadequacy of consideration may be relevant in the application
of other rules. Inadequacy such as shocks the conscience is often said to be a badge
of fraud, justifying a denial of specific performance. Inadequacy may also help to
justify rescission or cancellation on the ground of lack of capacity, mistake,
misrepresentation, duress or undue influence.
Id. cmt. e (citations omitted) (emphasis added).
[Headnote 3]
According to the Restatement, courts do not generally inquire into the adequacy of
consideration because the values exchanged are often difficult to measure and the parties
are thought to be better at evaluating the circumstances of particular transactions.
112 Nev. 38, 42 (1996) Oh v. Wilson
are often difficult to measure and the parties are thought to be better at evaluating the
circumstances of particular transactions. Yet, courts may inquire into the adequacy of
consideration when it is relevant to ascertaining whether fraud, lack of capacity, mistake,
duress or undue influence exist. Nevertheless, inadequacy of consideration standing alone
does not justify rescission of a contract or release.
For the reasons set forth above, we conclude that there is a genuine issue of material fact
as to whether State Farm knew or should have known of Oh's purported mistake and
therefore, the district court erred in granting summary judgment.
Accordingly, we reverse the district court's order granting summary judgment and remand
for proceedings consistent with this opinion.
____________
112 Nev. 42, 42 (1996) Schlotfeldt v. Charter Hosp. of Las Vegas
DEBRA SCHLOTFELDT, Appellant/Cross-Respondent, v. CHARTER HOSPITAL OF LAS
VEGAS, a Nevada Corporation, Respondent/Cross-Appellant.
No. 25483
January 31, 1996 910 P.2d 271
Appeal from a judgment for appellant in a false imprisonment case for damages. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
Individual admitted to alcoholism and drug addiction treatment facility brought false
imprisonment action against facility. The district court awarded damages upon jury verdict
for individual. Individual appealed, and facility cross-appealed. The supreme court, Young,
J., held that whether physician who treated individual was agent of facility involved fact
questions which should have been determined by jury.
Rose, J., dissented in part; Shearing and Springer, JJ., dissented.
Hamilton D. Moore, Las Vegas, for Appellant/Cross-Respondent.
Hafen, Mayor & Palmer, Ltd., Las Vegas, for Respondent/Cross-Appellant.
1. Principal and Agent.
Existence of agency relationship is generally question of fact for jury if facts showing existence of agency are disputed, or if
conflicting inferences can be drawn from facts, but question of law exists as to whether sufficient competent
evidence is present to require that agency question be forwarded to jury.
inferences can be drawn from facts, but question of law exists as to whether sufficient competent evidence is present to require that
agency question be forwarded to jury.
2. Trial.
Determining whether issue of fact exists for jury to decide is similar to determining whether genuine issue of fact is present to
preclude summary judgment.
3. Hospitals.
In medical malpractice context, absent employment relationship, doctor's mere affiliation with hospital is not sufficient to hold
hospital vicariously liable for doctor's negligent conduct.
4. Hospitals.
Physician or surgeon who is on hospital's staff is not necessarily employee of hospital, and hospital is not necessarily liable for
physician's tortious acts. Hospital does not generally expose itself to vicarious liability for doctor's actions by merely extending staff
privileges to that doctor.
5. Hospitals.
Evidence that doctor maintains private practice may tend to dispel any claim of agency relationship between doctor and hospital.
6. Hospitals.
Alcoholism and drug addiction treatment facility did not, as matter of law, have agency relationship with physician who treated
individual admitted to facility, for purpose of individual's false imprisonment action against facility, as physician had staff privileges at
facility but was not employed by facility, physician was covering for another doctor during period in question, and physician
maintained independent practice. Existence of agency relationship was question for jury.
7. Hospitals.
Ostensible agency theory applies when patient comes to hospital and hospital selects doctor to serve patient. Doctor has apparent
authority to bind hospital because patient may reasonably assume that doctor selected by hospital is agent of hospital.
8. Hospitals.
Actions which seek to hold hospital liable for conduct of physician under ostensible agency theory involve questions of fact for
jury, such as whether patient entrusted herself to hospital, whether hospital selected doctor to serve patient, whether patient reasonably
believed doctor was employee or agent of hospital, and whether patient was put on notice that doctor was independent contractor.
OPINION
By the Court, Young, J.:
FACTS
On Saturday, March 4, 1989, appellant/cross-respondent Debra Schlotfeldt (Schlotfeldt) presented herself to
respondent/cross-appellant Charter Hospital of Las Vegas, a Nevada corporation (Charter) that specializes in the treatment of alcoholism
and drug addiction. Charter personnel observed that Schlotfeldt was extremely depressed and displayed rapid changes in
her emotions.
that Schlotfeldt was extremely depressed and displayed rapid changes in her emotions.
Schlotfeldt admitted at trial that she had abused alcohol and ingested methamphetamine prior
to her admission to Charter. Schlotfeldt stated during a psychiatric examination that she
gambled out of control when under the influence of drugs, was depressed for over a year and
a half, and had thoughts of suicide. In a statement revealing the depth of Schlotfeldt's
emotional difficulties, Schlotfeldt told Charter staff that I don't trust myself, I feel like I'm
going crazy, and I feel like I am at the end of my rope. After this conversation, Schlotfeldt
went home to retrieve personal belongings. Escorted by her husband, Schlotfeldt returned to
Charter and signed documents requesting voluntary admission and authorizing such care and
treatment as ordered by her attending physician.
A Charter psychiatrist prepared an admitting diagnosis of Schlotfeldt that concluded she
suffered from major depression and suicidal ideation. Anil Batra, M.D., also examined
Schlotfeldt and diagnosed a major depressive disorder. On Sunday morning, March 5, 1989,
Gilles M. K. Desmarais, M.D. (Desmarais)
1
examined Schlotfeldt. According to Charter,
Desmarais was an independent doctor who was not assigned by Charter to Schlotfeldt.
Instead, Desmarais attended to Schlotfeldt at the request of a Charter psychiatrist who was
busy with other patients. Desmarais' examination revealed that Schlotfeldt had marital
problems that led to alcohol abuse, drug use and compulsive gambling. Desmarais concluded
that Schlotfeldt was a suicide risk because her severe depression of one and a half years was
nearing a pinnacle.
Schlotfeldt argues that she made repeated requests to return home after the morning of
March 5, 1989. Charter admits that Schlotfeldt requested to return home, but claims that
because she was a suicide risk and her husband was out of town, releasing her at the time was
imprudent. Desmarais urged her to stay voluntarily until her husband returned. Eventually,
Desmarais allowed Schlotfeldt to leave because the effects of the drugs had worn off, she was
no longer a suicide risk, and her husband had returned. Schlotfeldt spent a total of sixty-six
hours at Charter.
Eighteen months later, Schlotfeldt filed suit against Charter and Desmarais. Schlotfeldt's
initial complaint contained numerous claims for relief. However, all claims except the false
imprisonment claim were withdrawn prior to trial. Schlotfeldt claimed she was admitted to
Charter against her will and that she requested to leave Charter, but Charter and
Desmarais continued to hold her against her will.
__________

1
While Desmarais was a co-defendant in this case, he settled with Schlotfeldt after the jury verdict. For reasons
not apparent on the record, however, Desmarais was erroneously designated a respondent and cross-appellant on
this court's docket. Accordingly, the clerk of this court shall amend the caption on this court's docket sheet so
that it is consistent with the caption appearing on this opinion.
was admitted to Charter against her will and that she requested to leave Charter, but Charter
and Desmarais continued to hold her against her will. Charter claimed that Schlotfeldt
admitted herself voluntarily and it was obligated to urge her to remain until she was no longer
a danger to herself or others. The district court excluded evidence showing Schlotfeldt was
hospitalized for her psychiatric condition on multiple occasions after her stay at the Charter
facility. Also, the district court found, as a matter of law, that Charter was vicariously liable
for the acts of Desmarais. At the conclusion of trial, a jury found Charter and Desmarais
liable for false imprisonment and awarded Schlotfeldt $50,000.00 in compensatory damages.
After the district court entered a second amended judgment on the jury's verdict, Schlotfeldt
and Charter appealed.
DISCUSSION
Subsequent hospitalizations
Schlotfeldt was hospitalized six times for her psychiatric condition after her sixty-six-hour
stay at Charter. In her argument to the jury, however, Schlotfeldt asserted that she went to
Charter because of marital problems. Further, she claimed she did not have any serious
psychiatric problems and that Charter was, therefore, unjustified in admitting her for
treatment. The hospitalization evidence directly contradicted Schlotfeldt's contentions and
was highly probative of whether Charter's decision to detain Schlotfeldt was warranted and
justified. If Schlotfeldt had a psychiatric condition that required subsequent hospitalizations,
she may have had a similar condition during her stay at Charter. With this evidence, a jury
could reasonably find that Charter was justified in detaining Schlotfeldt, thereby precluding a
finding of false imprisonment.
The district court found that the evidence of subsequent hospitalizations was of limited
probative value, that its probative value was outweighed by its prejudicial effect, and that a
substantial delay would occur if it was presented. The district court reasoned that the
subsequent hospitalization evidence would improperly color the jury's judgment in
considering exactly what occurred when Schlotfeldt was admitted on March 4, 1989.
According to the district court, in a false imprisonment case the knowledge of the defendant
at the time of the alleged false imprisonment is of crucial importance. Because Charter was
not aware of the subsequent hospitalizations at the time of the alleged false imprisonment, the
district court excluded the evidence.
NRS 48.035 allows the district court to exclude evidence if the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice or undue delay. Even if
evidence is otherwise admissible, a trial court may exclude the evidence after striking a
proper balance between the probative value of the evidence and its prejudicial dangers.
striking a proper balance between the probative value of the evidence and its prejudicial
dangers. Elsbury v. State, 90 Nev. 50, 53, 518 P.2d 599, 601 (1974). A district court's
decision whether to exclude or admit evidence will only be reversed if it is manifestly
wrong. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983).
By requiring the prejudicial effect of evidence to substantially outweigh its probative
value, NRS 48.035 implies a favoritism toward admissibility. To merit exclusion, the
evidence must unfairly prejudice an opponent, typically by challenging the emotional and
sympathetic tendencies of a jury, not the jury's intellectual ability to evaluate evidence. Fed.
R. Evid. 403 advisory committee's note. Further, a limiting instruction or other alternative
method of introduction should be utilized before highly probative evidence is excluded.
Maudlin v. Upjohn Co., 697 F.2d 644, 648 (5th Cir. 1983).
In this case, the evidence of subsequent hospitalizations was extremely probative of the
ultimate issuefalse imprisonment. If Schlotfeldt had psychiatric problems, Charter would
be justified in considering her a danger to herself and others. If Schlotfeldt voluntarily
admitted herself for psychiatric treatment on later occasions, she may have admitted herself
voluntarily on the occasion in question. Charter's reasoning during Schlotfeldt's initial
admission and Charter's decision to urge her to stay in its facility would be explained. The
intellectual abilities of the jury would not be challenged because the jury could easily
understand that Charter was not aware of the subsequent hospitalizations when it admitted
Schlotfeldt. Further, a limiting instruction could have directed the jury to consider the
subsequent hospitalization records as only corroborating evidence that Schlotfeldt voluntarily
admitted herself to Charter and that her condition explained Charter's actions in urging her to
stay at its facility.
We conclude that the evidence of Schlotfeldt's subsequent hospitalizations was highly
probative of the ultimate issue in this case, and because a jury instruction could have limited
the prejudicial effect of the evidence, the district court was manifestly wrong in excluding the
hospitalization evidence.
Agency relationship
The district court instructed the jury that Charter was vicariously liable, as a matter of law,
for the acts of Desmarais.
2
Based on the ostensible agency theory, the district court found
that Charter should be held liable for the acts of Desmarais because he was chosen by
Charter to examine Schlotfeldt.
__________

2
The district court instructed the jury as follows:
The law holds an employer responsible for the acts of his employees while acting in the course of their
employment. The law also holds a principal liable for the acts of its agent. Therefore, defendant Charter
Hospital is legally responsible for the acts and omissions of all its employees and the acts or omissions of
defendant Dr. Desmarais.
on the ostensible agency theory, the district court found that Charter should be held liable for
the acts of Desmarais because he was chosen by Charter to examine Schlotfeldt. Charter
opposed the instruction because it claimed an issue of fact existed as to whether an agency
relationship existed between Charter and Desmarais. The district court's instruction,
according to Charter, was improper and materially prejudiced its position by binding its
liability to the improper acts of Desmarais.
[Headnote 1]
The existence of an agency relationship is generally a question of fact for the jury if the
facts showing the existence of agency are disputed, or if conflicting inferences can be drawn
from the facts. Latin American Shipping Co. Inc., v. Pan American Trading Corp., 363 So. 2d
578, 579-80 (Fla. Dist. Ct. App. 1978). A question of law exists as to whether sufficient
competent evidence is present to require that the agency question be forwarded to a jury. In re
Cliquot's Champagne, 70 U.S. 114, 140 (1865); 3 Am. Jur. 2D Agency 362 (1986).
[Headnote 2]
Determining whether an issue of fact exists for a jury to decide is similar to determining
whether a genuine issue of fact is present to preclude summary judgment. In Oehler v.
Humana, Inc., 105 Nev. 348, 351-52, 775 P.2d 1271, 1273 (1989), this court affirmed a
summary judgment order that found, as a matter of law, that agency did not exist between a
hospital and a doctor. The Oehler court stated that [a] hospital is not vicariously liable for
acts of physicians who are neither employees nor agents of the hospital. Id. at 351, 775 P.2d
at 1273. According to the Oehler court, evidence that a doctor rented office space in a
building that was controlled by a hospital, and that the hospital may have subsidized rents in
the building, was not sufficient to raise a question of fact that the doctor was an agent.
3
Id.
[Headnotes 3-5]
Medical malpractice cases also serve as a guide for establishing the presence of agency
between a doctor and hospital and evoking vicarious liability.
__________

3
In Oehler, this court found that agency did not exist as a matter of law. We conclude in this case that whether
agency did exist cannot be determined as a matter of law. Our conclusion today does not disturb the holding of
Oehler. These cases are distinguishable because determining the existence of agency is quite different from
determining the absence of agency. First, concluding agency exists requires an affirmative finding on all the
elements of agency. Concluding agency does not exist requires only the negation of one element of the agency
relationship. Second, the legal consequences of concluding that agency exists are much different from
concluding the opposite. One defendant's liability can become inextricably linked to the tortious acts of another
defendant through a conclusion of agency. On the other hand, refusing to find agency merely requires a plaintiff
to prove a case against each defendant independently.
ing the presence of agency between a doctor and hospital and evoking vicarious liability.
Those cases have found that absent an employment relationship, a doctor's mere affiliation
with a hospital is not sufficient to hold a hospital vicariously liable for the doctor's negligent
conduct. Hill v. St. Clare's Hosp., 490 N.E.2d 823, 827 (N.Y. 1986); Ruane v. Niagara Falls
Memorial Medical Center, 458 N.E.2d 1253 (N.Y. 1983). A physician or surgeon who is on a
hospital's staff is not necessarily an employee of the hospital, and the hospital is not
necessarily liable for his tortious acts. Evans v. Bernhard, 533 P.2d 721, 725 (Ariz. Ct. App.
1975). A hospital does not generally expose itself to vicarious liability for a doctor's actions
by merely extending staff privileges to that doctor. Moon v. Mercy Hospital, 373 P.2d 944,
946 (Colo. 1962); Hundt v. Proctor Community Hospital, 284 N.E.2d 676, 678 (Ill. App. Ct.
1972). Further, evidence that a doctor maintains a private practice may tend to dispel any
claim of an agency relationship between a doctor and a hospital. Hundt, 284 N.E.2d at 678.
[Headnote 6]
The evidence admitted in this case on the issue of agency was limited. Desmarais testified
that he was not an employee of Charter but had staff privileges. Desmarais also testified that
he was covering for another doctor the night Schlotfeldt was admitted to Charter. Charter's
administrator stated that Desmarais only had staff privileges at Charter and was covering for
another Charter doctor during the period in question. Also, evidence indicated that Desmarais
may have maintained an independent practice because he billed Schlotfeldt separately for the
services he rendered at Charter. Other than the fact that Desmarais went to Schlotfeldt's room
to conduct a medical examination, no evidence was presented to show an employment or
agency relationship existed between Charter and Desmarais.
[Headnotes 7, 8]
The district court based its determination that Charter and Desmarais were in an agency
relationship on the ostensible agency theory. This theory is recognized in medical malpractice
cases. See Stewart v. Midani, 525 F. Supp. 843 (N.D. Ga. 1981). The ostensible agency
theory applies when a patient comes to a hospital and the hospital selects a doctor to serve the
patient. The doctor has apparent authority to bind the hospital because a patient may
reasonably assume that a doctor selected by the hospital is an agent of the hospital. Id. at
847-53. However, even in cases involving ostensible agency, questions of fact exist for the
jury. In Stewart, the court used the ostensible agency theory to justify the denial of summary
judgment because issues of fact remained for the jury. Id. Typical questions of fact for the
jury include {1) whether a patient entrusted herself to the hospital, {2) whether the
hospital selected the doctor to serve the patient, {3) whether a patient reasonably
believed the doctor was an employee or agent of the hospital, and {4) whether the patient
was put on notice that a doctor was an independent contractor.
remained for the jury. Id. Typical questions of fact for the jury include (1) whether a patient
entrusted herself to the hospital, (2) whether the hospital selected the doctor to serve the
patient, (3) whether a patient reasonably believed the doctor was an employee or agent of the
hospital, and (4) whether the patient was put on notice that a doctor was an independent
contractor. See id. All these questions existed in the present case. Accordingly, the jury
should have considered the factual determinations necessary in concluding whether Charter
and Desmarais had an agency relationship.
Charter presented evidence suggesting that no employment relationship existed with
Desmarais, that Desmarais merely had staff privileges, and that Desmarais operated a private
practice. This evidence was sufficiently competent to raise a question of fact for the jury
regarding the existence of agency. Further, the district court's use of the ostensible agency
theory to find agency as a matter of law was improper because application of the theory
required a determination of numerous issues of fact. Accordingly, the jury should have
decided the agency issue. Because Charter was materially prejudiced by having its liability
linked to the acts of Desmarais, the district court committed reversible error.
CONCLUSION
In considering this case, it is not necessary to resolve the issues raised by Schlotfeldt on
appeal. The district court erred by excluding essential evidence and concluding as a matter of
law that an agency relationship was present. Accordingly, the district court's judgment against
Charter is reversed and this matter is remanded for a new trial.
Steffen, C. J., concurs.
Rose, J., concurring in part and dissenting in part:
I agree with the majority that the district court improperly instructed the jury that Charter
was vicariously liable, as a matter of law, for the acts of Desmarais. This was a question of
fact, and the error mandates a new trial. However, the district court had the discretion,
pursuant to NRS 48.035, to exclude evidence that would be unfairly prejudicial, and it
properly precluded evidence of subsequent hospitalizations. Justice Shearing's dissent clearly
sets forth my position on this issue.
Shearing, J., with whom Springer, J., joins, dissenting:
I would affirm the jury's verdict and the district court's judgment in favor of Debra
Schlotfeldt.
Involuntary commitment is one of the most dangerous weapons that a society can
employ.
that a society can employ. Totalitarian governments have used it extensively against their
political enemies. Private organizations can use it for financial gain. Because of the inherent
potential for misuse of this weapon, it is crucial that the procedural safeguards established by
the State be strictly observed.
The Nevada Legislature has set forth the minimum procedural requirements for an
involuntary commitment in NRS 433A.115-330. In this case there was no court-ordered
admission under NRS 433A.200-330, so presumably the detention of Schlotfeldt was
justified by an emergency. Nevada law does provide for an emergency commitment, which
does not require court intervention. NRS 433A.160. A physician, or other designated
professionals, may certify a mentally ill person, (as defined in NRS 433A.115) and set
forth in detail the facts and reasons on which the examining person bases his opinions and
conclusions. NRS 433A.180. The mental health facility's or hospital's obligation for an
emergency admission is set forth as follows:
433A.170 Certificate of psychiatrist, psychologist or physician required. The
administrative officer of a facility operated by the division or of any other public or
private mental health facility or hospital shall not accept an application for an
emergency admission under NRS 433A.150 and 433A.160 unless that application is
accompanied by a certificate of a psychiatrist, licensed psychologist or physician stating
that he has examined the person alleged to be mentally ill and that he has concluded
that as a result of mental illness the person is likely to harm himself or others. . . .
In this case, the hospital made absolutely no attempt to obtain the required certification for
Debra Schlotfeldt after she insisted on leaving. The hospital had no legal justification for
detaining her. Therefore, the verdict in favor of her claim for false imprisonment was
appropriate.
The majority bases its decision to reverse the judgment on the district court's failure to
admit evidence of subsequent hospitalizations and the district court's instruction regarding
agency. I disagree with the majority's conclusions on both issues, and I submit that they are
irrelevant to the case. According to the undisputed evidence, Charter Hospital of Las Vegas
wrongfully detained Schlotfeldt and was rightfully held liable for its actions.
____________
112 Nev. 51, 51 (1996) Nevada Judges Ass'n v. Lau
NEVADA JUDGES ASSOCIATION; THE HONORABLE D. LANNY WAITE, Justice of
the Peace, Individually and as President of the Nevada Judges Association; and THE
HONORABLE CHARLES M. McGEE, District Judge, Individually and as President
of the Nevada District Judges Association, Petitioners, v. CHERYL LAU, as Secretary
of State of Nevada, Respondent, and NEVADANS FOR TERM LIMITS AND
RESPONSIBLE CAMPAIGN FUNDING, Real Party in Interest.
No. 26177
January 31, 1996 910 P.2d 898
Petition for a writ of mandamus directing the Secretary of State to remove from the
November 1994 ballot that portion of a ballot initiative which proposed an amendment to the
Nevada Constitution to limit the number of terms justices of the supreme court, district
judges, and justices of the peace could serve.
The supreme court, Rose, J., held that: (1) impact of term limitations for elected officials
upon protected rights did not rise to level of unconstitutionality, and (2) form of portion of
ballot initiative limiting terms of judiciary and wording of explanation of same could have
been unnecessarily misleading.
Petition denied; modification of presentation of initiative ordered.
[Rehearing April 30, 1996]
Shearing, J., dissented in part.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, for Petitioners.
Frankie Sue Del Papa, Attorney General, and Kateri Cavin, Deputy Attorney General,
Maddox & Walker, Carson City, for Real Party in Interest.
1. Elections.
Important regulatory interests of state are generally sufficient to justify reasonable, nondiscriminatory restrictions on elections.
2. Constitutional Law.
When evaluating state restriction on elections pursuant to constitutional challenge, supreme court must consider: nature of asserted
injury to protected rights; interests put forward by state as justification for that injury; and necessity for imposing burden on petitioners'
rights rather than some less restrictive alternative. U.S. Const. amends. 1, 14.
Candidate eligibility requirements implicate basic constitutional right of voters to associate for advancement of political beliefs by
voting for candidate of their choice, and right of individuals to hold public office. U.S. Const. amends. 1, 14.
4. Officers and Public Employees.
Exercise of right of individual to hold public office should not be declared prohibited or curtailed except by plain provisions of
law; ambiguities are to be resolved in favor of eligibility to hold office. U.S. Const. amend. 14.
Barrier to candidate access to primary ballot does not, of itself, compel strict scrutiny under equal protection clause; not all
restrictions imposed by states on candidates' eligibility for office impose constitutionally suspect burdens on voters' rights to associate
or to choose among candidates. U.S. Const. amends. 1, 14.
Right to vote to fill every public office is not constitutionally protected; when election is held, citizens have constitutionally
protected right to participate in election on equal basis with other citizens in jurisdiction. U.S. Const. amends. 1, 14.
7. Constitutional Law; Officers and Public Employees.
Nature of asserted injury to constitutionally protected interests caused by ballot initiative to impose term limitations on all elected
officials was not unconstitutionally severe; right to run for office was not fundamental constitutional right, and term limits did not
hinder equal participation of all citizens to vote in election. U.S. Const. amends. 1, 14.
8. Judges.
State interests put forward to justify injury to protected rights of voters and candidates caused by term limitations for elected
officials, which elected officials included judges and justices of peace, were constitutional, despite adverse effects of such limitations
on orderly and efficient administration of justice and increased financial burden in training of judiciary. State could claim interest in
broadening composition of judiciary, encouraging new candidates to seek judgeships, eliminating unfair incumbent advantages, and
discouraging entrenched power bases in judiciary.
No less restrictive alternative to lifetime ban on re-election would have addressed certain concerns at which ballot initiative
limiting terms of elected officials was aimed; if exclusion were not permanent, composition of judiciary might not change as drastically
as proponents of initiative intended. U.S. Const. amends. 1, 14.
10. Constitutional Law; Judges.
Term limitation provision in ballot initiative was non-discriminatory, despite potential for disparate impact on members of
judiciary. Discrepancy in length of judges' terms was caused by interaction between proposed constitutional amendment and existing
constitutional provisions, and not by ballot initiative at issue, and discrepancy in treatment of judiciary and other public officers did
not amount to violation of equal protection guarantees under federal or state constitutions. U.S. Const. amends. 5, 14.
Amendment of explanation of portion of ballot initiative limiting terms of judges and justices of peace to make clear that under
certain circumstances proposed limitations would result in terms of office considerably less than usual term
of six years was clearly appropriate under section of statute governing conduct of elections requiring that
all explanations of ballot initiatives be in easily understood language and of reasonable length, absent
explanation, most voters would assume that judicial terms under proposed amendment would be the usual
six years.
circumstances proposed limitations would result in terms of office considerably less than usual term of six years was clearly
appropriate under section of statute governing conduct of elections requiring that all explanations of ballot initiatives be in easily
understood language and of reasonable length; absent explanation, most voters would assume that judicial terms under proposed
amendment would be the usual six years. NRS 293.250(5).
Ballot initiative's failure to inform voters as to its nature and effect can be sufficient ground to remove initiative from ballot.
Supreme court may intervene and simply modify wording of ballot question failing as written to inform voters as to its nature and
effect, if such correction will eliminate infirmity.
Form of portion of ballot initiative limiting terms of judiciary and wording of explanation of same could have been unnecessarily
misleading, and intervention of supreme court to modify wording of initiative and explanation was thus justified. Initiative and
explanation as written failed to distinguish between impact of term limitations on judiciary and on other elected officials, and failed to
make clear that under certain circumstances proposed limitations would result in terms of office considerably less than usual term of
six years. NRS 293.250(5).
OPINION
On September 29, 1994, the Nevada Judges Association, D. Lanny Waite, Justice of the Peace, individually and as President of the
Nevada Judges Association, and Charles M. McGee, District Judge, individually and as President of the Nevada District Judges
Association, filed this original petition for a writ of mandamus requesting that a term limits initiative, which was to appear as Question
Number 9 in the November 1994 general election, be removed from the ballot. On October 4, 1994, this court denied petitioners' request to
intervene before the election and ordered that the respondent, Secretary of State Cheryl A. Lau, and the real party in interest, Nevadans for
Term Limits and Responsible Campaign Funding, file answers. This court subsequently received timely answers from the respondent and
from the real party in interest.
In the November 1994 election, the voters approved Question Number 9. The measure is not effective immediately, but must be passed
by the electorate a second time before it becomes effective, pursuant to Article 19, Section 2(4) of the Nevada Constitution.
Petitioners contend that Question Number 9 (the initiative) is invalid because it violates the equal protection and due process
guarantees of the Nevada and United States constitutions and because its impact on judicial offices was
inadequately explained.
guarantees of the Nevada and United States constitutions and because its impact on judicial
offices was inadequately explained. The part of the initiative with which petitioners are
concerned would amend Article 6, Section 11 of the Nevada Constitution by adding the
following language:
No person may be elected a justice of the supreme court, judge of any other court, or
justice of the peace more than twice for the same court, or more than once if he [sic]
has previously served upon that court by election or appointment.
The constitutionality of the initiative
Petitioners contend that the initiative violates the equal protection and due process
guarantees of the Nevada and United States constitutions.
[Headnotes 1, 2]
The test for determining the constitutionality of state restrictions on elections is set forth in
Anderson v. Celebrezze, 460 U.S. 780 (1983). In setting out the test, the Supreme Court first
noted that the State's important regulatory interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions. Id. at 788. The Court went on to state:
Constitutional challenges to specific provisions of a State's election laws therefore
cannot be resolved by any litmus-paper test that will separate valid from invalid
restrictions. Instead, a court must resolve such a challenge by an analytical process that
parallels its work in ordinary litigation. It must first consider the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the
precise interests put forward by the State as justifications for the burden imposed by its
rule. In passing judgment, the Court must not only determine the legitimacy and
strength of each of those interests, it also must consider the extent to which those
interests make it necessary to burden the plaintiff's rights. Only after weighing all these
factors is the reviewing court in a position to decide whether the challenged provision is
unconstitutional. The results of this evaluation will not be automatic; as we have
recognized, there is no substitute for the hard judgments that must be made.
Id. at 789-90 (citations omitted) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Thus,
under Anderson, this court must consider: (1) the nature of the asserted injury to the protected
rights; {2) the interests put forward by the state as justification for that injury; and {3)
the necessity for imposing the burden on the petitioners' rights rather than some less
restrictive alternative.
rights; (2) the interests put forward by the state as justification for that injury; and (3) the
necessity for imposing the burden on the petitioners' rights rather than some less restrictive
alternative.
The initiative would infringe upon the citizens' right to vote for the candidate of their
choice and the judges' right to hold office. Voters' rights and candidates' rights cannot be
easily separated: laws that affect candidates always have a correlative effect on the voters.
Bullock v. Carter, 405 U.S. 134, 143 (1972). In the instant case, if the initiative is passed, it
would thereafter permanently exclude incumbent judges from serving more than two terms in
the same office and preclude voters from returning an incumbent who has served two terms to
the same office.
[Headnotes 3, 4)
There is no doubt that candidate eligibility requirements implicate basic constitutional
rights. Anderson, 460 U.S. at 786.
1
Ballot access restrictions burden
two different, although overlapping, kinds of rightsthe right of individuals to
associate for the advancement of political beliefs, and the right of qualified voters,
regardless of their political persuasion, to cast their votes effectively. Both of these
rights, of course, rank among our most precious freedoms.
Id. at 787 (quoting Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)).
The exclusion of candidates also burdens voters' freedom of association, because an
election campaign is an effective platform for the expression of views on the issues of
the day, and a candidate serves as a rallying point for like-minded citizens.
Id. at 787-88. This court has stated:
The right to hold public office is one of the valuable rights of citizenship. The
exercise of this right should not be declared prohibited or curtailed except by plain
provisions of law. Ambiguities are to be resolved in favor of eligibility to office.
Gilbert v. Breithaupt, 60 Nev. 162, 165-66, 104 P.2d 183, 185 (1940). We recently reaffirmed
this proposition. See SNEA v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994).
__________

1
The exclusion of candidates burdens voters' freedom to vote for the candidate of their choice. Anderson v.
Celebrezze, 460 U.S. 780, 787-88. Freedom of association is a First Amendment principle. Although petitioners
do not appear to be challenging the initiative directly on First Amendment grounds, we assume that their due
process claim encompasses a First Amendment claim.
[Headnotes 5, 6]
However, the United States Supreme Court has stated that a barrier to candidate access to
the primary ballot does not, of itself, compel strict scrutiny under the equal protection clause.
Bullock, 405 U.S. at 143. Although these rights of voters are fundamental, not all restrictions
imposed by the States on candidates' eligibility for the ballot impose constitutionally suspect
burdens on voters' rights to associate or to choose among candidates. Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983). The right to vote to fill every public office is not
constitutionally protected; when an election is held, citizens have a constitutionally protected
right to participate in the election on an equal basis with other citizens in the jurisdiction.
Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9-10 (1982).
[Headnote 7]
Since the right to run for office is not deemed a fundamental right and term limits do not
hinder the equal participation of all citizens to vote in an election, the nature of the asserted
injury caused by the initiative does not appear to be unconstitutionally severe.
As for the state interests put forward as justifying term limits, the argument for passage of
the initiative placed on the ballot reads as follows:
Proponents argue that passage will stop career politicians since no one will be able
to hold one office for several terms. Passage may lessen the power of lobbyists and
special interest groups since state officials and local governing body members will only
be in office for a limited amount of time. State officials and local governing body
members would have the opportunity to focus on the issues instead of reelection. A
greater number of Nevadans would be allowed to serve as state officials and as
members of local governing bodies.
It is clear that the reasons cited above for term limits primarily apply to legislative and
executive bodies, which are besieged by lobbyists and special interest groups. The term
career politicians is used as a pejorative. Cases that have upheld term limits for legislators
cite as one of the advantages of term limits that career politicians will be eliminated,
allowing a return to the citizen representatives envisioned by the founders of this nation.
Legislature of State of Cal. v. Eu, 816 P.2d 1309, 1325 (Cal. 1991). This reasoning is not
applicable to the federal judiciary in that the founders did not envision judges as politicians or
as citizen representatives. On the contrary, the founders believed in giving judges lifetime
appointments to insulate them from politics. See U.S. Const. art. III, 1. The almost universal
tradition has been that judges are trained professionals who make a career in the
judiciary.
has been that judges are trained professionals who make a career in the judiciary. In fact, in
many countries judges select or are selected for a career track in the judiciary immediately
after the completion of their legal training. Even now, no other states in this country have
extended term limits to judges, indicating that others see benefits in maintaining a career
judiciary.
We recognize that petitioners' concerns about the effects of term limits on the judiciary are
legitimate and compelling. The effective and proper administration of justice requires that
judges be specially qualified in the law. District judges and supreme court justices must be
professionally trained and licensed to practice law. Except for the first term of some
appointed judges, the terms of all district judges in this state expire at the same time every six
years. The initiative, if adopted, would result in the departure of experienced jurists all at
once from the district court bench, to be replaced by novice judges. We fear that this would
seriously disrupt the orderly administration of the state's courts. The impact of the initiative
may be particularly onerous in the rural areas of Nevada, where population numbers are low
and fewer citizens trained in law are available to serve as district judges.
[Headnote 8]
Nevertheless, it is not the function of this court to judge the wisdom of term limits on the
judiciary, but rather to determine whether such limits pass constitutional muster. Under the
Anderson test, the state interests put forward to justify the injury to voters' and candidates'
protected rights appear constitutional. The state can claim an interest in broadening the
composition of the judiciary, encouraging new candidates to seek judgeships, eliminating
unfair incumbent advantages, and discouraging entrenched power bases in the judiciary.
Despite the adverse effect that the limits would have on the orderly and efficient
administration of justice and the increased financial burden in the training of the judiciary, we
conclude that the voters of this state are empowered to impose such limitations.
[Headnote 9]
As for less restrictive alternatives to the lifetime restriction on re-election to the same
office, it could be argued that a temporary ban on re-election would equally serve the state's
interests. However, we conclude that the lifetime ban may be considered necessary to address
concerns that the initiative is aimed at. If the exclusion were not permanent, the composition
of the judiciary might not change as drastically as proponents of the initiative intend, since
some incumbents would return to previous positions once they again became eligible.
We note that other jurisdictions have upheld the constitutionality of term limits for elected
officialsalthough not specifically for judgesand much of the reasoning in those cases is
persuasive here. Miyazawa v. City of Cincinnati, 825 F. Supp. 816, 819-22 (S.D. Ohio 1993);
U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 359-60 (Ark. 1994), aff'd on other grounds,
------
U.S.
------
, 115 S. Ct. 1942 (1995); Legislature of State of California v. Eu, 816 P.2d
1309 (Cal. 1991), cert. denied, 503 U.S. 919 (1992); Cowdrey v. Redondo Beach, 19 Cal.
Rptr. 2d 179, 188-89 (Ct. App. 1993); Roth v. Cuevas, 603 N.Y.S.2d 962 (N.Y. Sup. Ct.
1993).
[Headnote 10]
We also note that the term limits provision is nondiscriminatory. As discussed below, it is
true that the length of different judges' terms may vary from one another, but that is caused by
the interaction between the amendment and existing constitutional provisions, not by the
instant initiative. Petitioners also argue that the initiative affects judges more stringently than
it does other public officers in that the provisions with regard to other officers refer to a
number of years of allowed service, not just the number of terms. This discrepancy in the
treatment of different public officers does not amount to a violation of equal protection
guarantees under either the Nevada or federal constitutions, although it is a relevant
consideration, as discussed below.
It is not the function of this court to agree or disagree with the policy behind the initiative.
It is our function to determine whether the proposed amendment's impact on protected rights
is so extreme and unjustified that it violates constitutional strictures. We conclude that its
impact does not rise to the level of unconstitutionality.
The misleading presentation of the initiative on the ballot
Petitioners are also concerned that the initiative lumps judges together with all other public
officers without clearly elucidating the different effects it has on judges. The question on the
ballot states: Shall the Nevada Constitution be amended to establish term limits for state and
local public officers? The explanation states in part:
This amendment would limit members of the state Assembly to serving twelve (12)
years or six (6) terms in office. Members of the state Senate would be limited to serving
twelve (12) years or three (3) terms in office. Justices of the Supreme Court, justices of
the peace, and all other judges would be limited to two (2) terms. The Secretary of
State, State Treasurer, State Controller, and the Attorney General would be limited to
eight {S) years or two {2) terms.
would be limited to eight (8) years or two (2) terms. Other state officials and local
governing body members would be limited to twelve (12) years.
Only judicial positions receive no explanation in terms of total years of service. Petitioners
argue that the initiative would limit some judges to two fractions of a single term, which
would limit their total service to less than six years, and that the explanation failed adequately
to explain this potential effect.
Petitioners are correct. The initiative's wording regarding judicial term limits does not
make it clear that a judge may be limited to serving less than three years under certain
circumstances. The explanation does not indicate that after appointment to the bench, to
continue in office a district judge must run for office at the next general election for a term
that may be as short as two years, not the six years of a normal term. See Nev. Const. art. 6,
20, subsection 2. In such cases, under the proposed amendment's term limits, some judges
could not seek re-election after having served a period of less than three years. The
explanation to the initiative does not explain these ramifications. Although it does state in
regard to all affected positions that appointment for any amount of time would be considered
one term, it does not indicate that an appointed judge's ensuing elected term might be as short
as two years.
[Headnote 11]
NRS 293.250(5) requires initiative explanations to be in easily understood language and
of reasonable length. We recognize that it might be impossible for the Secretary of State to
explain all the conceivable implications of every initiative placed on a ballot. However, most
voters would assume that judicial terms under the proposed amendment would be the usual
six years, and requiring the explanation on the ballot to make clear that under certain
circumstances the terms would be a much shorter period of time is clearly appropriate under
NRS 293.250(5).
The failure to explain these ramifications of the proposed amendment, combined with the
initiative's failure to in any way distinguish the judiciary from other branches of government,
renders the initiative and its explanation potentially misleading. As noted above, term limits
have been exclusively applied to the executive and legislative branches, and no such
limitations have ever been imposed on the judiciary. We have the real concern that a casual
reader will not understand that the proposed limits apply to judges and not just to officers
elected to the political branches of government. Some voters who want term limits for
politicians may actually prefer a career judiciary.
[Headnotes 12, 13]
In Stumpf v. Lau, 108 Nev. 826, 832-33, 839 P.2d 120, 123-24 (1992), this court
determined that an initiative's failure to inform voters as to its nature and effect was sufficient
ground to remove the initiative from the ballot. However, this court may intervene and simply
modify the wording of a ballot question if such correction will eliminate the infirmity.
Choose Life Campaign 90' v. Del Papa, l06 Nev. 802, 801 P.2d 1384 (1990). In Choose Life,
this court held that the arguments drafted by the Secretary of State for and against a ballot
referendum did not fairly represent the argument made by opponents to the referendum. We
therefore directed the Secretary of State to modify the arguments by deleting specific
misleading portions.
[Headnote 14]
In this case, all public officialswhether legislative, executive, or judicialare lumped
into one initiative. The impact on these elected officials and the branches in which they serve
is different. Voters, while favoring term limits in general, may fail to distinguish between the
varying impacts on different branches of government. We conclude that the form of the
initiative and the wording of the explanation could have been unnecessarily misleading.
Therefore, we direct that the next time the initiative appears on the ballot, it be severed and
presented in the form of two questions, enabling voters to vote yes or no in regard to term
limits for non-judicial public officers and yes or no in regard to term limits for judges and
justices. Each question shall have its own respective explanation and arguments, and the
explanation in regard to term limits for judges shall make clear that in the case of appointed
judges, proposed term limits may preclude an incumbent from seeking re-election after
serving less than three years on the bench. This will ensure that the voters are well informed
in regard to the specific impact that the proposed term limits will have on the separate
branches of government and the elected officers serving in each. The two questions will
present the same basic term limit proposals that were presented in 1994, and the voters will
have the opportunity to enact them. However, the separate questions should focus the voters'
attention on the fact that judicial officers are included in the proposed term limits, and a
detailed explanation of the impact on the judiciary will be contained.
Accordingly, we direct the Secretary of State to place the proposed amendment of Section
11 of Article 6 of the Nevada Constitution as a separate question the next time it appears on
the ballot. The following explanation shall be part of that ballot question:
Justices of the supreme court, district court judges, justices of the peace, and all
other judges would be limited to two full terms, to one full term and a fraction of a
term, or to two fractions of one term. Limits to service by a judge would range from
twelve years to less than three years. A limit of three years or less would occur if a
judge is appointed to fill a judicial vacancy and then is re-elected to the final two years
of the term, as is required to keep the position: this would constitute two terms under
the terms of the amendment.
CONCLUSION
Petitioners' request that the initiative be removed from the ballot is denied. However, we
hereby order the severance of the initiative into two separate questions with more detailed
explanation at the next relevant election.
2, 3

Steffen, C. J., and Young and Springer, JJ., concur.
Shearing, J., concurring in part and dissenting in part:
I agree that the ballot initiative is constitutional as it applies to judges. I also believe that
the ballot initiative's explanation regarding its effect on judges is accurate and meets the
statutory standard of being in easily understood language and of reasonable length. NRS
293.250(5). While the explanation may not set forth all of the initiative's implications for
judges in light of other constitutional provisions, that is not required under the law. If that
were the requirement, no ballot initiatives would be deemed acceptable and still comply with
the requirement of being of reasonable length.
I submit that the question as presented to the voters in the 1994 election should either be
upheld as satisfactory or struck down as defective. If upheld as satisfactory, it should be on
the ballot in the next election in the same form as it was first approved.
__________

2
We do not conclude that the 1994 ballot question and explanation were so unclear or misleading as to make
them constitutionally infirm. But, under our authority to review the fairness and accuracy of ballot propositions
and to make necessary revisions to fully inform the voter in a balanced presentation, we give the directives
contained in this opinion to the Secretary of State. If either proposal passes in the 1996 general election, the
Constitution will be effectively amended as to the proposal or proposals receiving a majority vote.

3
Petitioners also argue that the petition process was not conducted in accordance with Nevada law because
some of those who circulated the petitions were not registered voters and some of the signatures on the petitions
were obtained outside the presence of the circulators. Because no evidentiary hearing was conducted on the
factual matters involved in this issue, we do not consider it.
the next election in the same form as it was first approved. This court is not justified in
changing the ballot question when the voters have already approved it. If the court deems the
question as passed defective, the separate question and new explanation must be placed on
the ballot and passed in two consecutive elections.
____________
112 Nev. 62, 62 (1996) Reno Sparks Visitors Auth. v. Jackson
RENO SPARKS CONVENTION VISITORS AUTHORITY, Appellant, v. KENNETH
JACKSON, Respondent.
No. 26399
January 31, 1996 910 P.2d 267
Appeal from an order of the district court affirming the decision of an administrative
appeals officer. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Employer appealed decision of workers' compensation appeals officer reversing hearing
officer's denial of benefits. After the district court affirmed, employer appealed. The supreme
court held that: (1) hearing officer and appeals officer lacked authority to excuse untimely
appeal of insurer's denial of benefits, and (2) letter submitted to insurer after insurer denied
original claim was not new claim with independent appeal rights.
Reversed.
DeGraff, Salerno, McCarty & Ryan, Carson City, for Appellant.
Law Offices of John L. Carrico and Carter R. King, Reno, for Respondent.
Lenard Ormsby, General Counsel, and Matthew Feiertag, Associate General Counsel,
Carson City, for Amicus Curiae State Industrial Insurance System.
1. Workers' Compensation.
Hearing officer and appeals officer lacked authority to excuse claimant's untimely appeal of insurer's denial of workers'
compensation benefits, where claimant admitted receipt of letter denying claim which was sent to his current address. NRS 616.5412.
Letter describing claimant's physical condition and submitted to insurer after insurer denied original workers' compensation claim
was not new claim and thus insurer's response letter was not letter of determination triggering appeal rights.
OPINION
Per Curiam:
Respondent Kenneth Jackson worked for appellant Reno Sparks Convention and Visitors
Authority (RSCVA) as a golf course groundskeeper. In May of 1992, while riding a rotary
mower, Jackson struck a bump or dip on the course. He experienced extreme pain and, as a
result, was admitted to the hospital. Jackson's doctor determined that he was suffering from a
right ureteropelvic junction (UPJ) obstruction.
Jackson immediately filed an insurance claim with RSCVA's third-party insurer, W.R.
Gibbens, Inc. (Gibbens). Gibbens denied the claim, notifying Jackson of his time limit for
appealing the denial. Jackson failed to appeal the denial within the time specified. However,
several months later, Jackson submitted a letter from his treating physician to Gibbens,
intending that the letter serve as a new claim. Gibbens again denied the claim, informing
Jackson that he no longer had appeal rights. In a proceeding before the hearing officer, the
denial was affirmed. Jackson appealed, and the appeals officer reversed the denial. The
district court affirmed the appeals officer's decision. We now reverse the order of the district
court based on our conclusion that neither the hearing officer nor the appeals officer had
jurisdiction to hear this matter.
FACTS
RSCVA hired Jackson to maintain the grounds at Wildcreek Golf Course. The afternoon
of May 4, 1992, while mowing the grounds with a rotary mower, Jackson hit a dip or bump.
He had been mowing the fairways since approximately 6:30 a.m. Jackson claimed that after
hitting the bump, he experienced immediate right side back pain, nausea, and vomiting.
Jackson left the golf course and went to the emergency room of Washoe Medical Center
where he was observed in the emergency room for several hours and given pain medication.
Examinations revealed that Jackson was probably suffering from a right UPJ obstruction,
i.e., a blockage in the tube that drains urine from the kidney to the bladder. On May 5, 1992,
he was admitted to Washoe Medical Center for pain control and further evaluation of the
possible blockage. Jackson was released the following day.
In a medical history given to doctors during his first visit to Washoe Medical Center,
Jackson indicated that he had been experiencing intermittent pain over the last several years
on the right side of his body.
right side of his body. He had quit drinking alcohol approximately three years prior to his
injury at the golf course, because as little as one beer would cause him pain and nausea.
According to his treating physician, Dr. Garey-Sage, alcohol often contributes to a UPJ
obstruction because it is a diuretic, causing an increase in fluid excretion over the ability of
the ureter to drain the kidney. The distension in the system results in pain.
Dr. Garey-Sage testified that, based on medical examinations and the history Jackson gave
at the emergency room, Jackson's UPJ obstruction was congenital and had been present for at
least a month and possibly years prior to the incident. Dr. Garey-Sage also testified that the
pain Jackson had suffered over the years both with and without alcohol consumption could be
associated with a chronically dilated system. Following his release from the hospital, Jackson
underwent several surgeries, including a nephrectomy, to remedy his condition.
Upon his admission to the hospital on May 5, 1992, Jackson immediately filed an
industrial injury claim form with RSCVA. Gibbens, the worker's compensation claims
administrator for RSCVA, denied Jackson's claim. In a letter to Jackson dated May 8, 1992,
Gibbens wrote that, after a careful investigation, it is our decision to deny your claim. This
denial is based upon the fact that you have not had an injury by accident as defined under
(NRS 616.020) and (NRS 616.110) . . . . The letter also informed Jackson that if he
disagreed with the denial, he had the right to request a hearing by completing and filing with
the Hearings Division of the Department of Administration, the enclosed Request for Hearing
form within sixty (60) days from the date of the letter.
1

On September 17, 1992, Jackson submitted a letter from Dr. Garey-Sage to Gibbens. In the
letter, Dr. Garey-Sage explained that he had seen Jackson in May of 1992 for right renal
colic. Dr. Garey-Sage wrote:
Evaluation revealed that he had a ureteropelvic junction obstruction and he
subsequently underwent surgery on this. This is a pre-existing condition however I
think the job he had that involved alot [sic] of heavy physical activity and riding the
carts around bumpy roads, would certainly make the pain associated with this condition
worse.
On September 25, 1992, Gibbens wrote to Jackson to acknowledge receipt of this letter and
noted that this claim had previously been denied on May S, 1992.
__________

1
In 1993, the Legislature amended NRS 616.5412(2) to allow a request for a hearing to be filed within seventy
days after an insurer mails its written determination. 1993 Nev. Stat., ch. 265, 175 at 736.
been denied on May 8, 1992. The September letter also stated that in the May letter denying
the claim, [Jackson was] advised that if [he] disagreed with that determination, [he] had
sixty days within which to appeal same. This letter also advised Jackson that the sixty days
had passed and thus, due to time lapse, there could be no appeal. Jackson requested and was
granted an appearance before the hearing officer. The hearing officer upheld Gibbens'
decision.
Jackson appealed. In front of the appeals officer, Jackson testified that he had received, at
his correct address, the May 8, 1992 letter denying his claim. The appeals officer reversed the
hearing officer's decision, concluding that Jackson's job precipitated or accelerated his
condition, which required his admission to the hospital on May 4, 1992. Additionally, the
appeals officer found that Jackson's injuries had not been resolved by the time he was
discharged from emergency treatment on May 5, 1992. The appeals officer stated: He was
taken off work, medicated, and continued in pain until May 13, 1992. Accordingly, the
appeals officer ruled that Jackson's claim should be accepted as compensable by Gibbens.
RSCVA filed a petition for judicial review of the appeals officer's decision. RSCVA
argued that the hearing officer and the appeals officer were both without subject matter
jurisdiction to hear the case due to Jackson's failure to timely appeal the May 8, 1992
determination letter. The district court found that Jackson's treating physician did not inform
Jackson that his condition was actually work related until September of 1992. At that time,
the doctor also informed Gibbens that he believed the claim was caused by Jackson's
employment. The district court concluded that both the hearing officer and the appeals officer
correctly construed the letter of September 25, 1992, as the denial of a new claim. The district
court stated: This construction is consistent with the statutory duties imposed upon the
physician and the Self-Insured Employer, (616.5412, NAC 616.5535).
The district court also concluded that substantial evidence was presented for the appeals
officer to make a determination that Jackson's condition was work related. The district court
agreed with the appeals officer's assessment that Jackson had not been returned to his
pre-injury condition following the emergency treatment. Accordingly, the district court
determined that Jackson's injury should be accepted as fully compensable by RSCVA and
Gibbens.
DISCUSSION
[Headnote 1]
In this case, neither the hearing officer nor the appeals officer had subject matter
jurisdiction to hear Jackson's case because he failed to timely appeal Gibbens' initial
denial of his claim.
had subject matter jurisdiction to hear Jackson's case because he failed to timely appeal
Gibbens' initial denial of his claim. Pursuant to NRS 616.5412, a hearing officer has
jurisdiction over an issue only if a claimant files a timely request for a hearing. NRS
616.5412, in relevant part, states:
1. Any person who is subject to the jurisdiction of the hearing officers pursuant to
this chapter or chapter 617 of NRS may request a hearing before a hearing officer of
any matter within the hearing officer's authority. The insurer shall provide, without
cost, the forms necessary to request a hearing to any person who requests them.
2. Except as otherwise provided in NRS 616.5395, a person who is aggrieved by:
(a) A written determination of an insurer; or
(b) The failure of an insurer to respond within 30 days to a written request mailed to
the insurer by the person who is aggrieved,
may appeal from the determination or failure to respond by filing a request for a
hearing before a hearing officer. Such a request must be filed within 70 days after the
date on which the notice of the insurer's determination was mailed by the insurer or the
unanswered written request was mailed to the insurer, as applicable.
(Emphasis added.) NRS 616.5412(3) only excuses a failure to request a hearing within this
time frame if the claimant proves by a preponderance of the evidence that he or she never
received notice of the determination and the forms necessary to request a hearing. Jackson
admitted before the appeals officer that he had received, at his correct address, the May 8,
1992 letter denying his claim.
The Legislature has established strict time guidelines for appeals rights, and no statutory or
regulatory authority exists allowing Jackson to request Gibbens to reconsider a claim after its
denial and the extinguishment of original appeals rights. We are concerned that, under the
district court's ruling, claimants' files which had originally been denied as compensable
injuries would never be finalized. Failure to follow NRS 616.5412 would throw the claims
process into chaos by subjecting work-related injury determinations to continued scrutiny
following the statutorily established time for appeals. This court has, in a statute similarly
mandating the time allowed to appeal from the decision of a hearing officer, construed such a
time limit to be jurisdictional and mandatory. SIIS v. Partlow-Hursh, 101 Nev. 122, 696 P.2d
462 (1985). In Partlow-Hursh, this court noted that NRS 616.5422(1) is silent as to whether
or not the time limit can be excused.
excused. Where the statute is silent, the time period for perfecting an appeal is generally
considered to be mandatory, not procedural. Id. at 124-25, 696 P.2d at 463-64. Based on this
language, we conclude that Jackson failed properly to request a hearing within the specified
time frame and therefore lost his appeal rights.
[Headnote 2]
Jackson also claims that the letter he submitted to Gibbens in September of 1992
constituted a new claim. Additionally, he claims that Gibbens' letter of September 25, 1992,
was a letter of determination with appeals rights attached.
Upon Jackson's initial admission to the hospital, he immediately filed an industrial injury
claim, meaning that Jackson felt his injury was job related. Dr. Garey-Sage's letter of
determination in September, therefore, was not Jackson's first notice that the injury was work
related. Additionally, Jackson was not wholly unfamiliar with the process of filing industrial
injury claims. The record indicates that Jackson had filed several other industrial claims prior
to the instant claim. Finally, from the time Jackson was first admitted to the hospital on May
4, 1992, through the time that the September letter was submitted to Gibbens, Dr. Garey-Sage
had the same assessment of Jackson's injury, that he was suffering from a congenital UPJ
constriction. The September letter to Gibbens did not provide Gibbens or Jackson with any
new insight into the nature of Jackson's injury.
Therefore, we conclude that the letter of September 1992 did not constitute a new claim.
Because this letter did not constitute a new claim, the September letter from Gibbens did not
constitute a letter of determination with appeals rights. This determination was an error of
law. Accordingly, we conclude that the district court erred in determining that the hearing
officer and the appeals officer had jurisdiction over Jackson's claim.
RSCVA also argues that the appeals officer ruled erroneously in finding that Jackson had a
compensable injury. Given our disposition of the jurisdictional issue, we find it unnecessary
to address the merits of this argument.
CONCLUSION
We conclude that neither the hearing officer nor the appeals officer had jurisdiction to hear
Jackson's case because Jackson failed to timely file a request for a hearing on Gibbens' denial
of his claim. Accordingly, we reverse the order of the district court.
____________
112 Nev. 68, 68 (1996) Allyn v. McDonald
KATIE T. ALLYN, Appellant, v. SHARON McDONALD, Respondent.
No. 26616
January 31, 1996 910 P.2d 263
Appeal from an order granting summary judgment in an action for attorney malpractice.
Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Client brought legal malpractice action against attorney. The district court granted
summary judgment for attorney based on client's failure to include expert witness to testify as
to standard of care. Client appealed. The supreme court held that: (1) whether attorney's
failure to file action within limitations period constituted malpractice did not require
testimony of expert witness, and (2) fact question as to whether attorney promised client that
she would file personal injury action precluded summary judgment.
Affirmed in part; reversed in part and remanded.
Carlye Christianson, San Diego, California; William 0'Mara, Reno, for Appellant.
Michael A. Iglesias, Reno, for Respondent.
1. Judgment.
Summary judgment is appropriate when, after review of record viewed in light most favorable to nonmoving party, there remain no
issues of material fact. In determining whether summary judgment is proper, nonmoving party is entitled to have evidence and all
reasonable inferences accepted as true.
2. Appeal and Error.
State supreme court's review of summary judgment order is de novo.
3. Attorney and Client.
Although expert evidence is generally required in legal malpractice case to establish attorney's breach of care, exception exists in
cases where breach of care or lack thereof is so obvious that it may be determined by court as matter of law, or is within ordinary
knowledge and experience of laymen. Situation whereby attorney has allowed statute of limitations to run against his or her client's
cause of action is example of sort of negligence so apparent as to make expert evidence as to standard of care and deviation therefrom
unnecessary.
Whether attorney was negligent in failing to file client's claim before statute of limitations expired was issue that was within
ordinary knowledge and experience of layman, and so did not require expert evidence, since applicable statute of limitations was clear
and unambiguous, accrual date of claim was not subject to question or interpretation, and no issues regarding tolling of statute existed.
To maintain claim for legal malpractice, plaintiff must establish existence of attorney-client relationship, duty owed to client by
attorney, breach of that duty, and breach as proximate cause of client's damages.
6. Judgment.
Fact question as to whether attorney promised client that she would file personal injury action precluded summary judgment in
legal malpractice action brought by client on basis of attorney's failure to file personal injury action within limitations period.
OPINION
Per Curiam:
Appellant Katie Allyn brought suit against her attorney, respondent Sharon McDonald, for professional malpractice and breach of
promise due to McDonald's alleged failure to timely file a personal injury claim on her behalf (Count I) and for McDonald's breach of the
duty of care in her earlier representation of Allyn in a divorce proceeding (Count II). The district court granted McDonald's motion for
summary judgment on the grounds that (1) Allyn failed to present expert testimony to prove McDonald's breach of the attorney's standard
of care by failing to timely file the personal injury claim, (2) no genuine issue of material fact existed as to whether McDonald had actually
informed Allyn that she would not file the personal injury action, and (3) Allyn had waived prosecution of Count II.
We conclude that the district court's order granting McDonald's motion for summary judgment was erroneous as to Count I but proper
as to Count II.
FACTS
In April 1988, after approximately ten years of an alleged physically and psychologically abusive marriage, Allyn left her marital home
and moved to San Diego, California to live with a friend and his wife. Allyn's husband filed for divorce in July 1988, and Allyn retained
John Giomi, the friend that she was living with in San Diego, to represent her in the divorce action. Allyn replaced Giomi in January 1989
with an attorney from Carson City, Nevada, and then replaced that attorney with Sharon McDonald in June 1989. McDonald represented
Allyn from June 1989 through November 1990, the date the final decree of divorce was entered.
During their initial meeting in June 1989, Allyn and McDonald discussed the potential of filing a personal injury claim against Allyn's
husband based on the physical, emotional, and sexual abuse that Allyn had suffered at his hands. In a letter written after the initial
meeting, McDonald advised Allyn that she would consider the suit but that her decision to take the suit would
depend on the strength of the lawsuit, the ability to fund the lawsuit, and the ability to collect on a judgment
rendered in favor of Allyn.
the initial meeting, McDonald advised Allyn that she would consider the suit but that her
decision to take the suit would depend on the strength of the lawsuit, the ability to fund the
lawsuit, and the ability to collect on a judgment rendered in favor of Allyn.
McDonald claimed that at the end of 1989, after she had investigated the financial status of
Allyn's husband, the evidence that would be presented against Allyn, and the likelihood of
winning a judgment, she informed Allyn that she would not represent her in the personal
injury suit. McDonald, however, never wrote a letter to Allyn to this effect, and the only
evidence supporting McDonald's assertion that she informed Allyn of this decision is an
affidavit signed by McDonald in 1994 and her deposition testimony.
Conversely, Allyn alleged that on several occasions McDonald stated her willingness to
take on and file the personal injury suit. Specifically, during the divorce proceedings,
McDonald had lunch with Allyn and others and reassured Allyn that issues that had not been
addressed in the divorce proceedings would be reached during the next case, which was
apparently a reference to the personal injury case.
Allyn's personal injury claim was not filed by McDonald or any other attorney before the
statute of limitations expired in April 1990. Allyn filed an amended malpractice complaint
against McDonald on April 27, 1993, alleging in Count I that McDonald had committed
malpractice and breach of promise by failing to file the personal injury claim before the
statute of limitations had expired and in Count II that McDonald had breached the duty of
care in her earlier representation of Allyn in the divorce action.
On July 7, 1994, pursuant to NRCP 26(b)(5), McDonald filed a demand for an exchange
of witnesses and discovered that Allyn's list of witnesses did not include an expert who would
testify as to the attorney's standard of care when filing a client's claim. Based on this
information, McDonald filed a motion for summary judgment on the ground that Allyn could
not prove that she had a viable cause of action. Allyn's opposition to the motion for summary
judgment argued that this was not a situation which required an expert and that a layman
could properly analyze whether McDonald was negligent in failing to file the action before
the statute of limitations ran.
The district court granted McDonald's motion for summary judgment, concluding that an
expert witness was required to prove that McDonald breached the standard of care by failing
to file the personal injury claim, that no genuine issues of material fact existed as to whether
McDonald informed Allyn that she would not take on the personal injury claim, and that
Allyn had waived prosecution of Count II.
would not take on the personal injury claim, and that Allyn had waived prosecution of Count
II.
DISCUSSION
The issue of whether an expert witness is required to prove that an attorney breached the
standard of care by failing to timely file a personal injury claim is one of first impression for
this court.
We conclude that it was error for the district court in this case to require Allyn to employ
an expert witness to establish a breach of attorney McDonald's duty of care for her failure to
timely file the personal injury action. We further conclude that the findings of fact made by
the district court in support of the motion for summary judgment are unpersuasive and do not
support the order granting McDonald's motion for summary judgment.
[Headnote 1]
Summary judgment is only appropriate when, after a review of the record viewed in the
light most favorable to the non-moving party, there remain no issues of material fact. Butler
v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
summary judgment is proper, the nonmoving party is entitled to have the evidence and all
reasonable inferences accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774
P.2d 432, 433 (1989).
[Headnote 2]
This court's review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105
Nev. 183, 185, 772 P.2d 1281, 1282 (1989). On appeal, this court is required to determine
whether the trial court erred in concluding that an absence of genuine issues of material fact
justified its granting of summary judgment. Bird v. Casa Royale West, 97 Nev. 67, 68, 624
P.2d 17, 18 (1981).
Professional malpractice in filing the personal injury claim (Count I)
[Headnote 3]
While expert evidence is generally required in a legal malpractice case to establish the
attorney's breach of care, an exception exists in cases where the breach of care or lack thereof
is so obvious that it may be determined by the court as a matter of law or is within the
ordinary knowledge and experience of laymen. Wilkinson v. Rives, 172 Cal. Rptr. 254, 256
(Ct. App. 1981); Walker v. Bangs, 601 P.2d 1279, 1282 (Wash. 1979). See generally Michael
A. DiSabatino, Admissibility and Necessity of Expert Evidence as to Standards of Practice
and Negligence in Malpractice Action Against Attorney, 14 A.L.R.4th 170 (1982).
[Headnote 4]
The situation whereby an attorney has allowed the statute of limitations to run against his
or her client's cause of action is an example of the sort of negligence so apparent as to make
expert evidence as to the standard of care and deviation therefrom unnecessary. Little v.
Matthewson, 442 S.E.2d 567, 571 (N.C. Ct. App. 1994), aff'd, 455 S.E.2d 160 (N.C. 1995);
George v. Caton, 600 P.2d 822, 829 (N.M. Ct. App. 1979). In this case, the applicable statute
of limitations was clear and unambiguous. Additionally, the accrual date of the claim was
also not subject to question or interpretation. Therefore, whether the attorney was negligent in
failing to file the claim before the statute of limitations expired was an issue that was within
the ordinary knowledge and experience of a layman. We caution, however, that if the
applicability of the statute at issue was uncertain, if significant questions regarding the
accrual date of the claim existed, or if issues regarding tolling of the statute existed, the case
might extend beyond the realm of ordinary experience and knowledge of the layman, thus
requiring an expert witness to establish the attorney's breach of the duty of care.
[Headnote 5]
The elements for a claim of legal malpractice are the existence of an attorney-client
relationship, a duty owed to the client by the attorney, breach of that duty, and the breach as
proximate cause of the client's damages. Semenza v. Nevada Med. Liability Ins. Co., 104
Nev. 666, 667-68, 765 P.2d 184, 185 (1988). We note that while an expert witness may be
required to prove the causation issue, we need not reach that issue here.
[Headnote 6]
The district court also made findings of fact which it claimed supported its order for
summary judgment; however, these findings of fact are, in critical part, clearly erroneous.
Most importantly, the district court resolved a material disputed fact, concluding that
McDonald actually informed Allyn that she would not file the personal injury action and
therefore entered the order for summary judgment in favor of McDonald. However, the
record when viewed in the light most favorable to Allyn, the non-moving party, presents
genuine issues of material fact on this issue. McDonald claims that she informed Allyn that
she would not file the personal injury action; however, she produced no concrete evidence of
such a communication. Conversely, Allyn denies that McDonald so informed her and claims
that McDonald told her on several occasions that she would file the action at the conclusion
of the divorce proceedings.
Because genuine issues of material fact exist as to whether or not McDonald promised
Allyn that she would file the personal injury action, it was premature for the district court to
decide any breach of promise issues on summary judgment.
Professional malpractice in McDonald's handling of Allyn's divorce case (Count II)
Count II of Allyn's amended complaint was a cause of action against McDonald for legal
malpractice for her handling of Allyn's divorce case. Allyn, however, waived this cause of
action in her opposition to the motion for summary judgment by stating:
This lawsuit will not be prosecuted seeking injuries for damages caused by Ms.
McDONALD's numerous failures and shortcomings during her representation of Ms.
ALLYN in the domestic proceeding. Originally that theory was plead, but that theory is
not being prosecuted.
Based on this language, the district court properly granted summary judgment in favor of
McDonald on Count II of the complaint.
CONCLUSION
The district court's order granting McDonald's motion for summary judgment on Count I
was erroneous because an expert witness was not required and because genuine issues of
material fact still existed. However, summary judgment was proper on Count II because
Allyn waived prosecution of that cause of action. Accordingly, we reverse the order granting
summary judgment as to Count I, affirm as to Count II, and remand this matter to the district
court for further proceedings consistent with this opinion.
____________
112 Nev. 73, 73 (1996) Schroeder v. Ely City Mun. Water Dep't
QUENTIN R. and FRANCES M. SCHROEDER, dba CHICKIES HALLMARK SHOPPE,
JIM and MARGARET NELSON, dba NELSON ENTERPRISES, Appellants, v. ELY
CITY MUNICIPAL WATER DEPARTMENT and CITY OF ELY, Respondents.
No. 26663
January 31, 1996 910 P.2d 260
Appeal from an order of the district court granting summary judgment in respondents'
favor. Seventh Judicial District Court, White Pine County; Jack B. Ames, Judge.
Business property owners brought action against city and city water department, arising
from property damage sustained by owners' buildings due to leak in water service line, for
failing to properly maintain water line and for property damage. The district court granted
summary judgment for city and department on basis of statutory governmental immunity.
Owners appealed. The supreme court held that: (1) city and department were statutorily
immune from liability to owners, under statute granting state political subdivisions immunity
from liability for failure to inspect public work or failure to discover hazard or deficiency,
despite contention that owners' action was for failure to maintain, rather than to inspect, water
line, and (2) owners were not in special relationship with city and city water department
because of department's rule, stating that department had duty to maintain water service lines,
so as to defeat city's and department's statutory governmental immunity.
Affirmed.
Steve L. Dobrescu, Ely, for Appellants.
Perry & Spann and Brett K. South, Reno, for Respondents.
Supreme court's review of order granting summary judgment is de novo. NRCP 56.
2. Municipal Corporations.
City and city water department were statutorily immune from liability to business property owners whose buildings sustained
property damage due to leak in water service line maintained by city, under statute granting state political subdivisions immunity from
liability for failure to inspect public work or failure to discover hazard or deficiency, despite contention that owners' action was for
failure to maintain, rather than to inspect, water line. Because there were no facts from which to conclude that city and department
failed to maintain water line after leak was discovered, owners' claim could only be viewed as claim based on failure to inspect water
line. NRS 41.033.
Public entity has no governmental immunity pursuant to statute granting state political subdivisions immunity from liability for
failure to inspect public work or failure to discover hazard or deficiency only if public entity had knowledge of hazard and fails to act
reasonably to correct such hazard. NRS 41.033.
Business property owners, whose buildings were damaged due to leak in water service line, were not in special relationship with
city and city water department because of department's rule, stating that department had duty to maintain water service lines, so as to
defeat city's and department's governmental immunity pursuant to statute granting state political subdivisions immunity from liability
for failure to inspect public work or failure to discover hazard or deficiency. Rule was not embodiment of any contract with
owners or any other party, and rule was designed to benefit all city residents and was not designed to
protect one particular class of individuals.
not embodiment of any contract with owners or any other party, and rule was designed to benefit all city residents and was not
designed to protect one particular class of individuals. NRS 41.033.
OPINION
Per Curiam:
Appellants Quentin R. and Frances M. Schroeder (Schroeder) and Jim and Margaret Nelson (Nelson) owned business buildings
adjacent to one another in Ely, Nevada. Because of a leak in the water service line leading up to these buildings, both Schroeder's and
Nelson's buildings sustained property damage. The section of the line which leaked was under the control of the respondents City of Ely
(Ely) and the Ely Municipal Water Department (Water Department). Both Schroeder and Nelson received water from the Water Department
for which they paid a fee. For many years before, Ely and its Water Department had failed to inspect the water lines leading to Schroeder's
and Nelson's property.
Schroeder and Nelson filed suit against Ely and its Water Department for failing to properly maintain the water line and for the
property damage they sustained. The district court granted summary judgment in favor of Ely and its Water Department and denied
Schroeder's and Nelson's cross-motion for summary judgment on the basis that NRS 41.033 provides Ely and its Water Department with
immunity from liability. Schroeder and Nelson appeal from that order claiming that the district court erred in granting Ely and its Water
Department summary judgment on that basis.
NRS 41.033 provides:
1. No action may be brought under NRS 41.031 or against an officer or employee of the state or any of its agencies or
political subdivisions which is based upon:
(a) Failure to inspect any building, structure, vehicle, street, public highway or other public work, facility or improvement to
determine any hazards, deficiencies or other matters, whether or not there is a duty to inspect; or
(b) Failure to discover such a hazard, deficiency or other matter, whether or not an inspection is made.
(Emphasis added.)
[Headnote 1]
Summary judgment is appropriate only when no genuine issue of material fact remains for trial and the moving party is entitled to
judgment as a matter of law. Shepard v. Harrison, 100 Nev. l78, 179, 678 P.2d 670, 672 (1984); NRCP 56. The only issue presented on
appeal is whether Ely and its Water Department were entitled to judgment as a matter of law pursuant to NRS
41.033.
presented on appeal is whether Ely and its Water Department were entitled to judgment as a
matter of law pursuant to NRS 41.033. This court's review of an order granting summary
judgment is de novo. Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61
(1992).
[Headnote 2]
Schroeder and Nelson argue that they are suing Ely and its Water Department for the
failure to maintain the water line leading to their property and that NRS 41.033 provides
municipal immunity only for the failure to inspect, not for the failure to maintain. They
further note that the Water Department had an affirmative duty to maintain the city's water
lines at the time the damage at issue here occurred. Indeed, as they point out, Rule 103(c)(5)
of the Water Department's rules and regulations provides, in part, as follows: The service
connection extending from the water main to the property line and including the curb stop
and/or the meter box and yoke shall be maintained by the Water Department . . . . (Emphasis
added.)
1

[Headnote 3]
Contrary to the assertions of Schroeder and Nelson, we do not believe that Rule 103(c)(5)
forms a basis for liability here or that it constitutes a waiver of Ely's and the Water
Department's immunity under NRS 41.033. We read Rule 103(c)(5) in its most natural sense
to mean that the Water Department assumes a duty to maintain (to keep in a state of repair)
the water lines outside a property line when it becomes aware of a potential or existing
problem. Here, there is no indication that the Water Department knew or should have known
of the faulty water line. A public entity has no governmental immunity pursuant to NRS
41.033 only if the public entity had knowledge of a hazard and fails to act reasonably to
correct such hazard. Lotter v. Clark Co. Bd. of Commissioners, 106 Nev. 366, 368, 793 P.2d
1320, 1322 (1990). Facts indicating that Ely and its Water Department knew of the hazard or
failed to correct it once it became known, thus constituting a breach of the Water
Department's duty to maintain its water lines, are not alleged in the instant case.
Because there are no facts from which to conclude that Ely and its Water Department
failed to maintain the water line leading to Schroeder's and Nelson's property after the leak
was discovered, Schroeder's and Nelson's claim for relief that Ely and its Water
Department failed to maintain the water line could only be viewed by the district court as
a claim based on Ely's and the Water Department's failure to inspect the water line.
__________

1
Schroeder and Nelson also claim that other Water Department rules and regulations demonstrate that the
Water Department assumes liability for leaks outside the property line. These rules basically state that the Water
Department is not liable for damages from broken or damaged pipes inside a property line. Schroeder and
Nelson infer from these rules that the Water Department thereby assumes liability for all damages from broken
or damaged pipes outside the property line.
Schroeder's and Nelson's claim for relief that Ely and its Water Department failed to maintain
the water line could only be viewed by the district court as a claim based on Ely's and the
Water Department's failure to inspect the water line. NRS 41.033 clearly provides that
municipalities such as Ely are immune from liability for the failure to inspect water lines.
Thus, the district court was correct in granting Ely and its Water Department summary
judgment pursuant to NRS 41.033. See Fischmann v. City of Henderson, 92 Nev. 659, 556
P.2d 923 (1976).
Had Ely and its Water Department wanted to waive their immunity under NRS 41.033,
they could have done so by clearly stating that they would inspect their water lines. They did
not do so. But even under that circumstance, it is questionable whether Ely and its Water
Department would be liable given that immunity attaches pursuant to NRS 41.033 whether
or not there is a duty to inspect.
Schroeder and Nelson also assert that government immunity should not apply because the
maintenance of water lines is an operational and not a discretionary act. They cite Andolino v.
State of Nevada, 97 Nev. 53, 624 P.2d 7 (1981). Andolino is clearly distinguishable because it
was decided under a completely different statute. NRS 41.032 provides certain state officials
and subdivisions with immunity from liability for discretionary functions.
2
Whether the Ely
Water Department's maintenance of water lines is discretionary or operational is irrelevant
given that immunity was provided for in this case under NRS 41.033, not NRS 41.032.
[Headnote 4]
Finally, Schroeder and Nelson contend that they are in a special relationship with Ely
and its Water Department because of the Water Department's rules and regulations and that
this special relationship defeats immunity, citing Williams v. City of North Las Vegas, 91
Nev. 622, 541 P.2d 652 (1975) and Charlie Brown Constr. Co. v. Boulder City, 106 Nev.
497, 797 P.2d 946 (1990). We disagree. It is apparent from the language in Williams that this
court's decision was based on the fact that the ordinance at issue was the embodiment of the
agreement between the city and the power company rather than the product of legislative
deliberation.
__________

2
NRS 41.032 provides in relevant part:
[N]o action may be brought under NRS 41.031 . . . against . . . an officer or employee of the state or any
of its agencies or political subdivisions which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary function
or duty on the part of the state or any of its agencies or political subdivisions . . . whether or not the
discretion involved is abused.
the city and the power company rather than the product of legislative deliberation. Williams,
91 Nev. at 626, 541 P.2d at 655. Thus, the liability in Williams stemmed from a contractual
special relationship. In the instant case, the Water Department's rules and regulations are
not the embodiment of any contract with Schroeder and Nelson or any other party. The rules
and regulations are the result of policy decisions embraced by Ely and its Water Department
as governmental entities. Since the rules and regulations are not the result of any contractual
relationship with Schroeder and Nelson or any third party, this court's holding in Williams is
inapposite, and Schroeder and Nelson's reliance thereon is misplaced.
Charlie Brown is also not persuasive here. In Charlie Brown, the issue before this court
was what cause of action, if any, was created by the city's failure to follow and enforce its
own mandatory ordinance, the only apparent purpose of which was to protect subcontractors
and enable them to obtain payment from the developer. Charlie Brown, 106 Nev. at 505, 797
P.2d at 951. In its decision, this court reaffirmed its adherence to the general rule that
municipalities or governmental agencies are not liable for the failure to enforce ordinances or
for a dereliction of duties where the ordinance generally benefits the public at large Id. at 505,
797 P.2d at 950. However, this court held that an exception to the general rate of non-liability
exists when there is some special relationship between the governmental agency and a
particular individual or class of individuals. Id. at 505, 797 P.2d at 951. This court concluded
that the special relationship exception was applicable because the ordinance was designed
to benefit a particular class, i.e., subcontractors, and therefore, the city was not immune from
suit. Id. at 506, 797 P.2d at 951.
No such special relationship exists between Ely and its Water Department and Schroeder
and Nelson. Particularly, the rule that states that the Water Department has a duty to maintain
the water service lines is designed to benefit all of the residents of Ely since all Ely residents
receive water service from the Water Department; accordingly, the rules and regulations are
not designed to protect one particular class of individuals as in Charlie Brown.
For the foregoing reasons, Ely and its Water Department were entitled to summary
judgment pursuant to NRS 41.033, and thus, we affirm the district court's order.
____________
112 Nev. 79, 79 (1996) Valladares v. District Court
JOSE A. VALLADARES, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Washoe, and THE
HONORABLES CONNIE J. STEINHEIMER, District Judge, and STEVEN R.
KOSACH, District Judge, Respondents, and THE STATE OF NEVADA, Real Party
in Interest.
No. 26859
January 31, 1996 910 P.2d 256
Original petition for a writ of mandamus, or in the alternative, a writ of prohibition,
Defendant petitioned for writ of mandamus ordering judge to recuse herself from his
arraignment proceedings or, in the alternative, writ of prohibition ordering judge to refrain
from proceeding further. The supreme court held that: (1) term any pretrial matter includes
criminal arraignment for purposes of statute stating that any party who seeks to disqualify
judge must file affidavit specifying grounds for disqualification and affidavit must be filed
not less than three days before date set for hearing of any pretrial matter; (2) statute allows
only one window of opportunity in which to make a for cause challenge to disqualify judge;
and (3) judge who narrowly defeated defendant's attorney in hotly contested election for
judicial seat did not possess actual or apparent bias against attorney and, thus, did not need to
recuse herself.
Petition denied.
Lew Carnahan, Reno, for Petitioner.
Frankie Sue Del Papa, Attorney General, Robert E. Wieland, Deputy Attorney General,
Carson City; Richard A. Gammick, District Attorney, Washoe County, for Real Party in
Interest.
1. Mandamus.
Writ of mandamus is available to compel performance of act which the law requires as a duty resulting from office, trust, or station
or to control arbitrary or capricious exercise of discretion. NRS 34.160.
2. Mandamus.
Writ of mandamus will not be issued if petitioner has plain, speedy, and adequate remedy in the ordinary course of law. NRS
34.170.
3. Mandamus.
Mandamus is extraordinary remedy and decision as to whether petition will be entertained lies within discretion of court.
4. Prohibition.
Writ of prohibition will not issue if the court sought to be restrained has jurisdiction to hear and determine the matter under
consideration.
5. Judges.
Term any pretrial matter is to be read literally and literal reading of any pretrial matter includes criminal arraignment for
purposes of statute stating that any party who seeks to disqualify judge for bias must file affidavit specifying facts upon which
disqualification is sought and the affidavit must be filed not less than three days before date set for hearing of any pretrial matter.
NRS 1.235(l)(b).
6. Judges.
Arraignment is a hearing of a pretrial matter for purposes of statute stating that any party who seeks to disqualify judge for bias
must file affidavit specifying facts upon which disqualification is sought and the affidavit must be filed not less than three days before
date set for hearing of a pretrial matter. NRS 1.235(1)(b).
7. Judges.
Statute stating that any party who seeks to disqualify judge for bias must file affidavit specifying facts upon which disqualification
is sought and the affidavit must be filed not less than 20 days before date set for trial or hearing of case or not less than three days
before date set for hearing of any pretrial matter allows only one window of opportunity in which to make a for cause
challengeeither 20 days before date set for trial or three days before date set for hearing of pretrial matter, whichever occurs first.
NRS 1.235(l)(a), (b).
8. Judges.
Judge did not possess actual or apparent bias against defendant's attorney and, thus, did not need to recuse herself from defendant's
arraignment, despite fact that judge had narrowly defeated defendant's attorney in hotly contested election for judicial seat and had
distributed campaign letters containing disparaging remarks about attorney.
OPINION
Per Curiam:
On January 23, 1995, appellant Jose A. Valladares was charged by information with seven felonies arising from a single transaction
involving the sale of marijuana and methamphetamine. Valladares' arraignment was assigned to District Judge Connie J. Steinheimer. On
March 2, 1995, eight minutes before Valladares' arraignment was scheduled to begin, Valladares filed a motion to disqualify Judge
Steinheimer under NRS 1.230, NRS 1.235, and Canon 3E of the Nevada Code of Judicial Conduct, alleging Steinheimer had an actual or
apparent bias against his attorney, Lew Carnahan.
In 1992, Judge Steinheimer narrowly defeated Lew Carnahan in a hotly contested election for her judicial seat. In the course of that
campaign, Steinheimer distributed two separate campaign letters that contain disparaging remarks about Carnahan's ethics, honesty, and
competency. After Valladares filed his motion to disqualify, Judge Steinheimer immediately filed an order recommending that Valladares'
motion be denied; however, because of the nature of the motion, Steinheimer referred the determination of the issue to Chief Judge
Steven R.
of the issue to Chief Judge Steven R. Kosach. On March 3, 1995, Judge Kosach ruled that
Valladares' motion to disqualify Judge Steinheimer was untimely and that the matter should
proceed accordingly.
In his petition, Valladares contends that the district court improperly interpreted NRS
1.230 and NRS 1.235,
1
and argues that this court should issue a writ of mandamus ordering
Judge Steinheimer to recuse herself from his arraignment proceedings; or, in the alternative, a
writ of prohibition ordering Judge Steinheimer to refrain from proceeding further. We hold
that the district court properly interpreted NRS 1.230 and NRS 1.235 and therefore deny
Valladares' petition.
[Headnotes 1-3]
[A] writ of mandamus is available to compel the performance of an act which the law
requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an
arbitrary or capricious exercise of discretion. Hickey v. District Court, 105 Nev. 729, 731,
782 P.2d 1336, 1337 (1989). A writ of mandamus will not be issued, however, if petitioner
has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170.
Mandamus is an extraordinary remedy, and the decision as to whether a petition will be
entertained lies within the discretion of this court. Poulos v. District Court, 98 Nev. 453,
455, 652 P.2d 1177, 1178 (1982).
[Headnote 4]
A writ of prohibition is the counterpart of the writ of mandate and arrests the proceedings
of any tribunal exercising judicial functions, when such proceedings are without or in
excess of the jurisdiction of such tribunal.
__________

1
NRS 1.230 reads, in pertinent part:
1.230 Grounds for disqualifying judges other than supreme court justices.
1. A judge shall not act as such in an action or proceeding when he entertains actual bias or prejudice for
or against one of the parties to the action.
. . . .
5. This section does not apply to the arrangement of the calendar or the regulation of the order of
business.
NRS 1.235(1) reads, in pertinent part:
1.235 Procedure for disqualifying judges other than supreme court justices.
1. Any party to an action or proceeding pending in any court other than the supreme court, who seeks to
disqualify a judge for actual or implied bias or prejudice must file an affidavit specifying the facts upon
which the disqualification is sought. . . . Except as provided in subsections 2 and 3, the affidavit must be
filed:
(a) Not less than 20 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
functions, when such proceedings are without or in excess of the jurisdiction of such tribunal.
NRS 34.320. A writ of prohibition will not issue if the court sought to be restrained had
jurisdiction to hear and determine the matter under consideration. Goicoechea v. District
Court, 96 Nev. 287, 607 P.2d 1140 (1980).
Valladares' initial contention is that NRS 1.235 should be read in harmony with NRS
1.230, and because a criminal arraignment is merely the formal beginning of the proceedings,
it is similar to the arrangement of the calendar or regulation of the order of business
described in NRS 1.230(5). Accordingly, Valladares contends, an arraignment must be
deemed outside of the scope of NRS 1.235. We disagree.
[Headnote 5]
This court has specifically held that a criminal arraignment is not to be considered an
arrangement of the calendar or the regulation of the order of business as defined in NRS
1.230. Hoff v. District Court, 79 Nev. 108, 378 P.2d 977 (1963). Moreover, the term, any
pretrial matter, is to be read literally. Nevada Pay TV v. District Ct., 102 Nev. 203, 719 P.2d
797 (1986). We conclude that a literal reading of any pretrial matter includes a criminal
arraignment.
Valladares next argues that a criminal arraignment is not a hearing and is therefore not
subject to the time limitation of NRS 1.235(1). He contends that a hearing is an adversarial
proceeding in which evidence is presented and issues of fact or law are decided between the
parties. See Doran v. Doran, 287 N.E.2d 731 (Ill. App. Ct. 1972); Hunt v. Shettle, 452 N.E.2d
1045 (Ind. Ct. App. 1983); Buckholz v. Bd. of Adjustment of Brewer County, 199 N.W.2d 73
(Iowa 1972); State v. Boggs, 624 N.E.2d 204 (Ohio Ct. App. 1993); Professional Sports, Ltd.
v. Virginia Squires Basketball Club Ltd. Partnership, 373 F. Supp. 946 (W.D. Tex. 1974).
Valladares argues that an arraignment is a non-adversarial proceeding and therefore should
not be considered a hearing. We disagree.
[Headnote 6]
In Hoff, we stated that [w]e reject the contention that the orders made at [an] arraignment
were either ex parte or uncontested. 79 Nev. at 112, 378 P. at 978. During the course of the
arraignment, a plea is entered, a trial date is agreed upon, and when necessary, bail is set. All
of these important procedures affect the defendant's liberty interests. Clearly these are
contested adversarial matters heard before the court. We therefore hold that an arraignment
must be considered a hearing of a pretrial matter.
Valladares next argues that the disjunctive or connecting NRS 1 .235{1){a) and {b)
provides two different windows of opportunity in which to file a motion to disqualify a
judge for actual bias.
NRS 1.235(1)(a) and (b) provides two different windows of opportunity in which to file a
motion to disqualify a judge for actual bias. He argues that even though his motion was filed
less than three days before a hearing on a pretrial matter, it was still filed more than twenty
days before trial and must therefore be considered timely. We conclude that Valladares'
interpretation of NRS 1.235(1) is not in accordance with either legislative intent or stare
decisis.
[Headnote 7]
In Jeaness v. District Court, 97 Nev. 218, 626 P.2d 272 (1981), the respondent claimed
that SCR 48.1(3) should have been interpreted in the same manner that Valladares claims
NRS 1.235(1) should be interpreted. In rejecting that interpretation and imposing a
whichever occurs first construction, we stated:
First considered will be the matter of the timeliness of a peremptory challenge of a
judge made under Nevada Supreme Court Rule 48.1(3):
3. Except as provided in subsection 4, the peremptory challenge shall be filed:
(a) Not less than 30 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
Respondent contends that a challenge may be filed at any time so long as it is not
within thirty days of the trial date or during the three day period before any of a series
of pretrial hearings. While conceding the ambiguity of the language of the rule, we
reject this position as inconsistent with the policy behind the requirement that such
challenges be presented before contested proceedings have commenced. We interpret
the rule as precluding the acceptance of a peremptory challenge at any time after the
thirty days preceding the date set for trial or at any time after three days preceding the
date set for a hearing of any pretrial matter. In other words the time at which filing a
peremptory challenge is foreclosed is set in two ways: failing to file within thirty days
of the trial date, or failing to file within three days of the first pretrial hearing. Failure to
file within either of these time strictures results in waiver of the right to make a
peremptory challenge.
Id. at 219-20, 626 P.2d at 273-74. Though Jeaness interprets peremptory challenges under
SCR 48.1(3), we find this reasoning persuasive. The imposition of a whichever occurs first
standard onto NRS 1.235(1) insures that for cause challenges are initiated before any
adversarial proceedings are initiated. This will prevent a party from "testing the waters"
before making such a challenge, which would be unfair to the adversary and a waste of
the court's time and resources.
will prevent a party from testing the waters before making such a challenge, which would
be unfair to the adversary and a waste of the court's time and resources. This construction also
allows the court to schedule its proceedings more efficiently since it forces parties to make
their for cause challenges at the earliest possible date. Moreover, NRS 1.235(2) protects a
party from waiving all future for cause challenges by providing an additional window of
opportunity to make such a challenge when the case is assigned to a new judge after the time
requirements of NRS 1.235(1) have elapsed. We therefore conclude that NRS 1.235(1)(a) and
(b) allow only one window of opportunity in which to make a for cause challenge; either
twenty days before the date set for a trial or hearing of the case, or three days before the date
set for the hearing of any pretrial matter, whichever occurs first.
[Headnote 8]
Finally, Valladares argues that even if he is precluded from disqualifying Steinheimer
under NRS 1.235(1), the time restraints of NRS 1.235(1) are not applicable to Canon 3E(1) of
the Nevada Code of Judicial Conduct. Valladares argues that Steinheimer must therefore
recuse herself under Canon 3E(1) since she has an actual or apparent bias against Carnahan.
We have reviewed the record and conclude that Judge Steinheimer does not possess an actual
or apparent bias against Carnahan and therefore need not recuse herself.
To summarize, we conclude that the district court properly interpreted NRS 1.230 and
NRS 1.235 and that Judge Steinheimer does not possess an actual or apparent bias against
Carnahan. We therefore deny Valladares' petition for writ of mandamus; or, in the alternative,
petition for writ of prohibition.
____________
112 Nev. 84, 84 (1996) Hughes v. State
RICHARD ALAN HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26765
January 31, 1996 910 P.2d 254
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of
grand larceny, one count of possession of a stolen motor vehicle, one count of willfully
endangering a child as the result of neglect, and one count of conspiracy to commit grand
larceny. Second Judicial District Court, Washoe County; Jerry Carr Whitehead, Judge.
Defendant appealed, challenging conviction for willful endangerment. The supreme court
held that: (1) federal concurrent sentence doctrine would not be applied in Nevada; (2)
police officer's testimony as to procedures in connection with stolen motor vehicles was
relevant to endangerment count; and (3) evidence sustained endangerment conviction.
Affirmed.
Michael R. Specchio, Public Defender and Mary Lou Wilson, Deputy Public Defender,
Washoe County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County,
for Respondent.
1. Criminal Law.
Under concurrent sentence doctrine, appellate court will not decide issue if resolution of that issue in favor of appellant would
not reduce sentence.
2. Criminal Law.
Concurrent sentence doctrine, by which appellate court will not decide issue if resolution of that issue in favor of appellant
would not reduce sentence, would not apply in Nevada, because court's refusal to review conviction in any case could result in
collateral consequences to defendant, including use in future proceedings, subsequent habitual criminal sentencing enhancements, or
lengthening of sentence because good time credits are applied only to primary, not concurrent, sentences.
3. Infants.
Police officer's testimony regarding police procedure upon encountering person in possession of stolen vehicle was relevant to
charge of willfully endangering child as result of neglect, based on defendant's transporting of child in stolen vehicle, even if no such
encounter occurred in instant case, as testimony helped state establish that transportation of child in stolen vehicle places child in
situation where child may suffer physical pain or mental suffering. NRS 200.508(1)(a).
4. Criminal Law.
District court's decision to admit evidence will not be disturbed absent manifest abuse of discretion.
5. Infants.
Even without testimony of police officer as to procedures involved in encounters with persons in possession of stolen motor
vehicles, evidence was sufficient to sustain conviction of defendant who transported his daughter in stolen vehicle for willfully
endangering child as result of neglect. Daughter testified that she was passenger in stolen vehicle on several occasions and was present
when defendant stole keys to second vehicle, and jury could infer that exposing daughter to criminal activities caused daughter to
suffer unjustifiable mental suffering as result of neglect or placed daughter in situation where she could suffer physical pain or mental
suffering as result of neglect.
OPINION
Per Curiam:
On December 15, 1994, appellant Richard Alan Hughes was charged by an amended
criminal information with one count of grand larceny, two counts of possession of a stolen
motor vehicle, one count of willfully endangering a child as the result of neglect, and one
count of conspiracy to commit grand larceny. After a trial, the jury found appellant not guilty
of one of the two counts of possession of a stolen motor vehicle and guilty of all other counts.
On January 27, 1995, in a judgment of conviction, the district court sentenced appellant to
serve five years in the Nevada State Prison and pay a $1000 fine on the grand larceny charge;
two years in the Nevada State Prison on the possession of a stolen motor vehicle charge, to
run consecutively with the grand larceny sentence; one year in the Washoe County Jail on the
willful endangerment of a child charge, to run concurrently with the grand larceny sentence;
and one year in the Washoe County Jail on the conspiracy charge, to run concurrently with
the possession of a stolen vehicle sentence. The district court further ordered appellant to pay
restitution in the amount of $18,151.39. In his appeal, appellant challenges his conviction of
willful endangerment of a child.
The state filed a motion to dismiss this appeal on June 6, 1995. In its motion to dismiss,
the state urges this court to adopt the federal concurrent sentence doctrine and hold that
where the only issues raised on appeal would result in the vacation of one of two concurrent
sentences, the case does not present an actual controversy and it need not be heard on the
merits. Such a situation is presented in this case, as the sentence for willful endangerment is
running concurrently with the sentence for grand larceny.
[Headnote 1]
Some of the federal circuit courts of appeal have invoked the concurrent sentence doctrine
in cases where concurrent sentences have been imposed. Under the concurrent sentence
doctrine, the court will not decide an issue if the resolution of that issue in favor of the
appellant would not reduce his or her sentence. See United States v. Jeter, 775 F.2d 670, 682
(6th Cir. 1985), cert. denied, 475 U.S. 1142 (1986); United States v. Boyce, 594 F.2d 1246,
1252 (9th Cir.), cert. denied, 444 U.S. 855 (1979). The Supreme Court has held, however,
that a criminal case is moot only if it is shown that there is no possibility that any collateral
legal consequences will be imposed on the basis of the challenged conviction. Sibron v.
New York, 392 U.S. 40, 57 (1968). Many federal circuit courts of appeal have therefore
limited the application of the concurrent sentence doctrine to cases where "it is clear that
there is no collateral consequence to the defendant and the issue does not otherwise
involve a significant question meriting consideration," United States v. Hughes, 964 F.2d
536, 541 {6th Cir. 1992), cert. denied, 113 S. Ct. 1254 {1993), or "where there is no
substantial likelihood that the unreviewed conviction will adversely affect the defendant's
parole."
federal circuit courts of appeal have therefore limited the application of the concurrent
sentence doctrine to cases where it is clear that there is no collateral consequence to the
defendant and the issue does not otherwise involve a significant question meriting
consideration, United States v. Hughes, 964 F.2d 536, 541 (6th Cir. 1992), cert. denied, 113
S. Ct. 1254 (1993), or where there is no substantial likelihood that the unreviewed
conviction will adversely affect the defendant's parole. United States v. Vasquez-Vasquez,
609 F.2d 234, 235-36 (5th Cir. 1980); see also Close v. United States, 450 F.2d 152 (4th Cir.
1971), cert. denied, 405 U.S. 1068 (1972).
[Headnote 2]
Because this court's refusal to review a conviction in any case could result in a collateral
consequence to the defendant, we reject the use of the federal concurrent sentence doctrine in
this state. First, any conviction which appears on a defendant's criminal record could be used
in future proceedings. For example, if this case were resolved in favor of appellant, the
conviction of endangerment of a child, a gross misdemeanor, would be deleted from
appellant's criminal record. This could have an impact in the penalty phase of any future
conviction. Moreover, in the case of felony convictions bearing concurrent sentences, such
convictions could later be used as a basis for habitual criminal sentence enhancement.
Further, any good time credits that an inmate earns are applied to his or her primary sentence,
but are not applied to the concurrent sentence. Consequently, the actual time served on two
concurrent sentences will, in many instances, be longer than the actual time served on a single
sentence of the same length. Accordingly, we deny the state's motion to dismiss and will
consider the merits of this appeal.
[Headnotes 3, 4]
At trial, Officer Curry explained police officer procedure upon encountering a person in
possession of a stolen vehicle. Appellant contends that Officer Curry's testimony was
irrelevant because such a stop did not occur in this case. We disagree. Under NRS
200.508(1)(a), endangerment of a child occurs when any person
[w]illfully causes a child who is less than 18 years of age to suffer unjustifiable physical
pain or mental suffering as a result of abuse or neglect or to be placed in a situation
where the child may suffer physical pain or mental suffering as the result of abuse or
neglect.
Officer Curry's testimony helped the state establish that the transportation of a child in a
stolen vehicle places that child in a situation where he or she may suffer physical pain or
mental suffering.
suffering. Without such testimony, the jury might not have been fully aware of the
dangerousness of the situation in which appellant placed his daughter by transporting her in a
stolen vehicle. Consequently, such testimony was relevant to the child endangerment charge
and was properly admitted. Further, a district court's decision to admit evidence will not be
disturbed absent manifest abuse of discretion. Felder v. State, 107 Nev. 237, 241, 810 P.2d
755, 757 (1991). The district court did not abuse its discretion.
[Headnote 5]
Appellant further contends that Officer Curry's testimony was the only evidence presented
at trial to support a conviction of child endangerment. Therefore, because appellant contends
that such testimony was inadmissible, he argues that there was insufficient evidence to
convict him of the child endangerment charge. Our review of the record on appeal, however,
reveals that sufficient evidence was presented at trial, even without the testimony of Officer
Curry, to establish guilt beyond a reasonable doubt as determined by a rational trier of fact.
See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980). In particular, appellant's daughter
testified that she was a passenger in a stolen vehicle on a number of occasions and was
present when her father stole the keys to a second vehicle off a grocery cart. The jury could
reasonably infer from the evidence presented that by involving his daughter in such criminal
activities, appellant caused her to suffer unjustifiable mental suffering as a result of neglect or
placed her in a situation where she may suffer physical pain or mental suffering as the result
of neglect. Accordingly, we affirm the judgment of conviction entered against appellant.
____________
112 Nev. 88, 88 (1996) Proctor v. Castelletti
PENNY PROCTOR, Appellant, v. ATTILIO CASTELLETTI, Respondent.
No. 25366
February 29, 1996 911 P.2d 853
Appeal from a judgment of the district court in favor of appellant, pursuant to a jury
verdict, and award of attorney fees to respondent in a personal injury action. Eighth Judicial
District Court, Clark County; Sally Loehrer, Judge.
Motorist brought personal injury suit after read-end collision. After jury trial, the district
court entered judgment of $7,000, awarding defendant attorney fees and costs. Plaintiff
appealed. The supreme court held that: (1) evidence of a collateral source of payment for an
injury is not admissible in personal injury action for any purpose; and {2) trial court erred
reversibly in admitting evidence of disability insurance payments to plaintiff as
of payment for an injury is not admissible in personal injury action for any purpose; and (2)
trial court erred reversibly in admitting evidence of disability insurance payments to plaintiff
as probative of her malingering.
Vannah Costello Howard & Canepa, Las Vegas, for Appellant.
Joel F. Hansen & Associates and Bradley M. Ballard, Las Vegas, for Respondent.
1. Appeal and Error; Trial.
Trial court erred reversibly, in motorist's personal injury action arising from rear-end collision, in admitting evidence that motorist
had received disability insurance payments; though arguably probative of motorist's malingering, the evidence affected her right to fair
trial and right to be fairly compensated for her injuries from other driver's negligence, given that the issue of damages was sharply
contested and the damage award of $7,000 was slight in light of fact that other motorist was willing to pay $150,000 before trial.
2. Damages.
Evidence of collateral source of payment for an injury may not be admitted into evidence for any purpose; no matter how probative
the evidence of a collateral source may be, it will never overcome the substantially prejudicial danger of the evidence.
3. Damages.
Collateral source rule provides that if an injured party received some compensation for his injuries from a source wholly
independent of the tort-feasor, such payment should not be deducted from damages which plaintiff would otherwise collect from
tort-feasor.
OPINION
Per Curiam:
[Headnote 1]
As a result of an automobile accident in which respondent Attilio Castelletti rear-ended appellant Penny Proctor, Proctor allegedly
suffered extensive personal injuries. Proctor sued Castelletti. At trial, Castelletti sought to introduce evidence concerning payments Proctor
received from a collateral source: disability insurance. Proctor objected to the introduction of this evidence on the ground that it would
prejudice the jury's calculation of damages. However, the trial court allowed Castelletti to present the collateral source evidence on the
ground that it was probative of Proctor's malingering. The jury returned a verdict in favor of Proctor for $7,000. This amount was less than
the $150,000 Offer of Judgment that Castelletti presented to Proctor prior to trial. As a result, the district court awarded Castelletti
attorney fees and costs because she failed to recover more than the Offer of Judgment.
attorney fees and costs because she failed to recover more than the Offer of Judgment. NRS
17.115; NRCP 68; Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). Proctor appeals,
contending that the district court erred in admitting evidence of the collateral source payments
and awarding Castelletti attorney fees.
[Headnotes, 2, 3]
Whether collateral source evidence is relevant to an issue at trial other than damages is one
of first impression in Nevada.
1
We now adopt a per se rule barring the admission of a
collateral source of payment for an injury into evidence for any purpose. Collateral source
evidence inevitably prejudices the jury because it greatly increases the likelihood that a jury
will reduce a plaintiff's award of damages because it knows the plaintiff is already receiving
compensation.
We note that the United States Supreme Court adopted a per se rule against the
introduction of collateral source evidence because it believed that the prejudicial impact of
collateral source evidence inevitably outweighs the probative value of such evidence on the
issue of a plaintiff's credibility and motives. Eichel v. New York Central Railroad Co., 375
U.S. 253 (1963). We believe the Supreme Court's reasoning in that case to be persuasive here.
In Eichel, the Supreme Court was faced with a suit brought under the Federal Employers
Liability Act (FELA) wherein the defendant sought to introduce evidence that the plaintiff
had been receiving payments under the Railroad Retirement Act since his injury. Id. The
Supreme Court held:
[T]he likelihood of misuse by the jury clearly outweighs the value of this evidence.
Insofar as the evidence bears on the issue of malingering, there will generally be other
evidence having more probative value and involving less likelihood of prejudice than
the receipt of a disability pension.
Id. at 317 (footnote omitted). Other jurisdictions have applied the same rationale in barring
the admission of evidence of collateral source benefits for the purpose of showing that a
plaintiff was malingering. See, e.g., Reinan v. Pacific Motor Trucking Company, 527 P.2d
256 (Or. 1974).
Evidence of malingering is arguably probative. However, as the Supreme Court reasoned
in Eichel, evidence of payments from a collateral source is unavoidably too prejudicial to
be admitted for such a flimsy purpose.
__________

1
The collateral source rule provides that if an injured party received some compensation for his injuries from a
source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the
plaintiff would otherwise collect from the tortfeasor. Hrnjak v. Graymar, Inc., 484 P.2d 599, 602 (Cal. 1971).
from a collateral source is unavoidably too prejudicial to be admitted for such a flimsy
purpose. There is an ever-present danger that the jury will misuse the evidence to diminish
the damage award. In sum, collateral source evidence should not be admitted because of the
potential that the jury will misuse the evidence in a manner that is prejudicial to the plaintiff.
It should not matter that the stated purpose of introducing the evidence is, arguably,
probative. The excessive prejudicial nature of the evidence mandates its exclusion. That is, no
matter how probative the evidence of a collateral source may be, it will never overcome the
substantially prejudicial danger of the evidence.
Castelletti urges that this rule simply does not comport with NRS 48.025 and NRS 48.035
because it removes the trial court's discretion over the admissibility of evidence. While it is
true that this rule eviscerates the trial court's discretion regarding this type of evidence, we
nevertheless believe that there is no circumstance in which a district court can properly
exercise its discretion in determining that collateral source evidence outweighs its prejudicial
effect.
We hold that it was error for the district court to admit evidence of Proctor's receipt of
disability insurance payments. We conclude that this error affected the substantial rights of
Proctor, her right to a fair trial and her right to be fairly compensated for her injuries resulting
from Castelletti's negligence, given that the issue of damages was sharply contested and the
damage award was small in light of what Proctor sought to recover and Castelletti was
willing to pay. Accordingly, we reverse the $7,000 judgment in favor of Proctor and the
award of attorney fees and costs to Castelletti and remand the case for a new trial.
Springer, J., concurring:
I concur in the result only.
____________
112 Nev. 91, 91 (1996) Simmons v. State
BRIAN SIMMONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24932
February 29, 1996 912 P.2d 217
Appeal from judgment of conviction, pursuant to a jury verdict, of one count of
first-degree murder with use of a deadly weapon, one count of burglary, and one count of
possession of an explosive device.
explosive device. Third Judicial District Court, Lyon County; Archie E. Blake, Judge.
The supreme court, Steffen, C. J., held that: (1) defendant's friend who received telephone
call from defendant that was recorded by wiretap did not act as a government agent; (2) book
concerning witchcraft and expressing satanic themes could be seized under plain view
doctrine; (3) neighbor's testimony about not hearing anything on night of murder was not
sufficient evidence on which to base granting of new trial; and (4) evidence was sufficient to
support verdict.
Affirmed.
William G. Rogers and Mark E. Haines, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney,
and Keith Loomis, Special Deputy District Attorney, Lyon County, for Respondent.
1. Criminal Law.
Defendant is denied his Sixth Amendment right to counsel if, once the right attaches, government agents deliberately elicit
incriminating statements in absence of defendant's attorney. U.S. Const. amend. 6.
2. Criminal Law.
For purposes of determining whether defendant's right to counsel has been violated when alleged government agent elicits
incriminating of whether person is state agent must be made under facts and circumstances of each case. U.S. Const. amend. 6.
3. Criminal Law.
incriminating statements from defendant, issues concerning exigent circumstances, consent, and whether individual is acting as agent
for police present mixed questions of fact and law. U.S. Const. amend. 6.
4. Criminal Law.
incriminating statements from defendant, defendant's friend who had telephone conversation with defendant that was wiretapped and
recorded was not agent of state where friend did not initiate call from defendant, there was no quid pro quo resulting from friend's
cooperation with the police, and police did not coerce friend into receiving call or continuing his conversation with defendant. U.S.
Const. amend. 6.
5. Searches and Seizures.
Book concerning witchcraft and expressing satanic themes could be seized pursuant to plain view doctrine, regardless of whether
views expressed in book were protected by First Amendment, where police did not seize book because its contents were
criminal but because its contents were relevant to murder that was under investigation.
not seize book because its contents were criminal but because its contents were relevant to murder that was under investigation. U.S.
Const. amend. 1.
Standard for probable cause in seizing material presumptively protected by First Amendment is no higher than for any other
material. U.S. Const. amend. 1.
7. Criminal Law.
Even if suppressed testimony of murder victim's neighbor that he had not heard gun shots on night of murder could be categorized
as newly discovered evidence that might entitle defendant to new trial, it was not of such quality that, when considered by jury, would
probably result in different outcome if new trial were permitted where evidence had been presented to jury that neighbors heard
nothing unusual, and physical evidence overwhelmingly indicated that victim was shot in his residence, rather than being shot
somewhere else and then taken to his home.
8. Homicide.
Evidence was sufficient to support first-degree murder conviction where three people provided corroborating testimony about the
defendant's plans to murder, defendant's minor sister whose testimony allegedly supported defense actually gave four different versions
of her story, and expert testimony provided basis for jury to conclude that defendant used gun kept in his parents' closet to kill victim.
OPINION
By the Court, Steffen, C. J.:
Appellant Brian Simmons, a friend and high school classmate of murder victim Jason Kopack, challenges his jury convictions of
first-degree murder with use of a deadly weapon, burglary, and possession of an explosive device, on Fourth and Sixth Amendment
grounds, and also contends that his new trial motion should have been granted because the State suppressed evidence favorable to his
defense. Concluding that Simmons' contentions are without merit, we affirm.
FACTS
On the morning of February 23, 1993, fifteen-year-old Jason Kopack was murdered in Lyon County, Nevada. The Lyon County
Sheriff's office investigation of the crime scene indicated no signs of a struggle, but the victim's body revealed an oval-shaped wound in the
back of the left shoulder. The investigating officers initially believed that Jason had been mortally wounded with a crowbar or blunt
instrument and began searching the premises for such an implement. During the course of the investigation, officers contacted Kopack's
neighbors for additional clues. One neighbor, a Mr. Bradley, who lived only thirty feet from the victim's trailer, reported that he
had heard nothing out of the ordinary during the previous night.
from the victim's trailer, reported that he had heard nothing out of the ordinary during the
previous night. There was no written report generated from this interview, and the substance
of the conversation with Bradley was not relayed to the defense.
X-rays of the victim revealed the presence of several #6 shotgun pellets, and plastic
wadding from a 20-gauge shotgun was recovered from the body during the subsequent
autopsy. Jason had apparently been shot from a distance of two to eighteen feet at around
1:30 a.m., the same time that Jason's father was startlingly awakened by what he thought was
wind-related noise or a cat jumping on the roof of a shed.
At school during the morning of the same day, Simmons, who had reportedly become
preoccupied with Satanism, mutilation, rape and killing,
1
attended school and told or
suggested to three friends that he had killed Jason. Simmons' friend, Mike O. (hereafter
Mike), testified that Simmons explained the details of his activities leading up to the
shooting, and admitted to Mike O. that he, Simmons, had shot Jason. Another of Mike O.'s
acquaintances, Dan, testified that Simmons told him that there were now only four left on the
list of five that Simmons had earlier told Dan that he intended to kill. This corroborated Mike
O.'s testimony indicating that Simmons had told him, about two weeks before the killing, that
Simmons had made a list of five people he planned to kill, including the victim, Jason. Dan
also testified overhearing Simmons tell Mike O. that I did it, I did it, and that he was so
close he could not have missed. In addition, Dan overheard Simmons telling Mike O. that he
wanted to tell everybody, but knew that he would be caught if he did.
Another friend by the name of Michael B. had been previously advised in some detail by
Simmons of his plans to murder a long-hair (the victim had long hair), and that he hoped to
do it by staying awake and driving his mother's car to the victim's house if it had enough
gasoline. On the same morning, Michael said he saw Simmons approaching and asked him
why he was smiling. Simmons told him that he would soon find out. These three witnesses
reported Simmons' comments to sheriff's officers.
2

__________

1
In handwritten journals admitted into evidence, Simmons had copied satanic invocations from books and
expressed his desire to please Satan by murdering and mutilating people he knew. He reportedly told the victim's
girlfriend that if Satan told him to kill someone, including Jason, he would do so. Simmons shared his murder
plans with other friends, and told his friend, Dan, that he had a list of five individuals that he planned to kill in
the near future.

2
We will later respond to some of the concerns expressed by our dissenting colleague, Justice Springer. The
dissent concludes that there is insufficient evidence to satisfy the criminal burden of proof against Simmons.
First, we
On February 25, 1993, sheriff's deputies searched Simmons' residence pursuant to a search
warrant. In Simmons' closet, they found a recently-fired shotgun containing an expended
20-gauge Federal Firearms #6 shotgun shell (with a non-Federal primer).
3
They also
discovered in a plastic bag wet shoes with a tread design resembling a sheriff's deputy's
description of the tread imprinted on the snow near the entry to Jason's trailer. Additionally,
the officers seized a pack of filterless cigarettes, a bottle of oil allegedly used in an attempt to
burn down the Kopack residence, journals with Satanic symbols, books on Satanism,
including the book Witchcraft, and a derringer. The search also uncovered a pipe bomb,
which was later disposed of by a bomb squad.
Simmons was subsequently arrested and charged with murder with the use of a deadly
weapon, burglary, and possession of an explosive device. Appointed counsel invoked
Simmons' Sixth Amendment right not to be questioned without counsel, and a notation to that
effect was entered on Simmons' jail folder.
__________
note that Simmons has not challenged the sufficiency of the evidence. Second, when such a challenge is urged on
appeal, [t]he relevant inquiry for the court is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). Unfortunately, the dissent turns the appropriate standard of review on its head,
overlooking important matters of evidence and testimony, and then viewing the evidence in a light most
favorable to the defendant.
As an illustration, the dissent maintains that Simmons' first-degree murder conviction depends almost entirely
on the testimony of his teen-age acquaintance, Mike,' who claims that Simmons admitted to him that he shot and
killed Jason Kopack. Importantly, the dissent fails to even mention the testimony of Dan, noted above in the
text of this opinion. Dan was a recipient of the Nevada Scholar Award for placing in the top five percent in the
ACT college entrance exam. Although a classmate of Simmons', Dan testified that he first met Simmons and
Mike O. in a choir class during the second semester of their senior year. Dan testified that he never socialized
with Simmons, Mike O. or the victim, Jason Kopack, either outside or inside the school. It could be strongly
argued that the conviction in this case could be sustained on the testimony of Dan alone. In any event, there is
not the slightest hint that Dan was anything other than a truthful, disinterested witness.
The dissent appears to believe that Mike O. may have framed Simmons for Jason's murder. Of course, one of the
problems with such a theory is that any such frame-up would have to include a conspiracy between Mike O.,
Michael B., and Dan. How could the dissent otherwise explain the corroborating testimony of Dan and Michael
B.? There is simply no evidence of a conspiracy in the record.

3
Simmons explained that he went shooting in an open field the previous month and after firing the gun once, he
could not remove the unejected shell, which was still in the gun when the police seized it.
While Simmons was in jail, Simmons' girlfriend, Jessica, and one of his best friends (Mike
O.), talked at school. Mike O. testified that Jessica told him that Simmons wanted to talk to
him by telephone. After school, Mike O. asked his father what he should do, and his father
told him to report the matter to Officer John Arndell at the Lyon County Sheriff's office. The
officers, desiring to record Simmons' version of events, obtained judicial approval to intercept
the telephone conversation after the court found probable cause to believe that Simmons
would discuss the pending charges. Mike O. testified that he consented to the intercept [t]o
seein case [Simmons] said anything about Jason, and just for my protection and my
family's protection. Mike O., his father and Officer Arndell testified that Mike O. was told
that he did not have to accept Simmons' call and that no agreement concerning lenient
treatment for Mike O.'s prior substance abuse convictions was ever mentioned. Prior to the
conversation, Officer Arndell instructed Mike O. not to intentionally seek to obtain
incriminating evidence from Simmons, but rather to just be a listening post. During the
conversation, however, Officer Arndell did nothing to restrain Mike O. from eliciting
incriminating information.
In calling from the jail, Simmons knew that the conversation was subject to interception by
jail authorities. During his call to Mike O., Simmons professed innocence and vowed revenge
against the conspirators who had caused his plight. Apart from threatening people who had
gone to the police and speaking in threatening tones, Simmons never made an incriminating
remark. He mentioned that only he, Satan and God knew what actually happened.
Occasionally, Simmons would question Mike O. on how long someone could survive a
gunshot wound or a suffocation or other issues involving death. These somewhat desultory
statements were uttered after Simmons perused the coroner's reports. Simmons appeared to be
trying to contrast facts that he believed were inconsistent with his arrest. Aside from these
remarks, the conversation was a typical one between two friendly teenagers.
4

Before trial, Simmons moved to prohibit the State from admitting the recorded telephone
conversation in evidence. Simmons insists that the State knowingly violated his Sixth
Amendment right to counsel by recording the conversation. Specifically, Simmons
underscores the first excerpt where Mike O. states, Did Jason move or anything? as an
example of Mike's effort to elicit incriminating information.
__________

4
Excerpts of the conversation between Simmons and Mike O. are at issue on appeal and are set forth under
Appendix A to this opinion.
The district court denied Simmons' motion, finding that: (1) the State's involvement with
Mike O. was not sufficient to create an agency relationship; (2) there was no agreement
between the State and Mike O.; (3) the State did not instruct Mike O. to elicit information
from Simmons; (4) Mike O. voluntarily chose to receive Simmons' call, and (5) Mike O.
never elicited incriminating information during the intercepted communication. Therefore,
the district court concluded that Simmons did not show that the statements were deliberately
elicited from Simmons by an agent of the State.
In closing argument, the State used the conversation to depict Simmons as threatening and
anxious to inflict punishment on those who conspired to put him in jail. Additionally, the
State posited to the jury:
[I]s that tone that you heard on that conversation, is that consistent with an innocent boy
wrongfully accused of a serious crime? Absolutely not. That tone is consistent with a
person who has committed a murder and is doing everything he can to desperately work
his way out of it.
Simmons also sought, unsuccessfully, to have the district court suppress all items taken
from his home, including the book Witchcraft, from which the State read excerpts at trial to
demonstrate that Simmons was involved in Satanistic rituals. In denying Simmons' motion to
suppress, the district court found that all items had been properly seized and removed from
Simmons' house and that the book Witchcraft was both in plain view and constituted relevant
evidence.
At trial, Simmons did not deny telling his friends of his hit list, but testified that he
referred to the names on the list only as characters in the game Dungeons and Dragons. He
insisted that all of his talk about Satan and Satanism was also simply part of the game.
Simmons also testified that his friends lied about him telling them that he killed Jason.
During trial, the State informed the defense, for the first time, that a video tape recording
of the crime scene had been made on the morning of Jason's death. This tape was admitted
into evidence and, among other things, the judge noted the sounds of dogs barking in the
background (presumably dogs belonging to Bradley, the neighbor who told investigators that
he had not heard anything unusual).
Soon after the jury commenced its deliberations, the jurors submitted a note to the judge
asking, Did anyone hear the dog barking the night of February 23 in the area of the
KOPACK residence? The court discussed the question with counsel and all agreed that the
question would not be answered. After deliberating for a total of ninety minutes, the jury
found Simmons guilty of all charges.
ating for a total of ninety minutes, the jury found Simmons guilty of all charges.
Simmons was sentenced to life in prison without the possibility of parole for his
first-degree murder conviction, and received an identical consecutive sentence for use of a
deadly weapon in the murder. Simmons was also sentenced to a ten-year term for burglary
and a three-year term for possession of an explosive device, both of which are to run
concurrently with the life sentences.
After his convictions and sentencing, Simmons discovered that Bradley had been
interviewed by investigators on the morning of Jason's murder. At a post-trial hearing on a
motion for a new trial based on newly discovered evidence, Bradley testified that he lived
approximately thirty feet away from the Kopack's trailer, that he slept on the side nearest to
his neighbor's trailer, and that his dogs barked quite a bit. Moreover, Bradley testified that
he had not heard anything during the night of Jason's murder and that had anything occurred,
the dogs probably would have reacted by scratching on his door. The district court, finding
that there was ancillary evidence at trial indicating that no neighbors had heard or seen
anything unusual that night, that the defense had sufficient opportunity and funds to interview
Bradley before the conclusion of the trial, and that the evidence probably would not have
changed the outcome, denied Simmons' motion for a new trial.
On appeal, Simmons assigns prejudicial error to the district court's rulings (1) refusing to
exclude the taped conversation between Simmons and Mike O.; (2) admitting the book
Witchcraft; and (3) denying his motion for a new trial.
DISCUSSION
Whether the district court's admission of Simmons' intercepted telephone conversation
violated Simmons' Sixth Amendment right to counsel.
The United States Constitution provides that every person accused in a criminal
prosecution shall enjoy the right to have the Assistance of Counsel. U.S. Const. amend. VI.
This right extends to State prosecutions under the Due Process Clause of the Fourteenth
Amendment. This court has stated, [a]t the very least, the prosecutor and police have an
affirmative obligation not to act in a manner that circumvents and thereby dilutes the
protection afforded by the right to counsel.' Coleman v. State, 109 Nev. 1, 4, 846 P.2d 276,
278 (1993) (quoting Maine v. Moulton, 474 U.S. 159, 171 (1985)).
[Headnotes 1-3]
A defendant is denied his Sixth Amendment right to counsel if, once the right attaches,
government agents "deliberately elicit" incriminating statements in the absence of
defendant's attorney.
once the right attaches, government agents deliberately elicit incriminating statements in
the absence of defendant's attorney. Massiah v. United States, 377 U.S. 201, 206 (1964); see
also Emmons v. State, 107 Nev. 53, 58, 807 P.2d 718, 721 (1991) (quoting Thompson v.
State, 105 Nev. 151, 156, 771 P.2d 592, 596 (1989) (incriminating statements made to
jailhouse informant acting on his own initiative and without agreement with State may be
used without violating state or federal constitutional rights)). The determination of whether a
person is a State agent must be made under the facts and circumstances of each case.
United States v. Taylor, 800 F.2d l012, 1015 (10th Cir. 1986). Moreover, [i]ssues
concerning exigent circumstances, consent, and whether an individual is acting as an agent
for the police present mixed questions of fact and law. State v. Miller, 110 Nev. 690, 694,
877 P.2d 1044, 1047 (1994) (citing Hayes v. State, 106 Nev. 543, 550 n. 1, 797 P.2d 962, 966
(1990)).
[Headnote 4]
The State argues that Mike O. was not a State agent and that any incriminating statements
Simmons made to his friend could therefore be used as evidence without violating Simmons'
right to counsel. The State supports its position by first noting that law enforcement officers
did not invite Mike O. to make the call. It was only after Mike O. found out from Simmons'
girlfriend that Simmons wanted to talk to him that Mike O. informed the police of the
situation. Second, at the time of the intercept, Mike O. had the option whether to pick up the
receiver and accept the call from Simmons, with no pressure from the State. Third, the State
did not enter into any type of agreement with Mike O. or instruct him how to proceed (other
than telling him not to seek incriminating information from Simmons). The State thus
concludes that substantial evidence supports the district court's finding that Mike O. was not
an agent of the State and that this finding should not be disturbed on appeal.
Simmons presents the contrary argument that when Mike O. invited the police into his
home to surreptitiously monitor the call in order to inculpate him, and thereafter accepted
Simmons' call knowing that it would be intercepted by the police, Mike O. entered into an
agreement with the police that made him an agent of the State. See Holyfield v. State, 101
Nev. 793, 798-804, 711 P.2d 834, 837-41 (1985) (upon agreeing to foster police efforts to
inculpate Holyfield, [Jacobs] became an agent of the police (for Fifth Amendment purposes)
because police placed him near Holyfield to seek incriminating statements and expected him
to do so (because of his past experience as an informant and his relationship with Holyfield)
even though police told him not to question Holyfield). Moreover, Simmons contends that a
quid pro quo agreement was unnecessary to elevate Mike O. to the status of an agent.
of an agent. See State v. Currington, 746 P.2d 997, 1003-04 (Idaho Ct. App. 1987) (lack of
monetary compensation notwithstanding, informant was deemed an agent whose acts were
attributable to the State where informant followed the State's instructions in recording
defendant, used State equipment to record, and promptly returned recording to the State).
Simmons nevertheless notes that despite the lack of necessity to show that Mike O. was
receiving a quid pro quo from the police, Mike O. was a juvenile probationer who was
familiar with the justice system and potentially had something to gain through cooperation
with law enforcement authorities.
Simmons also cites the case of State v. Mattatall, 525 A.2d 49 (R.I. 1987), cert. denied,
Mattatall v. Rhode Island, 506 U.S. 838, 113 S. Ct. 117 (1992), where the Rhode Island
Supreme Court affirmed the appellate court's reversal of a trial court's finding that the
informant was not a government agent. In Mattatall, an informant voluntarily informed police
of defendant's actions, and subsequently invited the police to intercept a conversation in
which the informant questioned the defendant about the charges. Id. Since Mike O. also
initially contacted the police about Simmons, invited the police to listen in on the
conversation and posed numerous questions to Simmons likely to elicit incriminating
remarks, Simmons deduces that Mike O. must be considered a State agent.
We disagree and conclude that the district court did not err in determining that Mike O.
was not an agent of the State. First, substantial evidence supports the district court's finding
that Mike O. did not initiate the call from Simmons. Mike O. testified that Simmons'
girlfriend told him that Simmons wanted to call him, and Mike O., apparently concerned
about such a conversation, asked his father about the course of action he should follow.
Second, there is no evidence of any quid pro quo resulting from Mike O.'s cooperation with
the police. Mike O. voluntarily informed the police about the pending call. In addition, the
police, Mike O. and his father testified that no agreement materialized between Mike O. and
the police in exchange for his cooperation and consent to intercept the phone call. Finally,
there is no evidence that the police coerced or baited Mike O. into receiving Simmons' phone
call or continuing in his conversation with Simmons. Prior to the phone call, the police only
requested that Mike O. refrain from seeking to elicit incriminating information from
Simmons. Mike O. voluntarily spoke to Simmons and no evidence suggests that his
continuing conversation with his incarcerated friend was anything but voluntary. See Taylor,
800 F.2d at 1016 (absence of quid pro quo and government instructions supported conclusion
that informant was not a State agent).
Recently, in State v. Miller, 110 Nev. 690, 877 P.2d 1044 (1994), this court discussed
agency in the context of the Fourth and Fourteenth Amendments. In Miller, a twelve-year-old
baby-sitter suspected illicit drug activity in the home where she was employed. The
baby-sitter called 911 and indicated that she had found what she thought was possibly
drugs. Id. at 695 n.2, 877 P.2d at 1048. An officer soon arrived at the home and asked, in an
effort to confirm or allay the baby-sitter's fears, if he could see what she was calling about.
The baby-sitter directed the officer to a bedroom where she secured a grocery bag and handed
it to the officer. The officer immediately observed that the bag contained baggies of
marijuana. Id. at 695-96, 877 P.2d at 1048.
In Miller, we recognized that the baby-sitter was acting out of respect for the law and her
concern over the possibility of tending small children in an environment where illicit drugs
were kept. Moreover, consistent with the instant case, the baby-sitter sought out the police
and law enforcement authorities never attempted through any means to elicit her cooperation.
Id. We concluded:
It was in the highest tradition of good citizenship when Jennifer [the baby-sitter],
despite her fears, had the courage and good sense to summon the police for help in
determining whether her suspicions were well-founded. As observed by the Court in
[Coolidge v. New Hampshire, 403 U.S. 443, 488-89, reh'g denied, 404 U.S. 874
(1971)], it is in no sense the policy of the Fourth or Fourteenth Amendments to
discourage citizens from assisting in the apprehension of criminals.
Id. (footnote omitted).
On a similar vein, we note that Mike O. contacted the police out of concern for his and his
family's safety and after a contemplative discussion with his father. Additionally, we note that
the police never attempted to coerce Mike O.'s cooperation; to the contrary, they carefully
explained that it was only with his consent that they would proceed with the intercept. As
with the Fourth Amendment, the policy of the Sixth and Fourteenth Amendments is not to
discourage citizens from assisting in the apprehension of criminals. See Coolidge v. New
Hampshire, 403 U.S. 443 (1971); Miller, 110 Nev. at 696-97, 877 P.2d at 1048-49. For these
reasons, we conclude that the district court did not err in determining that Mike O. was not
acting as an agent of the police. Having concluded that Mike O. was not an agent of the State,
we logically also conclude that Simmons' Sixth and Fourteenth Amendment right to counsel
was not violated. See Massiah v. United States, 377 U.S. 201 (1964); Emmons v. State, 107
Nev. 53, 807 P.2d 718 (1991).
Whether the district court's admission of the book Witchcraft violated Simmons' Fourth
Amendment right to protection from unreasonable searches and seizures.
[Headnote 5]
Simmons contends that the book Witchcraft was illegally seized and should not have been
admitted at trial because the book was not listed on the search warrant and neither the
plain-view doctrine nor the good-faith exception applies (or has only limited application) to
material protected by the First Amendment. Because the satanic themes expressed in
Witchcraft are protected by the First Amendment and the police did not have any rational
nexus between satanism and Jason's death prior to the search, Simmons maintains that the
warrant requirement that items to be seized be listed on the warrant should be strictly
construed and that the police improperly engaged in the ad hoc seizure of the book.
[Headnote 6]
We disagree. The standard for probable cause in seizing material presumptively
protected by the First Amendment is no higher than any other material. See New York v. P.J.
Video, 475 U.S. 868, 874-75 (1986). In the instant case, police did not seize the book because
its materials were criminal, but rather because the contents of the book were relevant to the
crime under investigation. See Bennett v. State, 106 Nev. 135, 140, 787 P.2d 797, 800 (1990)
(poetry in plain view detailing defendant's desire to kill was lawfully seized). Consequently,
we conclude that the district court did not err in finding that the book had evidentiary value
and was validly seized pursuant to the plain-view doctrine.
Whether the district court erred in denying Simmons' motion for a new trial.
[Headnote 7]
Finally, Simmons contends that the State illegally suppressed evidence of the interview
with the victim's neighbor, Bradley, on the morning of the murder. See Wallace v. State, 88
Nev. 549, 550, 501 P.2d 1036, 1037 (1972) (State may not withhold evidence that is relevant
to the charge and prima facie favorable to the accused). Simmons asserts that this evidence
would have been reasonably likely to have affected the outcome of the trial. Simmons
observes that when Bradley told investigators that he had heard no shots fired the night of the
incident, the investigators more vigorously attempted to find a rock, pipe, or other blunt
instrument that may have been used to kill Jason. Simmons surmises that this evidence may
have had a strong impact on the jury since, during deliberations, the jury directed a question
to the judge concerning whether anyone had heard the dogs barking on the night of
Jason's murder.
the judge concerning whether anyone had heard the dogs barking on the night of Jason's
murder. Noting that Jason's father, an experienced veteran, did not smell gun powder at the
time of the shooting and that there was no blood splattering which normally occurs with
shotgun blasts, Simmons concludes that the jury may have rejected the State's theory that
Jason was shot in the Kopack's residence.
The State maintains that Bradley's statement was immaterial because evidence was
presented to the jury that the neighbors heard nothing unusual that night. Additionally, the
State notes that the physical evidence overwhelmingly indicated that Jason was shot at his
residence. There were no blood trails from the large gunshot wound, and when found, the
victim was shoeless and wrapped in a blue blanket. Blue fibers matching the blanket were
found on the shotgun wadding retrieved from Jason's body, and the lividity in Jason's feet was
consistent with death occurring where the body was discovered.
Moreover, the State points to the testimony of Simmons' friends relating Simmons'
communications regarding both his murderous plan and the act of killing Jason at his
residence. And finally, the State disclaims responsibility for suppressing the evidence where
the defendant had access to the same information and, with the exercise of diligence, could
have interviewed Bradley before trial. The State emphasizes that the district court properly
found that its authorization of investigative funds in the amount of $14,000 was ample for the
defense to persevere in its efforts to interview Bradley beyond the two unsuccessful attempts
made prior to or during trial.
We conclude that the district court was correct in determining that evidence of Bradley's
statements to police claiming to have heard nothing unusual during the period including the
time frame of the murder is not sufficient to merit a new trial based on newly discovered
evidence. The relevance of such testimony applies only to the question of whether or not
Jason was actually killed at his residence. As emphasized by the State, substantial evidence
supports the conclusion that Jason was shot at his home. Therefore, we need only note that
Bradley's statement, even if deemed to be properly categorized as newly discovered evidence,
would not satisfy the requirement that the evidence be of such quality that, when considered
by the jury, would probably result in a different outcome upon retrial. See Sanborn v. State,
107 Nev. 399, 406, 812 P.2d 1279, 1284-85 (1991).
Whether there was sufficient evidence to support the jury's guilty verdict.
[Headnote 8]
We address this subject despite it not being raised as an issue on appeal, because our
dissenting colleague, Justice Springer, concludes that the evidence was insufficient to
support Simmons' conviction.
on appeal, because our dissenting colleague, Justice Springer, concludes that the evidence
was insufficient to support Simmons' conviction. We first note, as discussed in some detail in
footnote 2, that our colleague seriously errs in concluding that this case stands or falls on the
testimony of Mike O. The dissent has simply failed to recognize the corroborating testimony
of Dan and Michael B. The combined testimony of these three witnesses alone would
constitute sufficient evidence upon which to base a conviction.
5

The dissent states that Simmons' younger sister testified that on the morning of the murder
she saw Simmons, once at 12:30 a.m. and once at 1:30 a.m. The dissent thus concludes that
if Cheryl's story could be accepted, there is no way that Simmons could have driven 30
miles round trip to commit the killing. Unfortunately, the dissent overlooks the fact that
Cheryl gave four different versions of her observation of her brother. Justice Springer adopts
only the fourth version, a scenario obviously deemed incredible by the jury. Cheryl's first
story was that she did not get up at all on the night of February 23rd. Thus, under this version,
she could not possibly have seen Simmons at any time relevant to the murder of Jason
Kopack. During cross-examination, Cheryl related her second and third versions, which
included an admission that she had told a friend that she got up at 2:00 a.m. to get something
to eat. The sister then stated that she saw her brother at 1:30 a.m., a rather interesting
accomplishment if she did not arise until 2:00 a.m. Thereafter, on re-direct, Cheryl delivered
her fourth story of the night's events, namely that she was up at 12:30 a.m. and 1:30 a.m. and
saw Simmons on both occasions. The dissent adopted the fourth and final version. In addition
to the clear inconsistencies in Cheryl's testimony, the jury may not have been impressed with
the thirteen-year-old's story about getting up to put her hamster in the den, and then later
arising to get a drink of water, rather than something to eat as earlier stated. It is noted that
this was also a school night. In any event, we are unaware of any appellate principle that
would permit this court, from the cold record, to elect to disregard the factual findings of the
jury in favor of our own.
__________

5
Another telling aspect of Dan's testimony, is that he overheard Simmons tell Mike O. that he would be
paralyzed for sure. Such a statement could strongly infer knowledge of a severe injury to Jason's spinal cord or
back, like a shotgun blast to that part of the victim's anatomy. Moreover, Simmons was speaking of such details
at about 7:40 a.m., only a little more than an hour and a half after the first officer arrived at the scene of the
murder. It is most unlikely that Simmons would have heard any details about the murder, or even the murder
itself, at such an early hour. Indeed, Dan testified that he did not find out about the murder until right before
noon of that same day.
Our dissenting colleague is also troubled by the fact that David Kopack, Jason's father, and
a Vietnam veteran, testified that on the night of the murder he was awakened at 1:23 a.m. by a
loud noise which he thought may have been a cat jumping on the roof of the shed next to his
bedroom window, or perhaps something else blowing against the shed. Our colleague
postulates that a shotgun blast should have been heard by everyone living in such a small
place. Noting first that Mr. Kopack was sleeping when he heard the noise, it does not
appear to be at all unusual that he could not identify the precise noise that awakened him. In
any event, the jury could easily have concluded that anyone aroused from a sound sleep by a
noise, would have difficulty identifying the precise nature of the sound while in a groggy and
confused state of awakening.
Moreover, the dissent notes that after being awakened by the noise, the father walked out
into the living room and did not detect the odor of gunpowder. At no time did David Kopack
testify that he walked into the living room after being awakened by the noise. At best, his
testimony was unclear as to whether he even left his bedroom. He did look out his bedroom
window after hearing the noise, but indicated that he did not know whether he went to the
front door. Since there was a curtain between the bedroom and the rest of the trailer, that
alone may have accounted for Mr. Kopack's failure to smell an odor of gunpowder.
6

The dissent also views the failure of Sonja Sacks to see tire tracks in the snow in the area
of the school where Simmons assertedly parked his mother's car as another basis for
concluding that Simmons did not commit the murder. Aside from the fact that Sacks left for
work between 4:45 a.m. and 5:15 a.m., when it would have been dark, and that differing
intensity of the snow storm could have resulted in tracks left in a light snow that were
covered up by a heavier snow, there are other compelling reasons not to credit this aspect of
the evidence with the degree of importance attached by the dissenting justice. Ms. Sacks
testified that there were two other roads leading to the elementary school where Simmons
said he parked his mother's car. She admitted that she would not have seen the tire tracks if
Simmons had traveled either of the other two streets and parked in the area of the school.
__________

6
It would appear that Mr. Kopack was not the most percipient of witnesses. After arising for the day, Kopack
testified that he walked over his son's legs three different times to access the coffee machine, the kitchen and his
bedroom. The father also testified that after obtaining his cup of coffee, he watched television within a distance
of a few inches, maybe a foot, from Jason; he did not notice the significant bleeding from his son's wounds.
The jury may have easily concluded that Mr. Kopack was originally awakened by a shotgun blast that he could
not identify because of dulled senses attributable to his sleep-induced state.
that she would not have seen the tire tracks if Simmons had traveled either of the other two
streets and parked in the area of the school. Indeed, Ms. Sacks testified that Como road is so
close to the elementary school that you could park on the street and walk to the school. The
jury could have easily concluded that Simmons' tire tracks were either covered by an
incoming heavier snow, or that Simmons took one of the other two streets untraveled by
Sacks to arrive at a parking place near the area of the school.
The dissent observes that Simmons' father testified that when he woke up in the morning
of the murder, there were no tracks behind either of the two Simmons' cars, and both cars had
an equal amount of snow on them. This testimony would tend to undermine the testimony of
Mike O. indicating that Simmons told him that he used his mother's car the night of the
murder. However, Mike O. also testified that Simmons had told him that he had a little
Toyota, but that Mike O. had never seen Simmons drive that car. Thus, Simmons may have
driven another car to commit the murder. In any event, the jury could either have disbelieved
Mike O. on the testimony concerning the mother's car or may have concluded that Simmons
deliberately misled Mike O. with respect to the car he used. The unclear state of the record in
this aspect of the evidence is certainly no basis for impeaching the jury's findings. Moreover,
the strong corroboration of the evidence supplied by the testimony of Dan and Michael B.
must not be minimized.
The dissenting justice does highlight an aspect of Jason's murder that has found no
satisfactory answer. The area outside the Kopack's trailer revealed footprints in the snow
leading into, but not away from, the trailer. Unless Simmons simply retraced his steps, one
would be forced to concede the difficulty in explaining the lack of footprints leaving the
trailer absent evidence that the perpetrator remained in the trailer. In the latter case, however,
only Jason's father David Kopack would be a suspect in the homicide, a proposition that
neither the police, the prosecution, the defense nor the dissenting justice adopts as a viable
theory.
Moreover, the evidence against Simmons included a pair of wet tennis shoes found in the
Simmons' home the next day, and it was determined that the tread of those shoes matched the
tread of the footprints seen in the snow outside the Kopack's trailer.
The dissent next focuses upon the 20-gauge shotgun found in the Simmons' residence, but
fails to mention, among his concerns about the weapon, that both Simmons' mother and father
testified that the shotgun kept in their closet had not been fired for years. This testimony is
highly relevant because investigator Arndell testified that the shotgun found in the
Simmons' closet "smelled like it had been recently fired."
testified that the shotgun found in the Simmons' closet smelled like it had been recently
fired.
7

Our dissenting colleague emphasizes, however, that the victim was killed by a Federal
factory-loaded, 20-gauge shell as demonstrated by the shell wad removed from Jason's body.
The pellets found in the victim's body were size 6. The expended shell in the shotgun
recovered from Simmons' home was a Federal factory shell that would have contained size 6
pellets. Dr. Atkinson, the criminalist from the Washoe County Sheriff's Office testified that
the wadding and the pellets found in Jason's body were consistent with having come from the
expended Federal shell in the Simmons' shotgun. However, the dissent notes that the Federal
factory-loaded wad found in the victim should have been fired from a Federal shell that
contained a Federal primer. Both State and defense experts agreed that the primer found in
the expended shell contained within the chamber of the Simmons' shotgun was not a Federal
primer.
Moreover, a defense expert testified that he did not believe that a primer could come out of
a Federal factory-loaded shell and be replaced with a non-factory (non-Federal) primer. Based
upon the foregoing, our dissenting colleague concludes that the shell in the gun found in the
Simmons' closet was not the one that killed Jason. The problem with our colleague's
conclusion is that he limits his analysis to the testimony of the defense expert. Prosecution
expert Arndell testified that primers can come out of a factory-loaded shell; prosecution
investigator Thompson testified that she has seen primers fall out of factory-made shells.
Importantly, Arndell also testified that if you are lucky enough to have primers, you just
shove another primer in there and shoot it again.
Based upon the expert testimony of the State's witnesses, the jury could have concluded
that Simmons removed the Federal, factory primer, and replaced it with a non-Federal primer.
Our colleague has disregarded the conflicting testimony and simply concluded, as a fact
found on appeal, that the primer was not switched and could not have been switched, thus
giving total credence to the defense expert at the total exclusion of the State's expert
witnesses.
__________

7
Our dissenting colleague also contends that another fact weakening the State's case is that Simmons would
have had to creep into his parents' bedroom after midnight, remove the shotgun, and then replace it after the
murder without waking them on either occasion. Not so. Simmons could have removed the shotgun from the
closet sometime before evening and returned it after school the next day. There is no testimony by either the
mother or father indicating that they had seen the shotgun in the closet prior to retiring on the evening in
question.
We have considered all other issues raised on appeal and conclude that they are meritless
and need not be addressed.
CONCLUSION
For the reasons discussed above, we are convinced that Simmons was fairly tried and
convicted, and therefore affirm the judgment entered by the district court in its entirety.
Young, Shearing, and Rose, JJ., concur.
APPENDIX A
The following excerpts of the recorded telephone conversation between Brian Simmons
and his friend Mike O. are at issuethe first excerpt is specifically noted by Simmons:
Brian: Yep. I wonder.
Mike: What do you wonder?
Brian: Okay let me ask you a few questions?
Mike: Yeah.
Brian: If you got shot . . . .
Mike: Ahuh.
Brian: And killed with a twenty gauge . . . .
Mike: Ahuh.
Brian: And and bb's went through your lungs, and through your heart into your chest,
would you be instantly dead?
Mike: Ah I'd imagine so it [sic] you got shot through the heart?
Brian: Yeah.
Mike: Why?
Brian: Or could you, could you be alive to move like three feet, opposite direction of
which you were?
Mike: Probably not cause, anybody who'd get your heart.
Brian: Ahuh, okay good. Then I been framed.
Mike: Huh?
Brian: Then I was framed.
Mike: You were framed?
Brian: Oh yeah.
Mike: Did Jason move or anything?
Brian: I don't know I can't tell ya. (Laughter) I was told not to tell anyone anything
about the case.
Mike: Oh.
Brian: But I know everything about so, no big deal. That's why I think it's ironic.
Mike: Ironic?
Brian: Ironic.
Mike: So you think you'll be gettin out tomorrow er Thursday?
Brian: Yep.
. . . .
Mike: Are you gonna be able to go to school, if you get out?
. . . .
Brian: Not if I don't want to get mobbed.
. . . .
Mike: Who'd mob you dude?
Brian: I don't know, do you? . . . . A heartbeat.
Mike: Dude there's only a couple of people that know what happened.
Brian: What do you mean that know what happened?
Mike: That know what happened . . . .
Brian: There's no one that knows what happened. There's me who knows what
happened, there's god who knows what happened.
Mike: Kind of weird to hear you say that.
Brian: And there's satan who knows what too.
. . . .
Brian: Oh I'm readin all the reports and stuff, that's pretty interesting. The coronary
reports and stuff like that.
. . . .
Mike: Ah.
Brian: They took the dead body for an autopsy.
Mike: Ah.
Brian: And it's pretty neat.
Mike: Can you believe he came up clean?
Brian: Who?
Mike: Jason.
Brian: Clean with what?
Mike: Huh he had no dope in his system dude.
Brian: Bullcrap.
Mike: That's what the, the witchmajew.
Brian: No way, who said that?
Mike: Huh Jenny
Brian: What, Jenny's the stupid little, try to get me, dude she's coverin up somethin
cause she's tryin to nail me the hardest. Sayin all this stuff like I loved her and I
wanted her, and all that.
. . . .
Mike: What a freak.
Brian: Ah she's a human, I can't I am not surprised. I'm not surprised [sic] one bit. But
you know I don't really care, cause I can prove every statment [sic] made against
me is false.
Mike: That's cool.
(Emphasis added.)
Simmons' conviction of first-degree murder is based almost entirely on the testimony of
his teen-age acquaintance, Mike, who claims that Simmons admitted to him that he shot
and killed Jason Kopack. The problem with Mike's story is that, under the facts as they were
unfolded at trial, Mike's story is impossible. Mike claims that Simmons told him that on the
night of the murder Simmons walked up to the trailer home where Kopack lived, opened up
the door, shot Jason with a shotgun, walked back to his parked car and drove home. The
reason that Mike's testimony cannot be true is that there was snow on the ground on the night
of the murder; and this fact, in a number of respects, establishes irreconcilable inconsistencies
in Mike's story. As an example of such inconsistency, police investigators at the scene were
able to trace footprints made in the snow on the night of the murder, which show that some
person walked into the trailer home, but did not walk out of the trailer home. These footprints
were the only footprints in the snow that surrounded the Kopack trailer home on the night of
the murder. Whoever walked into the trailer home on that snowy night did not walk out, not,
at least, until in the morning, after the police investigators completed their investigation of the
pristine murder scene. This and other doubts created in my mind by the inconsistency
between Mike's rendition of Simmons' confession and the physical evidence at the murder
scene prompted me to make a more careful inspection of the record in this case than I might
ordinarily have made. After doing this, I came to the conclusion that a jury could not have
properly reached a guilty verdict based on proof beyond a reasonable doubt.
As stated, Simmons' conviction is largely based on Mike's testimony about Simmons'
supposed admission to Mike about how the murder was committed.
1
Mike testified that
Simmons confessed to him that in the early morning hours of the day of the murder he,
Simmons, drove his mother's car to a school parking lot that was near where Jason
Kopack lived.
__________

1
A reading of the record makes it plain that the focus of the prosecution was Mike's detailed account of how
Simmons told him that he committed the murder. Mike's testimony together with the prejudicial evidence that
Simmons was some kind of budding Satanist is what convicted Simmons. The majority tells us that the
conviction could be sustained on the testimony of Dan alone. This is not the case. Dan claims to have come
forward only when he read in the paper that his friend Mike's story was being questioned. In his statement to
police, Dan claimed that he was sitting near Mike when he
confessed to him that in the early morning hours of the day of the murder he, Simmons, drove
his mother's car to a school parking lot that was near where Jason Kopack lived. According to
Mike's testimony, Simmons told Mike that when he reached the Kopack residence he sat in
the victim's father's car and smoked a cigarette. Then, according to Mike, Simmons said that
he walked up to the front door of the trailer home, opened the front door and attempted to
shoot the victim with a 20-gauge shotgun that he had gotten from a closet in his parents'
bedroom. According to Mike's story, the gun jammed on Simmons' first attempt to shoot
Kopack, and Simmons had to load another shell into the gun. Simmons, according to Mike's
account of Simmons' confession, was, in a second attempt, able to, and did, in fact, shoot and
kill Kopack with the shotgun. Mike also claims that Simmons told him that after he murdered
Kopack, he left the trailer home, got into his mother's car and drove back home.
The biggest problem in trying to believe Mike's story is the snow. Simmons' father testified
that he brushed snow off of both his car and his wife's car (the murder car) on the morning
following the murder and that both cars had the same amount of snow on them, indicating
that neither car had been driven that night. This and the fact that no one, including Simmons,
trod out of the Kopack trailer home on the night of the murder tells me that Mike's testimony
about Simmons' supposed confession to him is not true.
There are other evidential concerns that cast doubt on the truth of Mike's testimony. The
investigator who first found the snowprints at the scene testified that he believed them to have
been laid down by Reeboks. Simmons, however, customarily wore combat boots, not
Reeboks. Mike accommodatingly testified that Simmons told him that on the particular night
of the murder he happened to be wearing Reeboks instead of his usual combat boots. Whether
Mike's testimony about what kind of shoes Simmons said he was wearing on the night of the
murder is true or not, it is very difficult to tie these footprints in any way to Simmons. The
police investigator who discovered the one-way footprints did not bother to photograph or
make a mold of the prints. As a consequence, we do not really know what kind of shoe laid
down the prints going into the trailer home or what size it was. The officer did go back to the
scene, however, after he realized that he should have preserved the footprints; but, by this
time, the original prints had been obliterated by the foot traffic of law enforcement
personnel and the emergency medical personnel that had responded to the 911 call made
by the victim's father.
__________
overheard Simmons saying that he did it. Dan was seriously impeached on the witness stand, and this little
morsel is hardly of the evidential value that it could have, of itself, sustained the conviction. It was Mike's very
damaging and detailed testimony of Simmons' supposed confession that sustained the conviction. Mike's
testimony is false, inconsistent and at variance with the physical facts. This is what prompted me to write a
dissent in this case.
time, the original prints had been obliterated by the foot traffic of law enforcement personnel
and the emergency medical personnel that had responded to the 911 call made by the victim's
father. Undaunted, the investigator proceeded to approximate the footprint that he had seen in
the snow, and based on this recollection, testified not only that the footprints were Reeboks
but that they resembled those of a pair of Reeboks that investigators had found in Simmons'
bedroom. Strangely, however, officers found another single Reebok lying on the floor of the
victim's trailer home, next to the victim's body. I do not know the significance of this find
because this shoe has disappeared, and it, like the snowprints, was never photographed. The
defense has, understandably, been very much concerned about the disappearance of the
Reebok found at the crime scene, as it has about the failure of the police to preserve any
evidence as to the nature of the one-way footprints.
If the jury were to believe that Simmons was not wearing his usual combat boots on the
snowy night of the murder, and believed Mike's story that Simmons was wearing Reeboks of
the kind that the investigators remembered the footprints to resemble, then we arrive at the
point where we might suspect that Simmons entered that trailer home on the night of the
murder, but never came out. This, of course, would be entirely inconsistent with Mike's story.
Another permissible inference would be that the one-way footprints were laid down by some
occupant of the trailer home, someone (other than Simmons) who entered the trailer home on
that snowy night and remained in the trailer home for the rest of the night.
In my judgment, once we get rid of Simmons' supposed confession to Mike, the
prosecution's case collapses, and it becomes impossible for a jury to find guilt beyond a
reasonable doubt; still, I will go on to discuss some of the other aspects of this case.
Aside from the police investigator's recollection of what the one-way footprints might
have looked like, the only other pieces of evidence that might place Simmons at the murder
scene are a cigarette butt found at the scene and an expended shotgun shell seized at
Simmons' house.
The only reason that the cigarette butt has any significance in this case is that Mike
reported that Simmons smoked a cigarette in the victim's father's car just before the shooting.
Even if we were to assume that Mike's testimony about the cigarette butt is true, there is great
doubt as to the value of this piece of evidence because, again, the snow enters the picture.
Weather records show that it was either snowing or had just stopped snowing at the time
the murder was committed (at an estimated 1:20 a.m. on February 24, 1994).
estimated 1:20 a.m. on February 24, 1994). The cigarette butt was not found by investigators
when they first went to the crime scene. On the following day, investigators went back to the
scene, deciding to do so because of Mike's statement to them that Simmons said he had
smoked a cigarette while outside the Kopack residence on the night of the killing. The State
submitted the cigarette butt to DNA testing. DNA tests revealed that eleven percent of the
population possessed the kind of epithelial cells that were retrieved from the cigarette butt.
For what it is worth, both Simmons and Mike fall within that eleven percent.
If the story Mike related to the deputies were true, Simmons would have to have smoked
the cigarette sometime prior to 1:20 a.m. and dropped it on the ground into either the
still-falling or recently-fallen snow. The forensic serologist who conducted tests on the
cigarette butt testified that traces of saliva would have been removed by contact with moisture
or precipitation. According to expert testimony, it is highly probable that any cigarette butt
dropped into the snow on the night in question would be so saturated with water on the day
following the murder that all traces of saliva and of the epithelial cells from which the DNA
was extracted would be gone. This suggests that the cigarette butt in question was dropped or
placed at some other, drier time than at the time of the murder. It is entirely possible, if not
probable, that the DNA in this case had no connection with Simmons, but, rather, was the
DNA of some person who dropped the cigarette after the snow had melted and under
circumstances in which the residual saliva on the butt would not have been flushed away. The
DNA evidence in this case does not reliably place Simmons at the scene of the crime at the
time of the murder.
The only other piece of physical evidence in this case connecting Simmons to the murder
scene is a 20-gauge shotgun seized at the Simmons trailer home. The shotgun contained an
expended Federal shell in the chamber. This evidence, however, is also problematic. The
shell wad recovered from Jason's body came from a factory-loaded 20-gauge shell. The
primer in the gun's expended shell, however, was that of a reloaded shell. In fact, every single
shell found at Simmons' house was a reloaded shell. Not a single factory-loaded shell was
discovered anywhere. The State tried to put together a way in which a non-factory primer
might be found in a factory loaded shell; however, an expert witness testified that he did not
believe that a primer could have come out of a factory loaded shell and be replaced with a
non-factory primer. It is not likely that Jason was killed with a Federal shell which contained
a factory wad (which is not distributed to the public for reloading) and a non-factory primer.
Thus, it appears highly probable that the shell in the gun seized at Simmons' house was
not the one that killed Jason.
appears highly probable that the shell in the gun seized at Simmons' house was not the one
that killed Jason. Because a shotgun does not leave distinctive markings in the way that other
kinds of guns do, ballistics tests on a shotgun would be of no use. What we are left with, then,
is the fact that Jason was killed with a 20-gauge shotgun shell and that a 20-gauge shotgun
was seized at Simmons' house; but the shell that was in the gun was almost certainly not the
shell that expelled the projectiles that killed Jason.
2

Another fact which casts doubt on the State's theory of this case is the claim that the
shotgun had been stored in Simmons' parents' bedroom closet. If this were the case, Simmons
would have to have crept into his parents' bedroom after midnight without waking his parents,
removed the shotgun and then replaced it when he returned after the shooting. Although it
would not be impossible for a teenager to creep, undetected, into his parents' bedroom and
remove something from the closet, it seems unlikely in this case. Simmons' mother, Annalea,
testified that she suffers from fibromyalgia, a condition which causes her to experience
chronic muscular pain. She testified that on the night of the murder she had a particularly
restless night, was frequently in and out of bed and had great difficulty sleeping. It seems
unlikely, given her fitful condition that night, that Simmons could have retrieved the shotgun
from his mother's closet and then returned it without disturbing her or alerting her to his
presence.
On the night of the murder, Simmons' mother, Annalea Simmons, was not the only one
who was up during the night in the Simmons household. Simmons' younger sister, Cheryl,
testified that she got up at least twice (once at 12:30 a.m. and once at 1:30 a.m.), and both
times she saw her brother, Brian Simmons, in the living room. If Cheryl's story could be
accepted, then there is no way that Simmons could have left his home in Stagecoach (which
is fifteen miles away) after 12:30 a.m., gone to the Kopacks' trailer home in Dayton,
committed the murder at approximately 1:20 a.m. and been back at his home by 1:30 a.m.
Another weakness in the prosecution's case comes from the testimony of Sonja Sacks, who
is a cook at the Dayton schools. She testified that she was the first person to arrive on the
morning of February 24 at the school, where Simmons is claimed to have told Mike that he
parked his mother's car while he committed the murder.
__________

2
Mike's testimony told of the Simmons family owning a 20-gauge shotgun with Federal shells. What Mike did
not know was that the shells were reloads and not of the type that caused Kopack's death. The defense suggested
that this is evidence that Mike was trying to use this testimony to frame Simmons.
told Mike that he parked his mother's car while he committed the murder. Ms. Sacks saw no
tire tracks in the snow at the place where Mike said Simmons told him that he had parked his
mother's car on the night of the murder. Again, if Mike's testimony were true, because of the
timing of the murder in relation to the snowfall that night, tire tracks should have been
observable in the freshly fallen snow at the school. Tire tracks would have been left and thus
observable if Simmons had in fact parked the car at the school and then returned from
committing the murder by driving the car home in the manner that Mike testified. We have,
then, another snow problem to add to the prosecution's case.
The prosecution also places some reliance on a drawing which was found in Simmons'
school locker. A student told law enforcement officials that Simmons had drawn him a map
of a residence that he said he planned to burn down. Five or six days after the student made
his statement to the police, Simmons' school locker was secured with a padlock by the Lyon
County Sheriff's Office. Later, however, the locker was found to be unsecured, and it is
conceded that a number of people knew the combination to the lock on the locker. When a
search was finally conducted, some three weeks after the murder, police recovered a crude
drawing of a rectangular object which they claimed to be a floor plan of the Kopacks' trailer
home. It is entirely possible that the drawing is that of a trailer home floor-plan, but there is
nothing from which it can be concluded that this was a drawing of the Kopacks' trailer home.
Additionally, other than the fact that it was found in Simmons' locker, there is nothing to
connect it to him. The paper does not match that of any of Simmons' notebooks, nor is there
any writing on it. The locker was unsecured for five or six days, and anyone could have
placed the drawing inside. Even if it had been established that Simmons had drawn a map of
some trailer home floor plan, the only claimed purpose for Simmons' drawing of that plan
was to facilitate arson, not murder.
Turning again to the circumstances surrounding the night of the murder, it is troublesome
that no gunshot or other unusual sounds were heard by anyone in the vicinity of the trailer
home on the night of the murder. Kenneth Bradley, a neighbor of the Kopacks, testified that
he heard nothing and that his dogs did not bark during the night. Since Bradley's trailer home
is situated a mere thirty feet from the Kopacks' trailer home, it seems likely that had a shotgun
been discharged at the Kopacks' trailer home, Bradley would have heard it. A videotape made
during the initial investigation of the scene contained the sound of Bradley's dogs barking.
The only question that the jury asked the court while deliberating was whether anyone had
heard the dogs barking on the night of the murder.
the night of the murder. No one had. Obviously it appeared to the jury (and it appears to me)
that a noise as loud as a shotgun blast would have been noticed by either human or canine.
The fact that no one heard the blast is one of many questions that plague the State's case and
its theory that Simmons shot Jason Kopack in the living room of Kopack's trailer home on
that snowy night.
The only person who testified that he heard anything unusual on the night of the murder
was the victim's father, David. David testified that at 1:23 a.m. he heard a noise, which he
assumed was a cat jumping on the roof of a shed next to his bedroom window, or perhaps
something blowing against the shed. In any event, he got up, walked out into the living room
and saw nothing amiss. The Kopacks' trailer home was small, only ten feet by fifty feet. The
father's bedroom was down a short hall from the living room, and his bedroom had no door,
only a curtain hanging over the opening. It seems that a shotgun blast would necessarily be
heard by everyone occupying such a small space. It adds to the consternation to read in the
record that David testified that he did not smell any gunpowder when he walked out into the
living room. David was a gunner in Vietnam and testified that he was familiar with the smell
of gunpowder. It seems very strange that immediately following the discharge of a shotgun in
a space as small as the trailer home's living room no one heard the discharge and there was no
smell of gunpowder in the confined space of that small trailer home.
As I have pointed out before, the State's case rested primarily on the testimony of the
teenager, Mike, who is a far-from-credible witness. Although credibility of witnesses is a
determination for the finder of fact, several facts about Mike are worth mention. Mike has
been hospitalized for various psychological problems, including drug and alcohol addiction
and for having expressed a desire to kill his parents. At the preliminary hearing, Mike
testified that he had last used narcotics three weeks prior to the hearing. At trial, he testified
that he had used narcotics since the preliminary hearing, some three weeks prior to the trial.
Mike also admitted smoking marijuana approximately one week prior to Jason Kopack's
death.
At the time of the murder, Mike was on probation with the juvenile authorities because of
his drug violations. As a term of his probation, Mike had been required to provide urine
samples for testing. Once he became an informant for the State, no one checked him for drug
use during the pendency of the case against Simmons. Also, Mike was never brought into
court to answer for his admitted drug offenses.
The defense proposes that Mike was the actual murderer and that Mike had a motive to try
to frame Simmons. Mike, the defense proposes, had every reason to try to give the State
what it wanted in terms of evidence against Simmons.
defense proposes, had every reason to try to give the State what it wanted in terms of
evidence against Simmons. Mike was frequently in trouble with the authorities, and his
friendly cooperation with police authorities in this case arguably gave him an opportunity to
get back in the good graces of the police, despite the fact that he admitted to continuous and
ongoing drug use.
Finally, with regard to the student who discovered the trailer home sketch, this boy had no
apparent motive for fabricating testimony, but it is worth noting that he was Mike's brother's
best friend. The student testified further, on behalf of the State's case, that Simmons had
talked a lot about murder, mayhem and satanism.
3
But he also testified that he believed that
Simmons was all talk, and that his bizarre rantings were a defense to cover up his adolescent
insecurities. The student's testimony, by itself, adds little or no convincing evidence of
Simmons' guilt in this case.
I understand that it is not the appellate function to interfere with fact-findings made by a
jury; however, I approach the evidence in this case as a whole, and everywhere I turn I find
inconsistencies and facts that simply are not in harmony with a finding of guilt. I have
recounted a wide array of inconsistencies in the State's proof in this case because I believed
that I was obligated to make a thorough survey of the record in order to support the
uncommon conclusion that this conviction must, as a matter of law, be set aside. My
attention, however, is focused on what I have called the snow problem. It appears to me
that when Mike put together his incriminatory account of Simmons' confession, he forgot that
the ground was covered with snow on the evening in question and that Simmons' travels, by
vehicle and by foot, would be recorded and traceable as long as snow was lying on the
ground.
The snow evidence shows that the supposed murder vehicle was not driven by Simmons or
anyone else on the night of the murder. The snow evidence shows that no vehicle was driven
in the area of the school where Mike claims that Simmons admitted he had parked his
mother's car on the night in question. The snow evidence shows that only one person walked
in the vicinity of the murder scene and that that one person entered but did not leave the
trailer home. This snow evidence tells me that Mike was not telling the truth.
__________

3
The majority mentions Simmons' journals, in which he had copied satanic invocations and written of murder
and mayhem. The journals also contained a list of People to Kill. Simmons explained that this list related to a
game of Dungeons & Dragons which he had been playing with Jason, Mike and others. For the most part, the
journals simply reiterated Simmons' ramblings about satanism.
telling the truth. Without Mike's truthful testimony there can be no conviction in this case.
The standard of review for sufficiency of the evidence upon appeal is whether, the jury,
acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable
doubt. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). In the present case,
evidence does not support a finding of guilt beyond a reasonable doubt. It appears that
Simmons was convicted on the basis of a theory which was cobbled together by the
prosecution out of unreliable and contradictory evidence. No rational trier of fact could have
found, beyond a reasonable doubt, based on the evidence in this case, that Simmons was
guilty of killing Jason Kopack.
____________
112 Nev. 118, 118 (1996) Graves v. State
ARTHUR J. GRAVES JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24957
February 29, 1996 912 P.2d 234
Appeal from a judgment of conviction of two counts of burglary. Eighth Judicial District
Court, Clark County; Stephen Huffaker, Judge.
The supreme court, Shearing, J., held that: (1) defendant was aware of dangers and
disadvantages of self-representation; (2) there was sufficient evidence of burglary; (3) the two
charges of burglary were part of a common scheme or plan and could be joined in the
information; (4) defendant's right to a speedy trial was not violated; and (5) police had
probable cause to arrest defendant.
Affirmed.
Rose and Springer, JJ., dissented.
Moran & Weinstock, and Andrew Leavitt, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney
and James Tufteland, Chief Deputy District Attorney, Las Vegas, for Respondent.
1. Criminal Law.
Defendant knowingly and intelligently waived right to counsel, where judge repeatedly warned defendant of dangers and
disadvantages of self-representation, and explicitly outlined many of them. U.S. Const. amend. 6.
2. Criminal Law.
In determining whether defendant knowingly and intelligently waived right to counsel, court is not required to make assessment as
to intricacies of court procedures and rules. U.S. Const. amend. 6.
3. Criminal Law.
Issue in determining whether warnings regarding self-representation were adequate is whether defendant competently and
intelligently chose self-representation, not whether he was able to competently and intelligently represent himself. U.S. Const. amend.
6.
4. Criminal Law.
For defendant's waiver of right to counsel to withstand constitutional scrutiny, judge need only be convinced that defendant made
decision with clear comprehension of attendant risks and a full understanding of disadvantages. U.S. Const. amend. 6.
5. Criminal Law.
Appellate court will give deference to trial court's determination that defendant made decision to waive right to counsel with clear
comprehension of attendant risks and full understanding of disadvantages. U.S. Const. amend. 6.
6. Criminal Law.
Trial court had sufficient evidence to determine that defendant made decision to waive right to counsel with clear comprehension
of attendant risks and full understanding of disadvantages. Judge knew that defendant had previous experience in preliminary
hearings and trials, defendant established that he had reviewed preliminary hearing transcript and police reports necessary for
cross-examination, and judge had pro se motion to dismiss from which judge could determine defendant's level of legal knowledge
regarding his case. U.S. Const. amend. 6.
7. Criminal Law.
For defendant's waiver of right to counsel to withstand constitutional scrutiny, judge need not explain elements of crimes charged
and possible defenses. U.S. Const. amend. 6.
8. Criminal Law.
Omission of canvass of defendant to determine that defendant made decision to waive right to counsel with clear comprehension
of attendant risks and full understanding of disadvantages is not reversible error if it appears from whole record that defendant knew
his rights and insisted upon representing himself. U.S. Const. amend. 6.
9. Criminal Law.
Standard for determining whether jury verdict is supported by substantial evidence is whether, after viewing evidence in light most
favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond a reasonable doubt.
10. Burglary.
Circumstantial evidence sustained conviction for burglary relating to attempted theft of money from casino patron and theft of
money from cashier's booth at another casino; police investigators observed defendant, within hours of his release from detention
center, entering casinos, suspiciously walking up and down aisle, observing and spying on casino patrons, and exiting. NRS 205.060.
11. Indictment and Information.
Charge of burglary related to alleged attempt to steal money from casino patron and charge of burglary related to alleged effort to
steal money from a cashier's booth at a different casino represented common scheme or plan, and thus, both charges could
be joined in one information, where defendant systematically walked from casino to casino and acted
similarly suspicious at each casino.
scheme or plan, and thus, both charges could be joined in one information, where defendant systematically walked from casino to
casino and acted similarly suspicious at each casino. NRS 173.115, 205.060.
12. Criminal Law.
Factors to be considered in assessing denial of speedy trial claim are length of delay, reason for delay, assertion of right, and
prejudice to accused. U.S. Const. amend. 6; NRS 178.556(1).
13. Criminal Law.
Trial court rationally postponed trial to allow defendant, who moved to represent himself on first day of trial, more time to prepare
his defense, and thus, this time was excludable from speedy trial time period. U.S. Const. amend. 6; NRS 178.556(1).
14. Criminal Law.
Fifteen-day delay, to allow defendant, who moved to represent himself on the first day of trial, more time to prepare his defense,
was not oppressive and had no prejudicial effect on defendant; therefore, delay was excludable from speedy trial period. U.S. Const.
amend. 6; NRS 178.556(1).
15. Criminal Law.
Illegal arrest alone does not entitle defendant to have conviction set aside. U.S. Const. amend. 4.
16. Arrest.
Police had probable cause to arrest defendant after observing his suspiciously walking up and down aisles of casino and his
observing and spying on casino patrons, although police waited a day after observing criminal actions and did not obtain a warrant.
U.S. Const. amend. 4.
17. Arrest.
Law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have minimum
evidence to establish probable cause. U.S. Const. amend. 4.
OPINION
By the Court, Shearing, J.:
Police investigators observed appellant Arthur J. Graves, within hours after his release from the Clark County Detention Center,
entering casinos, suspiciously walking up and down the aisles, observing and spying on casino patrons, and exiting. He allegedly attempted
to steal from a patron at the Fremont Casino and a casino cage at the Horseshoe Casino. The next evening, after police investigators
observed Graves and two individuals enter a casino, walk around observing patrons, and approach the patrons, but observing no criminal
act, the police, without a warrant, arrested Graves.
On the first day of trial, Graves moved the court to allow him to represent himself. After canvassing Graves, the district court granted
Graves' request, but postponed the trial for three weeks to allow him to prepare for trial. Graves objected, arguing that the
postponement would deny him the right to trial within sixty days.
the postponement would deny him the right to trial within sixty days. The district court
overruled Graves' objection. Graves was convicted at trial, pursuant to a jury verdict, on two
counts of burglary.
On appeal, Graves claims that he did not knowingly and intelligently waive his right to
counsel. He also asserts other errors: lack of substantial evidence to support the jury's verdict,
improper joinder of charges, denial of his right to a speedy trial, and the warrantless arrest.
On the first day of trial, Graves' appointed attorney informed the district court that Graves
wished to bring a motion before the court to be appointed as his own counsel. The following
canvass ensued:
THE COURT: You desire to represent yourself still, Mr. Graves?
THE DEFENDANT: Yes.
THE COURT: I'm going to give you a canvas [sic], which we need to do to see if
you're able to do that.
First off, let me say it amazes me you would want to do this. You have one of the
best, if not the best criminal attorney [sic] in this town and you want to set him aside
and represent yourself?
THE DEFENDANT: If it's okay with the Court I'd like to do that.
THE COURT: It's your choice to make. I just want you to know some of the things
involved in making that choice.
You do know you have a constitutional right under the Faretta ruling to represent
yourself if you wish to; do you?
THE DEFENDANT: Yes.
THE COURT: Have you talked this over with your attorney?
THE DEFENDANT: Yes, I have.
THE COURT: And you wish to represent yourself?
THE DEFENDANT: Yes, I do.
THE COURT: Do you think it would be in your best interest to do so?
THE DEFENDANT: Yes, I do.
THE COURT: I have to tell you that if you do represent yourself, that you'll be held
to every standard as far as procedure and all the rules of the Court that you would have
if you had the assistance of an attorney; do you understand that?
THE DEFENDANT: Why [sic], Your Honor.
THE COURT: You also understand you'll be giving up some rights, some
constitutional rights which you might have had if you had had an attorney when you
act as your own attorney; do you understand that?
have had if you had had an attorney when you act as your own attorney; do you
understand that?
THE DEFENDANT: Right, Your Honor.
THE COURT: One of those rights is if you act as your own counsel you cannot then
at a later time have an appealable issue on ineffective assistance of counsel because
you'll be doing that yourself.
THE DEFENDANT: Right.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: So even if you are ineffective, no matter how ineffective you are,
you lose that right at any later time on appeal to say that you had ineffective assistance
of counsel; do you understand that?
THE COURT: Have you had an opportunity to look at all the discovery that Mr.
Amundson has provided you?
THE DEFENDANT: Yes, Your Honor, I've had preliminary transcript for over a
month, I have the police reports. I'm ready, Your Honor. I've reviewed them several
times.
THE COURT: I want you to know that I, especially in this case, since you have a
good attorney representing you, that I think it's a mistake for you to represent yourself;
do you understand that?
THE DEFENDANT: Yes.
THE COURT: I also have to inform you that you will have no license to abuse the
dignity of the Court if you represent yourself; that is, I'll hold you to the same standard
of decorum and sameand all the same rules if you represent yourself. And if it comes
to the point you do disrupt the Court when you represent yourself, do you understand
that I will then terminate your representation and assign an attorney to finish out the
trial? Do you understand that?
THE COURT: In other words, you just have to be as nice as an attorney would be in
representing yourself.
THE DEFENDANT: I understand.
THE COURT: Sometimes that isn't too nice but you'll at least be held to that same
standard; do you understand that?
THE COURT: Do you also understand that at the time of trial, if you represent
yourself, I'm going to appoint Mr. Amundson to be your stand-by counsel; do you
understand that?
THE COURT: And he'll be sitting there and you can ask him anything you wish to
ask him about procedure, but I'll not allow him to react to the procedure in any other
way. That is, I won't be allowing your stand-by counsel to make any objections or
anything else during the course of a trial. When an objection is missed at trial it will be
because you missed it and that's one of the penalties of representing yourself?
THE DEFENDANT: Yes.
THE COURT: But I will allow you at the time of trial, I'll give you time to talk to
Mr. Amundson and inquire of him of any advice that you may need at the time of trial;
do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: In the dissenting opinion of Feretta [sic], after they say that it's a
constitutional right of a defendant to be able to represent himself, they also say that
gives the defendant a constitutional right to make a fool of himself because of the old
proverb which says one who represents himself has a fool for a client.
THE COURT: Do you understand that?
THE COURT: And I want you to know that I feel that's true; do you know that?
THE DEFENDANT: I do.
THE COURT: I have to tell you, after I've seen many defendants represent
themselves that I think that's more true than ever, that it's a foolish thing to do; do you
understand that?
THE DEFENDANT: Yes.
THE COURT: Do you still want to do it?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: All right. I'll allow you to represent yourself.
Graves argues that the district court's canvass was insufficient and requires reversal of his
conviction because the district court never explained the facts, the nature of the charges or
offenses, or potential defenses the defendant faced or could use. Graves further notes that the
district court never explained the allowable punishments or the possibility of being sentenced
under the habitual criminal statute. Finally, Graves notes that he had not represented himself
previously and that the district court made no specific inquiry into his background and
experience. Thus, he claims that he could not have knowingly and intelligently waived his
rights.
claims that he could not have knowingly and intelligently waived his rights.
The United States Supreme Court stated in Faretta v. California, 422 U.S. 806 (1975):
Although a defendant need not himself have the skill and experience of a lawyer in
order competently and intelligently to choose self-representation, he should be made
aware of the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open.
Adams v. United States ex rel. McCann, 317 U.S. at 279.
. . . We need make no assessment of how well or poorly Faretta had mastered the
intricacies of the hearsay rule and the California code provisions that govern challenges
of potential jurors on voir dire. For his technical legal knowledge, as such, was not
relevant to an assessment of his knowing exercise of the right to defend himself.
Id. at 835-36 (footnote omitted).
[Headnotes 1-3]
We believe that the record clearly demonstrates that Graves was aware of the dangers and
disadvantages of self-representation. The judge repeatedly warned Graves of the dangers and
disadvantages and explicitly outlined many of them. As already noted in the Faretta
quotation, no assessment need be made as to how well or poorly a defendant has mastered the
intricacies of court procedures and rules. The only question is whether the defendant
competently and intelligently chose self-representation, not whether he was able to
competently and intelligently represent himself.
[Headnotes 4, 5]
Faretta makes clear that the defendant's technical knowledge is not the relevant inquiry.
422 U.S. at 835-36. In order for a defendant's waiver of the right to counsel to withstand
constitutional scrutiny, the judge need only be convinced that the defendant made his decision
with a clear comprehension of the attendant risks. Trial judges must determine whether
defendants waive their right to counsel with a full understanding of the disadvantages. This
court will give deference to their decisions. Through face-to-face interaction in the
courtroom, the trial judges are much more competent to judge a defendant's understanding
than this court. The cold record is a poor substitute for demeanor observation.
[Headnote 6]
The fact that the canvass did not expressly cover Graves' background, education or
experience did not mean that the judge could not learn a great deal about his level of
intelligence and ability from his dialogue with the defendant.
background, education or experience did not mean that the judge could not learn a great deal
about his level of intelligence and ability from his dialogue with the defendant. In any event,
the judge had the record before him from which he could see that the defendant had previous
experience in preliminary hearings and trials. Moreover, Graves affirmatively established that
he had reviewed the preliminary hearing transcript and all the police reports which would be
necessary for cross-examination of witnesses. In addition, the judge had before him a pro se
Motion to Dismiss from which the judge could determine the defendant's level of legal
knowledge regarding his case. This evidence certainly supplied a sufficient basis for the judge
to determine that Graves had the minimum intelligence and ability necessary to represent
himself.
[Headnote 7]
Graves also faults the trial judge for not determining that he understood the nature of the
charges he faced, possible defenses, or the range of the allowable punishments involved.
However, Faretta does not require an explanation regarding the elements of the crimes
charged and the possible defenses. Arajakis v. State, l08 Nev. 976, 980, 843 P.2d 800, 802-03
(1992).
[Headnote 8]
In Haberstroh v. State, 109 Nev. 22, 26, 846 P.2d 289, 292, cert. denied, 510 U.S. 858,
114 S. Ct. 169 (1993), this court rejected the necessity of a mechanical performance of a
Faretta canvass. Even the omission of a canvass is not reversible error if it appears from the
whole record that the defendant knew his rights and insisted upon representing himself.
Wayne v. State, 100 Nev. 582, 585, 691 P.2d 414, 416 (1984) (quoting Cooley v. United
States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123 (1975)). In Arajakis,
this court stated:
The test of a valid waiver of counsel is not whether specific warnings or advisements
were given but whether the record as a whole demonstrates that the defendant
understood the disadvantages of self-representation, including the risks and
complexities of the particular case.
108 Nev. at 980, 843 P.2d at 802-03 (quoting People v. Bloom, 774 P.2d 698, 716 (Cal.
1989), cert. denied, 494 U.S. 1039 (1990)). Based on the record as a whole, we believe
Graves made a valid waiver. To the extent that any of our prior cases hint that specific
matters should be part of a canvass that go beyond the general requirements of Faretta, we
note that those specific matters are not constitutionally required for a valid waiver where it is
apparent from the record that the defendant was aware of the dangers and disadvantages of
self-representation.
Defendants like Graves have had several encounters with the court system and many years
of experience in jailhouse tutelage in manipulation of the law. They understand that if they
represent themselves, there is a good chance that an appeals court will reverse their
convictions. It is unfair to the citizens of this state to give these defendants new trials when
they insist on representing themselves despite all warnings. Furthermore, Graves had
competent counsel standing by throughout his trial for consultation. His judgment of
conviction cannot be reversed on the basis of his knowing and intelligent choice to represent
himself.
Graves next claims that there was insufficient evidence to convict him of burglary.
1
As to
the Fremont incident, he asserts that the jury could not have inferred from the evidence that
he had the necessary intent to commit larceny when he entered the Fremont Casino. He
claims that his walking in and out of casinos proves nothing, as people do this activity every
day. Next, he claims that the evidence merely demonstrated that he dropped some coins
beside a patron, bent down to pick up the coins, and engaged in conversation with the patron.
Indeed, the two police officers observing Graves testified that they did not see Graves commit
a crime while in the Fremont. As to the Horseshoe incident, Graves insists that there was no
evidence beyond a reasonable doubt that Graves actually took anything from the cashier's
booth. Moreover, he claims that the evidence did not demonstrate, to the required level, that
he had the intent to steal when he entered the Horseshoe Casino.
[Headnote 9]
The standard for determining whether a jury verdict is supported by substantial evidence is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
[Headnote 10]
We conclude that substantial evidence existed to allow a jury to find that Graves
committed two counts of burglary beyond a reasonable doubt.
2
We note that [b]ecause
burglary is commonly committed in secret, . . . it frequently must be proved by
circumstantial evidence."
__________

1
NRS 205.060 provides: Every person who, by day or night, enters any house, room, apartment, . . . or other
building . . . with intent to commit grand or petit larceny, assault or battery on any person or any felony, is guilty
of burglary.

2
Graves and his partner did not gamble, drink or eat while in the casinos. At the Fremont, police observed
Graves' partner sit down by an elderly, male patron who was playing slots. After a minute, Graves' partner
walked over to
monly committed in secret, . . . it frequently must be proved by circumstantial evidence.
Edwards v. State, 90 Nev. 255, 258, 524 P.2d 328, 331 (1974).
[Headnote 11]
Graves next claims that the two charges of burglary are substantially different and do not
evidence a common scheme or plan and therefore the two burglary charges were improperly
joined in the information. The first charge of burglary related to an alleged attempt to steal
money from a patron of the Fremont. The second charge related to an alleged effort to steal
money from a cashier's booth. Graves insists that these acts do not represent a common
scheme or plan or involve the same act or transaction as is required by NRS 173.115. He
claims that the proof presented at trial regarding his intent to steal from the cashier's booth
was highly prejudicial to the charged intent to steal at the Fremont, given the lack of evidence
that he actually stole anything at the Fremont.
NRS 173.115 states:
Two or more offenses may be charged in the same indictment or information in a
separate count for each offense if the offenses charged, whether felonies or
misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting
parts of a common scheme or plan.
__________
Graves and had a brief conversation. Graves then approached the patron's right side and dropped some coins on
the floor next to the patron. The patron stood up, and Graves engaged the patron in conversation. Graves' partner
then approached the patron's left side, but the patron turned around and observed Graves' partner approaching.
Graves' partner, who was within inches of the patron, hesitated and retreated. Graves finished picking up the
coins, walked around a bank of slot machines to meet his partner, and police overheard Graves tell his partner,
you can't hesitate. Leaving the casino, Graves appeared upset and was making animated hand expressions.
Later that evening, police observed Graves and his partner standing close to the Horseshoe Casino's change
booth. The cashier testified that as Graves' partner approached the change booth with three dollars in quarters,
the cashier's telephone rang, so the cashier turned her back to the booth window. At that time, police observed
Graves approach the booth, reach his arms into the booth, grab something, and pull his arms away with coins
flying through the air. The cashier observed Graves pulling his arms out of the booth near where the $1 tokens
were kept, and later, she discovered that twenty $1 tokens were missing. Police observed Graves with a handful
of coins, and Graves and his partner picked up the fallen coins and subsequently cashed in $10 worth of tokens
and $3 worth of quarters. (Even though the cashier suspected larceny, the hotel's policy is to not question the
patron without firm proof.) This incident was also recorded by the casino's surveillance cameras. It was
thereafter determined that Graves had taken money. Graves and his partner quickly left the Horseshoe Casino.
The district court did not abuse its discretion in allowing the two charges to be joined
because the two charged offenses were part of a common scheme or plan and factually
connected. See State v. Boueri, 99 Nev. 790, 672 P.2d 33 (1983). Graves systematically
walked from casino to casino and acted similarly suspicious at each casino. Consequently, the
two charged offenses were sufficiently connected to comprise a common scheme or plan.
Because Graves specifically requested that his trial be held within 60 days, he contends
that the district court abused its discretion in overruling his objection and postponing the trial
three weeks and then later postponing the trial another day.
[Headnotes 12-14]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.
. . . U.S. Const. amend. VI. The factors to be considered in assessing a denial of a speedy
trial claim are: the length of the delay, the reason for the delay, the assertion of the right, and
prejudice to the accused. Brinkman v. State, 95 Nev. 220, 222, 592 P.2d 163, 164 (1979)
(citing Barker v. Wingo, 407 U.S. 514 (1972)). NRS 178.556(1) provides that a defendant
should be brought to trial within 60 days after the arraignment on the indictment or
information. Nevertheless, in Rodriguez v. State, 91 Nev. 782, 542 P.2d 1065 (1975), this
court concluded that the failure to set a trial within 60 days is not per se equatable to a denial
of a speedy trial. Id. at 784, 542 P.2d at 1065.
We conclude that the court rationally postponed the trial to allow Graves, who moved to
represent himself the first day of trial, more time to prepare his defense. Cf. Brinkman, 95
Nev. at 223, 592 P.2d at 164-65 (161 day delay between time information was filed and trial
not prejudicial to defendant when delay mostly occasioned by actions of defendant or his
attorney); Hampton v. Sheriff, 86 Nev. 157, 465 P.2d 615 (1970) (any delay in bringing
habeas corpus petitioner to trial was a direct result of his conduct and choice of procedural
maneuvers). The fifteen-day delay certainly was not oppressive and had no prejudicial effect
on Graves. See Brinkman, 95 Nev. at 223, 592 P.2d at 165; Ex Parte Hansen, 79 Nev. 492,
495, 387 P.2d 659, 660 (1963).
Graves next contends that there is no evidence that he was engaged in criminal activity on
the day he was arrested. Indeed, the arresting officer admitted that he did not observe Graves
commit any wrongdoing on the day of his arrest. Graves argues that it was improper for the
police to arrest him without a warrant for alleged criminal actions he had performed
twenty-four hours earlier. He notes that the police continued observations of him for several
hours before arresting him, and they did not obtain an arrest warrant.
arrest warrant. Because the police had more than sufficient time to obtain an arrest warrant
and Graves did not commit any criminal activity the day of his arrest, he argues that his
Fourth Amendment rights were violated and that the convictions should be set aside.
[Headnotes 15-l7]
We first note that an illegal arrest alone does not entitle a defendant to have a conviction
set aside. United States v. Crews, 445 U.S. 463, 474 (1980) ([T]he illegality of [a
defendant's] detention cannot deprive the Government of the opportunity to prove his guilt
through the introduction of evidence wholly untainted by the police misconduct.). In any
event, we conclude that there was probable cause to support Graves' arrest, and it therefore
was legal. Given the surrounding facts of the burglaries, probable cause did not fade away
merely because the police arrested Graves the following day. Law enforcement officers are
under no constitutional duty to call a halt to a criminal investigation the moment they have
the minimum evidence to establish probable cause, a quantum of evidence which may fall far
short of the amount necessary to support a criminal conviction. Hoffa v. United States, 385
U.S. 293, 310 (1966). Accordingly, we conclude that Graves' arrest did not violate his
constitutional rights.
For the foregoing reasons, we affirm Graves' judgment of conviction.
Steffen, C. J., and Young, J., concur.
Rose, J., with whom Springer, J., joins, dissenting:
I dissent. The district court failed to adequately canvass Graves to establish that he
intelligently and knowingly waived his right to counsel.
A criminal defendant has the right to self-representation under the Sixth Amendment of
the United States Constitution. Faretta v. California, 422 U.S. 806, 818-19 (1975). However,
an accused who chooses self-representation must knowingly and intelligently waive the right
to counsel.
1
Id. at 835. Such a choice can be competent and intelligent even though the
accused lacks the skill and experience of a lawyer, but the record should establish that
the accused was made aware of the dangers and disadvantages of self-representation.
__________

1
It is also important to note that a district court has the discretion to deny a request for self-representation on
the ground of untimeliness alone, if the request is not made within a reasonable time before commencement of
trial or hearing and there is no showing of reasonable cause for the lateness of the request. Lyons v. State, 106
Nev. 438, 445-46, 796 P.2d 210, 214 (1990), cert. denied,
------
U.S.
------
, 113 S. Ct. 1824 (1993). A request
is timely when it is early enough to allow the defendant to prepare for trial without a continuance. Id. at 446, 796
P.2d at 214.
Graves' trial was set to begin on June 1, 1993. Just one week before that, on May 25, the district court learned
that Graves intended to move to
competent and intelligent even though the accused lacks the skill and experience of a lawyer,
but the record should establish that the accused was made aware of the dangers and
disadvantages of self-representation. Id.
The trial court must canvass a defendant to determine whether his or her waiver of the
right to counsel is valid. Cohen v. State, 97 Nev. 166, 168, 625 P.2d 1170, 1171 (1981).
To be valid such waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the whole
matter. A judge can make certain that an accused's professed waiver of counsel is
understandingly and wisely made only from a penetrating and comprehensive
examination of all the circumstances under which such a plea is tendered.
Id. (quoting Garnick v. Miller, 81 Nev. 372, 376, 403 P.2d 850, 853 (1965)).
The test of the validity of a waiver is not whether the court explained the elements of the
charged offense or possible defenses to the defendant or provided other specific warnings or
advisements, but whether the record as a whole demonstrates that the defendant understood
the disadvantages of self-representation, including the risks and complexities of the particular
case.' Arajakis v. State, 108 Nev. 976, 980, 843 P.2d 800, 802-03 (1992) (quoting People v.
Bloom, 774 P.2d 698, 716 (Cal. 1989), cert. denied, 449 U.S. 1039 (1990)). Determining the
validity of a waiver of the right to counsel requires a fact-specific inquiry focused on the
background, experience and conduct of the accused. Haberstroh v. State, 109 Nev. 22, 25,
846 P.2d 289, 292, cert. denied, 510 U.S. 858, 114 S. Ct. 169 (1993).
vass as a whole and it is not necessary that the accused establish that he is competent to
represent himself, these cases establish that certain matters should be part of a Faretta
canvass. These matters are: (1) the nature of the charges, (2) the sentences for each charge
and the total possible sentence the defendant could receive, {3) the possible defenses and
mitigating facts the defendant might be able to assert, {4) the background and education
of the accused, {5) the defendant's experience with and understanding of the legal
system, and {6) the defendant's understanding of the right to legal representation that he
is surrendering and the disadvantages of self-representation.
__________
represent himself. On June 1, the day set for trial, Graves formally requested that he be allowed to represent
himself, and the court canvassed him and granted the request. Over Graves' objection, the court reset the trial to
June 28 to provide Graves with time to prepare.
Since the district court here found a continuance necessary, it had the authority to deny the request as untimely if
Graves did not show reasonable cause for the lateness of the request. However, the court failed to inquire into
the reasons for the late request.
each charge and the total possible sentence the defendant could receive, (3) the possible
defenses and mitigating facts the defendant might be able to assert, (4) the background and
education of the accused, (5) the defendant's experience with and understanding of the legal
system, and (6) the defendant's understanding of the right to legal representation that he is
surrendering and the disadvantages of self-representation.
The canvass that Graves underwent did not enable the trial court to determine whether
Graves' waiver of his right to counsel was knowing and intelligent, and the record as a whole
does not demonstrate that Graves understood the dangers and disadvantages of
self-representation. The canvass informed Graves only of the dangers of self-representation
and that the court thought it a bad idea. The trial court did not determine that Graves
understood the nature of the charges he faced, possible defenses or mitigating circumstances,
or the range of the allowable punishments involved, and it did not inquire into the
background, education, or experience of the defendant. Particularly significant was the court's
failure to discuss with Graves the severe risks he faced in the form of the habitual criminal
enhancement sought by the State.
The canvass consisted primarily of the trial court's admonishments to Graves to the effect
that he was foolish to forgo counsel and a number of questions that elicited pro forma
affirmatives from Graves. Graves' only response that was more than a brief affirmative was
his statement that he had had the preliminary transcript for over a month, had reviewed it and
the police reports several times, and was ready. It was, of course, appropriate for the court to
advise Graves that if he represented himself, he would be held accountable to court
procedures, rules, and decorum. However, the court did not inquire into Graves'
understanding of the complexity of those procedures and rules and the difficulty of
conforming to them. It was also appropriate for the court to inform Graves that he would be
giving up the right to appeal his case based on ineffective assistance of counsel and that his
standby counsel would not be permitted to make objections for him during the course of a
trial. However, these warnings did not establish a record that demonstrates that Graves was
aware of the dangers and disadvantages of self-representation.
The canvass did not provide the trial court with an opportunity to assess the intelligence of
Graves' waiver because the court did not elicit from Graves responses indicating his
knowledge of the case or his understanding of how lack of a counsel could hinder his defense.
The court's leading questions did not draw forth answers that revealed the extent of Graves'
understanding or misunderstanding of the risks and complexities of his case and the
dangers of self-representation.
misunderstanding of the risks and complexities of his case and the dangers of
self-representation.
The district court did not canvass Graves as to his background and experience. Nothing in
the record, including his conduct during the trial, shows that he had sufficient education and
experience to allow this court to conclude that his waiver of the right to counsel was knowing
and intelligent. Cf. Haberstroh, 109 Nev. at 29, 846 P.2d at 292-93 (mechanical performance
of Faretta canvass unnecessary where appellant had previously been thoroughly canvassed,
competently represented himself at earlier trial, completed high school and two years of
college, researched and wrote his own motion to proceed pro se, and appeared intelligent,
under control, and familiar with the evidence against him at trial).
This court should reverse because the district court's canvass failed to establish that Graves
knowingly and intelligently waived his right to counsel.
____________
112 Nev. 132, 132 (1996) Casino Properties, Inc. v. Andrews
CASINO PROPERTIES, INC., Managing General Partner; and HACIENDA OPERATING
LIMITED PARTNERSHIP, a Nevada Limited Partnership dba HACIENDA
RESORT HOTEL AND CASINO, Appellants, v. KELLY ANDREWS; and DAVID
DELROSSI and JOAN P. DELROSSI, Individually and as Parents and Guardians of
DAVID JOHN PAUL DELROSSI, II, a Minor, and EILEEN DELROSSI, a Minor,
and DIANNA DELROSSI, a Minor, and PAULA DELROSSI, a Minor, Respondents.
No. 25198
February 29, 1996 911 P.2d 1181
Appeal from an order of the district court striking a motion for a trial de novo in an
arbitration proceeding. Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
Family brought action against hotel for intentional and negligent infliction of emotional
distress, failure to provide protection from abuse by hotel's employees, and invasion of
privacy. After family was awarded $15,000 at arbitration, hotel moved for trial de novo and
family moved to strike hotel's motion. The district court granted family's motion and hotel
appealed. The supreme court held that hotel did not defend arbitration action in good faith.
Affirmed.
Vargas & Bartlett and Debra B. Robinson, Reno, for Appellants.
Melvin S. Lipman, Chtd., Las Vegas, for Respondents.
1. Arbitration.
Good faith participation in arbitration proceedings, for purposes of requesting trial de novo, means meaningful participation.
NAR 22(A).
2. Arbitration.
Finding that hotel did not defend arbitration action in good faith, and was thus not entitled to trial de novo, was supported by
evidence that hotel repeatedly failed to provide family who was locked out of room with information in hotel's security and
employment manuals regarding lock-out procedures, that hotel provided information ten days before arbitration hearing, and that
information was provided too late for family to depose proper parties and form adequate arbitration strategy. NAR 22(A).
OPINION
Per Curiam:
Respondents David and Joan DelRossi, husband and wife, their four young children, and their adult niece, Kelly Andrews, filed suit
against appellants for intentional and negligent infliction of emotional distress, failure to provide protection from abuse by appellants'
employees, and invasion of privacy. Respondents were awarded $15,000 at arbitration, appellants filed a motion for a trial de novo, and
respondents filed a motion to strike appellants' motion. The district court granted respondents' motion and refused to grant a trial de novo
on the basis that appellants did not defend the arbitration action in good faith. We conclude that the district court's refusal to grant a trial de
novo was proper.
FACTS
In August 1993, respondents were guests at appellant Hacienda Resort Hotel and Casino (Hacienda) in Las Vegas for one week. They
had two rooms next to each other, each secured by David DelRossi's credit card. During their stay, the assistant hotel manager, Paula
O'Donnell, reviewed a computer report which indicated that respondents' bill for their hotel rooms exceeded David's credit card limit.
O'Donnell made several attempts to reach David to discuss payment terms but was unsuccessful. O'Donnell then ordered the security guards
to perform a lock-out on both of the rooms. A lock-out is a procedure whereby the security guards lock the guest out of the room and
deny the guest access to his or her personal belongings therein. This forces the guest to come to the front desk to pay his or her bill.
The security guards successfully locked out David and Joan's room and then attempted to
do the same on the second room where Andrews and all of the children were staying. The
security guard informed Andrews that there was a problem with the bill and that he was to
escort her to the front desk so that she could straighten out the problem. Andrews refused to
go on account of the fact that one of the children was ill and the others were allegedly near
hysteria due to the guard's intrusion into the room. Despite Andrews' concerns, the security
guard forced Andrews to go with him to the front desk but allowed the children to remain in
the room. At the front desk, Andrews told O'Donnell that she was not responsible for the
payment of the bill, and O'Donnell eventually located David who paid the bill in full.
In response to the actions taken by O'Donnell and the security guards, respondents filed an
amended complaint against appellants in February 1993, alleging causes of action for
negligent and intentional infliction of emotional distress, invasion of privacy, and appellants'
failure to provide protection from their abusive employees.
On March 18, 1993, respondents' counsel requested production of documents, including
copies of appellant Hacienda's employment and security manuals, by June 15, 1993. On June
16, 1993, Hacienda claimed that the employment and security manuals were irrelevant and
refused to produce them, although it did make O'Donnell and the security guards available for
deposition. The parties met with the discovery commissioner on July 14, 1993, to discuss the
disputes over production. The next day, Hacienda wrote a letter to respondents stating that it
would review its employment and security manuals to determine if the lock-out procedures
existed in written form. On August 2, 1993, Hacienda wrote another letter to respondents
stating that such written information did not exist but that the hotel managers and assistant
managers had knowledge of the procedures. Respondents claimed that they could not depose
those parties because arbitration was set for August 13, 1993, and it was too late to give
timely notice of depositions.
Respondents delivered their pre-arbitration statement in a timely fashion, but appellants
delivered their pre-arbitration statement to respondents the day before the arbitration. In their
pre-arbitration statement, appellants informed respondents for the first time that O'Donnell, a
key witness, would not be present in person but would be available for questioning via
telephone.
The arbitration hearing was held on August 13, 1993, and respondents were awarded
$15,000 plus attorney's fees. Appellants filed a request for a trial de novo, and respondents
filed a motion to strike appellants' request, alleging that appellants failed to defend the
arbitration in good faith pursuant to NAR 22{A).
failed to defend the arbitration in good faith pursuant to NAR 22(A).
1
The district court
granted respondents' motion, concluding that the appellants failed to defend the arbitration
action in good faith, thereby waiving their right to request a trial de novo. Appellants filed a
motion for reconsideration which the district court also denied, concluding that the defense
had not prepared for the arbitration.
DISCUSSION
[Headnotes 1, 2]
The purpose of Nevada's Court Annexed Arbitration Program is to provide a simplified
procedure for obtaining a prompt and equitable resolution of certain civil matters. NAR
2(A). In Gilling v. Eastern Airlines, Inc., 680 F. Supp. 169 (D. N.J. 1988), a federal court
dealing with the issue of good faith participation in arbitration equated good faith with
meaningful participation, and determined that if the parties did not participate in a
meaningful manner, the purposes of mandatory arbitration would be compromised.
2
Id. at
169-70. We agree with this proposition and conclude that appellants did not defend the case
in good faith during the arbitration proceeding because they did not participate in a
meaningful manner.
Appellant impeded the arbitration proceedings by repeatedly failing to provide respondents
with information in appellants' security and employment manuals regarding lock-out
procedures. The information was requested on March 18, 1993, and only on August 2, 1993,
ten days before the arbitration hearing, did appellants inform respondents that such
information on lock-out procedures did not exist in written form. Appellants had various
opportunities to inform respondents that such information did not exist but failed to do so
until it was too late for respondents to act on such information. The late date of appellants'
disclosure amounted to a lack of meaningful participation because it compromised
respondents' ability to depose the proper parties and form an adequate arbitration strategy.
We conclude that the trial court did not abuse its discretion when it refused to grant
appellants' request for a trial de novo.
__________

1
NAR 22(A) states:
The failure of a party or an attorney to either prosecute or defend a case in good faith during the
arbitration proceedings shall constitute a waiver of the right to request a trial de novo.

2
The purposes of New Jersey's mandatory arbitration are to provide the parties with a quick and inexpensive
means of resolving their dispute while, at the same time, reducing the court's caseload. Gilling v. Eastern
Airlines, Inc., 680 F. Supp. 169, 169 (D. N.J. 1988). We conclude that these purposes are substantially similar to
those set forth in NAR 2(A).
when it refused to grant appellants' request for a trial de novo. Evidence shows that appellants
failed to defend their case in good faith, and because of that, the trial judge had the authority
to deny the request for a new trial.
3

CONCLUSION
The district court's order striking appellants' motion for a trial de novo was proper.
Accordingly, we affirm the order.
____________
112 Nev. 136, 136 (1996) Davidsohn v. Steffens
LUIS DAVIDSOHN, Appellant, v. BARBARA STEFFENS, as Executrix of THE ESTATE
OF HELEN DOYLE, Deceased, Respondent.
No. 25704
February 29, 1996 911 P.2d 855
Appeal from an order of the district court awarding attorney's fees. Eighth Judicial District
Court, Clark County; Thomas A. Foley, Judge.
Attorney fees were awarded in favor of commercial lease tenant by the district court.
Landlord appealed. The supreme court held that tenant's three-month delay in requesting fees,
until after deadline for landlord to file appeal had passed, was unreasonable and prejudiced
landlord.
Reversed.
Dickerson, Dickerson, Lieberman & Consul and Douglass A. Mitchell, Las Vegas, for
Appellant.
Lionel Sawyer & Collins, Las Vegas, for Respondent.
Absent manifest abuse of discretion, appellate court will not overturn trial court's award of attorney fees.
2. Costs.
Whether request for attorney fees is timely is determination left to discretion of trial court.
3. Costs.
Discretionary power to deny award of attorney fees is sufficient protection against post-judgment motion which
unfairly surprises or prejudices party.
__________

3
We note that Chamberland v. Labarbera, 110 Nev. 701, 877 P.2d 523 (1994), which requires that the trial
judge support an order denying a request for a trial de novo with specific findings and conclusions, is not
applicable in this case. The arbitration in the instant case occurred in August 1993, and the district court's denial
of appellants' motion occurred in November 1993. Chamberland, which was decided in July 1994, specifically
states that it applies to all future cases. Id. at 705, 877 P.2d at 525.
protection against post-judgment motion which unfairly surprises or prejudices party.
4. Costs.
Motion for attorney fees should be made reasonably promptly after entry of judgment to permit opposing party to decide whether
to appeal based on amount of attorney fees awarded against it. NRAP 4(a)(l).
5. Costs.
Three-month delay following entry of judgment in seeking attorney fees was prejudicial and unreasonable, precluding fee award.
Opposing party did not receive notice fees were sought until after deadline for filing appeal had passed, party seeking fees knew that
fees were important to decision whether to appeal, and fee request was not filed until after death of trial judge who previously denied
earlier motion for fees.
OPINION
Per Curiam:
Appellant Luis Davidsohn sued for declaratory relief to terminate a lease with his tenant, respondent Helen Doyle.
1
The district
court granted summary judgment in favor of Doyle but denied Doyle's later motion to amend
the judgment to award attorney's fees. On appeal, this court reversed the summary judgment
and remanded for further proceedings.
After a bench trial, Davidsohn's complaint was dismissed, and Doyle was awarded costs.
Counsel for both parties discussed Davidsohn's forgoing his right to appeal in exchange for
Doyle's forgoing her right to seek attorney's fees. Doyle's attorney later denied that an
agreement was reached. However, for more than three months after entry of the district court's
judgment, Doyle did not request attorney's fees, and Davidsohn did not appeal the judgment.
By the time Doyle filed a request for fees, the deadline for appealing the judgment had
passed, and the trial judge had died. A visiting district judge granted Doyle's request and
ordered Davidsohn to pay attorney's fees in the sum of $98,077.00.
Davidsohn appealed from this order as well as the earlier judgment. This court dismissed
the appeal as untimely except in regard to the order awarding attorney's fees. Davidsohn
claims that Doyle unreasonably waited to request fees until after the deadline for filing an
appeal had passed and that he was prejudiced as a result. We agree and reverse the order
awarding attorney's fees.
FACTS
Appellant Davidsohn leased land and commercial warehouses to respondent Doyle.
__________

1
The executrix of Doyle's estate is the respondent in this case, but this opinion will refer to the respondent as
Doyle.
to respondent Doyle. The lease required Doyle to keep the leased premises in good condition
and allowed Davidsohn to re-enter the property and terminate the lease upon breach by Doyle.
Davidsohn filed for declaratory relief in May 1988 to terminate the lease, alleging that the
property was in disrepair.
Both parties moved for summary judgment, and the district court, Judge Thomas A. Foley
presiding, granted Doyle's motion. Each party was directed to bear its own fees and costs.
Doyle moved to amend the judgment to allow her attorney's fees of $36,917.36. Judge Foley
denied the motion. This court reversed the summary judgment. Davidsohn v. Doyle, 108 Nev.
145, 825 P.2d 1227 (1992). Upon remand, a bench trial was held in September 1993. Judge
Foley decided in Doyle's favor, ordering dismissal of Davidsohn's complaint and payment of
costs in the amount of $3,191.70. He did not order payment of attorney's fees.
Over three months later, on January 20, 1994, Doyle moved for attorney's fees totaling
$98,077.00. In the meantime, Judge Foley had died. Davidsohn opposed the motion. His
counsel stated in an affidavit:
On or about October 20, 1993, I had a telephone discussion with Defendant's
attorney . . . wherein we agreed that my client would forego his right to appeal the
judgment entered in this case in exchange for Defendant's forbearance from claiming
attorney's fees as the prevailing party; in reliance of this agreement, Plaintiff did not
appeal the final judgment . . . .
In an affidavit, Doyle's counsel gave a different version of the phone conversation:
[Davidsohn's counsel] wanted to know whether Mrs. Doyle would seek attorneys' fees
because that could affect whether or not his client would take an appeal. I told him my
client would be willing to enter into an agreement not to seek attorneys' fees in
exchange for plaintiff's agreement not to appeal and he said that he would get back to
me after talking to his client . . . .
Doyle's counsel alleged that Davidsohn's counsel never phoned him back. He also alleged that
he phoned Davidsohn's counsel on January 13, 1994, and reminded him that Davidsohn had
not yet paid costs and that no agreement had been reached regarding seeking attorney's fees.
Doyle's counsel sent Davidsohn's counsel a letter that same day, which stated that if Doyle
did not pay costs, I will proceed to obtain attorneys' fees, there having been no agreement
between us that I would not seek such fees.
On February 23, 1994, visiting District Judge James Brennan heard argument on the
motion for attorney's fees, and the next day he entered an order awarding Doyle the full
sum of $9S,077.00 as fees.
day he entered an order awarding Doyle the full sum of $98,077.00 as fees.
DISCUSSION
This court must decide whether Doyle's delay in seeking attorney's fees was unreasonable,
whether Davidsohn was prejudiced by the delay, and whether the district court abused its
discretion in awarding fees. Doyle filed her request for attorney's fees more than three months
after entry of judgment and more than two months after the deadline for an appeal of the
judgment had passed. A party in a civil action must file a notice of appeal no later than thirty
(30) days after the date of service of written notice of the entry of the judgment or order
appealed from. NRAP 4(a)(1). Davidsohn did not appeal the judgment against him until
Doyle requested an award of fees; consequently, this court dismissed the major part of his
appeal, which related to that judgment.
[Headnotes 1, 2]
Absent a manifest abuse of discretion, this court will not overturn a district court's award
of attorney's fees. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138,
1139-40 (1994). Whether a request for attorney's fees is timely is a determination left to the
discretion of the trial court. Farmers Ins. Exchange v. Pickering, 104 Nev. 660, 662, 765 P.2d
181, 182 (1988). The discretionary power to deny such requests is sufficient protection
against post-judgment motions which unfairly surprise or prejudice a party. Id. In Pickering,
this court concluded that a plaintiff was diligent in seeking fees where [h]is request was
made immediately upon completion of the appellate processas soon as he was assured that
he was the prevailing party. Id.
[Headnote 3]
A motion for attorney's fees should be made reasonably promptly after entry of judgment
because a losing party may decide whether to appeal based on the amount of an award of
attorney's fees against it. Pruitt v. State, Dept. of Public Safety, 825 P.2d 887, 895 (Alaska
1992). In Pruitt, the losing party actually filed his appeal within the mandatory thirty-day
deadline. The court concluded that he was nevertheless prejudiced when the winning party
filed its motion for fees seven months after the judgment and forced him to file motions to
supplement the points on appeal and for permission to file supplemental briefing. Id. at
895-96. The court held that the motion for attorney's fees was not filed within a reasonable
time and that the trial court abused its discretion in awarding fees. Id. at 896.
[Headnotes 4, 5]
We conclude that Doyle's delay of more than three months after the judgment before
filing her request for attorney's fees was unreasonable.
after the judgment before filing her request for attorney's fees was unreasonable. She has not
offered any reason to justify this delay, and Davidsohn was prejudiced by the delay since he
received no notice that Doyle would seek fees until after the deadline for filing an appeal had
passed. Although the parties dispute whether or not Doyle agreed not to seek attorney's fees in
return for Davidsohn's forgoing his right to appeal, it is undisputed that on October 20, 1993,
Davidsohn's attorney at the very least informed Doyle's attorney that Doyle's decision
regarding attorney's fees was important to Davidsohn's decision whether to appeal. Doyle
then did not request attorney's fees during the running of the period for filing an appeal. We
conclude that it was therefore reasonable for Davidsohn to believe that Doyle had decided not
to seek fees and in reliance on that belief not to act on his right to appeal and, conversely, that
it was unreasonable for Doyle to delay in this fashion before seeking fees.
Furthermore, we consider it relevant that Doyle did not file a request for attorney's fees
until after Judge Foley's death. Judge Foley had already denied an earlier motion by Doyle to
award her attorney's fees after she won summary judgment against Davidsohn. Then in his
oral ruling at the end of the trial, the judge said nothing about fees or costs and simply
directed Doyle's counsel to prepare the order dismissing Davidsohn's complaint. The written
judgment signed by Judge Foley specifically assessed costs in the amount of $3,191.70 and
said nothing about attorney's fees. Doyle then did not seek attorney's fees for over three
months. Given these facts, we consider Doyle's filing her request for fees after Judge Foley's
death unreasonable.
We conclude that Doyle was not reasonably diligent in seeking attorney's fees, that her
delay was prejudicial to Davidsohn, and that the district court abused its discretion in
awarding her fees.
CONCLUSION
Doyle waited more than three months after entry of judgment before filing her request for
attorney's fees. In the meantime, Davidsohn reasonably expected that fees would not be
sought and did not file an appeal, the deadline for such a filing passed, and the trial judge,
who denied Doyle's earlier request for fees, died. Given these circumstances, Doyle was not
diligent in seeking attorney's fees, Davidsohn was prejudiced by the delay, and the district
court abused its discretion in awarding fees.
We therefore reverse the district court's order.
2

__________

2
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
____________
112 Nev. 141, 141 (1996) Alward v. State
DAVID THOMAS ALWARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24994
February 29, 1996 912 P.2d 243
Appeal from an order of the district court denying a motion for a new trial and from a
judgment of conviction, pursuant to a jury trial, of one count of second-degree murder with
use of a deadly weapon. Third Judicial District Court, Churchill County; Mario G.
Recanzone, Judge.
The supreme court, Shearing, J., held that: (1) defendant had legitimate expectation of
privacy in tent where crime occurred; (2) exigent circumstances exception to search warrant
requirement applied only as long as emergency existed; (3) admission of illegally seized
evidence was not harmless error; (4) defendant was in custody when he made incriminating
statement and, thus, Miranda warnings should have been given; (5) probable cause existed
for warrantless arrest of defendant; and (6) admission of videotape of statements defendant
made to mental health counselor was not harmless error.
Steffen, C. J., dissented.
Rick Lawton and Associates, Fallon; Laura Wightman FitzSimmons, Las Vegas, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Kevin Pasquale, District Attorney,
Arthur E. Mallory, Chief Deputy District Attorney and Linda S. White, Special Deputy
District Attorney, Churchill County, for Respondent.
Defendant's lack of ownership of tent that was searched did not preclude standing to challenge lawfulness of search. Tent was
defendant's home for the duration of camping trip and defendant had legitimate expectation of privacy in the tent. U.S. Const. amend.
4.
Warrantless search of tent in which defendant had reasonable expectation of privacy violated defendant' right to be free from
unreasonable searches and seizures. U.S. Const. amend. 4.
Searches conducted outside judicial process, without prior approval by judge or magistrate, are per se unreasonable, subject only
to a few specifically established and well-delineated exceptions. Const. art. 1, l8; U.S. Const. amend. 4.
In all cases outside exceptions to search warrant requirement, Fourth Amendment requires interposition of neutral
and detached magistrate between police and persons, houses, papers, and effects of citizens.
Fourth Amendment requires interposition of neutral and detached magistrate between police and persons, houses, papers, and effects of
citizens. U.S. Const. amend 4.
5. Criminal Law.
Appellate court reviews lawfulness of warrantless search de novo. U.S. Const. amend 4.
One exception to search warrant requirement is the existence of exigent circumstances, including a medical emergency. U.S.
Const. amend. 4.
Warrantless search under exigent circumstances exception to warrant requirement must be strictly circumscribed by exigencies
which justify its initiation. U.S. Const. amend 4.
Police may make prompt warrantless search of area under exigent circumstances exception to warrant requirement to determine
whether there are other victims or whether killer is still on premises. U.S. Const. amend. 4.
Police may seize any evidence in plain view during course of legitimate emergency activities under exigent circumstances
exception to search warrant requirement. U.S. Const. amend. 4.
Scope of warrantless emergency entry into tent when police were told that victim shot herself was limited to rendering any possible
assistance to victim and securing possible crime scene; once emergency dissipated, by establishing that victim was dead, police could
not search the premises simply because they were lawfully present. U.S. Const. amend. 4.
During warrantless emergency entry into tent, police lawfully seized items discovered in plain view in tent, which was crime scene,
and in nearby truck bed. U.S. Const. amend. 4.
Failure to obtain a warrant before searching closed containers inside tent, which was crime scene, and nearby truck rendered
search invalid. U.S. Const. amend. 4.
13. Criminal Law.
Where error of constitutional proportions has been committed conviction may stand if error is determined to be harmless beyond a
reasonable doubt. U.S. Const. amend. 4.
14. Criminal Law.
Admission of illegally seized evidence was not harmless error in prosecution for second-degree murder, where that evidence, by
prosecution's admission, constituted significant proportion of proof against defendant. U.S. Const. amend. 4.
15. Criminal Law.
Pursuant to Miranda, a suspect may not be subjected to interrogation in official custody unless that person has previously been
advised of and has knowingly and intelligently waived the right to silence, the right to the presence of an attorney, and the right to
appointed counsel if suspect is indigent. U.S. Const. amend. 5.
16. Criminal Law.
Custody, for purposes of when Miranda rights attach, means a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest, U.S. Const. amend. 5.
formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. U.S. Const. amend. 5.
17. Criminal Law.
Appellate court will not disturb district court's determination of whether a defendant was in custody, for purposes of determining
whether Miranda rights attach, where that determination is supported by substantial evidence. U.S. Const. amend. 5.
18. Criminal Law.
When defendant is not formally arrested, pertinent inquiry regarding whether defendant is in custody for purposes of
determining whether Miranda rights attach, is how a reasonable man in suspect's position would have understood his situation. U.S.
Const. amend. 5.
19. Criminal Law.
Trial court must consider totality of circumstances in determining whether defendant was in custody for purposes of determining
whether Miranda rights attached, and no single factor is dispositive. U.S. Const. amend. 5.
20. Criminal Law.
Important considerations, in determining whether defendant was in custody for purposes of determining whether Miranda rights
attached, include the site of the interrogation, whether investigation focused on suspect, whether objective indicia of arrest were
present, and length and form of questioning. U.S. Const. amend. 5.
21. Criminal Law.
Reasonable person in defendant's position would have concluded that he was in custody and Miranda warnings were required
despite defendant's request that police not leave him, where defendant's hands were bagged, interrogation occurred in room used for
interviews and equipped with a special mirror, and apart from a visit by a mental health counselor, only defendant and police were
present in room. U.S. Const. amend. 5.
22. Criminal Law.
Statements defendant made after receiving Miranda warnings were voluntary, although defendant was questioned for several
hours, where coercive interrogation techniques such as food and sleep deprivation were not used. U.S. Const. amend. 5.
23. Arrest.
Probable cause existed to make warrantless arrest of defendant. Defendant's claim that victim had committed suicide was
inconsistent with scene at the tent which had already been investigated at time of arrest. U.S. Const. ament. 4.
24. Criminal Law.
Evidence will not be excluded as fruit of the poisonous tree unless illegality is at least the but for cause of discovery of evidence.
25. Criminal Law.
Defendant's incriminating statements to police were not inadmissible as being fruit of the poisonous tree, where defendant failed to
specify what police referred to when they told him that evidence was discovered at scene which indicated that he was lying.
26. Criminal Law.
Statements made to mental health counselor were inadmissible, where police implied that conversation was private and counsel
urged police to close door as they were leaving. U.S. Const. amend. 14.
27. Criminal Law.
Error in admission of videotape of defendant's statements to mental health counselor was not harmless in prosecution for
second-degree murder with use of deadly weapon, although interview did not contain probative new information, where videotape was
an important part of state's case in that it assisted in demonstrating defendant's guilt by showing how he changed his story over time.
OPINION
Appellant David Thomas Alward appeals from the district court's denial of his motion for a new trial and from the judgment of
conviction. Alward raises numerous contentions on appeal, including whether: (1) the State concealed its theory of the case, (2) the State
violated NRS 173.045(2) by listing numerous witnesses, and only calling a few of those witnesses, (3) evidence pertaining to Alward's
character was improperly introduced, (4) autopsy photographs numbered twenty and twenty-one were improperly admitted, (5) a
compilation of portions of home videos was improperly admitted, (6) the prosecutor committed misconduct, (7) the district court erred in
failing to instruct the jury on the voluntariness of Alward's post-Miranda statements, and (8) juror misconduct occurred. We determine that
these claims are without merit.
However, we conclude that certain evidence obtained in violation of Alward's rights under the Fourth and Fifth Amendments of the
United States Constitution and Article 1, sections 8 and 18 of the Nevada Constitution was erroneously admitted. Therefore, we reverse the
judgment of conviction and remand the case for further proceedings consistent with this opinion.
FACTS
On February 25, 1993, at approximately 5:00 p.m., appellant David Thomas Alward (Alward) flagged down a car carrying
mineworkers near the Sand Mountain turnoff on Highway 50, east of Fallon. Alward told them that his girlfriend Kristina Marie Baxter
(Baxter) had shot and killed herself with a .22 caliber handgun. Other workers arrived shortly thereafter in a truck equipped with a
telephone, called for help, and waited with Alward until help arrived.
Sergeant Leonard Bogdanowicz and Nevada Highway Patrol Trooper Brian Jorgensen were the first officers to arrive. The officers
asked Alward what happened, and Alward told them that he and his girlfriend Baxter were camping at Sand Mountain, that they had
argued, and that he went for a walk, heard a shot, and ran back to the tent.
they had argued, and that he went for a walk, heard a shot, and ran back to the tent. Alward
repeatedly told Trooper Jorgensen that he did not want to be left alone. Trooper Jorgensen
stayed with Alward while Sergeant Bogdanowicz went to look at the campsite.
Trooper Jorgensen asked Alward if he was armed. Alward replied that he was not and
offered to submit to a search for weapons. The trooper conducted a pat-down search. Alward
then waited in the patrol car with the trooper. While talking with the trooper in the patrol car,
Alward stated that he did not know what happened to the gun that Baxter used to kill herself.
Unbeknownst to Alward, Trooper Jorgensen tape-recorded their conversation.
Bogdanowicz's inspection of the campsite shortly after arriving at Sand Mountain revealed
a tent that was zipped closed and a vehicle parked southwest of the tent. He noticed a bullet
hole in the side of the tent with blonde hairs hanging from the hole. Bogdanowicz unzipped
the tent and saw Baxter lying on the floor with a .38 caliber double action revolver in her left
hand, her middle finger inside the trigger guard but behind the trigger. He stepped into the
tent to verify that she had no pulse. The ambulance crew arrived, entered the tent, and
checked Baxter for life signs. Photographs were taken of the body, which was then removed.
A single bullet wound was present on the body, entering below the chin on the left side of the
neck and exiting at the top of the head on the right side.
Upon returning to the patrol car, Sergeant Bogdanowicz, assisted by Trooper Jorgensen,
bagged Alward's hands
1
in order to later perform an atomic absorption test for the
presence of residue from firing a gun. Investigator Steuart, who had since arrived, instructed
Sergeant Bogdanowicz to transport Alward to the Sheriff's department to be interviewed. The
sergeant testified that, en route, Alward was just talking to me.
Once at the Sheriff's department, Investigator James Wood conducted the atomic
absorption test.
2
Wood testified later that he did not inform Alward that he did not have to
submit to the test. Wood testified that I asked him if he would work with me on it, and he
said yeah. Wood interviewed Alward as he conducted the test. The interview was videotaped
by a hidden camera.
__________

1
Sergeant Bogdanowicz testified that he was instructed to bag Alward's hands. This entailed placing paper
bags over Alward's hands and taping them closed around his wrists.

2
Another officer, Investigator Steuart, testified that the residue obtained from Alward's hands was not tested
after all because it did not meet FBI laboratory criteria.
era. Wood prohibited Alward from making a telephone call and from washing his hands
before the test was completed.
After approximately forty-five minutes of interrogation, Wood told Alward, First thing I
want you to do, now I don't want you to take this wrong because we're just not too sure what's
going on yet, is . . . I want to read you your rights, okay? Wood read Alward the Miranda
3
warnings, and then told him, You can answer questions and stop at any point in time, to
which Alward replied, I don't want to stop. I want to get this over. Another officer,
Investigator Greg Nelson, then entered the room. Wood and Nelson continued to question
Alward, then left him alone in the interrogation room for ten minutes. When they returned,
Nelson told Alward that a counselor was coming to speak with him. Wood introduced the
counselor to Alward, saying, She's the counselor that I told you about. . . . I'm going to leave
you two alone to talk for a little while. A videotape recorded the interview with the mental
health counselor through a special mirror in the interrogation room.
After the counselor left, Wood and Nelson reminded Alward that he had been read the
Miranda warnings and began questioning him again. Over time, Alward altered his account
of how Baxter died, eventually telling the investigators that he and Baxter argued in the tent,
that he left the tent to shoot at a can to blow off steam, returned, threw the gun down on the
sleeping bag, and watched Baxter pick it up and hold it to her head. Alward told the
investigators that he tried to wrest the gun away from her, and it went off, killing her. Nelson
told Alward that he was not going to be arrested, but that he would be held for his own
protection. Alward was confined to jail on a mental health hold and was arrested pursuant
to a warrant in the early morning hours of February 26, 1993. In all, Alward was interrogated
at the Sheriff's department for four to five hours.
At approximately 5:30 p.m. on February 25, 1993, Investigators James Steuart and Daryl
Horsley arrived to inspect the crime scene. As they approached the tent, Steuart and Horsley
observed what appeared to be a single bullet hole in the side of the tent with a strand of hair
hanging from it. Horsley collected the hairs hanging from the hole on the outside of the tent,
which appeared to match the decedent's hair. From the inside of the tent, Horsley collected
the .38 revolver, Baxter's eyeglasses, and her red notebook. These items were in plain view
inside the tent. Steuart and Horsley left the site at approximately 11:00 p.m., zipped the tent
closed, and called in other officers to guard the area overnight.
Horsley testified later that, on the following morning, February 26, 1993, there was slight
snowfall on the ground.
__________

3
Miranda v. Arizona, 384 U.S. 436 (1966).
26, 1993, there was slight snowfall on the ground. Steuart and Horsley returned to finish
rough diagrams. They also gathered all of the evidence inside of the tent, gathered the tent,
and then gathered the truck and load[ed] all into evidence. A matchbox containing 9
millimeter and .45 caliber ammunition was discovered in the tent. Further, one pocket or
pouch located on the inside of the tent, which is part of the tent, was found to contain one live
.38 round and several empty .38 cartridges. Another similar pocket was found to contain
another live .38 round. Two backpacks were also found inside the tent. One backpack
contained Alward's writings.
4
From the bed of the pickup truck, investigators retrieved a 9
millimeter magazine and empty .38 brass casings.
An information was filed on March 2, 1993, charging Alward with the commission of
murder with the use of a .38 caliber revolver. A preliminary hearing was held April 8, 1993,
in justices' court, after which Alward was bound over to district court for trial. On July 28,
1993, Alward filed a motion to suppress the following:
[All] evidence obtained without the benefit of a valid search warrant; all evidence
secured after the detention of the defendant without the benefit of an arrest warrant; all
evidence in written or recorded form arising out of evidence taken from the person,
personal effects, living quarters, lockers, packages, cartons, clothing, vehicle, jail cell,
or any other area protected by the right to privacy of the defendant; any [sic] all
statements of the defendant.
On August 9, 1993, the district court conducted a hearing on the motion to suppress. At
the hearing, Investigator Steuart testified that he was called to investigate a gunshot wound
to the head on a victim. Steuart testified that after investigating the tent, he told Sergeant
Bogdanowicz to take Alward to the Sheriff's office and to call out Investigator Jim Wood to
come down and interview him. Steuart testified that no search warrant was obtained before
conducting the search of the tent or the truck. Investigator Wood testified that he received a
call asking him to go to the Sheriff's department to conduct an interview concerning a
possible suicide. No testimony indicated that the February 26th search was conducted
pursuant to Alward's consent or for the purpose of making an inventory.
__________

4
It appears that the backpack was closed. On direct examination, the prosecution asked Investigator Steuart
whether he recognized the backpack, then inquired, Is that one of the items that you looked into further, so to
speak? Steuart responded affirmatively. In addition, evidence was presented at trial indicating that Alward's
writings were inside a blue folder located inside the backpack.
February 26th search was conducted pursuant to Alward's consent or for the purpose of
making an inventory.
After the hearing on the motion to suppress, the district court determined that the
investigation was carried out to determine whether a suicide had taken place and the
circumstances surrounding it, that Alward was not placed in custody during the period before
Miranda rights were given to Alward, and that the interrogation was to determine the
proceedings that led up to the suicide. The district court further determined that Alward's
confession after he was read the Miranda warnings was voluntary. Finally, the district court
found that at no time was Alward illegally held until he evidenced a desire to commit suicide,
but that had the officers not held him at that time, they would have been accountable. . . . He
was being legally held at that time to prevent him from harming himself. The district court
also found that the mental health counselor was called in to determine whether Alward was
suicidal and that Alward's rights were not violated in obtaining the counselor. The district
court essentially rested its denial of the motion to suppress on its finding that Alward is the
one that instigated the investigation that led to the evidence being reviewed and secured by
the law enforcement officials.
After this ruling, the parties discussed the prosecution's filing of a second amended
Information which still alleged that Baxter was killed by a deadly weapon, but deleted
mention of a .38 caliber revolver. Alward's counsel stated that I'm not objecting. . . . it
doesn't change our defense, and we are not going to be harmed. . . . I don't believe it changes
the defense in any way or jeopardizes it in any way. The amended information was filed on
August 10, 1993.
The trial began on August 10, 1993. At the conclusion of the trial, on August 27, 1993, the
jury returned a verdict of guilty of second-degree murder with use of a deadly weapon. The
district court sentenced Alward to two consecutive terms of life imprisonment. On September
1, 1993, Alward filed a motion for a new trial alleging judicial, prosecutorial, and juror
misconduct. After a hearing, the district court denied the motion.
5
Alward appeals from the
district court's denial of his motion for a new trial, and from the judgment of conviction.
__________

5
The district court made the following findings, among others:
4. Defendant's allegations of judicial misconduct are wholly without foundation.
5. The defendant's allegations of prosecutorial misconduct are predicated on the failure of the State to
disclose its second gun theory. The evidence of record shows that the theory was developed by the
State from the same evidence that had been made available to the defendant.
6. The State had a duty to disclose evidence but not to interpret it for the defendant.
7. The defendant suffered no prejudice by the State's failure to
from the district court's denial of his motion for a new trial, and from the judgment of
conviction.
DISCUSSION
Search of the Tent and the Truck
[Headnote 1]
The State argues that Alward had no property or legitimate possessory interest in either the
tent or the truck,
6
thus had no legitimate expectation of privacy in either the tent or truck,
and therefore cannot challenge the lawfulness of the search and seizure.
7

The Ninth Circuit Court of Appeals has addressed whether the Fourth Amendment
8
protects a person's privacy interests in a tent located on a public campground. In United States
v. Gooch, 6
__________
disclose its theory. The defendant produced an expert who adduced evidence which was contrary to the
State's theory.
8. The allegations of prosecutorial misconduct are without foundation.
. . . .
10. Any discussion of penalty by some jurors was not pervasive or widespread and did not extend to the
whole jury. Any such discussion was incidental and did not appear to in any way influence the jury's
verdict or second degree murder.
11. Jurors were examined on their knowledge of handguns on voir dire where many prospective jurors
expressed that they owned and knew how to use handguns.
. . . .
13. There is no evidence to suggest that the jurors conducted any independent investigation, experiment,
or demonstration not previously suggested by the evidence in open court or that jurors, who professed to
have knowledge of firearms, forced their views on other jurors or such views differed from or were
contrary to the evidence presented at trial[.]

6
In its reply brief, the State paints Alward as a fugitive, having run away from home, taking 15-year-old
Kristina with him. Alward took Kristina's mother's tent, backpacks and other camping equipment with him and
vanished in Debra Alward's truck.

7
Alward's lack of ownership of the tent does not preclude standing to challenge the lawfulness of the search.
The tent was Alward's and Baxter's home for the duration of their trip. Alward had a legitimate expectation of
privacy in the tent. This case is unlike the situation presented to us in Hicks v. State, 96 Nev. 82, 605 P.2d 219
(1980), where the defendant unsuccessfully asserted that his presence in another's apartment conferred standing
upon him to challenge the lawfulness of the search of that apartment.

8
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and persons or
things to be seized.
F.3d 673, 676, (9th Cir. 1993), the defendant, a camper in a public campground, was
reportedly shooting at other campers. The police were summoned, and without seeking an
arrest warrant, ordered Gooch out of his tent, patted him down, arrested him, and handcuffed
and locked him in a patrol car. Id. The officers then ordered Gooch's companion out of the
tent and searched the tent for the firearm, finding a loaded handgun under an air mattress. Id.
The court concluded that Gooch had both a subjective and an objectively reasonable
expectation of privacy in the tent, noting that camping in a public campground as opposed to
on private land was of no consequence since the Fourth Amendment protects people, not
places. Id. at 676-77 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). Further, the
court stated that [t]he fact that the tent may be moved, alone, is not enough to remove the
Fourth Amendment protections. As noted above, tents are protected under the Fourth
Amendment like a more permanent structure. Also, a tent is more analogous to a (large)
movable container than to a vehicle; the Fourth Amendment protects expectations of privacy
in movable, closed containers. Id. at 677 (citations omitted).
[Headnote 2]
We find the reasoning in Gooch persuasive. Alward had a subjective expectation of
privacy in the tent and its contents. He manifested this expectation, at the very least, by
leaving the tent, tent pouches, backpack and other containers closed. Alward had an
objectively reasonable expectation of privacy in the tent and its contents as well. Simply
because appellant camped on land managed by the Bureau of Land Management does not
diminish his expectation of privacy. In Rakas v. Illinois, 439 U.S. 128, 143 (1978), the
Supreme Court interpreted Katz to hold that capacity to claim the protection of the Fourth
Amendment depends not upon a property right in the invaded place but upon whether the
person who claims the protection of the Amendment has a legitimate expectation of privacy
in the invaded place.' Because Alward and Baxter chose to make a tent their temporary
residence, as opposed to staying at a hotel, does not diminish Alward's expectation of privacy.
Indeed, holding that temporary residence at a hotel ensures Fourth Amendment protections,
while temporary residence in a tent does not, would limit the protections of the Fourth
Amendment to those who could afford them. See Stoner v. California, 376 U.S. 483, 490
(1964); Phillips v. State, 106 Nev. 763, 801 P.2d 1363 (1990). Thus, we conclude that
Alward had a reasonable expectation of privacy in the tent such that the warrantless search of
the tent violated the Fourth Amendment. Of course, a warrantless search of the tent would
not have violated the Fourth Amendment had an exception to the warrant requirement
existed.
would not have violated the Fourth Amendment had an exception to the warrant requirement
existed.
[Headnotes 3-5]
The Fourth Amendment to the United States Constitution and Article 1, section 18, of the
Nevada Constitution proscribe all unreasonable searches and seizures. The principle is well
established that searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a
few specifically established and well-delineated exceptions. Katz, 389 U.S. at 354 (footnotes
omitted); Phillips, 106 Nev. at 765, 801 P.2d at 1365. In all cases outside the exceptions to
the warrant requirement, the Fourth Amendment requires the interposition of a neutral and
detached magistrate between the police and the persons, houses, papers, and effects' of
citizens. Thompson v. Louisiana, 469 U.S. 17, 20 (1984). We review the lawfulness of a
search de novo. Gooch, 6 F.3d 673, 676 (9th Cir. 1993).
[Headnotes 6-10]
One exception to the warrant requirement is the existence of exigent circumstances,
including a medical emergency. Mincey v. Arizona, 437 U.S. 385, 392-93 (1978). However, a
warrantless search must be strictly circumscribed by the exigencies which justify its
initiation. Terry v. Ohio, 392 U.S. 1, 25-26 (1967). In this case, the investigators may have
had probable cause to search the tentAlward initially related that Baxter had shot herself
with a .22, and a .38 was found in Baxter's hand with her finger curiously lodged behind the
triggerbut the investigators did not obtain a warrant to search. For such a search to be valid,
it must fall within one of the narrow exceptions to the warrant requirement, as discussed in
Katz. While there is no such thing as a murder scene exception to the warrant requirement,
the Supreme Court has indicated that police may enter a residence without a warrant when
they reasonably believe that a person within is in need of immediate aid. Mincey, 437 U.S.
at 392. Further, police may make a prompt warrantless search of the area to see if there are
other victims or if a killer is still on the premises. Id. The police may also seize any
evidence that is in plain view during the course of their legitimate emergency activities. Id.
at 392-93. Thus, the scope of this warrantless emergency entry was limited to rendering any
possible assistance to Baxter and securing a possible crime scene. Once the emergency
dissipated, i.e., once police established that Baxter was dead, they could not search the
premises simply because they were lawfully present. See Bass v. State, 732 S.W.2d 632 (Tex.
Crim.
App. 1987); State v. Tyler, 598 S.W.2d 798 (Tenn. Crim. App. 1980).
[Headnotes 11, 12]
There is no dispute that the officers' presence in the tent was initially lawful because
Bogdanowicz, Steuart and Horsley were all part of the police response to Alward's call for
help. Any items discovered in plain view in the tent, including the .38 revolver and the red
notebook, were lawfully seized. Items discovered in plain view in the truck bed, including the
9 millimeter magazine and empty .38 brass casings, were likewise lawfully seized. Therefore,
the district court properly denied Alward's pre-trial motion to suppress the .38 revolver, red
notebook, 9 millimeter magazine, and empty .38 brass casings. However, other items seized
in the search, either that evening or the following day pursuant to the general search of the
entire tent and truck, should have been suppressed. Among the items seized from the tent
which were not in plain view were Alward's writings, which were located in a backpack, and
9 millimeter bullets, which were located in a matchbox. Failure to obtain a warrant before
searching inside closed containers in the tent and the truck necessitates suppression of this
evidence, and the district court erred in failing to do so. See United States v. Villarrea, 963
F.2d 770, 773 (5th Cir. 1992) (individuals can manifest legitimate expectations of privacy in
closed, opaque containers that conceal their contents from plain view).
Further, the warrantless search of closed containers inside the tent was not justified by any
other exigent circumstance. Only the victim's body remained in the tentAlward did not
return to the tent after the police arrived, and Alward indicated to the police that no one else
was camping with them at Sand Mountain. There is no indication in the record that officers
could not return to Fallon to obtain a warrant or that they could not obtain a warrant
telephonically. In addition, the tent was guarded after the police left the scene for the evening.
The police obtained a warrant for Alward's arrest that night, and there is no reason why they
could not have obtained a search warrant at that time, or earlier, as well. While the State
argues that the inclement weather created an exigent circumstance, there is no indication that
snowfall would destroy evidence, especially since the exhaustive search of the tent was not
conducted until the following day anyway. Because no other exigent circumstances or other
exception existed to justify the warrantless search, the search violated Alward's Fourth
Amendment rights.
[Headnotes 13, 14]
Where error of constitutional proportions has been committed, a conviction of guilty may
be allowed to stand if the error is determined to be harmless beyond a reasonable doubt.
a conviction of guilty may be allowed to stand if the error is determined to be harmless
beyond a reasonable doubt. Obermeyer v. State, 97 Nev. 158, 162, 625 P.2d 95, 97 (1981).
Here, we cannot say that the admission of items found in closed containers inside the tent was
harmless. Bullets obtained from the matchbox led the prosecution to present the theory that
Alward killed Baxter using a 9 millimeter weapon and then placed the .38 revolver in her
hand. Expert testimony pertaining to the muzzle imprint on Baxter's neck supported this
theory. More importantly, in closing argument, the prosecutor read some of Alward's writings
that police recovered from inside the backpack, arguing that Alward's actions conformed with
the ideas expressed therein.
9
The prosecutor argued that [t]he evidence in this case consists
of three major sections, the defendant's writings, the scene of the crime, and the physical
evidence . . . found there."
__________

9
Specifically, in closing argument, the prosecutor stated, that job [of summing up what has been proven in the
trial] is really . . . already been done for me. Mr. Alward himself summed up this case . . . when he wrote this:
Beauty roses laughing, smiling; bleeding roses sobbing, sighing; torn apart love is lost, is it not love when
it's not? Beauty roses running, flying; bleeding roses falling, dying; life blood crimson on the floor, can
you tell me what's in store? Beauty roses free, and fine; bleeding roses, these are mine.
Bleeding roses torn apart, true love pouring from my heart; life blood crimson on the floor, look what
you've done, you fucking whore. I've wasted so much time living this lie, listening to you say you deserve
one more try.
Well, bitch, it's time to go. The time has come for your true colors to show. I still love you and always
will, now I will show you that my love is real. My time has come, and yours has passed; my time has
come, and yours has passed, and forever my love will last.
Later in his closing argument, the prosecutor recited another of Alward's poems:
Now I think to those days of old when the love was good but the days were cold. Hate really hurts, but
love burns worse.
Kiss me, kiss me, kiss me, whisper your name. Hold me, hold me, hold me, let me play your game.
I was strong, but you fucked up my mind. Help me understand it, I'm falling behind. Why did you do it,
do it to me? Now help me, bitch, help me to see.
Hurt me, hurt me, hurt me, whisper my name. Kill me, kill me, kill me, now play my game.
Everybody tells me how you feel, so now I know that love isn't real. Love is a toy, it's a fucking game that
never really works but who's to blame?
Kiss me, kiss me, kiss me, let me whisper your name. Hold me, hold me, hold me, fuck the games.
And another:
I hate your smile, I hate your laugh, I hate your fucking hair. I hate your lips, I hate your eyes, I hate your
god damn stare. I tried to touch you, tried to taste you, tried to hold you near, but I couldn't get past your
wall built of pain and fear. Tried so hard to break it down, but all
consists of three major sections, the defendant's writings, the scene of the crime, and the
physical evidence . . . found there. Thus, we conclude that admission of the illegally seized
evidence cannot be viewed as harmless error and, therefore, warrants reversal of Alward's
conviction.
Pre- and Post-Miranda Statements
[Headnotes 15, 16]
Miranda established requirements to assure protection of the Fifth Amendment right
against self-incrimination under inherently coercive circumstances. Miranda, 384 U.S. at
444-445. Pursuant to Miranda, a suspect may not be subjected to an interrogation in official
custody unless that person has previously been advised of, and has knowingly and
intelligently waived the following: the right to silence, the right to the presence of an attorney,
and the right to appointed counsel if that person is indigent. Id. at 444. Custody means a
formal arrest or restraint on freedom of movement' of the degree associated with a formal
arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983); accord Oregon v. Mathiason, 429
U.S. 492, 495 (1977).
[Headnote 17]
The district court determined that Alward was not in custody. We will not disturb the
district court's determination of whether the defendant was in custody where that
determination is supported by substantial evidence. Rowbottom v. State, 105 Nev. 472, 480,
779 P.2d 934, 939 (1989). In the instant case, however, we conclude that there is not
substantial evidence to support the district court's determination that Alward was not in
custody.
[Headnotes 18-21]
Since Alward was not formally arrested at the scene, the pertinent inquiry, as with Fourth
Amendment claims, is how a reasonable man in the suspect's position would have
understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). We consider the
totality of the circumstances in deciding whether or not Alward was in custody; no single
factor is dispositive. E.g. Beheler, 463 U.S. at 1125. Important considerations include the
following: {1) the site of the interrogation, {2) whether the investigation has focused on
the subject, {3) whether the objective indicia of arrest are present, and {4) the length and
form of questioning.
__________
that came down was me. Now you are gone, and so am I, at last I'm fucking free.
And yet another:
If you feel as to die, look to the sky, spread your wing, forget your things, release your soul and fly.
Spring has come and passed you by, summer has been your time to fly. Fall was here and told you the
truth, winter is your time to die.
following: (1) the site of the interrogation, (2) whether the investigation has focused on the
subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of
questioning. People v. Celaya, 236 Cal. Rptr. 489, 492 (Ct. App. 1987).
Admittedly, Alward summoned police to the scene and kept telling [Trooper Jorgensen]
over and over not to leave him. However, shortly thereafter, Alward's hands were bagged
to preserve incriminating evidence, and Sergeant Bogdanowicz took Alward to the Sheriff's
department. Once Alward's hands were bagged, he was incapable of leaving the area by
hitchhiking or by driving, and he was incapable of dialing a telephone to request a ride from
another or to call his family. The investigation focused on Alward at the point that police
bagged his hands, since in so doing they attempted to preserve evidence with which to
incriminate him. The bagging of Alward's hands occurred immediately after Bogdanowicz
returned from the tent where he saw that the victim had her finger behind the trigger, not in
front of it, making it unlikely that a suicide occurred. The interrogation at the Sheriff's
department took place in a room used for interviews and equipped with a special mirror.
Apart from the mental health counselor visit, only Alward and the investigators were present
in the interview room. From this, we hold that a reasonable person in Alward's position
would have concluded that he was under arrest. Any interrogation which took place after
Alward's hands were bagged and before Miranda warnings were administered was therefore
custodial, and Miranda safeguards applied. Oregon v. Elstad, 470 U.S. 298, 306 (1985).
The district court therefore erred in failing to suppress that part of the videotape which
contains statements Alward made before the Miranda warnings were administered.
Appellant further contends that statements he made after receiving the Miranda warnings
were the product of coercive interrogation tactics, and therefore, should have been
suppressed.
[Headnote 22]
In Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987), this court listed several
factors which are relevant in determining whether a defendant's statement was voluntary:
[t]he youth of the accused; his lack of education or his low intelligence; the lack of any
advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the deprivation of
food or sleep.
Only the length of detention is a factor hereAlward was questioned for several hours.
However, during that time, there is no indication in the record that any other factors were
present which would detract from voluntariness.
indication in the record that any other factors were present which would detract from
voluntariness. Alward had been read the Miranda warnings and voluntarily waived his rights.
The investigators did not employ coercive interrogation techniques such as depriving Alward
of food or sleep. Considering the totality of the circumstances, we conclude that Alward made
the inculpatory statements voluntarily. Therefore, we hold that the district court properly
admitted the statements which Alward made to police after receiving Miranda warnings and
waiving his Fifth Amendment rights.
Alward further contends that statements he made at the Sheriff's department should have
been suppressed because they were taken following an arrest which was unlawful because the
police lacked probable cause at the time they arrested him, and because his detention
violated NRS 171.123. The State casts Alward's detention as limited to the time that police
conducted an investigation into suspected criminal conduct.
[Headnote 23]
We have held that a warrantless felony arrest may be made if the arresting officer knows of
facts and circumstances sufficient to lead a prudent person to believe that a felony was
committed by the arrestee. Lyons v. State, 106 Nev. 438, 446, 796 P.2d 210, 215 (1990)
(citing Block v. State, 95 Nev. 933, 935, 604 P.2d 338, 339 (1979)). We conclude that
probable cause existed to justify an arrest since Alward's claim that Baxter committed suicide
was inconsistent with the scene in the tent, which Sergeant Bogdanowicz had already
investigated at the time Alward's hands were bagged. Upon unzipping the tent, Sergeant
Bogdanowicz noticed that Baxter's finger was behind the trigger, which was inconsistent with
Alward's story of suicide. Therefore, Alward's arrest was not unlawful, and Alward's
statements were properly not suppressed for this reason.
[Headnotes 24, 25]
Finally, Alward contends that the statements he made after officers informed him of their
discovery of items not in plain view at the scene should have been suppressed as the fruit of
a Fourth Amendment violation. [E]vidence will not be excluded as fruit' unless the
illegality is at least the but for' cause of the discovery of the evidence. Suppression is not
justified unless the challenged evidence is in some sense the product of illegal governmental
activity.' Segura v. United States, 468 U.S. 796, 815 (1984) (quoting United States v.
Crews, 445 U.S. 463, 471 (1980)). Alward fails to specify exactly what the investigators
referred to when they told Alward that evidence was discovered at the scene which indicated
that he was lying when he stated that he was not inside the tent when the gun was fired.
was not inside the tent when the gun was fired. According to our careful review of the record,
the investigators never mentioned any illegal fruit during the interrogation. Thus, there is
no indication in the instant case that the fruits of the illegal search resulted in the production
of Alward's incriminating statements. Here, as in Segura, the illegal search of the tent did not
contribute in any way to Alward making inculpatory statements.
Mental Health Counselor Interview
[Headnote 26]
Alward contends that statements he made to the mental health counselor should have been
suppressed since their admission violated state statutes regarding privilege, and violated his
Fifth Amendment rights. The State responds that Alward's statements to the mental health
counselor were properly admitted because a reasonable person would not believe that the
communication would be confidential or that a patient-therapist relationship was being
established.
There is no evidence in the record that the counselor was a doctor, and statutes pertaining
to the doctor-patient privilege are therefore inapplicable. Neither is there any indication in the
record that the counselor was a social worker registered under NRS chapter 641B, or a
marriage and family therapist under NRS 641A.060. Statutes pertaining to social
worker-patient privilege and therapist-patient privilege are therefore inapplicable as well.
However, we conclude that the introduction of this evidence was unfair to Alward. Our
review of the transcript and the videotape indicates that the communication appeared to be
confidential. Investigator Wood implied that the conversation with the mental health
counselor was a private conversation when he introduced the counselor to Alward, saying,
She's the counselor that I told you about. . . . I'm going to leave you two alone to talk for a
little while. The counselor also urged the departing investigator to close the door so that the
interview could begin. These statements, accompanied by actually closing the door to the
interview room and leaving Alward and the counselor alone in the room, appear to have been
designed to make Alward believe that the conversation was going to be confidential.
Therefore, we conclude that admission of the videotaped interview with the mental health
counselor violated Alward's right to due process guaranteed by the Fourteenth Amendment to
the United States Constitution. McKenna v. State, 98 Nev. 38, 39, 639 P.2d 557, 558 (1982)
(fundamental unfairness, amounting to violation of the defendant's right to due process, for
district court to permit court-appointed psychiatrist who examined the defendant to testify as
to admissions the defendant made during that examination).
tify as to admissions the defendant made during that examination).
[Headnote 27]
The interview with the mental health counselor does not contain probative new
information. However, the videotape of the interview was an important part of the State's case
in that it assisted in demonstrating Alward's guilt by showing how he changed his story over
time. Therefore, we cannot conclude that this error was harmless beyond a reasonable doubt,
Chapman v. California, 386 U.S. 18, 24 (1966), and we hold that the district court erred in
failing to suppress it. Since we conclude that this portion of the videotape was improperly
admitted on due process grounds, we do not reach Alward's Fifth Amendment argument.
CONCLUSION
The judgment of conviction is reversed and the case is remanded for further proceedings
consistent with this opinion.
Young, Springer, and Rose, JJ., concur.
Steffen, C. J., dissenting:
Respectfully, I dissent.
The primary basis for the majority's reversal of Alward's judgment of conviction is based
upon the conclusion that the State engaged in an unlawful search and seizure that produced
incriminating evidence in violation of the Fourth Amendment. I disagree. Using what I
consider to be common sense and compelling logic, the district court denied the defense
motion to suppress on the basis that Alward is the one that instigated the investigation that
led to the evidence being reviewed and secured by the law enforcement officers.
Alward is the one who summoned help and directed the officers to the tent where the
victim allegedly shot herself. Alward, who was seeking to convince officers that the death
was a suicide, made no suggestion to the officers that they were not free to fully examine and
investigate the scene of the victim's death. The tent, which belonged to the victim, was being
shared by the two young people, and there is no indication that Alward intended to direct
investigating officers to the body, and then invoke a constitutional right to restrict any search
and investigation of the area to a time after which a search warrant was obtained.
I am unable to discern any aspect of unreasonableness to the search undertaken by the
officers. Nor do I derive relevant meaning from the fact that the tent and truck housed closed
containers. There is no reason to believe from what occurred before or after Alward
summoned assistance, that he went about closing containers so that the investigators he
summoned would be foreclosed from gaining entry without a warrant.
closing containers so that the investigators he summoned would be foreclosed from gaining
entry without a warrant. Indeed, a reasonable mind would conclude that when a person
summons officers to what he or she describes as a suicide scene, the surviving witness would
want the officers to freely seek evidence confirming the fact of suicide. In this case, it is clear
that Alward hoped to convince the officers that the young woman indeed succumbed to her
own act of suicide. It is ridiculous to assume that he would expect to appear credible in the
face of restricting the officers' freedom of access to anything at the death scene pending the
acquisition of a search warrant. This conclusion is especially cogent under circumstances
where the victim and Alward were sharing such close and temporary quarters.
I have no difficulty distinguishing Gooch from the instant case. Gooch was firing at other
campers and did not invite the assistance or presence of police officers in his tent. His
expectation of privacy was not eliminated by an invitation of entry and investigation to law
enforcement authorities. However, in the instant case, Alward sought assistance from the
officers, and intended to convince them of his girlfriend's suicide. At the very least, he
impliedly waived all right to an expectancy of privacy and consented to the officers' searching
investigation.
Although there was trial error discussed by the majority, I would hold that the error was
harmless beyond a reasonable doubt under the circumstances of this case.
For the reasons briefly outlined above, I would affirm the judgment of conviction entered
against Alward pursuant to the verdict of the jury. I therefore dissent.
____________
112 Nev. 159, 159 (1996) McKague v. Warden
KENNETH D. McKAGUE, Appellant, v. WARDEN, HAROL L. WHITLEY, Nevada State
Prison, Respondent.
No. 25816
February 29, 1996 912 P.2d 255
Appeal from an order of the district court dismissing a second post-conviction petition for
a writ of habeas corpus in a capital case. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Defendant was convicted of two counts of first-degree murder and other crimes and
sentenced to death. His conviction and sentence were confirmed on direct appeal by the
supreme court, 101 Nev. 327, 705 P.2d 127 (1985). Defendant's petition for writ of habeas
corpus was denied by the district court, and defendant's appeal from denial was untimely
filed.
appeal from denial was untimely filed. Defendant's second petition for writ of habeas corpus
was dismissed with prejudice by the district court and defendant appealed. The supreme
court, Shearing, J., held that: (1) defendant had no right to effective assistance of counsel, or
any constitutional or statutory right to counsel at all, in post-conviction proceedings; (2)
defendant could not demonstrate good cause for filing successive petition for habeas corpus
based on ineffective assistance of post-conviction counsel claim; (3) result would not have
been different had defendant's post-conviction counsel timely appealed from denial by trial
court of defendant's first petition; and (4) defendant was not entitled on statutory grounds to
hearing on merits of second petition.
Affirmed.
[Rehearing denied July 24, 1996]
James J. Jackson, Public Defender and Roger H. Stewart, Deputy Public Defender, Carson
City, for Appellant.
Frankie Sue Del Papa, Attorney General and Keith G. Munro, Deputy Attorney General,
Carson City; Noel Waters, District Attorney, Carson City, for Respondent.
1. Criminal Law.
Defendant convicted of murder and sentenced to death had no statutory right to counsel in post-conviction proceeding prior to
1993.
2. Criminal Law.
Under Sixth Amendment to United States Constitution, there is no right to effective assistance of counsel, or to counsel at all, in
post-conviction proceedings. U.S. Const. amend. 6.
3. Criminal Law.
Right to counsel provision of state constitution is co-extensive with Sixth Amendment to United States Constitution, and thus does
not guarantee right to counsel in post-conviction proceedings. Const. art. 1, 8; U.S. Const. amend. 6.
4. Habeas Corpus.
Defendant convicted of murder and sentenced to death could not demonstrate good cause for filing successive petition for habeas
corpus based on claim of ineffective assistance of post-conviction counsel. Const. art. 1, 8; U.S. Const. amend. 6; NRS 34.810(3).
5. Criminal Law.
Petitioner may make ineffectiveness of post-conviction counsel claim if his post-conviction counsel was appointed pursuant to
statute mandating appointment of counsel in first post-conviction proceeding of petitioner under sentence of death. Const. art. 1, 8;
U.S. Const. amend. 6; NRS 34.820(1)(a).
6. Habeas Corpus.
Claims raised in first petition for writ of habeas corpus of defendant convicted of murder and sentenced to death were not
meritorious, and therefore result would not have been different had defendant's post-conviction counsel timely appealed from denial by
trial court of defendant's first petition. Defendant failed to explain circumstances surrounding each allegation of ineffectiveness of trial
counsel, why district court was incorrect, and whether case law issued subsequently applied retroactively. Const. art. 1, 8; U.S.
Const. amend. 6.
7. Courts.
Doctrine of law of the case was inapplicable to merits of petitioner's second petition for habeas corpus, where only district court
had ruled on merits of his first petition for post-conviction relief; only appellate court decision could constitute law of the case with
respect to second petition.
8. Habeas Corpus.
Petitioner was not entitled to statutory grounds to hearing on merits of second petition for habeas corpus, where claims in second
petition were, in part, not new or different grounds for relief, prior determination was on merits, petitioner's failure to assert claims
raised for first time in second petition in prior petition constituted abuse of writ, and petitioner was unable to show good cause for his
failure to present the claims. NRS 34.810(2).
9. Criminal Law.
Disposition on merits of claims in petition for post-conviction relief is final decision that may not be relitigated by filing of
successive petition.
OPINION
Kenneth McKague was convicted of two counts of first-degree murder and other crimes in 1979. He was sentenced to death for the
murders. This court affirmed the conviction and the sentence in McKague's direct appeal. McKague v. State, 101 Nev. 327, 328, 705 P.2d
127, 128, cert. denied, 474 U.S. 1038 (1985). McKague subsequently filed a Post-Conviction Petition for a Writ of Habeas Corpus
pursuant to NRS 177.315-385 in the Second Judicial District Court, alleging ineffective assistance of his trial counsel.
1
The district
court denied the petition. McKague's counsel failed to timely appeal. Because McKague's
counsel filed an untimely appeal, this court dismissed the appeal for lack of jurisdiction.
McKague v. State, Docket No. 19228 (Order Dismissing Appeal, August 25, 1988).
__________

1
McKague later filed a motion to rename his post-conviction petition for a writ of habeas corpus a Petition for
Post-Conviction Relief, pursuant to Daniels v. State, 100 Nev. 579, 688 P.2d 315 (1984). The motion was
granted.
McKague filed a second post-conviction petition for a writ of habeas corpus in proper
person, alleging, inter alia, prior and additional claims of ineffectiveness of trial counsel and
a new claim of ineffectiveness of his first post-conviction counsel for counsel's failure to file
a timely appeal. The district court dismissed the petition with prejudice concluding that some
claims had already been disposed of on the merits in the prior petition, and the other claims
could have been raised in McKague's first petition; the district court determined that
McKague's failure to assert those new grounds in the prior petition constituted an abuse of the
writ. See NRS 34.810(2). The district court further concluded that post-conviction counsel's
failure to timely perfect an appeal could not constitute cause for filing a successive petition,
because McKague was not entitled to effective assistance of counsel in post-conviction
proceedings pursuant to Coleman v. Thompson, 501 U.S. 722 (1991) (counsel's failure to
timely file notice of appeal in state court did not excuse procedural default to permit habeas
review).
2
The district court also concluded that Grondin v. State, 97 Nev. 454, 634 P.2d 456
(1981), which sets forth the standard for what constitutes failure to provide the required
caliber of representation in post-conviction proceedings, was inapplicable. Finally, the district
court concluded that, in any event, McKague failed to demonstrate that he was prejudiced by
his counsel's failure to appeal, stating that McKague failed to demonstrate that the result
would have been different had the appeal been timely."
__________

2
Because this was McKague's second petition for post-conviction relief, pursuant to NRS 34.810(3) he had to
establish cause and prejudice in order to reargue issues which were previously rejected on their merits or to
raise new grounds. NRS 34.810 provides, in pertinent part:
1. The court shall dismiss a petition if the court determines that:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the petition could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or post-conviction
relief; or
(3) Raised in any other proceeding that the petition has taken to secure relief from his conviction
and sentence,
unless the court finds both cause for the failure to present the grounds and actual prejudice to the
petitioner.
2. A second or successive petition must be dismissed if the judge or justice determines that it fails to
allege new or different grounds for relief and that the prior determination was on the merits or, if new and
different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and proving specific facts
that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the claim again; and
(b) Actual prejudice to the petitioner.
demonstrate that the result would have been different had the appeal been timely.
McKague appeals, arguing that (1) he has a right to effective assistance of counsel in
post-conviction proceedings, (2) the ineffective assistance of his post-conviction counsel
prejudiced his ability to litigate his substantive claims and was sufficient to excuse the
procedural default, and (3) the district court erred in applying the doctrine of the law of the
case to claims he had already presented in his first petition.
[Headnote 1]
McKague has no statutory right to counsel in a post-conviction proceeding. Nevertheless,
McKague argues that Grondin provides for a state law right to effective assistance of counsel
in a post-conviction proceeding for three reasons. First, he asserts that Grondin is still good
law and has not been overruled by this court. Second, he argues that United States Supreme
Court case law does not undermine or negate Grondin, because the Nevada Supreme Court
may interpret the state constitution to provide the appellant with greater protection than that
provided by the United States Constitution. Third, McKague contends that although the
United States Supreme Court recognized in Coleman v. Thompson, 501 U.S. 722 (1991), and
Pennsylvania v. Finley, 481 U.S. 551 (1987), that there is no federal right to effective
assistance of counsel or to counsel at all in post-conviction proceedings, these decisions do
not alter the law of states which recognize the right to effective assistance of counsel.
McKague cites Commonwealth v. Albert, 561 A.2d 736 (Pa. 1989), decided subsequent to
Finley and on state law grounds, for the proposition that submission of a post-conviction brief
completely lacking in substance constitutes ineffective assistance of counsel.
[Headnote 2]
It is true that under the Sixth Amendment to the United States Constitution there is no
right to effective assistance of counsel, or to counsel at all, in post-conviction proceedings.
See Coleman, 501 U.S. at 752; Finley, 481 U.S. at 555; Bonin v. Vasquez, 999 F.2d 425,
429-30 (9th Cir. 1993).
[Headnote 3]
The Nevada Constitution also does not guarantee a right to counsel in post-conviction
proceedings, as we interpret the Nevada Constitution's right to counsel provision as being
coextensive with the Sixth Amendment to the United States Constitution. Cf. Warden v.
Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985) (adopting the
federal standard of review for petitions alleging ineffective assistance of counsel claims in
Nevada). We note that Grondin was not decided as a matter of state constitutional law.
matter of state constitutional law. The allegation of ineffective assistance of post-conviction
counsel in Grondin was raised pursuant to the Sixth Amendment to the United States
Constitution. 97 Nev. at 455, 634 P.2d at 457. As a result, it is clear that Grondin was
decided based upon this court's interpretation of Sixth Amendment jurisprudence. It is now
clear from Coleman and Finley that the right to counsel under the United States Constitution
never extended to state collateral proceedings and that this court merely misperceived the
status of federal law in Grondin.
3

McKague concedes that if he has no right to effective assistance of counsel in a
post-conviction proceeding, he cannot complain that his post-conviction counsel failed to
timely appeal. We hold that McKague has no right to effective assistance of counsel, let alone
any constitutional or statutory right to counsel at all, in his post-conviction proceedings.
4

[Headnotes 4, 5]
Because McKague has no federal constitutional, state constitutional or statutory right to
counsel, or effective assistance of counsel, in a post-conviction proceeding, McKague cannot
demonstrate good cause for filing a successive petition based on an ineffectiveness of
post-conviction counsel claim. NRS 34.810(3). Where there is no right to counsel there can
be no deprivation of effective assistance of counsel and hence
__________

3
The fact that in Grondin, 97 Nev. at 456, 634 P.2d at 457, we stated that Nevada law presumes effective
assistance of counsel in post-conviction proceedings can only mean that this court made such a presumption
based upon its perception of existing federal law at the time given the concurrence in meaning between the Sixth
Amendment and Article 1, section 8 of the Nevada Constitution.

4
In the debate concerning the right to effective counsel, some argue that the right to effective counsel should
extend to a first post-conviction proceeding, since that is the first time that a petitioner can challenge the
effectiveness of his trial counsel's performance. Indeed, in Nevada, the appropriate vehicle for review of whether
counsel was effective is a post-conviction relief proceeding. See Gibbons v. State, 97 Nev. 520, 523, 634 P.2d
1214, 1216 (1981) (examination of the trial record alone is insufficientthe more appropriate vehicle for
presenting a claim of ineffective assistance of counsel is through post-conviction relief so that an evidentiary
hearing may be held).
We need not address whether there exists such an exception to the general rule that a petitioner is not entitled to
constitutionally effective post-conviction counsel because one state court has addressed McKague's
ineffectiveness of trial counsel claims: the district court in McKague's first post-conviction petition. The
effectiveness of McKague's counsel before that court is not at issue here. McKague contends that it was the
ineffectiveness of his counsel during the appeal from that determination that constitutes good cause to excuse
his default. It is clear that McKague has no constitutional right to effective counsel on appeal from the denial of
his first post-conviction petition. See Coleman, 501 U.S. at 755-57.
effective assistance of counsel and hence, good cause cannot be shown based on an
ineffectiveness of post-conviction counsel claim. Cf. Coleman, 501 U.S. at 752-54 (clarifying
that attorney error can be cause only if it constitutes ineffective assistance of counsel
violative of the Sixth Amendment).
5

[Headnote 6]
In any event, we note that it would not have mattered if McKague's post-conviction
counsel had timely appealed, as McKague's claims lack merit. McKague lists twelve claims
of ineffective assistance of his trial counsel for this court to consider.
6
He argues that the
existence of any of the errors demonstrates a reasonable probability that this court would
have reversed the district court's denial of his first petition.
__________

5
NRS 34.820(l)(a) mandates that counsel be appointed in a petitioner's first post-conviction proceeding when a
petitioner is under sentence of death. This statute became effective on January 1, 1993, and was not operative at
the time McKague was appointed post-conviction counsel. As a matter of statutory interpretation, we note that
where state law entitles one to the appointment of counsel to assist with an initial collateral attack after judgment
and sentence, [i]t is axiomatic that the right to counsel includes the concomitant right to effective assistance of
counsel. Albert, 561 A.2d at 738. Thus, a petitioner may make an ineffectiveness of post-conviction counsel
claim if that post-conviction counsel was appointed pursuant to NRS 34.820(l)(a).

6
McKague lists the following twelve errors in his opening brief, which have been paraphrased:
1. Counsel's failure to withdraw an insanity plea when not arguing insanity.
2. Counsel's concession of guilt in the opening statement clearly merits a new trial under Jones v. State,
110 Nev. 730 (1994).
3. Complete failure of trial counsel to investigate the case and impeach the alleged accomplices, i.e. to
investigate what the indeterminate blood stains on appellant's clothing indicated; to investigate who was
the trigger-man in a case which, as here, hinged on witness credibility.
4. Counsel's stipulation to admitting prior grand jury testimony by an alleged accomplice is incredibly
incompetent and constitutes prejudicial ineffectiveness in view of Bruton v. United States, 391 U.S. 123
(1968). Failure to object to similar testimony has already led to reversal because of ineffectiveness of
counsel.
5. Trial counsel failed to challenge inaccurate and biased jury instructions and prosecutorial misconduct
in closing.
6. Trial counsel's waiver of the right to a closing statement, thus completing a total abandonment of the
appellant at that stage of the trial. In part, this abandonment appears to have happened because counsel
thought the appellant stank.
7. Trial counsel's almost abject failure at sentencing to have investigated and to present mitigating
circumstancesincluding evidence of appellant's relatives who wished to testify about the childhood,
disposition, and history of appellant.
8. Trial counsel's failure to object at sentencing to the use of a rap sheet and the improper cross of the
lone defense witness, including an apparently unsubstantiated question indicating that the appellant had
tried to kill his mother. This last accusation could apparently have been refuted by
strates a reasonable probability that this court would have reversed the district court's denial
of his first petition. He also argues that the cumulative effect of multiple errors may have
deprived him of a fair trial. While McKague cites to the record on appeal and cites case law
for the proposition that his trial counsel was ineffective, he does not explain the
circumstances surrounding each allegation of ineffectiveness, why the district court was
incorrect, and/or whether case law issued subsequently applies retroactively.
In the decision denying McKague's first petition, the Second Judicial District Court
concluded that his substantive claims were not meritorious. We conclude that the district
court did not abuse its discretion in denying McKague's first post-conviction petition because
his claims indeed were not meritorious. Therefore, the result would not have been different
had his post-conviction counsel timely appealed.
[Headnote 7]
After an evidentiary hearing on McKague's second petition, the First Judicial District
Court concluded that the prior decisions of this court and the Second Judicial District Court
constituted the law of the case and that any claim previously decided was procedurally barred
under that doctrine. McKague argues that the First Judicial District Court, in dismissing his
second petition, erred by concluding that the doctrine of the law of the case applies because
this court had not considered the merit of his claims.
The doctrine of the law of the case is inapplicable because only appellate court decisions
may constitute the law of the case. See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798
(1975). Instead, NRS 34.810(2) governs this situation:
__________
the mother of appellant who wished to testify but was advised not to by trial counsel.
9. Trial counsel's failure to object to jury instructions and to argument based on enhancement factors
other than those in the prosecution's statement of intent to seek the death penalty. Moreover, finding of
depravity of mind and tortureone of the unnoticed factors found by the juryhas since been found to
be unconstitutional where, as here, these items were not defined for the jury.
10. Failure to object to the prosecutor's improper arguments that imposing the death penalty would make
certain the appellant would not kill again, that imposing it was a deterrent, and an inflammatory reference
to Nazi Germany.
11. Trial counsel was ineffective in failing to object to the prosecutor's language which implied that
commutation of a death sentence was impossible.
12. Trial counsel was ineffective in both the trial and penalty phases by failing to raise and brief issues
that three other parties, besides appellant's cousin, were accomplices.
A second or successive petition must be dismissed if the judge or justice determines
that it fails to allege new or different grounds for relief and that the prior determination
was on the merits or, if new and different grounds are alleged, the judge or justice finds
that the failure of the petitioner to assert those grounds in a prior petition constituted an
abuse of the writ.
NRS 34.810(2) provides that a court must dismiss a successive petition if it determines
that the petition fails to allege new claims and the prior determination was on the merits; if
new claims are alleged, the court must dismiss the successive petition if it determines that the
failure to raise those claims in a prior petition constitutes an abuse of the writ.
[Headnotes 8, 9]
The claims that the First Judicial District Court refused to review were not new or
different grounds for relief, but rather were claims that the Second Judicial District Court had
already determined on the merits in McKague's first petition.
7
While McKague also asserted
new claims for relief, the district court concluded that McKague's failure to assert those
grounds in a prior petition constituted an abuse of the writ, which conclusion McKague does
not challenge here. Given these circumstances, the district court had to dismiss McKague's
second petition pursuant to NRS 34.810(2), which it did, unless, of course, McKague could
show good cause for his failure to present the claims or for presenting them again and
actual prejudice.
However, the only good cause McKague argues for failing to raise the same claims
again on appeal is the alleged ineffective assistance of his post-conviction counsel in failing
to timely appeal the denial of the first petition. Because we have already concluded that this
does not constitute good cause, given that McKague has no right to counsel or effective
assistance of counsel in a post-conviction proceeding, the district court did not err in
dismissing McKague's petition.
For the foregoing reasons, we affirm the district court's order denying McKague's second
post-conviction petition for a writ of habeas corpus.
Steffen, C. J., and Young and Rose, JJ., concur.
Footnote 6 of the majority opinion lists twelve claims of ineffective assistance by
McKague's trial counsel.
__________

7
The Second Judicial District Court's disposition on the merits of McKague's claims in the first petition was a
final decision that may not be relitigated by the filing of a successive petition. See Washington v. State, 104 Nev.
309, 311, 756 P.2d 1191, 1193 (1988).
ineffective assistance by McKague's trial counsel. No judicial tribunal has heard these claims
on their merits. This is a death penalty case, and I believe that McKague's claims should be
heard on their merits.
I see the majority's denying McKague a hearing on his second post-conviction petition to
be overly-technical and contrary to the interests of justice. I am of the view that if a
death-sentenced defendant is provided with counsel by the State, the defendant has an implied
right to decent and competent representation. The majority is apparently of the opposite view
when it holds that that [w]here there is no right to counsel[,] there can be no deprivation of
effective assistance of counsel, and hence, good cause' cannot be shown based on an
ineffectiveness of post-conviction counsel claim. It is quite clear (if by no other indication
than the failure to file a timely appeal) that McKague was not adequately represented. I am
unwilling to overlook the unfairness inherent in ignoring this fact.
I disagree with the majority's conclusion that the failure of McKague's counsel to file a
timely appeal does not constitute good cause,' given that McKague has no right to counsel
or effective assistance of counsel in a post-conviction proceeding. I do not believe that once
counsel is appointed to represent a petitioner for post-conviction relief in a death case that a
reviewing court can ignore incompetent representation of such a client. In my opinion, the
ineffective representation given to McKague in this case constitutes good cause for permitting
McKague to assert this position in post-conviction proceedings. I would remand to the trial
court to give McKague the opportunity to be heard.
____________
112 Nev. 168, 168 (1996) Miller v. State
JOHN KILIOI MILLER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25836
February 29, 1996 911 P.2d 1183
Appeal from a judgment of conviction, pursuant to a jury trial, of one count of first degree
murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Myron
E. Leavitt, Judge.
The supreme court held that: (1) defendant presenting evidence of insanity during interval
that coincides with commission of crime charged is entitled to correct and complete
instruction that insanity on temporary basis can be defense to the crime; (2) defendant was not
entitled to jury instructions on temporary insanity; and {3) denial of defendant's proffered
instructions, coupled with remarks by prosecutor and trial court made subsequent to
reading of jury instruction on insanity that temporary insanity was not defense, materially
and prejudicially contused jury.
insanity; and (3) denial of defendant's proffered instructions, coupled with remarks by
prosecutor and trial court made subsequent to reading of jury instruction on insanity that
temporary insanity was not defense, materially and prejudicially confused jury.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Clark
County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney,
James Tufteland, Chief Deputy, David Bruce Barker, Deputy, Clark County, for Respondent.
1. Criminal Law.
To prove defendant is insane under M'Naghten test, defense must show that defendant labors under such mental defect that
defendant cannot understand nature of his actions, or cannot tell difference between right and wrong.
2. Criminal Law.
Successful insanity defense must show that elements of M'Naghten existed at time of act alleged. Finding of criminal liability
requires conclusion that defendant's culpable mental state existed contemporaneously with culpable act.
3. Criminal Law.
Defendant presenting evidence of insanity during interval that coincides with commission of crime charged is entitled to correct
and complete instruction that insanity on temporary basis can be defense to the crime.
4. Criminal Law.
Murder defendant was not entitled to jury instructions on temporary insanity, where insanity instructed given by district court
addressed contemporaneous requirement of M'Naghten rule by stating in two places that sanity of defendant had to be determined at
time of commission of offense or crime.
5. Criminal Law.
Denial of proffered instructions on temporary insanity offered by murder defendant, coupled with remarks by prosecutor and trial
court made subsequent to reading of jury instruction on insanity that temporary insanity was not defense to crime charged, materially
and prejudicially confused jury.
OPINION
Per Curiam:
FACTS
On May 8, 1993, Robyn Goring (Goring) was stabbed to death in the apartment she shared with appellant John Kilioi Miller
{"Miller") and their two children.
Miller (Miller) and their two children. Maria Jordan (Jordan), an officer on the Las Vegas
police force, lived in the apartment directly below Goring and Miller's apartment. Jordan
heard loud noises in the apartment above her on May 8, 1993. When Jordan went to the
upstairs apartment, Miller opened the door and stated something to the effect that I blew it
or I lost it. Jordan noticed blood on Miller's clothes, two children in the apartment's living
room and the body of a young woman on the kitchen floor.
Officers responded to a 911 call by Jordan and observed Goring's body on the kitchen
floor with a knife protruding from her torso. While being transported to the police station,
Miller stated that he did not deserve to be treated nicely. Before and after Miller was
informed of his Miranda rights, he volunteered incriminating statements. Miller stated, I lost
control and I just picked her up, and I'm sorry. I don't want to live anymore. Shoot me.
Also, Miller's shirt and the bottom of his pants appeared to be bloodstained.
The medical examiner's office found a total of forty-two stab wounds, many superficial,
inflicted upon Goring's body. On June 10, 1993, Miller was charged with first degree murder
with the use of a deadly weapon. At trial, Goring's mother and sister testified that Goring
lived with Miller for twelve years, but was planning to leave Miller because he oppressively
controlled Goring's life and was physically violent toward her.
Thomas Bittker (Bittker), an expert in psychiatry, testified regarding Miller's history of
seizures and other symptoms that are indicative of depression. Bittker noted that Miller's
medical history conspicuously lacked any evidence of amnesia or a violent episode
associated with a specific seizure. Bittker concluded that no clear evidence existed to connect
Miller's seizure disorder with the killing of Goring. The parties stipulated that if Bittker was
recalled as a witness, he would conclude that Miller was sane at the time of the murder.
Norton Roitman (Roitman), a certified psychiatrist, diagnosed Miller as suffering from
organic aggressive and delusional behavior, a seizure condition that was first recognized by
dysfunctional brain wave activity when Miller was twenty-two years old. Miller's aggressive
outbursts started early in his life and resulted in rage that was totally out of proportion to the
stimuli. According to Roitman, Miller's personality condition is directly related to his seizure
activity. But for this condition, Roitman concluded that the attack on Goring would not have
occurred. Roitman also concluded that when Miller stabbed Goring, he could not appreciate
the nature of his acts and could not recognize the difference between right and wrong.
the difference between right and wrong. Also, according to Roitman, Miller can only
understand what he is doing before the violence is triggered, whereupon his outburst is not
structured, but has a flaring, slashing quality. Remorse then sets in when the violent outburst
subsides. In conclusion, Roitman stated that Miller was not sane at the time of the stabbing.
Austin Moody (Moody), a certified neurologist, testified for the defense and agreed with
Roitman regarding Miller's abnormal brain activity and personality disorder. Moody believed
that Miller suffers from an aggressive brain disorder whereby violence can be triggered
quickly and end quickly, immediately followed by remorse. Moody concluded that before the
stabbing of Goring, Miller was sane; but during the stabbing, Miller could not appreciate the
nature of his actions and was insane.
Dr. Jack Jurasky, a psychiatrist who testified for the prosecution, concluded that Miller's
outburst was of such a violent nature that he could not have appreciated the nature of his
actions when he stabbed Goring.
Miller's sister, Annie Pedro (Pedro), testified that on one occasion, Miller hit their
brother ten times in an outburst that ended as abruptly as it began. Afterwards, Miller was
very remorseful. On another occasion, according to Pedro, Miller struck her numerous times
and immediately apologized, not knowing why he hit her. Miller's father testified that Miller
did not remember attacking Goring and that there were a lot of things his son did not
remember.
At the close of the guilt phase of the trial, the jury found Miller guilty of first degree
murder with the use of a deadly weapon. At the penalty hearing, Miller was sentenced to life
in prison without the possibility of parole.
Miller raises five contentions in this appeal: (1) whether the district court properly refused
to give Miller's proffered jury instructions regarding the insanity defense, (2) whether the
prosecution's and the district court's comments regarding temporary insanity unduly
prejudiced Miller, (3) whether the prosecution's penalty phase argument for sympathy for the
victim unduly prejudiced Miller, (4) whether the district court properly admitted hearsay
statements of the victim, and (5) whether the district court properly admitted evidence of
Miller's prior bad acts. Because we conclude that the denial of Miller's proffered instructions,
coupled with the subsequent comments of the State and the district court regarding temporary
insanity, confused the jury and unduly prejudiced Miller's trial, this opinion does not address
Miller's latter three contentions.
DISCUSSION
[Headnotes 1, 2]
The M'Naghten test for insanity has been applied in Nevada since 1889. State v. Lewis, 20
Nev. 333, 22 P. 241 (1889). To prove a defendant is insane under the M'Naghten test, the
defense must show that the defendant labors under such a mental defect that the defendant
cannot understand the nature of his actions, or cannot tell the difference between right and
wrong. See Kuk v. State, 80 Nev. 291, 298-99, 392 P.2d 630, 634 (1964) (explaining the
holding of Lewis). Because a finding of criminal liability requires a conclusion that a
defendant's culpable mental state existed contemporaneously with a culpable act, a successful
insanity defense must show the elements of M'Naghten existed at the time of the act. See
United States v. Fox, 95 U.S. 670, 671 (1877).
In the trial below, Miller's defense theory was that he was sane before and after killing
Goring, but was insane during the actual killing. Three medical experts testified that his
mental condition made him prone to fall into violent seizures while completely sane. Further
testimony showed that Miller could then act extremely violent with no ability to appreciate
the nature of his actions, but would come out of the seizure acting deeply remorseful upon
realizing the nature of his conduct. Miller presented evidence that on May 8, 1993, he fell
into a violent seizure, stabbed Goring forty-two times, and then came out of the seizure
consumed with remorse. Three medical experts concluded that Miller satisfied the M'Naghten
insanity test during the period in which he stabbed Goring.
At the close of evidence in the trial below, the district court instructed the jury to
determine whether Miller was legally insane when he killed Goring. The district court also
instructed the jury that a finding of insanity required proof that at the time Miller killed
Goring, he was laboring under a defect of the mind that caused him not to understand the
nature or quality of his actions, or that what he was doing was wrong. Finally, the district
court instructed the jury to consider Miller's mental condition before and after the killing to
throw light on what Miller's mental condition was at the time of the killing.
Concerned that the jury was confused about the time duration component of the insanity
defense, Miller proffered two jury instructions. The first proffered instruction was entitled
temporary insanity and stated that [r]egardless of its duration, legal insanity which existed
at the time of the commission of the crime is a defense to the crime. The second proffered
instruction stated that when evidence shows that at times the defendant was legally insane
and at other times he was legally sane, he has the burden of proving by a preponderance
of the evidence that he was legally insane at the time of the commission of the act.
insane and at other times he was legally sane, he has the burden of proving by a
preponderance of the evidence that he was legally insane at the time of the commission of the
act. The district court denied Miller's proffered instructions, ruling that the instructions
described temporary insanity and that temporary insanity is not a defense in Nevada.
On two occasions during closing arguments in the guilt phase of Miller's trial, the
prosecutor told the jury that temporary insanity is not a recognized defense in Nevada. On one
occasion, the prosecutor stated that [o]n defense's closing you heard about organic
aggressive syndrome in relation to temporary insanity or insanity in general. Again, there's no
such thing as temporary insanity in this state. It does not exist. The district court endorsed
the prosecutor's statements by overruling Miller's objections to the statements and
proclaiming, He [the prosecutor] can argue that it's not a defense under the law.
[Headnote 3]
The district court based its denial of Miller's proffered instructions, and its allowance of
the prosecutor's statements regarding temporary insanity, on this court's decisions in Fox v.
State, 73 Nev. 241, 316 P.2d 924 (1957), and Singleton v. State, 90 Nev. 216, 522 P.2d 1221
(1974).
In Fox, the defendant sought a jury instruction that evidence of a mental defect could
lessen his degree of guilt even though he could not satisfy the M'Naghten test for insanity.
Fox, 73 Nev. at 242-43, 316 P.2d at 925. In essence, Fox was requesting a diminished
capacity defense. Id. at 243, 316 P.2d at 925. The Fox court denied the use of diminished
capacity as a justification for a lesser degree of guilt. Id. at 245, 316 P.2d at 926. However, in
so ruling, the Fox court characterized Fox's defense as that of temporary insanity. Id. at
242, 316 P.2d at 925.
In Singleton, this court cited to Fox and stated that [a] mental disorder less than insanity
does not itself destroy the capacity to premeditate or to entertain the requisite intent.
Singleton, 90 Nev. at 220, 522 P.2d at 1223. Like Fox, the defense proffered in Singleton was
not insanity for a temporary interval of time. Id.
We conclude that Fox and Singleton considered only the diminished capacity defense, a
condition that can be present only in the absence of M'Naghten insanity. The diminished
capacity defense, in states where it is recognized, requires only a showing of a mental illness
that is partially responsible for the defendant's conduct. See State v. Wilcox, 436 N.E.2d 523
(Ohio 1982). The diminished capacity defense does not require a showing that the defendant
could not appreciate the nature of his acts or determine whether his acts were right or wrong.
Id.
Accordingly, we conclude that any implication drawn from the reference in Fox and
Singleton to temporary insanity is misplaced and the spawning ground for substantial
confusion. Clearly, a person can benefit from the M'Naghten insanity defense if he shows he
was insane during the temporal period that coincides with the time of the crime. Flowers v.
State, 139 N.E.2d 185, 196 (Ind. 1957). Technically and semantically, such a finding is
temporary insanity. Therefore, if a defendant presents evidence of insanity during the interval
that coincides with the commission of the crime charged, that defendant is entitled to a
correct and complete instruction that insanity on a temporary basis can be a defense to the
crime.
[Headnote 4]
We conclude that the district court properly denied Miller's instructions when they were
offered. The instructions given by the district court addressed the contemporaneous
requirement of the M'Naghten rule. In two places, the instructions stated that the sanity of the
defendant had to be determined at the time of the commission of the offense or crime. As
such, the essence of Miller's proffered instructions were contained in the instructions given by
the district court. See Collins v. State, 88 Nev. 168, 170, 494 P.2d 956, 957 (1972).
However, after the instructions were given, the district court and the prosecutor told the
jury that temporary insanity is not a defense. Even though the jury instructions stated that
insanity must be present at the time of the commission of the offense, the jury was not told
that the duration of the insanity does not matter. The jury was not told that the insanity
defense applied even if the evidence showed Miller to be legally insane at some time and yet
legally sane at others.
[Headnote 5]
We conclude that allowing the prosecutor to comment that temporary insanity is not a
defense materially confused the jury. The jury was then faced with the dilemma of
distinguishing between whether insanity existed for the time interval that coincides with the
time of the criminal act or for a temporary time. While Miller's proffered instructions could
have alleviated the jury's confusion, the district court refused to offer those instructions to the
jury. Therefore, the denial of Miller's proffered instructions, coupled with the comments of
the State and the district court regarding temporary insanity, prejudicially confused the jury.
CONCLUSION
In this case, Miller presented competent evidence that he was insane when he killed
Goring, but was sane before and after the killing.
insane when he killed Goring, but was sane before and after the killing. Accordingly, Miller
was entitled to a correct and complete instruction that excusable insanity, even for a short
period, could be a defense to the crime. Moreover, comments of the prosecutor and the
district court regarding the unavailability of temporary insanity as a defense in Nevada
hopelessly confused the jury.
Accordingly, Miller's judgment of conviction is reversed and this matter is remanded for a
new trial.
1

____________
112 Nev. 175, 175 (1996) Walls v. Brewster
MAUREEN ANNE WALLS, Appellant, v. SHARON J. BREWSTER, Respondent.
No. 25895
February 29, 1996 912 P.2d 261
Appeal from an order dismissing a complaint for failure to arbitrate a case within one year.
Automobile accident case was dismissed with prejudice by the district court due to
plaintiff's attorneys' failure to complete arbitration on case within one year of appointment of
arbitrator, and their failure to oppose defendant's motion to dismiss. After plaintiff's motion to
vacate, alter, or amend order granting motion to dismiss was denied, plaintiff appealed. the
supreme court held that dismissal with prejudice was appropriate in light of evidence of lack
of diligence.
Affirmed.
Hamilton and Lynch, Reno, for Appellant.
Lemons, Grundy & Eisenberg and Alice G. Campos, Reno, for Respondent.
1. Pretrial Procedure.
Automobile accident case was properly dismissed with prejudice for plaintiff's attorneys' failure to complete arbitration on case
within one year of appointment of arbitrator, and their failure to oppose defendant's motion to dismiss. Although first attorney's illness
may have been basis for claim of excusable neglect, she could have prepared opposition before she became ill but was
instead occupied by another case, and second attorney had requested two extensions, which gave him
additional six weeks to prepare and file opposition, yet, without explanation, he failed to file opposition by
deadline.
__________

1
The legislature revised NRS 174.035 in 1995, thereby replacing the plea of not guilty by reason of insanity
with the plea of guilty but mentally ill. 1995 Nev. Stat., ch. 637, 5 at 2450. The amendment will not affect
Miller's prosecution because the amendatory provisions are applicable only to offenses committed on or after
October 1, 1995. Id. 61 at 2485.
before she became ill but was instead occupied by another case, and second attorney had requested two extensions, which gave him
additional six weeks to prepare and file opposition, yet, without explanation, he failed to file opposition by deadline.
Every court has inherent power, in exercise of sound judicial discretion, to dismiss cause for want of prosecution.
Plaintiff has duty to use diligence and to expedite his case to final determination.
Decision of trial court to dismiss case for lack of prosecution will not be disturbed on appeal unless it is made to appear that there
has been gross abuse of discretion.
Court's inherent power to dismiss case for want of prosecution exists independent of any authority granted under statutes or court
rules.
OPINION
Per Curiam:
Appellant Maureen Anne Walls brought suit against respondent Sharon Brewster for injuries resulting from a minor automobile
accident. The case was referred to arbitration. Walls failed to complete arbitration on the case within one year of the appointment of an
arbitrator, and Brewster filed a motion to dismiss pursuant to the Nevada Rules of Arbitration. Brewster's motion went unopposed, and the
district court dismissed Walls' case. The court also denied Walls' motion to vacate, alter, or amend the order granting the motion to dismiss.
We conclude that the district court's order dismissing the case was proper. We further conclude that the district court's denial of the
motion to vacate, alter, or amend the order granting the motion to dismiss was proper.
FACTS
This case arises from an automobile accident between Walls and Brewster. Walls hired attorneys Vivian Lynch and David Hamilton,
who were partners, and filed a complaint on July 6, 1992. Lynch signed the complaint, but all other mailings and documents were
addressed to and signed by Hamilton. After an extension was granted, the answer was filed on November 5, 1992.
The case was ordered into court annexed arbitration, and an arbitrator was appointed on February 10, 1993, and the date for arbitration
was set for July 15, 1993. Due to several discovery disputes, the arbitration was delayed until September 21, 1993. The arbitration
proceeded on that day, and Walls gave partial testimony.
testimony. However, due to additional evidentiary disputes, the arbitration was continued
until February 4, 1994, with the intention of concluding the arbitration by February 9, 1994,
which was within one year from the date of the appointment of the arbitrator.
Hamilton was unable to attend the February 4, 1994 arbitration due to a severe respiratory
infection. Hamilton informed the arbitrator of his illness, and the arbitration was again
continued. As a result, the arbitration did not conclude by February 9, 1994, and on February
16, 1994, Brewster filed a motion to dismiss in district court based upon the fact that the
arbitration had not taken place within one year of the date that the district court appointed the
arbitrator.
Brewster claimed that she contacted Hamilton prior to submitting the motion to dismiss
and that Hamilton stated that Lynch was handling the matter but was busy with another case
at the moment. Brewster granted Walls an extension until March 5, 1994, to file the
opposition, and when an opposition was not filed by this date, Brewster again contacted
Hamilton for an explanation. Hamilton stated that Lynch had been severely ill and bedridden
for several weeks with congestive heart failure and, as such, was not able to prepare the
motion. Given this information, the time for opposition was extended until March 28, 1994.
In mid-March, Lynch was released by her physician to work part time. She expected to
complete the opposition motion prior to the March 28 deadline; however, shortly after her
release, she suffered a relapse of her heart condition, was confined to bed rest for one month,
and was unable to work. Hamilton stated that he tried to reach Brewster to obtain a short
extension so that he could file the motion himself but that he was unable to reach opposing
counsel before the motion was submitted to the court.
On April 8, 1994, the district court, citing NAR 12(B),
1
entered an order granting
Brewster's motion to dismiss. Additionally, the district court stated that, pursuant to NAR
22(A),
2
the dismissal was with prejudice because Walls had waived her right to a trial de
novo.
Walls filed a motion to vacate, alter, or amend the district court order, claiming that the
failure to file an opposition was the result of excusable neglect.
__________

1
NAR 12(B) states, in pertinent part, that [a]ll arbitration hearings must take place within one year of the date
that the district court appoints the arbitrator.

2
NAR 22(A) states:
The failure of a party or an attorney to either prosecute or defend a case in good faith during the
arbitration proceedings shall constitute a waiver of the right to request a trial de novo.
of excusable neglect. The trial court denied this motion, stating that Lynch's illness may have
constituted excusable neglect but that there was no valid claim of excusable neglect as to
Hamilton who was not ill and who could have filed the opposition.
DISCUSSION
[Headnote 1]
The Court Annexed Arbitration Program was established to provide a simplified
procedure for obtaining a prompt and equitable resolution of certain civil matters. NAR
2(A). In order to assure the prompt resolution of civil matters, [a]ll arbitration hearings must
take place within one year of the date that the district court appoints the arbitrator. NAR
12(B).
After the February 4, 1994 arbitration was continued past February 9, 1994, Brewster filed
her motion to dismiss, and Walls had ten days to respond. DCR 13(3); WDCR 12(2). Walls
received two extensions of time within which to file the opposition; however, no opposition
was filed prior to the deadline.
Failure of the opposing party to serve and file his written opposition may be construed as
an admission that the motion is meritorious and a consent to granting the same. DCR 13(3).
We conclude that it was proper for the district court to construe Walls' failure to respond to
Brewster's motion to dismiss as an admission that the motion was meritorious and as a
consent to grant the motion.
[Headnotes 2-5]
Additionally, we conclude that the district court did not abuse its discretion when it
dismissed Walls' case with prejudice. Every court has the inherent power, in the exercise of
a sound judicial discretion, to dismiss a cause for want of prosecution. The duty rests upon
the plaintiff to use diligence and to expedite his case to a final determination. The decision of
a trial court in dismissing a cause for lack of prosecution will not be disturbed on appeal
unless it is made to appear that there has been a gross abuse of discretion.' Moore v. Cherry,
90 Nev. 390, 395, 528 P.2d 1018, 1021 (1974) (quoting Sweeny v. Anderson, 129 F.2d 756,
758 (10th Cir. 1942)). This power to dismiss a case exists independent of any authority
granted under the statutes or court rules. Id. at 393, 528 P.2d at 1020.
The element necessary to justify dismissal for failure to prosecute is lack of diligence . . .
whether individually or through counsel. Id. at 395, 528 P.2d at 1022. In this case, evidence
showed that in late February, before she became ill, Lynch could have prepared the
opposition but was instead occupied by another case. Furthermore, Hamilton had requested
two extensions, which gave him an additional six weeks to prepare and file the opposition;
yet, without explanation, he failed to file the opposition by the March 2S, 1994 deadline.
which gave him an additional six weeks to prepare and file the opposition; yet, without
explanation, he failed to file the opposition by the March 28, 1994 deadline. This evidence
shows a lack of diligence to expedite the case to a final determination, and therefore it was
not an abuse of discretion for the district court to dismiss Walls' claim with prejudice.
3

Finally, we conclude that the district court did not abuse its discretion in denying Walls'
motion to vacate, alter, or amend the order of dismissal. Evidence showed that Lynch's illness
may have been the basis for a claim of excusable neglect as the cause for her failing to file the
opposition, but no such excuse extended to Hamilton. He provided no explanation for his
failure to file the opposition, and therefore the district court properly denied the motion.
CONCLUSION
The district court's order granting Brewster's motion to dismiss with prejudice was proper
because Walls did not diligently oppose that motion. Furthermore, the district court's denial
of Walls' motion to alter, vacate, or amend the order granting the motion to dismiss was
proper because there was no showing of abuse of discretion by the district court. Accordingly,
we affirm the district court's order dismissing Walls' action with prejudice.
____________
112 Nev. 179, 179 (1996) Cook v. Cook
JANE COOK, now JANE FIELD, Appellant, v. FRANK C. COOK, Respondent.
No. 26135
February 29, 1996 912 P.2d 264
Appeal from an order of the district court denying a motion to vacate a divorce decree and
for a new trial. Eighth Judicial District Court, Clark County; Thomas A. Foley, Judge.
__________

3
In the April 8, 1994 order dismissing Walls' claim with prejudice, the district judge stated that she was
dismissing the claim with prejudice pursuant to NAR 22(A).
This ruling was incorrect given the fact that there was no evidence that Walls failed to prosecute the arbitration
in good faith. The record shows that the delays in the arbitration were due to evidentiary disputes and the failure
to conduct the arbitration on February 4, 1994, was due to Hamilton's illness. These factors do not amount to
bad faith under NAR 22(A) which constitutes a waiver of Walls' right to request a trial de novo.
However, because this court has determined that Hamilton was not diligent in opposing the motion to dismiss
and that the action could be dismissed with prejudice upon that basis, the district court's error is harmless. See
Matos v. State, 110 Nev. 834, 837, 878 P.2d 288, 290 (1994).
112 Nev. 179, 180 (1996) Cook v. Cook
Wife moved to vacate divorce decree or for new trial alleging that property settlement
agreement was fundamentally unfair and that husband, an attorney, had coerced her into
signing it. The district court denied motion. Wife appealed. The supreme court held that
property settlement agreement was fundamentally unfair.
Daniel Marks, Las Vegas, for Appellant.
William R. Phillips, Las Vegas; Williamson & Rush, Las Vegas, for Respondent.
1. Judgment.
Trial court has wide discretion in deciding whether to grant or deny motion to set aside judgment. NRCP 60(b).
Trial court's determination on motion to set aside judgment will not be disturbed on appeal absent an abuse of discretion. NRCP
60(b).
Trial court's discretion in deciding whether to grant or deny motion to set aside judgment is a legal discretion and cannot be
sustained where there is no competent evidence to justify court's action. NRCP 60(b).
In divorce action between attorney and non-attorney, where attorney drafts property settlement agreement representing that it is fair
and equitable and non-attorney signs agreement without benefit of independent legal counsel, agreement is product of attorney-client
relationship giving rise to legal ramifications, including that agreement is subject to close scrutiny on appeal, attorney has a duty of full
and fair disclosure, and attorney must demonstrate by higher standard of clear and satisfactory evidence that transaction was
fundamentally fair and free of professional overreaching. NRCP 60(b).
Husband, who was an attorney and who drafted property settlement agreement, breached his duty of full and fair disclosure to
non-attorney wife, rendering transaction fundamentally unfair, where husband urged wife not to retain separate counsel, failed to value
his law practice in settlement agreement and awarded it to himself, and drafted agreement so that wife waived any interest in income
from law firm for specified time yet agreed to be liable for half of income tax due on that income. NRCP 60(b).
OPINION
Per Curiam:
Jane Field Cook, now Jane Field, (Jane) and Frank C. Cook (Frank) were married in 1978, and later that same year Frank started
his own law practice in Las Vegas. The parties decided to divorce in December 1992. Frank drafted a property settlement agreement
providing, inter alia, that he would receive the law practice as his separate property and that Jane waived any
interest in his income for the years 1990, 1991, and 1992.
112 Nev. 179, 181 (1996) Cook v. Cook
agreement providing, inter alia, that he would receive the law practice as his separate
property and that Jane waived any interest in his income for the years 1990, 1991, and 1992.
Although Jane had Floyd Hale, Esq., review the property settlement agreement on her behalf,
she signed the agreement in proper person. On the other hand, Frank and his legal counsel,
William B. Terry, both signed the agreement. On December 31, 1992, Frank filed a complaint
for divorce with the district court through his counsel, Jane filed her answer in proper person,
and the district court heard the matter and issued a decree of divorce that same day.
On June 25, 1993, Jane filed a timely motion to vacate the divorce decree and for a new
trial pursuant to NRCP 60(b), alleging that the property settlement agreement was
fundamentally unfair and that Frank had coerced her into signing the agreement. Jane
submitted an affidavit stating that Frank had threatened her not to retain an attorney for the
divorce action because he would lose his law practice, face imprisonment and resort to
leaving the country due to tax evasion. Jane further submitted an affidavit from Kenneth
Fortney, a certified public accountant, who evaluated the parties' community property and
determined that Frank had received approximately $600,000 and Jane $100,000 of the
$700,000 community property estate.
1
Frank submitted an affidavit denying Jane's assertions
of coercion and argued that Jane received legal counsel from Floyd Hale before signing the
property settlement agreement.
[Headnotes 1-3]
The district court denied Jane's motion, specifically finding that Jane had independent
competent counsel to represent her and that Frank did not coerce Jane into signing the
agreement. Jane argues that the district court abused its discretion in denying her motion. We
agree.
The district court has wide discretion in deciding whether to grant or deny a motion to set
aside a judgment under NRCP 60{b).
__________

1
Fortney determined that the community property assets totaled $1.5 million, based upon his evaluation of tax
returns and the information in Jane's possession. Fortney further stated that Frank received $1.1 million and Jane
received $402,000. Yet, [a]fter the liabilities were factored in, the net equity of this marital estate was
$707,000, the husband received $607,000 and the wife received approximately $l00,000. Fortney further
stated:
It is my professional opinion that this Property Settlement Agreement was grossly inequitable and unfair
to the wife. That she did not from my discussions with her regarding the finances of the community, [sic]
she had very little understanding or conception of the nature of the community property these parties had
and did not fully understand that she had a community property interest in her husband's law firm since
that law firms [sic] was started during the marriage.
112 Nev. 179, 182 (1996) Cook v. Cook
60(b). Its determination will not be disturbed on appeal absent an abuse of discretion.
Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 271, 849 P.2d 305, 307 (1993). However,
this discretion is a legal discretion and cannot be sustained where there is no competent
evidence to justify the court's action. Id.
[Headnotes 4, 5]
We conclude that the district court abused its discretion by denying Jane's motion to vacate
the divorce decree and for a new trial. There is no competent evidence to support the district
court's finding that Jane was represented by independent counsel. Most significantly, Jane
signed both legal documents central to the divorce action in proper person: her answer to
Frank's complaint for divorce and the property settlement agreement. Under NRCP 11:
Every pleading, motion, or other paper of a party represented by an attorney shall be
signed by at least one attorney of record in his individual name, whose address shall be
stated. A party who is not represented by an attorney shall sign his pleading, motion, or
other paper, and state his address and shall acknowledge his pleading.
Here, no attorney signed Jane's answer to the complaint for divorce or the property settlement
agreement on her behalf. She signed her papers without such benefit. Further, the record
contains no notice of representation indicating that Floyd Hale represented Jane in the divorce
action. The evidence dictates the finding that Jane had no legal representation.
Given the conclusion that Jane was not represented by competent independent counsel in
the divorce action, Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992), is on point. In
that case, Sharron Williams, a non-attorney, and Herbert Waldman, an attorney, decided to
end their thirteen-year marriage. Id. at 468, 836 P.2d at 616. When the parties made their
decision, Waldman suggested to Williams that they save the expense of hiring an attorney and
offered to draft the divorce papers himself. Id. Waldman prepared the property settlement
agreement and other papers, represented to Williams that the agreement was fair to her and
their three children, and did not propose to her that the agreement be reviewed by
independent counsel. Id. Williams signed the papers without consulting an attorney, and the
court entered a divorce decree. Id. Seven years later, Williams sought an increase in child
support. Id. She retained an attorney who reviewed the property settlement for legal
background and asked Williams about the division of Waldman's law practice. Id. [T]his
was the first time that she became aware that Waldman's law practice was community
property, divisible upon divorce, with a monetary value which inured to her individual
benefit."
112 Nev. 179, 183 (1996) Cook v. Cook
erty, divisible upon divorce, with a monetary value which inured to her individual benefit.
Id. Williams then filed an action alleging that Waldman's law practice was not provided for in
their property settlement agreement. Id.
The district court concluded that Williams failed to prove by a preponderance of the
evidence that the law practice was not divided upon divorce. Id. Williams appealed, and this
court reversed. Id. at 474, 836 P.2d at 619. This court determined that the parties' agreement
was the product of an attorney-client relationship. Id. at 471, 836 P.2d at 618. This court
noted that an attorney-client relationship is not precluded by the mere fact of a legally close
or blood relationship and that [f]ormality is not a necessary element in the creation of such
a relationship. Id. This court stated that when advice is given by an attorney, the
attorney-client relationship may be established through proof of detrimental reliance. Id. at
471 n.3, 836 P.2d at 618 n.3 (citing 7A C.J.S. Attorney & Client 169 n.18(2) (1980 & Supp.
l991)).
In Williams, this court further stated:
An attorney-client relationship necessarily gives rise to a fiduciary relationship between
an attorney and client, and all transactions growing out of such a relationship or [sic]
subject to the closest scrutiny by the courts. We have also held that when an attorney
enters into a business relationship with a client which is, by its terms, potentially
advantageous to the lawyer, this court will closely scrutinize such a transaction on
appeal. A fiduciary relationship also arises from the existence of the marriage itself,
thus precipitating a duty to disclose pertinent assets and factors relating to those assets.
Id. at 471-72, 836 P.2d at 618 (citations omitted). This court stated that the record showed
that Williams was not fully informed of all material facts relating to the value and character
of Waldman's stock ownership and that Waldman failed to demonstrate that Williams
completely understood her property rights when she executed the agreement. Id. This court
determined that after a careful review of the record, that under the circumstances of this
case, where Williams did not have independent representation, she did not have fair
opportunity to present this issue [the division of the law practice] to the original divorce
court. Id. at 474, 836 P.2d at 619. Accordingly, this court remanded the case to the district
court for the division of Waldman's law practice. Id.
In Williams, an attorney and a non-attorney divorced; the attorney suggested that the
non-attorney not retain legal counsel; the attorney promised to draft a fair and equitable
property settlement agreement; the non-attorney relied upon the attorney's
representations and expertise; the non-attorney signed the property settlement
agreement drafted by the attorney without the benefit of independent legal counsel; and
the property settlement agreement was unfair because it did not equitably divide the
community interest in the law practice.
112 Nev. 179, 184 (1996) Cook v. Cook
the attorney promised to draft a fair and equitable property settlement agreement; the
non-attorney relied upon the attorney's representations and expertise; the non-attorney signed
the property settlement agreement drafted by the attorney without the benefit of independent
legal counsel; and the property settlement agreement was unfair because it did not equitably
divide the community interest in the law practice.
In the instant case, the facts are parallel but with a few nuances. According to Jane, Frank
allegedly not only suggested that she not obtain legal counsel but threatened her not to retain
an attorney because it would diminish their community property and he would go to prison or
resort to leaving the country due to tax evasion. Further, there is a difference in the property
settlement agreement, not with regard to its inequity, but relating to division of the law
practice. In Williams, the agreement did not specifically mention the law practice. Here, the
agreement specifically awards the law practice to Frank but fails to value it. Further, the
agreement states that the Wife, Jane F. Cook, has not been advised and has no knowledge of
the income earned by the Husband, Frank C. Cook, for the years 1990, 1991, and 1992, and
waives any interest in said income. Yet, in another provision, Jane agreed to be liable for
one-half of the federal income taxes on the 1990 and 1991 income even though she waived
any interest in the income itself.
Williams stands for the proposition that in a divorce action between an attorney and a
non-attorney, where the attorney drafts the property settlement agreement representing that it
is fair and equitable and where the non-attorney signs the agreement without the benefit of
independent legal counsel, the agreement is the product of an attorney-client relationship
giving rise to legal ramifications. These ramifications include the following: the agreement is
subject to this court's close scrutiny on appeal; the attorney has a duty of full and fair
disclosure; and the attorney must demonstrate by a higher standard of clear and satisfactory
evidence that the transaction was fundamentally fair and free of professional overreaching.
Williams, 108 Nev. at 471-472, 836 P.2d at 618.
Here, Frank failed to value the law practice and simply drafted the agreement to award it to
himself as his sole and separate property. Further, the agreement provided that Jane waived
any interest in Frank's income for the years 1990, 1991, and 1992, without any knowledge of
those amounts. Moreover, Jane agreed to be liable for one-half the share of the income tax
due on the 1990 and 1991 income in which she waived any interest. We conclude that these
provisions demonstrate, as a matter of law, that Frank breached his duty of full and fair
disclosure and that the transaction was fundamentally unfair.
112 Nev. 179, 185 (1996) Cook v. Cook
that Frank breached his duty of full and fair disclosure and that the transaction was
fundamentally unfair.
Because this ground standing alone is sufficient to reverse, we need not address the other
issue raised in this appeal: whether the district court erred in rejecting Jane's claim that Frank
coerced her into signing the agreement.
For the foregoing reasons, we reverse the district court's order denying Jane's motion to
vacate the divorce decree and for a new trial. We further vacate that part of the divorce decree
relating to the property settlement agreement and remand for proceedings consistent with this
opinion.
2, 3

____________
112 Nev. 185, 185 (1996) Seven Seventy Corp. v. County of Clark
SEVEN SEVENTY CORPORATION, a Nevada Corporation, dba BOULDER HIGHWAY
VIDEO, Appellant, v. COUNTY OF CLARK, a Political Subdivision of the State of
Nevada; JAY BINGHAM, PAUL CHRISTENSEN, DON SCHLESINGER, and
BRUCE WOODBURY, County Commissioners, Respondents.
No. 26181
February 29, 1996 911 P.2d 1187
Appeal from summary judgment and order permanently enjoining appellant from
operating a business without a license or required land use permits. Eighth Judicial District
Court, Clark County; Jack Lehman, Judge.
Corporation sought declaratory and injunctive relief against county, challenging denial of
use permit and zoning variance. The district court granted summary judgment in favor of
county. Corporation appealed. The supreme court held that: (1) district court erred in relying
on repealed ordinance in rendering decision, and (2) corporation's licensing application was
not selectively acted upon in violation of First and Fourteenth Amendments.
Affirmed.
__________

2
We note that whenever a decree of divorce from the bonds of matrimony is granted in this state by a court of
competent authority, the decree shall fully and completely dissolve the marriage contract as to both parties.
NRS 125.130(2). Our decision in the instant case does not affect the dissolution of the parties' marriage itself.
Rather, it voids that part of the judgment incorporating the property settlement agreement and allows the parties
to litigate the division of their property.

3
The Honorable Charles Springer, Justice, voluntarily recused himself from participation in the decision of this
appeal.
Allen Lichtenstein, Las Vegas, and Stone & Stone, Encino, California, for Appellant.
Stewart L. Bell, District Attorney, and Robert Gower, Deputy District Attorney, Clark
County, for Respondents.
1. Declaratory Judgment; Zoning and Planning.
District court erred in relying on repealed ordinance in rendering decision in corporation's action against county for declaratory
and injunctive relief challenging denial of use permit and zoning variances.
2. Licenses.
Corporation was not entitled to de facto business license on ground that licensing ordinance was unconstitutional, where
constitutional defects in ordinance were amended and county took immediate action denying corporation's application under amended
ordinance.
3. Constitutional Law; Licenses.
Corporation's licensing application was not selectively acted upon in violation of First and Fourteenth Amendments, where
corporation alleged that it was normal practice in county for a business to operate upon approval after receiving a business license
receipt even though business had not received the certificate evidencing licensure, and corporation remained open from time it received
receipt until injunction was issued. U.S. Const. amends. 1, 14.
OPINION
Per Curiam:
Appellant Seven Seventy Corporation (Seven Seventy) filed a complaint in district court seeking declaratory and injunctive relief,
challenging the denial of a use permit and zoning variance and the constitutionality of a Clark County (County) licensing ordinance. The
district court granted summary judgment in favor of the County and permanently enjoined Seven Seventy from operating any business
without first complying with the County's licensing ordinance.
On appeal, Seven Seventy does not allege the existence of material disputed facts, but contends that the County was not entitled to
judgment as a matter of law. Seven Seventy challenges the district court's reliance upon a repealed licensing ordinance which assertedly
constituted an impermissible prior restraint because the time for approving or rejecting a license application was unspecified. As a result,
Seven Seventy claims that because the licensing scheme was unconstitutional, it was entitled to a de facto license.
We conclude that although the district court erroneously relied upon the repealed licensing ordinance, the court reached a correct result
in ruling that Seven Seventy was required to obtain a business license in order to operate.
FACTS
Seven Seventy owns Boulder Highway Video (BHV), a business located at 2983 East
Fremont, Las Vegas. The area is zoned H-2 (General Highway Frontage District). In order to
operate a retail business (selling videos) in an H-2 district, Seven Seventy had to secure a
conditional use permit and zoning variance.
In November 1991, Seven Seventy applied for a business license to sell and rent
videotapes. Seven Seventy claims that its application was disapproved because it did not have
the requisite conditional use permit to operate a retail business in an H-2 area. According to
Seven Seventy, it thereafter obtained a use permit and reapplied for a license in January 1992,
and although this application was disapproved by the fire department, Seven Seventy was
never notified that its application had been denied. Seven Seventy received a receipt for its
application fee and was billed every six months for license renewal; however, Seven Seventy
never actually received a business license.
In February and June 1992, Seven Seventy applied for three additional business licenses to
(1) sell gifts and novelties; (2) operate amusement machines; and (3) charge admission fees.
Again, Seven Seventy received receipts and bills for renewal, but never a certificate of
licensure.
In June 1992, Seven Seventy applied for a use permit and variance to operate an arcade
and walk-in theater, and to sell novelty and gift items. That same month, the Clark County
Planning Commission (Commission) denied the permit and variance. In July 1992, the
County cited Seven Seventy for failure to obtain a business license for an adult bookstore,
for adult book, novelty and film and tape store and for operating an adult bookstore
business in a zoning district other than an M-l zone. In August 1992, Seven Seventy
appealed the Commission's decision to the Clark County Board of Commissioners (Board),
which affirmed the Commission's denial of the use permit and zoning variance.
Thereafter, Seven Seventy filed a complaint in district court requesting declaratory and
injunctive relief, alleging that the Commission and Board improperly denied the use permit
and zoning variance based upon the adult content of some of the items being sold, and that
the definitions of adult use and sex novelty as used in the county ordinances were
unconstitutionally vague and overbroad. In its answer and counterclaim, the County alleged
that the denials were neither fraudulent nor arbitrary, and that an injunction was necessary to
stop Seven Seventy from illegally operating a sex novelty shop, adult bookstore, and adult or
non-adult picture arcade theater without the requisite zoning variances.
adult or non-adult picture arcade theater without the requisite zoning variances.
Throughout this time, BHV remained open and Seven Seventy paid license renewal fees.
In February 1994, Seven Seventy received a letter denying its applications for a business
license.
On March 14, 1994, the County filed a motion for summary judgment, arguing that based
on the undisputed facts, it was entitled to judgment because (1) the denial of the zoning
variance was proper; (2) Seven Seventy was operating a sex novelty shop and adult bookstore
without the requisite business licenses; and (3) the definition of adult uses is not
unconstitutionally vague or overbroad. On May 16, 1994, the district court granted the
County's motion and issued an order permanently enjoining Seven Seventy from operating
any business at 2983 East Fremont Street without obtaining the requisite land use approvals
and business licenses.
Seven Seventy filed a motion for reconsideration on May 24, 1994, because the County
had again issued a notice of license renewal. The County admitted that a renewal notice had
been sent on May 16, but explained that it was the result of a computer error, not a
recognition that Seven Seventy had been licensed.
1
The district court denied the motion on
May 26, 1994.
On June 15, 1994, Seven Seventy filed a notice of appeal. In the interim, the federal
district court denied Seven Seventy's emergency motion for a temporary restraining order
based on principles of comity.
On appeal, Seven Seventy challenges the district court's reliance on an ordinance that had
been repealed after the federal district court ruled a similar enactment unconstitutional.
2
Seven Seventy contends that it is entitled to a de facto business license because the licensing
scheme was unconstitutional.
DISCUSSION
[Headnote 1]
First, Seven Seventy contends that the district court erred by basing its decision on Seven
Seventy's failure to comply with a repealed licensing ordinance.
3
We agree. The ordinance
was amended on February 15, 1994, after the federal district court found a similar Clark
County licensing scheme unconstitutional because it failed to provide a reasonable,
definite time period within which the license director had to take action on the
application.
__________

1
A letter sent to Seven Seventy on May 23, 1994, explains that the renewal notice was the result of computer
error and that there were no records of any approved licenses to do business at the location.

2
Seven Seventy did not challenge the district court's findings regarding the denial of the use permits and
variances.

3
The original version of Clark County Code 6.110.025 did not provide a time limit for the approval or denial
of a bookstore license. If a decision was not made within thirty days, the applicant could demand the license and
amended on February 15, 1994, after the federal district court found a similar Clark County
licensing scheme unconstitutional because it failed to provide a reasonable, definite time
period within which the license director had to take action on the application.
4

Although the district court erred in citing the repealed ordinance, the court nevertheless
reached the correct result. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155,
1158 (1981).
Seven Seventy also contends that because the licensing ordinance was unconstitutional, it
is entitled to a de facto business license. With this proposition we do not agree. Seven
Seventy has failed to cite any cases wherein a court has held that an application for a business
license must be deemed approved whenever the licensing provision pursuant to which the
application is submitted has been determined to be unconstitutional.
5
Thus, we need not
consider this novel proposition.
[Headnote 2]
Nevertheless, we conclude that Seven Seventy's argument lacks merit. The County
apparently cured the constitutional defects by amending the ordinance. Moreover, after the
ordinance was amended, the County took immediate action on the pending applications,
including the applications at issue here. We are unaware of any principle of law that would
prohibit the County from requiring Seven Seventy to comply with the amended ordinance.
Indeed, Seven Seventy has not challenged the constitutionality of the ordinance as amended.
It would disserve an orderly society if every time a governmental entity enacted a faulty
licensing provision, all applications pending thereunder would receive an automatic approval
no matter how disruptive or deleterious the resulting business activity would be to the
community. We therefore conclude that the district court properly enjoined Seven Seventy
from operating its business without the requisite business license.
__________
begin operating the business unless and until the director of business license notifies the applicant of a denial of
the license application and states the reason for the denial. Clark County, Nev., Ordinance 1312, 3 (1991).

4
The amended version of 6.110.025 requires the license director to issue or deny the license within thirty days
from receipt of a complete application and fees. If the director fails to take any action within the thirty-day time
limit, the license is considered to have been granted. Clark County Code 6.110.025.

5
For example, in People v. Library One, Inc., 280 Cal. Rptr. 400, 406-07 (Cal. Ct. App. 1991), the court ruled
that a licensing scheme was unconstitutional because it failed to provide a specified, reasonable time within
which the application had to be granted or denied. The Library One court held that the unconstitutional scheme
was unenforceable. Id. at 407. The court did not conclude that applications submitted pursuant to an
unconstitutional licensing provision must be considered granted.
properly enjoined Seven Seventy from operating its business without the requisite business
license.
[Headnote 3]
Finally, Seven Seventy argues that its licensing application was selectively acted upon in
violation of the First and Fourteenth Amendments. According to Seven Seventy, it is normal
practice in Clark County for a business to operate upon approval after receiving a
Business License Receipt, even though the business has not received the certificate
evidencing licensure. We note, however, that Seven Seventy remained open from the time it
received the receipt until the injunction was issued. Thus, it does not appear that Seven
Seventy received discriminatory treatment. Moreover, there is nothing in the record to
support Seven Seventy's factual assertion regarding the normal practice in Clark County.
Therefore, we conclude that Seven Seventy's selective treatment argument is without merit.
CONCLUSION
For the reasons discussed above, we affirm the summary judgment entered by the district
court in favor of the County and enjoining Seven Seventy from operating a business without
the requisite business license or land use permits.
____________
112 Nev. 190, 190 (1996) Gubber v. Independence Mining Co.
JOHN GUBBER, Appellant, v. INDEPENDENCE MINING COMPANY, INC. and THE
STATE INDUSTRIAL INSURANCE SYSTEM, Respondents.
No. 26374
February 29, 1996 911 P.2d 1191
Appeal from an order reversing an appeals officer's decision to grant workers'
compensation benefits to appellant. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Employer and State Industrial Insurance System appealed workers compensation appeals
officer's affirmance of hearing officer's award of benefits to claimant. The district court
reversed. Claimant appealed. The supreme court held that: (1) accidental injury claim was not
supported by substantial evidence, but (2) claimant's failure to file cross-petition for judicial
review of appeals officer's conclusory determination that he had not suffered occupational
disease did not bar claimant from raising that issue before district court.
Easterly & Armstrong, Elko, for Appellant.
Lenard Ormsby, General Counsel and Bryan Stockton, Carson City, for Respondent SIIS.
Marshall, Hill, Cassas & de Lipkau, Reno, for Respondent Independence Mining
Company, Inc.
Workers compensation claimant failed to establish that his back problems were result of unexpected or unforeseen event
happening suddenly and violently or result of sudden and tangible happening of traumatic nature, as required to support accidential
injury claim, where claimant was unable to describe when his back injury occurred or what caused it, specifically denied that any
specific incident occurred to cause problems, and claimed that problems just happened over a period of time. NRS 616.020.
Workers compensation claimant's failure to file cross petition for judicial review of appeals officer's conclusory determination that
claimant had not suffered occupational disease, did not bar claimant from raising issue of whether he suffered from occupational
disease, before district court, where appeals officer found claimant suffered compensable accidental injury. NRS 233B.130(2)(c).
OPINION
Per Curiam:
Appellant John Gubber worked for respondent Independence Mining Company, Inc. (IMC) from 1989 to April 1993. In September
1992, Gubber complained of back pains, which he eventually associated with his job of driving loaders for IMC. Gubber was diagnosed
with back herniation and degenerative disc disease.
Gubber filed for benefits with respondent State Industrial Insurance System (SIIS). SIIS denied the benefits. Gubber appealed to a
hearing officer, who ruled that Gubber suffered an occupational injury. Both SIIS and IMC appealed from that decision to an appeals
officer. The appeals officer affirmed the hearing officer's decision, apparently relying on Gubber's own testimony and medical evidence.
Both SIIS and IMC appealed to the district court. The district court reversed the appeals officer's decision, essentially ruling that
Gubber failed to prove, as a matter of law, that an occupational accident or injury occurred. Gubber filed this timely appeal, claiming that
the district court erred in reversing the appeals officer's decision because there is substantial evidence in the record to support the claim that
Gubber suffered an occupational accident or injury, as those terms are defined in former NRS 616.020 {now NRS
616A.030) and former NRS 616.110 {now NRS 616A.265).
tional accident or injury, as those terms are defined in former NRS 616.020 (now NRS
616A.030) and former NRS 616.110 (now NRS 616A.265). Alternatively, Gubber claims that
even if there is insufficient evidence on the accidental injury issue, there is sufficient
evidence that Gubber suffered from an occupational disease pursuant to NRS 617.440.
[Headnote 1]
We conclude that there is not substantial evidence in the record to support an accidental
injury claim. Given that Gubber was unable to describe when his back injury occurred or
what caused it, specifically denied that any specific incident occurred to cause his back
problems, and claimed that his back problems just happened over a period of time, there is
insufficient evidence in the record to conclude that Gubber's back problems were the result of
an unexpected or unforeseen event happening suddenly and violently or the result of a
sudden and tangible happening of a traumatic nature. Former NRS 616.020; former NRS
616.110.
[Headnote 2]
In the alternative, Gubber contends that even if there is insufficient evidence on the
accidental injury issue, there is sufficient evidence that Gubber suffered from an
occupational disease pursuant to NRS 617.440. IMC argues that Gubber's failure to file a
cross-petition for judicial review, as set forth in 233B.130(2)(c), bars him from arguing
against the appeals officer's conclusory determination that his claim did not qualify as an
occupational disease.
1
We agree with Gubber that he did not need to file a cross-petition for
review on the occupational disease issue given that the appeals officer found and concluded
that he had a compensable accidental injury. Nevertheless, because the appeals officer did not
even consider this a Chapter 617 case, he made no factual findings with regard to the
occupational disease claim. Given that it is possible that Gubber could establish an
occupational disease claim
2
and the lack of any findings by the appeals officer regarding the
occupational disease issue, we reverse the district court's order reversing the appeals
officer's decision and remand the case to the appeals officer to make factual findings and
conclusions of law on the occupational disease issue.
__________

1
The appeals officer specifically found that this is not a 617 [Nevada Occupational Disease Act] case. I
wouldn't even address it as a 617 case.

2
Cf. Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 336-37, 792 P.2d 400, 402 (1990) (holding that where
an employee worked as a masseuse and was diagnosed as having degenerative joint disease aggravated by the
overuse of her hands in the performance of her job, that employee qualified as having a compensable
occupational disease pursuant to 617.440).
____________
112 Nev. 193, 193 (1996) Collett Electric v. Dubovik
COLLETT ELECTRIC, Appellant, v. WILLIAM DUBOVIK and the STATE INDUSTRIAL
INSURANCE SYSTEM, an Agency of the State of Nevada, Respondents.
No. 26303
February 29, 1996 911 P.2d 1192
Appeal from an order of the district court denying a petition for judicial review of an
appeals officer's decision. Eighth Judicial District Court, Clark County; Sally L. Loehrer,
Judge.
Previous employer and State Industrial Insurance System (SIIS) petitioned for review of
appeals officer's decision charging claimant's previous employer, and not his current
employer, for his disability benefits. The district court denied petitions, and appeal was taken.
The supreme court held that last injurious exposure rule placed responsibility for payment of
claimant's benefits with his current employer, regardless of whether his disability, namely
cumulative trauma nerve entrapment syndrome, resulted from disease or injury.
Reversed and remanded with instructions.
McGroarty, Cartwright & Lane, for Appellant.
King, Gross & Sutcliffe Ltd., Las Vegas, for Respondent Dubovik.
Lenard Ormsby, General Counsel, and Shirley D. Lindsey, Associate General Counsel,
Carson City, for Respondent State Industrial Insurance System.
Function of supreme court in reviewing administrative decision is identical to the district court's.
In appeal from administrative decision, questions of law are reviewed de novo.
Last injurious exposure rule in occupational disease, successive employer cases places full liability upon the carrier covering the
risk at time of the most recent injury that bears causal relation to the disability; this rule forestalls any determination regarding which
employment was the primary cause of work-related disease or injury.
Last injurious exposure rule which places full liability upon carrier covering the risk at time of the most recent injury that bears
causal relation to the disability includes both successive injury cases and occupational disease cases.
Employer/insurer at time of a new injury or aggravation of prior injury is liable for all the claimant's benefits even if
second injury would have been much less severe in absence of the prior condition and even if prior injury
contributed to the final condition.
injury is liable for all the claimant's benefits even if second injury would have been much less severe in absence of the prior condition
and even if prior injury contributed to the final condition.
If second injury is merely reoccurrence of the first and does not contribute even slightly to causation of the disabling condition, the
insurer/employer covering the risk at time of the original injury remains liable for the second.
Last injurious exposure rule placed responsibility for payment of workers' compensation claimant's benefits with his current
employer, as opposed to his previous employer, regardless of whether claimant's disability, namely cumulative trauma nerve
entrapment syndrome, resulted from disease or injury. Evidence showed that claimant's employment with his current employer
contributed significantly to the causation of his disabling condition.
OPINION
Per Curiam:
Respondent William Dubovik worked for appellant Collett Electric (Collett) for over five years, first as an electrician and then as a
foreman. Dubovik experienced problems on the job with his right hand before he stopped working for Collett, but he did not go to a doctor
or file an industrial insurance claim. About six weeks after leaving Collett and starting his own electrical contracting business, Dubovik's
hand worsened, prompting him to see a doctor and file an industrial insurance claim for cumulative trauma nerve entrapment syndrome.
Both the State Industrial Insurance System (SIIS) and a hearing officer accepted the claim, but determined that Dubovik's own business
would be charged for his disability benefits. An appeals officer reversed this determination, charging Collett instead, and the district court
denied Collett's and SIIS's petition for judicial review.
We conclude that the appeals officer erred as a matter of law. We therefore reverse the district court's order and remand, directing that
the decision of the hearing officer be reinstated.
FACTS
Respondent Dubovik began working for appellant Collett around late 1986 as a journeyman electrician. He became a working foreman
about six months later. Dubovik worked for Collett until the end of September 1992. At that time, he obtained his electrical contractor's
license and left to start his own business, Aggressive Electric (Aggressive).
While still with Collett, Dubovik was a foreman on a construction site in Mesquite from May 1991 until January 1992. He testified
that he not only supervised but also worked with his tools about eighty or ninety percent of the time.
testified that he not only supervised but also worked with his tools about eighty or ninety
percent of the time. He first noticed numbness in three fingers of his right hand at that time,
especially when it was cold. It became a problem toward the end of that job for Dubovik to
perform tasks like using wire cutters or screwdrivers. He did not report the condition to a
doctor or to Collett at that time. After the Mesquite job was finished, Dubovik worked for
Collett in Las Vegas at another construction site for several months until he started his own
business. The problems with his hand continued.
Dubovik did basically the same type of work for his own company, Aggressive, except the
jobs were at residential rather than commercial sites. He went to see Dr. David Toeller on
November 11, 1992, because the condition of his fingers made it unbearable to work. He was
outside in the cold more than he had been at the commercial job sites. As a foreman for
Collett, Dubovik had been able to stop a task when it became a problem, do something else,
and finish the task later when he could. Working at the first job for Aggressive, he worked
eight hours a day with his hands. About three or four weeks after beginning this job, he went
to see the doctor.
Dubovik's co-worker at the Mesquite job testified that Dubovik occasionally complained
of numbness and stiffness in his hand at that time. In a letter dated February 12, 1993, Dr.
Toeller wrote that Dubovik
reports his symptoms came on over a year before I saw him. He gave me persuasive
examples of how his job required him to use tools only occasionally and it was during
those times and during those periods when he would notice symptoms.
It appears as though he had a worsening of his symptoms after he went to work for
Aggressive Electric, but the symptoms clearly began while he was working for his prior
employer.
The type of problem we are dealing with is a cumulative trauma nerve entrapment
syndrome. It would be highly unlikely for a person to develop cumulative trauma in this
short period of time between 10/26/92 and 11/12/92[
1
] when I saw the patient. It is
much more medically reasonable to attribute his present nerve entrapment syndrome to
his prior employer.
Dubovik filed a claim for workers compensation benefits on November 11, 1992, listing
Collett as his employer. SIIS investigated the claim, and the investigator's report stated that
Dubovik indicated that he never notified the employer of any problems he was
experiencing and had no problem working as a Foreman for Collett Electric.
__________

1
The correct date appears to be November 11, 1992.
indicated that he never notified the employer of any problems he was experiencing and
had no problem working as a Foreman for Collett Electric. The periodic numbness and
soreness in his wrist only occurred when he was forced, because of an incomplete crew,
to work as an Electrician.
. . . .
[Dubovik started his own] business full time when he left Collett Electric and indicates
to this Investigator that though the symptoms he was experiencing started when he
worked for Collett Electric they are becoming increasingly more serious over the last
thirty (30) days (from October 2, 1992 to November 11, 1992). He contributes [sic] this
to physically performing the work on a daily basis rather than supervising as he did at
Collett.
SIIS then advised Dubovik that it accepted liability for his claim, but that the claim would
be charged to Aggressive's account. Dubovik appealed this decision to charge Aggressive, but
a hearing officer affirmed the SIIS decision. Dubovik appealed again, and an appeals officer
reversed the hearing officer's decision and ordered that Collett's account be charged. Both
SIIS and Collett filed petitions for judicial review, and these petitions were consolidated. The
district court denied the petition on August 15, 1994.
Collett has appealed. Although named as a respondent, SIIS also urges this court to reverse
the appeals officer and the district court.
DISCUSSION
[Headnotes 1, 2]
The function of this court in reviewing an administrative decision is identical to the district
court's. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983).
A reviewing court shall not substitute its judgment for that of an agency in regard to a
question of fact. NRS 233B.135(3). The standard for such review is whether the agency's
decision was clearly erroneous or an arbitrary abuse of discretion. NRS 233B.135(3)(e) and
(f). However, questions of law are reviewed de novo. SIIS v. United Exposition Services Co.,
109 Nev. 28, 30, 846 P.2d 294, 295 (1993). We conclude that the appeals officer
misconstrued Nevada law in reaching her decision and erred as a matter of law.
[Headnote 3]
The appeals officer's decision and order stated: The presumption that the primary cause of
Mr. Dubovik's disease was the last employer, Aggressive Electric, has been rebutted by
medical evidence, indicating that the primary cause of Mr.
evidence, indicating that the primary cause of Mr. Dubovik's disease was his prior
employment with Collett Electric. The decision cited SIIS v. Jesch, 101 Nev. 690, 709 P.2d
172 (1985), where this court adopted the last injurious exposure rule for successive-employer
cases like this one. However, the last injurious exposure rule forestalls any determination
regarding which employment was the primary cause of a work-related disease or injury.
[T]he last injurious exposure rule in occupational disease, successive-employer cases
places full liability upon the carrier covering the risk at the time of the most recent
injury that bears a causal relation to the disability. 4 A. Larson, The Law of Workmen's
Compensation 95.20 (1984).
Jesch, 101 Nev. at 696, 709 P.2d at 176. Though this rule may sometimes produce harsh
results for an employer, this court concluded that it serves the best interests of employees,
avoids the difficulties of attempting to apportion responsibility between successive employers
in particular cases, and spreads the risks between employers overall. Id.
The appeals officer's decision quoted the following passage from Jesch.
Under the last injurious exposure rule, then, the last in-state employer for whom Mr.
Jesch worked, who bears a causal relationship to the disease, is the responsible
employer. Once the worker presents substantial evidence of successive-employer
work-related disability, a prima facie case for recovery is established. The last injurious
employer can then present evidence to show that the disability is with another employer
or that the disability is unrelated to employment. The trier of fact will evaluate the
evidence and render a decision.
Id. at 698, 709 P.2d at 177-78 (emphasis added).
Dubovik argues that the emphasized language shows that this court wished to adopt a
minority version of the rule which requires that in order to impose liability on the insurer
who was last at risk, the exposure during its period of risk must have been of such length or
degree that it could have actually caused the disease. 4 A. Larson, The Law of Workmen's
Compensation 95.26(a) (1995). We disagree. Dubovik points to no other language in Jesch
or in other opinions of this court to support such a reading; on the contrary, such a reading
would not be consistent with the rest of Jesch or other opinions. In context, the unartful
language in question means that an employer has the opportunity to show that its workplace
environment could not have been even a contributory cause of the disease.' Jesch, 101
Nev. at 697, 709 P.2d at 177 {quoting Inkley v. Forest Fiber Products Co.,
709 P.2d at 177 (quoting Inkley v. Forest Fiber Products Co., 605 P.2d 1175, 1178 (Or.
1980)).
[Headnote 4]
This court has recognized that some injuries do not fall within the last injurious exposure
rule. SIIS v. Swinney, 103 Nev. 17, 731 P.2d 359 (1987). The appeals officer considered
Dubovik's condition to be a disease, not an injury, and did not apply Swinney. The parties
appear to agree with characterizing the disability as a disease. This characterization should
not make a difference anyway because the last injurious exposure rule includes both
successive injury cases and occupational disease cases. Swinney, 103 Nev. at 19, 731 P.2d at
361.
[Headnotes 5, 6]
In regard to injuries, the rule remains: Full liability is placed upon the carrier covering the
risk at the time of the most recent injury that bears a causal relation to the disability. Id., 731
P.2d at 360. Injuries are categorized in three ways: new injuries, aggravations of a prior
injury, and recurrences. Id., 731 P.2d at 361.
[T]he employer/insurer at the time of [a new injury or aggravation of a prior injury] is
liable for all the claimant's benefits even if the second injury would have been much
less severe in the absence of the prior condition, and even if the prior injury contributed
to the final condition.
Id. at 19-20, 731 P.2d at 361.
However, if the second injury is merely a recurrence of the first, and does not contribute
even slightly to the causation of the disabling condition, the insurer/ employer covering
the risk at the time of the original injury remains liable for the second.
Id. at 20, 731 P.2d at 361.
[Headnote 7]
Even if Dubovik's disability were viewed as an injury, it could not be considered a
recurrence. The evidence clearly showed that Dubovik's employment with Aggressive
contributed significantly to the causation of his disabling condition. Thus, whether Dubovik's
disability results from disease or injury, the last injurious exposure rule places responsibility
for payment of his benefits with Aggressive.
2

__________

2
In light of this conclusion, we do not need to address Collett's other arguments.
CONCLUSION
The appeals officer failed to properly apply the last injurious exposure rule. Dubovik's
employment with Aggressive was the last employment that bore a causal relationship to his
disability. Thus, Aggressive is responsible for payment of Dubovik's disability benefits. We
therefore reverse the district court's order and remand for reinstatement of the decision of the
hearing officer charging liability for the disability benefits to Aggressive.
____________
112 Nev. 199, 199 (1996) Guaranty Nat'l Ins. Co. v. Potter
GUARANTY NATIONAL INSURANCE COMPANY, Appellant, v. GERALD E. POTTER
and VALERIE H. POTTER, Respondents.
No. 26373
February 29, 1996 912 P.2d 267
Appeal from judgment and award of punitive damages. Second Judicial District Court,
Washoe County; Peter I. Breen, Judge.
Insureds brought action against underinsured motorist (UIM) carrier for bad-faith delay in
paying for independent medical examinations (IME). The district court ruled in favor of
insured and awarded compensatory and punitive damages. Carrier appealed. The supreme
court, Steffen, C. J., held that: (1) carrier could be held liable on bad-faith theory; (2) award
of $150,000 was not excessive for compensatory damages; and (3) punitive damage award of
$1 million was excessive and should have been limited to $250,000.
Affirmed; punitive damage award modified.
[Rehearing denied June 13, 1996]
Perry & Spann, Reno; Ropers, Majeski, Kohn, Bentley, Wagner and Kane, Michael J.
Brady and Kelly C. Franks, Redwood City, California, for Appellant.
Robert H. Perry, Reno, for Respondents.
1. Insurance.
Tort of bad faith is not limited to unreasonable denial or delay in payment of valid claim.
2. Insurance.
Underinsured motorist (UIM) carrier had implied obligation to deal fairly and in good faith with insureds in paying for
independent medical examinations (IME) and could be held liable on bad-faith theory for delaying payment for IMEs, even though it
paid full policy limits.
3. Insurance.
Bad faith is established where insurer acts unreasonably and with knowledge that there is no reasonable basis for its conduct.
4. Insurance.
Award of $150,000 in compensatory damages was not excessive for underinsured motorist (UIM) carrier's bad-faith delay in
paying for independent medical examinations (IME) for insureds. Award was consistent with two years of threats and subsequent
litigation insureds had to endure and damage to their credit reputation during that time, insureds testified about anxiety and concerns
caused by threats and litigation, including travel to state and hiring of attorney, and fact that trial judge refused to award future
damages indicated lack of influence by passion or prejudice.
5. Insurance.
Evidence supported award of punitive damages for underinsured motorist (UIM) carrier's delay in paying for insureds' independent
medical examinations (IME). Evidence supported conclusion that carrier's conduct was willful and intentional and done in reckless
disregard of consequences to insureds and with conscious disregard for their rights thereby subjecting them to cruel and unjust
hardships. NRS 42.005.
Supreme court will not disturb award of punitive damages unless record lacked substantial evidence to support required finding of
oppression, fraud, or malice, express or implied. NRS 42.005.
7. Insurance.
Punitive damage award of $1 million was excessive for underinsured motorist (UIM) carrier's delay in paying for insureds'
independent medical examinations (IME) and should have been limited to $250,000, even though award amounted to only 1 percent of
carrier's net worth of $104 million. Amount was excessive in light of carrier's overall conduct of paying full policy limits, prepaying
initial IMEs, paying part of diagnostic examinations before any dispute arose, and repeatedly attempting to settle dispute by contacting
health care provider and bill collector and always representing that debt was carrier's responsibility. NRS 42.005.
OPINION
The district court awarded Respondents Gerald and Valerie Potter $75,000 each in compensatory damages and $1,000,000 in punitive
damages because of the manner in which appellant Guaranty National Insurance Company (GNIC) treated the Potters in connection with
the payment for services involving independent medical examinations (IMEs). Under the insurance policy, the Potters were obligated to
submit to an IME and GNIC was obligated to pay for the IME.
On appeal, GNIC argues that (1) a denial or delay in payment of a valid claim is an essential element for the tort of bad faith; (2) the
finding of bad faith was not supported by substantial evidence; (3) the compensatory damage awards were excessive; and (4) punitive
damages were unwarranted, or alternatively, the amount awarded was excessive.
amount awarded was excessive. We conclude that GNIC was contractually obligated to pay
for the IME and that under the facts of this case, its delay in paying for the exams constituted
an act of bad faith. Although we affirm the compensatory damage awards, we conclude that
the punitive damages award entered against GNIC was excessive as a matter of law.
FACTS
On May 27, 1990, a speeding car collided with a mobile home belonging to the Potters,
injuring both Valerie and Gerald Potter. The Potters hired an attorney, Linda Galli, to
represent their interests against the tortfeasor's insurer, Allstate, and in connection with their
own insurer, GNIC. In May 1991, the Potters settled with Allstate for the policy limits of
$15,000 each.
The Potters' insurance policy with GNIC provided underinsured motorist (UIM)
coverage. In May 1991, the Potters submitted a claim for UIM benefits under that policy. The
claim was handled by Doris Patow, GNIC's Reno Claims Manager.
Patow questioned whether certain bills submitted with the Potters' claim were excessive.
In February 1992, Patow sent a letter to Galli requesting that the Potters submit to
independent medical exams. The letter stated: Failure to attend this appointment could
jeopardize your clients' coverage.
1

Patow contacted Dr. Charles Quaglieri of Reno Neurological Associates (RNA),
scheduled appointments for the Potters' IMEs, prepaid $900 for the two exams, and indicated
that pre-authorization was required before EMGs or MRIs could be scheduled.
On March 9, 1992, Dr. Quaglieri examined the Potters. He performed EMGs and nerve
conduction studies on both of the Potters. GNIC paid for these exams on March 31, 1992. Dr.
Quaglieri also performed three somatosensory evoked response tests on Mrs. Potter, which
GNIC paid for in December 1992. On March 9, Dr. Quaglieri also prepared preliminary
reports for GNIC. The report on Mr. Potter stated: In order to rule out any other more
significant injuries he will need an MRI scan of the affected areas. The report on Mrs. Potter
did not specifically mention any additional tests, but Dr. Quaglieri did state: I will evaluate
her for any other possible explanations for her symptoms especially in light of the
numbness of the left upper extremity."
__________

1
The Potters' insurance policy contained the following provision:
A person claiming any coverage under this policy must also:
. . . .
(3) Submit to physical examinations at our expense by doctors we select as often as we may reasonably
require.
. . . .
evaluate her for any other possible explanations for her symptoms especially in light of the
numbness of the left upper extremity.
Two employees for RNA testified that they contacted Patow and obtained authorization for
x-rays and MRIs. They filled out Patient Authorization Forms which indicated the tests that
were authorized, who provided the authorization, and the date thereof.
Patow testified that she could not remember these phone calls or whether she authorized
each test. She further testified that when Steve Carlson, the claims manager who took over
the Potters' claim after Patow left the Reno office, called her about the authorization for the
Potters' tests, she told Carlson that she could not recall specifically what tests she had
authorized. She did tell Carlson that at the time of her authorization, she contemplated that
the tests would cost approximately $6,000. Patow further testified that it was within Dr.
Quaglieri's scope of authority to order exams that he deemed reasonably necessary, and that
she relied on his expertise in deciding whether to authorize examinations.
On March 24, 1992, Dr. Quaglieri sent the Potters to Northern Nevada Radiology and
Northern Nevada MRI (collectively NNR). NNR performed two x-rays and two MRIs on
Mrs. Potter and three x-rays and three MRIs on Mr. Potter. These exams totaled $6,553. NNR
required the Potters to fill out and sign responsibility forms. Although the Potters provided
their insurance information, the responsibility forms warned: Please be aware that as with
every medical office the patient is responsible for any medical fees incurred. GNIC did not
become aware of these forms until they were disclosed during the NRCP 16.1 conference in
July 1993.
Patow left GNIC on April 3, 1992, and the Potters' file was transferred to Steve Carlson.
Carlson first reviewed the file on April 17, 1992. Dr. Quaglieri's final reports arrived in April,
and Carlson determined that the IME supported the Potters' claim. In May 1992, GNIC paid
the UIM policy limits of $15,000 each to the Potters.
Early in May 1992, Carlson also received statements from NNR totaling $6,553. He was
shocked by the number and costs of the exams. Carlson reviewed the file and Patow's notes
which he believed indicated that only one additional test had been authorized. On May 5,
1992, Carlson contacted Patow, who could not remember what tests she had authorized.
Because of the confusion, Carlson submitted the statement to Intracorp, an independent
medical records review company, to evaluate whether the testing was reasonable and
necessary. Intracorp recommended denying two MRIs and two x-rays for Mr. Potter, and one
MRI, all x-rays, and the somatosensory evoked response studies for Mrs.
Mrs. Potter. According to the Intracorp report, based on customary charges, GNIC should
only pay $2,133 for the tests that were reasonable and necessary.
On April 29, 1992, the Potters received statements from NNR, totaling $6,553. They
contacted their attorney, who believed it was just a clerical errorthat the Potters had been
sent duplicates. On approximately June 30, 1992, the Potters received collection notices from
Collection Service of Nevada (CSN), on behalf of NNR. The notices explained that the
Potters had 15 days to pay or contact NNR; otherwise, the account would be referred to CSN
for collection.
On July 16, Mr. Potter took some of the notices to Galli's office with a note stating that
they were still receiving bills. On July 20, attorney Galli wrote a letter to Carlson confirming
a conversation they had on the same day, and attaching copies of bills from RNA, NNR and
CSN. The letter indicated:
You stated in our conversation that Guaranty National did agree to pay for the I.M.E.
and that you were negotiating a reasonable settlement of these bills with the providers. I
hope you are able to quickly resolve this problem, as the Potter's [sic] are
understandably upset about being harassed by these creditors and the Collection
Service.
Carlson testified that he was surprised to learn that the Potters were being billed. When
Carlson realized that the 15 day deadline on the June 30 notice had already passed, he
contacted Galli and was told that she had already notified the providers about the billing
error. Carlson did nothing else to protect the Potters because he believed it was a clerical
error and that Galli's phone call probably had solved the problem.
The Potters continued receiving bills. On September 9, 1992, Galli wrote to Carlson
explaining that her clients were receiving demand statements from CSN and that their
credit was being adversely affected. Galli demanded an explanation for GNIC's failure to pay
the bills and requested a response within two weeks. After receiving this letter, Carlson
thought he had some time and that there was no pressure to make an immediate phone call.
According to Galli, after the September 9 letter, Carlson continued to assure her that he was
actively negotiating with the creditors.
On October 6, 1992, CSN sent the Potters four formal demands for payment. On October
17, 1992, CSN sent a notice to the Potters demanding payment by November 5 or else they
would be reported to three credit agencies. According to these notices, [a] bad mark like this
could stay on your file for seven years. Carlson was not provided with copies of these
notices.
On October 20, 1992, Galli again contacted Carlson. Carlson informed her that he had
contacted Rose Dorris at CSN and explained the situation. He further indicated that he was
getting everything resolved and should have an agreement on a compromise amount by
October 21. Carlson's notes for October 21 indicate that he offered CSN $2,333 to settle the
account. Although Galli believed that Carlson had been working to settle the bills since July,
Carlson testified that October 20 was the first time he had contacted the creditors.
On October 21, 1992, Galli tried to contact Dorris at CSN to verify that the account had
been settled. Dorris returned the call on October 27, and explained that GNIC's $2,000 offer
was unacceptable, and that the Potters would be sued. Galli testified that she contacted
Carlson about the situation. Carlson's notes for October 28 indicate that he spoke with Dorris,
that GNIC's settlement offer was too low and CSN would likely sue.
On November 3, 1992, CSN sent the Potters a notice threatening to sue them if payment
was not received by November 5, 1992. Galli testified that she did not provide Carlson with a
copy of this notice.
On November 17, 1992, Carlson wrote a letter to CSN explaining that any collection
effort against Mr. and Mrs. Potter directly is misdirected as they were simply the insureds
who voluntarily cooperated with the Independent Medical Examination process. In the letter,
Carlson made a compromise offer and enclosed checks for $3,043. Carlson sent a copy of the
letter to Galli. After sending the November 17 letter and checks, Carlson did not contact CSN
or any of the creditors to determine whether the settlement had been accepted. In early
January 1993, Galli's secretary called Carlson and was told that to the best of his knowledge
everything was settled.
On March 8, 1993, the Potters were served with a Summons and Complaint. CSN had
filed suit to collect $6,553, plus interest, costs and attorney's fees. On April 27, 1993, the
Potters filed a third-party complaint against GNIC for breach of contract, tortious breach of
the covenant of good faith and fair dealing, and fraud.
On May 18, 1993, Carlson sent a letter to Dr. Quaglieri renewing the offer he had made to
CSN on November 17, 1992. Carlson stated that unless Dr. Quaglieri could persuade CSN to
accept the offer and to obtain a voluntary dismissal of the Potters' complaint against GNIC,
GNIC would sue him for the excessive charges incurred and inappropriately billed to Mr.
and Mrs. Potter.
2

__________

2
Carlson testified that his strategy was to get the Potters dismissed from the suit while pursuing GNIC's dispute
with Dr. Quaglieri and NNR.
On May 24, 1993, RNA faxed the Potters' patient authorization forms to GNIC. Carlson
was not satisfied that separate authorization had been given for each and every test. However,
on May 26, 1993, Carlson called Bonnie Serpa, the office manager at RNA, and offered to
pay $5,043, if CSN would dismiss its suit against the Potters and the Potters would dismiss
their suit against GNIC. Carlson also indicated that the Potters' credit rating must be restored
in conjunction with the settlement. GNIC made three additional offers between October 1993
and late February 1994. As a condition to each of these offers, GNIC required that the Potters'
credit rating be restored.
A bench trial was set for March 7, 1994. On that day GNIC tendered a check for
$12,508.54 to the Potters, who then endorsed the check to CSN. As part of a stipulation, the
Potters dismissed their counterclaim against CSN and CSN dismissed its claims against the
Potters and agreed to do everything within its power to request the various credit reporting
agencies . . . to remove all information regarding these five (5) collection accounts from their
records.
The Potters' claims against GNIC proceeded to a bench trial from March 7 to March 11,
1994.
After the close of evidence, the district court concluded that the Potters had met their
burden of proof on their tort claim of bad faith, and that punitive damages were warranted.
On April 5, 1994, the district court entered judgment against GNIC, awarding the Potters
$150,000 in compensatory damages and $1,000,000 in punitive damages.
On April 18, 1994, GNIC filed a motion for judgment notwithstanding the verdict, a new
trial, and to amend the findings of fact and conclusions of law. The district court denied the
motion in toto and awarded attorney's fees and costs in the amount of $36,000. GNIC timely
appealed.
3

DISCUSSION
Bad faith
[Headnotes 1, 2]
GNIC contends that a tort action against an insurer for breach of the implied covenant of
good faith and fair dealing is limited to the unreasonable denial or delay in payment of a valid
claim. Accordingly, because GNIC paid the full policy limits under the Potters' UIM
coverage, GNIC insists that it could not have breached the implied covenant of good faith
and fair dealing.
__________

3
The notice of appeal indicates that GNIC is appealing the award of attorney's fees and costs; however, GNIC
failed to address this issue in its briefs and argument on appeal. We therefore consider the issue abandoned and
will not address it in this opinion.
breached the implied covenant of good faith and fair dealing. We disagree.
Generally, this court has addressed an insurer's breach of the implied covenant of good
faith and fair dealing as the unreasonable denial or delay in payment of a valid claim. See,
e.g., Pemberton v. Farmers Ins. Exch., 109 Nev. 789, 793, 858 P.2d 380, 382 (1993); Falline
v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888, 891 (1991). This, however, does not mean
that the tort of bad faith is limited to such cases.
[Headnote 3]
Here, GNIC required the Potters to submit to an IME. The insurance policy provides an
express promise by the insurer to pay for such examinations. GNIC had an express obligation
to pay for the IME and an implied obligation to deal fairly with the Potters in paying for IMEs
required by the insurer because the contract involves a special relationship between an
insured and insurer, with the parties in unequal bargaining positions. See Ainsworth v.
Combined Ins. Co., 104 Nev. 587, 592, 763 P.2d 673, 676 (1988), cert. denied, 493 U.S. 958
(1989).
Next, GNIC contends that there was insufficient evidence to support the district court's
finding that GNIC acted in bad faith. We disagree. This court will not disturb a trial court's
findings of fact unless they are clearly erroneous and not based on substantial evidence.
Nevada Ins. Guar. Ass'n v. Sierra Auto Ctr., 108 Nev. 1123, 1126, 844 P.2d 126, 128 (1992).
Bad faith is established where the insurer acts unreasonably and with knowledge that there is
no reasonable basis for its conduct. See American Excess Ins. Co. v. MGM Grand Hotels,
Inc., 102 Nev. 601, 605, 729 P.2d 1352, 1354-55 (1986). After reviewing the record, we
conclude that there was sufficient evidence of bad faith to support the district court's
judgment.
Compensatory damage awards
[Headnote 4]
GNIC contends that the award of $150,000 in compensatory damages is excessive and not
supported by the evidence because the Potters suffered no economic injury and their credit
has been restored. We again disagree.
Generally, this court will affirm an award of compensatory damages unless the award is so
excessive that it appears to have been given under the influence of passion or prejudice.
NRCP 59(a)(6);
4
Miller v. Schnitzer, 78 Nev. 301, 308, 371 P.2d 824, S2S {1962),
abrogated in part on other grounds by Ace Truck & Equip.
__________

4
NRCP 59(a) provides, in relevant part:
A new trial may be granted to all or any of the parties and on all or part
828 (1962), abrogated in part on other grounds by Ace Truck & Equip. Rental v. Kahn, 103
Nev. 503, 746 P.2d 132 (1987). The size of the award alone is not conclusive evidence that it
was the result of passion or prejudice. Miller, 78 Nev. at 309, 371 P.2d at 828. Rather, [t]he
core of the matter seems to be that an appellate court will disallow or reduce the award if its
judicial conscience is shocked. Id. at 309, 371 P.2d at 829.
There is nothing in the record to indicate that the trial judge was acting under the influence
of passion or prejudice when it awarded compensatory damages of $75,000 to each of the
Potters. The award is consistent with the two years of threats and subsequent litigation the
Potters had to endure and the damage to their credit reputation during that time. The Potters
testified about the anxiety and concerns caused by the threats and litigation, including having
to travel to Nevada
5
and hire an attorney. Moreover, the fact that the trial judge refused to
award future damages indicates that the trial judge was not influenced by passion or
prejudice; otherwise, the trial judge could have used such an award to further compensate the
Potters. Therefore, we conclude that the award of $150,000 compensatory damages was not
excessive.
6

Punitive damage award
[Headnote 5]
GNIC contends that there is no evidence that it acted with malice or oppression, and thus
the district court erred in awarding punitive damages.
[Headnote 6]
NRS 42.005 provides that punitive damages may be awarded [i]n an action for the breach
of an obligation not arising from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud or malice, express or
implied."
__________
of the issues for any of the following causes or grounds materially affecting the substantial rights of an
aggrieved party: . . . (6) Excessive damages appearing to have been given under the influence of passion
or prejudice . . . .

5
The Potters had moved to Southern California.

6
We note that the facts of this case represent another exaggerated example of the lengths to which some
insurers will go to save comparatively small sums of money at the expense of their insureds. Here the insurer
required its insureds to undergo the time and inconvenience of IMEs and to thereafter endure extended threats
and harassment over the insurer's unwillingness to promptly extricate its insureds from a position of liability
during protracted haggling over the sum of about $4,000 relating to the IMEs. There is little wonder that the bad
faith tort evolved as a method of dealing with such callous disregard for the feelings and predicaments of insured
customers.
the defendant has been guilty of oppression, fraud or malice, express or implied. This court
will not disturb an award of punitive damages unless the record lacks substantial evidence to
support the required finding of oppression, fraud or malice, express or implied.' First
Interstate Bank v. Jafbros Auto Body, Inc., 106 Nev. 54, 56, 787 P.2d 765, 767 (1990)
(quoting Village Dev. Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974)).
This court has defined oppression as a conscious disregard for the rights of others
which constitutes an act of subjecting plaintiffs to cruel and unjust hardship.' United Fire
Ins. Co. v. McClelland, 105 Nev. 504, 512-13, 780 P.2d 193, 198 (1989) (quoting Ainsworth
v. Combined Ins. Co., 104 Nev. 587, 590, 763 P.2d 673, 675 (1988), cert. denied, 493 U.S.
958 (1989)).
In the case at bar, the district court found that the conduct of G.N.I.C. was wilful,
intentional and done in reckless disregard of the consequences to the Potters and with a
conscious disregard for the rights of the Potters thereby subjecting them to cruel and unjust
hardships. We conclude that there was sufficient evidence to support this finding.
[Headnote 7]
However, we conclude that the punitive damages awarded against GNIC were excessive as
a matter of law. In Ace Truck & Equipment Rentals, Inc. v. Kahn, 103 Nev. 503, 509, 746
P.2d 132, 136-37 (1987), this court set forth the following standard for reviewing the
excessiveness of a punitive damages award:
Punitive damages are legally excessive when the amount of damages awarded is clearly
disproportionate to the degree of blameworthiness and harmfulness inherent in the
oppressive, fraudulent or malicious misconduct of the tortfeasor under the
circumstances of a given case. If the awarding jury or judge assesses more in punitive
damages than is reasonably necessary and fairly deserved in order to punish the
offender and deter others from similar conduct, then the award must be set aside as
excessive.
(Footnote omitted). We also set out a non-exhaustive list of circumstances that are relevant in
applying the standard, including the financial position of the defendant, culpability and
blameworthiness of the tortfeasor, vulnerability and injury suffered by the offended party, the
extent to which the punished conduct offends the public's sense of justice and propriety, and
the means which are judged necessary to deter future misconduct of this kind. Id. at 510, 746
P.2d at 137.
Based on the standards established in Ace Truck and after considering all of the factors
enumerated therein, we conclude that in this case an award of $1,000,000 in punitive
damages would be unreasonable and disproportionate to the behavior of GNIC.
GNIC. Although the award amounts to only one percent of GNIC's net worth ($104,000,000),
the amount was excessive in light of GNIC's overall conduct. GNIC paid the full policy limits
in May 1992, prepaid the initial IME examinations, and paid part of the diagnostic
examinations before any dispute arose. Moreover, GNIC repeatedly attempted to settle the
dispute by contacting both RNA and CSN, always representing the debt as its responsibility,
not the Potters'. Cf. Kellar v. Brown, 101 Nev. 273, 274, 701 P.2d 359, 359 (1985) (punitive
damages reduced because defendant attempted to settle the dispute). Finally, the amount
awarded constituted excessive punishment, especially where the evidence failed to reveal that
the conduct involved represented a pattern of behavior on the part of GNIC in the payment of
costs related to IMEs required of its insureds. Additionally, Carlson testified that in his
twenty-five years of experience he had never encountered a similar situation. Therefore, we
conclude that $1,000,000 was excessive.
We affirm the judgment of the trial court in all respects except for the award of punitive
damages. The judgment for punitive damages is reduced from $1,000,000 to $250,000.
7

Young and Shearing, JJ., concur.
Rose, J., with whom Springer, J., joins, concurring:
I concur in the affirmance of this case but would approve the entire award of punitive
damages rather than modify it.
____________
112 Nev. 209, 209 (1996) Gallen v. District Court
JOSEPH R. GALLEN, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
GERARD J. BONGIOVANNI, District Judge, Respondents, and JAMES W. KING,
Real Party in Interest.
No. 27149
February 29, 1996 911 P.2d 858
Original petition for a writ of prohibition or mandamus directing the district court to enter
petitioner's peremptory challenge and to transfer the underlying action to a different
department pursuant to SCR 48.1. Eighth Judicial District Court, Clark County; Gerard J.
Bongiovanni, Judge.
__________

7
Our resolution of this matter obviates the need to address GNIC's arguments regarding the applicability of the
punitive damages cap under NRS 42.005.
Third-party defendant petitioned for writ of prohibition and mandamus directing the
district court to enter peremptory challenge and transfer matter to different department. The
supreme court held that: (1) defendant's voluntary dismissal of third-party claim was
effective, despite third-party defendant's earlier joinder in plaintiff's motion to dismiss, and
(2) third-party defendant had no right to exercise peremptory challenge after plaintiff had
already waived right to do so.
Petition denied.
Joseph R. Gallen, In Proper Person, Las Vegas, for Petitioner.
Crockett & Myers, Las Vegas; Peter Chase Neumann, Reno, for Real Party in Interest.
1. Judgment; Parties.
Third-party defendant's filing of affidavit when joining plaintiff's motion to dismiss did not preclude defendant from unilaterally
dismissing third-party claim. Filing of affidavit did not convert motion to dismiss to one for summary judgment absent formal written
order of court and answer to third-party complaint was never filed. NRCP 12(b), 41(a).
2. Judgment.
Motion to dismiss is not converted to one for summary judgment, for purposes of rule permitting plaintiff to voluntarily dismiss
complaint before filing of answer or formal motion for summary judgment, until district court enters formal written order resolving
motion and actually considers matters outside pleadings in resolving motion. NRCP 12(b), 41(a).
Plaintiff retains right to dismiss complaint voluntarily while motion to dismiss is pending. NRCP 12(b), 41(a).
4. Judges.
Third-party defendant was not entitled to exercise peremptory challenge to district judge after plaintiff had already waived right to
do so, even though third-party defendant was new party to action; third-party defendant was on same side of action as plaintiff. SCR
48.1.
OPINION
Per Curiam:
This is an original petition for a writ of prohibition and mandamus filed in proper person by petitioner, Joseph Gallen, an attorney
with David Allen & Associates (David Allen). It appears that Gallen seeks a writ from this court directing the district court to enter his
peremptory challenge and transfer the underlying action to a different department of the district court pursuant to SCR 48.1. It appears
further that, in the alternative, Gallen requests that this court direct real party in interest James King to accept
Gallen's terms for a stipulated dismissal pursuant to NRCP 4l{a).1
Gallen requests that this court direct real party in interest James King to accept Gallen's terms
for a stipulated dismissal pursuant to NRCP 41(a).
1

Because it appeared that Gallen may have set forth issues of arguable merit, on June 29,
1995, we ordered King to file an answer to the petition. King filed his answer on July 19,
1995.
We have reviewed the documents on file, and we have determined that extraordinary relief
is not warranted. Specifically, NRCP 41(a)(1) provides that a plaintiff may unilaterally
dismiss an action at any time before the defendant has filed an answer or a motion for
summary judgment. We conclude that Gallen has been dismissed from the underlying action.
FACTS
David Allen is the plaintiff in the underlying action against King. King filed a
counterclaim against David Allen and subsequently filed an amended counterclaim against
David Allen and a third party complaint against Gallen both in his capacity as an employee of
David Allen and as an individual. David Allen moved to dismiss the amended counterclaim.
Gallen filed a joinder in David Allen's motion and immediately thereafter, in his capacity as a
party distinct from David Allen, filed a peremptory challenge to the district judge pursuant to
SCR 48.1. King then filed a notice of judgment of dismissal of the third party complaint
against Gallen voluntarily pursuant to NRCP 41(a)(1). King also moved to strike Gallen's
peremptory challenge. The district court granted King's motion to strike the challenge, and the
case was transferred back to the original judge. Gallen then filed this petition with this court
and moved to stay the proceedings in the district court pending resolution of the instant
petition.
DISCUSSION
I. Gallen has been dismissed from the underlying action
[Headnote 1]
Gallen contends that because he filed a joinder in David Allen's motion to dismiss and a
supporting affidavit, the motion to dismiss became a motion for summary judgment pursuant
to the language of NRCP 12(b).
2
Gallen concludes that King was barred from dismissing
Gallen voluntarily because a motion for summary judgment had, in effect, been filed.
__________

1
The pertinent language of NRCP 41(a) appears at footnote 3, infra.

2
NRCP 12(b) provides in pertinent part as follows:
If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and
barred from dismissing Gallen voluntarily because a motion for summary judgment had, in
effect, been filed. NRCP 41(a).
3

[Headnote 2]
NRCP 41(a), by its express terms, applies only to a motion for summary judgment or an
answer, not to a motion to dismiss. Under the plain language of NRCP 12(b), a motion to
dismiss remains a motion to dismiss until converted by the district court into a motion for
summary judgment. This conversion occurs, if at all, only when the district court enters a
formal written order resolving the motion, and actually considers materials outside the
pleadings in resolving the motion. See, e.g., Aamot v. Kassel, 1 F.3d 441, 443 (6th Cir.
1993); see also 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure,
2362 (l994).
4

[Headnote 3]
While a motion to dismiss is pending, the plaintiff retains the right to dismiss the
complaint voluntarily pursuant to NRCP 41(a). If the defendant wishes to protect herself from
the plaintiff's right to dismiss her voluntarily, she may file an answer or a formal motion for
summary judgment. Similarly, once the district court rules on a motion to dismiss, and
concludes that it should be considered a motion for summary judgment, the plaintiff loses the
right to dismiss voluntarily, even though the document was originally titled a motion to
dismiss.
Here the district court had not converted David Allen's motion to dismiss into a motion for
summary judgment before King voluntarily dismissed Gallen. The motion remained a motion
to dismiss, and King could voluntarily dismiss the third party complaint pursuant to NRCP
41{a){1).
__________
disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.

3
NRCP 41(a) provides in pertinent part as follows:
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any
statute, an action may be dismissed by the plaintiff upon repayment of defendants' filing fees, without
order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an
answer or of a motion for summary judgment, whichever first occurs . . . .

4
A motion to dismiss is neither an answer nor, unless accompanied by affidavits discussing matters outside the
pleadings that are not excluded by the court, a motion for summary judgment; thus, unless formally converted
into a motion for summary judgment under Rule 56, a motion to dismiss under Rule 12 does not terminate the
right of dismissal [pursuant to Rule 41] by notice.
9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2362 (1994) (emphasis added).
plaint pursuant to NRCP 41(a)(1). Accordingly, we conclude that Gallen has in fact been
dismissed from the action.
II. Gallen had no right to exercise a peremptory challenge.
[Headnote 4]
Gallen contends that as a new party to the action, he was entitled to exercise a peremptory
challenge to the district judge even though David Allen had already waived its right to do so.
We conclude that because Gallen is on the same side of the action as David Allen, he had no
right to exercise a peremptory challenge. See SCR 48.l.
5

Accordingly, we deny this petition.
____________
112 Nev. 213, 213 (1996) Sheriff v. Gillock
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. JANICE K. GILLOCK, Respondent.
No. 27825
February 29, 1996 912 P.2d 274
Sheriff's appeal from an order of the district court granting in part and denying in part a
pretrial petition for a writ of habeas corpus; motion to dismiss appeal for lack of an
appealable determination. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Defendant petitioned for writ of habeas corpus after she was charged with battery with use
of deadly weapon and battery causing substantial bodily harm without use of deadly weapon.
The district court granted relief in part. Sheriff appealed and defendant moved to dismiss
appeal for lack of appealable determination. The supreme court held that: (1) order granting
in part a pretrial petition for writ of habeas corpus is appealable, and (2) dismissing charge of
battery with use of deadly weapon was proper.
Motion to dismiss denied; order affirmed.
Clark County, for Appellant.
Dominic P. Gentile, Las Vegas, for Respondent.
__________

5
SCR 48.1 provides in pertinent part, In any civil action pending in a district court . . . each side is entitled, as
a matter of right, to one change of judge by peremptory challenge. Each action or proceeding, whether single or
consolidated, shall be treated as having only two sides.
1. Habeas Corpus.
Order granting in part a pretrial petition for writ of habeas corpus is appealable. NRS 34.575(2), (3).
2. Assault and Battery.
State failed to present sufficient evidence to grand jury to support charge of battery with use of deadly weapon, where no evidence
was presented that the water glass allegedly used to cut victim's face was deadly weapon. NRS 200.481(2)(e).
OPINION
Per Curiam:
This is a sheriff's appeal from an order of the district court granting in part and denying in part respondent's pretrial petition for a writ
of habeas corpus.
On October 21, 1994, there was an altercation between respondent and another woman in a Las Vegas restaurant, during which the
other woman received serious cuts to the face from a drinking water glass allegedly held by respondent. On July 28, 1995, after
respondent's appearance before a grand jury, an indictment was filed charging her with one count of battery with the use of a deadly
weapon and one count of battery causing substantial bodily harm without use of a deadly weapon. See NRS 200.481(2)(e); NRS
200.481(2)(b). Respondent filed in the district court a pretrial petition for a writ of habeas corpus. On November 6, 1995, after conducting
a hearing and receiving briefs on the petition, the district court entered an order granting the petition as to count I, battery with use of a
deadly weapon, and dismissing that count. The district court denied the petition as to count II, battery causing substantial bodily harm
without use of a deadly weapon. This is a sheriff's appeal from that order.
[Headnote 1]
Respondent has filed a motion to dismiss this appeal. Respondent contends that this court lacks jurisdiction to entertain this appeal
because no statute or court rule provides for an appeal from an order granting in part a pretrial petition for a writ of habeas corpus. We
disagree. NRS 34.575(2) provides for an appeal from an order of the district court granting a writ of habeas corpus and ordering a
discharge or a change in custody of the petitioner. . . . Dismissal of a count constitutes a change in custody of a petitioner, because after
the dismissal he or she is no longer in custody on the same charge or charges. Further, appeals from district court orders dismissing charges
are anticipated in NRS 34.575(3), which sets forth the duties of the district court clerk in an appeal from an order of the district court
discharging a petitioner . . . after granting a pretrial petition for habeas corpus based on alleged want of
probable cause, or otherwise challenging the court's right or jurisdiction to proceed to trial of a criminal charge
. . . ."
discharging a petitioner . . . after granting a pretrial petition for habeas corpus based on
alleged want of probable cause, or otherwise challenging the court's right or jurisdiction to
proceed to trial of a criminal charge . . . . Moreover, permitting sheriff's appeals from orders
granting pretrial habeas corpus relief as to some but not all charges effectuates the clear
purpose of the statute: to permit the state to challenge district court orders granting pretrial
habeas corpus relief.
Respondent further contends that consideration of this appeal is improvident because it
would lead to piecemeal litigation and unnecessary postponement of the petitioner's trial. This
contention also lacks merit. Regardless of the number of charges in the charging document,
the state may appeal only from district court orders granting habeas corpus relief. It is
unlikely that a district court would enter a succession of such orders. Respondent's citations to
this court's pronouncements regarding piecemeal litigation and appealability in civil cases are
not relevant here. Cf. Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 797 P.2d 978
(1990); Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986). Accordingly, we
deny the motion to dismiss.
[Headnote 2]
Regarding the merits of this appeal, we have previously held that [a]bsent a showing of
substantial error on the part of the district court in reaching such determinations, this court
will not overturn the granting of pretrial habeas petitions for lack of probable cause. Sheriff
v. Provenza, 97 Nev. 346, 347, 630 P.2d 265, 265 (1981). The state has not shown that the
district court erred in finding that a water glass is not a deadly weapon and that the state
therefore did not present sufficient evidence to the grand jury to establish probable cause that
respondent committed a battery with the use of a deadly weapon. See NRS 200.481(2)(e).
Respondent must still stand trial on the charge of battery causing substantial bodily harm
without use of a deadly weapon. See NRS 200.481(2)(b). Accordingly, we affirm the order of
the district court granting in part and denying in part respondent's pretrial petition for a writ of
habeas corpus.
____________
112 Nev. 216, 216 (1996) Gordon v. District Court
TERRY W. GORDON and JOHN F. SWEENEY, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Clark,
and THE HONORABLE JOSEPH T. BONAVENTURE, District Judge,
Respondents, and THE STATE OF NEVADA, Real Party in Interest.
No. 26722
March 1, 1996 913 P.2d 240
Original petition for a writ of mandamus, or in the alternative, prohibition. Eighth Judicial
District Court, Clark County; Joseph T. Bonaventure, Judge.
After forfeiture proceeding was dismissed for lack of standing, criminal indictment was
filed charging defendants with obtaining money under false pretenses, attempting to obtain
money under false pretenses, racketeering, and conspiracy to commit racketeering. The
district court denied motions to dismiss indictment. Petition for writ of mandamus, or in
alternative, for writ of prohibition, was filed. The supreme court held that: (1) double
jeopardy did not bar prosecution; (2) absences of three grand jurors from one grand jury
session each did not require dismissal of indictment; (3) indictment adequately stated
offenses; and (4) indictment was not multiplicitous.
Petition denied.
[Rehearing pending]
Dominic P. Gentile, Ltd. and JoNell Thomas, Las Vegas, for Petitioner Gordon.
Laura Wightman FitzSimmons, Las Vegas, for Petitioner Sweeney.
Stewart Bell, District Attorney and Frank Ponticello, Deputy District Attorney, Clark
County, for Respondents, Eighth Judicial District Court and The Honorable Joseph T.
Bonaventure, District Judge.
1. Double Jeopardy.
Double Jeopardy Clause protects against three distinct abuses: second prosecution for same offense after acquittal; second
prosecution for same offense after conviction; and multiple punishments for same offense. U.S. Const. amend. 5.
2. Double Jeopardy.
In analyzing double jeopardy issues, determination must first be made that offenses upon which civil and criminal actions are
based are same; if so, next inquiry is whether actions took place in separate proceedings, and whether civil forfeiture constitutes
punishment; if civil forfeiture does not constitute punishment, then analysis ends because multiple punishments have
not been imposed; if, however, civil forfeiture does constitute "punishment," court then determines at what
point jeopardy attached in each proceedingcivil and criminalto determine which "punishment" was
imposed first.
because multiple punishments have not been imposed; if, however, civil forfeiture does constitute punishment, court then determines
at what point jeopardy attached in each proceedingcivil and criminalto determine which punishment was imposed first. U.S.
Const. amend. 5.
3. Double Jeopardy.
Jeopardy attaches in civil forfeiture action when final judgment of forfeiture is entered. U.S. Const. amend. 5.
4. Double Jeopardy.
Jeopardy never attached in civil forfeiture action since no judgment of forfeiture was ever entered; thus, criminal indictment based
on same set of facts did not place petitioners in jeopardy for second time. U.S. Const. amend. 5.
Grand jury indictment was valid, even though three grand jurors each missed one session. Twelve grand jurors concurred in
indictment, grand juror absences were not due to failure of prosecutor to forthrightly present evidence on claims in indictment, and
grand jurors who were absent read transcripts from sessions they missed, and concluded that prosecution had proven allegations in
indictment. NRS 172.255(1).
Indictment should not be dismissed if requisite number of jurors are informed, i.e., are either present to hear testimony or read
testimony given in their absence. NRS 172.255(1).
Even if transcripts of grand jury sessions that three jurors missed were hearsay, dismissal of indictment was not required by fact
that those grand jurors read those transcripts and subsequently concluded that prosecution had proven allegations in indictment. No
greater assurances of accuracy of what witnesses testified to before grand jury could be present than in official transcript containing
sworn testimony before that grand jury. NRS 51.075(1), 172.235(2).
Even if conflict of interest existed in false pretenses and racketeering prosecution by virtue of fact that nightclub patrons who were
witnesses might receive compensation if State succeeded in parallel civil forfeiture action against defendants, and even if such conflict
could be deemed exculpatory evidence which thereby imposed obligation on State to reveal it to grand jurors, State's failure to do so
did not warrant dismissal of indictment, as there was no other exculpatory evidence that, when paired with alleged violation in
question, would mandate dismissal. NRS 172.145(2).
Fact that state inadvertently failed to submit elements exhibit to grand jury did not require dismissal of indictment. District
attorney read charges to jury, explained how they interrelated in layperson's terms, and asked grand jurors if they had any questions.
NRS 172.095(2).
Court would not go behind indictment charging false pretenses and racketeering to rule on defendant's claim that, because grand
jurors deliberated only ten minutes, they could not have complied with statute requiring them to vote separately on each person and on
each count. There was no allegation that there was insufficient evidence to arrive at true bill, or that jurors engaged in some kind of
personal vendetta against defendants, and there was no reason to believe that jurors did not follow law simply
on basis of brevity of deliberation time.
against defendants, and there was no reason to believe that jurors did not follow law simply on basis of brevity of deliberation time.
NRS 172.255(2).
11. False Pretenses.
Allegations in indictment stated offense of aiding and abetting attempts to obtain money under false pretenses. State alleged that
nightclub employees used pitchthat purchase of bottle of non-alcoholic wine would entitle customer to have sex with female
employeeknowing that they would not deliver on this promise, and that defendants aided and abetted that attempt crime by
owning/operating nightclubs. NRS 193.330.
12. Criminal Law.
Conviction of principal actor is not prerequisite to conviction of aider and abettor; it need only be established that act constituting
offense was in fact committed by someone.
Because counts in indictment charged alternative means of committing crime of racketeering, and not alternative offenses,
indictment was not required to be dismissed on basis that such counts were duplicitous. NRS 173.075(2), 207.400(1).
Count charging that defendants conducted racketeering activity through enterprise was not multiplicitous of count alleging
racketeering through direction of criminal syndicate. Proving existence of criminal syndicate required showing that syndicate
continued its operation even if individual members entered or left organization, and that element was not required to be proven for
charge that concerned enterprise. NRS 207.400(1)(a), (1)(b), (1)(d), (1)(f).
General test for multiplicity is that offenses are separate if each requires proof of additional fact that other does not.
Offenses are not multiplicitous when they occur at different times and different places, because they cannot then be said to arise
out of single wrongful act.
17. Conspiracy.
Conspiracy to commit offense and completed offense have traditionally been considered to constitute separate crimes.
18. Racketeer Influenced and Corrupt Organizations.
Statute prohibiting criminal syndicates does not require that organization be illegal organization. NRS 207.370.
19. Racketeer Influenced and Corrupt Organizations.
Indictment alleged RICO enterprise with clarity required by Due Process Clause; counts in question were plain and concise
statements of essential facts constituting offenses, and named specific enterprises. U.S. Const. amend. 14; NRS 173.075, 207.370.
20. Mandamus.
Writ of mandamus is available to compel performance of act that law requires as duty resulting from office, trust or station, or to
control arbitrary or capricious exercise of discretion. NRS 34.160.
21. Prohibition.
Writ of prohibition arrests proceedings of any tribunal exercising judicial functions, when such proceedings are without or in
excess of jurisdiction of that tribunal.
OPINION
Per Curiam:
This original petition for a writ of mandamus, or in the alternative, for a writ of
prohibition, challenges two district court orders denying petitioners' motions to dismiss an
indictment on the following grounds: (1) violation of the Double Jeopardy Clause,
1
and (2)
various defects in the indictment. We conclude that the district court properly denied
petitioners' motions.
In October 1993, the Clark County District Attorney filed a civil forfeiture action against
petitioners generally alleging that petitioners received proceeds derived from racketeering
activity and seeking forfeiture of those proceeds. In January 1994, the district court dismissed
that complaint on the ground that the plaintiff lacked standing, and ordered that funds seized
from the defendants, here petitioners, be returned. Subsequently, in April 1994, the district
attorney filed a criminal indictment charging petitioners with three counts of obtaining money
under false pretenses, twelve counts of attempting to obtain money under false pretenses, two
counts of racketeering, and two counts of conspiracy to commit racketeering. Petitioners
initially filed a motion to dismiss the indictment on the ground that the indictment suffered
from various defects. Subsequently, petitioners filed a motion to dismiss the indictment on
the ground that their double jeopardy rights were violated. The district court denied both
motions. Petitioners then filed in the district court a petition for a writ of mandamus, which
the district court also denied. This court subsequently affirmed that decision and order.
Gordon v. Ponticello, 110 Nev. 1015, 879 P.2d 741 (1994).
On February 27, 1995, petitioners filed this original petition for a writ of mandamus, or in
the alternative, a writ of prohibition, arguing, inter alia, that proceeding on the indictment
violates the Double Jeopardy Clause since it constitutes a second prosecution for the same
conduct. Petitioners rely upon the relatively recent case of United States v. $405,089.23 U.S.
Currency, 33 F.3d 1210 (9th Cir. 1994), amended on denial of reh'g, 56 F.3d 41(1995), cert.
granted, 64 U.S.L.W. 3477, 3484 (U.S. Jan. 16, 1996). In $405,089.23, eight months after a
criminal conviction, a judgment was entered in a parallel civil forfeiture action which relied
upon the criminal conviction and other evidence.
__________

1
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no
person shall be subject for the same offense to be twice put in jeopardy of life or limb. Article 1, section 8 of
the Nevada Constitution provides: No person shall be subject to be twice put in jeopardy for the same offense.
action which relied upon the criminal conviction and other evidence. The Ninth Circuit
determined that, since (1) the criminal prosecution and the civil forfeiture action were
separate proceedings, and (2) the civil forfeiture under 21 U.S.C. 881(a)(6) and 18 U.S.C.
981(a)(1)(A) constituted punishment, the government's actions constituted a successive
attempt to impose punishment, in violation of the Double Jeopardy Clause. Id. at 1216.
[Headnote 1]
[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution
for the same offense after acquittal; a second prosecution for the same offense after
conviction; and multiple punishments for the same offense. United States v. Halper, 490
U.S. 435, 440 (1989). In Halper, the Court explained that a punitive civil sanction
following a criminal prosecution may violate the prohibition against double jeopardy. [A]
civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only
be explained as also serving either retributive or deterrent purposes, is punishment. . . . Id. at
448. The Court subsequently applied the Halper test to conclude that a civil forfeiture under
21 U.S.C. 881(a)(4) and (a)(7) constituted punishment. Austin v. United States, 509
U.S. 602, 113 S. Ct. 2801, 2812 (1993). In addition, the Court has held that a penal tax
imposed after a criminal conviction for the same offense was punishment which violated
the Double Jeopardy Clause. Department of Revenue of Montana v. Kurth Ranch, 511 U.S.
767, 784, 114 S. Ct. 1937, 1948 (1994). In the instant case, however, these authorities are
inapposite. We conclude that because judgment was never entered in the civil forfeiture
action, jeopardy never attached in that proceeding. Therefore, proceeding on the criminal
indictment cannot constitute double jeopardy.
[Headnote 2]
In analyzing double jeopardy issues a determination must first be made that the offenses
upon which the civil and criminal actions are based are the same. Blockburger v. United
States, 284 U.S. 299 (1932). If so, the next inquiry is whether the actions took place in
separate proceedings and whether the civil forfeiture constitutes punishment. If the civil
forfeiture does not constitute punishment, then the analysis ends because multiple
punishments have not been imposed. If, however, the civil forfeiture does constitute
punishment, the court then determines at what point jeopardy attached in each
proceedingthe civil and the criminalto determine which punishment was imposed first.
Obviously, a second punishment violates the prohibition against double jeopardy.
against double jeopardy. However, if jeopardy never attached to the first punishment, then
the analysis ends. See United States v. Pierce, 60 F.3d 886, 889 (1st Cir. 1995).
In the instant case, the civil forfeiture complaint was filed on October 25, 1993. On
January 14, 1994, after a hearing, the district court granted petitioners' motion to dismiss on
the ground that [p]laintiff lacks standing for bringing this action. On April 11, 1994, a
criminal indictment was filed. On September 22, 1994, petitioners filed a motion to dismiss
the indictment, which the district court denied. On November 7, 1994, petitioners filed a
motion to dismiss the indictment on the ground that it violated the prohibition against double
jeopardy, which the district court also denied.
[Headnotes 3, 4]
Since we conclude that jeopardy never attached in the civil forfeiture action, we begin and
end our analysis here. Jeopardy attaches in a civil forfeiture action when the final judgment of
forfeiture is entered. See United States v. Chick, 61 F.3d 682, 686 (9th Cir. 1995); United
States v. Ursery, 59 F.3d 568, 571 (6th Cir. 1995), cert. granted, 64 U.S.L.W. 3477, 3484
(U.S. Jan. 16, 1996); United States v. Tamez, 881 F. Supp. 460, 466 (E.D. Wash. 1995);
United States v. Stanwood, 872 F. Supp. 791, 798 (D. Or. 1994). Jeopardy never attached in
the civil forfeiture action since no judgment of forfeiture was ever entered. Therefore, the
criminal indictment does not place petitioners in jeopardy for a second time.
2
Likewise,
jeopardy would not attach to a civil forfeiture judgment if the government first proceeded on
an indictment which was dismissed before the jurors were impanelled. See Crist v. Bretz, 437
U.S. 28, 38 (1978) (in criminal jury trials, jeopardy attaches when the jury is sworn).
For the above reasons, we hold that the district court did not err in denying petitioners'
motion to dismiss the indictment on double jeopardy grounds. We also hold that the district
court did not err in denying petitioners' motion to dismiss the indictment for alleged
deficiencies in the indictment. This holding is next discussed.
[Headnote 5]
Petitioners argued below and assert now that the indictment should have been dismissed
for the following reasons.
__________

2
As the First Circuit pointed out in United States v. Pierce, 60 F.3d 886, 889 (1st Cir. 1995), the Double
Jeopardy Clause does not come into play until the claimant has first been placed in jeopardy. After the claimant
has been placed in jeopardy once, only the second proceeding is constitutionally endangered, since the Clause
protects an individual from being subjected to the hazards of trial and possible conviction more than once for
an alleged offense.' Id. (quoting Green v. United States, 355 U.S. 184, 187 (1957)).
should have been dismissed for the following reasons. First, Petitioners allege that the grand
jury indictment is defective because not all twelve jurors were present at every session.
Several grand jurors apparently each missed one grand jury session and read a transcript of
that session in lieu of attendance. Petitioners argue that the transcript does not qualify as
legally valid evidence pursuant to NRS 172.l35.
3

The State acknowledges that three jurors each missed one session. Those grand jurors
stated that they read the transcript of the session they missed. The State concedes that the
transcripts are hearsay. However, the State argues that this does not mandate dismissal of the
indictment since twelve grand jurors concurred in the indictment.
NRS 172.255(1) provides that [a] presentment or indictment may be found only upon the
concurrence of 12 or more jurors. Since twelve grand jurors voted for the indictment, the
indictment complied with this provision. Concerning grand juror absences, this court has
indicated that there is no express statutory provision prohibiting the absence of a grand juror
from one meeting. Johnston v. State, 107 Nev. 944, 947, 822 P.2d 1118, 1120 (1991).
Further, the Johnston court noted that
[n]or is there an express provision requiring seventeen members every time the selected
grand jury meets. In fact, there is a long-standing practice of carrying on the
proceedings, regardless of whether or not all seventeen grand jurors are present. As long
as at least twelve members hear the matter presented and vote to return an indictment
against the defendant, the court has complied with the requirements. See NRS 172.255.
Id. (Emphasis added).
[Headnote 6]
We hold that an indictment should not be dismissed if the requisite number of jurors are
informed, i.e., are either present to hear testimony or read testimony given in their absence.
__________

3
Petitioners argued before the district court that Judge Whitehead dismissed an indictment in State v.
Champion where jurors in the grand jury were absent. We have reviewed a copy of Judge Whitehead's Order,
which totaled 173 pages. The order was filed as an appendix to the respondent's brief in State v. Bayus, Docket
No. 25686 (August 25, 1994). Apparently, in that case, only five of the grand jurors who had been present for all
of the testimony were present for the vote, and the other grand jurors had to rely upon what they were told from
the jurors who happened to be there or what they might read and glean from the file. This is distinguishable
from the instant case, where seven of the grand jurors were present for the live testimony, where the other three
read the transcript from the day they missed, and where twelve were present for the vote.
absence. See United States v. Roberts, 481 F. Supp. 1385, 1388 (C.D. Cal. 1980) (where only
eleven, not twelve, jurors were informed, indictment was dismissed).
4
Because the grand
juror absences in the instant case were not due to the failure of the prosecutor to forthrightly
present evidence on the claims in the indictment, and because only three grand jurors each
missed one session, read the transcripts from that session, and concluded that the prosecution
had proven the allegations in the indictment, the grand jurors were informed, and the
indictment should not be dismissed on this ground.
[Headnote 7]
Nevertheless, petitioners argue that the transcripts are hearsay and do not constitute
legally valid evidence under NRS 172.135 and, the jurors who missed a session did not see
exhibits which were introduced at that session.
5

NRS 172.135(2) (Evidence receivable before grand jury) provides: The grand jury can
receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay
or secondary evidence. This court has never held that transcript testimony is inadmissible
under NRS 172.135(2). Moreover, we assume the definition of hearsay as used in NRS
172.135(2) is the same as that found in NRS 51.035 and, thus, is subject to the hearsay
exceptions. NRS 51.075(1) provides: A statement is not excluded by the hearsay rule if its
nature and the special circumstances under which it was made offer assurances of accuracy
not likely to be enhanced by calling the declarant as a witness, even though he is
available."
__________

4
Other cases hold that so long as twelve jurors return an indictment, all are not required to attend every session.
This relies upon the rationale as set out by Judge Learned Hand:
Since all the evidence adduced before a grand jury . . . is aimed at proving guilt, the absence of some
jurors during some part of the hearing will ordinarily merely weaken the prosecution's case. If what the
absentees actually hear is enough to satisfy them, there would seem to be no reason why they should not
vote.
United States ex rel. McCann v. Thompson, 144 F.2d 604, 607 (2d Cir.), cert. denied, 323 U.S. 790 (1944); see
United States v. Sugar, 606 F. Supp. 1134, 1143 (S.D.N.Y. 1985).
The Thompson rationale is not dispositive in Nevada since exculpatory evidence must be presented to a grand
jury in Nevada and since that exculpatory evidence may be produced during a hearing that a juror misses.
However, the remedy for this would seem to be to produce a transcript of the missed hearing. See State v.
Corpuz, 690 P.2d 282, 285 (Haw. 1984) (defendant must show that she suffered prejudice from presentation of
hearsay evidence).

5
As for the alleged failure of the absent grand jurors to review the exhibits they missed, we note that when a
grand jury convenes, the grand jurors are responsible for investigating the allegations. The absent grand jurors
were made aware of the existence of the exhibits and it is presumed that they saw them.
likely to be enhanced by calling the declarant as a witness, even though he is available. We
believe that no greater assurances of accuracy of what witnesses testified to before the grand
jury could be present than in an official transcript containing sworn testimony before that
grand jury. Therefore, we hold that the indictment need not be dismissed because the grand
jurors read transcripts.
Petitioners also contend that the indictment is defective because the State failed to inform
the grand jury of an alleged conflict of interestthat the nightclub patrons were involved
with the civil forfeiture action where the State requested treble damages.
Petitioners rely upon State v. Babayan, 106 Nev. 155, 787 P.2d 805 (1990). In Babayan,
the grand jury returned indictments charging several defendants with multiple counts of child
abuse causing substantial mental harm, sexual assault, and lewdness. Id. at 158, 787 P.2d at
809. Babayan moved to dismiss the charges against him, arguing that (1) the district attorney
failed to present exculpatory evidence to the grand jury and (2) conflicts of interest existed.
Id. at 163, 787 P.2d at 811-12. The district court dismissed the charges against Babayan. Id. at
163, 787 P.2d at 812. The State appealed. Id. at 165, 787 P.2d at 812. Concerning the conflict
of interest issue, this court concluded that the district attorney's failure to inform the grand
jury of a conflict of interest concerning therapists who were parents at the school and testified
about the effects of the harm on the children when coupled with other derelictions, supports
the district court's dismissal of the indictments. Id. at 167, 787 P.2d at 814.
[Headnote 8]
It is not clear that the district attorney's failure to inform the grand jurors about damages in
the parallel civil action constitutes exculpatory evidence. NRS 172.145(2) provides that [i]f
the district attorney is aware of any evidence which will explain away the charge, he shall
submit it to the grand jury. Informing the grand jury that the witnesses who were patrons at
the nightclubs may receive compensation if the State succeeds in the parallel civil forfeiture
action does not appear to be exculpatory evidence under the statute since it does not explain
away the charge.
However, even if a conflict of interest exists and such conflict can be deemed exculpatory
evidence, which thereby imposes an obligation on the State to reveal it to the grand jurors, we
hold that the State's failure to do so does not warrant dismissal of the indictment. In Babayan,
the district attorney's failure to inform the jurors of the therapists' conflict of interest was not
the only derelictionit was one of a number of derelictions.
derelictionit was one of a number of derelictions. 106 Nev. at 167, 787 P.2d at 814. By
contrast, the failure of the district attorney's office to inform the grand jurors of the conflict in
the instant case is the only instance of failing to present exculpatory evidence. Petitioners do
not point to other exculpatory evidence which, when paired with this alleged violation, would
mandate dismissal of the indictment.
[Headnote 9]
Petitioners further contend that the indictment is defective because the State's instructions
concerning the RICO charge were insufficient. The State concedes that an elements exhibit
was inadvertently not submitted to the grand jury. However, the State argues that in
addition to reading the statutes to the grand jury, the district attorney explained how the
elements of the crimes fit together in layperson's terms.
NRS 172.095(2) provides that [b]efore seeking an indictment . . . the district attorney
shall inform the grand jurors of the specific elements of any public offense which they may
consider as the basis of the indictment. While the district attorney did not give the grand jury
the elements exhibit, the district attorney read the charges to the jury, explained how they
interrelated in layperson's terms, and asked the grand jurors if they had any questions.
Admittedly, the RICO statute is complicated; however, we hold that where the district
attorney complied with the statute, the indictment should not be dismissed.
[Headnote 10]
Petitioners also contend that the indictment must be dismissed because it is highly
unlikely that the grand jury complied with NRS 172.255(2) since the jury was never
instructed that they had to vote separately on each person and each count. NRS 172.255(2)
provides that [t]he jurors shall vote separately on each person and each count included in a
presentment or indictment. Pursuant to NRS 172.215(3)(b), the certified court reporter must
not include the deliberations and voting of the grand jury in his notes. Thus, whether or not
the grand jury dedicated only ten and one-half seconds to each charge, as petitioners allege, is
unknown. The State argues that the voting process could have been brief because many of the
charges in the proposed indictment were of a similar nature, i.e., obtaining or attempting to
obtain money under false pretenses and racketeering and conspiracy to commit racketeering,
and the grand jury did not have to consider different elements for each charge.
Petitioners cite Eureka Bank Cases, 35 Nev. 80, 125, 126 P.
655, 669 (1912), in support of their proposition that a court can go behind an indictment,
regular on its face, and determine if it is void for any latent defect. Eureka Bank Cases is
distinguishable. In Eureka Bank Cases, the issue before the court was whether or not
defendants could employ a petition for a writ of habeas corpus to challenge a criminal
proceeding on the ground that their actions did not constitute a crime, or that insufficient
evidence was presented on which to return an indictment. This court noted that it could go
behind an indictment when there is insufficient evidence, or when the grand jurors falsely
accuse someone. There was no discussion that the court may go behind an indictment when
there is a suspicion that the jurors did not vote separately on each person and each count.
In the instant case, going behind the indictment is unwarranted. There is no allegation that
there was insufficient evidence to arrive at a true bill, or that the jurors engaged in some kind
of a personal vendetta against the petitioners. While the jurors only deliberated for ten
minutes, there is no reason to believe that they did not follow the law simply on the basis of
the brevity of the deliberation time. Thus, we conclude that the indictment should not be
dismissed on this ground.
[Headnote 11]
Petitioners also allege that the indictment is defective because the aiding and abetting
allegations of Counts 4 through 15 fail to state an offense since the government did not allege
and prove that a principal committed the offense to which the aider and abettor provided
assistance. Essentially, petitioners seem to argue that aiding and abetting an offense which
was never completed is not a crime.
To commit the crime of attempting to obtain money under false pretenses, the following
are necessary: an intent to commit the crime, an overt act, and a failure to consummate the
commission of the crime. NRS 193.330. Here, the State alleges that the nightclub employees
used a pitchthat the purchase of a bottle of non-alcoholic wine would entitle the
customer to have sex with a female employeeknowing that they would not deliver on this
promise, which evidences an intent to commit the crime of obtaining money under false
pretenses. Thus, each time the nightclub attempted to receive money under false pretenses,
this crime was completed.
[Headnote 12]
The State charges petitioners with aiding and abetting that attempt crime by
owning/operating the nightclubs. This is consistent with Hanley v. State, 85 Nev. 154, 451
P.2d 852 (1969), cited by petitioners, in which this court noted that " 'conviction of the
principal actor is not a prerequisite to conviction of the aider and abettor.
cited by petitioners, in which this court noted that conviction of the principal actor is not a
prerequisite to conviction of the aider and abettor. It need only be established that the act
constituting the offense was in fact committed by someone.' Id. at 159, 451 P.2d at 856
(quoting Gray v. United States, 260 F.2d 483, 484 (D.C. Cir. 1958)). Nightclub employees
attempted to obtain money under false pretenses. The State alleges that petitioners aided and
abetted in the commission of this crime. Therefore, we hold that Counts 4 through 15 do not
fail to state an offense.
Petitioners further contend that the State failed to allege sufficient facts showing how
petitioners aided and abetted the nightclub employees in their attempt to obtain money under
false pretenses. An indictment must contain a statement of the essential facts constituting the
offense charged. NRS 173.075(1). An accusation must include such a description of the acts
alleged to have been committed as will enable the accused to defend against the accusation.
Lane v. Torvinen, 97 Nev. 121, 123, 624 P.2d 1385, 1386 (1981); see Simpson v. District
Court, 88 Nev. 654, 503 P.2d 1225 (1972). Here, Counts 4 through 15 of the indictment state
that petitioners
directly, or indirectly through their subordinates, counseled, encouraged, hired,
commanded, induced, or otherwise procured the employees and/or agents of [the
nightclub] to induce potential customers to purchase a bottle of non-alcoholic wine by
directing the employees and/or agents of [the nightclub] if they were to purchase a
bottle of non-alcoholic wine.
Each count also charges that petitioners (1) provided a physical location and facilities from
which to make said false representations and (2) knew that the pitch was made without
intention of letting the customer have sex with the female employees. Torvinen is
distinguishable in that two counts contain[ed] no facts whatsoever showing how [the
defendant] aided and abetted the other defendants. 97 Nev. at 123, 624 P.2d at 1386. The
pertinent counts of the instant indictment show that petitioners aided and abetted the
nightclub employees by hiring them, inducing them to use a pitch, and by providing them
with a place in which to do this. We hold that this description is sufficient to put petitioners
on notice of the acts alleged to have been committed.
[Headnote 13]
Petitioners next contend that the indictment is defective, claiming that the RICO and
criminal syndicate charges of Counts 16 through 19 are duplicitous because more than one
offense is charged in each count.6 Duplicity concerns joining in a single count two or more
distinct and separate offenses.
charged in each count.
6
Duplicity concerns joining in a single count two or more distinct and
separate offenses. 1 Charles A. Wright, Federal Practice and Procedure 142 (2d ed. 1982).
NRS 173.075(2) provides that [i]t may be alleged in a single count that the means by which
the defendant committed the offense are unknown or that he committed it by one or more
specified means. In Jenkins v. District Court, 109 Nev. 337, 339-40, 849 P.2d 1055, 1057
(1993), this court noted that [a]lthough a charging document may set forth alternative means
of committing a crime within a single count, alternative offenses must be charged in separate
counts. NRS 207.400(1) sets out various means of committing the offense of racketeering.
7
Since Counts 16 and 1S charge alternate means of committing the crime of racketeering
and not alternative offenses, we hold that the indictment need not be dismissed on the
basis that these counts are duplicitous.
__________

6
Petitioners further contend that the indictment cumulatively alleges different RICO offenses in Counts 16
through 19 instead of alleging alternative offenses by employing and/or. However, this court has noted:
[Where] a single offense may be committed by one or more specified means, and those means are
charged alternatively, the state need only prove one of the alternative means in order to sustain a
conviction. Thus, notice of the charged offense is not improved by alleging that the crime was committed
by acts a and b rather than by acts a or b. In either case, the accused must prepare a defense to
all means by which it is alleged the crime was committed.
State v. Kirkpatrick, 94 Nev. 628, 630, 584 P.2d 670, 671-72 (1978) (citations omitted). Thus, we conclude that
where the indictment gives adequate notice to petitioners of the charges against them, as here, it is irrelevant that
the indictment fails to charge using and/or.

7
NRS 207.400(1) provides:
1. It is unlawful for a person:
(a) Who has with criminal intent received any proceeds derived, directly or indirectly, from
racketeering activity to use or invest, whether directly or indirectly, any part of the proceeds, or the
proceeds derived from the investment or use thereof, in the acquisition of:
(1) Any title to or any right, interest or equity in real property; or
(2) Any interest in or the establishment or operation of any enterprise.
(b) Through racketeering activity to acquire or maintain, directly or indirectly, any interest in or
control of any enterprise.
(c) Who is employed by or associated with any enterprise to conduct or participate, directly or
indirectly, in:
(1) The affairs of the enterprise through racketeering activity; or
(2) Racketeering activity through the affairs of the enterprise.
(d) Intentionally to organize, manage, direct, supervise or finance a criminal syndicate.
(e) Knowingly to incite or induce others to engage in violence or intimidation to promote or further
the criminal objectives of the criminal syndicate.
(f) To furnish advice, assistance or direction in the conduct, financing or management of the affairs
of the criminal syndicate with the intent to promote or further the criminal objectives of the syndicate.
(g) Intentionally to promote or further the criminal objectives of a
Counts 16 and 18 charge alternate means of committing the crime of racketeering and not
alternative offenses, we hold that the indictment need not be dismissed on the basis that these
counts are duplicitous.
However, petitioners further contend that if racketeering can be charged in one count and
committed in various ways, then the indictment is multiplicitous because it charges the same
offense in four separate countsCounts 16 through 19. The State seems to concede that the
indictment is multiplicitous, but argues that the proper remedy is to instruct the jury that it
may only convict for one offense.
Multiplicity concerns the charging of a single offense in several counts. Wright, supra.
The offense in Counts 16 and 18 is racketeering. Counts 16 and 18 both allege that the
petitioners were involved in racketeering activity; however, Count 16 alleges that petitioners
conducted racketeering activity through an enterprise,
8
whereas Count 18 alleges direction of
a criminal synicate.
9
Counts 17 and 19 both allege conspiracy; however, Count 17 alleges
conspiracy to commit racketeering through an enterprise, whereas Count 19 alleges
conspiracy to participate in a criminal syndicate.
[Headnotes 14-16]
The general test for multiplicity is that offenses are separate if each requires proof of an
additional fact that the other does not. Wright, supra. Further, [o]ffenses are . . . not
multiplicitous when they occur at different times and different places, because they cannot
then be said to arise out of a single wrongful act.' State v. Woods, 825 P.2d 514, 521 (Kan.),
cert. denied, 506 U.S. S50, 113 S.
__________
criminal syndicate by inducing the commission of an act or the omission of an act by a public officer or
employee which violates his official duty.
(h) To conspire to violate any of the provisions of this section.

8
Count 16 alleges violations of NRS 207.400(l)(a), (b), and (c). NRS 207.380 defines enterprise as including:
1. Any natural person, sole proprietorship, partnership, corporation, business trust or other legal entity;
and
2. Any union, association or other group of persons associated in fact although not a legal entity.
The term includes illicit as well as licit enterprises and governmental as well as other entities.

9
Count 18 alleges violations of different subsections under the statuteNRS 207.400(l)(d) and (f). NRS
207.370 defines criminal syndicate to mean any combination of persons, so structured that the organization
will continue its operation even if individual members enter or leave the organization, which engages in or has
the purpose of engaging in racketeering activity.
850, 113 S. Ct. 149 (1992) (quoting State v. Howard, 763 P.2d 607 (Kan. 1988)). Proving the
existence of a criminal syndicate requires a showing that the syndicate continues its operation
even if individual members enter or leave the organization. This is an element of Count 18
that need not be proven for Count 16, which concerns enterprise. Thus, we hold that Counts
16 and 18 are not multiplicitous.
[Headnote 17]
We further hold that Counts 17 and 19, the conspiracy counts, are not multiplicitous in
relation to the racketeering counts because conspiracy to commit an offense and the
completed offense have traditionally been considered to constitute separate crimes. Wright,
supra. In addition, we hold that the conspiracy counts themselves are not multiplicitous
because they each require proof of an element that the other does notthe existence of a
criminal syndicate as opposed to an enterprise.
Even if any of the above counts are multiplicitous, the remedy does not appear to be
dismissal. Wright suggests that in a case where an indictment is multiplicitous, the defendant
may move to have the prosecution elect which count it wishes to proceed upon, and the
counts will be consolidated and all but the one elected dismissed, but this is discretionary
with the court. Id. at 145. Further, since the danger in multiplicity is that the defendant will
be given multiple sentences for the same offense, various remedies are available. Id.
[Headnote 18]
Petitioners further contend the indictment is defective due to the fact that Counts 18 and
19 fail to state an offense because they do not allege the existence of a criminal syndicate.
Criminal syndicate is defined as any combination of persons, so structured that the
organization will continue its operation even if individual members enter or leave the
organization, which engages in or has the purpose of engaging in racketeering activity. NRS
207.370. Petitioners maintain that they may not be charged with running a criminal
syndicate since their businesses are legal corporations, and since their businesses must be
illegal in order to charge them with criminal syndicalism. However, under the plain
language of the definition of criminal syndicate, there is no requirement that the
organization be an illegal organization; neither does the definition imply that the
organization must be illegal, rather than legal. Therefore, we hold that the indictment need
not be dismissed on this ground.
[Headnote 19]
Finally, petitioners contend that Counts 16 through 19 fail to allege a RICO enterprise
with the clarity required by the Due Process clause because with so many businesses
named, petitioners do not know which one is the "enterprise" for purposes of the
racketeering charges.
allege a RICO enterprise with the clarity required by the Due Process Clause because with so
many businesses named, petitioners do not know which one is the enterprise for purposes
of the racketeering charges. In support, petitioners cite Jennings v. Emry, 910 F.2d 1434 (7th
Cir. 1990). In Jennings, however, the complaint mentioned entities such as numerous other
named and unnamed people and various enterprises including [the] collective criminal
enterprise. Id. at 1440 n.13. The instant indictment names specific enterprises and does not
even approach the vagueness problem in Jennings.
NRS 173.075 provides that the indictment must be a plain, concise and definite written
statement of the essential facts constituting the offense charged.
10
A racketeering enterprise
is broadly defined to include various kinds of associations, including corporations. NRS
207.380. We conclude that Counts 16 through 19 all comply with the requirements of NRS
173.075 in that they are plain and concise statements of the essential facts constituting the
offenses. Thus, we hold that the indictment need not be dismissed on this ground.
In their petition, in a final footnote, petitioners argue that, pursuant to Margetts v. State,
107 Nev. 616, 818 P.2d 392 (1991), and Sipsas v. State, 102 Nev. 119, 716 P.2d 231 (1986),
the cumulative effect of the errors in the indictment warrants dismissal. The cases cited by
petitioners concern reversal for error at trial, not irregularities in an indictment. Both
Margetts and Sipsas were appeals from judgments of conviction. Here, cumulative error
permeated the indictment, there is no reason why it should not be dismissed; however, since
we have held that there is no such error, this argument must fail.
__________

10
1. The indictment or the information must be a plain, concise and definite written statement of the
essential facts constituting the offense charged. It must be signed by the attorney general acting pursuant
to a specific statute or the district attorney. It need not contain a formal commencement, a formal
conclusion or any other matter not necessary to the statement.
2. Allegations made in one count may be incorporated by reference in another count. It may be alleged in
a single count that the means by which the defendant committed the offense are unknown or that he
committed it by one or more specified means.
3. The indictment or information must state for each count the official or customary citation of the
statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.
Error in the citation or its omission is not a ground for dismissal of the indictment or information or for
reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
[Headnotes 20, 21]
Accordingly, we conclude that issuance of a writ of mandamus or prohibition is
unwarranted.
11
We deny the petition.
____________
112 Nev. 232, 232 (1996) Wayment v. Holmes
DAVID WAYMENT, Appellant, v. DOROTHY NASH HOLMES, DONALD COPPA,
WASHOE COUNTY DISTRICT ATTORNEY'S OFFICE and COUNTY OF WASHOE,
Respondents.
No. 26390
March 1, 1996 912 P.2d 816
Appeal from an order granting respondents' motion for summary judgment in a tortious
discharge suit. Second Judicial District Court, Washoe County; William N. Forman, Senior
Judge.
Former deputy district attorney brought tortious discharge action against county district
attorney's office, county, and county attorneys. The district court granted defendants' motion
for summary judgment, and deputy appealed. The supreme court, Rose, J., held that: (1)
deputy's contention that he was terminated for complying with mandatory ethical duties was
mere allegation in pleading, unsupported by evidence which showed there was genuine issue
for trial; (2) deputy failed to state prima facie case of tortious discharge; and (3) defendants
were entitled to immunity.
Affirmed.
Roderic Carucci, Reno; David H. T. Wayment, Reno, for Appellant.
Richard A. Gammick, District Attorney, and Gregory R. Shannon, Deputy District
Attorney, Washoe County, for Respondents.
1. Judgment.
Summary judgment is only appropriate when, after review of record viewed in light most favorable to nonmoving
party, there remains no issues of material fact.
__________

11
A writ of mandamus is available to compel the performance of an act which the law requires as a duty
resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of
discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition
arrests the proceedings of any tribunal exercising judicial functions, when such proceedings are without or in
excess of the jurisdiction of that tribunal. Hylton v. District Court, 103 Nev. 418, 421, 743 P.2d 622, 624
(1987); see NRS 34.320.
viewed in light most favorable to nonmoving party, there remains no issues of material fact.
2. Judgment.
In determining whether summary judgment is proper, nonmoving party is entitled to have evidence and all reasonable inferences
accepted as true.
Supreme court's review of summary judgment order is de novo.
4. Master and Servant.
Tortious discharge exception to at-will employment doctrine provides that employer can dismiss at-will employee with or
without cause, so long as dismissal does not offend public policy of state.
Public policy tortious discharge actions are severely limited to those rare and exceptional cases where employer's conduct violates
strong and compelling public policy.
6. Judgment.
Former deputy district attorney's contention that he was terminated for complying with his mandatory ethical duties to inform
assistant district attorney of deficiencies in indictment and to try to get assistant to cure deficiencies was mere allegation in his
pleadings, unsupported by any evidence which showed there was a genuine issue for trial in tortious discharge action. Attorney's
affidavit, which was sole piece of evidence relied on by attorney, stated only that he felt indictment was deficient and that he argued
with assistant district attorney about amending or withdrawing indictment.
7. Judgment.
Properly supported factual allegations and all reasonable inferences of party opposing summary judgment must be accepted as
true; however, conclusory statements along with general allegations do not create an issue of material fact.
8. District and Prosecuting Attorneys.
Former deputy district attorney, who alleged that he had ethical duty under Supreme Court Rules both to inform assistant district
attorney of deficiencies in indictment and to try to get assistant to cure those deficiencies and that assistant violated public policy by
firing deputy for doing so, failed to state prima facie case of tortious discharge. Deputy's ethical duty was discharged first time he
informed assistant of alleged deficiencies, Supreme Court Rules do not require that attorney constantly and repeatedly argue with
superior regarding potential deficiencies, and evidence indicated that deputy was not terminated simply because he brought alleged
deficiencies to assistant's attention, but because he constantly argued with assistant about proper way to proceed with indictment.
9. Counties.
County district attorney's office, a county department and not a political subdivision, was not suable entity. NRS 41.031.
10. Counties; District and Prosecuting Attorneys.
Assistant district attorney exercised discretionary function when he terminated deputy district attorney, an at-will employee, and,
therefore, assistant, former district attorney, and county were immune from deputy's tortious discharge action. NRS 41.032.
Deputy district attorney's termination was undertaken pursuant to assistant district attorney and former district attorney's official
duties and, therefore, assistant and former district attorney were immune from liability in deputy's tortious
discharge action.
and, therefore, assistant and former district attorney were immune from liability in deputy's tortious discharge action.
Even if assistant district attorney had abused his discretion when he terminated deputy district attorney, assistant's behavior did
not rise to level of bad faith, for purposes of determining whether assistant was immune from liability. Evidence showed that deputy
argued on regular basis with assistant about prosecution of case and that deputy was terminated for this repeated insubordination.
OPINION
Appellant David Wayment brought suit against respondents, former District Attorney Dorothy Nash Holmes, Assistant District
Attorney Donald Coppa, Washoe County District Attorney's Office, and County of Washoe, for tortious discharge. The district court
granted respondents' motion for summary judgment on the grounds that (1) Wayment presented no genuine issue of material fact that he
was tortiously discharged, and (2) that all respondents were immune from suit.
We conclude that the district court's order granting respondents' motion for summary judgment was proper.
FACTS
Wayment was employed by Washoe County as a deputy district attorney from August 1992 through February 18, 1994. On April 28,
1994, Wayment filed a lawsuit against respondents alleging that he was tortiously discharged.
Wayment was assigned to work on numerous motions to dismiss and petitions for writs of habeas corpus in a criminal prosecution
commonly referred to as the Champion Chevrolet case. Coppa was Wayment's supervisor on this case and was also delegated the power to
hire and fire employees. Wayment alleged that during the course of his work be discovered that the district attorney's indictment was
invalid and that no legitimate defense could be raised to some of the defendants' motions and petitions. Wayment approached Coppa, who
was prosecuting the case, told him of the deficiencies, and suggested that he either amend the indictment or dismiss the indictment and
attempt to reindict the defendants. Wayment alleged by way of his own affidavit that Coppa refused to amend the indictment because to do
so would be a concession that he had made a mistake. Wayment also alleged that Coppa stated that certain problems in the indictment were
the result of his own incompetence and lack of understanding of the law in regard to one count.
Wayment argued repeatedly with Coppa over the alleged deficiencies in the indictment,
constantly urging Coppa to amend or withdraw the indictment, of which Coppa did neither.
Shortly after Wayment finished working on the motions and petitions, Coppa fired him,
alleging that he did so because of Wayment's insubordination and unsatisfactory work
performance. Wayment claims that he had an ethical duty under the Supreme Court Rules
both to inform Coppa of the deficiencies and to try to get Coppa to cure those deficiencies,
and that Coppa violated public policy by firing him for doing so.
The district court granted respondents' motion for summary judgment on the grounds that:
(1) Wayment did not meet the standard to prove a public policy tortious discharge; and (2)
respondents Coppa and Holmes were immune from suit pursuant to NRS 41.032(2), and the
Washoe County District Attorney's office was not a suable entity.
1

DISCUSSION
[Headnotes 1, 2]
Summary judgment is only appropriate when, after a review of the record viewed in the
light most favorable to the non-moving party, there remain no issues of material fact. Butler
v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
P.2d 432, 433 (1989).
[Headnote 3]
P.2d 17, 18 (1981).
Tortious discharge in violation of public policy
[Headnote 4]
It is undisputed that Wayment was an at-will employee who could properly be discharged
without cause at the will of the employer. K Mart Corp. v. Ponsock, 103 Nev. 39, 42 n.1, 732
P.2d 1364, 1366 n.l {19S7).
__________

1
The district court also granted summary judgment in favor of County of Washoe without stating a reason for
doing so. The apparent reason was that the County of Washoe was a governmental entity entitled to
governmental immunity pursuant to NRS 41.031 and 41.032.
P.2d 1364, 1366 n.l (1987). However, Wayment contends that his termination was within the
tortious discharge exception to the at-will employment doctrine. This exception states that
[a]n employer can dismiss an at-will employee with or without cause, so long as the
dismissal does not offend a public policy of this state. Vancheri v. GNLV Corp., 105 Nev.
417, 421, 777 P.2d 366, 369 (1989). Terminating an employee for reasons which violate
public policy gives rise to an action for tortious discharge. D'Angelo v. Gardner, 107 Nev.
704, 712, 819 P.2d 206, 212 (1991).
[Headnote 5]
This court has repeatedly held that public policy tortious discharge actions are severely
limited to those rare and exceptional cases where the employer's conduct violates strong and
compelling public policy. Sands Regent v. Valgardson, 105 Nev. 436, 440, 777 P.2d 898,
900 (1989) (concluding that a legislative public policy against age discrimination was not
sufficiently strong to warrant an exception to the at-will employment doctrine); see also
Smith v. Cladianos, 104 Nev. 67, 69, 752 P.2d 233, 235 (1988).
Wayment argued that he had a mandatory ethical duty to refrain from bringing a frivolous
action and from prosecuting a charge which he knew was not supported by probable cause.
SCR 170 and 179(1). Wayment alleged that he was following these ethical duties when he
repeatedly attempted to get Coppa to amend the indictment and that he was terminated for
doing so. Therefore, Wayment concludes that his discharge was in violation of a strong and
compelling public policy of having attorneys abide by the Supreme Court Rules.
[Headnote 6]
Wayment's argument fails for two reasons. First, Wayment's contention that he was
terminated for complying with his mandatory ethical duties is a mere allegation in his
pleadings unsupported by any evidence which shows that there is a genuine issue for trial.
NRCP 56(e). Wayment's affidavit, which is the sole piece of evidence relied on by Wayment,
states only that he felt the indictment was deficient and that he argued with Coppa about
amending or withdrawing the indictment; it does not state that he was terminated for
exercising his duties pursuant to the Supreme Court Rules.
[Headnote 7]
Wayment alleges that his version of the facts, i.e., that he was fired for exercising his
duties under the Supreme Court Rules, must be taken as true, thereby curing any deficiencies
in his affidavit.
affidavit. This is an incorrect statement of the law. Properly supported factual allegations
and all reasonable inferences of the party opposing summary judgment must be accepted as
true. However, conclusory statements along with general allegations do not create an issue of
material fact. Michaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212, 1213 (1991) (citation
omitted). Because Wayment's version of the facts is nothing more than conclusory allegations
and general statements unsupported by evidence creating an issue of fact, it will not be
accepted as true. Therefore, Coppa's testimony that he terminated Wayment for unsatisfactory
work performance and insubordination is unchallenged, and summary judgment was proper.
[Headnote 8]
Secondly, Wayment's argument fails because he did not state a prima facie case of tortious
discharge. Wayment had a duty to refrain from bringing a frivolous action and from
prosecuting a case which he knew was not supported by probable cause, and he discharged
that duty the first time he informed Coppa of the alleged deficiencies in the indictment. The
Supreme Court Rules do not require that an attorney constantly and repeatedly argue with his
or her superior regarding potential deficiencies in a motion or other brief. The evidence in this
case indicates that Wayment was not terminated simply because he brought the alleged
deficiencies to Coppa's attention; rather, he was terminated because he constantly argued with
Coppa about the proper way to proceed with the indictment in light of the alleged
deficiencies.
This case does not present facts or issues similar to those where this court has found a
tortious discharge in violation of public policy. See D'Angelo v. Gardner, 107 Nev. 704, 819
P.2d 206 (1991) (violations of public policy occurred where employers terminated employees
for (1) refusing to violate the law, (2) refusing to work under conditions unreasonably
dangerous to the employee, or (3) accepting jury duty); Hansen's v. Harrah's, 100 Nev. 60,
675 P.2d 394 (1984) (violation of public policy occurred when an employer terminated an
employee who filed a workman's compensation claim). We conclude that terminating an
at-will employee for insubordination is not contrary to public policy.
Respondent's governmental immunity
[Headnote 9]
We conclude that the Washoe County District Attorney's office is not a suable entity
because it is a department of Washoe County, not a political subdivision. "In the absence of
statutory authorization, a department of the municipal government may not, in the
departmental name, sue or be sued."
County, not a political subdivision. In the absence of statutory authorization, a department of
the municipal government may not, in the departmental name, sue or be sued. 64 C.J.S.
Municipal Corporations 2195 (1950) (footnotes omitted). The State of Nevada has not
waived immunity on behalf of its departments of political subdivisions, and the Washoe
County District Attorney's office has not been conferred the power to sue and be sued. NRS
41.031.
[Headnote 10]
NRS 41.032 states that no action may be brought against the state, state agencies, political
subdivisions, or any officer or employee of the state, its agencies, or its political subdivisions
based upon the exercise or performance of a discretionary function or duty, whether or not the
discretion involved is abused. This court has defined discretionary acts as those which
require the exercise of personal deliberation, decision and judgment. Travelers Hotel v. City
of Reno, 103 Nev. 343, 345-46, 741 P.2d 1353, 1354 (1987).
[Headnote 11]
Holmes, Coppa, and the County of Washoe are all immune by virtue of the fact that Coppa
exercised a discretionary function when he terminated Wayment. Wayment was an at-will
employee, and it is within the discretion of the district attorney to fire at-will employees.
Furthermore, Holmes and Coppa were not acting in their individual capacities and are
immune from liability because the termination was undertaken pursuant to their official
duties. See Ramirez v. Harris, 105 Nev. 219, 220, 773 P.2d 343, 344 (1989).
[Headnote 12]
Had Coppa terminated Wayment in bad faith, his actions would no longer be discretionary
and subject to immunity. See Falline v. GNLV Corp., 107 Nev. 1004, 1009-10, 823 P.2d 888,
892 (1991). However, there is no indication that Coppa terminated Wayment in bad faith.
Evidence showed that Wayment argued on a regular basis with Coppa about the prosecution
of the Champion Chevrolet case and that Wayment was terminated for this repeated
insubordination. Even if Coppa had abused his discretion when he terminated Wayment,
2
his
behavior did not rise to the level of bad faith. Id. at 1009 n.3, 823 P.2d at 892 n.3.
CONCLUSION
The district court's grant of summary judgment in favor of respondents was proper
because appellant created no issue of material fact as to his claim for tortious discharge.
__________

2
Even if Coppa abused his discretion when he terminated Wayment, he is still entitled to immunity pursuant to
NRS 41.032(2).
respondents was proper because appellant created no issue of material fact as to his claim for
tortious discharge. Furthermore, all respondents were immune from suit by virtue of the fact
that the Washoe County District Attorney's office was not a suable entity and because Coppa
exercised a discretionary function when he terminated Wayment. Therefore, we affirm the
district court's order granting summary judgment in favor of respondents.
I dissent because I do not believe that summary judgment was properly entered in this
case.
1

The trial court recites in its order granting summary judgment the following statement of
Wayment's version of the facts:
[Wayment] was assigned to work on a number of motions to dismiss and petitions for
writs of habeas corpus in the Champion Chevrolet case. [Wayment's] supervisor was
Defendant Don Coppa. Wayment discovered that the Indictment was invalid and that
no legitimate defense could be raised to a number of the contentions in the Motions and
Petitions. [Wayment] urged Coppa to amend the Indictment or dismiss the same and
reindict the defendants. Coppa refused because a Motion to Amend would constitute an
admission that he had made an error. Wayment argues that he had a legal right to
protest this misconduct and was fired for questioning Coppa's position.
Other alleged facts, appearing in Wayment's complaint or in Wayment's affidavit, are:
Wayment claims in his complaint that [d]efendant Holmes ratified the actions of
Defendant Coppa in terminating the employment of Plaintiff.
Wayment claims to have been fired for questioning Coppa's position and not for
any other reason. This claim is supported by Wayment's affidavit that his immediate
supervisor repeatedly advised [him] that he was satisfied with [his] work, and
further advised [him] that [the supervisor] had recommended [him] for the maximum
raise possible.
Wayment claims that Coppa admitted that he did not understand the law upon
which the indictment was based and that Coppa admitted "certain problems in the
indictment were due to [his] 'incompetence.' "
__________

1
Respondents moved to dismiss Wayment's complaint, but the trial court elected to treat this application as a
Motion for Summary Judgment in view of the fact that both counsel refer to documents other than the
pleadings.
and that Coppa admitted certain problems in the indictment were due to [his]
incompetence.' Wayment claims that Coppa told Wayment that he did not want to
try to amend the indictment because a motion to amend the indictment would
concede that Coppa had made an error.
The indictments drafted by Coppa about which Wayment was complaining were
subsequently dismissed because they were defective as a matter of law.
Wayment charged in his complaint that he was terminated as a direct and proximate
consequence of asserting his legal and ethical responsibilities by objecting to the
defective pleadings in the Champion Chevrolet case, and the malicious, wrongful
prosecution of the Champion defendants under a knowingly defective indictment.
Wayment further charges that he was wrongfully and maliciously terminated in
retaliation for exercising a legal right and duty in the required performance with [sic]
his duties as an officer of the Court and a member of the State Bar of Nevada in
violation of the public policy of this state.
Wayment sues Holmes and Coppa on an intentional tort, the so-called public policy tort,
a claimed tortious discharge alleged to have been committed by Holmes and Coppa (1) in
malicious retaliation for Wayment's having exercised his legal duty to oppose a prosecution
on an indictment known to be defective and (2) for Wayment's attempt to thwart what he calls
the malicious, wrongful prosecution of the Champion defendants under a knowingly
defective indictment.
The trial court properly dismissed the Washoe County District Attorney's Office as a
party because it is not a suable entity. The trial court properly dismissed the County of
Washoe because it is a governmental entity entitled to governmental immunity. The trial
court incorrectly dismissed Holmes and Coppa on the ground of immunity under NRS
41.032.
Immunity under the cited statute is given to public officers who are exercising their
discretion in the performance of their public duties whether or not the discretion involved
is abused.' Falline v. GNLV Corp. 107 Nev. 1004, 1009 n.3, 823 P.2d 888, 892 n.3 (1991)
(quoting NRS 41.032(2)). The case at hand involves an intentional tort alleged to have been
committed by Holmes and Coppa. In the cases of malice, bad faith or other intentional
misconduct a different rule relating to governmental immunity obtains. When an intentional
or malicious act or omission of bad faith occurs outside the circumference of authority,
public officials may be held liable for their tortious misconduct. Falline, 107 Nev. at 1010
n.3, 823 P.2d at 892 n.3.
In Edgar v. Wagner, 101 Nev. 226, 699 P.2d 110 (1985), this court ruled on the question
of the governmental immunity enjoyed by a district attorney. Where a complaint charged that
a district attorney acted with malice and in a deliberately structured effort to deprive
appellant of due process, the allegations of the complaint state[d] a claim which, if accepted
by the trier of fact, could entitle appellant to relief. Id. at 228, 699 P.2d at 112. Edgar held
that the district court erred in concluding that malicious or deliberate wrongdoing was a
prosecutorial function cloaked with absolute immunity. Id. In Edgar, this court noted that
where a prosecutor is functioning primarily as an administrator then protection from
liability depends upon a showing that the prosecutor entertained a good faith, reasonable
belief in actions taken in an administrative . . . capacity. Wayment has alleged that Holmes
and Coppa, acting as they were in an administrative capacity when they discharged him, were
not acting in good faith, but, rather, out of malice and other bad motives. Under the
circumstances of the present case, which are similar to the Edgar case, Holmes and Coppa are
not entitled to immunity as a matter of law.
Holmes and Coppa, naturally, claim that their termination of Wayment was merely a
discretionary act, well within their circumference of authority. Wayment, on the other hand,
claims that Holmes and Coppa were acting maliciously and in retaliation for his having
protested their irresponsible pursuit of an ill-founded prosecution which, for improper
motives (a wrongful, malicious prosecution of the Champion defendants), was being
advanced on a knowingly defective indictment. These are, of course, two widely-disparate
views of the nature of Wayment's firing. As Holmes and Coppa would have it, Wayment was
simply being obstreperous, headstrong and insubordinate; so they fired him. In Wayment's
view, he was merely trying to do everything he could do to prevent Holmes and Coppa from
improperly and unlawfully putting Champion Chevrolet and its agents to the pain and
expense of having to defend against a facially defective indictment. Wayment contends that
because he tried to stop Holmes and Coppa from knowingly proceeding on a faulty
indictment, they decided to fire him in retaliation for his opposition to their willful and
malicious prosecution of the Champion Chevrolet people. As an appellate court, we cannot
know which version might be correct; but, of course, Wayment should have his day in court if
he has properly stated an action for retaliatory, tortious discharge.
The question that should have been decided in this appeal is whether a public employee
states a claim for relief when the employee claims to have been maliciously terminated in
retaliation for performing his or her public duty.
tion for performing his or her public duty. This question is not addressed by the majority. I
would answer the question in the affirmative. If Wayment was terminated, as he claims, for
complying with his mandatory, ethical duty, then this would certainly be violative of the
public policy which encourages public officials and particularly public lawyers to perform
their duties and to behave in a moral and ethical manner.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis for doing so that is not frivolous . . . . SCR 170. A prosecutor is
required to [r]efrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause . . . . SCR 179(1). Both Holmes and Coppa were under a duty not to pursue a
frivolous or knowingly unfounded criminal indictment. If Wayment can prove, as he claims,
that he advised Mr. Coppa that the indictment was faulty, that there was no probable cause to
support the charges as they were then written, that Coppa and Holmes insisted upon
proceeding on a knowingly defective indictment and that, then, they decided to terminate
Wayment for his properly having objected to the prosecution of defendants on an indictment
which Holmes and Coppa knew was defective, such conduct would, as stated, be contrary to
the public policy of this state. Such allegations support an action for the intentional tortious
discharge against Holmes and Coppa, and I would disallow either a motion to dismiss or a
defendants' summary judgment under such circumstances.
____________
112 Nev. 242, 242 (1996) Marciniak v. State
RICHARD M. MARCINIAK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27044
March 1, 1996 911 P.2d 1197
Appeal from a judgment of conviction pursuant to guilty plea of one count of felony
driving under the influence of alcohol with two prior convictions. Fifth Judicial District
Court, Nye County; John P. Davis, Judge.
The supreme court held that conviction for driving while visibly impaired due to
consumption of alcohol in Michigan could be used to enhance subsequent conviction for
driving under influence in Nevada.
Affirmed.
Harry R. Gensler, Public Defender, Tonopah, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District
Attorney, Nye County, for Respondent.
1. Automobiles.
Under Michigan law, driver violates driving while visibly impaired (DWl) statute, when, as result of consumption of intoxicating
liquor, his ability to drive is so weakened or reduced that he drives with less ability than would an ordinary, careful, and prudent driver,
when that reduced ability to drive is visible to ordinary observant person.
2. Automobiles.
Driving while visibly impaired due to consumption of alcohol under Michigan law is same or similar conduct as driving under
influence of alcohol under Nevada law, and thus, conviction for driving while visibly impaired can be used as prior conviction for
purposes of enhancing subsequent driving under the influence conviction in Nevada. NRS 484.3792.
OPINION
1

Per Curiam:
This is an appeal from a judgment of conviction pursuant to a guilty plea of one count of
felony driving under the influence of alcohol with two prior convictions. In 1993, appellant
was convicted, pursuant to a guilty plea, of a Michigan offense of driving while visibly
impaired (DWI) due to the consumption of intoxicating liquor. Appellant contends that
this conviction may not be used as a prior conviction occurring within seven years to enhance
his Nevada conviction for driving under the influence. Driving while impaired is a lesser
included offense of Michigan's driving under the influence of alcohol statute. See Mich.
Comp. Laws Ann. 257.625(6)(f) (West. Supp. 1995); see also People v. Leonowicz, 350
N.W.2d 770, 772 (Mich. Ct. App. 1984). Appellant argues that the conduct prohibited by the
Michigan DWI statute is not the same or similar conduct envisioned by NRS 484.3792(8)
for purposes of enhancement under NRS 484.3792.
[Headnotes 1, 2]
This court has previously held that the statute's prior language, the same conduct, was
not limited to identical conduct for enhancement purposes. Jones v. State, 105 Nev. 124,
771 P.2d 154 (1989). Under Michigan law, a driver violates the DWI statute when, as a result
of the consumption of intoxicating liquor, his or her ability to drive is so weakened or
reduced that he or she drives with less ability than would an ordinary, careful and prudent
driver, and when that reduced ability to drive is visible to an ordinary observant person.
__________

1
This court previously dismissed this appeal in an order entered on December 19, 1995. The state has moved to
publish our order of dismissal. Cause appearing, we grant this motion and we issue this Opinion in place of our
prior order.
liquor, his or her ability to drive is so weakened or reduced that he or she drives with less
ability than would an ordinary, careful and prudent driver, and when that reduced ability to
drive is visible to an ordinary observant person. People v. Lambert 235 N.W.2d 338, 342
(Mich. 1975). We conclude that driving while visibly impaired due to the consumption of
alcohol is the same or similar conduct as driving under the influence of alcohol. See McAdam
v. State, 648 So.2d 1244 (Fla. Dist. Ct. App. 1995).
Accordingly, we affirm the judgment of conviction.
____________
112 Nev. 244, 244 (1996) State v. Koseck
THE STATE OF NEVADA, Appellant, v. JOSHUA JAMES KOSECK, Respondent.
No. 27308
March 1, 1996 911 P.2d 1196
Appeal from an order of the district court dismissing one of three counts of a criminal
information. Fourth Judicial District Court, Elko County; Jack B. Ames, Judge.
Defendant, who was charged with one count of sexual assault on a child under 14, one
count of lewdness with a child under 14, and one count of statutory sexual seduction, moved
to dismiss lewdness count on ground that it was mutually exclusive of sexual assault charge.
The district court granted motion. State appealed. The supreme court held that state may
appeal an order granting a motion to dismiss fewer than all counts of a criminal information
or complaint.
Jurisdiction established; briefing reinstated.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, Elko County, for Appellant.
Brian D. Green, Elko, for Respondent.
Criminal Law.
State can appeal order granting motion to dismiss fewer than all counts of criminal information on complaint. NRS 177.015(1)(b).
OPINION
Per Curiam:
This is an appeal by the state from an order of the district court granting respondent's motion to dismiss one of three counts of a
criminal information.
Respondent, Joshua James Koseck, was charged by information with one count of sexual
assault on a child under fourteen, one count of lewdness with a child under fourteen, and one
count of statutory sexual seduction, each charged in the alternative. Respondent filed a
pretrial motion to dismiss Count II, the lewdness count, on the ground that it was mutually
exclusive of the sexual assault charge. The state opposed the motion. The district court
granted the motion to dismiss Count II, and the state filed this appeal.
It appears to be a question of first impression in Nevada whether the state may appeal from
an order granting a motion to dismiss fewer than all counts of a criminal information or
complaint. Accordingly, this court issued an order requesting the parties to brief the issues
regarding this court's jurisdiction to entertain the appeal pursuant to NRS 177.015. We
conclude that we do have jurisdiction.
NRS 177.015 provides as follows:
The party aggrieved in a criminal action may appeal only as follows:
1. Whether that party is the state or the defendant:
(a) To the district court of the county from a final judgment of the justice's court.
(b) To the supreme court from an order of the district court granting a motion to
dismiss, a motion for acquittal or a motion in arrest of judgment, or granting or refusing
a new trial.
2. The state may, upon good cause shown, appeal to the supreme court from a
pretrial order of the district court granting or denying a motion to suppress evidence
made pursuant to NRS 174.125. . . .
3. The defendant only may appeal from a final judgment or verdict in a criminal
case.
This language does not limit the state's right to appeal to a final judgment on all counts. By
its plain terms, NRS 177.015(1)(b) provides the state with a right to appeal from an order
granting a motion to dismiss, whether that order dismisses fewer than all or all of the counts
brought against the defendant.
We note further that this interpretation of Nevada's statute is consistent with the
interpretation of similar statutory language by a majority of jurisdictions across the country.
See, e.g., People v. Kirk, 9 Cal. Rptr. 2d 270 (Cal. Ct. App. 1992); People v. Ring, 70 P.2d
281, 282 (Cal. Ct. App. 1937); People v. Ferguson, 602 N.Y.S.2d 785 (Sup. 1993); People v.
Rossi, 157 N.E.2d 859 (N.Y. Ct. App. 1959); State v. Parker, 704 P.2d 1144 (Or. 1985); and
State v. Lekin, 271 N.W.2d 697 (Iowa 1978).
Accordingly, we conclude that this court has jurisdiction to entertain this appeal and that
the appeal may proceed.
1

____________
112 Nev. 246, 246 (1996) Shimrak v. Garcia-Mendoza
THOMAS D. SHIMRAK, Individually and dba SHIMRAK INVESTIGATIONS, Appellants,
v. EVA GARCIA-MENDOZA; EVA GARCIA-MENDOZA, CHTD., fka
MENDOZA-GARClA-MENDOZA, CHTD., Respondents.
No. 25100
THOMAS D. SHIMRAK, Individually and dba SHIMRAK INVESTIGATIONS, Appellants,
v. EVA GARCIA-MENDOZA; EVA GARCIA-MENDOZA, CHTD., fka
MENDOZA-GARCIA-MENDOZA, CHTD., Respondents.
No. 25101
March 5, 1996 912 P.2d 822
Appeal from orders of the district court granting respondents' motions to dismiss. Eighth
Judicial District Court, Clark County; Carl J. Christensen and Llewellyn A. Young, Judges.
Private investigator sued law firm for money due for services. The district court dismissed
cases. Investigator appealed. The supreme court, Springer, J., held that: (1) allegations were
sufficient to avoid accord and satisfaction defense and to state claim for recovery of money
for services rendered; (2) supreme court rule creating privilege for protection of complainant
in disciplinary proceedings did not shield disciplined attorney from other legal actions by
complainant; (3) private investigator was not bound by supreme court rule barring lawyer or
law firm from sharing legal fees with nonlawyer; and (4) private investigator did not violate
any rule or law applicable to him, and thus, in pari delicto doctrine did not apply to bar
payment of fees to him based upon illegality of fee-splitting agreement.
Rose and Shearing, JJ., dissented in part.
Kossack Law Offices, Las Vegas, for Appellants.
__________

1
In our order of September 7, 1995, we suspended the briefing schedule pending resolution of the jurisdictional
question. In view of our decision today, we reinstate the briefing schedule. Appellant's opening brief has been
filed. Respondent's answering brief shall be filed within (30) days of the date of this opinion. Briefing shall
continue thereafter in accordance with the provisions of NRAP 31.
Jimmerson, Davis & Santoro and Lynn M. Hansen, for Respondents.
1. Accord and Satisfaction; Detectives.
Private investigator's allegations that check sent to him by law firm for services performed on case that contained notation that
balance was paid off was simply statement that law firm would pay no more from its law client trust account but would pay balance
due itself was sufficient to state claim against law firm for money due for services rendered in case and to avoid defense of accord and
satisfaction.
Supreme court rule providing that complaint filed against attorney in good faith and any investigations, testimony, hearing or
reprimand relating to it are absolutely privileged and no action may be predicated on such matters did not grant immunity to attorney
from criminal or civil action related to lawyer disciplinary proceedings. Rule created privilege for protection of complainant and did
not shield disciplined attorney from other legal actions. SCR 106.
3. Detectives.
Private investigator that was employed by law firm was not bound by supreme court rule prohibiting lawyer or law firm from
sharing legal fees with nonlawyer, and thus, investigator was not in pari delicto with offending member of law firm that entered into
agreement to pay investigator for his services for firm based on percentage of successful cases so as to prohibit investigator from
recovering balance due for services provided. Court rule governed legal profession and did not govern behavior of nonlawyers except
tangentially. SCR 39, 188, 203(3).
4. Courts.
Court rules only have force of rules of law upon those parties to whom rules apply.
5. Detectives.
Under Magill test for application of in pari delicto doctrine, doctrine could not be applied to deny private investigator employed by
law firm compensation for services rendered pursuant to agreement to pay investigator percentage of law firm's recovery in successful
cases, despite prohibition against fee-splitting by lawyers, where not to enforce contract would endanger public by allowing lawyers to
enter into such contracts and then get out of them by invoking supreme court, there was no serious moral turpitude involved, law firm
was one that violated professional rule, and not enforcing contract would unjustly enrich law firm at investigator's expense. SCR 39,
188, 203(3).
OPINION
By the Court, Springer, J.:
Two cases have been consolidated for appeal. The first, Case No. 25100, is an appeal from an order dismissing Thomas D. Shimrak's
suit for money due for his services as a private investigator. The issue in this first appeal is whether the notation Lau-Balance pd off
endorsed on the check issued by the Garcia-Mendoza law firm constitutes an accord and satisfaction as a matter of law. The second case,
Case No. 25101, is also an appeal from an order dismissing Shimrak's claim for compensation for services rendered
to the Garcia-Mendoza firm.
appeal from an order dismissing Shimrak's claim for compensation for services rendered to
the Garcia-Mendoza firm. The second case presents a more complicated but still
easy-to-decide issue, namely, whether, after professional services have been provided to
Garcia-Mendoza by Shimrak, Garcia-Mendoza can defeat Shimrak's claim for compensation
on the ground that Shimrak is not permitted to enforce a fee-splitting contract with
Garcia-Mendoza because he is in pari delicto with the Garcia-Mendoza firm.
We reverse the dismissals in both cases and remand to the district court for trial.
CASE NO. 25100
[Headnote 1]
Garcia-Mendoza owed Shimrak $9,056.94 for services rendered in the Lau case.
Garcia-Mendoza paid $4,000.00 on account and Eva Garcia-Mendoza of that firm told
Shimrak that Mr. Lau was interested in paying Shimrak an amount less than the $5,056.94
that was owing to Shimrak. The Garcia-Mendoza firm sent a check to Shimrak for $2,083.00,
with the notation on the check, Lau-Balance pd off.
Shimrak claims that his understanding of the transaction was that the notation was simply
a statement that the Garcia-Mendoza firm would pay no more than the stated $2,083.00 out of
its Law Client Trust Account. Shimrak claims to have negotiated the check in the assumption
that the law firm would pay him no more money out of the Lau trust account but would itself
be responsible for paying the balance due.
[Accord and satisfaction] can never be implied from language of doubtful meaning. It
must clearly appear from the evidence that there was in fact and in reality a meeting of the
minds before we will consider an agreement an accord and satisfaction. DeLee v. Cost
Reduction Engineering, 101 Nev. 484, 486, 705 P.2d, 161, 163 (1985). [The] complaint will
not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff
could prove no set of facts which, if accepted by the trier of fact, would entitle him [or her] to
relief. Breliant v. Preferred Equities Corp., 109 Nev. 842, 845, 858 P.2d 1258, 1260 (1993)
(quoting Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d 110, 112 (1985)).
Shimrak is entitled to present his version of the transaction to a factfinder; and, certainly, it
does not appear beyond a doubt that no set of facts would entitle him to recover the full
amount owing to him.
The order of dismissal is reversed, and the matter is remanded to the district court for trial.
CASE NO. 25101
[Headnote 2]
Shimrak handled a number of cases for the Garcia-Mendoza firm and claims that a
member of the firm agreed in this case to pay a flat rate of $45.00 to $50.00 per hour, plus ten
percent of the attorney's fees paid to the firm on each case. Shimrak claims that under these
contracts he is entitled to a payment of $139,293.19 plus money owing in the future on fees to
be paid to the Garcia-Mendoza firm in installments. Garcia-Mendoza's position is that the
contract is void and that Shimrak is not entitled to payment for either his hourly rate or for the
ten percent contingency fee.
The Garcia-Mendoza firm claims in its brief that it does not have to pay Shimrak for his
services because the parties stand in pari delicto, a Latin expression which means equal in
guilt. The Garcia-Mendoza brief claims that it would offend the firm's conscience if it were
to pay Shimrak the money it promised him.
1
The Garcia-Mendoza brief also claims that
since the fee-splitting attorney in this case only received a private reprimand from the Bar,
no action can be predicated upon such matters. The Garcia-Mendoza argument seems to be
that Garcia-Mendoza does not have to pay Shimrak because no action may be predicated
upon a private reprimand.
2
According to the Garcia-Mendoza brief, Shimrak, by entering
into a fee-splitting contract, violated a rule of court that is the same as law and such
conduct would constitute a misdemeanor. Garcia-Mendoza is in pari delicto with Shimrak;
but, according to Garcia-Mendoza, SCR 106 prevents Shimrak from suing on the contract.
SCR 106 does not grant immunity to an attorney from criminal or civil action related to
lawyer disciplinary proceedings.
__________

1
[Garcia-Mendoza] could not in good conscious [sic] submit to Shimrak's request to pay upon the illegal
contract or contracts in dispute. Respondent's Answering Brief at 12.

2
The private reprimand appears to be the way in which the bar association disciplines its more favored
members when they get in serious trouble. As an example, we recently had a case before us in which a lawyer
betrayed his client by illegally profiting from his client's misfortune and covertly buying his client's property at a
foreclosure sale, conduct that under any objective evaluation would have to be viewed as extremely serious. This
egregious misconduct was met by the Bar with its customary sanction for the politically favored (in this case a
member of the Bar's Board of Governors), a private reprimand. By contrast, in another, recent fee-splitting
case comparable to this one, the bar decided, in the case of a not-so-favored lawyer, upon the severe penalty of
suspension from the practice of law rather than a mere private reprimand, as was given in the present case.
With this kind of disparity of treatment between lawyers facing similar charges, we are hesitant to give much
meaning or credence to the private reprimand sanction imposed by the bar in the present case.
or civil action related to lawyer disciplinary proceedings. The rule reads, in pertinent part: A
complaint filed in good faith and any investigations, testimony, hearing, or reprimand related
to it are absolutely privileged, and no action may be predicated on such matters. Although
the rule could be somewhat more explicit, i.e., by stating exactly to whom the privilege
applies, the rule is merely a codification of the long-standing privilege associated with
judicial proceedings. A statement made in a judicial proceeding enjoys an absolute privilege
against a defamation action as long as the allegedly defamatory statement is reasonably
related to the proceeding in which it appears. Hecht v. Levin, 613 N.E.2d 585, 587 (Ohio
1993). An absolute privilege is defined as one which protects the speaker or publisher
without reference to his motives or the truth or falsity of the statement. Black's Law
Dictionary 1077 (5th ed. 1979). SCR 106 states that the complaint, investigations, testimony,
hearing and reprimand are all absolutely privileged, but such privilege is predicated on the
good faith of the complainant. This dependence on the good motive of the complainant
creates something more akin to a conditional privilege, which will protect the speaker or
publisher unless actual malice and knowledge of the falsity of the statement is shown.
Black's Law Dictionary 1077 (5th ed. 1979).
Regardless of whether the privilege created by SCR 106 is absolute or conditional (a
question which is not before us at this time), there are good policy reasons for granting
privilege to statements made in relation to bar complaints.
This privilege is necessary to encourage the cooperation of witnesses and is based upon
public policy that a witness' testimony be privileged in order that the witness feel free to
perform a public duty with knowledge that he or she will be insulated from harassment
and financial burdens resulting from subsequent litigation.
Klapper v. Guria, 582 N.Y.S.2d 892, 896 (N.Y. Sup. Ct. 1992). The Supreme Court of New
Jersey has noted that
the strong public policy in favor of maintaining strict adherence to the rules of
discipline required the removal of any impediment to the effective functioning of the
disciplinary system; allowing complainants to be potentially vulnerable to lawsuits
brought by attorneys against whom they complained was deemed to be such an
impediment.
Matter of Hearing on Immunity for Ethics Com., 477 A.2d 339, 340 (N.J. 1984). On the other
hand, there is no public policy interest in insulating attorneys from criminal or civil action as
a result of their misdeeds.
result of their misdeeds. We therefore hold that SCR 106 creates a privilege for the protection
of the complainant but does not shield a disciplined attorney from other legal actions.
We must assume that the writer of the Garcia-Mendoza brief is serious when she asserts
that the attorneys' agreement to pay Shimrak a contingent fee was void as a matter of
publicity [sic]
3
; still, it would not be fair under the circumstances of this case to adopt a
double standard and allow attorneys to receive free investigative services simply because of
their claim that the other party to the contract was in pari delicto with them.
[Headnote 3]
We realize, of course, that traditionally neither courts of law nor equity will interpose to
grant relief to parties to an illegal agreement. Application of such a rule to this case, however,
would obviously not do justice; and it is hard to argue under the circumstances of this case
that Shimrak is not entitled to the agreed-upon compensation for services rendered by him.
Aside from the need to do basic justice in this case, however, it would appear that, contrary to
the Garcia-Mendoza position, Shimrak is not bound by SCR 188
4
and that he has not
engaged in any illegal activity.
[Headnote 4]
The Garcia-Mendoza brief cites several cases for the proposition that court rules have the
force of rules of law. See Weil v. Neary, 278 U.S. 160 (1929); Finley v. Finley, 65 Nev. 13,
189 P.2d 334 (1948); Haley v. Eureka County Bank, 20 Nev. 410, 22 P. 1098 (1889);
however, court rules only have the force of rules of law upon those parties to whom they
apply. SCR 39 specifically states that [t]he supreme court rules set forth in this Part III are
the exclusive rules for the governing of the legal profession in Nevada. (Emphasis added.)
SCR 203.3, entitled Misconduct, reads, in pertinent part: It is professional misconduct for
a lawyer to: (1) Violate or attempt to violate the rules of professional conduct . . . .
(Emphasis added.) As the Texas court said in Atkins v. Tinning, 865 S.W.2d 533, 536-37
(Tex. Ct. App. 1993), [t]he rules do not govern the behavior of nonlawyers except
tangentially in governing how lawyers may interact with them. . . . Violation of the rules
subjects only an offending attorney to sanctions. Shimrak has violated no rule or law which
applies to him, and therefore he is not in pari delicto with the offending member of the
Garcia-Mendoza firm.
__________

3
Respondent's Answering Brief at 20.

4
A lawyer or a law firm shall not share legal fees with a nonlawyer . . . .
[Headnote 5]
This court has said that:
the courts should not be so enamored with the latin phrase in pari delicto' that they
blindly extend the rule to every case where illegality appears somewhere in the
transaction. The fundamental purpose of the rule must always be kept in mind, and the
realities of the situation must be considered. Where, by applying the rule, [1] the public
cannot be protected because the transaction has been completed, [2] where no serious
moral turpitude is involved, [3] where the defendant is the one guilty of the greatest
moral fault and [4] where to apply the rule will be to permit the defendant to be unjustly
enriched at the expense of the plaintiff, the rule should not be applied.
Magill v. Lewis, 74 Nev. 381, 386, 333 P.2d 717, 719 (1958). All four of the Magill factors
are present in this case. SCR 188 is entitled Professional independence of a lawyer. At least
one court has recognized that the purpose of the prohibition of fee-splitting is to protect the
independence of the judgment of lawyers. Gassman v. State Bar, 553 P.2d 1147, 1151 (Cal.
1976). The public would not be protected by refusing to enforce this contract, because Garcia
has already exercised her judgment in the cases covered by the contract. Indeed, not to
enforce this contract would actually endanger the public, because it would allow lawyers to
enter into such contracts and then get out of them by invoking SCR 188. The first Magill
factor is therefore satisfied.
As to the second factor, there is no serious moral turpitude involved here. Third, the
Garcia-Mendoza firm member must be seen as being guilty of the greatest moral fault since
she is the one who violated a professional rule. Finally, not enforcing the contract would
unjustly enrich the law firm at Shimrak's expense, because he has already performed his part
of the agreement. Using the Magill factors, it is clear that the doctrine of in pari delicto
should not be applied to deny Shimrak agreed-upon compensation for services rendered.
5

For the foregoing reasons, the order of the district court dismissing Shimrak's complaints
in both cases is vacated, and the cases are remanded to the district court for further
proceedings.
__________

5
The Garcia-Mendoza brief cites a number of cases in which fee-splitting agreements were held to be
unenforceable. Many of these cases are running cases, in which an investigator is paid a portion of attorney's
fees for bringing in cases to the law firm. The case before us is not such a case. From the information at hand, it
does not appear that the investigator in question was out soliciting cases for the law firm. This case appears to
involve the firm's agreement to pay less than the usual hourly rate and to pay a bonus in cases of successful
outcomes. There is no reason why these lawyers should not be required to pay what they agreed to pay.
dismissing Shimrak's complaints in both cases is vacated, and the cases are remanded to the
district court for further proceedings.
Steffen, C. J., and Zenoff, Sr. J., concur.
6

Rose, J., with whom Shearing, J., agrees, concurring in part and dissenting in part:
I agree with the majority that in Case No. 25100 the district court erred in dismissing
Shimrak's complaint on the basis of an accord and satisfaction. The evidence of an accord and
satisfaction was ambiguous, and Shimrak may well be able to prove a set of facts which, if
accepted by the trier of fact, would entitle him to relief.
I disagree with the majority in Case No. 25101 in its conclusion to enforce a contract
which is against public policy. I would adopt a rule similar to the approach taken by New
York. New York law provides that arrangements, such as the one in this case which call for
attorneys to split fees, violate[] public policy and, [are] thereby rendered unenforceable.
Gorman v. Grodensky, 498 N.Y.S.2d 249, 252 (N.Y. Sup. Ct. 1985). In Gorman, the court
further stated:
Although the provisions of the Code of Professional Responsibility do not enjoy the
status of decisional or statutory law, they are an explicit expression of the public policy
of the State. An agreement made in violation of a code provision, ought not be
sanctioned by the court, as would be the case if the court were to permit plaintiff to sue
on the contract. The court will refuse to aid either party to enforce this alleged contract.
That the defendants may benefit from the court's refusal to enforce a contract is
irrelevant, if enforcement would further a purpose in violation of public policy.
Id. (citations omitted).
If, as Shimrak alleges, he entered into a contract for fee splitting, he should not be allowed
to benefit. He was an insurance adjustor with thirty years of experience as a licensed private
investigator and must have been aware of the legal profession's ethical prohibition against fee
splitting. To allow him to benefit by granting him a recovery on this contract, which is in
violation of our Supreme Court Rules, would violate public policy. Therefore, I would
declare the parties to be in pari delicto and allow neither to benefit from the contract's
impropriety.
__________

6
The Honorable Thomas L. Steffen, Chief Justice, appointed The Honorable David Zenoff, Senior Justice, to
sit in the place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
112 Nev. 254, 254 (1996) Yada v. Simpson
WILLIAM L. YADA and LAS VEGAS METROPOLITAN POLICE DEPARTMENT,
Appellants, v. FRED JOSEPH SIMPSON, Respondent.
No. 24789
April 3, 1996 913 P.2d 1261
Appeal from a judgment of liability, entered pursuant to jury verdicts, for false
imprisonment and battery. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Arrestee brought suit against police officer and city police department, alleging false
arrest, false imprisonment, malicious prosecution, assault, and battery. The district court
entered judgment on jury verdict finding officer and department liable for battery and false
imprisonment, and awarding $12,500 for false imprisonment and $50,000 for battery.
Defendants appealed. The supreme court, Rose, J., held that: (1) plaintiff did not establish
false imprisonment on theory that officer intentionally charged him with four false charges,
causing his bail to be excessive and preventing him from posting bail; (2) there was adequate
evidence for reasonable jury to find that battery occurred; (3) plaintiff's unapportioned joint
offer of judgment of $50,000 to defendants was not valid basis for award of attorney fees.
Affirmed in part and reversed in part.
Springer, J., dissented in part.
Rawlings, Olson & Cannon and Peter M. Angulo, Las Vegas, for Appellants.
Peter L. Flangas, Las Vegas; Todd Nelson, Las Vegas, for Respondent.
1. False Imprisonment.
City police officer and police department were not liable for false imprisonment of arrestee based on theory that officer
intentionally charged arrestee with four false charges, causing his bail to be excessive and preventing him from posting bail. Officer
had probable cause to arrest plaintiff for disturbing the peace, disorderly conduct, assault, and battery on an officer, and even assuming
that setting excessive amount of bail can constitute false imprisonment, plaintiff never showed that officer or department were
responsible for setting amount of bail.
Supreme court will not overturn jury verdict if it is supported by substantial evidence, unless verdict is clearly erroneous in light of
all evidence presented.
3. Assault and Battery.
Testimony of eyewitnesses, in addition to plaintiff's own, indicating that officer used unnecessary force in arresting plaintiff was
sufficient to support jury verdict finding that officer committed battery.
4. Costs.
Plaintiff's joint offer of judgment of $50,000 to three defendants, which was not apportioned between defendants, was invalid
basis for award of attorney fees, under statute and rule providing that offeree who obtains judgment no more favorable than rejected
offer of judgment must pay attorney fees and costs of other party. NRS 17.115(4), NRCP 68.
OPINION
A jury found appellants William L. Yada and the Las Vegas Metropolitan Police Department (LVMPD) liable to respondent Fred
Joseph Simpson for false imprisonment and battery. We reverse the judgment with respect to the claim of false imprisonment and the award
of attorney's fees to Simpson. We affirm the judgment with respect to the claim of battery.
FACTS
Early in the morning on August 6, 1986, Simpson and some friends were in a jacuzzi at the apartment complex where Simpson lived.
Officer Yada responded to a call from a security officer at the complex, who complained that the group in the jacuzzi was too loud. Yada
ordered Simpson and the others from the jacuzzi. When Simpson stated that he had a right to remain, Yada declared that he was under
arrest. At trial, the parties offered conflicting evidence as to how Yada and Simpson each acted. Simpson presented evidence that Yada,
another police officer, and two security officers used excessive force in arresting him. Yada presented evidence that Simpson had
aggressively resisted the arrest and that only moderate force was used against him.
Yada arrested Simpson and charged him with battery on an officer, resisting arrest, assault, disorderly conduct, and disturbing the
peace. In his declaration of arrest, Yada indicated that the battery on an officer was a misdemeanor charge. However, the jail booked
Simpson for felony battery on an officer and set bail for that charge at $5,000. The bail for all five charges totaled $8,750. Simpson stayed
in jail for nearly a week. He was ultimately charged by criminal complaint with battery, resisting arrest, and disturbing the peace. The
justice of the peace later found him guilty of resisting arrest and not guilty of battery and disturbing the peace.
On August 7, 1988, Simpson sued Yada, the LVMPD, and some other defendants, alleging false arrest, false imprisonment, malicious
prosecution, assault, and battery. The jury found Yada and the LVMPD liable for battery and false imprisonment and awarded $12,500 for
the false imprisonment and $50,000 for the battery, for a total judgment of $62,500. The district court directed Yada and the LVMPD
to pay Simpson's attorney's fees of $10,000.
directed Yada and the LVMPD to pay Simpson's attorney's fees of $10,000.
DISCUSSION
False Imprisonment
[Headnote 1]
It is established that Simpson's arrest was valid: the justice of the peace found that
Simpson had committed the offense of resisting arrest, and the civil jury rejected his claim of
false arrest. The plaintiff in a false imprisonment action bears the burden of proving that the
delay following his valid arrest was unlawful. A few hours may constitute an unnecessary
delay; whether the defendant proceeded with due diligence depends on the circumstances of
the particular case. Nelson v. City of Las Vegas, 99 Nev. 548, 554, 665 P.2d 1141, 1145
(1983) (citations omitted). In Nelson, the arresting officer's potential liability for delay
ceased when he promptly turned [the plaintiff] over to the officers who were responsible for
taking [the plaintiff] to jail. Id. at 555, 665 P.2d at 1145.
No evidence shows that Yada acted without due diligence in turning Simpson over to
officers who placed Simpson in jail. Simpson's theory of false imprisonment appears to have
been that Yada intentionally charged him with four false charges, causing his bail to be
excessive and preventing him from posting bail. However, we conclude that Yada's
confrontation with Simpson provided him with probable cause to arrest Simpson for
disturbing the peace, disorderly conduct, assault, and battery on an officer, even though these
charges were either never prosecuted or never proven beyond a reasonable doubt. Further,
assuming that setting an excessive amount of bail can constitute false imprisonment, Simpson
never showed that Yada or the LVMPD were responsible for setting the amount of bail. The
record shows that the admitting officers at the jail set the bail amounts and charged Simpson
with felony battery on an officer even though Yada intended the charge to be a misdemeanor.
Nor did Simpson show that he attempted to post bail but was unable to because of the bail
amount. We therefore conclude as a matter of law that false imprisonment was not
established in this case.
Battery
[Headnotes 2, 3]
The jury found that Yada had committed a battery in arresting Simpson. The jury was
instructed that a police officer who uses more force than is reasonably necessary to effect a
lawful arrest commits a battery upon the person arrested. The evidence on this issue was
conflicting, but Simpson offered the testimony of other eyewitnesses, in addition to his
own, indicating that Yada used unnecessary force in arresting him.
this issue was conflicting, but Simpson offered the testimony of other eyewitnesses, in
addition to his own, indicating that Yada used unnecessary force in arresting him. This court
will not overturn a jury verdict if it is supported by substantial evidence, unless the verdict is
clearly erroneous in light of all the evidence presented. Frances v. Plaza Pacific Equities, 109
Nev. 91, 94, 847 P.2d 722, 724 (1993). We conclude that there was adequate evidence for a
reasonable jury to find that a battery occurred.
Attorney's Fees
[Headnote 4]
Simpson made a joint offer of judgment of $50,000 to Yada, LVMPD, and another
defendant. The defendants rejected it. The offer did not state to what extent each defendant
was liable. The district court awarded Simpson attorney's fees because after trial Simpson
obtained an award greater than the one he had offered the defendants.
NRCP 68 provides that an offeree who obtains a judgment no more favorable than a
rejected offer of judgment must pay attorney's fees and costs of the other party, if any are
allowed. NRS 17.115(4) has substantially the same provision. Since we have rejected the
false imprisonment claim and damages, the judgment obtained by Simpson was not more
favorable than his offer of judgment. But further, in prior cases, this court has consistently
concluded that unapportioned offers of judgment are an invalid basis for the award of
attorney's fees.
An offer of judgment made to multiple plaintiffs but unapportioned between them was
invalid as a basis for the award of attorney's fees in Ramadanis v. Stupak, 104 Nev. 57, 59,
752 P.2d 767, 768 (1988). Similarly, an offer of judgment made by multiple plaintiffs but not
apportioned between them was invalid in Morgan v. Demille, 106 Nev. 671, 674-75, 799
P.2d 561, 562-63 (1990). In Bergmann v. Boyce, 109 Nev. 670, 856 P.2d 560 (1993), a
defendant failed to apportion his offer of judgment between three plaintiffs, the plaintiffs
rejected it, and the defendant prevailed at trial. This court refused to recognize an exception
to the rule invalidating unapportioned offers even where the defendant was found to have no
liability and thus clearly received a more favorable result than the offer he made. We
reasoned that NRCP 68 is intended to encourage settlements but that unapportioned joint
offers do not serve that end: Individual offerees, unable to determine their share of a joint
offer, cannot make a meaningful choice between accepting the offer or continuing the
litigation to judgment. Id. at 678, 856 P.2d at 565. We therefore concluded that the better
rule is to hold all unapportioned joint offers of judgment invalid regardless of the outcome
of the trial on the merits."
offers of judgment invalid regardless of the outcome of the trial on the merits. Id.
The rule and its rationale apply also to the instant case, where a single plaintiff's offer of
judgment was not apportioned among multiple defendants. Such an offer of judgment does
not serve to encourage settlement since the individual defendants are unable to determine
their share of a joint offer and make a meaningful choice between accepting the offer or
continuing to litigate. Therefore, Simpson's offer of judgment was an invalid basis for the
award of attorney's fees, and the district court erred in ordering the payment of fees.
CONCLUSION
The verdict of $12,500 for false imprisonment was clearly erroneous, and we therefore
reverse the district court's judgment in this regard. We also reverse the award of attorney's
fees. We affirm the judgment of $50,000 for battery since there was substantial evidence to
support it.
Springer, J., concurring in part and dissenting in part:
I concur with the majority opinion affirming the $50,000.00 battery judgment and
reversing the award of attorney's fees; however, I disagree with the reversal of the false
imprisonment judgment and dissent on this point.
Simpson's false imprisonment claim is based on Officer Yada's having lodged a number of
unfounded and unsupportable criminal charges against Simpson which resulted in his being
required to post an unreasonable and inappropriate bail of $8,750.00 in order to effect his
release after his being arrested for disturbing the peace and resisting arrest. Simpson claimed
that he would have been able to meet a reasonable bail, but that he was unable to post
$8,750.00. Because of this Simpson claims that he was unreasonably and unnecessarily
detained as a result of Officer Yada's maliciously overcharging him to prevent him from
being released on bail. The jury agreed and returned a verdict favoring Simpson.
Simpson's false imprisonment claim arose out of an incident at the apartment house
complex where Simpson lived. The police were called because of some boisterousness among
a group of people near the jacuzzi. The facts are very much in conflict, with the police
charging that Simpson was unruly and uncooperative and with Simpson claiming that Officer
Yada unnecessarily beat him and injured him very severely. The highlight of this event was
that Simpson and Officer Yada (in full police regalia and armament) fell together into the
jacuzzi.
Simpson's false imprisonment charge is based upon Officer Yada's filling out a
declaration of arrest form in a manner that resulted in an inappropriately high bail
requirement that prevented Simpson from being released on bail. It is the practice of LVMPD
on misdemeanor arrests to release the arrestee on bail in accordance with a pre-formulated
bail-schedule. This schedule is designed as a convenience for arrestees who are able to make
bail and who are appropriate subjects for release with bail without specific action being taken
by a magistrate in each instance. All agree that this is an acceptable and indeed a necessary
practice. Because of the manner in which these bail-schedule releases are employed, the sole
determinant of the bail amount is the manner in which the arresting officer makes out the
declaration of arrest form. If, for example, an arresting officer were to elect to state ten or
twenty charges arising out of a given arrest situation, the possibility of making bail under the
described bail-schedule arrangement would steadily decrease as the number of charges were
piled on. It is called throwing the book at the arrestee.
Appellants argue in their brief that because Simpson was ultimately convicted of resisting
arrest, he cannot maintain a false imprisonment action against the police. Whether or not
Simpson was convicted of resisting arrest has nothing to do with whether Officer Yada
maliciously caused Simpson to be detained for an unreasonable and unnecessary period of
time by stacking charges in the declaration of arrest in a manner that he knew would result in
preventing what would have otherwise been a routine release.
This is a unique case because of the special kind of bail proceedings initiated by the
magistrate for the release of weekend misdemeanants. There appears to be in this record
ample evidence upon which a jury could have come to the conclusion that Officer Yada
improperly, and contrary to the actual or implied intentions of the magistrate, stacked up a
$8,750.00 bail based on what was essentially one incident. The jury could very well have
concluded under these circumstances that Officer Yada was maliciously causing the false
(legally unjustified) imprisonment of Simpson. Under these circumstances I would let the
false imprisonment judgment stand.
____________
112 Nev. 260, 260 (1996) Morris v. State
TABITHA LA DALE MORRIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25220
April 3, 1996 913 P.2d 1264
Appeal from a judgment of conviction of one count of second degree murder with the use
of a deadly weapon and one count of illegal discharge of a firearm. Eighth Judicial District
Court, Clark County; Donald M. Mosley, Judge.
The supreme court, Rose, J., held that: (1) Coleman rule barring prosecution from
commenting on defendant's post-arrest, pre-Miranda silence during impeachment also applies
to bar such comment during case in chief, and (2) error in allowing such comment was
reversible as references were more than passing and evidence of guilt was not overwhelming.
Reversed and remanded for new trial.
[Rehearing denied September 10, 1996]
Buttell & Percival, Ltd., Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Lisa Luzaich, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Trial court committed reversible error in allowing prosecutor to comment during case in chief on fact that defendant had chosen to
remain silent after she was asked by police officer after her arrest, but before Miranda warnings were administered, if she wanted to
talk. Policies prohibiting comment on silence of defendant are equally applicable to case in chief as to impeachment, references were
more than passing and drew inferences of guilt, and evidence of guilt was not overwhelming as eyewitnesses to crime admitted they did
not have clear view of defendant and gave conflicting stories as to other details. U.S. Const. amend. 5.
2. Criminal Law.
Prosecution is forbidden from commenting at trial upon accused's election to remain silent following his arrest and after he has
been advised of his rights as required by Miranda. U.S. Const. amend. 5.
3. Witnesses.
Under Coleman, prosecutor cannot use post-arrest, pre-Miranda silence to impeach defendant. U.S. Const. amend. 5.
4. Criminal Law.
Rule under Coleman which precludes prosecution from commenting on defendant's post-arrest, pre-Miranda silence during
impeachment also applies to bar such comment during prosecution's case in chief.
Policies which support bar of use of silence during impeachment apply equally, if not more so, during case in chief, as allowing such
comments in case in chief puts pressure on defendant to testify in order to explain silence and to abrogate his or her privilege against
self-incrimination. U.S. Const. amend. 5.
5. Criminal Law.
Improper comment by prosecutor on post-arrest silence of defendant will not require reversal if references are harmless beyond
reasonable doubt, and such references will be considered harmless beyond reasonable doubt if at trial there was only mere passing
reference, without more, to post-arrest silence, or there is overwhelming evidence of guilt. U.S. Const. amend. 5.
Due process prohibits any inference to be drawn from exercise of one's constitutional right to remain silent after arrest. U.S. Const.
amends. 5, 14.
OPINION
By the Court, Rose, J:
Appellant Tabitha La Dale Morris was charged with second degree murder with the use of a deadly weapon and illegal discharge of a
firearm after she allegedly drove past the house belonging to Gloria Fox and fired approximately fifteen shots in the direction of the house,
killing Gloria's sister Louise Potter. At trial, the prosecutor twice made reference to the fact that after Morris had been arrested she refused
to speak to the police and requested to speak to her attorney. The jury convicted Morris of both crimes.
We conclude that the prosecutor's references to Tabitha's post-arrest requests to remain silent and to speak to her attorney amounted to
prosecutorial misconduct, and we reverse the conviction and remand the case to the district court for a new trial.
FACTS
On August 25, 1990, Tabitha went to a beauty salon in North Las Vegas to get her hair done. Upon exiting the salon, Karsha Fox and
approximately seven or eight of her friends confronted Tabitha, alleging that Tabitha had cut the hair of Karsha's young son, Keyo. There
was bad blood between Karsha and Tabitha because Tabitha was the present girlfriend of Kelvin Owens, and Kelvin and Karsha had
previously been involved and had two children together, one of which was Keyo. Tabitha said that she did not cut Keyo's hair. Karsha then
hit Tabitha in the back with a stick, Tabitha hit Karsha with a picture frame, and a fight ensued. Karsha's mother, Gloria Fox, and Karsha's
aunt, Louise Potter, were also at the salon and along with several other people broke up the fight.
After the fight broke up, the parties left the salon parking lot. Karsha, Gloria, Louise, and
all of Karsha's friends went to Gloria's house, and Tabitha apparently went to her house which
was only a block or two from Gloria's. Everyone at Gloria's home was discussing the fight
and making a lot of noise. Keyo, who was at Gloria's home, began to cry, and Louise offered
to take Keyo to her house to get him away from all of the noise. Gloria walked them to the
front door and watched from her doorstep as Louise put Keyo in the back seat of the car. At
that time, a car drove by the house and Tabitha allegedly leaned out of the passenger-side
window and fired approximately fifteen bullets. Louise was struck in the head and was killed,
and Keyo was grazed in the arm and received twelve stitches.
When the police arrived, both Gloria and Laneatra Holt, a neighbor who lived across the
street, identified Tabitha as the shooter, and Officer Edward Dubrutz went to Tabitha's house,
which was about one block away. When Dubrutz arrived, Tabitha was crying on the couch,
and Dubrutz testified that she told him that people were saying that she had a gun, but she
does not own a gun and does not even [know] how to shoot a gun. Dubrutz arrested Tabitha,
but he did not read the Miranda rights to her.
After Tabitha was arrested, she was taken to the North Las Vegas jail. After Tabitha was
booked but still while she had not been read her Miranda rights, Detective Edward Brown
requested that she be transported from the jail to his office at the detective bureau. When
Tabitha arrived, Brown asked Tabitha, Would you like to speak with me? Tabitha said,
No. I want to speak to Mike.
1
Brown had been told previously by another officer that
Mike was Tabitha's attorney, and he therefore ceased the interview and had Tabitha taken
back to jail.
__________

1
Outside of the presence of the jury, Brown explained why he did not advise Tabitha of her Miranda rights
before asking her the question, stating that:
I WAS INFORMED BY THE TRANSPORTING OFFICER THAT SHE WAS VERY UPSET, VERY
AGITATED AND VERY UNCOOPERATIVE.
I FELT IT WAS VERY REDUNDANT TO SIT THERE AND READ HER ENTIRE RIGHTS AND BE
TOLD NO. I WAS ASKING HER, DO YOU WISH TO SPEAK TO ME?
IF SHE HAD [SAID], YES, I WOULD HAVE SAT HER DOWN, I WOULD HAVE TAKEN OUT
THE STANDARD MIRANDA FORMS THE POLICE DEPARTMENT USES WHICH
COMPLETELY ADVISES HER OF HER RIGHTS, [HAD] HER SIGN THAT
ACKNOWLEDGMENT, [HAD] HER SIGN THAT SHE ACKNOWLEDGES AND READS HER
RIGHTS, THE ENGLISH LANGUAGE, AND I HAD VERBALLY EXPLAINED THEM TO HER.
THEN I WOULD HAVE QUESTIONED HER, BUT THEN SHE INVOKED HER RIGHTS. ALL
CONVERSATIONS ENDED, AND NONE EVER EXISTED SINCE.
At trial, during the prosecution's case in chief, the prosecutor called Brown to the stand
and attempted to question him as to what Tabitha had said to him at the detective bureau.
Tabitha's counsel objected on the basis that such questioning was an improper comment on
Tabitha's post-arrest silence. The prosecutor stated that there was no violation of Tabitha's
rights because this was a comment on Tabitha's pre-Miranda silence, not post-Miranda
silence. The judge overruled the objection and allowed Brown to state that Tabitha had
refused to speak to him and requested to speak to her attorney.
During closing arguments, the prosecutor again made reference to Tabitha's post-arrest
silence, implying that she was hiding something from the police. The prosecutor stated:
MISS MORRIS KNEW WHAT SHE WAS DOING. SHE KNEW WHAT SHE
WAS DOING FROM STEP 1 THROUGH THE VERY END, AND SHE FOLLOWED
IT UP. OFFICER DUBRUTZ ARRIVED AT HER HOUSE RIGHT AFTER THE
SHOOTING, AND WHAT DID SHE SAY?
THEY SAID I HAD A GUN. I DON'T KNOW NOTHING ABOUT SHOOTING
NO GUN.
SHE KNEW WHAT SHE WAS DOING. THE STATEMENT TO DETECTIVE
BROWN WHEN SHE GOT TO JAIL WAS: I WANT TO TALK
Tabitha's counsel again objected to this comment on Tabitha's post-arrest silence and was
again overruled.
At the close of trial, Tabitha was convicted of second degree murder with the use of a
deadly weapon and illegal discharge of a firearm. She received a life sentence with the
possibility of parole for the murder charge and a consecutive life sentence for the weapon
enhancement and also received a concurrent three year sentence for the illegal discharge of a
firearm charge.
DISCUSSION
[Headnotes 1-3]
We conclude that the prosecutor engaged in misconduct by commenting on Tabitha's
post-arrest silence. It is well settled that the prosecution is forbidden at trial to comment
upon an accused's election to remain silent following his arrest and after he has been advised
of his rights as required by Miranda v. Arizona . . . . McGee v. State, 102 Nev. 458, 461, 725
P.2d 1215, 1217 (1986). This court expanded this doctrine by concluding that a prosecutor
also cannot use post-arrest, pre-Miranda silence to impeach a defendant. Coleman v. State,
111 Nev. 657, 895 P.2d 653 (1995). While the instant case concerns the prosecutor's use of
post-arrest, pre-Miranda silence in its case in chief, and not for impeachment, the rationale
of Coleman still applies and bars the prosecution's comments.
case in chief, and not for impeachment, the rationale of Coleman still applies and bars the
prosecution's comments.
This court advanced three policy considerations in support of Coleman: (1) the privilege
against self-incrimination precludes reference to an arrestee's silence; therefore, the right to
remain silent does not arise solely from the express assurances contained in the Miranda
warning; (2) the Miranda warning has been widely publicized through the media, and
therefore many people have personal knowledge of these rights; and (3) refusing to draw a
line between post-arrest, post-Miranda silence and post-arrest, pre-Miranda silence
forecloses any inducement to police to engage in the gamesmanship of not asking any
questions immediately after the arrest in order to use the defendant's silence against him or
her, but later giving a Miranda warning in order to secure a statement. Id. at 663, 895 P.2d at
657.
[Headnote 4]
These policies apply equally, if not more so, to barring a prosecutor from commenting on a
defendant's post-arrest silence during the State's case in chief. Allowing such comments in the
prosecution's case in chief greatly prejudices the defendant because it then puts pressure on
the defendant to testify in order to explain the silence, thereby pressuring the defendant to
abrogate his or her privilege against self-incrimination. Therefore, prosecutorial comments on
the defendant's post-arrest silence made during the prosecution's case in chief are equally or
more damaging than if made during impeachment, and the Coleman holding should be
extended to preclude such comment.
[Headnote 5]
This court has stated that reversal will not be required if the prosecutor's references to the
defendant's post-arrest silence are harmless beyond a reasonable doubt. Murray v. State, 105
Nev. 579, 584, 781 P.2d 288, 290 (1989). Comments on the defendant's post-arrest silence
will be harmless beyond a reasonable doubt if (1) at trial there was only a mere passing
reference, without more, to an accused's post-arrest silence (McGee, 102 Nev. at 461, 725
P.2d at 1217), or (2) there is overwhelming evidence of guilt (Moore v. State, 96 Nev. 220,
225, 607 P.2d 105 (1980)). In this case we conclude that there was more than a passing
reference to Tabitha's post-arrest silence and that there was not overwhelming evidence of
guilt.
At trial, the prosecution twice made reference to Tabitha's post-arrest silence, once in its
case in chief and once during closing arguments. While only two references were made, both
were protracted given the fact that Tabitha's counsel objected and the attorneys debated
whether the references were proper.
[Headnote 6]
Additionally, the prosecutor's closing argument implied that by making the statements to
Officer Dubrutz, by refusing to talk to the police, and by requesting to speak with Mike, her
attorney, Tabitha had something to hide. [D]ue process prohibits any inference to be drawn
from the exercise of one's constitutional right to remain silent after arrest. Vipperman v.
State, 92 Nev. 213, 216, 547 P.2d 682, 684 (1976). Therefore, the references made to
Tabitha's silence were not merely passing, but rather were deliberate and drew inferences of
guilt.
Furthermore, we conclude that there was not overwhelming evidence of Tabitha's guilt
adduced at trial. Tabitha denied shooting Louise Potter, and the only other witnesses to the
crime were Gloria Fox and Laneatra Holt. Both witnesses identified Tabitha as the shooter,
but both witnesses also admitted that they did not get a clear look at the shooter. Additionally,
both witnesses gave conflicting stories as to the number, color, and model of cars involved in
the shooting. These conflicting stories cast doubt on the certainty that Tabitha was the shooter
and negate any claim that there was overwhelming evidence of Tabitha's guilt.
CONCLUSION
We conclude that the prosecutor's comments during the State's case in chief and closing
arguments referring to Tabitha's post-arrest silence amounted to prosecutorial misconduct.
Furthermore, because the prosecutor made more than a passing reference to Tabitha's
post-arrest silence and because overwhelming evidence of Tabitha's guilt was not adduced at
trial, we conclude that the comments were not harmless error. Accordingly we reverse
Tabitha's conviction and remand this matter to the district court for a new trial.
Young, Springer and Shearing, JJ., concur.
Respectfully I dissent.
Although the prosecution introduced evidence of Tabitha's post-arrest/pre-warning silence
during its case-in-chief, I believe the basic rationale for my dissent in Coleman applies in the
instant case. I view the majority's position to be an unwarranted impediment to the search for
truth in a criminal trial. I therefore dissent and would have affirmed the judgment entered
below.
____________
112 Nev. 266, 266 (1996) Tillema v. State
JAMES TILLEMA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25354
April 3, 1996 914 P.2d 605
Appeal from judgments of conviction, pursuant to a jury verdict, and sentences, for three
counts of burglary and two counts of possession of burglary tools. Eighth Judicial District
The supreme court, Shearing, J., held that: (1) two vehicle burglary counts were properly
joined with each other and with store burglary count; (2) evidence of defendant's prior
conviction for vehicle burglary was properly admitted; (3) prosecutor's arguments were not
impermissible; (4) trial court's erroneous admission of witness' statement that defendant
refused to answer police officer's interrogation question was harmless; and (5) three
consecutive life sentences for entering into two unoccupied vehicles and stealing lock was not
too harsh a penalty under habitual offender statute.
Affirmed.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy Public Defender, Clark
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Two vehicle burglary counts were properly joined with each other and with store burglary count, in light of trial court's possible
determination that vehicle burglaries were part of common scheme or plan as evidenced by both occurring in casino parking garages
only 17 days apart, trial court's possible determination that store burglary was connected together with one vehicle burglary as
evidenced by detective's observation of defendant burglarizing vehicle and then proceeding into store from which he stole lock which
he immediately sold for cash, and cross admissibility of evidence between two vehicle burglaries and between one vehicle burglary and
store burglary. NRS 173.115(2), 205.060.
2. Criminal Law.
Joinder decisions are within sound discretion of trial court and will not be reversed absent abuse of discretion.
3. Criminal Law.
Evidence of defendant's prior conviction for vehicle burglary was properly admitted to show common scheme or plan and his
intention to feloniously enter two vehicles for which he was charged with burglary, where all three burglaries occurred in
casino parking lots, and prior vehicle burglary occurred approximately two years before charged vehicle
burglaries.
where all three burglaries occurred in casino parking lots, and prior vehicle burglary occurred approximately two years before charged
vehicle burglaries. NRS 48.045(2), 205.060.
4. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudicial effect against probative value, is within discretion of trial judge.
5. Criminal Law.
Prosecutor's arguments that defendant's prior conviction for vehicle burglary should eliminate jury's doubt about his felonious
intent in entering two vehicles for which he was on trial for burglary were not impermissible suggestions that jury should convict based
on defendant's past wrongdoing.
6. Criminal Law.
Trial court's erroneous admission of police witness' statement that defendant refused to answer police officer's interrogation
question was harmless, where witness made reference in passing during narrative and prosecution never emphasized it. U.S. Const.
amend. 5.
7. Criminal Law.
It is constitutionally impermissible to admit evidence of defendant's invocation of his Fifth Amendment privilege to remain silent.
8. Criminal Law.
Three consecutive life sentences for entering into two unoccupied vehicles and stealing lock was not too harsh a penalty under
habitual offender statute, where defendant had criminal history of 65 arrests, nine felony convictions, and 18 misdemeanor convictions.
NRS 207.010.
9. Criminal Law.
Habitual offender statute makes no special allowance for nonviolent crimes or for remoteness of convictions. NRS 207.010.
10. Criminal Law.
Under habitual offender statute, considerations of nonviolent nature of charged crimes or remoteness of prior convictions are
within discretion of district court. NRS 207.010.
11. Criminal Law.
Reversal of defendant's convictions for burglary and possession of burglary tools on basis that defendant did not intelligently and
knowingly waive his right to counsel was not warranted, in light of defendant's failure to allege error in being allowed to represent
himself and record which demonstrated that defendant understood disadvantages of self-representation, including risks and
complexities of his case.
OPINION
Appellant James Tillema was arrested for a burglary of a vehicle on May 29, 1993, and was arrested again for another burglary of a
vehicle and for a burglary of a store on June 16, 1993. As a result, he was charged with a total of three counts of burglary pursuant to NRS
205.060 as well as two counts of possession of burglary tools pursuant to NRS 205.080. Tillema's case proceeded to trial, and he
represented himself.
case proceeded to trial, and he represented himself. The jury convicted Tillema on all counts.
The district court sentenced Tillema under the habitual criminal statute, NRS 207.010, to
three consecutive life sentences with the possibility of parole and to two concurrent one-year
terms.
On appeal, Tillema asserts that the district court erred in denying his motion to sever the
counts, admitting evidence of a prior crime, not striking evidence of his exercise of his right
to remain silent, and finding him to be a habitual criminal. He further asserts that the
prosecutor improperly commented on the prior crime in closing argument and that
insufficient evidence supports his convictions. We conclude that all of these contentions lack
merit and affirm the convictions and sentences.
[Headnote 1]
Tillema first claims that the vehicle burglary counts were improperly joined with each
other and with the store burglary count. He admits that the two vehicle burglaries were
similar in that they both involved vehicle break-ins, but contends that the State did not
establish any common scheme or plan to connect the two incidents to each other or to the
store incident in order to make joinder proper.
[Headnote 2]
NRS 173.115 provides that two or more offenses may be joined together in a separate
count for each offense if the offenses charged are [b]ased on the same act or transaction,
connected together or constitute a common scheme or plan. In Mitchell v. State, 105
Nev. 735, 738, 782 P.2d 1340, 1342 (1989), we held that if . . . evidence of one charge
would be cross-admissible in evidence at a separate trial on another charge, then both charges
may be tried together and need not be severed. It is the established rule in Nevada that
joinder decisions are within the sound discretion of the trial court and will not be reversed
absent an abuse of discretion. Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 563 (1990),
cert. denied, 499 U.S. 970 (1991).
We conclude that the district court did not abuse its discretion in allowing the two vehicle
burglary counts and store burglary count to be joined together. The district court certainly
could determine that the two vehicle burglaries evidenced a common scheme or plan. Both
offenses involved vehicles in casino parking garages and occurred only seventeen days apart.
Moreover, we conclude that evidence of the May 29th offense would certainly be
cross-admissible in evidence at a separate trial on the June 16th offense to prove Tillema's
felonious intent in entering the vehicle. See NRS 48.045(2); Mitchell, 105 Nev. at 738, 782
P.2d at 1342.
Likewise, the store burglary could clearly be viewed by the district court as connected
together with the second vehicle burglary because it was part of a continuing course of
conduct. NRS 173.115(2); Rogers v. State, 101 Nev. 457, 465-66, 705 P.2d 664, 670 (1985),
cert. denied, 476 U.S. 1130 (1986). On June 16th, a detective viewed Tillema's burglary of a
van in a casino parking garage and then observed Tillema immediately leaving the garage and
walking south to a Woolworth's store. Following on foot, the detective saw Tillema in the
hardware section of the store, where Tillema remained for approximately five minutes. The
detective did not see Tillema take anything or leave the store and did not know if he
attempted to pay for any merchandise. The detective then saw Tillema go to a gas station a
short distance away. Tillema sold a packaged lock, with Woolworth's and a price of four
ninety-nine on it, to a gas station attendant for two dollars.
1
We believe that Tillema's acts
on June 16th demonstrate that he had an intent to steal something, anything, that he could
subsequently sell. Thus, the vehicle burglary and the store burglary were certainly connected
together due to Tillema's felonious intent and continuing course of conduct. Moreover, we
conclude that most of the evidence of the June 16th vehicle burglary would be
cross-admissible in evidence at a separate trial on the store burglary to prove Tillema's
felonious intent in entering the store. See NRS 48.045(2); Mitchell, 105 Nev. at 738, 782 P.2d
at 1342; cf. Robins, 106 Nev. at 619, 798 P.2d at 563. Accordingly, we conclude that the
vehicle burglary counts were properly joined with each other and with the store burglary
count.
[Headnotes 3, 4]
Tillema next claims that evidence of his conviction for a 1991 vehicle burglary was
improperly admitted and prejudiced his case. We conclude that the evidence was admissible
to show Tillema's common plan or scheme and his intention to feloniously enter the vehicles
on May 29th and June 16th. See NRS 48.045(2). Significantly, this common plan is
evidenced by the fact that the 1991 vehicle burglary and the two vehicle burglaries in the
instant case all occurred in casino parking garages. We further conclude that the district court
did not abuse its discretion in determining that the probative value of this evidence
out-weighed its prejudicial effect. The decision to admit or exclude evidence, after balancing
the prejudicial effect against the probative value, is within the discretion of the trial
judge.
__________

1
After arresting Tillema, officers returned with Tillema to the Woolworth's store and contacted the manager
and each of the cashiers. None acknowledged having recently sold him the lock. None could identify him as
having been in the store that day, and none had seen him shoplifting. (No Woolworth's employees testified, and
this testimony from the detective was received without objection.)
evidence, after balancing the prejudicial effect against the probative value, is within the
discretion of the trial judge. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
[Headnote 5]
The district court instructed the jury that it could consider Tillema's prior conviction for
vehicle burglary only as evidence of Tillema's intent, motive, and plan, and not as evidence of
bad character. Tillema contends, however, that the prosecutor went beyond the limiting
instruction in closing argument and improperly urged the jury to convict Tillema based on the
fact that he had engaged in other wrongdoing in his life. After review of the prosecutor's
comments, we conclude that the prosecutor did not make improper character arguments but
rather pointed out that the prior conviction was evidence of Tillema's common scheme or
plan and felonious intent to enter the vehicles.
2

[Headnote 6]
Tillema further claims that the district court erred in failing to declare a mistrial for, or at
least strike the testimony and admonish the jury to disregard, a police witness's reference to
Tillema's refusal to reply to interrogation following arrest and receipt of Miranda warnings.
Miranda v. Arizona, 384 U.S. 436 (1966). After Tillema was arrested on May 29th and during
a search of his person, a standard screwdriver with yellow paint on the blade was located in
Tillema's right front pants pocket. Officer Thomas Wagner testified that Tillema was asked
what the screwdriver was used for and that Tillema refused to reply. Wagner casually made
this comment regarding Tillema's silence during a narrative and the prosecutor never
emphasized it.
__________

2
The prosecutor argued as follows:
You know, what a difference it makes between a person who, as far as you know, has no history of doing
this kind of thing and is found in possession of property or seen to go into a vehicle. There's all kind of
explanations for that. And you might be inclined to give him a benefit of a doubt. You might say, well,
maybe they were going in for an altruistic motive.
When you know it's a person who does this as a regular basis, then that eliminates that doubt. It
eliminates reasonable doubt. It eliminates giving the defendant any benefit of a doubt.
And all of the series of events that occurred in this case as well as the ones back in 1991 can be
considered by you on this count as well. It makes it conclusive that the defendant, Mr. Tillema, as
Detective Flaherty, the eyewitness said, did go into the vehicle. He didn't have permission.
Entry into the vehicle without permission is something from which you may infer an intent to commit a
larceny inside. But more than that, you can infer thatfrom his conduct and his whole history, that this is
the kind of thing that he does.
[Headnote 7]
It is constitutionally impermissible to admit evidence of a defendant's invocation of his
Fifth Amendment privilege to remain silent. We believe, however, that this issue is also
governed by the harmless error standard. Franklin v. State, 98 Nev. 266, 271, 646 P.2d 543,
546 (1982) (citations omitted). We conclude that the admission of the witness's statement was
harmless error beyond a reasonable doubt. The prosecution did not emphasize the silence or
use it to overtly foment an adverse inference of guilt in the minds of the jury. Id.
[Headnotes 8-10]
Tillema also asserts that habitual criminal treatment pursuant to NRS 207.010 under the
facts of his case is an abuse of discretion because his prior crimes were nonviolent and some
were remote in time. He cites Sessions v. State, 106 Nev. 186, 789 P.2d 1242 (1990), to argue
that three consecutive life sentences for entering into two unoccupied vehicles and stealing a
lock constitute far too harsh a penalty. We disagree. Besides the judgments used to satisfy the
habitual criminal requirements, the district court considered Tillema's presentence report,
detailing a career of criminal activity, including sixty-five arrests, nine felony convictions,
and eighteen misdemeanor convictions. We note that NRS 207.010 makes no special
allowance for non-violent crimes or for the remoteness of convictions; instead, these are
considerations within the discretion of the district court. Arajakis v. State, 108 Nev. 976,
983, 843 P.2d 800, 805 (1992). The record demonstrates that the district court did not abuse
its discretion in adjudicating Tillema a habitual criminal.
Finally, Tillema claims that the evidence against him was insufficient to convict him of
burglary and possession of burglary tools. Based on our review of the evidence, we conclude
that the jury, acting reasonably, could have been convinced of the defendant's guilt beyond a
reasonable doubt as to all counts. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581
(1992).
[Headnote 11]
The dissenting justices would have this court sua sponte raise the issue of the adequacy of
Tillema's canvass and conclude that Tillema did not intelligently and knowingly waive his
right to counsel. We believe that Tillema's convictions should not be reversed on the ground
that he did not knowingly and intelligently waive his right to counsel. In this case, the record
affirmatively shows that the requirements of Faretta v. California, 422 U.S. 806 (1975), were
met. Cf. Graves v. State, 112 Nev. 118, 912 P.2d 234 (1996). The record further demonstrates
that Tillema understood the disadvantages of self-representation, including the risks and
complexities of his case as required by Arajakis, 10S Nev. at 9S0, S43 P.
risks and complexities of his case as required by Arajakis, 108 Nev. at 980, 843 P.2d at
802-03. It is particularly inappropriate to reverse Tillema's convictions when he fails to allege
error in being allowed to represent himself.
We disagree with the dissenting justices' conclusion that the record in Tillema's case
demonstrates that he did not appreciate the dangers and disadvantages of self-representation
when he chose to represent himself. The judge corrected each of Tillema's misunderstandings.
Despite the fact that the judge pointed out to Tillema that he misunderstood a number of
issues, Tillema insisted on representing himself.
For the foregoing reasons, we affirm Tillema's judgments of conviction and sentences.
Rose, J., with whom Springer, J., joins, dissenting:
I dissent. The district court failed to adequately canvass Tillema to establish that he
intelligently and knowingly waived his right to counsel. The canvass was cursory and
consisted only of the district court advising Tillema that self-representation was a bad idea
and what the role of standby counsel would be should he elect to represent himself. The
inquiry included nothing of the crimes charged, the possible defenses, or Tillema's
background. Based solely on this issue, we should reverse and remand this case.
A criminal defendant has the right to self-representation under the Sixth Amendment of
the United States Constitution. Faretta v. California, 422 U.S. 806, 818-19 (1975). However,
an accused who chooses self-representation must knowingly and intelligently waive the right
to counsel. Id. at 835. Such a choice can be competent and intelligent even though the
accused lacks the skill and experience of a lawyer, but the record should establish that the
accused was made aware of the dangers and disadvantages of self-representation. Id.
The trial court must canvass a defendant to determine whether his or her waiver of the
right to counsel is valid. Cohen v. State, 97 Nev. 166, 168, 625 P.2d 1170, 1171 (1981).
To be valid such waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the whole
matter. A judge can make certain that an accused's professed waiver of counsel is
understandingly and wisely made only from a penetrating and comprehensive
examination of all the circumstances under which such a plea is tendered.
Id. (quoting Garnick v. Miller, 81 Nev. 372, 376, 403 P.2d 850, 853 (1965)).
The test of the validity of a waiver is not whether the court explained the elements of the
charged offense or possible defenses to the defendant or provided other specific warnings or
advisements, but whether the record as a whole demonstrates that the defendant understood
the disadvantages of self-representation, including the risks and complexities of the particular
case.' Arajakis v. State, 108 Nev. 976, 980, 843 P.2d 800, 802-03 (1992) (quoting People v.
Bloom, 774 P.2d 698, 716 (Cal. 1989), cert. denied, 449 U.S. 1039 (1990)). Determining the
validity of a waiver of the right to counsel requires a fact-specific inquiry focused on the
background, experience and conduct of the accused. Haberstroh v. State, 109 Nev. 22, 25,
846 P.2d 289, 292, cert. denied, 510 U.S. 858, 114 S. Ct. 169 (1993).
While this court has indicated that we will review a Faretta canvass as a whole and it is
not necessary that the accused establish that he is competent to represent himself, these cases
establish that coverage of certain matters should be part of a Faretta canvass. These matters
are: (1) the nature of the charges, (2) the sentences for each charge and the total possible
sentence the defendant could receive, (3) the possible defenses and mitigating facts the
defendant might be able to assert, (4) the background and education of the accused, (5) the
defendant's experience with and understanding of the legal system, and (6) the defendant's
understanding of the right to legal representation that he is surrendering and the disadvantages
of self-representation.
Tillema did not raise on appeal the validity of his waiver of counsel, but this court may
address plain error and constitutional error sua sponte. Sterling v. State, 108 Nev. 391, 394,
834 P.2d 400, 402 (1992). A review of the record in this case shows that the canvass
conducted by the district court was inadequate. The district court gave Tillema some sound
advice, helpful explanation, and relevant warnings. The court explained the role of standby
counsel, advised Tillema of the inherent disadvantage in vouching for his own credibility if
he testified, and warned him that an attorney could better handle matters such as a motion by
the State to introduce his prior convictions into evidence. However, the transcript of the
canvass shows that Tillema's waiver of his right to counsel was not knowing and intelligent.
The district court did not discuss the nature of the charges against Tillema even after it
discovered that Tillema did not understand that he no longer faced the charge of failing to
register as an ex-felon, nor did the court discuss the possible defenses or mitigating factsa
subject that was highly relevant when Tillema several times asserted that the prosecution had
a very weak case.
Regarding Tillema's knowledge of the range of allowable punishments, the trial court
informed Tillema that he faced the possibility of a life sentence if he were declared a habitual
criminal. However, Tillema was not told he faced the possibility of three consecutive life
terms, which he in fact received at his sentencing, and there is no indication in the record that
he knew of this possibility when he chose to represent himself.
The district court did inquire into Tillema's legal knowledge and experience with the legal
system. However, this inquiry only showed that Tillema was laboring under many legal
misconceptions. Tillema did not understand that he could not testify while cross-examining
the State's witnesses. When the court attempted to clear up this misconception and warned
Tillema that he would not be allowed to make statements during cross-examination, Tillema
responded by reiterating that the case against him was weak and that he was innocent. This
was Tillema's response at several points to the court's canvassing.
Tillema's responses to the district court did not demonstrate that he understood the dangers
and disadvantages of self-representation or apprehended the facts essential to a broad
understanding of the whole matter. On the contrary, they showed that Tillema confused his
right to testify and the process of cross-examination, was unaware that he no longer faced one
charge, and felt that his professed innocence was relevant to the decision to represent himself.
When the court asked Tillema if he understood that the State would introduce and challenge
the credibility of his preliminary hearing testimony, Tillema answered that he understood that
it had been his right to testify at the preliminary hearing. Although the court then asked
Tillema again if he understood that the State would use what he had said at the hearing
against him and Tillema said he understood that, responses such as these did not indicate that
his decision was a knowing and intelligent one.
The trial court did not inquire into Tillema's background and education, other than his
legal experience. It did not discover that Tillema had never graduated from high school or
attained a GED. His relatively low-level of education was relevant to this proceeding.
The canvass included nothing of the charges against Tillema, possible defenses or
mitigating factors, or his background or experience. It did not establish that Tillema had any
apprehension of the facts essential to a broad understanding of his case and the decision to
forgo assistance of counsel. Rather, the record demonstrates that he did not appreciate the
dangers and disadvantages of self-representation when he chose to represent himself. On the
possible maximum sentence, Tillema was actually misinformed.
The court informed Tillema that he could receive a life sentence for being a habitual criminal.
It did not inform him that his three felony convictions could each be converted to a life
sentence under the habitual criminal statute and run consecutively. This exposed Tillema to
three consecutive life sentences, each requiring a minimum of ten actual years (no good time
credits) in prison, a sentence Tillema actually received.
There is no doubt that Tillema was prejudiced at trial by his lack of competent counsel.
For example, he failed to object to inadmissible hearsay evidence in regard to the charge of
burglary of a department store. Even with this hearsay, the evidence of this shoplifting
burglary was insufficient. Nevertheless, the jury convicted Tillema of this crime, and the
majority now affirms it.
The jury found Tillema guilty of three counts of burglary and two counts of possession of
burglary tools. The district court adjudicated Tillema a habitual criminal and sentenced him to
three consecutive terms of life imprisonment with the possibility of parole on the burglary
counts. The district court's canvass failed to establish that Tillema understood the fact that
this harsh a punishment was even possible or other facts essential to an understanding of the
disadvantages of self-representation and the risks and complexities of his case. The record
shows that Tillema did not knowingly and intelligently waive his right to counsel.
____________
112 Nev. 275, 275 (1996) State, Emp. Sec. Dep't v. Holmes
NEVADA EMPLOYMENT SECURITY DEPARTMENT, STANLEY P. JONES, in His
Capacity as Executive Director, and LINDA K. LEE, in Her Capacity as Chairwoman
of the Nevada Employment Security Department Board of Review; CAROL
STEWART, in Her Capacity as a Member of the Nevada Employment Security
Department Board of Review, and WALT HENDERSON, in His capacity as a
Member of the Nevada Employment Security Department Board of Review, and
HOTEL SAN REMO, Appellants, v. CYNTHIA HOLMES, Respondent.
No. 26157
April 3, 1996 914 P.2d 611
Appeal from an order of the district court reversing an administrative officer's decision to
deny respondent's claim for unemployment benefits. Eighth Judicial District Court, Clark
County; Gerard J. Bongiovanni, Judge.
The supreme court held that: (1) substantial evidence supported appeals referee's decision
that radioimmunoassay hair analysis {RIA) testing was acceptable manner of testing
employee for drugs, and {2) employee's ingestion of cocaine was intentional and willful
violation of hotel's valid and reasonable drug free policy and, thus, constituted
misconduct so as to disqualify her from receipt of unemployment benefits.
analysis (RIA) testing was acceptable manner of testing employee for drugs, and (2)
employee's ingestion of cocaine was intentional and willful violation of hotel's valid and
reasonable drug free policy and, thus, constituted misconduct so as to disqualify her from
receipt of unemployment benefits.
Reversed.
Crowell, Susich, Owen & Tackes, Carson City, for Appellant Employment Security.
Kamer & Zucker, Las Vegas, for Appellant Hotel San Remo.
John J. Tofano, Las Vegas, for Respondent.
Keefer, O'Reilly & Ferrario, Las Vegas; and Rudnick & Wolfe and Stephen A. Landsman,
Chicago, Illinois, for Amicus Las Vegas Chamber of Commerce and MGM Grand Hotel, Inc.
When decision of administrative body is challenged, supreme court reviews evidence presented to the administrative body and
ascertains whether that body acted arbitrarily or capriciously, thus abusing its discretion.
Supreme court must affirm decision of administrative agency on questions of fact if decision is supported by substantial evidence
in the record.
Because the present issue dealt with question of fact, supreme court's review of administrative agency's decision would be limited
to determining whether agency's decision was supported by substantial evidence in the record.
Testimony of two experts and articles in scientific journals constituted substantial evidence supporting appeals referee's decision
that radioimmunoassay hair analysis (RIA) was acceptable manner of testing unemployment compensation claimant for drugs.
Radioimmunoassay hair analysis (RIA) testing, especially when coupled with confirmatory gas chromatography/mass
spectrometry (GC/MS) test, is an accepted and reliable scientific methodology for detecting illicit drug use.
Administrative agency's conclusions of law which are closely related to agency's view of the facts are entitled to deference and
should not be disturbed on appeal if they are supported by substantial evidence.
Hotel's drug free policy had reasonable relation to the work performed by slot hostess and thus, hotel had justifiable reason for
demanding that hostess refrain from using cocaine for purposes of determining whether hostess' use of
cocaine constituted misconduct making her ineligible for unemployment benefits.
ing that hostess refrain from using cocaine for purposes of determining whether hostess' use of cocaine constituted misconduct making
her ineligible for unemployment benefits. Slot hostess was entrusted with hotel's computer system, its money club, and oftentimes
handled large amounts of hotel's cash and additionally, hostess' job duties included substantial amount of personal interaction with
hotel's guests.
Where hotel employee was given ninety days notice that she would be tested for drug use, employee's ingestion of cocaine within
that 90-day period was intentional and willful violation of hotel's valid and reasonable drug free policy and thus, employee's ingestion
of cocaine, proven by radioimmunoassay hair analysis (RIA) and confirmatory gas chromatography/mass spectrometry (GS/MS),
constituted misconduct so as to disqualify employee from receipt of unemployment benefits. NRS 612.385.
OPINION
Per Curiam:
Respondent Cynthia Holmes (Holmes) was employed by appellant Hotel San Remo (San Remo) as a slot hostess from August 31,
1990, until February 9, 1993, when she was terminated for failing a drug test.
Holmes applied for unemployment benefits with appellant Nevada Employment Security Department (NESD). NESD denied
Holmes' application for unemployment benefits due to her work-related misconduct. Holmes appealed the denial of her unemployment
benefits. NESD's determination was subsequently upheld by both the appeals referee and the NESD Board of Review. Holmes petitioned
the district court for judicial review. The district court reversed the denial of unemployment benefits because it held that substantial
evidence did not support NESD's decision. San Remo and NESD now appeal to this court.
We conclude that substantial evidence supported NESD's finding of work-related misconduct sufficient to warrant a denial of benefits.
Accordingly, we reverse the district court's order reversing the Board of Review's decision and reinstate the Board of Review's decision.
FACTS
Holmes was employed by San Remo between August 31, 1990, and February 9, 1993, until she was terminated. In April 1992, Holmes
was promoted to the position of slot hostess for San Remo's Money Club (San Remo's slot players club). As part of her job responsibilities,
Holmes greeted patrons, assisted in conducting the audit of the Money Club, kept records of cash given to players and occasionally gave
complimentary benefits to players.
ers. Additionally, Holmes had access to San Remo's computer system.
In April 1992, San Remo informed its employees that it would be initiating a random
drug-testing program. San Remo informed all employees that they would be given ninety days
notice of their testing date and that failure to pass the drug test would result in termination.
San Remo used a hair analysis test, known as a radioimmunoassay hair analysis (RIA),
as its drug testing methodology.
1
In the event of a positive result on the RIA screening, a
confirmatory gas chromatography/mass spectrometry (GC/MS) test is performed. If the
GC/MS confirmatory test yields a positive result, the result is reported to the employer. The
RIA screening and GC/MS confirmatory test utilized by San Remo tested employees for
cocaine ingestion during the ninety days immediately preceding the tests.
San Remo gave Holmes ninety days notice that she would be tested on January 18, 1993.
Holmes voluntarily agreed to take the test. Holmes' January 18, 1993 test showed the
presence of cocaine at a level of 120 nanograms per 10 milligrams. However, due to concerns
regarding the chain of custody of the hair sample, Holmes was tested a second time. The
second test, conducted on January 28, 1993, found cocaine at a level of 98 nanograms per 10
milligrams.
As a result of the positive test results, San Remo terminated Holmes' employment. On
February 21, 1993, Holmes filed a claim with NESD for unemployment compensation.
Pursuant to NRS 612.385, NESD denied Holmes' claim because she was terminated for
misconduct. Holmes appealed the denial of her unemployment benefits. NESD's appeals
referee and the Board of Review affirmed the denial of Holmes' claim.
On September 9, 1993, Holmes filed a petition for judicial review. On July 29, 1994, the
district court reversed the Board of Review's decision to deny Holmes' claim. In its findings
of fact and conclusions of law, the district court stated that an employee failing an
employee's drug screen, absent any corroborating evidence of on-or-off-duty [sic] drug
related activity, is not misconduct connected with work disqualifying a claimant like
[Holmes] from unemployment insurance benefits. (Emphasis added.) The district court
further held that there is no substantial, credible, and reliable evidence in the whole record
that [Holmes] . . . used cocaine in the 90-day period preceding the dates [San Remo]
administered random hair drug screens."
__________

1
The Supreme Court of New York succinctly stated that [t]he theory behind the [RIA] test is that cocaine
fossilizes in the user's hair as it grows. Therefore, the test could purportedly indicate use of cocaine several
months prior to the test (unlike blood and urine tests which only determine ingestion within days of the test).
Burgel v. Burgel, 533 N.Y.S.2d 735, 735 (N.Y. App. Div. 1988).
and reliable evidence in the whole record that [Holmes] . . . used cocaine in the 90-day period
preceding the dates [San Remo] administered random hair drug screens. Additionally, the
district court stated that hair drug screens, standing alone, are scientifically unreliable at
this time to sufficiently form a legal basis for disqualifying claimants for state unemployment
insurance benefits without violating the due process clause of the Fourteenth Amendment of
the U.S. Constitution. (Emphasis added.) Consequently, the district court held that NESD's
decision to deny Holmes unemployment benefits was clearly erroneous, arbitrary, capricious
and an abuse of government discretion.
San Remo and NESD appeal, arguing that (1) the district court erred in reversing the
administrative agency's decision that RIA hair testing is a valid and reasonable testing
methodology; and (2) the district court erred in reversing the administrative agency's decision
that failure of an RIA test constitutes misconduct connected with work, thereby warranting a
denial of unemployment benefits.
DISCUSSION
In the present case, we are presented with two questions: first, whether the results of
Holmes' drug test constitute substantial evidence; and second, whether Holmes' violation of
San Remo's drug-free workplace policy constitutes misconduct pursuant to NRS 612.385.
Whether the results of Holmes' drug test constitute substantial evidence
[Headnotes 1, 2]
This court has continuously recognized that [w]hen a decision of an administrative body
is challenged, the function of this court is identical to that of the district court. It is to review
the evidence presented to the administrative body and ascertain whether that body acted
arbitrarily or capriciously, thus abusing its discretion. Gandy v. State ex rel. Div.
Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980) (citations omitted). The Gandy
court further stated that this court may not substitute its judgment for that of the agency as to
the weight of the evidence on questions of fact. Id.; see also NRS 233B.135(3).
Furthermore, this court must affirm the decision of the administrative agency on questions of
fact if the decision is supported by substantial evidence in the record. SIIS v. Thomas, 101
Nev. 293, 295, 701 P.2d 1012, 1014 (1985).
[Headnote 3]
Accordingly, because the present issue deals with a question of fact, our review is limited
to determining whether the appeals officer's decision was supported by substantial
evidence in the record.
fact, our review is limited to determining whether the appeals officer's decision was
supported by substantial evidence in the record.
Substantial evidence has been defined as that which a reasonable mind might accept as
adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608,
729 P.2d 497, 498 (1986) (citing Richardson v. Perales, 402 U.S. 389 (1971)).
In the present case, the appeals referee made the following findings of fact: (1) the
preponderance of the evidence establishes that hair drug testing done properly is an accepted
form of drug testing; and (2) the testimony indicates that Holmes' hair drug testing was done
properly. These findings of fact were subsequently adopted in whole by the Board of Review
in affirming the appeals referee's decision.
Although we recognize that innovative scientific technologies are always susceptible to
criticism, our review of the record indicates that the Board of Review's decision was
supported by substantial evidence. Consequently, we must reverse the district court's order
and reinstate the Board of Review's decision.
[Headnote 4]
In the present case, the appeals referee based her decision that RIA testing was an
acceptable manner of drug testing on the holding in United States v. Medina, 749 F. Supp. 59
(E.D.N.Y. 1990), the testimony of two experts, and scientific journals presented by
appellants. Considered as a whole, we conclude that this evidence satisfies this court's
definition of substantial evidence. See Hilton Hotels, 102 Nev. at 608, 729 P.2d at 498.
In Medina, the court had to determine whether RIA hair analysis was an acceptable form
of drug testing and whether a positive RIA test warranted revocation of an individual's
probation. Medina, 749 F. Supp. at 60. The Medina court stated that [a] court should take
judicial notice of the relevant body of scientific literature to assist it in evaluating advances in
scientific techniques such as RIA hair analysis. Id. at 61. The Medina court further stated
that [e]xtensive scientific writings on RIA hair analysis establishes both its reliability and its
acceptance in the field of forensic toxicology when used to determine cocaine use. Id. (citing
Arnold, Radioimmunological Hair Analysis for Narcotics and Substitutes, 25 J. Clinical
Chemistry and Clinical Biochemistry 753 (1987) (hair analysis is an effective method for
detecting narcotics); Balabanova, Brunner & Nowak, Radioimmunological Determination of
Cocaine in Human Hair, 98 Z Rechtsmed 229 (1987) (RIA hair analysis is an accurate
method for determining the presence of cocaine); Baumgartner, Baer, Hill & Blahd, Hair
Analysis for Drugs of Abuse in Parole/Probation Populations, National Institute for Justice
Final Report {grant S6-IJ-CX-0029) {study compared the results of RIA hair analysis with
urinalysis and determined that hair analysis provided more accurate detection rates);
Baumgartner, Hill & Blahd, Hair Analysis for Drugs of Abuse, 34 J.
Probation Populations, National Institute for Justice Final Report (grant 86-IJ-CX-0029)
(study compared the results of RIA hair analysis with urinalysis and determined that hair
analysis provided more accurate detection rates); Baumgartner, Hill & Blahd, Hair Analysis
for Drugs of Abuse, 34 J. Forensic Sciences 1433 (1989) (hair analysis is an effective means
for identifying drug abusers); Graham, Koren, Klein, Schneiderman & Greenwald,
Determination of Gestational Cocaine Exposure by Hair Analysis, 262 J.A.M.A. 3328 (1989)
(RIA hair analysis may remedy the disadvantages of standard blood and urine tests); Harkey
& Henderson, Hair Analysis for Drugs of Abuse in 2 Advances in Analytical Toxicology 298
(R. Baselt ed. 1989) (hair analysis can provide a more accurate history of drug use than
conventional urinalysis)). The Medina court concluded that [t]he results of the hair analysis
report are accepted as some proof that probationer violated the conditions of his probation.
Medina, 749 F. Supp. at 62.
The first expert witness San Remo presented at the hearing before the appeals referee was
Chris Berka (Berka). Berka was vice-president of marketing for Psychemedics Corporation
(Psychemedics), the company that developed RIA testing procedures, trained San Remo's
personnel and conducted the actual testing of the hair samples. Berka, who was also a
research scientist and a candidate for a Ph.D. in neurosciences at the University of California,
San Diego, testified that a recent report concluded that Psychemedics' RIA testing was 100
percent accurate in avoiding false positives on 400 blind samples submitted by an
independent quality assurance organization. San Remo's second expert witness was Dr.
Arthur McBay (McBay). McBay was a research toxicologist, a Professor Emeritus, School
of Pharmacology, and an adjunct professor, Department of Pathology, at the University of
North Carolina. Although McBay recognized the potential for inaccuracies in all drug testing
procedures, including blood and urine testing, he testified that the RIA drug testing
methodology employed by San Remo was widely accepted in the scientific community.
In addition to the plethora of articles cited by the Medina court, the record further reflects
that the appeals referee relied upon several articles from various scientific and medical
journals to support her conclusion that RIA testing was a valid and reasonable drug testing
methodology.
Although not necessary for our conclusion that the appeals referee's finding was supported
by substantial evidence, we note that our ruling is consistent with several recent cases decided
by other courts regarding the veracity of RIA test results. See Bass v. Florida Dep't of Law
Enforcement, 627 So. 2d 1321, 1322 (Fla.
Dist. Ct. App. 1993) (concluding that RIA analysis of hair is generally accepted in the
scientific community); In re Adoption of Baby Boy L, 596 N.Y.S.2d 997, 1000 (N.Y. Fam.
Ct. 1993) (concluding that the process of RIA testing in human hair, when used in
conjunction with GC/MS confirmatory testing, has been accepted by the scientific
community as a reliable and accurate method of ascertaining and measuring the use of
cocaine by human subjects.).
[Headnote 5]
We acknowledge that there are, arguably, no certainties in science. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795 (1993). Nonetheless,
we conclude that RIA testing, especially when coupled with a confirmatory GC/MS test, is
now an accepted and reliable scientific methodology for detecting illicit drug use.
Accordingly, we conclude that the administrative agency's factual finding was supported by
substantial evidence and that the district court erroneously substituted its own judgment for
that of the administrative agency regarding a question of fact. See Hilton Hotels, 102 Nev. at
607-08, 729 P.2d at 498.
Whether Holmes' violation of San Remo's drug-free workplace policy constitutes misconduct
Pursuant to NRS 612.385, a person is ineligible for unemployment benefits if he has
engaged in misconduct.
2
This court has stated that
an employee is guilty of misconduct connected with his work when he deliberately
violates a company rule reasonably designed to protect the legitimate business interests
of his employer, or when his acts or omissions are of such a nature or so recurrent as to
manifest a willful disregard of those interests and the duties and obligations he owes his
employer.
Clevenger v. Employment Security Dep't, 105 Nev. 145, 150, 770 P.2d 866, 868 (1989)
(quoting Branch v. Virginia Employment Comm'n, 249 S.E.2d 180, 182 (Va. 1978)).
__________

2
Specifically, NRS 612.385 states that
[a] person is ineligible for [unemployment] benefits for the week in which he has filed a claim for
benefits, if he was discharged from his last or next to last employment for misconduct connected with his
work, and remains ineligible until he earns remuneration in covered employment equal to or exceeding
his weekly benefit amount in each of not more than 15 weeks thereafter as determined by the
administrator in each case according to the seriousness of the misconduct.
[Headnote 6]
This court has indicated that when analyzing the concept of misconduct, the trier of fact
must consider the legal definition in context with the factual circumstances surrounding the
conduct at issue. Garman v. State, Employment Security Dep't, 102 Nev. 563, 565, 729 P.2d
1335, 1336 (1986). This court has stated that [q]uestions of statutory interpretation are
subject to de novo review by this court on appeal. SIIS v. Snyder, 109 Nev. 1223, 1227, 865
P.2d 1168, 1170 (1993). However, an agency's conclusions of law which are closely related
to the agency's view of the facts are entitled to deference and should not be disturbed if they
are supported by substantial evidence. SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218,
220 (1992).
In the present case, the appeals referee determined that Holmes' failure of her RIA
screening and GC/MS confirmatory test constituted misconduct pursuant to NRS 612.385,
thereby warranting a denial of her unemployment benefits. Although this court has never
specifically addressed the present issue, we have, on several occasions, examined employers'
efforts to ensure that their employees are drug-free. See Blankenship v. O'Sullivan Plastics
Corp., 109 Nev. 1162, 866 P.2d 293 (1993); Clevenger, 105 Nev. at 145, 770 P.2d at 866;
Fremont Hotel v. Esposito, 104 Nev. 394, 760 P.2d 122 (1988).
In Blankenship, an at-will employee was terminated for refusing to sign a substance abuse
employee agreement. Blankenship, 109 Nev. at 1163, 866 P.2d at 293. The employee
contended that a provision in the agreement violated his constitutional rights against
self-incrimination and was, therefore, in violation of the public policy exception to the at-will
employment doctrine. Id. at 1163, 866 P.2d at 294. We affirmed the propriety of the
employee's dismissal, which was based solely on his noncompliance with company policy,
i.e., refusing to sign the [a]greement. Id. at 1163-64, 866 P.2d at 294. The Blankenship court
stated that we are unaware of any prevailing public policy against employers seeking to
provide safe and lawful working conditions through testing programs designed to identify and
eliminate the use of illicit drugs and alcohol. Id. at 1166, 866 P.2d at 295.
In Clevenger, an employee who was involved in an industrial accident was ordered, per
company policy, to submit to a drug screening. Clevenger, 105 Nev. at 147, 770 P.2d at 867.
The results of the drug screening were positive, showing the presence of THC metabolites, an
element of marijuana. Id. The employee was later allowed to return to work, subject to
random drug tests. Id. at 148, 770 P.2d at 867. The results from a subsequent random drug
test were positive, and the employee was terminated. Id. The employee's request for
unemployment benefits was denied by NESD because she was terminated for misconduct
within the meaning of NRS 612.3S5.
denied by NESD because she was terminated for misconduct within the meaning of NRS
612.385. Id. In affirming the denial of the employee's unemployment benefits, due to her
misconduct connected with work, we stated:
When off-the-job conduct violates an employer's rule or policy, such as prohibiting the
use of marijuana, an analysis must be made to determine if the employer's rule or policy
has a reasonable relationship to the work to be performed; and if so, whether there has
been an intentional violation or willful disregard of that rule or policy.
Id. at 150, 770 P.2d at 868.
In Fremont Hotel, an employer suspected an employee of being under the influence and
ordered her to undergo an immediate drug test. Fremont Hotel, 104 Nev. at 395, 760 P.2d at
122-23. When the employee refused to undergo the drug test, the employee was terminated.
Id. at 395, 760 P.2d at 122. The Board of Review subsequently denied the employee's
unemployment benefits because she was fired for misconduct, i.e., her refusal to take an
immediate drug test. Id. at 395, 760 P.2d at 123. We affirmed the Board of Review's decision
to deny unemployment benefits to the employee because she was discharged for misconduct
pursuant to NRS 612.385. Id. at 398, 760 P.2d at 124. We stated that [m]isconduct may be
established by a deliberate violation or disregard on the part of the employee of standards of
behavior which his employer has the right to expect.' Id. at 397, 760 P.2d 123-24 (quoting
Barnum v. Williams, 84 Nev. 37, 41, 436 P.2d 219, 222 (1968)); see also Lellis v. Archie, 89
Nev. 550, 553, 516 P.2d 469, 470-71 (1973) (concluding that misconduct is generally
understood as any improper conduct or behavior).
Admittedly, the facts of the cases described above are somewhat different from the facts of
the present case. However, we conclude that the cases illustrate this court's general
philosophy regarding illicit drugs in the workplace: employers have compelling reasons, both
economic and social, to test their employees for drugs.
[Headnote 7]
We conclude that San Remo's drug-free policy had a reasonable relation to the work
performed by Holmes. The record indicates that Holmes was entrusted with San Remo's
computer system, its Money Club and oftentimes handled large amounts of San Remo's cash.
Additionally, Holmes' job duties included a substantial amount of personal interaction with
San Remo's guests. Accordingly, we conclude that San Remo had a justifiable reason for
demanding that Holmes refrain from using cocaine.
We further note that Holmes intentionally violated San Remo's drug-free workplace
policy. Holmes was given ninety days notice that she would be tested for drug use. The
ninety-day warning allowed Holmes the opportunity to comply with the company policy, had
she abstained from using cocaine. Yet, the RIA screening and GC/MS test revealed that
Holmes used cocaine within the preceding ninety-day period. Accordingly, we conclude that
Holmes' ingestion of cocaine within that ninety-day period was an intentional and willful
violation of a valid and reasonable company policy.
Based upon our earlier conclusion that RIA testing coupled with a confirmatory GC/MS
test is a valid drug-testing methodology, we conclude that Holmes' ingestion of cocaine,
subsequently proven by the RIA screening and confirmatory GC/MS test, constitutes
misconduct within the definition of NRS 612.385. Therefore, we conclude that the appeals
referee's conclusion of law should not have been disturbed by the district court because it was
amply supported by evidence that Holmes was terminated for misconduct due to her violation
of San Remo's drug-free workplace policy.
We have considered Holmes' other contentions on appeal and conclude that they are
without merit.
CONCLUSION
For the reasons stated above, we reverse the district court's order reversing the Board of
Review's decision and reinstate the Board of Review's decision to deny Holmes
unemployment benefits.
____________
112 Nev. 285, 285 (1996) Clark Co. School Dist. v. Harris
CLARK COUNTY SCHOOL DISTRICT, Appellant, v. FLETCHER HARRIS, Respondent.
No. 26489
April 3, 1996 913 P.2d 1268
Appeal from an order of the district court granting declaratory relief. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Teacher sought declaration that he became postprobationary employee following service
with county school district for one calendar year and other declaratory relief. The district
court granted declaratory relief, and district appealed. The supreme court held that: (1)
statutory procedures governing management of personnel matters by school districts are
ambiguous regarding how teacher's 93 days of service during one school year would
impact teacher's employment status; {2) under statutory procedures governing
management of personnel matters by school districts, procedures for elevating employee
who had 93 days of service during one school year and other temporary teachers to
postprobationary status should mirror procedures established for annual probationary
employees; and {3) employee was not entitled to postprobationary status.
how teachers 93 days of service during one school year would impact teacher's employment
status; (2) under statutory procedures governing management of personnel matters by school
districts, procedures for elevating employee who had 93 days of service during one school
year and other temporary teachers to postprobationary status should mirror procedures
established for annual probationary employees; and (3) employee was not entitled to
postprobationary status.
Reversed.
Donald H. Haight, General Counsel, and Stephanie A. Barker, Las Vegas, for Appellant.
Dyer, Lawrence & Cooney and Leigh C. O'Neill, Carson City, for Respondent.
1. Schools.
Statutory procedures governing management of personnel matters by school districts are ambiguous regarding how teacher's 93
days of service during one school year would impact teacher's employment status. NRS 391.005.
2. Statutes.
When statute is ambiguous, district court construes it in light of legislative intent, reason and public policy.
3. Schools.
Legislative intent behind statutory procedures governing management of personnel matters by school districts is to provide
efficient procedure for finding and employing qualified teachers and to protect qualified teachers from arbitrary decisions regarding
their continued employment. NRS 391.005, 391.3125(1).
4. Schools.
Under statutory procedures governing management of personnel matters by school districts, procedures for elevating employee
who had 93 days of service during one school year and other temporary teachers to postprobationary status should mirror procedures
established for annual probationary employees. NRS 391.005.
5. Schools.
Under statutory procedures established for elevating annual probationary employees to postprobationary status, employee who had
93 days of service during one school year was not entitled to postprobationary status where teacher's notice of reemployment was based
on only one performance evaluation. NRS 391.3197(3).
OPINION
Per Curiam:
Respondent Fletcher Harris (Harris) and appellant Clark County School District (CCSD) entered into a written contract for
employment on February 15, 1991. CCSD agreed to employ Harris as a teacher for the second semester of the 1990-91
school year.
Harris as a teacher for the second semester of the 1990-91 school year. On November 6,
1991, Harris and CCSD entered a second written contract for employment for the 1991-92
school year. On April 22, 1992, Harris received a notice of non-reemployment of a
probationary employee from CCSD. CCSD then terminated Harris at the end of the 1991-92
school year.
On November 16, 1992, Harris filed a request for declaratory relief with the district court.
Harris requested that the district court declare that (1) Harris became a postprobationary
employee on February 15, 1992; (2) when CCSD terminated Harris, CCSD violated the
provisions of NRS chapter 391; and (3) Harris was entitled to the procedural protections
afforded to postprobationary employees. On July 25, 1994, the district court granted Harris'
request for declaratory relief.
CCSD raises three contentions in this appeal. First, CCSD contends that the district court
erroneously determined that Harris was a postprobationary employee. Second, CCSD
contends that res judicata barred Harris from requesting declaratory relief. Third, CCSD
contends that Harris should be equitably estopped from asserting that he was a
postprobationary employee.
We conclude that the district court improperly ruled that Harris was a postprobationary
employee. Based on this conclusion, we do not address CCSD's second and third contentions
in this opinion.
FACTS
Harris and CCSD entered into a written contract for employment that was entitled
Probationary Contract Between Employee and Trustees. Pursuant to the agreement, CCSD
agreed to employ Harris as a teacher for ninety-three days during the second semester of the
1990-91 school year. On April 15, 1991, Harris received a notice of reemployment from
CCSD, informing Harris that CCSD would employ him during the 1991-92 school year. On
November 6, 1991, Harris and CCSD entered into a written contract for employment for the
1991-92 school year. The contract was entitled Probationary Contract Between Employee
and Trustees and specified that Harris would provide 184 days of service.
On April 22, 1992, Harris received a notice of non-reemployment of a probationary
employee from CCSD, alerting Harris that CCSD would not employ him during the 1992-93
school year. CCSD terminated Harris at the end of the 1991-92 school year by complying
with the procedures established by NRS chapter 391 for the termination of a probationary
employee, not a postprobationary employee.
On September 14, 1992, Harris filed a complaint against CCSD requesting the district
court to compel arbitration.
CCSD requesting the district court to compel arbitration. Harris claimed that as a member of
the Clark County Classroom Teacher's Association (CCCTA), he was entitled to arbitrate
any grievance that arose between CCSD and himself. CCSD opposed Harris' complaint,
arguing that the right to arbitrate grievances contained in CCCTA's collective bargaining
agreement extended to only postprobationary teachers, and Harris was not a postprobationary
teacher. On November 3, 1992, the district court denied Harris' request to compel arbitration.
On November 16, 1992, Harris filed a request for declaratory relief with the district court.
After Harris filed a motion for a judgment on the pleadings and CCSD filed a motion for
summary judgment, the district court conducted a hearing. On July 25, 1994, the district court
entered two orders. In an order granting Harris' motion for judgment on the pleadings, the
district court granted the declaratory relief requested by Harris. In an order denying CCSD's
request for summary judgment, the district court ruled that CCSD failed to establish the
requisite elements of equitable estoppel.
DISCUSSION
Harris argues that his service with CCSD for a calendar year automatically vested him
with postprobationary status pursuant to the relevant provisions of NRS chapter 391. The
district court ruled that Harris became a postprobationary employee on or about February 15,
1992, one calendar year after he was hired as a probationary employee.
NRS chapter 391 establishes procedures that govern the management of personnel matters
by school districts. A postprobationary employee is defined as a teacher who has completed
the probationary period described in NRS 391.3197 and has received a notice of
reemployment. NRS 391.311(5). A probationary employee is defined as a teacher who is
employed during the period set forth in NRS 391.3197. NRS 391.311(6).
A probationary employee is employed on an annual basis and has no right to
reemployment after the probationary contract period. NRS 391.3197(1). However, if a
probationary employee receives a notice of reemployment from the school district, that
employee is entitled to be a postprobationary employee during the following year. NRS
391.3197(3). Notices of reemployment must be in writing and must be issued by the school
district before May 1 of the school year. NRS 391.3197(2).
NRS chapter 391 also provides protections for temporary employees. An employee who is
employed for ninety school days or less, in order to replace another employee whose
employment was terminated after the beginning of a school year, can have the time served
under the temporary contract credited toward fulfilling the probationary period.
time served under the temporary contract credited toward fulfilling the probationary period.
NRS 391.3115(2).
[Headnotes 1, 2]
We conclude that NRS chapter 391 does not expressly define how Harris' ninety-three
days of service during the 1990-91 school year impacts Harris' employment status. Harris was
not employed on an annual basis during the 1990-91 school year, indicating that he was not a
probationary employee. See NRS 391.3197(1). Also, Harris' 1990-91 employment contract
specified ninety-three days of service, indicating that he was not a temporary employee. See
NRS 391.3115(2). When a statute is ambiguous, we construe it in light of legislative intent,
reason and public policy. Sheriff v. Marcum, 105 Nev. 824, 826, 783 P.2d 1389, 1390
(1989). Therefore, we must interpret NRS chapter 391 to determine what the legislature
adopting chapter 391 would intend if presented with the facts in the case at bar.
[Headnote 3]
The legislative intent behind NRS chapter 391 was twofold. First, the provisions were
intended to provide an efficient procedure for finding and employing qualified teachers. See
NRS 391.3125(1). Second, the legislature wanted to protect qualified teachers from arbitrary
decisions regarding their continued employment. See McCrackin v. Elko Cty. School Dist.,
103 Nev. 655, 747 P.2d 1373 (1987).
[Headnote 4]
The legislature clearly intended for school districts to be able to use temporary teachers.
See NRS 391.3115(2). However, NRS chapter 391 does not expressly state how a temporary
teacher should be evaluated or elevated to postprobationary status. We conclude that the
procedures for elevating Harris and other temporary teachers to postprobationary status
should mirror the procedures established for annual probationary employees because NRS
chapter 391 was intended to ensure that only qualified teachers achieve postprobationary
status.
[Headnote 5]
According to NRS 391.3125(3), performance evaluations of annual probationary
employees must be conducted no later than December 1, February 1, and April 1 of the school
year. The evaluation dates provide a system of reviews that chronologically run throughout
the school year. Further, a notice of reemployment is required to be sent before May 1. This
pattern reflects the legislature's intent to have the notice of reemployment issued after three
performance evaluations are completed.
Harris contends that he received the requisite evaluations and notice of reemployment
that entitled him to postprobationary status at the end of one calendar year.
notice of reemployment that entitled him to postprobationary status at the end of one calendar
year. On March 22, 1991, only one month after Harris began working as an industrial arts
teacher, an evaluation indicated that Harris' performance was acceptable. On April 15, 1991,
Harris received a notice of reemployment for the 1991-92 school year. On October 9, 1991, a
complaint was filed against Harris for sexual harassment; and Harris admitted he made a
hissing, not a kissing, sound toward the complainant. On November 26, 1991, a critical
evaluation of Harris was completed, noting that Harris' control over his students needed to be
improved. On January 30, 1992, a third review concluded that Harris needed to maintain
course plans and improve classroom supervision. On February 11, 1992, CCSD informed
Harris that he might not be reemployed based upon his performance and evaluations. On
March 31, 1992, CCSD reviewed Harris' performance and determined that he continued to
teach courses without lesson plans and allowed students to damage computers in his
classroom. On April 22, 1992, CCSD delivered a notice of non-reemployment to Harris.
We conclude that in order for a notice of reemployment to satisfy NRS 319.3197(3),
thereby conveying postprobationary status, the notice must be based on three performance
evaluations. The reason for this requirement is displayed by the case at bar. Harris had one
evaluation before his notice of reemployment was issued. Afterward, however, three
evaluations and one complaint revealed that Harris' abilities as a teacher were suspect. This
case displays exactly why the legislature afforded school districts one full year and three
evaluations before a reemployment decision must be made regarding a probationary
employee. Such procedures are necessary to ensure that unqualified teachers are not vested
with the protections of postprobationary status imprudently, thereby ensuring that only quality
teachers educate our youth. See NL Industries v. Eisenman Chemical Co., 98 Nev. 253, 645
P.2d 976 (1982) (holding that if the language of a statute permits, courts should construe the
statute in a manner that will not lead to an unreasonable result).
CONCLUSION
We conclude that the district court improperly ruled that Harris was a postprobationary
employee. Accordingly, we reverse the order of the district court.
___________
112 Nev. 291, 291 (1996) Jones v. Deeter
LARRY A. JONES, and SACRAMENTO LIGHTING SERVICES, Appellants, v. MARK
DEETER, dba DEETER LIGHTING, Respondent.
No. 26861
April 3, 1996 913 P.2d 1272
Appeal from an order granting summary judgment. Second Judicial District Court,
Washoe County; Mills Lane, Judge.
Employer brought action against his former employee, seeking to enforce restrictive
covenant. The district court entered summary judgment for employer, and appeal was taken.
The supreme court held that restrictive covenant prohibiting employee from competing with
employer within 100-mile radius for five years after leaving employment was per se
unreasonable and, therefore, unenforceable.
Reversed.
Thomas A. Vallas, Reno, for Appellant.
Law Office of Del Hardy, and J. T. Cardinalli, Reno, for Respondent.
1. Contracts.
Statute stating that any company who willfully does anything intended to prevent any person who left or was discharged from its
employ from obtaining employment elsewhere shall be punished is not intended to render post-employment restrictive covenants void
as against public policy. NRS 613.200.
2. Contracts.
Statute stating that any company who willfully does anything intended to prevent any person who left or was discharged from its
employ from obtaining employment elsewhere shall be punished did not operate to invalidate noncomplete agreement. Statute was not
intended to render post-employment restrictive covenants void as against public policy. NRS 613.200.
3. Contracts.
Restrictive covenant on employment will be upheld only if it is reasonably necessary to protect business and good will of
employer.
4. Contracts.
Amount of time restrictive covenant lasts, the territory it covers, and hardship imposed upon the person restricted are factors for
court to consider in determining whether such covenant is reasonable, such that it will be upheld.
5. Contracts.
Restrictive covenant prohibiting employee from competing with employer within 100-mile radius for five years after leaving his
employment was per se unreasonable and, therefore, unenforceable and thus, employee could not be found in breach of the covenant.
Although developing customer base for lighting retrofitting business was difficult, five-year duration was not reasonably necessary to
protect employer's business and placed too great a hardship upon employee.
OPINION
Per Curiam:
On February 1, 1993, respondent Mark Deeter dba Deeter Lighting (Deeter) employed
appellant Larry Jones (Jones) as an assistant in Deeter's business. Deeter is mainly a
supplier of lighting equipment such as fixtures, ballasts and bulbs for commercial and
industrial accounts. However, Deeter also performs lighting services including retrofitting,
which involves replacing an existing lighting system with another more cost-efficient,
energy-saving and technologically-advanced system.
Without professional assistance, Deeter personally drafted a non-compete agreement (also
referred to as the restrictive covenant), which Jones signed in addition to the employment
contract.
1
Pursuant to the terms of the agreement, Jones agreed not to compete with Deeter
in the lighting retrofitting business for five years within a 100-mile radius of the Reno/Sparks
area after the employment relationship terminated. As consideration for Jones's promise,
Deeter agreed to pay him 50 cents per hour in addition to a $6.50 per hour wage. If Jones did
compete by going to work with a competitor or starting his own lighting retrofit service
business, the liquidated damages clause provided that Jones would pay Deeter $50,000.
At his deposition, Deeter testified that developing a customer base for lighting retrofitting
is very difficult and therefore, he included non-compete agreements in the business's
employment contracts to prevent employees from taking customer lists and divulging
proprietary information to competitors. He further stated that he arrived at the $50,000
liquidated damages figure because it would reasonably deter someone from going to work
for a competitor.
Although the reasons why are disputed, it is undisputed that Deeter terminated Jones on
April 30, 1993, three months after Jones started his position.
__________

1
The restrictive covenant provides:
This position is one of the most vital in the company. Certain trade secrets and knowledge of the business
is exposed to the employee. It is agreed that fifty cents (.50) per hour will be given as a firm added base
in consideration for a covenant not to compete with Deeter Lighting in the Reno, Sparks area for a radius
of 100 miles for a period of five (5) years.
The employee, upon termination will not start in direct competition by starting a similar business, or by
going to work with a competitor [sic] within the 100 mile radius from the agreed amount of the time, nor
will any contact be made to Deeter customers.
Should employee do so, employee agrees to pay Deeter Lighting fifty thousand dollars ($50,000) upon
demand. All legal and attorney fees encurred [sic] enforcing this agreement will be the responsibility of
payment by the employee.
Deeter terminated Jones on April 30, 1993, three months after Jones started his position. The
next day, May 1, 1993, Jones contacted appellant Sacramento Lighting Services, Inc.
(Sacramento Lighting) regarding possible employment in the area of lighting retrofit sales.
Although they discussed an employment relationship, Jones never actually became an
employee with Sacramento Lighting. However, both Dave Scott, Vice-President of
Sacramento Lighting, and Jones agree that Sacramento Lighting authorized Jones as an
independent salesman to offer its commercial lighting products for sale.
Jones and Dave Scott discussed soliciting business in the Reno area. Jones stated that they
agreed that any existing Deeter Lighting clients should not be contacted. When Jones learned
that Sacramento Lighting had already done work for CB Commercial in the central valley of
California, he suggested that Sacramento Lighting approach CB Commercial regarding the
many properties it manages in Reno. Dave Scott authorized Jones to contact CB Commercial
regarding Old Town Mall in Reno for lighting retrofitting services on behalf of Sacramento
Lighting. Jones made some telephone calls to solicit business, but generated no business for
Sacramento Lighting. Sacramento Lighting paid Jones $750 in compensation for his efforts
and trips to and from Sacramento.
In July 1993, Deeter filed a complaint against Jones and Sacramento Lighting to enforce
the non-compete agreement, including the liquidated damages provision, and alleging
misappropriation of trade secrets. Jones filed an answer and a counter-claim against Deeter
alleging interference with a prospective economic relationship causing financial damage.
Following a hearing before the district court, Deeter obtained a preliminary injunction
enjoining Jones from violating the non-compete agreement and enjoining Sacramento
Lighting Services from employing Jones. Thereafter, Deeter and Sacramento Lighting entered
into a stipulation dismissing Sacramento Lighting from the action with prejudice.
Jones moved for summary judgment as to each of Deeter's claims for relief. Deeter filed an
opposition and a cross-motion for summary judgment. The district court entered an order
granting Deeter's motion for summary judgment. In its order, the district court found that: (1)
the covenant not to compete was reasonable and enforceable; (2) Jones had violated the terms
of the covenant; (3) the $50,000 liquidated damages provision was an amount meant to
punish Jones and instead awarded damages of $3,500; and (4) Deeter's claim for
misappropriation of trade secrets was not supported by the facts.
On appeal, Jones contends that the district court erred in enforcing the restrictive
covenant.
enforcing the restrictive covenant. Specifically, Jones argues that NRS 613.200 operates to
invalidate the covenant. While we do not agree that NRS 613.200 operates to render the
covenant unenforceable, we agree that the district court erred in enforcing the restrictive
covenant on the ground that the covenant is not reasonable under the test set forth in Hansen
v. Edwards, 83 Nev. 189, 426 P.2d 792 (1967).
Hansen is the seminal case in Nevada dealing with restrictive covenants on employment.
In Hansen, an established Reno podiatrist, Dr. Edwards, employed another doctor, Dr.
Hansen, to work with him in his practice. Id. at 191, 426 P.2d at 793. As part of his
employment contract, Hansen agreed to a post-employment covenant not to compete
restricting him from engaging in the practice of surgical chiropody within a radius of 100
miles of Reno upon termination of his employment. Id. No time limit was mentioned. Id.
After Hansen terminated his contract with Edwards, he opened his own office for the practice
of podiatry near Edwards' office. Id. Edwards sought and obtained an order for a preliminary
injunction restraining Hansen from practicing within a 100-mile radius of Reno. Hansen
appealed the order granting the preliminary injunction, arguing that the restrictive covenant
was invalid as against public policy. Id.
In Hansen, this court set forth the test for determining whether a covenant not to compete
is enforceable, stating:
An agreement on the part of an employee not to compete with his employer after
termination of the employment is in restraint of trade and will not be enforced in
accordance with its terms unless the same are reasonable. Where the public interest is
not directly involved, the test usually stated for determining the validity of the covenant
as written is whether it imposes upon the employee any greater restraint than is
reasonably necessary to protect the business and good will of the employer. A restraint
of trade is unreasonable, in the absence of statutory authorization or dominant social or
economic justification, if it is greater than is required for the protection of the person
for whose benefit the restraint is imposed or imposes undue hardship upon the person
restricted. The period of time during which the restraint is to last and the territory that is
included are important factors to be considered in determining the reasonableness of the
agreement.
Id. at 191-92, 426 P.2d at 793. After applying this test, this court concluded that the covenant
was unreasonable and modified it as follows: The circumstances of this case warrant a
confinement of the area of restraint to the boundary limits of the City of Reno and a time
interval of one year commencing February 10, 1967, the date of the injunction." Id. at
193, 426 P.2d at 793.
and a time interval of one year commencing February 10, 1967, the date of the injunction.
Id. at 193, 426 P.2d at 793.
This court rejected Hansen's argument that NRS 613.200 embodies Nevada's policy that
restrictive covenants on employment are per se invalid. Id. at 193, 426 P.2d at 794. At that
time, NRS 613.200 provided:
Any person, association, company or corporation within this state, or any agent or
officer on behalf of the person, association, company or corporation, who wilfully does
anything intended to prevent any person who for any cause left or was discharged from
his or its employ from obtaining employment elsewhere in this state shall be punished
by a fine of not more than $5,000. If a fine is imposed pursuant to this section, the costs
of the proceeding including investigative costs and attorney's fees, may be recovered by
the labor commissioner.
NRS 613.200 expresses a general policy that it is impermissible to wilfully interfere with
another person's securing of employment. After quoting this statutory language, this court
stated the following in Hansen:
A few states have statutes specifically prohibiting restraints as that with which we are
here concerned. Those statutes do not compare with NRS 613.200. We are of the
opinion that our statute is not directed to this problem. It concerns only persons who
seek employment with someone else, not those who intend self-employment.
Id. (emphasis added). Thus, in Hansen, this court distinguished between restrictive covenants
where the employee becomes self-employed and restrictive covenants where the employee
seeks employment with another employer. Id. According to this court's holding in Hansen,
the former are enforceable if reasonable and the latter are governed by NRS 613.200 and
unenforceable. We now realize that such a distinction is a misinterpretation of the law as the
Nevada Legislature has amended the statute to clarify its policy on restrictive covenants in
light of this language in Hansen. NRS 613.200 now includes the following:
2. The provisions of subsection 1 do not prohibit a person, association, company,
corporation, agent or officer from negotiating, executing and enforcing an agreement
with an employee of the person, association, company or corporation which upon
termination of the employment, prohibits the employee from:
(a) Pursuing a similar vocation in competition with or becoming employed by a
competitor of the person, association, company or corporation; or
becoming employed by a competitor of the person, association, company or
corporation; or
(b) Disclosing any trade secrets, business methods, lists of customers, secret
formulas or processes or confidential information learned or obtained during the course
of his employment with the person, association, company or corporation, if the
agreement is supported by valuable consideration and is otherwise reasonable in its
scope and duration.
(Emphasis added.) It further provides that [t]his act becomes effective upon passage and
approval.
[Headnotes 1, 2]
From the legislative history of this additional language, it is clear that the Nevada
Legislature never intended NRS 613.200 to render post-employment restrictive covenants
void as against public policy. Therefore, Jones's argument that NRS 613.200 operates to
invalidate the covenant is without merit.
[Headnotes 3-5]
The genuine issue for this court's consideration is whether the covenant in the instant case
is reasonable. A restrictive covenant on employment will be upheld only if it is reasonably
necessary to protect the business and goodwill of the employer. Hansen, 83 Nev. at 191, 426
P.2d at 793. The amount of time the covenant lasts, the territory it covers, and the hardship
imposed upon the person restricted are factors for the court to consider in determining
whether such a covenant is reasonable. Id. Here, the restrictive covenant prohibited Jones
from competing with Deeter within a 100-mile radius of Reno/Sparks for five years after
leaving Deeter's employ. After careful consideration of all the relevant factors, we conclude
that the covenant is not reasonable. Although it appears that developing a customer base for
the lighting retrofitting business is difficult, we nevertheless believe that a five-year duration
is not reasonably necessary to protect Deeter's business and places too great a hardship on
Jones. Therefore, the covenant is per se unreasonable and therefore, unenforceable.
Because the covenant is unenforceable, Jones cannot be found in breach of the covenant.
Thus, the district court erred by finding that Jones breached the agreement and awarding
Deeter $3,500 in damages. Accordingly, we need not address the merits of Jones's claim that
the district court abused its discretion in arriving at the $3,500 sum.
For the foregoing reasons, we reverse the district court's order enforcing the covenant,
finding Jones in breach, and awarding Deeter $3,500.
____________
112 Nev. 297, 297 (1996) Southern Nev. Homebuilders v. N. Las Vegas
SOUTHERN NEVADA HOMEBUILDERS ASSOCIATION, INC., DURABLE HOMES,
INC., R/S DEVELOPMENT CO., PAGEANTRY HOMES CORPORATION dba
PAGEANTRY PARADE, PAGEANTRY I Limited Partnership, PAGEANTRY IV
Limited Partnership, FALCON DEVELOPMENT CORPORATION,
Appellants/Cross-Respondents, v. CITY OF NORTH LAS VEGAS,
Respondent/Cross-Appellant.
No. 26062
April 3, 1996 913 P.2d 1276
Appeal and cross-appeal from district court order granting appellants' motion for summary
judgment and denying appellants' motion for attorney's fees. Eighth Judicial District Court,
Clark County; Sally L. Loehrer, Judge.
Homebuilders association sought declaratory and injunctive relief with respect to
ordinance imposing fee for applying for building permit. The district court granted
association's motion for summary judgment finding ordinance invalid and granted prohibitory
injunction against city, but denied association's request for attorney fees. Both sides filed
appeals. The supreme court held that: (1) ordinance was invalid under statute permitting
impact fees in a service area only to pay the cost of constructing capital improvement or
facility expansion necessitated by new development; (2) city's premature appeal of summary
judgment had no effect on trial court's jurisdiction to issue subsequent injunction; (3) trial
court had jurisdiction to issue injunction, even though association did not pray for such relief
in initial complaint, based on statute allowing supplemental relief based on declaratory
judgment; and (4) trial court did not abuse discretion in denying association's request for
attorney's fees.
Affirmed.
I.R. Ashleman, II, Crystal Bay, for Appellants/Cross-Respondents.
Richard C. Maurer, City Attorney and Mark L. Zalaoras, Chief Deputy City Attorney,
North Las Vegas, for Respondent/Cross-Appellant.
1. Zoning and Planning.
Ordinance requiring payment of a fee with applications for city building permit, and earmarking proceeds for funding of fire
protection and emergency medical services within city, was invalid under statute limiting local government's imposition of impact fees
in service area to fees that pay cost of constructing a capital improvement or facility expansion necessitated by new development,
where definitions of capital improvement" and "facility expansion" did not include services funded by
ordinance.
tal improvement and facility expansion did not include services funded by ordinance. NRS 278B.040, 278B.050, 278B.160.
Statute permitting local governments to impose, by ordinance, impact fee in a service area to pay cost of constructing capital
improvement or facility expansion necessitated by new development allows impact fees only for those projects enumerated under
definitions of capital improvement and facility expansion. NRS 278B.040, 278B.050, 278B.160.
City's notice of appeal of trial court's grant of summary judgment to homebuilder association, finding invalid an ordinance under
which city imposed special building permit fees, had no effect where notice was filed prior to entry of written judgment and prior to
resolution of all issues presented to the court; thus, trial court retained jurisdiction after city filed notice of appeal to enter injunction
prohibiting city from collecting further fees under ordinance. NRAP 3A(b)(1).
Final judgment, such as will allow appeal from trial court, is judgment that disposes of issues presented in the case. NRAP
3A(b)(1).
Trial court did not err in entering injunction against city's collecting fees under an ordinance after entering declaratory judgment
finding ordinance invalid, though party which sought declaratory judgment did not pray for injunctive relief in initial complaint, where
that party sought supplemental declaratory relief based on motion as permitted by relevant statute. NRS 30.100.
Fact that party, after receiving declaratory judgment that ordinance imposing building permit fees was invalid, sought injunctive
relief from invalid ordinance by motion rather than by petition, as specified by statute, did not make such relief inappropriate. Statute
allowed supplemental relief based on declaratory judgment whenever necessary, and relief from invalid ordinance was necessary and
proper, whether in form of petition or motion. NRS 30.100.
Trial court did not abuse discretion in denying motion for attorney's fees by party which received declaratory judgment finding
challenged ordinance invalid, as well as an injunction restraining city from collecting further revenues under ordinance, where court
concluded that award of attorney's fees would not be appropriate since city's adoption of ordinance occurred in good faith.
8. Appeal and Error; Costs.
Award of attorney's fees generally resides within discretion of district court when such fees are recoverable, and will not be
overturned in the absence of manifest abuse of discretion.
Supreme court did not consider argument that trial court erred in delaying refund of fees collected under ordinance which it
declared invalid until judgment was affirmed on appeal, where appellant cited no authority for proposition that district court was
obligated to order an immediate fund of the fees.
Supreme court need not consider assignments of error that are not supported by relevant legal authority.
OPINION
Per Curiam:
Respondent/Cross-Appellant City of North Las Vegas (City) adopted an ordinance
(Ordinance) requiring payment of a fee when an applicant applied for a City building
permit. The fee proceeds were earmarked for the funding of fire protection and emergency
medical services within the City. Appellants/Cross-Respondents Southern Nevada
Homebuilders Association (SNHBA)
1
filed a complaint for declaratory relief, asserting the
invalidity of the Ordinance, and seeking reimbursement for fees paid and payment of
attorney's fees. SNHBA successfully moved for summary judgment on grounds that the
special building permit fees constituted an unlawful tax that substantially benefited those who
were not subject to payment of the fees.
The district court subsequently entered a written judgment granting SNHBA's request for a
prohibitory injunction against the City, but denying SNHBA's request for attorney's fees and
effectively staying the reimbursement of fees collected pending appeal.
On appeal, SNHBA argues that the district court erred in denying its request for attorney's
fees and staying the refund of fees pending resolution of the City's appeal. SNHBA's position
is without merit.
On cross-appeal, the City argues that the district court erred in granting SNHBA's motion
for summary judgment, and was without jurisdiction to enter an injunction prohibiting the
City from enforcing the Ordinance pending appeal. We conclude that summary judgment was
warranted; to the extent that the City had authority to adopt the Ordinance, it was preempted
by NRS 278B. Additionally, we conclude that the district court retained jurisdiction over the
case and controversy, and appropriately prohibited the City from enforcing the Ordinance
pursuant to SNHBA's motion for supplemental relief.
FACTS
On July 7, 1993, the City adopted Ordinance No. 1089. The Ordinance was entitled Fee
for Enhancement and Expansion of Fire and Emergency Medical Services, and required a
payment of five cents per square foot of newly constructed building space upon
application for issuance of a building permit within the City.
__________

1
Other Appellants/Cross-Respondents Durable Homes, Inc., R/S Development Co., Pageantry Parade,
Pageantry I Limited Partnership, Pageantry IV Limited Partnership, and Falcon Development Corporation are
members of Southern Nevada Homebuilders Association, Inc., and will hereinafter be referred to collectively
under SNHBA.
of five cents per square foot of newly constructed building space upon application for
issuance of a building permit within the City. Proceeds from the fee would help finance a
portion of the cost for developing additional fire protection and emergency medical services
(EMS) for the people who live and work in the City of North Las Vegas, and mitigate
demands on existing fire protection and EMS resources caused by development.
SNHBA filed a complaint for declaratory relief, alleging that the Ordinance was invalid.
The complaint also sought a refund of the fees paid, together with attorney's fees.
SNHBA's motion for summary judgment was granted on July 8, 1994, and the Ordinance
was declared invalid. On July 8, 1994, the City filed a premature notice of appeal, with issues
remaining to be adjudicated. On August 23, 1994, SNHBA moved for supplemental relief,
seeking (1) a prohibitory injunction restraining the City from collecting any further revenue
under the Ordinance; (2) a refund of sums the City had collected under the Ordinance; and (3)
an award of attorney's fees as an item of compensatory damages. The district court entered a
written judgment granting SNHBA's request for a prohibitory injunction, but denying
SNHBA's request for attorney's fees, and staying SNHBA's refund pending appeal. On
October 21, 1994 the City filed an amended notice of appeal. SNHBA filed a notice of appeal
on October 28, 1994. Based upon the filing of notices of appeal subsequent to the district
court's entry of written judgment, we conclude that the appeal may go forward. See Rust v.
Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987).
As previously noted, SNHBA contends on appeal that the district court erred in not
granting attorney's fees and in staying the return of funds until appeal is finally determined.
On cross-appeal, the City maintains that the district court erred in granting SNHBA's motion
for summary judgment and in entering an injunction prohibiting the City from enforcing the
Ordinance pending appeal.
DISCUSSION
Motion for Summary Judgment
[Headnote 1]
The City contends that NRS 278B.160 is not exclusive, but allows impact fees to be
assessed for projects other than those enumerated. We disagree.
NRS 278B.160 provides, in pertinent part:
A local government may by ordinance impose an impact fee in a service area to pay
the cost of constructing a capital improvement or facility expansion necessitated by and
attributable to new development.
Impact fee is defined as a charge imposed by a local government on new development to
finance the cost of a capital improvement or facility expansion by and attributable to the new
development. NRS 278B.050. Capital improvement is defined as
1. Drainage project;
2. Sanitary sewer project;
3. Storm sewer project;
4. Street project; or
5. Water project.
NRS 278B.020. Facility expansion is defined as any natural and artificial watercourses,
water diversion and water storage facilities, including all appurtenances and incidentals
necessary for any such facilities. NRS 278B.040.
[Headnote 2]
We conclude that the language of NRS 278B is clear on its face, allowing impact fees only
for the enumerated projects. However, even if NRS 278B were considered ambiguous, the
legislative history of the statute clearly reflects an intent to restrict the projects for which
impact fees could be imposed. See Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260,
1262 (1993) (legislative intent is the controlling factor in statutory interpretation); Sheriff v.
Marcum, 105 Nev. 824, 826, 783 P.2d 1389, 1390 (1989) (a statute that is ambiguous should
be construed in light of the legislative intent, reason and public policy).
Several statements made during committee hearings clearly indicate that the language of
NRS 278B was intended to limit the projects for which impact fees could be imposed. In the
March 30, 1989 hearing, a specific question was asked concerning whether the impact fees
would cover a fire station. William Thomas, who had been charged with advising the
legislature on the purpose of the bill, answered that he believed fire and police were excluded.
Minutes of the Assembly Committee on Government Affairs 65th Sess. 12 (1989). Moreover, a
question was asked whether there would be anything in addition to roads and underground to
be covered by impact fees. Thomas responded, stating, according to the way the enabling
legislation was written, in what he [Thomas] believed to be section 3 [now NRS 278B.020],
that was the limiting factor to determine exactly what impact fees could be used for. Id.
(emphasis added). Again, in the April 14, 1989 Minutes of Assembly Committee on
Government Affairs, Assemblywoman Myrna Williams clearly stated the intent of the
legislation:
Throughout [the] country, there seems to have been an adverse relationship between
private developers and local governments Local governments, who are struggling to
meet their infrastructure needs, look upon new development as a source of funding
to take care of their infrastructure needs.
governments. Local governments, who are struggling to meet their infrastructure needs,
look upon new development as a source of funding to take care of their infrastructure
needs. Private development claims they are getting hit too hard and object. Problem
ends up in court. Decision has to be made who pays for infrastructure.
AB 372 [NRS 278B] provides for a predictable amount of impact fees on new
development. It will help to keep cost of new development down. At [the] same time, it
will allow local governments to have a predictable formula in source of funding for
basic infrastructure needs. . . .
Subcommittee's intention was to work out compromise on both sides in an effort to
keep cost as low as possible while allowing local governments to impose impact fees to
fund infrastructure that would be necessary as a result of new development.
Id. at 41.
The above quotes provide examples of a general understanding expressed at the hearing, to
the effect that the list of projects subject to impact fees was to be exclusive.
Jurisdiction
[Headnotes 3, 4]
The City argues that it had already filed a notice of appeal when the district court entered
the injunction prohibiting the City from enforcing the Ordinance, thus leaving the district
court without jurisdiction to enter the injunction. We do not agree. The City filed the notice
of appeal after the court granted SNHBA's motion for summary judgment; however, the
motion for summary judgment only resolved the issue of the validity of the Ordinance. NRAP
3A(b)(1) states: An appeal may be taken: (1) From a final judgment in an action or
proceeding commenced in the court in which the judgment is rendered. This court has
defined a final judgment, as a judgment that disposes of the issues presented in the case . .
. determines the costs, and leaves nothing for the future consideration of the court. Magee v.
Whiteacre, 60 Nev. 202, 205, 96 P.2d 201, 202 (1939) (emphasis added). Also, NRAP 4(a)(1)
states, A notice of appeal filed after the oral pronouncement of a decision or order but before
the entry of a written judgment or order shall have no effect. In the present case, the notice
of appeal was filed by the City prior to entry of the written judgment and prior to the
resolution of all issues presented to the court; therefore, the premature appeal had no effect,
and the district court retained jurisdiction.
[Headnote 5]
The City next contends that the district court erroneously entered the injunction, since no
prayer for such relief was made in SNHBA's initial complaint.
entered the injunction, since no prayer for such relief was made in SNHBA's initial
complaint. However, it is not necessary that such a prayer for injunctive relief be included in
the initial complaint, since NRS 30.100 specifically allows supplemental relief based upon a
declaratory judgment. The statute provides in pertinent part:
Further relief based on a declaratory judgment or decree may be granted whenever
necessary or proper. The application therefor shall be by petition to a court having
jurisdiction to grant relief.
SNHBA sought supplemental declaratory relief based upon a motion for such relief as
permitted by the referenced statute. The district court thus had jurisdiction to provide the
declaratory relief sought by SNHBA.
[Headnote 6]
The City nevertheless contends that supplemental relief was inappropriate because NRS
30.100 requires a petition for such relief, and SNHBA sought the injunction by motion.
However, the City cites no authority for such a meaningless distinction within the context and
purpose of NRS 30.100. The statute allows supplemental relief based upon a declaratory
judgment whenever necessary, and relief from the previously declared invalid Ordinance
was necessary and proper, whether in the form of a petition or a motion. This court has never
hesitated to look to the substance of the relief sought, rather than the label attached to it.
Attorney's Fees
[Headnotes 7, 8]
SNHBA contends that the district court erred in not granting SNHBA's motion for
attorney's fees. An award of attorney's fees generally resides within the discretion of the
district court when such fees are recoverable, and will not be overturned in the absence of a
manifest abuse of discretion. County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492,
653 P.2d 1217, 1220 (1982).
In the present case, the court heard SNHBA's arguments in favor of attorney's fees, but
concluded that since the City's adoption of the Ordinance occurred in good faith, an award of
attorney's fees would not be appropriate. We do not see an abuse of discretion in the court's
decision.
Return of Funds
[Headnotes 9, 10]
SNHBA contends that the district court erred in delaying a refund of the fees until the
judgment was affirmed on appeal.
However, SNHBA cites no authority for the proposition that the district court was obligated
to order an immediate refund of the fees. This court need not consider assignments of error
that are not supported by relevant legal authority, and we therefore decline to review this
issue. Sheriff v. Gleave, 104 Nev. 496, 498, 761 P.2d 416, 418 (1988).
CONCLUSION
For the reasons discussed above, we affirm the judgment of the district court in its entirety.
____________
112 Nev. 304, 304 (1996) Homick v. State
STEVEN MICHAEL HOMICK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26572
April 3, 1996 913 P.2d 1280
Appeal from a district court's order denying a post-conviction petition for a writ of habeas
corpus in a death penalty case. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
After his convictions for three counts of murder and sentence of death were affirmed, 108
Nev. 127, 825 P.2d 600 (1992), petitioner sought writ of habeas corpus. The district court
denied petition, and petitioner appealed. The supreme court held that: (1) petitioner did not
receive ineffective assistance of trial counsel; (2) evidence which petitioner contended was
improperly withheld by prosecution was not material and did not give rise to Brady violation;
and (3) cumulative effect of errors did not require reversal.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
1. Criminal Law.
In order to obtain relief on claim of ineffective assistance of counsel, defendant must demonstrate that his trial counsel's
representation fell below objective standard of reasonableness, and must show that counsel's deficient performance prejudiced defense
to such a degree that, but for counsel's ineffectiveness, results of trial would probably have been different. U.S. Const. amend. 6.
2. Criminal Law.
In assessing claim of ineffective assistance of counsel, counsel's performance is measured by objective standard of reasonableness,
which takes into consideration prevailing professional norms and totality of circumstances. U.S. Const. amend. 6.
3. Criminal Law.
While trial counsel, in order to provide effective assistance, must make rational and informed decisions on strategy and tactics
based on adequate investigation and preparation, there is presumption that trial counsel was effective and fully discharged his duties,
and defendant can only overcome presumption by strong and convincing proof of contrary. U.S. Const. amend. 6.
4. Criminal Law.
Error by counsel, even if professionally unreasonable, does not warrant setting aside judgment of criminal proceeding if error had
no effect on judgment, and if it is easier to dispose of claim of ineffective assistance of counsel on ground of lack of sufficient
prejudice, that course should be followed. U.S. Const. amend. 6.
5. Criminal Law.
Defendant was not prejudiced by counsel's failure to locate or call as witness individual who defendant contended would have
been instrumental in establishing alibi, and defendant was not entitled to relief based on ineffective assistance of counsel, where theory
which would have been advanced by witness was presented at trial and jury had chance to evaluate theory, which it ultimately rejected.
6. Criminal Law.
Counsel acted reasonably in impeaching witness, who defendant contended had been involved in murder for which defendant was
being prosecuted and who gave testimony which incriminated defendant, and failure of counsel to further explore connection between
witness and associate of witness who had since been murdered did not constitute ineffective assistance of counsel, where counsel
questioned witness about variety of crimes he had committed with both defendant and murdered associate in attempt to impeach
witness and further evidence which implicated witness was not available until after trial. U.S. Const. amend. 6.
7. Criminal Law.
Court in deciding claim of actual ineffectiveness of counsel must judge reasonableness of counsel's challenged conduct on facts of
particular case, viewed as of time of counsel's conduct. U.S. Const. amend. 6.
8. Criminal Law.
Failure of counsel to interview or call at trial as witnesses associates of individual, who defendant contended had been involved in
murder for which defendant was being prosecuted and who had been murdered prior to defendant's trial, represented reasonable tactical
decision and did not constitute ineffective assistance of counsel where evidence as to which defendant claimed witness could have
testified could not have been known by counsel at time of trial and witness who defendant named as one who should have been called
was adjudged habitual criminal. U.S. Const. amend. 6.
9. Criminal Law.
Failure of counsel to call as witnesses two individuals who defendant contended could have impeached witness who gave
incriminating testimony that defendant had met him and confessed crime did not constitute ineffective
assistance of counsel where counsel and his investigator spoke with individuals to investigate possibility of
having them testify and there was no evidence that either of individuals could have proved that meeting
had not actually occurred.
testimony that defendant had met him and confessed crime did not constitute ineffective assistance of counsel where counsel and his
investigator spoke with individuals to investigate possibility of having them testify and there was no evidence that either of individuals
could have proved that meeting had not actually occurred. U.S. Const. amend. 6.
Under Brady, it is violation of due process for prosecutor to withhold exculpatory evidence, and his motive for doing so is
immaterial. U.S. Const. amend. 14.
11. Criminal Law.
Under Brady, prosecutor must disclose evidence favorable to accused when that evidence is material either to guilt or to
punishment. U.S. Const. amend. 14.
12. Criminal Law.
In determining whether evidence should be considered Brady material which prosecution is required to disclose, court should look
at elements of suppression by prosecution after request for evidence by defense, evidence's favorable character for defense, and
materiality of evidence. U.S. Const. amend. 14.
13. Criminal Law.
Brady violation which occurs after defense has made specific request for allegedly exculpatory evidence is material, and will
entitle defendant to relief, if there exists reasonable possibility that claimed evidence would have affected judgment of trier of fact, and
thus outcome of trial. U.S. Const. amend. 14.
14. Criminal Law.
Handwritten notes of FBI agent regarding telephone call between agent and operator of citizens' band (CB) radio shop, who was
acting as FBI informant, in which operator of shop indicated that defendant had been with him at shop earlier in morning on day that
murders for which defendant was being prosecuted were committed were not material to defense, and failure of prosecution to turn
over notes after request by defendant did not constitute Brady violation, where testimony was given regarding defendant's whereabouts
on day of murder, and notes supported State's time frame for defendant's actions on day of murders. U.S. Const. amend. 14.
15. Criminal Law.
Notes of FBI agents regarding surveillance of defendant on day of murders for which defendant was prosecuted were not material
to defense, and failure of prosecution to turn over notes did not constitute Brady violation, where defendant was not under surveillance
until after 2:00 P.M. on day of murders and notes would not provide defendant with any exculpatory evidence as murders had occurred
before 12:00 noon on day in question. U.S. Const. amend. 14.
16. Criminal Law.
If cumulative effect of errors committed at trial denies appellant his right to fair trial, reviewing court will reverse conviction.
17. Criminal Law.
Relevant factors to consider in deciding whether error is harmless or prejudicial include whether issue of innocence or guilt is
close, quantity and character of error, and gravity of crime charged.
18. Criminal Law.
Reviewing court must determine that any errors are harmless beyond reasonable doubt in order to affirm conviction on basis that
error was harmless.
was harmless. Evidence against defendant must be substantial enough to convict him in otherwise fair trial, and it must be said without
reservation that verdict would have been the same in the absence of error.
OPINION
Per Curiam:
On December 11, 1985, Bobbie Jean Tipton, her maid and a deliveryman were murdered at the Tipton house. Each of the victims died
from gunshot wounds to the head or chest. Additionally, the Tiptons' floor safe, containing numerous pieces of unique and expensive
jewelry, was ransacked and the jewelry stolen.
A couple of days after the murders, appellant Steven Michael Homick became a suspect. He was indicted for the murders in May of
1986 and convicted and sentenced for commission of the murders in May of 1989. His indictment and convictions stemmed from, first,
evidence of Homick's possession of a substantial amount of the stolen Tipton jewels. Additionally, Timothy Catt, who worked with Homick
at the Tower of Jewels in Las Vegas, testified that Homick confessed to him that he had committed the murders.
After his conviction, Homick filed a direct appeal. This court affirmed his conviction. Homick then filed a post-conviction petition for
a writ of habeas corpus with the district court. The district court denied his petition. Homick appealed the denial of his petition to this
court. We now affirm the district court's denial of Homick's petition, concluding that Homick's assertions of error lack merit.
FACTS
On May 21, 1989, Homick was convicted of three counts of first degree murder with use of a deadly weapon, robbery with use of a
deadly weapon, and burglary. The convictions stemmed from the deaths of Bobbie Jean Tipton, her maid, Marie Bullock, and a
deliveryman, James Meyers. Homick was sentenced to death. On direct appeal, his convictions and sentence were affirmed in Homick v.
State, 108 Nev. 127, 825 P.2d 600 (1992).
David Tipton, Bobbie Jean's husband, returned home from his real estate office at approximately 1:30 p.m. on December 11, 1985. He
had been unable to reach his wife between 11:00 a.m. and 12:00 p.m. to confirm lunch plans. When he arrived at his residence, he observed
a Michael's Gourmet Steaks and Seafood delivery truck with the engine running. When he entered the house, he discovered the body of
Meyers near the door to the master bedroom.
master bedroom. Tipton immediately called the police. While talking to them, he discovered
the bodies of his wife and the maid lying on the floor in the master bedroom closet. The
bedroom had been ransacked. A floor safe in the closet had been opened. Empty jewelry
boxes were strewn about the floor of the closet and the bedroom. Autopsies revealed that all
three victims died as a result of gunshot wounds. All the wounds on the women were
consistent with those made by .22 caliber bullets, as were two of the three wounds on Meyers.
A firearms expert determined that all the .22 caliber bullets had come from the same weapon.
At trial, substantial evidence was presented regarding the time of the murders and
Homick's movements during that time frame. Patricia Ann Lundy, the personal secretary to
Bobbie Jean Tipton, called the Tipton residence at 10:30 a.m. the day of the murders. Bobbie
Jean Tipton answered the phone and insisted that Lundy not come by the Tipton house that
morning. At approximately the same time, Michael Carder, a United Parcel Service
deliveryman, arrived at the Tipton residence to deliver three packages. When no one
answered the door, he left the packages near the door. As Carder pulled away, he saw Mrs.
Tipton, dressed in a white robe, open the door and pick up the packages. He also specifically
recalled seeing a Toyota four wheel drive pickup truck with a camper shell and brush guard in
the driveway. He recalled that the truck was not idling.
At approximately 10:20 a.m., James Meyers, a deliveryman for Michael's Gourmet Steaks
and Seafood was en route to the Tipton residence. Although his delivery truck was also a
white Toyota, it did not have a camper shell or brush guards on it. It did, however, have signs
for the company on its sides. At approximately five or ten minutes before noon, Joseph
Forgue of Las Vegas Pest Control serviced the Tipton residence. He saw two vehicles in the
driveway, Marie Bullock's Ford Mustang, and a white Toyota pickup with the motor running.
Bullock had apparently arrived at the Tipton residence shortly before 11:00 a.m. the day of
the murders. Forgue was at the Tipton residence for about ten minutes, and did not notice
anything unusual except for the idling white truck.
On the morning of the murder, at approximately 9:45 a.m., Homick drove Susan Hines and
Lawrence Ettinger to the office of attorney Stewart Bell. Hines and Ettinger met with Bell for
approximately thirty to forty minutes and then called Homick on his beeper. Homick arrived
at Bell's office approximately five minutes later. Homick then dropped Hines and Ettinger off
at Ettinger's residence and left.
Michael Dominguez, a longtime friend of Homick's, testified that in July of 1985, Homick
asked him to kill Craig Meraldo because Meraldo owed Homick money.
because Meraldo owed Homick money. Dominguez's murder of Meraldo would settle a drug
debt between Dominguez and Homick. Dominguez borrowed a .22 caliber Ruger gun with a
silencer to kill Meraldo. Although Dominguez did not actually kill Meraldo, he did discharge
approximately seven shots into the Meraldo residence. Dominguez returned the gun to
Homick the next day. It was determined by a firearms expert that the expended cases found
outside the Meraldo residence matched the eight .22 caliber cases removed from the Tipton
residence. Additionally, Dominguez testified that sometime during the afternoon of the day of
the murders he met Homick at Ettinger's house and saw on the floor of Homick's station
wagon the same .22 caliber Ruger he had used to try to kill Meraldo.
Timothy Catt, who worked with Homick, testified that in late January of 1986, Homick
told him that he had committed the murders and gave Catt details of the murders. Both
worked at the Tower of Jewels where Mrs. Tipton had her jewelry cleaned and appraised. In
January of 1986, before Homick confessed his involvement in the murders, Homick also
showed Catt numerous pieces of jewelry that Catt recognized as Mrs. Tipton's.
Other evidence was also presented at trial that linked Homick to the jewelry stolen from
the Tipton household. This included testimony regarding several instances in which Homick
was in possession of the Tipton jewelry and seeking to have it appraised or to have
identifying numbers ground off the jewelry. Conversations recorded via wiretaps placed on
Homick's phone in January of 1986 also revealed that Homick and his family knew about the
stolen jewelry and that they were actively trying to cover it up.
Homick was indicted for the Tipton murders in May of 1986. At the time of his
indictment, Homick was in custody in California for two unrelated murders, the Woodman
murders. On May 21, 1989, Homick was convicted of three counts of first degree murder
with use of a deadly weapon, robbery with use of a deadly weapon, and burglary, and
sentenced to death.
On May 14, 1993, Homick filed a post-conviction petition for a writ of habeas corpus with
the district court. On November 14, 1993, following an evidentiary hearing, the district court
denied Homick's petition.
DISCUSSION
Homick's counsel was not ineffective in preparing for trial and obtaining and presenting
necessary evidence at trial.
Homick argues that he was denied effective assistance of counsel during his trial. He cites
four specific instances where his counsel was allegedly so ineffective as to warrant his
conviction being vacated.
being vacated. The four specific errors Homick cites are: (1) failure to call Raymond Jackson
as a witness; (2) failure to develop the Dominguez-Danielson connection as a theory for the
defense; (3) failure to interview or call to trial any of Dominguez's associates for information
regarding Dominguez's connection to the Tipton murders; and (4) failure to impeach Timothy
Catt. At the evidentiary hearing, Homick's attorneys testified that the alleged mistakes in
Homick's defense were prejudicial, warranting an overturning of Homick's conviction.
[Headnotes 1, 2]
Strickland v. Washington, 466 U.S. 668, 687 (1984), and its local progeny govern
ineffective assistance of counsel claims. In order to obtain relief on a claim for ineffective
assistance of counsel, the petitioner must be able to satisfy two tests. First, appellant must
demonstrate that his trial counsel's representation fell below an objective standard of
reasonableness. Davis v. State, 107 Nev. 600, 601, 817 P.2d 1169, 1170 (1991). Second,
appellant must show that counsel's deficient performance prejudiced the defense to such a
degree that, but for counsel's ineffectiveness, the results of the trial would probably have been
different. Id. at 601-02, 817 P.2d at 1170. Counsel's performance is measured by an
objective standard of reasonableness which takes into consideration prevailing professional
norms and the totality of the circumstances. Strickland, 466 U.S. at 688.
[Headnote 3]
Trial counsel must make rational and informed decisions on strategy and tactics based on
adequate investigation and preparation. People v. Ledesma, 729 P.2d 839, 857 (Cal. 1987).
However, in examining a counsel's defense after it has proved unsuccessful, it is easy for a
court to conclude that certain acts or omissions by counsel were unreasonable. Strickland,
466 U.S. at 689. Therefore, there is a presumption that trial counsel was effective and fully
discharged his duties. Davis, 107 Nev. at 602, 817 P.2d at 1170. This presumption can only
be overcome by strong and convincing proof to the contrary.' Id. (quoting Lenz v. State,
97 Nev. 65, 66, 624 P.2d 15, 16 (1981)).
[Headnote 4]
The Court in Strickland concluded that [a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment. Id. 466 U.S. at 691. Therefore, the Court stated: If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed. Id. at 697.
1. Failure to Call Raymond Jackson.
Homick complains that his attorney's failure to locate or call Raymond Jackson to testify
prejudiced his defense. Homick claims that Jackson would have been instrumental in proving
that he was elsewhere at the time the murders were committed. Jackson testified at the
penalty phase of the Woodman case in California that he observed a small white pickup truck
in the Tipton driveway on the day of the murders between 9:30 a.m. and 10:30 a.m.
[Headnote 5]
Homick's theory of his defense was that the person in the white Toyota pickup truck with
the camper shell, who was never accounted for, was the actual murderer. Thus, if Jackson had
testified, Homick claims it would have put the alleged murderer at the Tipton household even
earlier than when Carder, the UPS delivery man, had seen the white Toyota truck. Carder had
seen the truck at 10:30 a.m., a time at which Homick was possibly still with Ettinger and
Hines after their meeting with Stewart Bell.
However, Homick's theory regarding the connection of the white pickup truck to the
murders was presented at trial. The jury had an opportunity to evaluate the theory of whether
the driver of the white pickup with the camper shell was involved in the murders. We
conclude that based on the verdict, the jury rejected this theory, and counsel's failure to locate
or call Raymond Jackson to the witness stand did not prejudice Homick's defense. Therefore,
we need not reach the question of whether Homick's counsel was ineffective in failing to do
so.
2. Failure to Fully Explore the Dominguez/Danielson Connection.
Homick also presented at trial his theory that Michael Dominguez and an associate, Kelly
Danielson, committed the Tipton murders. Homick contends his attorneys were ineffective
because they produced limited information regarding Dominguez's and Danielson's
connections to the Tipton murders. Although Danielson was unable to testify at the trial in
this case (Danielson had at this point been murdered by Dominguez), Dominguez testified
and was cross-examined by Homick's counsel.
[Headnote 6]
The defense questioned Dominguez about a variety of crimes he committed with both
Danielson and Homick in an attempt to impeach his incriminating testimony against Homick.
Homick's attorney also brought out on cross-examination the fact that Dominguez had made
a deal with the State regarding his sentencing on other crimes he had committed,
provided that Dominguez was not involved in the Tipton murders.
Dominguez had made a deal with the State regarding his sentencing on other crimes he had
committed, provided that Dominguez was not involved in the Tipton murders.
Additionally, testimony was presented that Dominguez's connection to the murder would
probably have been found on the transcripts of his conversations recorded on a wiretap placed
on his phone. The wiretap was in place on Dominguez's phone between January 29 and
March 14, 1986. However, nothing in the wiretaps linked Dominguez to the Tipton jewels or
the Tipton murders.
[Headnote 7]
Homick also claims that at the California trial, which occurred after the Nevada trial,
James Hampton testified he saw a man matching Danielson's description walking through the
desert near the Tiptons' house. However, according to the record, Hampton came forward and
told his attorney about what he had seen only after the trial in this case. Homick claims that
[i]f more substantial evidence had been made to develop and present the theory [of
Dominguez's and Danielson's involvement] the result at trial may well have been different.
Homick is encouraging this court to view his counsel's actions regarding Dominguez and
Danielson through hindsight. Under Strickland v. Washington, 466 U.S. 668, 690 (1984), a
court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as of the time of counsel's
conduct. Based on this, we conclude the actions taken by Homick's attorney to impeach
Dominguez were reasonable. Additionally, one of Homick's attorneys admitted at the
evidentiary hearing that the theory behind the Dominguez/Danielson connection was merely a
gut feeling. Therefore, we are not shown what additional evidence would have been
developed if further investigation into the Dominguez/Danielson connection had been
conducted or how it would have changed the trial result.
3. Failure to Interview Dominguez's Associates.
[Headnote 8]
Homick also claims that his counsel was ineffective for failing to interview or call at trial
any of Dominguez's associates. Homick states Dominguez admitted to at least one of his
associates, Michael Harris, that he and Danielson were responsible for the Tipton murders.
Again, this evidence did not surface until approximately December of 1990, well after the
trial in this case was over. This was information Homick's defense team could not have
known about at the time of the trial in this case because Harris had not yet contacted them.
Harris was an adjudged habitual criminal in California who testified he did not like
Dominguez because he thought Dominguez was a snitch. Harris and Dominguez had been
housed together at the Southern Nevada Correctional Center. Harris claimed that while
reading an account of the Homick proceedings, Dominguez told him Homick had not
committed the murders. Dominguez allegedly told Harris he and Kelly Danielson were
responsible for the murders. However, Dominguez did not provide Harris with any details of
the murders.
This is another instance of Homick's complaining about his attorneys' actions with
hindsight. Additionally, Homick has not shown that without his attorneys' failure to discover
and present Harris's testimony there is a reasonable probability the result of his trial would
have been different. Therefore, we conclude this failure on the part of Homick's attorneys
does not constitute ineffective assistance of counsel.
4. Failure to Properly Impeach Timothy Catt.
Finally, Homick argues his attorneys were ineffective because they failed to call witnesses
to impeach Timothy Catt on certain aspects of his incriminating testimony. Catt testified that
in late January of 1986, Homick asked Catt to meet him on Commercial Center by the Town
Pump Liquors. Homick and Catt actually met in Catt's car because, as Catt testified, Homick
would not have been able to talk to him at the Tower of Jewels. This was, according to Catt,
because Homick and Jack Weinstein, his boss, had a falling out. It was at this meeting, Catt
testified, that Homick confessed his involvement in the murders to him.
[Headnote 9]
Homick claims two witnesses, Jack Weinstein and Billy Mau, were available to testify and
testified in California that there would have been no reason for Homick to have met with Catt
in his car because until his arrest, Homick continued to work at the Tower of Jewels for Jack
Weinstein. Therefore, Homick claims, witnesses should have been called to testify that there
was no falling out between Weinstein and Homick.
At the evidentiary hearing, Homick's trial attorney, William Smith, testified and indicated
that both he and the investigator spoke to Weinstein and Mau. Smith indicated that although
he talked to Weinstein and cross-examined Mau at trial, the issue of a falling out between
Weinstein and Homick was never addressed. The record, however, does not indicate that
either of these two witnesses could have proved that the meeting between Homick and Catt
had not actually occurred.
Additionally, Homick again fails to show that impeaching Catt on this collateral issue
would have resulted in a reasonable probability that his conviction would have been
overturned.
Therefore, we conclude this alleged error does not justify a determination that Homick's
counsel was ineffective.
The State did not violate Homick's due process rights by failing to provide Brady material
from a joint federal/state investigation.
[Headnotes 10-13]
It is a violation of due process for the prosecutor to withhold exculpatory evidence, and
his motive for doing so is immaterial. Brady v. Maryland, 373 U.S. 83 (1963). Wallace v.
State, 88 Nev. 549, 551-52, 501 P.2d 1036, 1037 (1972). A prosecutor must disclose
evidence favorable to an accused when that evidence is material either to guilt or to
punishment. Roberts v. State, 110 Nev. 1121, 1127, 881 P.2d 1, 5 (1994). In determining
whether material should be considered Brady material, the court should look at the following
elements: (a) suppression by the prosecution after a request by the defense, (b) the evidence's
favorable character for the defense, and (c) the materiality of the evidence. Moore v. Illinois,
408 U.S. 786, 794-95. (1972). A Brady violation occurring after a specific request is material
if there exists a reasonable possibility that the claimed evidence would have affected the
judgment of the trier of fact, and thus the outcome of the trial. Roberts, 110 Nev. at 1132,
881 P.2d at 8 (emphasis added). This reflects the concern that the suppressed evidence
might have affected the outcome of the trial.' Id. (emphasis added) (quoting Agurs, 427 U.S.
at 104).
On December 13, 1985, Las Vegas Metropolitan Police Department (LVMPD) Detectives
Thomas Dillard and Bob Leonard, who were in charge of investigating the Tipton murders,
met with FBI representatives. Homick became a suspect in the Tipton murders as a result of
this meeting. Because of a prior FBI investigation, Homick's residential phone had been fitted
with a pen register, a device which monitors phone activity without actually recording
conversations. Additionally, as of December 11, 1985, at approximately 2:20 p.m., Homick
had been placed under FBI surveillance.
In March of 1989, Homick was indicted by a federal grand jury on charges of racketeering,
interstate transportation of stolen property, conspiracy to distribute and possession of a
controlled substance, wire fraud, arson, and murder for hire. The Tipton murders were listed
in the federal indictments as a predicate act to the federal charges. Therefore, Homick claims,
the federal and state cases were intertwined. Homick argues that because the two cases were
intertwined, the federal investigation should be considered as an arm of the state prosecution.
However, the record does not indicate that this was a joint investigation.
Specifically, Homick requested production of the handwritten notes made by FBI Special
Agent James Livingston regarding a phone call between Livingston and Art Taylor. This
request was made to the state prosecutor in February, 1989 prior to Homick's state court trial.
Art Taylor, who owned a C-B shop, was at this time acting as an FBI informant. The
conversation between Taylor and Livingston took place at approximately 12:30 p.m. on the
day of the murders. In this conversation, Taylor indicated that Homick had been with him at
his place of business earlier in the morning.
[Headnote 14]
Homick's defense was that he could not have been at the Tipton residence at the time the
murders were committed, which his defense assumes occurred when the white Toyota truck
was present. Therefore, the defense wanted these notes to provide a firmer timetable of
Homick's movements the morning of the murders and to determine whether Homick had been
under full FBI surveillance that morning. Testimony was presented by several witnesses that
the meeting between Susan Hines, Lawrence Ettinger, and Stewart Bell ended at some point
between 10:15 a.m. and 10:45 a.m. Hines and Ettinger then paged Homick on his beeper, and
Hines testified Homick arrived at Bell's office between 10:15 a.m. and 10:30 a.m. Testimony
indicated, however, that Homick was meeting with Taylor at the same time Ettinger and
Hines were meeting with Bell and that Homick left Bell's at approximately 10:30 a.m.
Under the requirements of Roberts, Homick has not shown that the notes regarding the
Taylor/Livingston conversation would reasonably have affected the outcome of the trial.
Testimony was given regarding Homick's movements the morning of the murders. Any
evidence regarding the meeting between Taylor and Homick simply supports the State's time
frame presented at the trial. Therefore, we conclude these notes were not material and that
failure to provide them did not constitute a Brady violation. Additionally, the record indicates
to this court that LVMPD provided Homick with all the evidence it had prior to trial, and that
it was not in possession of the notes made by FBI agent Livingston.
[Headnote 15]
Homick also requested the FBI notes based on the surrounding circumstances of the
surveillance, i.e., that if Homick was under surveillance the morning of the murders, the FBI
would be able to provide specific information regarding his movements. However, evidence
was presented that Homick was not actually under surveillance until approximately 2:20
p.m. the afternoon of the murders.
under surveillance until approximately 2:20 p.m. the afternoon of the murders. Therefore, we
conclude the FBI notes were not material and would not have provided Homick with any
exculpatory evidence. Thus, we conclude no Brady violation was committed.
The cumulative effect of errors during trial does not mandate reversal.
Finally, Homick argues that cumulative errors committed in the trial warrant a reversal of
his conviction. These alleged errors include the failure to call Raymond Jackson, the failure
of the FBI to turn over Agent Livingston's notes, the newly discovered evidence provided by
James Hampton and Michael Harris, and the complications Homick was facing by being
involved in three prosecutions simultaneously.
[Headnotes 16, 17]
If the cumulative effect of errors committed at trial denies the appellant his right to a fair
trial, this court will reverse the conviction. Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288,
1289 (1985). Relevant factors to consider in deciding whether error is harmless or prejudicial
include whether the issue of innocence or guilt is close, the quantity and character of the
error, and the gravity of the crime charged. Id.
[Headnote 18]
This court must determine that any errors are harmless beyond a reasonable doubt.
Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). Evidence against the
defendant must be substantial enough to convict him in an otherwise fair trial, and it must be
said without reservation that the verdict would have been the same in the absence of error. Id.
at 724, 765 P.2d at 1156.
We conclude that the errors alleged by Homick are not serious errors or not errors at all. In
their absence substantial evidence existed to convict Homick, and the verdict would have
been the same.
CONCLUSION
We conclude that even if some of the actions of Homick's counsel were deemed to be
ineffective under the Sixth Amendment, Homick has not shown by strong and convincing
evidence that but for his counsel's deficient performance, the results of his trial would have
been different. Additionally, we conclude no Brady violation was committed in regard to the
failure of the FBI to turn over the notes from the Livingston/Taylor conversation. Finally, we
conclude Homick was not denied a fair trial on the basis of cumulative error.
basis of cumulative error. Accordingly, we affirm the district court's order denying Homick's
_____________
112 Nev. 317, 317 (1996) Anastassatos v. Anastassatos
CHRISTIE ANN ANASTASSATOS, Appellant, v. GEORGE ANASTASSATOS,
Respondent.
No. 27560
April 3, 1996 913 P.2d 652
Appeal from an order modifying respondent's child support obligations. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Mother moved to modify father's child support payments. The district court entered
judgment for mother in part and for father in part and mother appealed. The supreme court
held that: (1) trial court exceeded its jurisdiction by determining issue not properly before it;
(2) court failed to adequately explain departure from child support guidelines; and (3) court
did not abuse its discretion in setting date for commencing increased child support payments.
Affirmed in part; reversed in part.
Crowell, Susich, Owen & Tackes and Sandra-Mae Pickens, Carson City, for Appellant.
Richard S. Staub, Carson City, for Respondent.
1. Divorce.
Issues which were not raised in pleadings nor were not raised by party until submission of proposed order were not properly before
court as opposing party was effectively denied opportunity to respond.
2. Pleading.
Although jurisdiction only required notice pleading, party must be given reasonable advance notice of issue to be raised and
opportunity to respond.
3. Parent and Child.
Trial court has limited discretion to deviate from child support guidelines provided by statute and any deviation must be based
upon statutory factors. NRS 125B.070, 125B.080(9).
If trial court deviates from statutory child support guidelines, justification for non-conformity must be specified in written findings
of fact. NRS 125B.070, 125B.080(9).
Trial court's basis for deviation from statutory child support guidelines must be found in unfairness or injustice which
may result to secondary custodian if he or she, after making substantial contribution of financial or
equivalent nature to support child, were required to pay full formula amount.
lines must be found in unfairness or injustice which may result to secondary custodian if he or she, after making substantial
contribution of financial or equivalent nature to support child, were required to pay full formula amount. NRS 125B.070,
125B.0080(9).
6. Divorce.
Trial court inadequately set forth findings of fact concerning basis for deviation from statutory child support guidelines and
abating father's child support payment despite court's finding that children spent four weeks in summer with father. NRS 125B.070,
125B.080(9).
7. Divorce.
Trial court did not abuse its discretion in not using date when mother filed motion to increase father's child support payment as
date for commencing increased child support payments where time elapsed while parties tried to resolve mother's motion out of court.
NRS 125B.140.
OPINION
Per Curiam:
In this appeal from a judgment modifying child support, appellant contends that the district court: (1) exceeded its jurisdiction by
entering an order regarding matters not properly before the court; (2) improperly abated child support; and (3) improperly set the date for
commencement of increased child support payments. We conclude that the district court did exceed its jurisdiction, and that it improperly
abated child support. However, the district court did not abuse its discretion in determining the date upon which increased child support
would commence. Accordingly, we affirm in part, and reverse in part.
FACTS
On April 15, 1987, appellant Christie Ann Anastassatos and George Anastassatos were divorced. The parties have three minor children
over whom they share joint legal custody, with Christie having primary physical custody subject to George's rights of reasonable visitation.
George paid monthly child support in the amount of $300 per child or a total of $900 per month as provided in the parties' Property
Settlement Agreement.
On April 20, 1995, Christie requested a review and modification of George's child support obligation pursuant to NRS 125B.080(1)(b)
and NRS 125.145(1). The parties attempted to resolve Christie's request through counsel, but were unable to do so. To avoid further delay,
Christie demanded that George file a response to the motion. George responded in a letter, dated June 8, 1995; however, Christie submitted
the matter for decision and obtained an order modifying child support.
George subsequently moved to set aside the order and simultaneously filed an opposition and countermotion to Christie's motion.
motion. George admitted he should be paying the statutory cap of $500 per child per month or
$1,500 per month total, but requested a credit for one half of the monthly cost of the health
insurance premium, or $67.50, and a specified visitation schedule. Christie opposed George's
proposed visitation schedule, and further opposed the motion to set aside the order modifying
child support. The district court set aside its earlier order, and the matter was subsequently
resubmitted on the pleadings by the parties.
Upon resubmission, both parties submitted proposed orders to the court. After reviewing
George's proposed order, Christie filed formal objections with the court, arguing that George's
order addressed issues and sought relief that were not previously set forth in the pending
motions and therefore such issues and relief were not appropriately before the court. On
August 8, 1995, the district court entered an order that modified child support, thereby
effectively adopting George's proposed order. The order was to take effect on August 1, 1995.
The district court's order: (1) increased child support as requested by Christie; (2) gave
George credit for one half of the insurance premium; (3) abated George's support obligation
during his one-month summer visitation; (4) changed the date when support should be paid;
(5) specified a visitation schedule; and (6) made the parties equally responsible for costs of
transportation of the minor children. Christie contends that items (3) through (6) constituted
relief in excess of the district court's jurisdiction.
Christie also insists that even if the district court had jurisdiction to abate child support, it
abused its discretion in allowing the abatement. Finally, Christie contends the district court
improperly set the date for commencement of increased child support payments. We conclude
that, with the exception of the specified visitation schedule and determining the date upon
which the increase in child support would commence, the district court did exceed its
jurisdiction.
DISCUSSION
[Headnote 1]
Christie contends that the only issues properly before the district court were the amount of
child support and whether George was entitled to a credit against his child support obligation
for one half of the health insurance premium. As a result, Christie maintains that the other
areas of relief granted to George by the district court were not raised in the pleadings, and
represented matters concerning which she neither received notice nor an opportunity to be
heard, the twin hallmarks of due process. [Headnote 2]
[Headnote 2]
Although Nevada is a notice pleading jurisdiction, a party must be given reasonable
advance notice of an issue to be raised and an opportunity to respond. Schwartz v. Schwartz,
95 Nev. 202, 206, 591 P.2d 1137, 1140 (1979). In the present case, the only matters before
the district court were the visitation schedule and the issue of whether one half of George's
health insurance payments could be credited against his support payments. By waiting until
the submission of the proposed order to address child support abatement, the sharing of child
visitation transportation costs, and changing the due date of support payments, George
effectively denied Christie an opportunity to respond. Therefore, those three issues were not
properly before the district court.
Because we conclude that the issue of child support abatement was not properly before the
district court, it is unnecessary to determine whether the district court abused its discretion by
abating child support during the summer when the children were visiting their father.
However, we take this opportunity to reiterate this court's position on the issue.
[Headnotes 3-5]
Under Nevada's child support laws, the legislature has limited the discretion of the district
courts. Although this court has recognized the importance of discretionary rulings by the
district courts in the area of child support, it is clear that the limits of such discretion have
been set within the specifications of the statutes. Lewis v. Hicks, 108 Nev. 1107, 1112, 843
P.2d 828, 831 (1992). A district court has limited discretion to deviate from child support
guidelines provided by NRS 125B.070, and any such deviation must be based upon the
statutory factors provided under NRS 125B.080(9). Westgate v. Westgate, 110 Nev. 1377,
1379, 887 P.2d 737, 738 (1994). Indeed, the compelling force of the statutory guidelines is of
such a magnitude that in the event of a deviation from the statutory formula by a district
court, the justification for the non-conformity must be specified in written findings of fact.
Moreover, the basis for deviation' must be found in the unfairness, the injustice, which may
result to the secondary custodian if he or she, after making substantial contribution of a
financial or equivalent nature to the support of the child, were required to pay the full formula
amount. Barbagallo v. Barbagallo, 105 Nev. 546, 552, 779 P.2d 532, 536 (1989) (quoting
NRS 125B.080(5)).
[Headnote 6]
In the instant case, the district court failed to set forth findings of fact concerning the basis
for the deviation from the formula.
George contends that the district court's order makes it clear that the support abatement
during the summer visitation was based upon the fact that the children would spend the four
weeks with George. He therefore suggests that no other finding is necessary to justify the
deviation. However, Barbagallo refutes such a conclusion stating:
Because of the probable increases in overall expenses in joint physical custody cases
and because of the danger inherent in reducing child support payments made to a
primary custodian, the courts should exercise considerable caution before reducing the
formula amounts. As the secondary custodian's child-related expenses increase, the
expenses of the primary custodian do not decrease proportionally, and care should be
taken that children do not suffer while in the care of the primary custodian by reason of
unwarranted reduction in the formula payments being made by the secondary custodian.
Id. at 550, 779 P.2d at 535.
If the children spend the four weeks with George, it does not necessarily follow that
Christie's expenses as primary caretaker should correspondingly decrease during that time. As
the court stated in Barbagallo:
[W]e must bear in mind that balanced against the need in some cases to relieve the
secondary parent from the full formula burden is the reality that the primary custodian
is faced with an array of fixed expenses relating to child rearing, costs such as rent,
mortgage payments, utilities, car maintenance and medical expenses. These expenses
go on and are not usually appreciably diminished as a result of the secondary
custodian's sharing of the burdens of child care and maintenance.
Id. at 548, 779 P.2d at 535. Here, the terms of the district court's order do not adequately
support a deviation from the statutory formula, and the district court's failure to set forth
findings of fact as to the basis for the deviation constitutes reversible error.
[Headnote 7]
Finally, Christie briefly contends that the district court erred in setting August 1, 1995 as
the date for commencing the increased child support payments, rather than May 1, 1995,
which was the date she filed her motion. Christie argues that George had initially
acknowledged he owed a larger amount, but then delayed the proceeding. As support for her
position, Christie cites NRS 125B.140, which states, in pertinent part:
Payments for support . . . which have not accrued at the time either party gives
notice that he has filed a motion for modification or adjustment may be modified or
adjusted by the Court upon a showing of changed circumstances.
(Emphasis added.)
The statute, as noted, leaves the matter to the discretion of the district court. The district
court apparently considered the delay in proceedings to be unintentional, since the parties
were trying to resolve Christie's motion out of court. We conclude that such a conclusion was
not an abuse of discretion.
CONCLUSION
We conclude that the issues of child support abatement, the sharing of transportation costs
related to child visitation, and the due date of support payments were not properly at issue
before the district court, and we reverse the judgment regarding these matters. Moreover, we
also conclude that the district court abused its discretion by abating child support during the
four weeks in the summer when the children were scheduled to visit their father, and
accordingly reverse that part of the order entered below. Finally, the district court did not
abuse its discretion in determining the date upon which the increased child support would
commence.
____________
112 Nev. 322, 322 (1996) Sheriff v. Bessey
SHERIFF, WASHOE COUNTY, Appellant, v. KEVIN BESSEY, Respondent.
No. 26362
April 3, 1996 914 P.2d 618
Appeal from a district court order granting a pretrial petition for a writ of habeas corpus
and dismissing a criminal information. Second Judicial District Court, Washoe County;
James A. Stone, Judge.
Defendant was charged with two counts of sexual assault, two counts of statutory sexual
seduction, attempted sexual assault, and open or gross lewdness. The district court granted
writ of habeas corpus and dismissed criminal information. State filed sheriff's appeal. The
supreme court, Shearing, J., held that use of falsfied report in interrogation of defendant did
not produce nor was likely to produce false confession requiring suppression of defendant's
inculpatory statements.
Rose and Young, JJ., dissented.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Michael Specchio, Public Defender, and John Reese Petty, Deputy Public Defender,
Washoe County, for Respondent.
1. Habeas Corpus.
Pretrial habeas corpus may not be used to challenge admissibility of evidence on constitutional grounds.
2. Criminal Law.
Challenge to admissibility of evidence on constitutional grounds should be made in motion to suppress evidence, and review of
district court's ruling may be sought following trial and conviction.
3. Criminal Law.
During police officer's interrogation of defendant in connection with sexual assault of minor, use of falsified lab report which
stated that defendant's semen was found on couch in apartment in which acts allegedly occurred would not have implicated any
concerns on defendant's part other than consideration of his own guilt or innocence and evidence against him, and therefore falsified
report did not produce and was not likely to produce false confession so as to require suppression of defendant's inculpatory
statements, where defendant went to police station voluntarily, interview was relatively short, and only factor that was out of ordinary
was production of falsified lab report. U.S. Const. amend. 14.
4. Criminal Law.
To determine voluntariness of confession, court must consider effect of totality of circumstances on will of defendant; question in
each case is whether defendant's will was overborne when he confessed. U.S. Const. amend. 14.
5. Criminal Law.
Police deception is relevant factor in determining whether or not confession is voluntary. U.S. Const. amend. 14.
6. Criminal Law.
Police officer's lie about strength of evidence against defendant is, in itself, insufficient to make confession involuntary. U.S.
Const. amend. 14.
In determining whether police deception violated due process, rendering defendant's confession involuntary, appropriate question
is whether deception, whatever its nature, would have induced false confession under circumstances. U.S. Const. amend. 14.
8. Criminal Law.
If police officer's deception would not induce false confession under circumstances of interrogation, then defendant's rights were
not violated, and suppression of defendant's subsequent statements is unwarranted. U.S. Const. amend. 14.
OPINION
The State charged respondent Kevin Bessey with two counts of sexual assault, one count of attempted sexual assault,
two counts of statutory sexual seduction, one count of attempted statutory sexual seduction, and one count of
open or gross lewdness.
sexual assault, one count of attempted sexual assault, two counts of statutory sexual
seduction, one count of attempted statutory sexual seduction, and one count of open or gross
lewdness. After a preliminary hearing, the justice of the peace bound Bessey over for trial on
a number of the charges. Bessey filed a petition for a writ of habeas corpus in the district
court. The district court found that a detective had improperly fabricated evidence, concluded
that Bessey's inculpatory statements should have been suppressed, and dismissed the
information. The State filed a sheriff's appeal, arguing that use of the fabricated evidence in
the interrogation did not render the inculpatory statements involuntary. We agree.
[Headnotes 1, 2]
Preliminarily, we point out that Bessey employed the wrong procedure to challenge the
admissibility of his inculpatory statements. Pretrial habeas corpus may not be used to
challenge admissibility of evidence on constitutional grounds. Cook v. State, 85 Nev. 692,
462 P.2d 523 (1969). Such a challenge should be made in a motion to suppress evidence, and
review of the district court's ruling may be sought following trial and conviction. Hardin v.
Griffin, 98 Nev. 302, 304, 646 P.2d 1216, 1217 (1982). The district court erred in granting
pretrial habeas relief because habeas may not be used to challenge admissibility of evidence
on constitutional grounds.
[Headnote 3]
Even if Bessey had filed a proper motion to suppress, his inculpatory statements should
not have been suppressed. Bessey contended that his inculpatory statements were made after
the police officer showed Bessey a fabricated document implicating him as the perpetrator of
a sexual assault on a minor. Bessey was asked to come to the police department for an
interview after a fourteen-year-old girl gave a statement to the police alleging that Bessey had
performed numerous sexual acts on her without her consent. At the interview, Bessey denied
engaging in any sexual acts with the minor until the police officer asked him if he could
explain why analysis of the couch at the apartment where these acts allegedly occurred
showed his semen present. The actual analysis was negative, but the officer presented Bessey
with a false crime lab report, which the officer had prepared. Bessey then made a number of
inculpatory statements.
[Headnotes 4-6]
To determine the voluntariness of a confession, the court must consider the effect of the
totality of the circumstances on the will of the defendant. The question in each case is
whether the defendant's will was overborne when he confessed. Passama v. State, 103 Nev.
212, 214
State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987). Police deception is a relevant factor in
determining whether or not a confession is voluntary. See Frazier v. Cupp, 394 U.S. 731, 739
(1969). However, an officer's lie about the strength of the evidence against the defendant is,
in itself, insufficient to make the confession involuntary. Holland v. McGinnis, 963 F.2d
1044, 1051 (7th Cir. 1992), cert. denied, 506 U.S. 1082, 113 S. Ct. 1053 (1993).
Cases throughout the country support the general rule that confessions obtained through
the use of subterfuge are not vitiated so long as the methods used are not of a type reasonably
likely to procure an untrue statement. C.T. Drechsler, Annotation, Admissibility of Confession
as Affected by Its Inducement through Artifice, Deception, Trickery, or Fraud, 99 A.L.R.2d
772, 783 (1965 & Supp. 1993).
In Frazier, the police falsely told a defendant that his codefendant had already confessed.
The court concluded that [t]he fact that the police misrepresented the statements [the
codefendant] had made is, while relevant, insufficient in our view to make this otherwise
voluntary confession inadmissible. 394 U.S. at 739. The Holland court stated that [o]f the
numerous varieties of police trickery . . . a lie that relates to a suspect's connection to the
crime is the least likely to render a confession involuntary. 963 F.2d at 1051. The court went
on to say the following:
Such misrepresentations, of course, may cause a suspect to confess, but causation alone
does not constitute coercion; if it did, all confessions following interrogations would be
involuntary because it can almost always be said that the interrogation caused the
confession. Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989,
107 S. Ct. 585, 93 L. Ed. 2d 587 (1986). Thus, the issue is not causation, but the degree
of improper coercion, and in this instance the degree was slight. Inflating evidence of
Holland's guilt interfered little, if at all, with his free and deliberate choice of whether
to confess, Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d
410 (1986), for it did not lead him to consider anything beyond his own beliefs
regarding his actual guilt or innocence, his moral sense of right and wrong, and his
judgment regarding the likelihood that the police had garnered enough valid evidence
linking him to the crime. In other words, the deception did not interject the type of
extrinsic considerations that would overcome Holland's will by distorting an otherwise
rational choice of whether to confess or remain silent.
Id. at 73.
In State v. Kelekolio, 849 P.2d 58, 71-74 (Haw. 1993), the Hawaii Supreme Court
considered the relevant case law and scholarly authority and formulated a rule by which to
measure the legitimacy of the use of deception by the police in eliciting confessions or
inculpatory statements from suspects and arrestees. The Kelekolio court adopted the
following rule:
[E]mployment by the police of deliberate falsehoods intrinsic to the facts of the alleged
offense in question will be treated as one of the totality of circumstances surrounding
the confession or statement to be considered in assessing its voluntariness; on the other
hand, deliberate falsehoods extrinsic to the facts of the alleged offense, which are of a
type reasonably likely to procure an untrue statement or to influence the accused to
make a confession regardless of guilt, will be regarded as coercive per se, thus
obviating the need for a totality of circumstances analysis of voluntariness.
849 P.2d at 73.
Examples of intrinsic falsehoods would include misrepresentations regarding the existence
of incriminating evidence such as placement of the defendant's vehicle at the crime scene,
physical evidence linked to the victim in the defendant's car, presence of defendant's
fingerprints at the crime scene or in the getaway car, positive identification by reliable
eyewitnesses, and identification of the defendant's semen in the victim or at the crime scene.
See id. Examples of extrinsic falsehoods of a type reasonably likely to procure an untrue
statement or to influence an accused to make a confession regardless of guilt would include
the following: assurances of divine salvation upon confession, promises of mental health
treatment in exchange for confession, assurances of more favorable treatment rather than
incarceration in exchange for confession, misrepresenting the consequences of a particular
conviction, representation that welfare benefits would be withdrawn or children taken away
unless there is a confession or suggestion of harm or benefit to someone. See Lynumn v.
Illinois, 372 U.S. 528 (1963); Kelekolio, 849 P.2d at 73-74.
In this case, the detective's lie and the falsified lab report went to the strength of the
evidence against Bessey, a consideration intrinsic to the facts of the alleged offense.
Therefore, the court must consider the totality of the circumstances which produced Bessey's
statements to determine whether they were voluntary. We conclude that there was nothing in
the treatment of Bessey or the setting of the interrogation that was coercive. Bessey went to
the police station voluntarily and the length of the interview was relatively short.
relatively short. The only factor that was out of the ordinary was the production of the
falsified lab report. Based on the law in this area and the facts of this case, there is no reason
to believe that Bessey's inculpatory statements were not voluntary. The false report would not
have implicated any concerns on Bessey's part other than consideration of his own guilt or
innocence and the evidence against him. There is nothing about the fabricated document
presented to Bessey in this case which would have produced a false confession.
The one case Bessey relies upon in support of the suppression of his admissions is State v.
Cayward, 552 So. 2d 971 (Fla. Dist. Ct. App. 1989), review denied, 562 So. 2d 347 (Fla.
1990). In Cayward, the police fabricated two scientific reports that indicated that the semen
stains on the victim's underwear came from Cayward. The police showed the false reports to
Cayward because they suspected him of sexually assaulting and smothering his five-year-old
niece. Some time later in the interview, Cayward confessed. The Florida court held that the
manufacture of false documents by police officials offends the traditional notions of due
process under both the state and federal constitutions. Id. at 974. We disagree with the Florida
court's standard and rationale.
[Headnotes 7, 8]
The Cayward court placed great emphasis on the fact that the false statement to the
suspect was written rather than verbal and decided to draw a bright-line rule on that basis.
Under the Cayward decision, the police could have verbally lied to the defendant by telling
him that his semen had been found; but, the fact that the lie was embodied in a piece of paper
made it a violation of due process. This is a distinction without a real difference. Moreover, it
ignores the basic test for the voluntariness of confessions which the United States Supreme
Court has set out. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973); Passama, 103
Nev. at 214, 735 P.2d at 323. Under prevailing law, the appropriate question is whether the
deception, whatever its nature, would have induced a false confession under the
circumstances. Holland, 963 F.2d at 1051. If it would not, then the defendant's rights were
not violated, and suppression of the defendant's subsequent statements is unwarranted. Id.
It has been argued that fabricated documents used in interrogation may find their way into
court as evidence. The case of United States v. Khoury, 901 F.2d 948 (11th Cir. 1990),
modified on other grounds, 910 F.2d 713 (11th Cir. 1990), is used as an example. Khoury
actually demonstrates that the system works to differentiate authentic from fabricated
documents. False documents may go astray, but our evidentiary rules are designed to
prevent their use in our legal forums. Moreover, the Khoury court recognized that "such
falsifications, in certain circumstances, may be a necessary investigatory method. . . ."
court recognized that such falsifications, in certain circumstances, may be a necessary
investigatory method. . . . 901 F.2d at 970.
The Cayward court also raises the bogeyman that allowing police to use false documents
in interrogation would open the door to fabrication of court documents, such as warrants or
judgments, thus eroding the public's respect for the authority of court orders. 552 So. 2d at
974-75. We strongly disagree. One can postulate all types of scenarios which would not pass
constitutional muster and would erode the public's confidence, but that does not mean that the
rather innocuous document used in the interrogation in the instant case is such a document.
Some would argue that the police should not lie at all. However, that is not the current
policy. Otherwise, many common police tactics would be barred. Several techniques which
involve deception include undercover police officers, sting operations, and interrogation
techniques such as offering false sympathy, blaming the victim, minimizing the seriousness
of the charge, using a good-cop/bad-cop routine, or suggesting that there is sufficient
evidence when there is not. As long as the techniques do not tend to produce inherently
unreliable statements or revolt our sense of justice, they should not be declared violative of
the United States or Nevada constitutions.
The position that permitting police to fabricate documents leads us down a slippery slope
displays little confidence in our courts and is out-of-step with what we are trying to
accomplishnamely, to achieve justice. It may be a comfort to judges to have a bright-line
test dictating that verbal lying in interrogation is allowed, but fabrication of documents is
forbidden. However, this ignores the basic question at issuewould the police action have
induced a false confession? If the deception, whatever its nature, would not, the confession
should be admissible. In the instant case, there is no evidence or credible argument that the
fabricated document did produce or was likely to produce a false confession.
Accordingly, we reverse the judgment of the district court and remand this case to the
district court for further proceedings.
Steffen, C. J., concurs. Springer, J., concurs in result only.
Rose, J., with whom Young, J., joins, dissenting:
I dissent because the majority is providing police and prosecutors with an investigatory
weapon which they have little if any need for, but which has great potential for intentional
abuse and inadvertent harm and havoc.
This case sets the limits to which law enforcement can go in using deception or falsehoods
to secure a confession from a defendant.
defendant. Unfortunately, the majority sets no limits at allpermitting the police to use all
manner of falsehoods and deception in attempting to secure a confession. Understanding that
law enforcement needs some latitude in fighting crime, this court should permit police to use
verbal deception but prohibit their use of falsehoods or deception in written or other tangible
form, such as falsified lab tests, witness statements, or doctored photographs. This strikes an
appropriate balance between the necessity for the police to use some deception in developing
evidence, while prohibiting the carrying of such deception or falsehoods to a truly unfair
advantage over an accused.
The test for determining admissibility of a statement obtained by police deception is
whether that deception produced a false or untrustworthy confession or statement. State v.
Haywood, 439 N.W.2d 511, 514 (Neb. 1989). As the majority correctly states, this is the
approach most courts have taken on this issue. See State v. Kelekolio, 849 P.2d 58, 71-74
(Haw. 1993); C.T. Drechsler, Annotation, Admissibility of Confession as Affected by Its
Inducement through Artifice, Deception, Trickery, or Fraud, 99 A.L.R.2d 772 (1965 & Supp.
1993).
In this case, the detective's lie and the falsified lab report went to the strength of the
evidence against Bessey and may not have implicated any concerns on Bessey's part other
than consideration of his own guilt or innocence and the evidence against him. On the other
hand, none of the cases cited above or cited by the majority to support its opinion dealt with
the fabrication of documents or physical evidence by police. Thus, those cases did not
consider the reliability of a confession induced by confrontation with ostensibly irrefutable
hard scientific evidence, as opposed to mere oral allegations. Nor did they consider the
propriety or practical consequences of police fabrication of documents or other evidence.
Although these considerations are implicated in the instant case, the majority fails to
acknowledge them and therefore fails to recognize that the Florida court's distinction between
oral lies and fabricated physical or documentary evidence is based on a very real and
significant difference.
The Florida court held that the manufacture of documents by police to obtain a confession
overstepped the line of permitted deception and violated due process under the federal and
state constitutions. State v. Cayward, 552 So. 2d 971, 974 (Fla. Dist. Ct. App. 1989), review
dismissed, 562 So. 2d 347 (Fla. 1990). The defendant in that case was suspected of sexually
assaulting and smothering his five-year-old niece, but the police had insufficient evidence to
charge him.
With the knowledge of the state attorney's office, the police fabricated two scientific
reports which they intended to use as ploys in interrogating the defendant.
as ploys in interrogating the defendant. One false report was prepared on stationery of
the Florida Department of Criminal Law Enforcement; another was prepared on
stationery of Life Codes, Inc., a testing organization. These false reports indicated that a
scientific test established that the semen stains on the victim's underwear came from the
defendant. The police showed the reports to the defendant as a device to induce a
confession. Some time later during the interview, the defendant confessed.
Id. at 972.
The Florida court cited the basic principle that when conduct of law enforcement is
outrageous, due process bars the government from invoking judicial process to obtain a
conviction, but it also recognized that police deception does not render a confession
involuntary per se. Id. at 973.
The instant case, however, presents a different question and one which appears to be
one of first impression not only in Florida but in the United States. The reporters are
filled with examples of the police making false verbal assertions to a suspect, but
counsel has not indicated nor has our research revealed any case in which the police
actually manufactured false documents and used them precisely as the police did in this
case.
Id. Reasonable expectations regarding the adversarial nature of police interrogation do not
encompass the notion that the police will knowingly fabricate tangible documentation or
physical evidence against an individual. . . . Thus we think the manufacturing of false
documents by police officials offends our traditional notions of due process of law under both
the federal and state constitutions. Id. at 974.
In addition, the court in Cayward based its decision on practical concerns. Id. Unlike
oral misrepresentations, manufactured documents have the potential of indefinite life and the
facial appearance of authenticity. A report falsified for interrogation purposes might well be
retained and filed in police paperwork. Such reports have the potential of finding their way
into the courtroom. Id. The court noted the immense workload of the police and prosecutors
and the long periods of time that investigations and prosecution may take. Officials who
prepare false reports may leave, die, or forget the origins of the reports. The prevalence of
photocopying exacerbates the possibility for confusion. Also, false documents might be
disclosed to the media as a public record. Id.
The Cayward court went on to note that courts routinely accept documents which appear
to be self-authenticating. One of the reports in Cayward was such a document.
reports in Cayward was such a document. Furthermore, to approve the false reports at issue
might open the door to fabrication of court documents, such as warrants or judgments, which
could erode the public's respect for the authority of court orders. Id. at 975.
The majority has not addressed or even acknowledged these concerns raised by the Florida
court. A complicated federal drug case shows that these practical concerns are not merely
farfetched hypotheticals. In United States v. Khoury, 901 F.2d 948, 969-71 (11th Cir. 1990),
modified on other grounds, 910 F.2d 713 (11th Cir. 1990), the defendants moved for a new
trial because government prosecutors had withheld an exculpatory investigatory report from
them in violation of Brady v. Maryland, 373 U.S. 83 (1963). At an ex parte in camera
hearing, the government informed the district court that the report
was completely fictitious, signed by non-existent DEA special agents, chronicling a
conversation that never occurred with a confidential informant who was invented by the
DEA. The purpose of this elaborate ruse was to create seemingly exculpatory material,
plant it in the law enforcement computer network, and thus track down unauthorized
access to the computer by someone associated with a defendant in the case.
Khoury, 901 F.2d at 970. The district court denied the defendants' motion for a new trial. The
circuit court reversed this denial because it was based on unsworn and mostly hearsay
statements. The circuit court remanded for an evidentiary hearing to determine whether the
report constituted Brady material. Id. at 971. The Khoury court cited Cayward and stated its
own concern about the potential that false documents have to wreak havoc should they go
astray. Id. at 970. Nonetheless, we recognize that such falsifications, in certain
circumstances, may be a necessary investigative method . . . . Id. Unlike here, the false
document in Khoury was not employed to obtain a confession.
Another problem with the majority opinion is that it tacitly assumes that police and
prosecutors need to fabricate evidence to be effective in cases like this, but the State has
shown no necessity for the use of fabricated physical or documentary evidence in attempting
to obtain confessions from suspects. The rationale in Cayward applies to fabricat[ing]
tangible documentation or physical evidence against an individual. Cayward, 552 So. at 974.
Due process would not be violated by oral misrepresentations by police regarding the
contents or nature of a document or audio tape or other tangible item. Police officers could
still employ such items as props, claiming that they were evidence against a suspect,
without fabricating evidence and creating the potential for intentional or unintentional
misuse.
against a suspect, without fabricating evidence and creating the potential for intentional or
unintentional misuse. The record in this case indicates that any document looking like a lab
report would have worked just as well with Bessey: it appears that the police and the lab had
no sample of DNA from Bessey to compare any recovered semen with, but Bessey did not
understand the implications of this. On the other hand, a more knowledgeable suspect, even if
guilty, would realize that such a lab report must be phony, whether police actually fabricated
it or just claimed to have it. The potential for havoc and injustice resulting from allowing
police to fabricate evidence to obtain confessions appears to be much greater than its potential
benefits in obtaining otherwise unobtainable, valid confessions.
The concerns voiced in Cayward and Khoury apply in this case. Cayward is well reasoned
and persuasive authority, especially in regard to the practical problems and potential abuse
that fabrication of documents can lead to. This court would be well advised to adopt its
reasoning and hold that the use of fabricated documents to induce confessions violates due
process under both the federal and the state constitutions. U.S. Const. amends. V and XIV,
1; Nev. Const. art. 1, 8.
____________
112 Nev. 332, 332 (1996) Dubray v. Coeur Rochester Inc.
FERNO DUBRAY, Appellant, v. COEUR ROCHESTER INC; STATE INDUSTRIAL
INSURANCE SYSTEM; DEPARTMENT OF ADMINISTRATIONAPPEALS
OFFICE and ROBERT SCHOUWEILER, Appeals Officer, Respondents.
No. 25883
April 3, 1996 913 P.2d 1289
Appeal from an order of the district court denying a petition for judicial review. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Appeal was taken from appeals officer's decision denying workers' compensation benefits.
The district court denied claimant's petition for review, and appeal was taken. The supreme
court, Young, J., held that substantial evidence supported appeals officer's decision that
claimant's eight-hour exposure to manganese fumes did not cause claimant's Parkinson's
disease or hypothyroidism.
Affirmed.
[Rehearing denied November 21, 1997]
Springer and Rose, JJ., dissented.
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Appellant.
Marshall, Hill, Cassas & deLipkau, Reno; Lenard Ormsby, General Counsel, and Mark A.
Marsh, Carson City, for Respondents.
When decision of administrative body is challenged, it is supreme court's function to review evidence presented to the
administrative body and ascertain whether that body acted arbitrarily or capriciously, thus abusing its discretion.
When decision of administrative agency is challenged, supreme court must affirm decision on question of fact if decision is
supported by substantial evidence in the record.
Because case dealt with question of fact, supreme court's review of administrative body's decision was limited to determining
whether administrative body's decision was supported by substantial evidence in the record.
4. Worker's Compensation.
Substantial evidence supported appeals officer's decision that workers' compensation claimant was exposed to manganese fumes
for a maximum of eight hours for purposes of determining length of claimant's exposure to fumes and whether this exposure caused
claimant's Parkinson's disease or hypothyroidism. Record showed that claimant cut liners using mangjet rods, which could cause
exposure to fumes, on only three occasions, that he might have been indirectly exposed to fumes on a fourth occasion, and that cutting
liners took average of two hours and thus, if claimant cut liners on three occasions and was exposed on fourth occasion, he may have
been exposed to fumes for a maximum of eight hours.
Substantial evidence supported appeals officer's decision that workers' compensation claimant was not exposed to Nordbak fumes
for purposes of determining if claimant's exposure to fumes, if any, caused his Parkinson's disease or hypothyroidism. Nordbak was
contained in the liners several inches below where they were cut by claimant and if flame from welding came into contact with
Nordbak, it would invariably blow back on the welder, causing him burns, and such incident did not occur.
Substantial evidence supported appeals officer's decision that workers' compensation claimant's eight-hour exposure to manganese
fumes did not cause claimant's Parkinson's disease or hypothyroidism: experts stated it was unlikely that claimant's illnesses were
caused by his exposure to fumes while at work. Expert testified that, when he examined claimant one month after claimant stopped
working, he did not believe that claimant had manganese poisoning; and expert's medical research indicated that heavy exposure to
manganese fumes for two years was required to cause Parkinson's disease.
Issue which was raised for the first time on appeal was deemed waived for purposes of appeal.
OPINION
Appellant Ferno L. Dubray (Dubray) became ill while working as a welder/mechanic for
respondent Coeur Rochester Inc. (Coeur Rochester) and was eventually diagnosed with
Parkinson's disease and hypothyroidism. The appeals officer determined that Dubray's
illnesses were not work related. Subsequently, the district court, reasoning that there was
substantial evidence to support the appeals officer's decision, denied Dubray's petition for
judicial review.
Dubray appeals, arguing, among other things, that there was insufficient evidence to
support the appeals officer's decision.
DISCUSSION
[Headnotes 1, 2]
This court has continuously recognized that [w]hen a decision of an administrative body
is challenged, the function of this court is identical to that of the district court. It is to review
the evidence presented to the administrative body and ascertain whether that body acted
arbitrarily or capriciously, thus abusing its discretion. Gandy v. State ex rel. Div.
Investigation, 96 Nev. 281, 282, 607 P.2d 581, 582 (1980) (citations omitted). The Gandy
court further stated that this court may not substitute its judgment for that of the agency on
questions of fact. Id.; see also NRS 233B.135(3). Furthermore, this court must affirm the
decision of the administrative agency on questions of fact if the decision is supported by
substantial evidence in the record. SIIS v. Thomas, 101 Nev. 293, 295, 701 P.2d 1012, 1014
(1985).
[Headnote 3]
Accordingly, because the present case deals with a question of fact, our review is limited
to determining whether the appeals officer's decision was supported by substantial evidence
in the record. Our precedents mandate that if the appeals officer's decision was supported by
substantial evidence in the record, we must affirm that decision. See State, Emp. Sec. Dep't v.
Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984).
This court has defined substantial evidence as that quantity and quality of evidence which
a reasonable man could accept as adequate to support a conclusion. Maxwell v. SIIS, 109
Nev. 327, 331, 849 P.2d 267, 270 (1993) (citing State, Emp. Security v. Hilton Hotels, 102
Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986)).
In the present case, the appeals officer made the following findings of fact: {1) Dubray
was exposed to manganese fumes for a maximum of six to eight hours; {2) Dubray was
not exposed to Nordbak fumes; and {3) the expert testimony established that the limited
exposure to manganese fumes could not cause Parkinson's disease or hypothyroidism.
findings of fact: (1) Dubray was exposed to manganese fumes for a maximum of six to eight
hours; (2) Dubray was not exposed to Nordbak fumes; and (3) the expert testimony
established that the limited exposure to manganese fumes could not cause Parkinson's disease
or hypothyroidism. Although we sympathize with Dubray, our review of the record indicates
that the appeals officer's decision was supported by substantial evidence. Consequently, the
law dictates that we must uphold the appeals officer's decision, subsequently affirmed by the
district court.
[Headnote 4]
The dissent maintains that the appeals officer's decision that Dubray was exposed to
manganese fumes for a maximum of eight hours was clearly erroneous because Dubray was
frequently and on a daily basis exposed to manganese fumes. According to the dissent,
this frequent exposure apparently occurred when Dubray performed his required job duties of
welding manganese rods and cutting manganese-epoxy liners, in addition to working
downwind from those working with manganese hardened steel. Even so, we conclude that
the appeals officer's decision that Dubray was exposed to manganese fumes for a maximum
of eight hours is supported by substantial evidence.
Dubray and Coeur Rochester agree that Dubray worked for Coeur Rochester for only
forty-one days. In addition, the record clearly shows that Dubray cut liners using mangjet
rods, which could cause exposure to manganese fumes, on only three occasions. Also, the
record reveals that on another occasion, Dubray might have been indirectly exposed to
manganese fumes when another welder cut liners. The record further reveals that cutting
liners takes an average of two hours. Therefore, if Dubray cut liners on three occasions and
was exposed to manganese fumes indirectly on a fourth occasion, Dubray may have been
exposed to manganese fumes for a maximum of eight hours.
[Headnote 5]
The dissent next contends that the same evidence of Dubray's frequent and daily
exposure to manganese fumes overwhelmingly indicates that Dubray was also exposed to
epoxy-type fumes. We conclude, however, that the appeals officer's decision that Dubray was
not exposed to Nordbak fumes, the epoxy-type fumes referred to by the dissent, is also
supported by substantial evidence. There was undisputed testimony that Nordbak is contained
in the liners several inches below where they are cut. Additionally, there was further
undisputed testimony that if a flame from welding comes into contact with Nordbak, it would
invariably blow back on him [the welder], causing him burns. Because an incident such as
this did not occur, the appeals officer concluded that Dubray was not exposed to Nordbak.
[Headnote 6]
Finally, substantial evidence supports the appeals officer's decision that Dubray's limited
exposure to manganese fumes could not cause Dubray's illnesses. During the hearing, Dubray
presented three expert witnessesDr. Charles E. Quaglieri (Quaglieri), Selina Bendix,
Ph.D. (Bendix) and Dr. Gregory Luke Smith (Smith). Quaglieri maintained that Dubray
displayed symptoms of Parkinson's disease. However, Quaglieri had no opinion as to how
long a person would have to be exposed to manganese fumes in order to develop Parkinson's
disease. Bendix testified that if Dubray was exposed to manganese fumes for only a few
hours, and not to any Nordbak fumes, it would not be enough to cause Parkinson's disease.
Smith stated that if Dubray was exposed to manganese fumes for only twelve hours,
1
then
that would not be a clinically significant exposure and would not cause Parkinsonism.
The appeals officer also heard testimony from expert witnesses called by Coeur
RochesterDr. Steven McCurdy (McCurdy) and Dr. Michael Johnson (Johnson).
McCurdy, along with Dr. John Johnstone (Johnstone) who did not testify at the hearing,
found that Dubray clearly suffered from Parkinson's disease and hypothyroidism. However,
McCurdy and Johnstone concluded that it was unlikely that Dubray's illnesses were caused by
his exposure to manganese fumes while working at Coeur Rochester. In addition, McCurdy
testified that he searched medical sources for cases like Dubray's and could not find a single
case in which Parkinson's disease was caused by such limited exposure to manganese fumes.
McCurdy further testified that Parkinson's disease is idiopathic (i.e., it is inconclusive what
the cause might be).
Johnson testified that when he examined Dubray in October 1988, one month after Dubray
stopped working at Coeur Rochester, he did not believe that Dubray had manganese
poisoning. In addition, Johnson testified that exposure to manganese fumes for twelve hours
cannot cause Parkinson's disease. Johnson's medical research indicated that heavy exposure to
manganese fumes for two years was required to cause Parkinson's disease. Johnson further
testified that even if Dubray had been exposed to Nordbak fumes for only several hours, this
was an insufficient exposure to cause Parkinson's disease.
As the dissent accurately points out, there was some testimony that Dubray was exposed
to manganese fumes for more than eight hours and that this exposure could cause his
illnesses.
__________

1
During the hearing, Coeur Rochester's counsel asked the experts if twelve hours of exposure to manganese
fumes could cause Parkinson's disease. Twelve hours was used as the measure because it was twice as long as
Dubray's approximate actual exposure.
that Dubray was exposed to manganese fumes for more than eight hours and that this
exposure could cause his illnesses. However, it is not within the province of this court to
substitute its judgment for that of the agency as to the weight of the evidence on questions of
fact. Apeceche v. White Pine Co., 96 Nev. 723, 725, 615 P.2d 975, 977 (1980).
Furthermore, an appeals officer's decision shall not be set aside unless it is arbitrary and
capricious or clearly erroneous in view of the reliable, probative and substantial evidence of
the whole record. See NRS 233B.135. In the present case, because the appeals officer's
decision was supported by substantial evidence, we conclude that the district court's order
denying Dubray's petition for judicial review must be upheld.
[Headnote 7]
We have considered Dubray's remaining arguments and conclude that they are without
merit.
2
Accordingly, we affirm the district court's order denying Dubray's petition for
judicial review.
Steffen, C. J., and Shearing, J., concur.
Springer, J., with whom Rose, J., agrees, dissenting:
When reviewing administrative decisions, a district court must review evidence presented
to the agency in order to determine whether the agency's decision was arbitrary or capricious
and thus an abuse of the agency's discretion. Installation & Dismantle v. SIIS, 110 Nev. 930,
932, 879 P.2d 58, 59 (1994). A district court shall set aside an agency's decision in whole or
in part if it is clearly erroneous in view of the reliable, probative and substantial evidence on
the whole record. NRS 233B.135(3)(e). The SIIS decision is certainly not clearly
erroneous. Dubray began to suffer Parkinsonian symptoms while on the job, and SIIS
properly concluded that the cause of Dubray's disease was on-the-job exposure to manganese.
There is no reason to question the SIIS allowance of benefits to Dubray.
Dubray was frequently exposed to manganese fumes while he was working. We know that
Dubray was required, as part of his job, to cut into epoxy resin material and manganese
hardened steel, to weld mangjet rods,
1
and to work downwind of those
__________

2
Specifically, Dubray raises the issue for the first time on appeal that Coeur Rochester failed to supply him with
appropriate safety equipment. However, this issue was not considered in the decisions of the hearing officer, the
appeals officer or the district court. Accordingly, because this point was not urged at the proceedings below, this
court deems the issue waived on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983
(1981).

1
Mangjet rods contain twenty-percent manganese.
working with manganese hardened steel, epoxy resin and mangjet. Dubray was repeatedly
exposed to manganese in the form of welding rods, which he and his co-workers used daily
throughout his forty-one, twelve-hour workdays with Coeur Rochester. Also, in addition to
manganese exposure from welding rods, Dubray was exposed to manganese in the cone
crusher mantles that he was required to cut through as part of his welding duties.
2
The
appeals officer concluded that Dubray was not exposed to epoxy-type fumes, but this is
clearly not the case.
The evidence weighing in favor of granting this man his workman's benefits is close to
being overwhelming. Dr. Selina Bendix, an occupational environmental toxicologist, testified
that a single exposure to the neurotoxins present in epoxy resin and black smoke produced
during the liner cutting procedure would affect the production and fate of thyroid hormone.
This led Dr. Bendix to the conclusion that the exposure to epoxy resin and black smoke on
the job caused Dubray's hypothryroidism and triggered the Parkinson syndrome.
3

Denial of Dubray's benefits appears to be based on the assumption of the appeals officer
that a minimum of 500 hours of exposure to manganese fumes would be necessary to
contract Parkinson's disease. In contradiction, Dr. Gregory Smith testified that only 200
hours' exposure to manganese over six weeks would be sufficient to trigger Parkinsonian
symptoms; and both Dr. Smith and Dr. Bendix testified that publications of the United States
Department of Health, Education and Welfare say that forty-nine days of exposure to
manganese can cause this kind of symptomology.
Virtually everything that I read in this record indicates that Dubray's illnesses were caused
by repeated exposure to toxic substances while he was on the job. He had not been exposed to
manganese and epoxy toxins under any other circumstances other than employment, and he
presented disease symptoms during his employment and after his exposure to the toxic
materials. There is every indication of work-connected causation here, and I have a very
difficult time understanding the decision of either the appeals officer or the district court to
deny benefits.
It looks to me as if the hearings officer was groping for some reason or excuse for denying
benefits to a man who was clearly entitled to them. I am seeing more and more of these kinds
of denials coming from appeals officers' decisions.
__________

2
Crusher liners are manganese steel mantles backed by Nordbach epoxy resin. As a welder, Dubray was
responsible for cutting the manganese-epoxy liners.

3
I would note further that Dubray's exposure to toxic fumes was especially harmful because Coeur Rochester
did not provide air pack respirators for its workers until after Dubray's injuries occurred.
denials coming from appeals officers' decisions. This case presents an extraordinarily
exaggerated case of the unjust treatment of a worker's claim for compensation for
work-connected disease. I dissent from the opinion of this court which permits this kind of
thing to happen.
____________
112 Nev. 339, 339 (1996) Barrows v. District Court
RICHARD G. BARROWS, Petitioner, v. THE SEVENTH JUDICIAL DISTRICT COURT
of the State of Nevada, in and for the County of White Pine, and THE HONORABLE
RICHARD A. WAGNER, District Judge, Respondents, and ILMA BLACKMORE,
PATRICIA A. DORY, LORINE JEWETT, GEORGIA STEVENS and ARTHUR
HEXEM, DONNA BATH, in Her Capacity as Clerk of the Board of County
Commissioners of White Pine County, JULIO COSTELLO, BRENT ELDRIDGE,
WAYNE CAMERON, CLAUDE ROSE, and JOHN CHACHAS, in Their Capacities
as the Commissioners of White Pine County, Real Parties in Interest.
No. 27160
DONNA BATH in Her Capacity as Clerk of the Board of County Commissioners of White
Pine County, JULIO COSTELLO, BRENT ELDRIDGE, WAYNE CAMERON,
CLAUDE ROSE, JOHN CHACHAS, in Their Capacities as the Commissioners of
White Pine County, Appellants, v. ILMA BLACKMORE, PATRICIA A. DORY,
LORINE JEWETT, GEORGIA STEVENS, and ARTHUR HEXEM, Respondents.
No. 27174
April 3, 1996 913 P.2d 1296
Consolidated original petition for writ of certiorari or writ of prohibition and appeal from
an order of the district court. Seventh Judicial District Court, White Pine County; Richard
Wagner, Judge.
County residents filed petition for writ of mandamus asking that referendum for repeal of
landfill ordinance be placed on ballot. After the supreme court issued writ, referendum was
placed on ballot, except that language in referendum petition regarding refund of taxes
collected under ordinance was deleted. Referendum was approved, and residents filed motion
to enforce writ of mandamus, seeking refund of taxes collected pursuant to ordinance and
determination that members of county board of supervisors were in contempt.
ordinance and determination that members of county board of supervisors were in contempt.
The district court held that board members violated writ, and ordered refund of taxes or
financing of special election. Board members and their attorney appealed. The supreme court
held that: (1) district court was without jurisdiction to enforce writ of mandamus issued by
supreme court; (2) relief ordered was beyond that permitted in enforcing writ of mandamus;
and (3) when voters approved referendum repealing landfill ordinance, it was incumbent
upon board members to refund all taxes collected pursuant to ordinance automatically.
Petition granted and order reversed.
Wilson & Barrows, Elko; Goicoechea & DiGrazia, Ltd., Elko, for Petitioner, (Docket
27160).
John M. Hanford, District Attorney and Steve L. Dobrescu, Deputy District Attorney,
White Pine County, for Respondents (Docket 27160) and Appellants (Docket 27174).
Marshall Hill Cassas & deLipkau and Rew R. Goodenow, Reno, for Real Parties in
Interest (Docket 27160) and Respondents (Docket 27174).
1. Mandamus.
District court lacked jurisdiction to enforce supreme court's writ of mandamus granted on petition filed originally in supreme
court; only supreme court had jurisdiction over enforcement issues.
2. Mandamus.
Upon finding that party refused or neglected to obey writ of mandamus, court was required to adjudge party guilty of contempt
and upon motion impose fine not exceeding $1,000, and it was only when guilty party persistently refused to obey writ that court could
make any additional orders necessary and proper for complete enforcement of writ. NRS 34.290.
3. Counties.
When county voters approved referendum repealing landfill ordinance, it was incumbent upon board of county commissioners to
refund all taxes collected pursuant to ordinance automatically, to extent such taxes were still held by county on date of repeal or were
spent or dispersed for purposes other than as set forth in landfill ordinance.
OPINION
Per Curiam:
In 1993, appellants, members of the White Pine County Board of County Commissioners, enacted Ordinance No. 285, Bill No.
4-21-93, which created a regional landfill and imposed a tax to fund it.
fund it. Over one year later,
1
respondents, a group of White Pine County citizens, circulated
a referendum petition calling for a repeal of the ordinance and a refund of the taxes collected
pursuant to the ordinance. The referendum was presented to the Board, and the Board voted
not to submit the referendum to the voters on the sole ground that the ordinance was
administrative rather than legislative in nature and thus not subject to repeal by referendum.
See Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 537, 516 P.2d 1234, 1236
(1973).
Respondents then filed a Petition for Writ of Mandamus in the district court asking that the
referendum be placed on the November 1994 ballot. The district court found that the
ordinance was administrative in nature and, therefore, denied the petition.
2
The respondents
did not appeal, but instead sought an original writ of mandamus from this court, which we
granted. Blackmore v. Bath, Docket No. 26214 (Order Granting Petition for Writ of
Mandamus, October 13, 1994). This court ordered that respondents' referendum petition be
placed on the November 1994 ballot.
3
Id.
This court issued the writ on October 13, 1994, and the ballots were scheduled to be
printed the next day. This required appellants to draft the ballot question and present it to the
printer by 2:00 p.m. on October 14, 1994. Petitioner Richard Barrows, Esq., who was acting
as special counsel for the county,
4
drafted the language in the ballot question to conform
with the language in NRS 295.045(4) (petition for referendum) and NRS 295.170(1) (form of
question on ballot). Barrows deleted the language in the referendum petition regarding the
refund of taxes collected because he believed such language was inappropriate in a
referendum under the applicable statutes.
__________

1
Respondents in this opinion refers to the respondents in the appeal, not the petition.

2
Appellants and the district court were of the opinion that because the county ordinance was adopted in
response to federally mandated guidelines for solid waste disposal and state statutes mandating the creation of
county solid waste disposal management systems, the ordinance simply puts into execution' those
previously-declared policies. Forman, 89 Nev. at 537, 516 P.2d at 1236 (quoting Denman v. Quinn, 116 S.W.2d
783, 786 (Tex. Civ. App. 1938)).

3
Notably, this court found it unwise and unnecessary to resolve whether the ordinance is administrative or
legislative in nature. Blackmore v. Bath, Docket No. 26214 (Order Granting Petition for Writ of Mandamus,
October 13, 1994). We simply believed it important that the voters be allowed to express their opinion on the
county's solid waste policies at the November 1994 election by having the referendum placed on the ballot. Id.
Significantly, we went on to state that if the referendum was approved by the voters, appellants would still have
an effective remedy in the form of a legal action similar to the action entertained in Forman. Id.

4
The district attorney would normally represent the appellants, but she disqualified her office from representing
appellants on the landfill referendum matter because of a conflict of interest.
language in the referendum petition regarding the refund of taxes collected because he
believed such language was inappropriate in a referendum under the applicable statutes. Thus,
the ballot question merely asked voters whether the ordinance should be repealed.
5

The voters approved the referendum calling for a repeal of the ordinance. Respondents
thereafter filed a motion to enforce this court's writ in district court, seeking a refund of all
taxes
6
collected pursuant to the ordinance and a finding that appellants were in contempt for
not including the tax refund language on the ballot.
After an extensive hearing on the matter, the district court found that appellants violated
the writ by failing to put the tax refund language on the ballot and ordered appellants to
refund all the taxes collected pursuant to the ordinance
7
or to hold a special election funded
by the individual board members and their counsel, Mr. Barrows.
On appeal from the order, appellants claim that they complied with this court's writ of
mandamus, their noncompliance was not wilful even if they did not comply, and the district
court lacked authority to grant the relief it ordered.
__________

5
The question circulated on the referendum petition read as follows:
Shall White Pine County Ordinance # 285, Bill # 4-21-93, commonly known as the Landfill Tax be
repealed, and all taxes collected for that purpose be returned to the taxpayers?
The actual wording of the ballot question, as drafted by Barrows, was as follows:
Shall White Pine County Ordinance No. 285, Bill No. 4-21-93, which created the Copper Flat Regional
Solid Waste Disposal Facility, be repealed?

6
According to the affidavit of Doris Niman, Chief Deputy Treasurer for White Pine County, total revenues
received pursuant to the Landfill Tax for fiscal year 1993-94 were $560,295.00. Total revenues received
pursuant to the tax for fiscal year 1994-95 were as follows:
First quarter: $239,654.50
Second quarter: $ 85,723.00
Third quarter: $137,153.50
Fourth quarter: $ 92,736.25
TOTAL: $555,267.25
Niman states that, except for approximately $55,000.00, all landfill assessments for the second, third and fourth
quarter of fiscal year 1994-95, have been refunded pursuant to a directive of the White Pine County Board of
County Commissioners.

7
Specifically, the court ordered appellants to do the following:
[R]efund all taxes collected pursuant to Ordinance No. 285, from the date of its repeal and all taxes
collected after its enactment which were either (a) still held by the County on the date of repeal or (b)
spent or disbursed for purposes other than as set forth in the Landfill ordinance . . . .
wilful even if they did not comply, and the district court lacked authority to grant the relief it
ordered.
Barrows was not a party to the lawsuit in district court. Thus, Barrows cannot appeal from
the order. Accordingly, Barrows asks this court to grant a writ of certiorari or a writ of
prohibition to vacate that portion of the order affecting him or to prohibit enforcement of the
order against him.
[Headnotes 1, 2]
We conclude that the district court acted without jurisdiction and exceeded its authority in
its order enforcing the writ of mandamus that this court issued. First, the district court lacked
jurisdiction to enforce this court's writ of mandamus. The petition for writ of mandamus was
filed originally in this court, and only this court has jurisdiction over subsequent enforcement
issues. See California Teachers Ass'n v. Governing Board of Simi Valley, 207 Cal. Rptr. 659,
662 (Ct. App. 1984); City of Carmel-By-The-Sea v. Monterey County, 187 Cal. Rptr. 379,
384 (Ct. App. 1982). Second, even if the district court had jurisdiction to enforce the writ, the
court was not authorized to grant the relief it ordered. NRS 34.290 specifically delineates the
penalties for refusal or neglect to obey a writ. Initially, a court is to adjudge the party guilty
of contempt and upon motion impose a fine not exceeding $1,000. NRS 34.290(1). Only
when the guilty party persistently refuses to obey the writ may a court make any orders
necessary and proper for the complete enforcement of the writ. NRS 34.290(2). All these
other sanctions are held in abeyance until and unless the $1,000 fine does not induce the
fined party to comply with the writ.
8
Appellants and petitioner Barrows did not persistently
refuse to obey this court's writ and, therefore, the alternative sanctions ordered by the
district court were in excess of its authority under NRS 34.290.
[Headnote 3]
Based on the foregoing, we need not reach the merits of whether the district court erred in
determining that appellants failed to comply with this court's writ of mandamus by failing to
include the tax refund language on the ballot. Such a determination is unnecessary in any
event. Regardless of whether the tax refund language was on the ballot, we believe that when
the voters approved the referendum repealing the landfill ordinance, it was incumbent upon
appellants to refund all taxes collected pursuant to the ordinance automatically. The refund
applies to all taxes collected pursuant to the ordinance after its enactment that were
either {1) still held by the county on the date of repeal or {2) spent or disbursed for
purposes other than as set forth in the landfill ordinance.
__________

8
The district court's ordering of a special election also violates NRS 295.115(2): The vote of the county on a
proposed or referred ordinance must be held at the next primary or general election. (Emphasis added.)
taxes collected pursuant to the ordinance after its enactment that were either (1) still held by
the county on the date of repeal or (2) spent or disbursed for purposes other than as set forth
in the landfill ordinance. We note that refunding the taxes is one of the alternative sanctions
that the district court imposed on appellants. However, characterizing the refund of these
taxes as a sanction is improper. Appellants have a duty to refund these taxes not on account
of the district court's order but due to the very fact that the ordinance was repealed.
Considering that this matter has now been clarified for appellants, appellants must refund all
taxes accordingly.
Because the district lacked jurisdiction and exceeded its authority in enforcing this court's
writ of mandamus, we reverse the district court's order. We also grant the petition. The clerk
of this court shall forthwith issue a writ of prohibition preventing the district court from
enforcing its order against petitioner Barrows.
9

____________
112 Nev. 344, 344 (1996) Solis-Ramirez v. District Court
JOSE DEJESUS SOLIS-RAMIREZ, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT of the State of Nevada, in and for the County of Clark, and THE
HONORABLE JOHN S. McGROARTY, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 28029
April 3, 1996 913 P.2d 1293
Original petition for a writ of mandamus. Eighth Judicial District Court, Clark County;
John S. McGroarty, Judge.
After he was indicted by grand jury on drug charges, defendant moved to dismiss
indictment contending that he did not receive adequate notice of grand jury hearing as
required by statute. The district court denied motion, and defendant petitioned for writ of
mandamus. The supreme court held that: (1) notice of hearing given to defendant at time of
arrest did not constitute reasonable notice as notice did not provide date, time, and location of
hearing, and placed burden on defendant to call district attorney's office and obtain
information, and {2) defendant was entitled to writ of mandamus as no adequate legal
remedy existed.
__________

9
The writ of prohibition shall be granted to arrest the proceedings of an inferior court when such proceedings
are without or in excess of the court's jurisdiction and there is no plain, speedy and adequate remedy in law. NRS
34.320; NRS 34.330. Barrows has no other way to contest the district court's order than through this
extraordinary procedure. As a non-party, Barrows cannot appeal from the order and there is no other plain,
speedy or adequate remedy in law available to him. Therefore, because the district court acted without
jurisdiction and exceeded its authority in entering its order against Barrows, a writ of prohibition is in order.
hearing, and placed burden on defendant to call district attorney's office and obtain
information, and (2) defendant was entitled to writ of mandamus as no adequate legal remedy
existed.
Petition granted.
[Rehearing denied December 17, l996]
Carmine J. Colucci, Las Vegas, for Petitioner.
Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney,
Clark County, for Real Party in Interest.
1. Grand Jury.
Defendant must be given reasonable notice that he is target of grand jury investigation before he is indicted by grand jury; purpose
of notice is to ensure his right to testify, as without proper notice right would be meaningless.
2. Grand Jury.
Notice of intention of state to obtain grand jury indictment which was provided to defendant following his arrest which informed
defendant that he had right to testify, to provide exculpatory evidence, and to be accompanied by attorney at hearing, and that he was
required to contact district attorney within five days of receipt of notice if he wanted to testify or present evidence, did not give
reasonable notice of hearing, as required by statute. Notice did not provide date, time, and location of hearing, and placed burden on
defendant to call district attorney's office and obtain information. NRS 172.241(2).
3. Mandamus.
Defendant who did not receive reasonable notice of grand jury hearing as required by statute was entitled to writ of mandamus
compelling district court to grant motion to dismiss his indictment on drug charges which was returned at grand jury hearing following
district court's initial denial of motion, as no adequate legal remedy existed. NRS 34.170, 172.241(2).
OPINION
Per Curiam:
This original petition for a writ of mandamus challenges an order of the district court denying Jose Dejesus Solis-Ramirez's
(Ramirez) motion to dismiss a criminal indictment. Ramirez contends that the state failed to give him reasonable notice of the grand jury
hearing. For the reasons discussed below, we grant the petition for a writ of mandamus.
FACTS
On May 19, 1995, Ramirez and two other men were arrested at the McCarran International Airport in Las Vegas, Nevada for
transporting cocaine and heroin.
transporting cocaine and heroin. Ramirez was provided with notice of the state's intention to
obtain a grand jury indictment against him. The notice informed Ramirez that he had the right
to testify, to present exculpatory evidence, and to be accompanied by an attorney at the grand
jury hearing. Further, the notice informed Ramirez that he must contact the district attorney's
office within five days of receipt of the notice if he wanted to testify or to present evidence at
the hearing. The notice provided an address and a telephone number to call between the hours
of 9 a.m. and 5 p.m. The notice did not state the date, time, or place of the grand jury hearing.
Ramirez was not present at the grand jury hearing held on May 25, 1995. After hearing
testimony from three witnesses for the state, the grand jury returned a true bill charging
Ramirez with one count of conspiracy to transport a controlled substance, one count of
transporting a controlled substance, and two counts of trafficking in a controlled substance.
An indictment was filed on May 26, 1995.
On November 14, 1995, Ramirez's co-defendant, Jose Nunez Garcia (Garcia), filed in
the district court a motion to dismiss the criminal indictment, contending that Garcia failed to
receive proper notice of the grand jury hearing. With permission from the district court,
Ramirez joined Garcia's motion to dismiss. After a hearing, the district court denied the
motion to dismiss, and set the matter for trial on February 12, 1996. Ramirez then filed the
instant petition for a writ of mandamus, which the state has opposed.
DISCUSSION
Ramirez contends that he was not provided with adequate notice of the grand jury hearing
pursuant to NRS 172.241(2) because the notice did not specify the date, time, and place of the
hearing. Ramirez asserts that the district attorney was obligated to give him notice of the
time, date, and place of the grand jury hearing, which would have enabled Ramirez to
exercise his right to testify at the hearing. The state contends that the notice provided to
Ramirez was reasonable pursuant to NRS 172.241(2), because it conveyed the district
attorney's intent to seek an indictment. The state asserts that the reasonable notice provision
of NRS 172.241(2) does not require that the notice contain the time and date of the hearing,
and that the notice provided to Ramirez was sufficient.
[Headnote 1]
We have considered the petition and we are satisfied that this court's intervention by way
of extraordinary writ is warranted. In Sheriff v. Marcum, 105 Nev. S24, S26
Sheriff v. Marcum, 105 Nev. 824, 826-27, 783 P.2d 1389, 1390-91 (1989), this court held that
a defendant must be given reasonable notice that he is the target of a grand jury investigation
before he is indicted by a grand jury. The purpose of reasonable notice is to ensure that a
defendant has an opportunity to exercise his right to testify at the grand jury hearing. Id.
Without proper notice, the right to testify would be meaningless. Id. at 826-27, 783 P.2d at
1390.
In 1991, the Nevada Legislature added the following provision to NRS 172.241:
A district attorney shall give reasonable notice to a person whose indictment is being
considered by a grand jury unless the court determines that adequate cause exists to
withhold notice. The notice is adequate if given to the person, his attorney of record or
an attorney who claims to represent the person.
NRS 172.241(2). This provision reflects the reasonable notice requirement expressed in
Marcum.
[Headnotes 2, 3]
The state's contention that the notice provided to Ramirez constitutes reasonable notice
pursuant to NRS 172.241(2) lacks merit. Although NRS 172.241(2) does not specifically
state what constitutes reasonable notice, we conclude that the notice provided to Ramirez was
not reasonable. The notice did not provide the date, time, or place of the grand jury hearing.
NRS 172.241(2) requires notice of a grand jury hearing, not notice that a grand jury hearing
will be held at some time in the future. Such notice did not ensure Ramirez's right to testify at
the grand jury hearing. Further, the notice merely alerted Ramirez of the district attorney's
intention to seek an indictment and that he could testify if he contacted the district attorney's
office. NRS 172.241(2) places the burden on the district attorney's office to give an accused
reasonable notice of a grand jury hearing. The notice provided to Ramirez placed the burden
on him to call the district attorney's office from jail and locate the information regarding the
date, time, and location of the hearing. Therefore, we conclude that the state did not provide
Ramirez with reasonable notice of the grand jury hearing as required by NRS 172.241(2).
A writ of mandamus will issue only where there is no plain, speedy, and adequate remedy
at law. NRS 34.170. Ramirez does not have an adequate legal remedy from the district court's
order denying the motion to dismiss the criminal indictment. See NRAP 3A; NRS 177.015.
CONCLUSION
Accordingly, we grant this petition for a writ of mandamus. The clerk of this court shall
issue a writ of mandamus compelling the district court to grant Ramirez's motion to dismiss
the criminal indictment. We lift the stay of proceedings in the district court imposed by our
order filed February 7, 1996.
____________
112 Nev. 348, 348 (1996) Donald v. State
GARY LANEIL DONALD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 23980
April 3, 1996 913 P.2d 655
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
possession of a controlled substance with intent to sell. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
The supreme court held that: (1) any error in jury instruction that expanded definition of
charged offense to include possession with intent to distribute was harmless beyond a
reasonable doubt; (2) same instruction did not amount to improper change in prosecution's
theory of the case; and (3) prosecutor's reference to cocaine as poision did not constitute
misconduct.
Affirmed.
[Rehearing denied December 23, 1996]
Morgan D. Harris, Public Defender and Gary H. Lieberman, Deputy, Clark County, for
Appellant.
and James Tufteland, Chief Deputy, Clark County, for Respondent.
1. Criminal Law.
Any error in jury instruction that expanded definition of possessing controlled substance with intent to sell to include possession
with intent to distribute was harmless beyond a reasonable doubt, where defendant's entire defense was premised on argument that he
was merely present and never possessed the cocaine in question, and where he never argued that he intended to distribute, but not sell,
the cocaine. NRS 453.337.
2. Drugs and Narcotics.
Jury instruction, erroneously expanding definition of possession of controlled substance with intent to sell to include possession
with intent to distribute, did not amount to an untimely and improper new prosecution theory of the case beyond what was
alleged in the information, where state did not argue that defendant intended to distribute the cocaine in
question, but maintained consistently that defendant possessed the cocaine with intent to sell it.
tion theory of the case beyond what was alleged in the information, where state did not argue that defendant intended to distribute the
cocaine in question, but maintained consistently that defendant possessed the cocaine with intent to sell it. NRS 453.337.
3. Criminal Law.
Prosecutor's reference to cocaine as poison at defendant's jury trial for possessing controlled substance with intent to sell did not
constitute prosecutorial misconduct. NRS 453.337.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, entered pursuant to a jury verdict, of one count of possession of a controlled
substance with intent to sell. NRS 453.337. Between 8:00 p.m. and 11:30 p.m. on April 10, 1989, a police officer observed appellant ride a
bicycle in a known drug trafficking area of North Las Vegas and engage in conversation and exchange handshakes with two groups of
pedestrians and the occupants of a vehicle. The officer approached appellant and questioned him regarding his identity. Appellant
attempted to flee by bicycle. The officer stopped appellant and, fearing appellant was armed, conducted a pat down search of appellant
for weapons. Appellant attempted to elbow the officer, and a struggle ensued. During the struggle, the officer saw appellant make a
throwing motion, and a small packet flew from the area of appellant's hand and landed on the ground. The packet contained fifteen rocks
of cocaine, weighing a total of 2.3 grams.
Following a jury trial, appellant was convicted of one count of possession of a controlled substance with intent to sell pursuant to NRS
453.337. The district court sentenced appellant to serve twelve years in the Nevada State Prison, but suspended the sentence and placed
appellant on probation for an indeterminate amount of time not to exceed five years.
1
Further, the district court
sentenced appellant to pay $2,368.59 in restitution, to be paid within the first eighteen months
of probation, and to pay a $25 administrative fee and a $60 drug analysis fee.
[Headnote 1]
Appellant contends that he was denied a fair trial because a jury instruction expanded the
definition of his crime beyond the statutory definition. Specifically, the district court
instructed the jury that it should find appellant guilty if it found that appellant intended to sell
or distribute a controlled substance. NRS 453.337, under which appellant was convicted,
prohibits possession of a controlled substance with intent to sell, but does not mention
distribution.
__________

1
Appellant informs us that his probation was revoked on June 22, 1993, so that he is now serving the
underlying sentence.
453.337, under which appellant was convicted, prohibits possession of a controlled substance
with intent to sell, but does not mention distribution. Appellant did not object to the
instruction at the time of trial.
2
Appellant's entire defense was premised on the argument that
he was merely present and never possessed the cocaine. Appellant never argued that he
intended to distribute, but not sell, the cocaine, and such argument would have been
inconsistent with his chosen defense theory. Therefore, appellant was not prejudiced, and any
error in the jury instruction was harmless beyond a reasonable doubt. See Guy v. State, 108
Nev. 770, 777-78, 839 P.2d 578, 583 (1992), cert. denied, 507 U.S. 1009, 113 S. Ct. 1656
(1993).
[Headnote 2]
Appellant also contends that the erroneous instruction amounted to an untimely and
improper new prosecution theory of the case beyond what was alleged in the information. See
Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983); see also Ikie v. State, 107 Nev. 916, 823
P.2d 258 (1991). The state did not argue, however, that appellant intended to distribute the
cocaine. The state's theory of the case consistently was that appellant possessed the cocaine
with the intent to sell it. Therefore, the improper instruction did not amount to a change in the
prosecution's theory of the case under Barren.
[Headnote 3]
Further, appellant contends that the prosecutor inflamed the passions of the jury and
committed misconduct warranting reversal, even absent a contemporaneous objection, by
referring to cocaine as poison. This remark, however, does not constitute prosecutorial
misconduct. See generally Klein v. State, 105 Nev. 880, 784 P.2d 970 (1989); cf. Sipsas v.
State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986). Accordingly, we affirm the judgment of
conviction entered in the district court.
The district court instructed the jury that it should find appellant guilty if it found that
appellant possessed a controlled substance with the intent to sell or distribute it. NRS
453.337, under which appellant was convicted, prohibits possession of a controlled substance
with intent to sell, but does not mention distribution. Specifically, NRS 453.337(1) provides
in relevant part that it is unlawful for any person to possess for the purpose of sale any
controlled substance classified in schedule I or II. The instruction is erroneous because it
allows the jury to make a finding of guilt based upon conduct not prohibited by statute.
__________

2
Seven days after his trial concluded, appellant filed a motion for a new trial based on the erroneous jury
instruction.
instruction is erroneous because it allows the jury to make a finding of guilt based upon
conduct not prohibited by statute. See NRS 193.050(1) (No conduct constitutes a crime
unless prohibited by some statute of this state . . . .); Slobodian v. State, 107 Nev. 145, 808
P.2d 2 (1991).
A conviction obtained pursuant to an erroneous jury instruction must be reversed unless
the error is harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 576 (1986);
Guy v. State, 108 Nev. 770, 777-78, 839 P.2d 578, 583 (1992), cert. denied, 507 U.S. 1009,
113 S. Ct. 1656 (1993). Such error is harmless only in rare circumstances, such as where
there was overwhelming evidence of the defendant's guilt, or where the defendant admitted
having the requisite criminal intent. Guy, 108 Nev. at 777-78, 839 P.2d at 583; Thompson v.
State, 108 Nev. 749, 756, 838 P.2d 452, 457 (1992). Where this court cannot be confident
that the error played no role in the jury's deliberations, a defective jury instruction warrants
reversal. See Corbin v. State, 111 Nev. 378, 382, 892 P.2d 580, 582 (1995) (jury instruction
erroneously stated that, to employ the defense of entrapment, the defendant had the burden of
proving lack of predisposition); Culverson v. State, 106 Nev. 484, 487-88, 797 P.2d 238,
239-40 (1990) (jury instruction was unclear or misleading regarding permitted use of deadly
force in self-defense); Cotter v. State, 103 Nev. 303, 306, 738 P.2d 506, 508 (1987) (quoting
NRS 484.3795) (jury instruction omitted the statutory requirement that for conviction of
driving while under the influence of a controlled substance one must be under the influence
of a controlled substance to a degree that renders him incapable of safely driving or
exercising actual physical control of the vehicle' ); Ramos v. State, 95 Nev. 251, 253, 592
P.2d 950, 951 (1979) (district court erroneously instructed the jury that it could find the
defendant guilty of attempted murder even if he did not have the intent to kill).
The majority concludes that appellant was not prejudiced by the jury instruction because
his defense theory at trial was that he never possessed the cocaine, not that he possessed it
and intended to distribute, rather than sell it. The prosecutor specifically told the jury at
closing argument, however, that the only issue it need concern itself with was appellant's
intent when he possessed the cocaine. The state has the burden of proving a defendant's guilt,
not of disproving his defense, and the erroneous jury instruction reduced that burden.
Consequently, I cannot be confident that the erroneous jury instruction played no role in the
jury's deliberations and was harmless beyond a reasonable doubt.
Appellant's contention that the erroneous jury instruction amounted to prosecution for
conduct not charged in the complaint also has merit, and further compels our
determination that appellant's conviction was improperly obtained.
also has merit, and further compels our determination that appellant's conviction was
improperly obtained. See Barren v. State, 99 Nev. 661, 668, 669 P.2d 725, 729 (1983); see
also Ikie v. State, 107 Nev. 916, 919-20, 823 P.2d 258, 261 (1991). Therefore, I would
reverse appellant's conviction and remand this matter to the district court for a new trial.
____________
112 Nev. 352, 352 (1996) Blandino v. State
KIM BLANDINO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26521
April 3, 1996 914 P.2d 624
Appeal from a judgment of conviction entered following a bench trial of one count of
violation of custody rights. Eighth Judicial District Court, Clark County; A. William Maupin,
Judge.
On defendant's petition for rehearing on denial of motion to proceed in proper person, the
supreme court held that: (1) defendant had no right to self-representation on appeal; (2)
requirement that defendant be represented by counsel on appeal did not violate First
Amendment; and (3) requirement that defendant be represented by counsel on appeal did not
violate Religious Freedom Restoration Act (RFRA).
Motion to proceed in proper person and petition for rehearing denied.
Martin Hastings, Las Vegas, for Appellant.
1. Constitutional Law; Criminal Law.
Defendant had no right to self-representation on appeal. Sixth Amendment applied only to trials, and due process right to fair
appeal would be hindered by establishing right to self-representation on appeal. U.S. Const. amends. 6, 14.
2. Criminal Law.
Supreme court has duty to ensure that appellants in criminal cases receive fair appeal. U.S. Const. amends. 6, 14.
Requirement that defendant be represented by counsel on appeal from a conviction did not violate First Amendment, despite
defendant's contention that God had instructed him not to retain counsel and that forcing him to do so would violate his religious
beliefs by requiring him to disobey God. Requirement that defendant be represented by counsel on appeal applied to all
convicted persons equally, did not target religion, and had only incidental effect on religions views.
on appeal applied to all convicted persons equally, did not target religion, and had only incidental effect on religions views. U.S. Const.
amend. 1.
4. Civil Rights.
Requirement that defendant be represented by counsel on appeal did not violate Religious Freedom Restoration Act (RFRA),
despite defendant's contention that God had instructed him not to retain counsel and that forcing him to do so would violate his
religious beliefs by requiring him to disobey God. Requirement did not substantially burden defendant's right to free exercise of
religion in that it required defendant at most to have counsel brief merits of appeal and possibly appear at oral argument, and State had
compelling interest in insuring adequate appellate review of judgment depriving defendant of liberty. 42 U.S.C. 2000bb.
OPINION
Per Curiam:
FACTS
Following a preliminary hearing, the state charged appellant with one count of violation of custody rights. See NRS 200.359. The state
accused appellant of removing his two children from the State of Nevada and wilfully concealing them from their mother. Appellant
requested the district court to allow him to proceed in proper person and to engage the services of a friend who was not a licensed attorney,
but who had legal experience. Appellant did not trust attorneys and indicated that his religious beliefs precluded him from relying on the
advice of persons who do not share his beliefs.
The district court conducted a thorough canvass under Faretta v. California, 422 U.S. 806 (1975). The district court concluded that
appellant voluntarily requested to proceed in proper person and that he understood the dangers and consequences of self-representation. The
district court informed appellant, however, that appellant's friend could not represent him in court in any manner.
The district court conducted a bench trial and found appellant guilty of the crime of violation of custody rights. The district court
conducted a sentencing hearing on August 24, 1994, and sentenced appellant to serve a term of six years in the Nevada State Prison and
ordered him to pay $3,000.00 in restitution. This appeal followed.
On January 10, 1995, the clerk of this court received appellant's motion to proceed in proper person. NRAP 46. On February 2, 1995,
this court denied appellant's motion and remanded this matter to the district court for the appointment of counsel. On February 16,
1995, appellant filed a petition for rehearing on the denial of his motion to proceed in proper person.
February 16, 1995, appellant filed a petition for rehearing on the denial of his motion to
proceed in proper person. The district court appointed counsel to represent appellant on
March 20, 1995.
DISCUSSION
Appellant contends that he has a constitutional right to waive counsel on appeal and to
represent himself. Appellant views his waiver of trial counsel and the district court's Faretta
canvass as a permanent waiver of counsel.
In Faretta v. California, 422 U.S. 806, 818-19 (1975), the United States Supreme Court
ruled that the right to trial counsel as guaranteed under the Sixth Amendment provided
criminal defendants the inverse right to self-representation at trial. The Court concluded that
forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself
if he truly wants to do so. Id. at 817. The Supreme Court has not addressed whether the right
to self-representation extends to direct appeals.
[Headnote 1]
The language of the Sixth Amendment demonstrates that no right to self-representation
exists on appeal. That amendment only applies to criminal trials:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district court wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
Because the Sixth Amendment only applies to trials, it does not support the existence of a
right to self-representation on appeal. See Lumbert v. Finley, 735 F.2d 239, 245 (7th Cir.
1984). Faretta is thus distinguishable. Lumbert, 735 F.2d at 245.
[Headnote 2]
Persuasive reasons support requiring the assistance of counsel on direct appeal from a
conviction. This court has a duty to ensure that appellants receive a fair appeal. See, e.g.,
United States v. Turnbull, 888 F.2d 636, 639-40 (9th Cir. 1989) cert. denied 498 U.S. 825
(1990); Africa v. Anderson, 542 F. Supp. 224, 229-30 (E.D. Pa. 1982). This court could not
ensure the fairness of criminal appeals if we were to create a right to self-representation on
appeal. Documents filed by persons who are untrained in the law are often incoherent and
fail to identify the issues presented on appeal.
untrained in the law are often incoherent and fail to identify the issues presented on appeal.
Poorly drafted pleadings also require additional time to review and add to the already
overwhelming workload of this court. The due process right to a fair appeal would be
hindered by establishing a right to self-representation on appeal.
[Headnote 3]
Appellant contends further that he has a right to represent himself based on his religious
beliefs. Appellant asserts that God has instructed him not to retain counsel, but to pursue his
appeal in proper person. According to appellant, forcing counsel upon him would violate his
religious beliefs by requiring him to disobey God. Appellant asserts a constitutional right to
represent himself based on the Free Exercise Clause of the First Amendment.
In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court
concluded that a generally applicable and otherwise valid law or regulation that only has an
incidental effect on religious practices is constitutional under the First Amendment. Id. at
878. This court's practice of requiring legal representation in direct appeals from convictions
applies to all convicted persons equally. It does not target religion and it only has an
incidental effect on religious views which oppose representation by licensed counsel. This
court's neutral practice of requiring legal representation is permissible under Smith.
[Headnote 4]
Appellant also claims a statutory free exercise right to self-representation based on the
Religious Freedom Restoration Act (RFRA). 42 U.S.C. 2000bb. The RFRA allows the
government to substantially burden an individual's right to free exercise of religion only if
the government asserts a compelling governmental interest and the burden is the least
restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000bb-l.
Assuming without deciding that the RFRA is constitutional, this court's practice of
requiring counsel on direct appeal from a conviction does not substantially burden appellant's
right to free exercise of religion. At the most, requiring counsel only forces appellants to have
counsel brief the merits of appeals and possibly appear for oral argument. Appellants retain
the right to move this court for permission to file briefs in proper person under NRAP 46.
These burdens are minimal and do not significantly affect appellant's free exercise rights.
Further, we consider the state's interest in insuring an adequate appellate review of judgments
which deprive individuals of their liberty to be compelling.
Appellant has neither a statutory right to self-representation on appeal nor a First
Amendment right to proceed in proper person on appeal. We deny appellant's petition for
rehearing. Counsel for appellant shall file a docketing statement within ten (10) days from the
date of this Opinion. Counsel shall also file the opening brief within forty (40) days of the
date of this Opinion. Briefing shall then proceed in accordance with NRAP 31(a)(1).
____________
112 Nev. 356, 356 (1996) State, Dep't Ins. v. Humana Health Ins.
THE STATE OF NEVADA, DEPARTMENT OF INSURANCE, and TERESA FRONCEK
RANKIN, in Her Capacity as Insurance Commissioner of the State of Nevada,
Appellants, v. HUMANA HEALTH INSURANCE OF NEVADA, INC., a Nevada
Corporation, Respondent.
No. 25391
April 12, 1996 914 P.2d 627
Appeal from an order of the district court granting a petition for judicial review and
reversing the decision of a Department of Insurance appeals officer. Eighth Judicial District
Insurer challenged Department of Insurance appeals officer's determination that insurer's
state office was not home office for purposes of home office tax credit against premiums
levied on insurers transacting business in state. The district court reversed. Department of
Insurance Commissioner appealed. The supreme court held that Department could determine
additional criteria for qualification for home office tax credit based on plain meaning of term
home office as derived from industry usage.
Reversed.
Frankie Sue Del Papa, Attorney General, and James C. Smith, Deputy Attorney General,
Carson City, for Appellants.
Lionel Sawyer & Collins and Paul Larsen and David N. Frederick, Las Vegas, for
Respondent.
Generally, appellate courts are prohibited from substituting their judgment for that of agencies as to weight of evidence on
question of fact. NRS 233B.135.
2. Statutes.
Appellate courts may undertake independent review of administrative construction of statute.
3. Statutes.
Words in statute should be given their plain meaning unless this violates spirit of act.
4. Taxation.
Statutory criteria for establishing home office, for purposes of home office tax credit against insurance premiums levied on
insurers transacting business in state, were not only requirements for determining if insurer could claim such credit, and therefore
Department of Insurance could determine additional criteria for qualification for tax credit based on plain meaning of term home
office as derived from industry usage. NRS 680B.050(4).
OPINION
Per Curiam:
Humana Health Insurance of Nevada, Inc. (Humana-Nevada) filed tax returns for the 1988, 1989, and 1990 tax years. The returns
claimed the home office tax credit allowed to insurers under NRS 680B.050. After disallowing as untimely Humana-Nevada's 1988 request
for the credit, the Department of Insurance (DOI) commenced an examination of insurers claiming the home office tax credit, including
Humana-Nevada. The DOI determined Humana-Nevada did not function as a home office and ordered Humana-Nevada to pay the
delinquent amount of taxes it had claimed in the credit for the 1989 and 1990 tax years. The DOI appeals officer affirmed this decision. On
appeal to the district court, the appeals officer was reversed. The district court concluded the DOI had acted improperly in developing home
office determination criteria for the 1991 examination of Humana-Nevada. The DOI appealed. We now decide the district court's
conclusion regarding the DOI's home office criteria was erroneous and reverse its order.
FACTS
The action in the instant case stems from a tax dispute between the DOI and Humana-Nevada over Humana-Nevada's claim for the
home office tax credit for the 1988, 1989, and 1990 tax years. The home office tax credit is found in NRS 680B.050. Humana-Nevada is a
licensed domestic health insurer conducting business as a preferred provider group organization for Nevada. Humana-Nevada's only office
is located in Las Vegas, Nevada. However, Humana-Nevada is a member of a large group of medical care and hospital business operations.
The ultimate parent of this group of medical benefits providers is Humana, Inc., which is based in Louisville, Kentucky.
By establishing a home office in Nevada, an insurer is entitled to a substantial credit against its taxes. NRS 680B.050(4) provides
that an insurer is not entitled to the home office tax credit unless "[t]he insurer owned the property upon
which the reduction is based for the entire year for which the reduction is claimed" and "[t]he insurer occupied
at least 70 percent of the usable space in the building to transact insurance . . . ."
vides that an insurer is not entitled to the home office tax credit unless [t]he insurer owned
the property upon which the reduction is based for the entire year for which the reduction is
claimed and [t]he insurer occupied at least 70 percent of the usable space in the building to
transact insurance . . . . NRS 680B.050 provides no other criteria for home office
determination. These are also the only requirements listed on the DOI's tax form provided to
insurers for use in claiming the home office tax credit.
Humana-Nevada did not initially claim the home office tax credit on its return for the 1988
tax year. However, within the time allowed by NRS 680B.050(3), Humana-Nevada filed an
amended return, including calculation of the home office tax credit. On December 15, 1989,
the DOI commissioner wrote Humana-Nevada denying its request on the ground that
Humana-Nevada had not met the deadline for amended returns required by NRS 680B.050(3)
and concluding that no statutory provision existed which allowed for the filing of an amended
return after the statutory date. After requesting the credit for a second time and receiving a
second denial, Humana-Nevada sought a hearing on the denial. DOI refused
Humana-Nevada's request for a hearing in a written decision designated Cause No. 90.109.
Humana-Nevada next sought judicial review of the DOI's decision. On May 8, 1991, the
district court remanded the matter to the DOI for a hearing or findings on Humana-Nevada's
request.
In 1991, the DOI commissioner ordered an examination of insurance companies that
claimed the home office tax credit in NRS 680B.050. The DOI looked to the industry
standard for home office criteria. A home office is generally understood in the industry as the
place where an insurance company maintains its chief executive and general supervisory
departments. Therefore the criteria the DOI used in determining whether or not the insurer
had properly claimed the home office exemption included whether it performed functions
consisting of underwriting, premium accounting, payroll, and actuarial and administrative
functions in its Las Vegas office. These criteria were circulated within the DOI and used as
questions in the DOI's investigation of insurance companies claiming this credit.
Humana-Nevada's review was completed on July 1, 1991. The review indicated that
Humana-Nevada had owned the building for the entire year the reduction was claimed.
However, the report indicated that the only functions performed at the Las Vegas office were
marketing and support services to health care providers, plan members, and group
policyholders. Remaining corporate functions were performed outside of the Las Vegas
office. The report also noted that the top level employee in the Las Vegas office, the
executive director, reported directly to and was subordinate to one of the corporate vice
presidents in Louisville, Kentucky.
office, the executive director, reported directly to and was subordinate to one of the corporate
vice presidents in Louisville, Kentucky.
Humana-Nevada's office in Las Vegas also served as an office for two of Humana's
subsidiaries licensed to do business in the State of Nevada. Humana-Nevada's office listed
twenty-nine employees. However, payroll checks were issued by Humana, Inc. and drawn on
a bank account in Kentucky which was not owned by Humana-Nevada. Job description sheets
and vacancy announcements found in Humana-Nevada's files were labeled Humana Health
Care Plans. Payroll was issued through Louisville as part of a management service
agreement with Group Health Insurance, Inc., a wholly owned subsidiary of Humana, Inc.
The services to be performed by Group Health Insurance were marketing, internal auditing,
budgeting and business planning, systems and development, regulatory agency filings,
medical claims processing, payment of payroll, and allocation of consolidated federal income
tax.
The DOI report concluded that the operations of Humana-Nevada were much more like
that of a branch office of Humana than of a home office, as that term is generally understood
in the industry. The DOI concluded that the Kentucky office was the seat of power and the
place where the direction of Humana-Nevada's operation was controlled and monitored.
After completing the examination in 1991, the DOI filed a complaint against
Humana-Nevada, retroactively challenging its entitlement to the home office tax credit for the
1989 and 1990 tax years. The DOI's challenge to Humana-Nevada's home office tax credit on
its 1989 and 1990 returns was designated Cause No. 91.074. The DOI commissioner ordered
Cause No. 90.109, the challenge of the denial for the 1988 tax return, to be consolidated with
Cause No. 91.074. The DOI commissioner appointed an appeals officer to hear the case.
The appeals officer found for the DOI, ordering Humana-Nevada to pay the deficiency
assessment for the home office tax credit improperly taken for the 1988, 1989, and 1990 tax
years. Additionally, the appeals officer denied Humana-Nevada's request for a refund of the
home office tax credit for the 1988 tax year. The appeals officer relied on evidence that the
insurance industry considers a home office to be the office where key executives and key
records of an insurer are located and where major functions of the business, such as rate
making, underwriting, and investment decisions, are performed. The appeals officer
concluded that the evidence indicated that for Humana-Nevada, most of these functions were
carried out in Louisville, Kentucky, not Las Vegas. Humana-Nevada then sought judicial
review of the appeals officer's decision, and the district court reversed this decision.
the appeals officer's decision, and the district court reversed this decision.
DISCUSSION
[Headnotes 1, 2]
Generally, NRS 233B.135 prohibits appellate courts from substituting their judgment for
that of agencies as to the weight of evidence on a question of fact. See Nevada Indus. Comm'n
v. Hildebrand, 100 Nev. 47, 52, 675 P.2d 401, 404 (1984). However, this case involves
statutory construction of NRS 680B.050. Therefore, this court may undertake independent
review of the administrative construction of a statute.' SIIS v. Campbell, 109 Nev. 997, 999,
862 P.2d 1184, 1185 (1993) (quoting American Int'l Vacations v. MacBride, 99 Nev. 324,
326, 661 P.2d 1301, 1302 (1983)).
[Headnote 3]
In regard to statutory interpretation, this court has stated:
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained will prevail over the
literal sense. The meaning of words used in a statute may be sought by examining the
context and by considering the reason or spirit of the law or the causes which induced
the legislature to enact it. The entire subject matter and the policy of the law may also
be involved to aid in its interpretation, and it should always be construed so as to avoid
absurd results.
Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994) (quoting
Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 458-59
(1972)). Additionally, words in a statute should be given their plain meaning unless this
violates the spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438,
440 (1986).
[Headnote 4]
NRS 680B.050(1) states that a domestic or foreign insurer which owns and substantially
occupies and uses any building in the state as its home office or as a regional home office is
entitled to certain credits against the general tax on premiums levied on insurers transacting
business in Nevada. NRS 680B.050(4) states that an insurer is not entitled to the credits
unless (1) the insurer owned the property for the entire taxable year, and (2) occupied at least
seventy percent of the usable space of the property to conduct insurance transactions.
Uncontested evidence established that Humana-Nevada met both these requirements.
Humana-Nevada argues that any other criteria the DOI used in determining whether or
not to grant Humana-Nevada the home office tax credit were improper.
Nevada argues that any other criteria the DOI used in determining whether or not to grant
Humana-Nevada the home office tax credit were improper.
Humana-Nevada argues the DOI denied the home office tax credit based on factors listed
in an ad hoc regulation, i.e., the questions circulated within the DOI to be used in the
investigations.
1
NRS 233B.038 defines a regulation as an agency rule, standard, directive or
statement of general applicability which effectuates or interprets law or policy, or describes
the organization, procedure or practice requirements of any agency.
Humana-Nevada relies on Coury v. Whittlesea-Bell, 102 Nev. 302, 721 P.2d 375 (1986),
to argue that the DOI's criteria was an ad hoc regulation. In Coury, this court stated that
defining stretch limousine for the purpose of granting or denying licenses to operate at the
airport was tantamount to setting a standard of general applicability. However, in Coury, the
commission was creating a definition for a new subclass of limousines, stretch limousines.
Limousines were mentioned in the statute and already had an established dictionary
definition, and the Legislature had not mentioned this subclass of limousines in the statute.
Id. at 305, 721 P.2d at 377.
We conclude that Coury does not control in this instance. The term home office was put in
the statute by the Legislature, and two minimum requirements had to be met before being
eligible for the tax credit. The Legislature did not attempt to define the term home office
further, but there is no indication that it was attempting to give a complete exhaustive
definition to the term. The definition of the term home office was well known both within the
insurance industry and to legislators. Testimony by the DOI's staff indicated that the
parameters of the term are well known.
The DOI presented testimony that home office had a specific well known definition in the
insurance industry: the place where an insurance company maintains its chief executive
and general supervisory departments and the principal office of an insurer in the
jurisdiction in which it is domiciled, from which its operations are directed.
__________

1
In 1985, the Legislature amended NRS 680B.050. The prior incarnation of the statute included additional
requirements that would indicate an insurer's office was actually a regional home office. These included the
following functions related to the insurance business: actuarial, medical (where required), law, approval or
rejection of applications for insurance and issuance of policies thereon, approval of payment of claims,
maintenance of records to provide policyholder information and service, advertising, publications, public
relations, and supervision and training of sales and service personnel. 1985 Nev. Stat., ch. 380, 6 at 1063-64.
However, the 1985 amendment of this statute repealed these requirements. The questions set out in the DOI
interoffice memorandum to establish home office criteria include, among others, the criteria deleted by the
Legislature in 1985. However, a review of the legislative history behind these changes reveals nothing to us that
indicates that these criteria should not be used in determining the home office status of an insurer.
an insurance company maintains its chief executive and general supervisory departments and
the principal office of an insurer in the jurisdiction in which it is domiciled, from which its
operations are directed. Therefore, in line with normal procedure, we must assume that the
Legislature left the definition to be provided by the agency. The only direction was that the
criteria listed in the statute would be used in the determination. However, we conclude, and
common sense dictates, that the statutory requirements are not the only requirements for
determining if an insurer can claim the home office credit and that the plain meaning of the
term could be derived by the Department from industry usage. State ex rel. Tax Comm'n v.
Saveway, 99 Nev. 626, 630, 668 P.2d 291, 291 (1983) (great deference will be afforded to an
administrative body's interpretation when it is within the statutory language).
We conclude that in disallowing the credit based on internally formulated criteria, the DOI
was merely construing a statute and this construction was correctly applied to the facts of this
case.
The DOI denied Humana-Nevada its home office tax credit for the 1988 tax year after it
filed an amended return. NRS 680B.120(1) provides the following, in pertinent part: Any
person from whom fees, charges or taxes imposed by this code have been erroneously
collected may apply for refund at any time within 1 year after the date such fees, charges or
taxes were originally required to be paid. However, Humana-Nevada was not entitled to a
refund on its tax payment for 1988 because the tax was not erroneously collected as
required by NRS 680B.120, because the 1991 examination indicated that Humana-Nevada
did not use its office as a home office.
CONCLUSION
We conclude that the DOI's definition of a home office was merely a statutory
interpretation and not an ad hoc regulation. Therefore, we conclude that the appeals officer
properly construed the term home office. Based on this construction, the appeals officer did
not err in finding that Humana-Nevada should be required to pay the deficiency for the 1989
and 1990 tax years and that Humana-Nevada was not entitled to a refund for the 1988 tax
year. Accordingly, we reverse the order of the district court.
Steffen, C. J., Springer, Shearing, and Rose, JJ., and Zenoff, Sr. J., concur.
2

__________

2
The Honorable David Zenoff, Senior Justice, was appointed to sit in place of The Honorable Cliff Young,
Justice. Nev. Const. art. 6, 19; SCR 10.
____________
112 Nev. 363, 363 (1996) Carson City v. Lepire
THE CONSOLIDATED MUNICIPALITY OF CARSON CITY, a Political Subdivision of
the State of Nevada; and THE CARSON CITY BOARD OF SUPERVISORS
LIQUOR and ENTERTAINMENT BOARD, Appellants, v. EUGENE L. LEPIRE,
Respondent.
No. 26809
April 12, 1996 914 P.2d 631
Appeal from an order of the district court granting a petition for a writ of mandamus
requiring the city to grant respondent a liquor license. First Judicial District Court, Carson
City; Michael E. Fondi, Judge.
After city liquor board denied application for liquor license for laundromat, applicant filed
petition for writ of mandamus. The district court granted application and ordered board to
grant liquor license. Board appealed. The supreme court held that: (1) district court erred in
admitting additional evidence which was not presented to board; (2) district court erred in
finding, as matter of law, that city ordinances pertaining to liquor licenses should be
construed against board and in a favor of applicant; and (3) sufficient evidence supported
board's decision to deny liquor license.
Writ vacated.
Noel Waters, District Attorney, Mark Forsberg, Deputy District Attorney, Carson City, for
Appellants.
Heaton & Doescher, Carson City, for Respondent.
Supreme court's role in reviewing administrative decision is identical to that of district court. Supreme court reviews evidence
presented to agency in order to determine whether agency's decision was arbitrary or capricious and was thus abuse of agency's
discretion.
2. Mandamus.
When considering writ of mandamus challenging city liquor board's denial of application for liquor license, district court erred in
admitting additional evidence which had not been presented to board where court failed to follow proper procedures for admission of
such evidence. NRS 233B.131(2), 233B.l35.
3. Intoxicating Liquors.
When considering writ of mandamus challenging city liquor board's denial of application for liquor license, district court erred in
finding, as matter of law, that ordinances pertaining to liquor licenses should be construed against board and in favor of applicant.
Liquor license applicant's facility could not qualify as dining room, within definition contained in city ordinances pertaining to
liquor licenses, where applicant's facility was not in compliance with regulations of health department in that he did not have permit to
serve food, but had been serving food without permit.
Sufficient evidence supported city liquor board's decision to deny laundromat's application for liquor license where there was
evidence of public opposition against license and facility did not qualify as bona fide dining room.
OPINION
Per Curiam:
Respondent Eugene J. Lepire (Lepire) applied for a liquor license for a laundromat he owned and operated in Carson City. The
application was denied by the Carson City Liquor Board (Board). Three years later, Lepire again applied for a liquor license, this time
asserting that it was for a restaurant-laundry. He argued that because the laundromat had a microwave oven, two tables and eight chairs,
the facility qualified as a dining room. His application was again denied. Lepire then filed a petition with the district court for a writ of
mandamus. At the hearing on the writ, Lepire offered eleven exhibits, including four depositions which were not before the Board when it
considered his application. The district court, after taking judicial notice of hard core consumption of alcohol at the facility next door to
the laundromat, ordered the Board to grant Lepire's liquor license. The Board appeals, arguing that the district court erred (1) by
considering evidence beyond that which was before the Board; (2) by finding, as a matter of law, that the liquor control ordinance should
be construed against the Board; and (3) by finding that the Board's decision was an abuse of discretion.
The Board first argues that it was improper for the district court to consider evidence which was not part of the record before the Board
when the Board made its decision. A total of six exhibits that were not before the Board when it denied Lepire's application were admitted
into evidence by the district court. Those exhibits included four depositions, a printout of all liquor licenses in Carson City, and a letter
from Carson City Treasurer Ted Thornton.
[Headnote 1]
This court's role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to
the agency in order to determine whether the agency's decision was arbitrary or capricious and was thus an abuse of the agency's
discretion."
the agency's discretion. Jourdan v. SIIS, 109 Nev. 497, 499, 853 P.2d 99, 101 (1993)
(citations omitted) (emphasis added).
[Headnote 2]
Moreover, NRS 233B.135 provides that the [j]udicial review of a final decision of an
agency must be . . . [c]onfined to the record. NRS 233B.131(2) requires that before a court
may consider evidence beyond what was presented to the agency, there must be a showing
that the additional evidence is material and that there were good reasons for failure to
present it in the proceeding before the agency. The court may then order that the additional
evidence . . . be taken before the agency. Id. None of these procedures were followed in this
case, and it was error for the district court to admit the additional evidence.
Second, the Board takes issue with the district court's finding that: [t]he Carson City
Ordinances defining dining room and restaurant[
1
] are vague and should be construed
against the Board and in favor of [Lepire]. Because Lepire is attempting to get a dining
room with liquor license, he is mainly concerned with the definition of dining room,
which appears in the section of the Code that pertains to liquor licenses. Under CCMC
4.13.010(9), [d]ining room' means a place which is regularly and in a bona fide manner
used and kept open for the serving of meals to guests for compensation, which has suitable
kitchen facilities connected therewith complying with all regulations of the departments of
health of the city and state.
[Headnote 3]
This court has previously held that statutes relating to the sale of liquor are analogous to
statutes regulating gaming. West Indies v. First National Bank, 67 Nev. 13, 214 P.2d 144
(1950). In West Indies, this court considered judicial construction of a gaming statute, and
stated that,
[c]onsidering the limitations placed by law upon the license, the special class of
industry licensed and its deleterious effect, the fact that it is in contravention of the
common law, the fact that it is a statute granting special privileges, we entertain no
doubt but that the statute is one meriting strict construction against the licensee . . .
__________

1
At the time of the proceedings below, the Code contained no definition of restaurant. The Code has since
been amended, and restaurant is now defined as
a business establishment whose principal business is the preparing and selling of meals of unpackaged
food to the customer in a ready-to-consume state in nondisposable containers, and where the customer
consumes these meals while seated at a table within the restaurant building. Alcoholic beverages may be
served accessory to food service in a restaurant.
CCMC 18.03.495.
entertain no doubt but that the statute is one meriting strict construction against the
licensee . . .
67 Nev. at 34, 214 P.2d at 154. We conclude that it was error for the district court to find, as a
matter of law, that the ordinances pertaining to liquor licenses should be construed against
the Board and in favor of [Lepire].
[Headnote 4]
Lepire argues that if a statute has doubtful meaning, then a court must construe the statute
in a manner which is least likely to produce mischief. In support of this proposition, Lepire
cites Arnold v. Stevenson, 2 Nev. 234, 244 (1866). While it is true that Arnold stands for the
proposition that a court must adopt that construction which will be the least likely to produce
mischief, Lepire has failed to show how the construction of the ordinance by the Board will
produce mischief. The Board found that Lepire's facility, consisting of fifty-four washing
machines and a microwave oven, was not a place which is regularly and in a bona fide
manner used and kept open for the serving of meals to guests. See CCMC 4.13.010(9). We
conclude that more mischief would result from the construction propounded by Lepire, which
would categorize any facility with a microwave oven as a dining room, which could then
qualify for a liquor license allowing on-site consumption. This would include virtually every
convenience market currently in operation.
Lepire's facility would not qualify as a dining room even if the ordinance were given a
liberal construction, because the ordinance requires that the facility be in compliance with all
regulations of the departments of health of the city and state. CCMC 4.13.010(9). At the
time he filed his petition for a writ of mandamus, Lepire had never had a permit to serve food,
as required by the Carson City Health Department, but had been serving food without a
permit. His facility was therefore not in compliance with the regulations of the health
department and so could not qualify as a dining room.
[Headnote 5]
Finally, the Board argues that the district court erred in finding that the denial of Lepire's
liquor license was an abuse of discretion. This court has held that the essence of the abuse of
discretion, of the arbitrariness and capriciousness of governmental action in denying a license
application, is most often found in an apparent absence of any grounds or reasons for the
decision. City Council v. Irvine, 102 Nev. 277, 280, 721 P.2d 371, 372-73 (1986).
At the hearing on September 15, 1994, two people testified and indicated that they were in
favor of the proposed liquor license. One of those testifying was an employee of Lepire's.
Three people testified against the license, and the Board was told of a petition against the
license which contained more than sixty-five signatures.
people testified against the license, and the Board was told of a petition against the license
which contained more than sixty-five signatures. The Board was further informed that all 150
members of the Carson Park Condo Homeowners Association were opposed to the license.
The Board voted to deny the application, based on its findings that the facility was not a bona
fide dining room and that granting the license would tend to create a public nuisance.
Counsel for the Board conceded at the district court hearing that there isn't evidence in
the record of this hearing to demonstrate that there is any possibility of a public nuisance
being created. However, he went on to point out that during the long procedural history of
the application, the Board had developed an understanding or a knowledge of the location in
the neighborhood and what the neighbors think and so forth. . . . [The Board] also ha[s] much
more knowledge of the situation and the complaints of the neighbors and so forth.
This court has held that public opposition to a proposal is sufficient ground for denial.
The United States Constitution simply does not forbid democratic government to succumb
to individual and public pressures in reaching land use decisions that work to the detriment of
an individual litigant. Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 249, 871 P.2d
320, 327 (1994) (citing Greenbriar, LTD. v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir.
1989)). This holding is very similar to the holding in Tighe v. Von Goerken, 108 Nev. 440,
833 P.2d 1135 (1992).
In Tighe, the respondent applied for a liquor license for a bar surrounded by single and
multiple family residences. The city council of Las Vegas held a hearing at which no
members of the public expressed any opinion on the proposal. One council member pointed
out that the neighborhood in which the tavern was to be located was primarily residential,
although the exact premises of the proposed tavern were zoned commercial. The city council
voted to deny the application. This court held that
[m]embers of the Council were elected by their constituents . . . to represent them in
protecting and promoting the public good. In this instance, the Council exercised the
equivalent of judicial notice in recognizing the actual environment surrounding the
proposed tavern site. The Council thereafter exercised its discretion on behalf of the
City's best interests, as the members of the Council unanimously perceived them to be.
Under these circumstances, we are unable to conclude, despite the abbreviated
proceedings and testimony, that the Council abused its discretion.
108 Nev. at 443, 833 P.2d at 1137. The case presented here is nearly identical to Tighe,
except that in this case, there was actual evidence of public opposition to the proposed
license, whereas in Tighe, the council merely presumed that the license was contrary to the
public interest. The evidence supporting the Board's decision is therefore even more
substantial in this case than it was in Tighe.
Based on the public opposition to the license and the Board's finding that the facility did
not qualify as a bona fide dining room, we conclude that there is sufficient evidence to
support the Board's decision, so there was no abuse of discretion. Additionally, we conclude
that the district court erred by admitting evidence which was not before the Board and also
that the district court erred by finding that the liquor ordinance should be construed against
the Board. We therefore order the writ of mandamus vacated.
Steffen, C. J., Shearing and Rose, JJ., and Zenoff, Sr. J., concur.
2

I dissent.
I agree with the trial court. I believe that the trial judge has a much better grasp of the facts
of this case than does this appellate tribunal. The trial judge saw the denial of a license as
being arbitrary and discriminatory. I do not think that we can sensibly quarrel with this
conclusion. I would deny extraordinary relief and let the trial court's judgment stand.
__________

2
sit in the place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 19; SCR 10. Senior Justice Zenoff
will participate on the tapes and briefs.
____________
112 Nev. 369, 369 (1996) Attorney General v. Steffen
NEVADA ATTORNEY GENERAL, FRANKIE SUE DEL PAPA, Petitioner, v. THE
HONORABLE THOMAS L. STEFFEN, Chief Justice of the Nevada Supreme Court,
THE HONORABLE CHARLES E. SPRINGER, Justice of the Nevada Supreme
Court, THE HONORABLE DAVID ZENOFF, Senior Justice of the Nevada Supreme
Court, in Their Official Capacities and HERBERT J. AHLSWEDE, in his Official
Capacity as Special Investigator, Respondents.
No. 27847
April 25, 1996 915 P.2d 245
Petition for a writ of prohibition or in the alternative for a writ of mandamus directing
respondents to cease all action in Supreme Court Case No. 24598 and in particular all action
in furtherance of the allegedly unlawful and unconstitutional investigation directed at
Petitioner and other individuals by Respondent Herbert F. Ahlswede, Special Master.
The supreme court held that: (1) justices, by entering confidentiality orders in case and
authorizing special master to investigate sources of breaches of those confidentiality orders,
acted in excess of their jurisdiction; (2) violation of orders could not produce valid judgment
of contempt; (3) even if orders mandating confidentiality had provided valid basis for
investigation, by initiating investigation, justices improperly exercised functions of executive
branch in violation of Constitution; and (4) by paying for investigation with personal funds,
justices violated due process of those accused by wrongdoing by special master.
Petition granted.
Frankie Sue Del Papa, Attorney General, Carson City, for Petitioner.
Chuck R. Gardner, Las Vegas, for Respondents.
1. Prohibition.
Purpose of writ of prohibition is to restrain courts from acting without authority of law in cases where wrong, damage and injustice
are likely to follow from such actions.
2. Prohibition.
Writ of prohibition will only issue where no plain, speedy and adequate remedy exists at law.
3. Constitutional Law; Records.
Supreme court justices, by entering confidentiality orders in case and authorizing special master to investigate sources of breaches
of those confidentiality orders, acted in excess of their jurisdiction. Statute provides that court proceeding shall be public except as
otherwise provided by law, constitution and administrative and procedural rules on judicial discipline {ARJD) provide no
authority for confidential proceedings before supreme court itself, and concern with right to confidentiality
and with possible harm to judiciary from publicizing of frivolous complaints against judges, though
legitimate, did not constitute compelling state interest that would override constitutionally protected right
of freedom of speech and press and access to courts in case of highest public concern.
judicial discipline (ARJD) provide no authority for confidential proceedings before supreme court itself, and concern with right to
confidentiality and with possible harm to judiciary from publicizing of frivolous complaints against judges, though legitimate, did not
constitute compelling state interest that would override constitutionally protected right of freedom of speech and press and access to
courts in case of highest public concern. U.S. Const. amend. 1; NRS 1.090.
First Amendment guarantees public access to places traditionally open to public, such as criminal trials. U.S. Const. amend. 1.
State may deny right of public access to trial only if it shows that trial is necessitated by compelling government interest, and is
narrowly tailored to serve that interest. U.S. Const. amend. 1.
Major purpose of First Amendment is to protect free discussion of governmental affairs. U.S. Const. amend. 1.
Operations of courts and judicial conduct of judges are matters of utmost public concern, for First Amendment purposes. U.S.
Const. amend. 1.
Open court proceedings assure that proceedings are conducted fairly and discourage perjury, misconduct by participants, and
biased decision making.
Openness of court proceedings promotes public understanding, confidence, and acceptance of judicial processes and results, while
secrecy encourages misunderstanding, distrust, and disrespect for courts.
10. Contempt.
Violation of supreme court orders issued in excess of jurisdiction could not produce valid judgment of contempt.
Even if supreme court orders mandating confidentiality had provided valid basis for investigation into source of leaked
information and supreme court's lost prestige, by initiating investigation, supreme court justices improperly exercised function of
executive branch in violation of constitution. Investigation had nothing to do with power of judicial branch to hear and determine
justiciable controversies, rather, power to initiate investigation into who engaged in potentially criminal behavior by leaking
information to media in violation of court order of confidentiality was executive function. Const. art. 3, 1.
Legislative power is power of lawmaking representative bodies to frame and enact laws, and to amend and repeal them. Const.
art. 3, 1.
Executive power extends to carrying out and enforcing laws enacted by legislature. Const. art. 3, 1.
Judicial power is authority to hear and determine justiciable controversies, including authority to enforce any valid judgment,
decree or order. Const. art. 3, 1.
15. Reference.
Special master, appointed to investigate sources of breaches of supreme court confidentiality orders, was not independent authority
as generally contemplated by term master. Master was under control of supreme court justices, master was authorized to seek direction
from supreme court justices whenever warranted, and supreme court justices admitted that they personally paid fees incurred by special
master after state funding was cut off.
By paying for investigation into sources of breaches of supreme court confidentiality orders, supreme court justices violated due
process of those accused of wrongdoing by special master investigating sources of breaches. Justices who authorized and paid for
investigation created situation which would offer possible temptation not to hold balance nice, clear, and true between state and
accused. U.S. Const. amend. 14.
OPINION
Per Curiam:
Respondent Justices have appointed a Special Master to investigate alleged leaks of information to the press in violation of two early
orders by a panel of this court directing that the proceedings before this court in Case No. 24598, the Whitehead case, be kept
confidential. We conclude that these orders mandating confidentiality were invalid and that Respondent Justices lack constitutional or
legislative authority to appoint a special master to investigate the leaks of information to the media and the reason for this court's lost
prestige. Accordingly, we grant Petitioner's petition for a writ of prohibition.
FACTS
This petition for an extraordinary writ emanates from that portion of the Whitehead case in which Respondent Justices appointed a
special master to investigate the sources of information leaks to the press in violation of the Whitehead panel's orders of confidentiality
entered July 22 and 30, 1993. On September 1, 1995, Respondent Justices filed an order appointing Respondent Herbert F. Ahlswede to
investigate and expose the sources of the press leaks and to inquire into the loss of public confidence, trust, and respect for the supreme
court and the judicial system. Jerry Carr Whitehead v. Nevada Commission on Judicial Discipline, Docket No. 24598 (Order Appointing
Special Master at 4, September 1, 1995). On September 15, 1995, this court entered an order which voided the order appointing the special
master and prohibited payment of any costs or related expenditures; this court's order concluded that the Whitehead panel exceeded its
jurisdiction by appointing the special master and that the expenditure of funds in relation to the investigation was a
waste of court resources.
and that the expenditure of funds in relation to the investigation was a waste of court
resources. Petition for an Order Rescinding Appointment of Special Master Entered
September 1, 1995, and Voiding Associated Expenses, ADKT No. 221 (Order Granting
Petition and Vacating Order Appointing Special Master at 1-2, September 15, 1995). On
December 15, 1995, the Whitehead panel entered an opinion declaring that the order filed by
this court on September 15, 1995 was a nullity and of no legal force or effect. Whitehead v.
Comm'n on Jud. Discipline, 111 Nev. 1459, 1461, 908 P.2d 219, 220 (1995).
Petitioner argues that the September 15, 1995 order entered by this court is competing with
the December 15, 1995 opinion entered by the Whitehead panel, thus creating a constitutional
crisis which the Petitioner has been drawn into by virtue of her office. Petitioner seeks a writ
of prohibition declaring that this court mandate that Respondent Justices cease all action in
Case No. 24598, the Whitehead case, in particular all action in furtherance of the unlawful
investigation conducted by Special Master Ahlswede.
We find it unnecessary to ask for a response or further authority from Respondents in
regard to this petition because we are well aware of their position on the relevant issues as
stated in their opinions in the Whitehead case and in the administrative petitions concerning
that case.
DISCUSSION
The propriety of issuing a writ of prohibition or in the alternative a writ of mandamus in this
action
[Headnotes 1, 2]
A writ of prohibition will issue where a tribunal has acted without or in excess of the
jurisdiction of such tribunal. NRS 34.320; Goicoechea v. District Court, 96 Nev. 287, 289-90,
607 P.2d 1140, 1141 (1980). The purpose of a writ of prohibition is to restrain courts from
acting without authority of law in cases where wrong, damage and injustice are likely to
follow from such action. Olsen Family Trust v. District Court, 110 Nev. 548, 552, 874 P.2d
778, 781 (1994). Furthermore, a writ of prohibition will only issue when no plain, speedy,
and adequate remedy exists at law. Id.
We conclude that a petition for an extraordinary writ is proper in this case and that this
court should entertain the petition. It appears that Respondent Justices, by entering the
confidentiality orders and by authorizing the special master to investigate the sources of
breaches of those confidentiality orders, have acted in excess of their jurisdiction.
Additionally, because this matter involves members of the highest court in this state, the writ
is the only avenue of relief for Petitioner, and no other plain, speedy or adequate remedy
exists at law.
only avenue of relief for Petitioner, and no other plain, speedy or adequate remedy exists at
law. Finally, the ongoing investigation poses a threat to certain fundamental constitutional
rights and guarantees, including freedom of speech, due process, and separation of the
branches of government, and therefore a recognized injury may result in the absence of a writ.
The confidential orders were entered without jurisdiction to do so
[Headnote 3]
Respondent Justices appointed a special master to investigate alleged leaks of information
to the press in violation of two early orders by the Whitehead panel directing that the
proceedings before this court in the Whitehead case be kept confidential. We conclude that
these orders were invalid because Respondent Justices acted in excess of their jurisdiction
when entering them.
Respondent Justices have invoked the Administrative and Procedural Rules for the Nevada
Commission on Judicial Discipline (ARJD) as authority for the confidentiality orders. ARJD
5(1) provides: All proceedings must be confidential until there has been a determination of
probable cause and a filing of formal statement of charges. ARJD 5(2) provides that
confidentiality encompasses all proceedings of the commission and all information and
materials, written, recorded or oral, received or developed by the commission in the course of
its work and relating to alleged misconduct or disability of a judge. The Whitehead panel
concluded that these rules also extended to judicial proceedings before this court after Judge
Whitehead petitioned for extraordinary relief. The panel erred.
The scope of the ARJD is restricted to the confidentiality of all proceedings before the
Nevada commission on judicial discipline as imposed by 21(5)(a) of article 6 of the
constitution of Nevada, . . . and the conduct of investigations and hearings by the commission,
as imposed by 21(5)(c) of article 6 of the constitution of Nevada. ARJD 1 (emphases
added). This restricted scope is required by the Nevada Constitution, which provides that this
court shall make appropriate rules for [t]he confidentiality of all proceedings before the
commission, except a decision to censure, retire or remove a justice or judge. Nev. Const.
art. 6, 21(5)(a) (emphasis added). Overlooking the limiting language in this constitutional
provision, Respondent Justices decided that the state public policy favoring confidentiality in
initial judicial discipline proceedings is so strong that it prevails over any countervailing
public policies to keep government open and the public informed, even when a judge avails
himself of the traditionally public forum of this court and seeks to have all proceedings
against him by the Commission on Judicial Discipline dismissed.
Discipline dismissed. This view disregards not only the right and need of the public to know
of such an extraordinary dispute in governmental affairs but also the threat that secret judicial
proceedings pose to public confidence in this court and the judiciary.
NRS 1.090 provides: The sitting of every court of justice shall be public except as
otherwise provided by law. The State Constitution and the ARJD provide no authority for
confidential proceedings before the supreme court itself, and the Whitehead panel erred in
concluding that it had such authority.
[Headnotes 4, 5]
Furthermore, the confidentiality orders implicate First Amendment concerns. The First
Amendment prohibits Congress from making any law abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances. U.S. Const. amend. I. The Fourteenth Amendment makes this
prohibition applicable to state actions as well. U.S. Const. amend. XIV, 1. The First
Amendment guarantees public access to places traditionally open to the public, such as
criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577, 580 (1980). In
Richmond, the Supreme Court noted that though the right to attend civil trials was not at issue
before it, historically both civil and criminal trials have been presumptively open. Id. at 580
n.17. A state may deny this right of public access only if it shows that the denial is
necessitated by a compelling government interest, and is narrowly tailored to serve that
interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982).
[Headnotes 6-9]
The Whitehead case did not involve a trial; nevertheless, at Judge Whitehead's behest, it
became a judicial proceeding which implicated matters of great public concern. A major
purpose of the First Amendment is to protect the free discussion of governmental affairs.
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 838 (1978). The operations of
the courts and the judicial conduct of judges are matters of utmost public concern. Id. at 839.
Furthermore, open court proceedings assure that proceedings are conducted fairly and
discourage perjury, misconduct by participants, and biased decision making. Richmond, 448
U.S. at 569. Openness promotes public understanding, confidence, and acceptance of judicial
processes and results, while secrecy encourages misunderstanding, distrust, and disrespect for
the courts. Id. at 569-73. Despite their concerns with the potential for unfair actions by the
Commission, Respondent Justices have never acknowledged the potential for abuse inherent
in their attempt to proceed secretly in the Whitehead case.
attempt to proceed secretly in the Whitehead case. Despite their concerns with a loss of public
confidence in this court, Respondent Justices have paid no regard to the distrust caused by
their attempt to proceed secretly, by their intemperate reaction when that attempt was
exposed, and by their obsessive preoccupation with avenging themselves against those who
informed the press and the public of the case.
Respondent Justices' concern with Judge Whitehead's right to confidentiality and with
possible harm to the judiciary from the publicizing of frivolous complaints against judges,
though legitimate, does not constitute a compelling state interest that overrides the
constitutionally protected rights of freedom of speech and press and access to the courts in a
case of the highest public concern. The Whitehead panel thus issued its orders of
confidentiality without authority and erroneously upheld their validity in later opinions.
[Headnote 10]
Furthermore, Respondent Justices' efforts to identify and punish persons who provided
information to the press are improper. Citing United States Supreme Court case law, the
Whitehead panel stated that a court has authority to issue ancillary orders while considering
other questions and to punish as criminal contempt violations of such orders even when it is
later determined that the court lacked jurisdiction in the matter. Whitehead v. Comm'n on
Jud. Discipline, 110 Nev. 128, 136, 906 P.2d 230, 235 (1994). However, the panel
overlooked contrary Nevada precedent holding that lack of subject matter jurisdiction renders
a judgment void and that a person may not be held in contempt of a void order. State Indus.
Ins. System v. Sleeper, 100 Nev. 267, 269, 679 P.2d 1273, 1274 (1984). The Whitehead
panel's disregard of this court's precedent and of the application of the doctrine of stare
decisis without explanation or comment was improper.
Consistent with Sleeper, the Supreme Court of California has stated:
In this state it is clearly the law that the violation of an order in excess of the
jurisdiction of the issuing court cannot produce a valid judgment of contempt, and that
the jurisdiction in question extends beyond mere subject matter or personal
jurisdiction to that concept described by us in Abelleira v. District Court of Appeal
[109 P.2d 942, 948 (1941)]: Speaking generally, any acts which exceed the defined
power of a court in any instance, whether that power be defined by constitutional
provision, express statutory declaration, or rules developed by the courts and followed
under the doctrine of stare decisis, are in excess of jurisdiction, [. . . .] In Re Berry,
436 P.2d 273, 2S0 {Cal.
In Re Berry, 436 P.2d 273, 280 (Cal. 1968) (some citations omitted). Although the Whitehead
panel had subject matter jurisdiction in the Whitehead case, it acted in excess of that
jurisdiction under the First Amendment, NRS 1.090, and the ARJD in ordering that the
proceedings in the Whitehead case before this court be kept confidential. Therefore, those
orders were void, and their violation cannot produce a valid judgment of contempt.
Respondents' appointment of a special master was not authorized
[Headnote 11]
Even if the orders mandating confidentiality had provided a valid basis for an investigation
into the source of leaked information and this court's lost prestige, Respondent Justices lacked
authority to initiate and oversee such an investigation.
On September 1, 1995, Respondent Justices entered an order appointing a special master
whose duties included making any and all inquiries into the causes for the loss of public
confidence, trust and respect for the supreme court and for the judicial system which are
related to the [Whitehead] matter. Jerry Carr Whitehead v. Nevada Commission on Judicial
Discipline, Docket No. 24598 (Order Appointing Special Master at 4, September 1, 1995).
More specifically, the special master was to provide special attention to the interference with
the administration of justice and the breaches of confidentiality that have so seriously
impacted the efforts of this court to honorably, promptly, and effectively process the
[Whitehead] matter, and to conduct such investigations as shall be necessary to determine
the sources of the unlawful breaches of confidentiality that may have occurred in [the
Whitehead] proceedings and the extent to which they may have impacted on [Whitehead's]
due process rights. Id. at 1, 4.
According to the September 1, 1995 order, the special master was to file the written results
of this broad inquiry with the Whitehead panel and not to the five elected justices or the
legislature. Id. Additionally, the special master was also required to file interim reports with
the Whitehead panel and was permitted to seek direction from that panel at any time. Id.
Furthermore, the powers of the special master were as broad as the scope of his investigation;
the special master was declared an officer and agent of the Whitehead panel, was granted
judicial immunity, and was given the power to administer oaths, to take depositions, and to
issue subpoenas, subpoenas duces tecum, and orders to show cause. Id. at 5.
We conclude that Respondent Justices' order appointing the special master was improper
for several reasons. Most importantly, Respondent Justices had no constitutional or other
legislative authority to appoint a special master to investigate the causes for the loss of
public confidence, trust and respect for the supreme court and for the judicial system, and
more specifically to expose the sources of news leaks to the media.
tantly, Respondent Justices had no constitutional or other legislative authority to appoint a
special master to investigate the causes for the loss of public confidence, trust and respect for
the supreme court and for the judicial system, and more specifically to expose the sources of
news leaks to the media.
The Constitution of the State of Nevada distributes governmental power into the
Legislative, Executive, and Judicial departments; and each department is separate from the
others. Galloway v. Truesdell, 83 Nev. 13, 19, 422 P.2d 237, 241 (1967) (citing Nev. Const.
art. 3, 1).
1

The court in Galloway acknowledged the dangers of permitting one branch of government
to usurp the power of another branch:
[t]here can be no liberty . . . if the power of judging be not separated from the
legislative and executive powers. . . . Were the power of judging joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control, for
the judge would be the legislator: Were it joined to the executive power the judge might
behave with all the violence of an oppressor.'
Id. at 19, 422 P.2d at 242 (quoting City of Enterprise v. State, 69 P.2d 953, 957 (Or. 1937)
(quoting Montesquieu).
[Headnotes 12-14]
This court has considered what constitutes legislative, executive, and judicial powers, and
has concluded:
[L]egislative power is the power of law-making representative bodies to frame and
enact laws, and to amend and repeal them. . . .
The executive power extends to the carrying out and enforcing the laws enacted by
the legislature. . . .
Judicial Power' . . . is the authority to hear and determine justiciable controversies.
Judicial power includes the authority to enforce any valid judgment, decree, or order.
Id. at 20, 422 P.2d at 242.
Based on these definitions, we conclude that the investigation to expose the sources of
news leaks to the media had nothing to do with the power of the judicial branch to hear and
determine justiciable controversies, and therefore respondents had no authority to initiate
their investigation.
__________

1
Article 3, section 1 of the Nevada Constitution states:
The powers of the Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and no persons charged with the exercise
of powers belonging to one of these departments shall exercise any functions, appertaining to either of the
others, except in cases herein expressly directed or permitted.
justiciable controversies, and therefore respondents had no authority to initiate their
investigation.
2
The power to initiate an investigation into who engaged in potentially
criminal behavior by leaking information to the media in violation of the Whitehead panel's
orders of confidentiality was an executive function reserved exclusively for the executive
branch. By initiating the investigation, Respondent Justices improperly exercised the
functions of the executive branch in violation of article 3, section 1, of the Nevada
Constitution.
If Respondent Justices believed that someone had committed criminal contempt by leaking
information regarding the Whitehead matter to the media in violation of that order, several
investigatory bodies existed to which the matter could have been referred. If Respondent
Justices believed that an attorney had disobeyed the court order, they could have referred the
matter to the State Bar of Nevada, which is authorized to investigate complaints of
misconduct and conduct disciplinary hearings on formal complaints of misconduct. SCR
104(7), 105. If Respondent Justices believed that a judge on this court had disobeyed the
court order, they could have referred the matter to the Nevada Commission on Judicial
Discipline, which is authorized to evaluate complaints relating to the fitness of a judge or
justice. Nev. Const. art. 6, 21. If Respondent Justices, because of the history of the
Whitehead case, did not trust the Nevada Commission on Judicial Discipline to adequately
investigate the complaint, they could have referred the matter to a district attorney's office or
other law enforcement agency authorized to investigate alleged criminal activity, as they
could have done if they believed that a private citizen not under the jurisdiction of the State
Bar or the Judicial Discipline Commission had violated the orders. In any of these situations,
Respondent Justices could also have asked a district attorney to seek an indictment from a
grand jury. See generally NRS 172.145, 172.241.
Other relief was also available if Respondent Justices believed that a state employee had
engaged in potentially criminal conduct.
__________

2
We note that the investigation at issue is in no way similar to the investigation conducted by Justice Steffen in
conjunction with the behavior of district judge Paul Goldman. Goldman v. Nevada Comm'n on Judicial
Discipline, 108 Nev. 251, 830 P.2d 107 (1992). In Goldman, Justice Steffen conducted a tentative inquiry into
district judge Goldman's behavior on the belief that the behavior might constitute an emergency requiring an
administrative reapportionment of the public's judicial business. Id. at 257, 830 P.2d at 111. However, Justice
Steffen did not have authority to issue any subpoenas or show cause orders or to depose witnesses. Additionally,
Justice Steffen's investigation was narrowly tailored to focus upon the behavior of one judge, as compared to the
investigation at issue which was virtually boundless in scope.
duct. If they believed that a state official had committed a violation of trust, they could have
petitioned a district court to impanel a grand jury to inquire into the matter. NRS 6.130(2).
Similarly, Respondent Justices could have petitioned the governor to request that a district
judge impanel a grand jury to investigate the conduct of state officials or employees or could
have petitioned the legislature to pass a concurrent resolution ordering a district judge to do
the same. NRS 6.135(1). Respondent Justices, however, chose none of these courses prior to
launching their own unauthorized and illegal investigation.
Respondent Justices also argue that they were authorized to conduct such an investigation
pursuant to Senate Concurrent Resolution No. 10, which reads in part:
RESOLVED BY THE SENATE OF THE STATE OF NEVADA, THE ASSEMBLY
CONCURRING, that the Nevada Legislature respectfully urges the Chief Justice and
Associate Justices of the Supreme Court of Nevada to examine judicial accountability
in this state and to consider measures which may enhance and allow greater public
access to the administration of the judicial branch and foster public confidence and trust
in the court system in this state.
S. Con. Res. 10, 68th Leg., 1995 Nev. Stat. 2884-85.
When read in full, it is clear that the purpose of Senate Concurrent Resolution No. 10 was
to promote the public's trust and respect for the judiciary by having the courts adopt measures
of public accountability and, more specifically, by having the courts conduct their matters in
public, not in secret, thereby providing the public with access to information concerning the
daily operation of each courtroom in this state and the professional activities of the judges
who serve in them. Id. at 2884. The resolution did not contemplate or empower the initiation
by a panel of this court of a far-reaching investigation into who leaked information to the
media regarding the panel's secret proceedings. If anything, the resolution blamed secret
proceedings for the public's loss of confidence in the judiciary.
Moreover, the appointment of the special master in this case was not in accord with
procedures typically employed in the appointment of such an official. The appointment of the
special prosecutor in the Watergate case provides an example of how an independent
investigator is properly appointed. In that case, Archibald Cox was appointed as a special
prosecutor by the United States Attorney General pursuant to a statute authorizing the
Attorney General to do so. See Matter of Application for Appoint. of Ind. Counsel, 596 F.
Supp. 1465, 1469 (E.D.N.Y. 1984) (concluding that, with regard to cases in which Watergate
defendants had requested a federal district court to appoint a special prosecutor "there is
no statute under our Federal System which authorizes this Court to appoint a special
prosecutor.
defendants had requested a federal district court to appoint a special prosecutor there is no
statute under our Federal System which authorizes this Court to appoint a special prosecutor.
Such statutory authority as exists applies only to the authority of the Attorney General of the
United States to appoint special attorneys' in the exercise of his discretion. 28 U.S.C. 515.),
order vacated on other grounds, 766 F.2d 70 (2d Cir. 1985). Additionally, the duties of the
special prosecutor were specifically limited by the Attorney General, and extraordinary
measures were taken by the United States Congress and the Attorney General to insure the
independence of the special prosecutor. Congressional Quarterly Weekly Report, Vol. 31, No.
21, May 26, 1973, at 1313-14. Finally, the Special Prosecutor was paid with public funds and
made his reports to the public, and not just to the Attorney General who appointed him. Id. at
1314.
Compared to the appointment of the Watergate Special Prosecutor and other special
prosecutors and investigators, it is apparent that the investigation at issue, apart from being
illegal and completely unauthorized as detailed above, suffered from other serious maladies.
First, the scope of the investigation was too broad and the special master given too much
authority. The order was not specifically limited and seemingly subjected anyone and
anything to investigation as the special master saw fit. Additionally, the special master was
purportedly given judicial immunity and the power to administer oaths, take depositions, and
subpoena people and documents. The effect of this order was to confer massive powers upon
the private investigator with no safeguards or measures for accountability. Such a situation
placed both investigatory (i.e., executive) power and adjudicative power into the hands of a
panel of this court, thereby presenting a situation which this court has previously disallowed
because it permits the judge to behave with all the violence of an oppressor.' Galloway,
83 Nev. at 19, 422 P.2d at 242 (quoting City of Enterprise v. State, 69 P.2d 953, 957 (Or.
1937)).
That Respondent Justices would even appoint a special master who acted under their
control to conduct an investigation into the information leaks is surprising given the
Whitehead panel's decision in Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 874, 878
P.2d 913 (1994). In that case the panel removed the Attorney General from the Whitehead
matter largely because the Attorney General was acting as both a prosecutor in front of the
Judicial Discipline Commission and as legal advisor to the Judicial Discipline Commission,
an adjudicative body. Id. at 885, 878 P.2d at 917-18. Therefore, the panel concluded that the
Attorney General was unconstitutionally exercising the power of both the executive branch
and the judicial branch. Id. at 880, 878 P.2d at 917. The panel also stated that the Attorney
General had a conflict of interest by acting in both capacities and stated that "[i]n our
adversarial system, we have always been scrupulous about keeping adjudicative
functions separate from the prosecutive functions, and fairness requires that we continue
to do so." Id. at SS5, S7S P.2d at 920.
panel also stated that the Attorney General had a conflict of interest by acting in both
capacities and stated that [i]n our adversarial system, we have always been scrupulous about
keeping adjudicative functions separate from the prosecutive functions, and fairness requires
that we continue to do so. Id. at 885, 878 P.2d at 920. However, only a few pages later in
that same opinion, the panel decreed that it was appointing a special master who would be
under the panel's control and would investigate who leaked information to the media in
violation of the panel's order of confidentiality. Id. at 890, 878 P.2d at 923. Such a situation
invested both investigatory (i.e., executive) and adjudicative functions into the hands of a
panel of this court, thereby creating the same unconstitutional exercise of power and the same
conflict of interest which the panel had decried just pages earlier.
[Headnote 15]
A second problem with the appointment of the special master was that the special master
was not an independent authority as is generally contemplated by the term master. The
special master was under the control of the Whitehead panel, and the order authorized the
special master to seek direction from the Whitehead panel whenever warranted. Additionally,
Justices Steffen and Springer admitted that they personally paid the fees incurred by the
special master after State funding was cut off. Nevada Attorney General, Frankie Sue Del
Papa v. The Honorable Thomas L. Steffen, et al., Docket No. 27847 (Response to Petition for
a Writ of Prohibition or in the Alternative for a Writ of Mandamus at 22, January 29, 1996).
This fact obliterates any belief that the special master acted independently of the wishes or
desires of the respondent members of the Whitehead panel.
The fact that the special master's fees were paid from the personal funds of Justices Steffen
and Springer is a most disturbing aspect of the investigation. By initiating the investigation to
seek out and punish those who leaked to the media information which casts them in a
negative fashion, and by privately financing that investigation, it strongly appears that
Justices Steffen and Springer hijacked the awesome power of this court to further their own
personal vendettas and not, as they claimed, to discover why the public had lost confidence in
the judiciary.
[Headnote 16]
Furthermore, by paying for the investigation with personal funds, Respondent Justices
apparently violated the due process of those accused of wrongdoing by the special master. In
the case of In re Ross, 99 Nev. 1, 14, 656 P.2d 832, 840 (1983), this court determined that
the Nevada Board of Governors, the body responsible for the finances of the bar
association, acted as the fact finder in a quasi-judicial attorney discipline proceeding and
that the significant costs of its investigation would be recoverable from the attorney only
upon a finding of misconduct.
determined that the Nevada Board of Governors, the body responsible for the finances of the
bar association, acted as the fact finder in a quasi-judicial attorney discipline proceeding and
that the significant costs of its investigation would be recoverable from the attorney only
upon a finding of misconduct. Therefore, the court concluded that the Board of Governors
had a financial interest in finding misconduct on the part of the attorney and that the
discipline proceeding apparently violated the attorney's due process rights.
The same decision can be applied to the investigation authorized by the Whitehead panel.
Here, Justices Steffen and Springer had a direct financial interest in the investigation as they
were paying for it from their personal funds. Just as [f]airness . . . requires an absence of
actual bias in the trial of cases, In re Murchison, 349 U.S. 133, 136 (1955), fairness also
requires an absence of actual bias in the investigation of cases. Because the Justices who
authorized the investigation also paid for it, they created a situation which would offer a
possible temptation to the average man as judge . . . not to hold the balance nice, clear and
true between the State and the accused.' Id. (quoting Tumey v. Ohio, 273 U.S. 510, 532
(1927)). Such a situation amounts to a violation of due process and will not be permitted.
The payment of private funds for an allegedly public investigation effectively sidesteps the
protection of NRS 353.260(2), which prohibits public officials from obligating a public body
for expenses not expressly provided by law.
3
Respondent Justices did not seek or receive
legislative authorization to spend state money on their investigation. By launching the probe
without fiscal authorization and then paying for a portion or all of the expense incurred,
Respondent Justices clearly maneuvered around the prohibition of NRS 353.260(2) by paying
the cost themselves and may have violated the law in the process. See NRS 353.260(4).
4

Finally, the administration of the court system resides in the Chief Justice and the other
four elected members of the supreme court. If this had been an investigation within the
jurisdiction of this court to authorize, it would still have required three of the five elected
justices to approve this administrative action. Again, such authority was lacking.
__________

3
NRS 353.260(2) provides that it is unlawful for any state officer, commissioner, head of any department or
employee of this state to bind, or attempt to bind, the State of Nevada or any fund or department thereof in any
amount in excess of the specific amount provided by law, or in any other manner than that provided by law, for
any purpose whatever.

4
NRS 353.260(4) provides: Every officer of the State of Nevada, elective or appointive, who violates any of
the provisions of this section shall be guilty of malfeasance in office.
CONCLUSION
The orders of the Whitehead panel mandating confidentiality in the Whitehead
proceedings before this court were invalid and therefore unenforceable. Further, Respondent
Justices lacked constitutional or legislative authority to appoint a special master to investigate
the leaks of information to the press regarding the secret proceedings. Accordingly, we grant
Petitioner's petition for a writ of prohibition, and we direct the clerk of this court to issue a
writ of prohibition to the Respondents directing them to cease and desist from any further
action in the investigation launched in Supreme Court Case No. 24598 by the appointment of
a special master to determine the source of news leaks and the reason for this court's lost
prestige.
____________
112 Nev. 383, 383 (1996) Valerio v. State
JOHN ESPIREDION VALERIO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25502
April 30, 1996 915 P.2d 874
Appeal from an order of the district court dismissing a post-conviction petition for a writ
of habeas corpus. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt,
Judge.
After petitioner's appeal of his conviction for first-degree murder with use of deadly
weapon and his corresponding sentence of death was dismissed, he sought post-conviction
relief. The district court dismissed petition, and petitioner appealed. The supreme court,
Shearing, J., held that: (1) claims raised in prior petitions for post-conviction relief were
properly dismissed; (2) dismissal of petitioner's claims in his direct appeal was law of the
case; (3) new claims in second petition for post-conviction relief were barred by petitioner's
failure to raise them in his first petition; and (4) district court properly refused to review
petition for post-conviction relief for plain constitutional error.
Affirmed.
Mary Beth Gardner, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, William P. Henry, Senior Deputy Attorney
General and Rusty D. Jardine, Deputy Attorney General, Carson City, for Respondent.
1. Habeas Corpus.
Petitioner abused writ of habeas corpus by inserting claims in his habeas petition claims that he could have raised in his earlier
petition for post-conviction relief, and therefore such claims were properly dismissed, despite possibility that such claims were not
adjudicated on merits. NRS 34.810(2).
2. Courts.
Supreme court's dismissal of petitioner's claims in his direct appeal from his murder conviction and dismissal of appeal from
denial of motion for post-conviction relief was law of the case on his habeas corpus petition, and therefore those claims could not be
raised again in habeas petition, in light of petitioner's failure to show cause why he was raising those claims again.
3. Habeas Corpus.
In dismissing habeas petition, district court did not improperly make findings from face of petition, where state alleged abuse of
writ in its motion to dismiss, court considered motion and awaited petitioner's response, and petitioner never responded.
4. Habeas Corpus.
District court properly considered habeas petitioner's prior petition for post-conviction relief to be prior petition for purposes of
statute governing dismissal of subsequent petitions. NRS 34.810(2).
5. Habeas Corpus.
Petitioner's new claims in his habeas petition were barred for his failure to raise them in his petition for post-conviction relief,
despite petitioner's argument that he did not previously raise them because he forgot certain conversations between himself and his trial
attorney. NRS 34.810(2).
6. Criminal Law.
Claim that counsel's assistance was so defective as to constitute ineffective assistance of counsel has two components; defendant
must show that counsel's performance was deficient and that deficient performance prejudiced defense. U.S. Const. amend. 6.
7. Habeas Corpus.
Trial court properly refused to review habeas petition for plain constitutional error, in light of petitioner's failure to establish good
cause and actual prejudice so as to overcome procedural bar on successive petitions, based on earlier petition for post-conviction relief.
NRS 34.810(2).
OPINION
In 1988, a jury convicted John Espiredion Valerio of first degree murder with the use of a deadly weapon. Valerio stabbed Karen
Blackwell, a prostitute, to death, then wrapped her body in blankets and left her body in her car. Valerio was sentenced to death. This court
dismissed Valerio's direct appeal and his appeal from the district court's denial of his petition for post-conviction relief after concluding that
his contentions lacked merit. Valerio v. State, Docket No. 1900S {Order Dismissing Appeal, September 6, 19S9);
Valerio v. State, Docket No.
v. State, Docket No. 19008 (Order Dismissing Appeal, September 6, 1989); Valerio v. State,
Docket No. 21886 (Order Dismissing Appeal, January 24, 1992).
1

This is an appeal from the district court's dismissal of a post-conviction petition for a writ
of habeas corpus. In this petition, Valerio raises 24 claims, some with numerous subparts.
Before the district court, the State moved to dismiss the petition, alleging abuse of the writ.
Valerio never responded to the State's motion, and the district court dismissed all of Valerio's
claims pursuant to NRS 34.810. Valerio then filed in state district court a Motion for Relief
from Judgment and, in the alternative, Motion to Alter or Amend Judgment. The district court
did not rule on that motion. Valerio next filed the instant appeal from the district court's
dismissal of his petition.
On appeal, Valerio argues that the district court erred in (1) dismissing grounds 1-18
without ascertaining whether those grounds had been raised in state or federal court; (2)
interpreting the language successive petitions in NRS 34.810(2) to include claims raised on
direct appeal and in the prior petition for post-conviction relief filed under NRS Chapter 177;
(3) failing to ascertain whether each claim had been determined on the merits or whether he
had litigated those claims in a prior proceeding; (4) finding that there was no good cause
for failing to previously present claims 19-24; and (5) dismissing his petition because it
alleged ineffectiveness of trial and appellate counsel on its face. Valerio also argues that the
rules regarding procedural default and waiver are inconsistently applied in this state.
Subsequent to appealing from the district court's order dismissing his petition, Valerio
filed with this court a motion pursuant to Nevada Supreme Court Rule 250(IV)(H) for referral
to the district court. This court denied that motion. Valerio v. State, Docket No. 25502
(Order, February 23, 1995).
Valerio raised 24 grounds for relief in his petition, conceding that grounds 1-18 had
previously been raised and that grounds 19-24 were new grounds. The district court dismissed
all of Valerio's claims pursuant to NRS 34.810. NRS 34.810 provides, in pertinent part, as
follows:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the
petition could have been:
__________

1
Valerio also sought habeas relief pursuant to 28 U.S.C. 2254 in the United States District Court for the
District of Nevada. His petition was dismissed without prejudice so that he could exhaust his claims in state
court.
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief
from his conviction and sentence, unless the court finds both cause for the failure to
present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice
determines that it fails to allege new or different grounds for relief and that the prior
determination was on the merits or, if new and different grounds are alleged, the judge
or justice finds that the failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and
proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the
claim again; and
(b) Actual prejudice to the petitioner.
. . . .
The district court dismissed grounds 1-18 of Valerio's petition pursuant to NRS 34.810(2)
on the basis that he raised them previously and failed to explain why he was raising them
again. Clearly, the district court was under the impression that those claims had been raised
before and determined on the merits. However, some of the claims were only raised in the
federal petition and not on direct appeal or in the first state post-conviction petition.
[Headnote 1]
Valerio argues that the district court miscomprehended the true procedural posture of those
grounds, believing that they were all previously presented in state court, and that, therefore,
the district court erred in dismissing them. Valerio also contends that the district court erred
in dismissing these claims pursuant to NRS 34.810(2) because the judge failed to consider
whether there had been a determination on the merits with respect to any particular claim.
As for the grounds among claims 1-18 which have not been determined on the merits, we
hold that the district court properly dismissed these grounds pursuant to NRS 34.810 since
Valerio could have raised them in his first petition, and his failure to do so constituted an
abuse of the writ.
[Headnote 2]
We further hold that the district court did not err in dismissing those grounds among
claims 1-18 which had been determined on the merits.
the merits. These claims may not be raised again because this court's prior orders dismissing
them constitute the law of the case. See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798
(1975). This court specifically considered the issues that Valerio raised in his direct appeal in
the order dismissing that appeal. Valerio v. State, Docket No. 19008 (Order Dismissing
Appeal, September 6, 1989). In the order dismissing the appeal from denial of his petition for
post-conviction relief, this court concluded that Valerio's claims of ineffective counsel at trial
and on direct appeal were without merit. Valerio v. State, Docket No. 21886 (Order
Dismissing Appeal, January 24, 1992). Valerio failed to show cause why he was raising those
claims again.
[Headnote 3]
Valerio also argues that the district court improperly made findings from the face of the
petition, citing Phelps v. Director, Prisons, 104 Nev. 656, 764 P.2d 1303 (1988). Phelps is
distinguishable. There, the district court dismissed the petition by determining waiver from
the face of the petition. Id. at 658, 764 P.2d at 1305. In the instant case, the State alleged
abuse of the writ in its motion to dismiss, and Valerio had the opportunity to show good
cause and actual prejudice but failed to file a response. The district court considered the
State's motion and awaited Valerio's opposition to that motion. Thus, the district court did not
summarily dismiss Valerio's petition on its face. See id. at 659, 764 P.2d at 1305.
[Headnote 4]
Valerio also claims that the district court erred by broadly interpreting the language
second or successive petition in NRS 34.810(2) to include both his direct appeal and prior
Chapter 177 petition as prior petitions. Based upon this, Valerio argues that NRS 34.810(2) is
ambiguous and his direct appeal and Chapter 177 petition should not be considered prior
petitions under the statute.
Under NRS 34.810(2), the district court is obligated to dismiss a petition if it is [a]
second or successive petition and the
judge or justice determines that it fails to allege new or different grounds for relief and
that the prior determination was on the merits or, if new and different grounds are
alleged, the judge or justice finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ.
The district court dismissed grounds 19-24 on the basis that failure to assert the new
grounds in a prior petition constituted an abuse of the writ. The court did not conclude that
the direct appeal constituted a prior petition. The court only concluded that the petition
filed pursuant to NRS Chapter 177 was a "prior petition."
that the petition filed pursuant to NRS Chapter 177 was a prior petition. A petition filed
pursuant to NRS Chapter 177 has been considered to be a prior petition for purposes of
NRS 34.810(2). Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). The district court did
not err in considering Valerio's Chapter 177 petition to be a prior petition for purposes of
NRS 34.810(2).
[Headnote 5]
As mentioned, Valerio failed to cite any good cause in his petition as to why he was
raising the old grounds among 1-18 again (those which had been determined on the merits),
or why he was raising those new grounds among 1-18 for the first time in state court (those
which had only been raised in federal district court). Valerio did, however, cite cause as to
why he was raising grounds 19-24 for the first time in the instant petition. He stated that he
did not remember certain conversations between himself and his trial attorney until after his
federal petition had been filed. It appears from Valerio's brief that he is only referring to
claims 19-24 in this argument.
Pursuant to NRS 34.810(3), Valerio has the burden of pleading and proving specific facts
that demonstrate (a) Good cause for the petitioner's failure to present the claim or for
presenting the claim again; and (b) Actual prejudice. The district court concluded that the
good cause for grounds 19-24 was insufficient, where Valerio essentially argued that he
forgot to raise these claims earlier. The district court noted that Valerio was convicted on
January 22, 1988, that the instant petition was filed approximately four years and ten months
following his conviction, and that Valerio's sudden recollection of conversations with trial
counsel is inadequate to meet his burden.
We conclude that the district court was correct in determining that Valerio's cause was
insufficient pursuant to Phelps. In Phelps, the petitioner did not establish sufficient cause
where he claimed that he did not include his claim of ineffective assistance of counsel in his
first petition because he was organically brain damaged at birth and is borderline mentally
retarded. 104 Nev. at 660, 764 P.2d at 1306. Likewise, the district court here properly
concluded that Valerio's claims were procedurally barred.
Nevertheless, Valerio argues that ineffectiveness of trial, appellate, and post-conviction
counsel establishes both good cause and actual prejudice sufficient to overcome the
procedural bar. Valerio argues that the district court erred in failing to address the merits of
those claims to determine if counsel was ineffective or if good cause and actual prejudice
exists.
In the proceedings below, the State did not assert procedural default on the basis of
Valerio having failed to present any issues to the court at his trial, but only on the basis of his
having failed to present issues on direct appeal or in prior post-conviction proceedings.
Valerio claims, however, that in the context of the habeas proceedings, ineffective assistance
of trial counsel remained, and remains, relevant to the determination of whether prejudice
inured to Valerio as a result of appellate and/or post-conviction counsel's failure to properly
raise and litigate the related claims.
[Headnote 6]
As pointed out in Strickland v. Washington, 466 U.S. 668, 687 (1984), a claim that
counsel's assistance was so defective as to constitute ineffective assistance of counsel has two
components; the defendant must show that (1) counsel's performance was deficient and (2)
the deficient performance prejudiced the defense. Accord Warden v. Lyons, 100 Nev. 430,
432, 683 P.2d 504, 505 (1984), cert. denied, 471 U.S. 1004 (1985).
We conclude that Valerio does not demonstrate that the performance of his trial, direct
appeal and post-conviction
2
counsel was deficient or that that performance prejudiced him
sufficient to overcome the procedural default at issue here.
[Headnote 7]
Finally, Valerio argues that this court has inconsistently applied the procedural default and
waiver rules. He contends that since his petition presented errors of constitutional dimension
on its face, and since this court has a policy of reviewing errors of constitutional dimension
which appear on the face of the record irrespective of the doctrines of procedural default and
waiver, the district court erred in failing to address the merits of Valerio's claims and should
be reversed.
We note at the outset that reversal of the district court's order for its failure to recognize
this court's policy of reviewing plain constitutional error is not mandated. Moreover,
arguments regarding the consistent or inconsistent application of a procedural bar are aimed
at the federal courts rather than this court. See Kills on Top v. State, 901 P.2d 1368, 1386
(Mont. 1995). In any event, contrary to the assertion of the Ninth Circuit,
3
we note that this
court has not inconsistently applied post-conviction procedural bars.4
__________

2
Cf. McKague v. Warden, 112 Nev. 159, 912 P.2d 255 (1996) (holding generally that there is no federal or
state constitutional or statutory right to counsel, or effective assistance of counsel, in a post-conviction
proceeding).

3
See McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995) (the failure to raise constitutional claims on
direct appeal in Nevada does not necessarily bar consideration of those claims on collateral review) (citing
Pertgen v. State, 110 Nev. 554, 560, 875 P.2d 361, 364 (1994)).
that this court has not inconsistently applied post-conviction procedural bars.
4

For the foregoing reasons, we affirm the district court's order dismissing Valerio's
Steffen, C. J., and Young and Rose, JJ., concur.
I believe that this court has a proper and established policy of addressing facial errors of
constitutional magnitude, in death cases. See, e.g., Pertgen v. State, 110 Nev. 554, 560, 875
P.2d 361, 364 (1994) (the power of this court to address plain error or issues of
constitutional dimension sua sponte is well established); Emmons v. State, 107 Nev. 53,
60-61, 807 P.2d 718, 723 (1991) ([b]ecause this case involves the ultimate punishment and
because appellant's claims of ineffective assistance of counsel are directly related to the
merits of his claims, we will consider appellant's claims on the merits in order to determine
whether appellant received ineffective assistance of counsel); Flanagan v. State, 104 Nev.
105, 108, 754 P.2d 836, 837 (1988) (where a life is at stake, we will consider the allegations
of misconduct as if there had been compliance with the contemporaneous objection rule). I
think it should follow such a policy in this case.
The court has written a nine-page opinion trying to explain why Valerio's claims are not
entitled to judicial review. It would have been much wiser, in my opinion, for this court to
have insisted upon a review, or even re-review, by either the trial court or this appellate
court, of all of the issues presently raised by Valerio. In this way we would have been much
closer to being assured that all legal and constitutional issues relating to this case had been
finally disposed of at the state level. For this reason, I dissent.
__________

4
In Pertgen, 110 Nev. at 560, 875 P.2d at 364, and other cases, the proposition is clear that a petitioner must
establish good cause and actual prejudice to overcome a post-conviction procedural bar. See e.g., Lozada,
110 Nev. at 354-59, 871 P.2d at 946-50; Hogan v. Warden, 109 Nev. 952, 959-60, 860 P.2d 710, 715-16
(1993).
____________
112 Nev. 391, 391 (1996) Wright v. State
DANNY WRIGHT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25632
April 30, 1996 916 P.2d 146
Appeal from a judgment of conviction, pursuant to a conditional guilty plea, of one count
of manufacturing a controlled substance. Third Judicial District Court, Lyon County; Archie
E. Blake, Judge.
Defendant was convicted of manufacturing controlled substance pursuant to conditional
guilty plea in the district court. Defendant appealed. The supreme court held that: (1)
photographs of marijuana being cultivated on defendant's property were not stale evidence,
for purposes of issuance of search warrant; (2) search warrant properly permitted search of
defendant's residence, even though photos showed marijuana only in shed; (3) civil forfeiture
proceeding against defendant's property and defendant's subsequent criminal prosecution
were pursued in separate proceedings, for purposes of double jeopardy analysis; and (4)
forfeiture was punishment, and thus, defendant's succeeding criminal conviction violated
double jeopardy clause.
Reversed.
Karla K. Butko, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney,
Eileen Barnett, Deputy District Attorney, Lyon County, for Respondent.
Searches must be based on probable cause. U.S. Const. amend. 4.
Supreme court does not conduct de novo review but merely decides whether evidence viewed as whole provides substantial basis
for magistrate's finding of probable cause for search. U.S. Const. amend. 4.
There is preference for searches with warrants. U.S. Const. amend. 4.
Reviewing court should not adopt grudging, hypertechnical view of warrant applications, but review them in common sense,
realistic manner. NRS 179.045(1).
Information is stale and probable cause for search does not exist when it is no longer reasonable to presume that search will turn up
evidence of crime. U.S. Const. amend. 4; NRS 179.045(1).
If unlawful activity is continuous in nature, passage of time is less significant in determining whether probable cause
for search exists.
significant in determining whether probable cause for search exists. U.S. Const. amend. 4; NRS 179.045(1).
Cultivation of marijuana takes some time and is distinguishable from transitory occurrences such as drug sales, for purposes of
determining whether probable cause exists for issuance of search warrant, despite passage of time. U.S. Const. amend. 4; NRS
179.045(1).
Justice of the peace's finding that photos of marijuana being grown in defendant's yard were not stale evidence, for purposes of
issuance of search warrant, was reasonable, where photos indicated marijuana cultivation which was relatively long-term activity,
photo lab had just received negatives day before photos were presented to justice of the peace, and deputy sheriff familiar with the area
found that photos depicted scenes consistent with conditions in area over preceding several months. U.S. Const. amend. 4; NRS
179.045(1).
Search warrant properly permitted search of defendant's residence as well as shed, even though photos showing marijuana
cultivation on defendant's property showed marijuana only in shed. U.S. Const. amend. 4; NRS 179.045(1).
Evidence forming basis for search warrant of defendant's property did not consist of only uncorroborated tip from informant of
unknown reliability, where evidence consisted of photos taken of marijuana cultivation on defendant's property, and investigators
found information that corroborated photographic evidence including name and phone number submitted with photos that matched
name and phone number of person who owned property depicted in photos. U.S. Const. amend. 4; NRS 179.045(1).
11. Double Jeopardy.
Civil penalty sought in separate proceeding constitutes punishment, for purposes of double jeopardy analysis, when it bears no
rational relation to goal of compensating government for its loss. Const. art. 1, 8; U.S. Const. amend. 5.
In determining whether judgment of conviction in criminal case after civil forfeiture proceeding violated double jeopardy clause,
supreme court was required to determine whether civil forfeiture action and criminal prosecution involved same offense by
defendant, whether they constituted separate proceedings, and whether forfeiture constituted punishment. U.S. Const. amend. 5;
NRS 179.1156, 179.119, 453.301.
Civil forfeiture proceeding against defendant charged with cultivation of marijuana and criminal prosecution of defendant for
manufacturing controlled substance involved same offense, for purposes of double jeopardy analysis, where civil forfeiture complaint
was expressly based on same discovery of marijuana at defendant's residence as criminal charges were. U.S. Const. amend. 5.
Civil forfeiture action against defendant and his subsequent criminal drug prosecution were pursued in separate proceedings, for
purposes of double jeopardy analysis, where cases were filed at different times by different prosecuting authorities and were resolved at
different times in different ways.
different ways. U.S. Const. amend. 5; NRS 179.1156, 179.119, 453.301.
Jeopardy attached, for purpose of double jeopardy analysis, in civil forfeiture proceeding in which defendant paid state $30,000 for
return of residence and other property seized at time of defendant's arrest for cultivating marijuana, despite lack of entry of formal
judgment, where defendant and state expressly stipulated that if defendant paid state $30,000, civil forfeiture action would be
dismissed with prejudice and residence and other property would be released to defendant, and district court then adopted parties'
stipulation and dismissed civil case. U.S. Const. amend. 5; NRS 453.301.
Even if in some cases separately filed civil forfeiture action and criminal prosecution may be single, coordinated prosecution, for
purposes of double jeopardy analysis, civil forfeiture proceeding and criminal prosecution of defendant for cultivating marijuana were
not single, coordinated prosecution, where cases were filed at different times and by different prosecuting authorities and were
resolved at different times in different ways. U.S. Const. amend. 5; NRS 179.1156-179.119, 453.301.
Defendant's guilty plea in criminal prosecution for manufacturing controlled substance did not constitute waiver of his claim that
prosecution following civil forfeiture proceeding violated double jeopardy clause. U.S. Const. amend. 5; NRS 179.1156-179.119,
453.301.
Forfeiture of conveyances and real property involved in drug offenses under Nevada statutes was punishment, for double
jeopardy purposes, where statutes applied only to culpable, not innocent, owners and to property linked to specific drug offenses,
statutes were not solely remedial because they provided not only for removal of dangerous and illegal contraband from society but also
for confiscation of homes, vehicles, and other property, and this forfeitable property varied so dramatically in value that penalty had no
correlation to costs to society or law enforcement. U.S. Const. amend. 5; NRS 453.301(5), (8).
That civil forfeiture of property of defendant charged with drug offense was not disproportionate to state's costs was irrelevant in
determining whether forfeiture was punishment, for purposes of double jeopardy analysis; whether forfeiture was punishment
focused on forfeiture provisions as whole, rather than on forfeiture executed in individual case. U.S. Const. amend. 5.
OPINION
Per Curiam:
In December 1992, the State executed a warrant to search the residence of appellant Danny Wright and found marijuana. The Lyon
County District Attorney charged Wright criminally. The State Attorney General filed a complaint for civil forfeiture against certain of
Wright's property, including his residence. The district court denied Wright's motion in the criminal case to suppress the
evidence obtained in the search.
district court denied Wright's motion in the criminal case to suppress the evidence obtained in
the search. Pursuant to a stipulation by the parties, Wright paid the State $30,000 for the
return of his property, and the district court dismissed the civil action in January 1994. In
February 1994, Wright pled guilty to one charge in the criminal case, preserving the right to
appeal the denial of his motion to suppress.
Wright now appeals, claiming that the search warrant was issued without probable cause
and that the State violated the Fifth Amendment proscription against double jeopardy. We
conclude that the first claim lacks merit but the second is meritorious.
FACTS
On December 17, 1992, a photo lab in Gardnerville informed police that it had
photographs of marijuana being grown. The lab had received the negatives and developed the
photos that day. The lab informed a narcotics investigator that the photos came from a D.
Wright with the telephone number 465-2542. The investigator obtained the photos and
provided them to a second investigator, Bill Tilton. The Lyon County Sheriff's Office
informed Tilton that a Danny Wright lived in the town of Wellington and had the same
phone number as the one submitted with the negatives. Tilton showed the photos to Lyon
County Sheriff's Deputy Mike Fletcher, who recognized some of the scenes depicted in the
photos as the yard of the residence of appellant Danny Wright, including a white shed with a
fiberglass roof located there. The photos showed marijuana growing in the shed. Fletcher
reported that Wright's residence was located on Highway 208 in Wellington. He also
informed Tilton that the vegetation and snow cover shown in the photos was consistent with
conditions occurring in Wellington from summer through the last couple of weeks of 1992.
Motor vehicle records showed a residence address for Danny Wright at 2785 Highway 208,
Wellington, Nevada.
On the next day, December 18, 1992, Tilton provided the foregoing information to the
justice of the peace of Smith Valley, Lyon County, as set forth in Tilton's own affidavit.
Tilton also provided a handwritten statement by Fletcher. The justice of the peace issued a
search warrant to Tilton to search the residence and associated outbuildings at 2785 Highway
208, Wellington, Nevada, for specific items, including marijuana plants, seeds, packaging
materials, sales records, and indicia of ownership or occupancy of the property. Tilton
executed the warrant that same day. The officers involved seized incriminating evidence in
the master bedroom of the residence, including about eighteen pounds of marijuana, baggies,
and scales. The shed contained dried marijuana stalks and a small bag of seeds.
On January 14, 1993, the Lyon County District Attorney charged Wright with three
felonies: possession of marijuana for the purpose of sale, manufacture of a controlled
substance, and ex-felon in possession of a firearm. On February 18, 1993, based on the
evidence garnered in the criminal case, the Nevada Attorney General filed a complaint for
civil forfeiture against certain of Wright's property, including his residence, his vehicle, his
backhoe, and a number of firearms.
On February 26, 1993, at the preliminary examination in the criminal case, Wright's
counsel cross-examined Investigator Tilton regarding his knowledge of the facts leading to
the issue of the search warrant. Tilton said that his knowledge came through the photographs
that he had received. Defense counsel asked Tilton:
Q. Did you ascertain when the pictures were taken?
A. No.
Q. Do you know when they were taken?
A. No.
Q. Could have been years ago?
A. It could have been, yeah.
The justice court bound Wright over for trial.
Wright moved to suppress the evidence obtained from the search of his property. A
hearing was held on June 28, 1993. At the hearing, Wright's counsel asked Tilton if he ever
told the justice of the peace that the photos he relied on to obtain the search warrant could
have been taken at any point in time in any year?, and Tilton replied No. Wright's counsel
argued that the evidence in the photos was stale and therefore insufficient grounds to issue a
search warrant, but the district court found from the totality of the circumstances that the
evidence was not stale and denied the motion.
On June 14, 1993, the Attorney General and Wright had stipulated to stay the civil action
pending resolution of the criminal case. However, on January 7, 1994, before such resolution,
the parties filed a Stipulation for Compromise, agreeing that pursuant to NRS 453.30l, Wright
would pay the State $30,000 and the State would return various items of seized property back
to Wright and dismiss the civil action against Wright. The parties also agreed that this
Stipulation shall not be construed in any fashion as an admission pertaining to any criminal
charges arising out of the conduct set forth in the civil complaint. The district court adopted
this stipulated compromise and dismissed the civil action.
On February 3, 1994, Wright agreed to plead guilty to one count of manufacture of a
controlled substance on the condition that he could appeal the denial of his motion to
suppress. The district court canvassed Wright and accepted his plea.
district court canvassed Wright and accepted his plea. On March 28, 1994, the court adjudged
Wright guilty and sentenced him to six years in prison.
DISCUSSION
Whether the search warrant was issued without probable cause
Wright argues that the time when the photographs were taken was uncertain and therefore
that the photographic evidence was stale. He also claims that the basis for the search warrant
was an uncorroborated tip, which is insufficient evidence for issuing a warrant, and that
because the photos showed marijuana only in the shed, the search warrant should not have
included the residence.
[Headnotes 1-4]
In this case, the justice of the peace issued the search warrant based on Tilton's affidavit,
pursuant to NRS 179.045(1). Searches must be based on probable cause. Keesee v. State, 110
Nev. 997, 1001, 879 P.2d 63, 66 (1994). Probable cause requires trustworthy facts and
circumstances which would cause a person of reasonable caution to believe that it is more
likely than not that the specific items to be searched for are: seizable and will be found in the
place to be searched. Id. at 1002, 879 P.2d at 66. This court does not conduct a de novo
review but merely decides whether the evidence viewed as a whole provided a substantial
basis for the magistrate's finding of probable cause. Id., 879 P.2d at 67. There is a preference
for searches with warrants, and a reviewing court should not adopt a grudging, hypertechnical
view of warrant applications, but review them in a common sense, realistic manner. United
States v. Ventresca, 380 U.S. 102, 108-09 (1965).
[Headnotes 5-7]
A warrant must be based on facts so closely related to the time of the issue of the warrant
as to justify a finding of probable cause at that time. Sgro v. United States, 287 U.S. 206,
210 (1932). Information is stale and probable cause does not exist when it is no longer
reasonable to presume that a search will turn up evidence of a crime. State v. Hale, 641 P.2d
1288, 1290 (Ariz. 1982). If an unlawful activity is continuous in nature, the passage of time is
less significant. Id.; see also State v. Gomez, 623 P.2d 110, 116 (Idaho 1980), cert. denied,
454 U.S. 963 (1981). Cultivation of marijuana takes some time and is distinguishable from
transitory occurrences such as drug sales. People v. Brown, 212 Cal. Rptr. 907, 908-09 (Ct.
App. 1985).
[Headnote 8]
We conclude that it was reasonable for the justice of the peace to find that the photos were
not stale evidence based on the following considerations. First, they indicated marijuana
cultivation, which is a relatively long-term activity. Second, the photo lab had just received
the negatives the day before. More often than not, people have their photos developed soon
after they take them. Third, the deputy sheriff familiar with the area found that the photos
depicted scenes consistent with conditions in the area over the preceding several months.
[Headnote 9]
Although the photos evidently showed marijuana only in the shed, the search warrant
properly permitted search of the residence as well. See Keesee, 110 Nev. at 1004-05, 879 P.2d
at 68 (warrant may authorize search of entire street address when police have probable cause
to search only part of the premises if defendant controls entire premises).
[Headnote 10]
Finally, we reject Wright's characterization of the evidence involved as an uncorroborated
tip from an informant of unknown reliability. First, the photos went beyond a mere verbal tip
and constituted in themselves objective evidence whose reliability the investigators could
evaluate directly. Second, the investigators found information that corroborated the
photographic evidence: they found that the name and phone number submitted with the
photos matched the name and phone number of the person who owned the property depicted
in the photos.
We conclude therefore that probable cause existed to issue the search warrant.
Whether the judgment of conviction in the criminal case violated the Double Jeopardy Clause
The Fifth Amendment provides in part: [N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or limb. U.S. Const. Amend. V; see also Nev.
Const. art. 1, 8. This Double Jeopardy Clause at its most fundamental level . . . protects an
accused against being forced to defend himself against repeated attempts to exact one or more
punishments for the same offense. U.S. v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1215
(9th Cir. 1994), amended, 56 F.3d 41 (1995), cert. granted,
------
U.S.
------
, 116 S. Ct. 762
(1996).
[Headnote 11]
The Supreme Court has concluded that a civil sanction that cannot fairly be said solely to
serve a remedial purpose, but rather can only be explained as also serving either retributive
or deterrent purposes, is punishment" for the purposes of double jeopardy analysis.
rather can only be explained as also serving either retributive or deterrent purposes, is
punishment for the purposes of double jeopardy analysis. United States v. Halper, 490 U.S.
435, 448 (1989). The Court recognized that the precise amount of the Government's
damages and costs may prove to be difficult, if not impossible, to ascertain, and in the
ordinary case fixed-penalty-plus-double-damages provisions can be said to do no more than
make the Government whole. Id. at 449. However, a civil penalty sought in a separate
proceeding constitutes punishment when it bears no rational relation to the goal of
compensating the Government for its loss. Id. This was the case in Halper, where the civil
penalty provided a recovery which was exponentially greater than the amount of the fraud
perpetrated on the government and many times the amount of the Government's total loss.
Id. at 445. The Court remanded that case to the district court to allow the government to
provide an accounting of its actual damages and costs, which it could properly recover. Id. at
449, 452. The decision in Halper does not prevent the government from seeking and
obtaining both civil and criminal penalties in the same proceeding as long as the total
punishment does not exceed that authorized by the legislature. Id. at 450.
The Court has also held that civil forfeiture may constitute punishment and violate the
Eighth Amendment protection against excessive fines. Austin v. United States, 509 U.S. 602,
113 S. Ct. 2801 (1993). Citing Halper, the Court stated that a forfeiture may serve remedial
purposes but is subject to the limitations of the Excessive Fines Clause if it can only be
explained as serving in part to punish. Id. at 610, 113 S. Ct. at 2806. The Court concluded
that the forfeiture of vehicles and real property used or intended to be used to facilitate the
commission of certain drug-related crimes constituted punishment for several reasons. First,
forfeiture has served historically at least in part as punishment. Id. at 619, 113 S. Ct. at 2810.
Second, the forfeiture provisions in question applied only to owners involved in drug
offenses, not innocent owners; they applied only to property linked to specific drug offenses;
and the legislative history of the provisions indicated that Congress intended them to deter
and punish drug offenders. Id. at 619-20, 113 S. Ct. at 2811. Third, the Court rejected
government arguments that the provisions were remedial because they removed instruments
of the drug trade from further use and compensated the government for the law enforcement
and social costs of the drug trade. [T]he forfeiture of contraband itself may be characterized
as remedial because it removes dangerous or illegal items from society, but this reasoning
does not extend to vehicles or real property, the possession of which is not even remotely
criminal. Id. at 621, 113 S. Ct. at 2811. The Court concluded that the conveyances and real
property forfeitable under the provisions in question varied so dramatically in value that
the penalty had no correlation to the costs to society or law enforcement.
concluded that the conveyances and real property forfeitable under the provisions in question
varied so dramatically in value that the penalty had no correlation to the costs to society or
law enforcement. Id. 113 S. Ct. at 2812. The Court noted that in Halper, it had focused on
whether the sanction as applied in the individual case was punishment because the sanction
involved was a small, fixed-penalty provision that ordinarily would simply make the
government whole. Id. at 622 n.14, 113 S. Ct. at 2812 n.14. However, in Austin the proper
focus was on the forfeiture provisions as a whole because the value of the conveyances and
real property forfeitable under them can vary so dramatically that any relationship between
the Government's actual costs and the amount of the sanction is merely coincidental. Id.
Halper involved double jeopardy and Austin involved excessive fines, but the test for
determining whether a civil sanction constitutes punishment is the same in either context.
$405,089.23, 33 F.3d at 1219.
[Headnote 12]
In light of these controlling cases, this court must determine in the instant case whether the
civil forfeiture action and criminal prosecution involved the same offense by Wright, whether
they constituted separate proceedings, and whether forfeiture under NRS 179.1156-.119 and
NRS 453.301 constitutes punishment. If the answer to these questions is yes, then the State's
actions violated the Double Jeopardy Clause.
[Headnotes 13-15]
It is undisputed that the civil action against Wright and his criminal prosecution involved
the same offense. Like the criminal charges, the civil complaint is expressly based on the
discovery of marijuana at Wright's residence on December 18, 1992. The State has also not
disputed that the cases were pursued in separate proceedings. The cases were filed at different
times and by different prosecuting authorities and were resolved at different times in different
ways. See $405,089.23, 33 F.3d at 1216 (A forfeiture case and a criminal prosecution would
constitute the same proceeding only if they were brought in the same indictment and tried at
the same time.)
1

__________

1
Other federal circuit courts have found a separately filed civil action and criminal prosecution to be a single,
coordinated prosecution in some cases. U.S. v. Millan, 2 F.3d 17, 20 (2nd Cir. 1993); U.S. v. One Single
Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994). However, the Ninth Circuit has expressly and
persuasively rejected this approach. U.S. v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1216-18 (9th Cir. 1994),
amended, 56 F.3d 41 (9th Cir. 1995), cert. granted,
------
U.S.
------
, 116 S. Ct. 762 (1996). Also, even under
this approach, the actions taken against Wright were not a single, coordinated prosecution.
[Headnotes 16, 17]
The crucial question therefore is whether forfeiture pursuant to NRS 453.301 constitutes
punishment. As an initial matter, the State argues that jeopardy never attached in the civil
action because the action was dismissed and no judgment was entered. This argument has no
merit. Wright and the State expressly stipulated that if Wright paid the State $30,000, the
civil forfeiture action against Wright would be dismissed with prejudice and that Wright's
residence and other property would be released to him. The district court then adopted the
parties' stipulation and dismissed the civil case. Given this stipulated resolution adopted by
the district court, we conclude that jeopardy attached in the civil case despite the lack of entry
of formal judgment. Cf. U.S. v. McCaslin, 863 F. Supp. 1299, 1304 (W.D. Wash. 1994)
(Jeopardy is complete . . . when a judgment based on a guilty plea or an agreed resolution of
the case is entered.); Willerton v. Bassham, 111 Nev. 10, 16, 889 P.2d 823, 826 (1995)
(judgment entered by court per stipulation of parties is as valid and binding as fully tried
matter and bars later action on same claim). Additionally, Wright's guilty plea in the criminal
case did not constitute waiver of the double jeopardy claim. United States v. Broce, 488 U.S.
563, 575 (1989) (holding that guilty plea does not waive claim that charge, judged on its face,
is one which State may not constitutionally prosecute).
The statutory provisions for forfeiture applied in this case are the following. NRS
453.301(1) provides that controlled substances manufactured, distributed, or acquired in
violation of laws regulating controlled substances are subject to forfeiture, pursuant to NRS
179.1156-.119. NRS 453.301(2) provides that raw materials and equipment used in
manufacturing or delivering any controlled substance in violation of relevant drug laws are
subject to forfeiture. Also subject to forfeiture are all conveyances which are used, or
intended for use, to transport, or in any manner to facilitate the transportation, concealment,
manufacture or protection, for the purpose of sale, possession for sale or receipt of property
described in subsection 1 or 2. NRS 453.301(5). Also forfeitable are [a]ll real property and
mobile homes used or intended to be used by any owner or tenant of the property or mobile
home to facilitate a violation of relevant drug laws. NRS 453.301(8). Similar provisions
allow forfeiture of [e]verything of value furnished or intended to be furnished in exchange
for a controlled substance and for firearms possessed by violators of relevant drug laws.
NRS 453.301(9), (10). However, [p]roperty may not, to the extent of the interest of any
claimant, be declared forfeited by reason of an act or omission shown to have been
committed or omitted without the knowledge, consent or willful blindness of the
claimant."
shown to have been committed or omitted without the knowledge, consent or willful
blindness of the claimant. NRS 179.1164(2).
[Headnote 18]
NRS 453.301(5) and (8), providing for the forfeiture of conveyances and real property, are
essentially the same as the federal provisions at issue in Austin. Austin, 509 U.S. at 605 n.1,
113 S. Ct. at 2803 n.1. As in Austin, the provisions serve to punish because they apply only to
culpable, not innocent, owners and to property linked to specific drug offenses. They are not
solely remedial because they provide not only for the removal of dangerous and illegal
contraband from society but also for the confiscation of homes, vehicles, and other property.
This forfeitable property varies so dramatically in value that the penalty has no correlation to
the costs to society or law enforcement. Therefore, civil forfeiture under these provisions
constitutes punishment for double jeopardy purposes.
[Headnote 19]
The State asserts that the forfeiture in this case was not disproportionate to its costs and
therefore not punishment. It stresses the language in Halper where the Court stated that a civil
penalty constitutes punishment when it bears no rational relation to the goal of compensating
the Government for its loss. United States v. Halper, 490 U.S. 435, 449 (1989). However,
these considerations appear irrelevant under Austin, where the Court expressly refused to
assess whether the forfeiture executed in the individual case was punishment and instead
focused on the forfeiture provisions as a whole. Austin, 509 U.S. at 622 n.14, 113 S. Ct. at
2812 n.14; see also $405,089.23, 33 F.3d at 1221.
The State also cites two opinions from federal circuit courts in support of its proposition.
However, neither opinion is apposite to this case. One case involved the forfeiture of
proceeds from illegal drug sales. U.S. v. Tilley, 18 F.3d 295 (5th Cir.), cert. denied, 513 U.S.
1015, 115 S. Ct. 574 (1994). The Fifth Circuit distinguished Austin, stating:
Unlike the real estate forfeiture statute that can result in the confiscation of the most
modest mobile home or the stateliest mansion, the forfeiture of drug proceeds will
always be directly proportional to the amount of drugs sold. . . . [T]hese proceeds are
roughly proportional to the harm inflicted upon government and society by the drug
sale. Thus, the logic of Austin is inapplicable . . . .
Id. at 300. In the second case, the trial court ordered disgorgement of the defendant's illicit
profits from violations of federal securities laws.
securities laws. S.E.C. v. Bilzerian, 29 F.3d 689 (D.C. Cir 1994). The appeals court
concluded that the disgorgement was solely remedial and did not subject the appellant to an
additional penalty because it required him to give up only his ill-gotten gains. Id. at 696.
In the instant case, the statutory provisions permit forfeiture of far more than just illicit
profits. Even assuming that limiting a forfeiture under NRS 453.301 in an individual case to
such profits would be constitutional, an assumption that Austin may not support, the State
never established and does not argue that Wright sold any marijuana, although the evidence
seized suggests that he planned to do so. Nor, assuming that limiting a forfeiture to the State's
costs in an individual case would be constitutional, did the State show that its costs
approximated the $30,000 that it received in settling the civil action. The State declares in its
brief to this court that it has no way of assessing the rational relation' between the costs
incurred by the government and society resulting from Wright's drug activities.
We conclude that the civil forfeiture action imposed a punishment on Wright. As a
consequence, his succeeding criminal conviction violates the Double Jeopardy Clause and
must be reversed. Desimone v. State, 111 Nev. 1221, 1229, 904 P.2d 1, 6 (1995).
CONCLUSION
The evidence as a whole provided probable cause for issuance of the search warrant. The
photographic evidence was not stale, and the residence was properly included in the scope of
the warrant. However, Wright's judgment of conviction in the criminal case violated the
Double Jeopardy Clause due to the prior settlement of the civil forfeiture action. Civil
forfeiture under NRS 435.301 constitutes punishment, and this punishment attached when
Wright was required to pay the State $30,000 in order to regain his property and end the
forfeiture proceedings. We therefore reverse the judgment of conviction.
____________
112 Nev. 402, 402 (1996) Dimick v. Dimick
CHARLES DIMICK, Appellant, v. CLAUDETTE HARRIS DIMICK, Respondent.
No. 25828
April 30, 1996 915 P.2d 254
Appeal from a decree of divorce and order regarding division of property. Eighth Judicial
District Court, Clark County; Frances-Ann Fine, Judge.
Husband initiated divorce proceedings. The district court entered divorce decree and order.
Husband appealed. The supreme court held that: (1) husband was not entitled to attorney fees
under prenuptial agreement; (2) husband's prenuptial agreement to pay spousal support was
entirely separate from husband's obligations to provide temporary support; (3) husband's
signing of wife's name on trade-out purchase agreement was insufficient to convey interest in
property to wife; and (4) district court improperly awarded separate, personal property to
wife.
Reversed in part and remanded.
Marshal S. Willick, Las Vegas, for Appellant.
Daniel Marks, Las Vegas, for Respondent.
Wife was not non-prevailing party under terms of prenuptial agreement, and therefore husband was not entitled to attorney fees
under prenuptial agreement which provided that, if agreement's validity was contested, non-prevailing party would pay all attorney
fees, though wife's initial answer denied validity of agreement, where before any hearing was held or evidence presented, wife
stipulated to validity of agreement.
Husband's prenuptial agreement to pay spousal support of $200 per month for time period husband and wife were married was
provision for wife's support after divorce, and therefore it was entirely separate from husband's obligations to provide temporary
support issued by trial court during divorce proceedings.
3. Divorce; Husband and Wife.
Husband's signing of wife's name on trade-out purchase agreement, whereby husband's contracting company traded services for lot
of real property, was insufficient to convey interest in property to wife, and therefore such property was not awardable to wife in
divorce proceeding and husband could not be sanctioned for signing wife's name for subsequent transfer of property, where deed to
property was never delivered to husband's company or to husband and wife. NRS 111.105.
4. Divorce.
In divorce proceeding, trial court improperly awarded separate, personal property to wife, where wife admitted that husband
brought such property to marriage, that she still had possession of such property, and there was no finding that such property must be
awarded as support.
OPINION
Per Curiam:
Appellant Charles Dimick (Charles) and respondent Claudette Dimick (Claudette) were married in August 1989. Prior to their
marriage, the couple had a child. The day before their wedding, they signed a prenuptial agreement which provided that in the event of
divorce Charles would pay $200.00 spousal support for each month that they had been married and that all
community property would be liquidated and divided upon divorce, seventy-five percent going to Claudette
and twenty-five percent going to Charles.
event of divorce Charles would pay $200.00 spousal support for each month that they had
been married and that all community property would be liquidated and divided upon divorce,
seventy-five percent going to Claudette and twenty-five percent going to Charles. The
agreement also provided that in the event the agreement was contested, the non-prevailing
party would pay all attorney's fees.
Charles filed a complaint for divorce in September 1992. After lengthy pre-trial
proceedings, the case went to trial in November 1993. Claudette contested the enforceability
of the agreement, but she eventually stipulated to its validity shortly before the evidentiary
hearing which had been scheduled to determine whether the agreement was valid and
enforceable.
On appeal, Charles claims four errors, namely: (1) that the trial court erred in refusing to
award attorney's fees to him as prevailing party; (2) that the trial court erred in not giving
him proper credit toward his spousal support obligation; (3) that the trial court erred in giving
Claudette an interest in property described as the Fort Apache property; and (4) that the trial
court erred in not restoring certain separate property (a bed) to him. We conclude that Charles
is entitled to relief on the claims regarding the Fort Apache property and the bed. We reject
Charles' remaining claims.
ATTORNEY'S FEES
[Headnote 1]
The agreement in question provides that [i]n the event that either party is required to take
legal action to enforce the provisions of this agreement, the non-prevailing party shall be
responsible for all attorney's fees and costs of suit relating to said action. Charles asserts that
he is entitled to recover attorney's fees under this paragraph and claims that it was error for
the court to deny him fees. We disagree.
Charles did not take legal action to enforce the provisions of the agreement. Rather, he
filed a divorce action in which he asked for a division of the property according to the
provisions of the prenuptial agreement, an agreement which he had breached at the time the
action was filed. Even though Claudette's initial answer denied the validity of the agreement,
before any hearing was held or evidence presented, she stipulated to the validity of the
agreement. Under these circumstances, Claudette cannot be considered a non-prevailing
party for the purpose of awarding attorney's fees under the agreement. Although the
prenuptial agreement does not define a non-prevailing party, this court has consistently held
that a party cannot be a prevailing party where the action has not proceeded to judgment.
Works v. Kuhn, 103 Nev. 65, 6S
103 Nev. 65, 68, 732 P.2d 1373, 1375-76 (1987). In Works, the parties agreed to a settlement
prior to trial and the respondents voluntarily dismissed the counterclaim with prejudice based
upon that settlement. This court stated that [u]nder these circumstances, we conclude that
appellant cannot be considered as having prevailed in this action. Id. Neither can Claudette
be considered a non-prevailing party when she stipulated not to contest the validity of the
prenuptial agreement.
Contract provisions for the payment of attorney's fees by the losing party provide an
incentive to settle and reduce litigation. This incentive would be lost if this court holds that a
party cannot abandon a claim without being subject to paying attorney's fees. A party would
be penalized for settling cases or abandoning claims, with the result that the very purpose of
fee-paying provides would be frustrated.
It is particularly unfair to award attorney's fees to Charles under the agreement when
Charles failed to fulfill any of his obligations under the agreement at the time that Claudette
filed her answer to the divorce complaint. At that time, it appeared that Charles desired that
only Claudette be held to the agreement. We affirm the trial court's judgment disallowing
attorney's fees under the stated provisions of the contract.
SPOUSAL SUPPORT
[Headnote 2]
The section in the prenuptial agreement headed Spousal Support, reads:
Mr. Dimick agrees upon execution of this agreement to create a trust fund with Ms.
Harris as the beneficiary, and agrees to deposit $200.00 per month into said trust fund.
If the parties remain married and during the marriage Ms. Harris predeceases Mr.
Dimick, the proceeds of said fund shall pass for the benefit of any children born of this
relationship, in equal degree, including the parties' now-living child LINDSAY.
It is also the intent of the parties that the 75%/25% liquidation and distribution of
assets upon divorce is to provide additional spousal support to Ms. Harris in the event
of dissolution of the marriage.
Charles contends that any obligation that he might have for spousal support is settled by the
foregoing language. He claims that his total spousal support obligation may be calculated
simply by multiplying $200.00 per month by the number of months that he was married
(fifty-one monthsAugust 1989 to November 1993) giving a product of $l0,200.00, as his
total spousal support obligation.
1993) giving a product of $10,200.00, as his total spousal support obligation.
Charles's claim does not, however, take into account his obligation to pay temporary
spousal support, an obligation created, during trial, in response to Claudette's motion for
temporary support. At the hearing on Claudette's motion the trial court stated, Spousal
supporthe's been paying the house payment, that should continue. This statement appears
to mean that Charles' obligation to support Claudette during the pendency of the action was to
be fulfilled by Charles' making the mortgage payments on the house. The agreement, itself,
provides that its purpose is to provide additional spousal support to [Claudette] in the event
of dissolution of marriage.
1
We conclude that Charles' contractual obligation, devised to
provide for Claudette after divorce, is separate entirely from the order for temporary support
issued by the court during the divorce proceedings. As a consequence, we conclude that the
trial court was correct in ruling that mortgage payments, to be made in lieu of temporary
support payments during the pendency of the divorce action, may not be properly credited to
Charles' contractual, post-divorce spousal support obligation of $10,200.00. We affirm the
trial court's order in this regard.
FORT APACHE PROPERTY
[Headnote 3]
In July 1990, Charles' company, Dimick Development (Development) agreed to do
construction work for a Dr. Valladares, in exchange for a lot in the neighborhood being
developed (the Fort Apache property). Charles signed both his name and Claudette's name to
the trade-out purchase agreement. Charles and Claudette signed vesting instructions for the
escrow company which provided that title should be vested in Claudette and Charles as joint
tenants when escrow closed. Development completed $82,000.00 worth of work on Dr.
Valladares' land.
Development ran into some very serious business problems, including an outstanding debt
to Jerry Walker. Walker threatened to sue, and Charles agreed to assign Development's right
to the Fort Apache property to Walker. Development never took title to the Fort Apache
property. Claudette refused to sign the documents assigning the interest in the Fort Apache
property, and so Charles signed her name to the documents on August 15, 1991.
__________

1
The agreement actually provides that Charles was to create a trust fund for the benefit of Claudette into which
he would pay $200.00 each month during the term of the marriage. Charles had never complied with the terms of
this agreement, but it is reasonable to infer that the intent was to give Claudette, in some manner, an amount
equal to $200.00 for every month of the marriage.
ments assigning the interest in the Fort Apache property, and so Charles signed her name to
the documents on August 15, 1991.
The district court found that the Fort Apache property had been placed in joint tenancy and
Claudette should receive seventy-five percent of the value of that property, valued at the time
of its assignment. The district court further found that Claudette should receive an additional
$2,000.00 as a sanction for Charles' misconduct in signing her name to the documents
assigning the interest in the Fort Apache property.
The dispositive question in determining whether Claudette had an interest in the Fort
Apache property is whether any of the documents signed by Charles alone, or by Charles and
Claudette together, transferred a property interest to Claudette.
NRS 111.105 provides, in pertinent part, that [c]onveyances of land . . . may be made by
deed, signed by the person from whom the estate or interest is intended to pass . . . and
acknowledged or proved, and recorded as directed in this chapter. In this case, there was
never delivery of the deed to Development or to Charles and Claudette.
Claudette argues that the parties had an interest in the property because the purchase
agreement had both their names on it. However, pursuant to NRS 111.105, merely signing a
purchase agreement is insufficient to convey an interest in property. The district court erred in
finding that Claudette had an interest in the Fort Apache property and further erred by
awarding her a portion of the proceeds from the assignment of that property and sanctioning
Charles for signing her name to the assignment. The district court's order as to the Fort
Apache property and the sanction of $2,000.00 assessed against Charles is reversed.
SEPARATE PERSONAL PROPERTY
[Headnote 4]
The district court ordered that [e]ach party shall have their [sic] own personal property,
which is in their [sic] possession, as their [sic] sole and separate property. Claudette
admitted at trial that she still had the bed which Charles had brought to the marriage and
which had been used as the marital bed. While NRS 125.150(4) provides that the separate
property of a spouse may be awarded to the other spouse for support, there is no indication
that the district court intended to make such an award in this instance. It was error for the
district court to fail to order that the personal separate property of each party be returned,
absent some finding that the property must be awarded as support. Therefore, we reverse the
district court's order as to personal separate property and remand so that the district court may
make the appropriate findings and award of personal separate property to each party.
appropriate findings and award of personal separate property to each party.
The trial court's order awarding attorney's fees and refusing to allow credit on Charles'
temporary spousal obligation to be given for his making of mortgage payments is affirmed.
The trial court's order relating to the Fort Apache property and Charles' separate property is
reversed for the reasons stated in this opinion. Accordingly, we remand this matter to the
district court for modification of the divorce decree and order in accordance with this opinion.
____________
112 Nev. 408, 408 (1996) Greenwood v. State
PHILLIP L. GREENWOOD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25437
April 30, 1996 915 P.2d 258
Appeal from the portion of a conviction for misdemeanor battery ordering appellant to pay
restitution. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
The supreme court held that defendant was not required to pay restitution to cover victim's
medical damages resulting from his serious bodily injuries.
Reversed.
James J. Jackson, State Public Defender, and Timothy P. O'Toole, Deputy State Public
Frankie Sue Del Papa, Attorney General, Carson City; Noel Waters, District Attorney,
Egan K. Walker, Deputy District Attorney, Melanie L.F. Bruketta, Deputy District Attorney,
Criminal Law.
Defendant convicted of misdemeanor battery, but acquitted of battery causing serious bodily injury, was not required to pay
restitution to cover victim's medical damages resulting from his serious bodily injuries, where defendant did not admit to and did not
agree to pay restitution for charge of battery causing serious bodily injury. NRS 176.033.
OPINION
Per Curiam:
Appellant Phil Greenwood was tried on a charge of battery causing serious bodily harm. He was acquitted of that charge but was
convicted of the lesser offense of misdemeanor battery.
was convicted of the lesser offense of misdemeanor battery. At the conclusion of the criminal
trial, the district judge ordered Greenwood to pay Jon Stevens, the injured party, restitution in
the amount of $94,000 to cover the costs of all of Stevens' medical bills.
We conclude that the district court's order requiring Greenwood to pay restitution for all of
Stevens' medical bills was erroneous.
FACTS
At approximately 11:00 p.m. on July 27, 1993, Stevens went to Clancy's bar in Carson
City. Stevens was celebrating his job promotion which involved relocation from Carson City
to Puerto Rico. Stevens went to Clancy's bar to meet the bartender, James Branstetter, who
was a friend of Stevens' friend. Stevens and Branstetter began a conversation, and Stevens
had a few drinks.
Also at Clancy's bar were Ken Newman and appellant Greenwood, who were friends and
who had been drinking and playing pool together for several hours. Stevens did not know
either Newman or Greenwood, but Newman testified that Stevens repeatedly gave him dirty
looks. Greenwood confronted Stevens and allegedly told him to stop staring at Newman, but
Stevens persisted in giving Newman dirty looks.
Branstetter testified that around 11:30 p.m., Newman and Stevens got into a heated verbal
argument and were standing nose to nose but that he did not see what prompted the argument.
Branstetter got between the parties, put his arms around both of them, and broke up the
argument. After that, Newman and Greenwood went back to playing pool, and Stevens retook
his seat at the bar. About ten minutes later, Branstetter began to close down the bar and was
able to get Stevens to leave first. Branstetter bought Newman and Greenwood a drink in order
to keep them inside the bar so that Stevens would have ample time to leave the area, thereby
avoiding any more conflict.
Approximately ten minutes later, Newman and Greenwood finished their drinks and left
the bar, and the testimony differs as to what happened next. Stevens testified that after he left
the bar he got into his car and, in accordance with his habit, called his answering service from
his cellular telephone. However, Stevens' telephone bill reflected that he made no calls from
his cellular telephone on the night of the altercation. He testified that he was pulled from his
car by someone and beaten but that he did not remember any details of the incident and only
remembers the police and paramedics administering medical care to him.
Greenwood testified that he walked out of the bar first, believing that Newman was right
behind him, and when he stepped out of the door and onto the sidewalk, he saw somebody
who later was identified as Stevens charging at him yelling something like, "There you
are, you little [expletive deleted]."
of the door and onto the sidewalk, he saw somebody who later was identified as Stevens
charging at him yelling something like, There you are, you little [expletive deleted].
Greenwood testified that he stepped out of the way to avoid being hit, and then hit Stevens
once in the face, knocking him down. When Stevens tried to get up, Greenwood hit him again
in the face, knocking him to the ground. Greenwood further testified that after the second
punch, Newman came out of the bar, Greenwood told him that Stevens had tried to jump him,
and Newman kicked Stevens in the head and chest while he was still on the ground.
Newman testified that he was exiting the bar behind Greenwood but was detained for a
short period of time because he either went to the bathroom or talked to Branstetter briefly.
Newman stated that when he exited the bar shortly after Greenwood he saw Greenwood
jumping and bouncing around Stevens, who was in the fetal position. Newman stated that
while Stevens was on the ground Greenwood kicked him several times in the face and rib
area. Newman then testified that he told Greenwood to let me have a piece of this [expletive
deleted] in order to get Greenwood to calm down and back off of Stevens. Newman then
stated that he tried to roll Stevens over with his foot to see if he was all right but that Stevens
was too heavy to roll over.
Branstetter testified that while he was locking the door to the bar he noticed the
commotion and saw someone who he believed was Greenwood savagely kick Stevens in the
head twice and saw someone who he believed to be Newman standing a considerable distance
away from the altercation. Greenwood and Newman left the scene, and the police and
paramedics arrived shortly thereafter and administered medical care to Stevens. Stevens
refused to go to the hospital with the paramedics but did go to the hospital the next day
because he was in extreme pain.
Stevens suffered extensive injuries to his face and internal organs and required a forty-two
day hospital stay. His external injuries consisted of a skull fracture and broken nose. He also
suffered internal injuries which required the surgical removal of part of his pancreas and his
entire spleen, and it was the removal of these organs and the complications attendant thereto
which mandated the lengthy hospital stay and accounted for the majority of the medical
expenses. The bill for Stevens' medical care was approximately $94,000.
Greenwood was charged with battery causing substantial bodily harm.
1
The jury was
instructed that Greenwood could also be found guilty of the lesser included offense of
battery if it was not convinced beyond a reasonable doubt that Greenwood was guilty of
battery causing substantial bodily harm.
__________

1
Substantial bodily harm was defined in the jury instructions as an
injury which creates a substantial risk of death or which causes serious permanent disfigurement or
protracted loss or impairment of the function of any bodily member or organ or prolonged physical pain.
be found guilty of the lesser included offense of battery if it was not convinced beyond a
reasonable doubt that Greenwood was guilty of battery causing substantial bodily harm. At
the conclusion of trial on December 2, 1993, Greenwood was acquitted of battery causing
substantial bodily harm and was convicted of misdemeanor battery in violation of NRS
200.481.
The issue of restitution was discussed at the sentencing hearing held on December 20,
1993. The State argued that Greenwood was responsible for Stevens' medical bills in their
entirety even though the jury acquitted Greenwood of battery causing substantial bodily harm.
The State claimed that the jury found Greenwood guilty of using unlawful force on Stevens
and that it should not be incumbent upon Stevens to prove who caused what injuries.
Greenwood argued that the jury acquitted him of battery causing serious bodily injury and
that a civil trial was the proper forum to determine who caused what injuries to Stevens.
Greenwood also claimed that given the jury's verdict, it was logical to assume that the jury
did not believe that Greenwood delivered the blows which caused Stevens' substantial bodily
injuries but that the jury did believe that Greenwood acted in excess of his self-defense
privilege by hitting Stevens a second time.
The district judge sentenced Greenwood to time served, a $100 fine, a $55 administrative
assessment, and $94,000 in restitution to be paid to Stevens. The court stated that the basis
for imposing restitution on Greenwood was that
[g]enerally, under the civil law, a person who puts a, a chain of events in, in place is
responsible for the injuries which occur as a result of putting those chain of events in
place. That is, the jury had to conclude that your conduct was inexcusable as a matter of
law.
If they conclude that, then you are responsible for anything that is not the proximate
cause, but a proximate cause, and I expressly find that there is no intervening
unforeseeable cause of this injury. That is, normally under the civil law, somebody else
committing an illegal criminal action is not foreseeable, and, therefore, you would not
necessarily be responsible for that. But in the circumstances in this case, where there
are two individuals who seem to be acting at least in a, in a joint fashion during most of
the evening, that it can well be foreseeable that if an altercation occurs, that more than
one person may be involved in that.
And so I find that you are a foreseeable and a proximate cause of the injury to this
person and assess the, the restitution in that fashion. . . .
Greenwood timely appealed that portion of the sentence imposing the $94,000 restitution
upon him.
DISCUSSION
Nevada law permits a court to set an amount of restitution owed by a criminal defendant if
restitution is appropriate. NRS 176.033.
2
This court has stated that
a defendant may be ordered to pay restitution only for an offense that he has admitted,
upon which he has been found guilty, or upon which he has agreed to pay restitution. . .
. Such a rule embodies a fair reading of NRS 176.033(1) and avoids the manifest
injustice of punishing defendants for charges to which they have neither admitted guilt
nor been adjudicated guilty.
Erickson v. State, 107 Nev. 864, 866, 821 P.2d 1042, 1043 (1991) (citations omitted); see
also State v. Madril, 733 P.2d 365, 367 (N.M. Ct. App. 1987); State v. Voetberg, 781 P.2d
387, 388 (Or. Ct. App. 1989).
We conclude that based on Erickson, it was improper for the district judge to order
Greenwood to pay restitution for all of Stevens' medical damages. The jury acquitted
Greenwood of the charge of battery causing serious bodily injury, but the district judge still
ordered Greenwood to pay restitution to cover Stevens' medical damages resulting from his
serious bodily injuries. Additionally, Greenwood did not admit to and did not agree to pay
restitution for the charge of battery causing serious bodily injury. Therefore, the district judge
improperly punished Greenwood for charges to which he had been adjudicated not guilty in
violation of this court's decision in Erickson.
CONCLUSION
The district court's order requiring Greenwood to pay restitution in the amount of $94,000
to cover the costs of all of Stevens' medical bills was erroneous because Greenwood was not
convicted of the crime of battery causing serious bodily injury, he never admitted to
committing that crime, and he never agreed to pay restitution for that crime. For this reason,
the district judge's order requiring Greenwood to pay restitution in the amount of $94,000
must be set aside.
__________

2
NRS 176.033(1) states:
If a sentence of imprisonment is required or permitted by statute, the court shall:
(a) Sentence the defendant to imprisonment for a definite period of time . . .; and
(b) If restitution is appropriate, set an amount of restitution for each victim of the offense . . . .
order requiring Greenwood to pay restitution in the amount of $94,000 must be set aside.
____________
112 Nev. 413, 413 (1996) Wyphoski v. Sparks Nugget
ROSE WYPHOSKI, Appellant, v. SPARKS NUGGET, INC., Respondent.
No. 23323
April 30, 1996 915 P.2d 261
Appeal from district court order granting petition for judicial review. Second Judicial
District Court, Washoe County; Brent T. Adams, Judge.
Self-insured employer brought action to recoup workers' compensation benefits that it had
paid to claimant and which were subsequently determined to be unwarranted. The district
court allowed recoupment, and appeal was taken. The supreme court, Springer, J., held that
private self-insurer cannot recoup funds properly paid to claimant pending an appeal when
funds are later found to be unwarranted.
Reversed.
Nancyann Leeder, Attorney for Injured Workers, Larry Yenko, Deputy, Carson City, for
Appellant.
Piscevich & Fenner, Reno; Richard L. Davenport, Sparks, for Respondent.
Workers' Compensation.
Private self-insurer cannot recoup workers' compensation funds properly paid to claimant pending an appeal when funds are later
found to be unwarranted. Private self-insurer has no greater rights than State Industrial Insurance System (SIIS) to recoup payments
already made.
OPINION
The issue on this appeal is whether a self-insured employer may prosecute a civil action to recoup workers' compensation benefits that
it paid to an employee and which are subsequently determined to be unwarranted. We have already held in Ransier v. SIIS, 104 Nev. 742,
766 P.2d 274 (1988), that the State Industrial Insurance System (SIIS) cannot recoup funds properly paid to a claimant pending
appeal, when the payments are later found to be unwarranted after appeal.
a claimant pending appeal, when the payments are later found to be unwarranted after appeal.
Although respondent, Sparks Nugget, is a private, self-insurer, it also is subject to the rule in
Ransier; therefore, we reverse the district court's order and deny recoupment.
In Ransier, the claimant was paid $19,655.56; on appeal, this sum was ruled unjustified.
104 Nev. at 745, 766 P.2d at 276. There is an inherent injustice in allowing a claimant to keep
funds to which he is not legally entitled, and we recognized in Ransier that there are valid
policy reasons to allow recoupment. Nevertheless, in Ransier, we concluded that a cause of
action to enforce such a recoupment claim by SIIS was unsupported by any fair reading of
the statutory scheme. Id. at 746, 745 P.2d at 277.
The Nugget argues that as a private insurer, denial of its right to recoup payment of an
unjustified claim violates its constitutional right to due process of law. According to the
Nugget, once the court ruled that Wyphoski's physical problem was not industrially related,
the Nugget had an absolute property right to recoup the funds paid under the false assumption
that Wyphoski was entitled to industrial compensation
1
.
The trial court and the Nugget agree that under Ransier, SIIS cannot recoup funds properly
paid to a claimant pending an appeal when the funds are later found to be unwarranted. We
conclude that a self-insurer is similarly precluded from recouping such funds. Here, the
Nugget voluntarily chose to be a self-insurer; it has no greater rights than SIIS to recoup
payments already made. The Nugget does, however, raise other issues which must be
addressed.
In Ransier, we noted in dictum that Ransier has done no wrong, id. at 746, 766 P.2d at
277, and implied that this fact entered into our decision to deny SIIS the right to recoup funds
that had been unjustified. The Nugget argues that the Ransier rule should not be applied in
this case because Wyphoski had been advised by several treating physicians that the pain in
her wrist did not relate to her employment. The Nugget urges us to adopt a rule allowing
recoupment in cases in which a doctor tells the claimant that her injury is not
work-connected. We decline to modify Ransier and leave it to the legislature to balance the
interests of the claimants and insurers in these kinds of difficult cases.
__________

1
We are told by counsel for the Nugget that it is unfair to deny recoupment in this case because the recoupment
would, in reality, be funded by Wyphoski's insurance carrier. The source of a recoupment payment, however,
does not affect our holding in Ransier that funds already paid to a claimant cannot be recouped.
interests of the claimants and insurers in these kinds of difficult cases.
2

Based upon our holding in Ransier, we reverse the order of the trial court and deny the
Nugget's claim for recoupment. Wyphoski's request that the Nugget be sanctioned for its
allegedly intentional disregard of the hearing officer's order is denied.
The majority states that [t]here is an inherent injustice in allowing a claimant to keep
funds to which he is not legally entitled, and we recognized in Ransier
1
that there are valid
policy reasons to allow recoupment.' I agree. However, I reluctantly joined with the majority
in Ransier denying relief to SIIS primarily because of our focus on the plight of a claimant
who has received and expended his worker's compensation, only to be subject to a judgment
of recoupment after his award is later overturned on appeal.
Although I still sympathize for the worker under such circumstances, I am no longer able
to accept as a valid principle of law or equity that one who is not entitled to receive
compensation, but who has nevertheless succeeded in obtaining an award, is able to retain the
unjustifiable windfall achieved at the expense of another. This is so despite the great disparity
between the personal assets of the employee on the one hand, and his or her employer or the
State Industrial Insurance System (SIIS) on the other.
As a practical matter, it would probably be comparatively rare when either SIIS or a
self-insured employer would be able to recoup payments unjustifiably paid to a claimant.
__________

2
Ransier is based principally on the legislature's failure to create a new cause of action to cover these kinds of
situations. Although it can be argued that NRS 616.5435(2) might reveal some intention on the part of the
legislature to allow recoupment in cases like the one at bar, the Nugget's counsel concedes in her answering brief
that [a]lthough NRS 616.5435(2) creates an offset against certain future benefits, it does not purport to address
the situation where, as here, there are no future benefits from which such amounts may be deducted. She also
concedes: Likewise, although NRS 616.563 and NRS 616.675 address situations involving entitlement to
reimbursements or deduction from benefits in cases of willful misrepresentation or concealment of a material
fact, they do not purport to address the situation where, as here, there is no such willful misrepresentation or
concealment. Absent legislative intervention, we continue to honor the rule established in Ransier.

1
Ransier v. SIIS, 104 Nev. 742, 766 P.2d 274 (1988).
recoup payments unjustifiably paid to a claimant. Nevertheless, a judgment for recoupment
should be provided to SIIS or the self-insured employer who has been vindicated on appeal.
In the case of Dep't of Ind. Relations v. Circus Circus, 101 Nev. 405, 705 P.2d 645 (1985),
we properly required the prompt payment of benefits to claimants notwithstanding a pending
challenge to the propriety of the award in the court system. We noted, however, that if the
self-insured employer prevailed on appeal, its remedy was to seek recovery by way of
recoupment. This rule was later recognized in Imperial Palace v. Dawson, 102 Nev. 88, 715
P.2d 1318 (1986), and more recently in Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888
(1991). Then, in Ransier, we in effect said April Fools, and declared to an undoubtedly
amazed SIIS that recoupment was not available despite a successful ruling by this court on
the underlying merits of its appeal. Predictably, the instant case now also slams the door on
self-insured employers who were previously informed in Circus Circus that recoupment for
unwarranted payments would be the available remedy for prevailing on appeal.
I believe that this court undermines the fundamental principle of our civil justice system
that where there is a wrong there is a remedy, when it denies the availability of even paper
relief to an injured party who prevails on appeal. Perhaps a compromise could be achieved if,
in these difficult cases, the Legislature would require that all employers share equally in the
cost of unwarranted compensation. That would at least eliminate the imposition of a personal
welfare burden on single employers whose accounts are charged with compensation payments
that were awarded in error. Barring this, such employers should at least have the prospect of
an offset in the event of future claims (probably the most likely of the remote practical effects
of a judgment for recoupment).
2
If the offset proved to be a significant burden on the
worker, presumably the State has other sources of welfare available in such cases, where
the effect of the burden would be shared by a much larger pool of taxpayers.
__________

2
The Legislature, in enacting NRS 616.5435 provided, in pertinent part, that:
If the final resolution of the claim is in favor of the insurer or employer, any amount paid to the claimant
in excess of the uncontested amount must be deducted from any future benefits related to that claim,
other than medical benefits, to which the claimant is entitled. The deductions must be made in a
reasonable manner so as not to create an undue hardship to the claimant.
(Emphasis added.)
Of course, the referenced statute has no application to the instant case since it was determined that the claimant
did not suffer from an industrial-related injury. Therefore, there will be no further payments related to that
claim, and thus no specific right of offset is granted by this statute. However, it is certainly impossible to
conclude from this statute, that the Legislature intended that SIIS or self-insured employers would have no right
of offset or recoupment from payments made to a claimant outside the workers' compen-
burden on the worker, presumably the State has other sources of welfare available in such
cases, where the effect of the burden would be shared by a much larger pool of taxpayers. In
any event, I suggest that it is unfair that a vindicated employer be penalized for paying
compensation later determined to be unjustified.
For the reasons noted above, and others not discussed, I am in full agreement with the
district court's reasoning, including the determination that since it was undisputed that the
claimant did not suffer from either an industrial injury or illness, she was outside the ambit of
the workers' compensation scheme, and the Nugget was therefore entitled to prosecute a civil
action to recoup the monies that it had been forced to pay her. I also agree with the Nugget
that under the circumstances of this case, where the Nugget is forced to absorb a loss not
required by law, without the possibility of recoupment, there has been a denial of due process.
____________
112 Nev. 417, 417 (1996) D'Agostino v. State
FRANK SALVATORE D'AGOSTINO, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 25084
April 30, 1996 915 P.2d 264
Appeal from district court order denying motion for new trial in capital case. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Defendant convicted of first-degree murder based, at least in part, on testimony of his
estranged wife moved for new trial upon discovering that criminal charges that were pending
against his wife at time of defendant's trial had all been dismissed. The district court entered
order denying defendant's motion for new trial, and defendant appealed. The supreme court,
Steffen, C. J., held that defendant was not entitled to new trial based on alleged newly
discovered evidence regarding cooperation between wife and state.
Affirmed.
__________
sation scheme. Where, as here, it has been determined beyond cavil, that payments were exacted from the
self-insured employer for an injury suffered by an employee that had no causal relationship to his employment,
the right of recoupment is manifest. There is simply no basis in law for holding the employer responsible for
such payments, which is precisely what the majority does in denying the employer a right of recoupment.
Buttell & Percival, Las Vegas; Norman J. Reed, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney and Melvyn T. Harmon, Deputy District
Attorney, Clark County, for Respondent.
Michael Pescetta, Las Vegas, for Amicus Curiae Nevada Appellate and Post-conviction
Project.
Kenneth C. Cory, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
Laura Wightman FitzSimmons, Las Vegas, for Amicus Curiae Nevada Trial Lawyers
Association.
1. Criminal Law.
Defendant convicted of first-degree murder based, at least in part, on testimony of his estranged wife was not entitled to new trial
based on evidence which he discovered after trial as to state's dismissal of criminal charges against wife. Question of wife's alleged
cooperation with state was explored in great detail at defendant's trial, at which defense attorney pointed out the pendency of criminal
charges that were later dismissed and questioned wife as to her receipt of money from secret witness fund, and evidence of defendant's
guilt was overwhelming.
2. Criminal Law.
To merit new trial, newly discovered evidence must be evidence that could not have been discovered through reasonable diligence
either before or during trial.
3. Criminal Law.
To merit new trial, newly discovered evidence must be such as to render different result probable on retrial.
4. Criminal Law.
Defendant cannot obtain new trial based on newly discovered evidence which merely contradicts, impeaches or discredits witness
at defendant's trial, unless witness' testimony was so important that different result would be reasonably probable.
5. Criminal Law.
When evidence of defendant's guilt is overwhelming, there is great reason to extend deference to trial court's discretionary denial
of new trial motion.
6. Criminal Law.
Motion for new trial that was not filed until more than two years after jury returned verdict of guilty and defendant was sentenced
to death was not filed in timely fashion, under Nevada statute providing that whenever motion for new trial is based on newly
discovered evidence, motion must be filed within two years after verdict or finding of guilt. Trial court properly rejected defendant's
contention that two-year window should begin to run, in capital case, only after conclusion of all appeals. NRS 176.515(3).
OPINION
This is an appeal from a district court order denying appellant Frank Salvatore
D'Agostino's motion for a new trial based upon newly-discovered evidence. D'Agostino
contends that numerous facts unknown to him at trial indicate that a critical state witness was
receiving favorable treatment from the State concerning various criminal matters, and that the
nature of the treatment strongly suggests that there was an agreement between the witness and
the State. D'Agostino also maintains that the key witness and the prosecution committed
perjury in denying the existence of the alleged agreement, and that because the extent of the
cooperation between the State and the key witness was discovered and discoverable only after
trial, the district court erred in denying his motion for a new trial. For reasons which will be
discussed hereinafter, we conclude that the district court properly exercised its discretion in
denying D'Agostino's new trial motion, and therefore affirm.
I.
PROCEDURAL HISTORY
D'Agostino was tried and convicted by a jury of first-degree murder and sentenced to
death. On direct appeal, this court affirmed the conviction, but vacated the death penalty and
remanded the matter for a new penalty hearing. See D'Agostino v. State, 107 Nev. 1001, 823
P.2d 283 (1991). Subsequent to the disposition of his direct appeal, D'Agostino
unsuccessfully sought a new trial based upon newly-discovered evidence. The instant appeal
is from the district court's order denying D'Agostino's motion for a new trial.
II.
FACTS
Since our original disposition of D'Agostino addressed only penalty-phase error, there was
no recital of the basic operative facts underlying D'Agostino's conviction for the first-degree
murder of a young woman. We therefore now take the occasion to memorialize the factual
background of this case as reflected by the trial evidence.
The murder occurred on April 24, 1989. Events leading up to the homicide include the
arrival of the victim, Eleanor (Ellie) Panzarella, in Las Vegas on April 22, 1989. Shortly after
her arrival, she met and developed a short-lived friendship with Ruben Varela.
arrival, she met and developed a short-lived friendship with Ruben Varela. After an evening
of drinking and gambling, the two quarreled, experienced some brief, non-friendly physical
contact, and Varela left alone in a taxicab. Earlier in the day, Ellie agreed to let Varela store
his luggage in her newly-rented apartment before obtaining his own place. That day, Ellie and
Varela met D'Agostino and his wife, Rose Lakel, who had an apartment in the same complex
as the victim. Rose offered dishes and glasses to Ellie, which D'Agostino took to the victim's
apartment. While there, D'Agostino told Varela and Ellie that he could obtain drugs for them
if they so desired. Varela gave D'Agostino $200 for some cocaine which he was to pick up
later.
After the heated argument with Varela, Ellie returned to her apartment in the company of
Jack Green, who was with her as a proffered source of protection from Varela. Both Ellie and
Green watched as Varela walked through the apartment complex making a disturbance,
including what was later identified as a confrontation with D'Agostino regarding the cocaine
he had purchased but not received. Eventually, Ellie was able to remove Varela's luggage and
place it in the office of the apartment complex, where he later retrieved it. Varela left Ellie a
note, and after four days, moved to Arizona where he anticipated better opportunities for
purchasing marijuana in large quantities. Varela testified that he never saw Ellie again.
On the evening of April 23 and the morning of April 24, D'Agostino periodically left his
wife, Rose, and spent time with Ellie in the latter's apartment. At one point during the night,
D'Agostino returned to his apartment, where his wife, Rose, saw him wrap baking soda and a
steak knife in a newspaper before leaving again. During the early morning hours of April 24,
Renita Brown, who occupied an apartment next to Ellie's, overheard a fight in progress in the
victim's apartment that included sounds of a woman calling for help, and what appeared to be
someone being banged up against a wall. Brown did not have a telephone and made no
attempt to contact the police or any other possible sources of help.
Rose Lakel testified that when D'Agostino returned to their apartment on the morning of
April 24, he was sweating and had blood on his face, in his mouth, on his hands, and on his
clothes from his waist down to and including his shoes. D'Agostino removed from the back of
his pants the same steak knife that he had taken earlier. Rose noticed that there were
brownish, orange pieces of meat, blood, and a single curly, black hair on the knife. Ellie
had curly, black hair. Rose also noticed that when D'Agostino removed his clothes to take a
shower, he had blood around his penis and on his thighs. D'Agostino also threw on the couch
a plastic bag containing five or six hundred dollar bills and various pieces of jewelry that
had not previously been among his possessions.
couch a plastic bag containing five or six hundred dollar bills and various pieces of jewelry
that had not previously been among his possessions.
Over the next few days, Rose noticed that D'Agostino would return to their apartment on
several occasions with a horrible smell on his person. Additionally, a friend, Anthony
Wells, stayed with D'Agostino and Rose for several days following April 24. Both Wells and
Rose saw that D'Agostino had in his possession the victim's driver's license and credit card.
On two occasions while Wells was staying with D'Agostino, he accompanied D'Agostino
to Ellie's apartment where they rummaged through her belongings. During one such visit,
Wells assisted D'Agostino in moving a mattress off of Ellie's body. Wells then saw
D'Agostino turn on the air conditioner and spray perfume in the apartment. Wells testified
that each time they went to the victim's apartment, D'Agostino gained entry by using a key.
The trial evidence indicated that Varela had never been given a key to the apartment, and that
D'Agostino had never received a key from either the victim or Varela.
D'Agostino also called Wells at the former's apartment, and both Wells and Rose heard
D'Agostino ask Wells to make a champagne cocktail and throw it through Ellie's apartment
window in order to eliminate evidence of their fingerprints. Although expressing agreement,
Wells did not comply with D'Agostino's request. Not long after that conversation, D'Agostino
and Rose took a taxicab to a convenience store where D'Agostino purchased six bottles of
rubbing alcohol, matches, and cigarettes. After returning to their apartment, D'Agostino
experimented with pouring alcohol on the floor and then igniting it with a burning cigarette
and matches. Later, D'Agostino telephoned Wells and told him that he done set it afire and it
should be going up anytime now.
The evidence also demonstrated that on April 25, Wells and D'Agostino pawned the
jewelry that D'Agostino had acquired. D'Agostino used Wells in the transaction because
D'Agostino had no identification. The items of jewelry pawned for $490 included four
diamond rings, a gold and diamond pendant, a pair of gold earrings, and a gold necklace.
These items were identified as being jewelry that was similar or identical to that owned by the
victim. Moreover, Rose testified that there were items of jewelry brought to their apartment
by D'Agostino that included pieces with the initial E on them, which D'Agostino flushed
down the toilet.
On May 2, 1989, Ellie's body was found by employees of the apartment complex. Part of
the victim's body and apartment had been burned by fire fueled by rubbing alcohol. Ellie had
been stabbed numerous times in the chest and back, and later, thirty to forty percent of
the surface of her body had been burned.
stabbed numerous times in the chest and back, and later, thirty to forty percent of the surface
of her body had been burned. The victim died from two stab wounds that penetrated her heart.
A piece of wire was tightly wrapped around the victim's left ankle, and no jewelry or money
was found in her apartment.
After noticing the police, D'Agostino and Rose left their apartment for a day and stayed in
a motel. The following day, they returned to the apartment, packed their belongings, and left
for Phoenix, Arizona. During their three-week stay in Phoenix, Rose gave birth to a baby girl.
Eventually, the couple moved to Tampa, Florida, where they lived for several months. On
February 9, 1990, the couple had a fight and Rose reported the incident to the police. During
the course of reporting spousal abuse to the police, she explained, for the first time, the details
of what had occurred in Las Vegas. She had delayed speaking to the authorities about the
bizarre events in Las Vegas out of fear for her own life and the lives of her family. Rose gave
a detailed statement to the Tampa police, and was eventually flown back to Las Vegas for
further investigation of the Panzarella homicide.
While D'Agostino was incarcerated in Florida, he revealed the details of Ellie's murder to a
cellmate, Michael Gaines, who thereafter informed the police and ultimately testified at
D'Agostino's trial.
As noted above, D'Agostino was tried before a jury, and convicted of first-degree murder
and sentenced to death. This court affirmed D'Agostino's conviction, but vacated the death
sentence and remanded for a new penalty hearing. In the interim, D'Agostino now challenges
on appeal the district court's denial of his motion for a new trial.
DISCUSSION
[Headnote 1]
D'Agostino contends that the district court erred in denying his motion for a new trial. The
basis for D'Agostino's motion was newly-discovered evidence that would likely yield a
different trial result because of the critical nature of the testimony of his wife, Rose Lakel,
and the negative impact his newly discovered evidence would have on her credibility and
the bona fides of the State's prosecution.
D'Agostino insists that the fact that several misdemeanor charges against Rose, the State's
key witness, were dismissed, and a felony charge against her reduced to a misdemeanor,
strongly demonstrates that an agreement between the State and Rose existed. Accordingly,
D'Agostino contends that Rose Lakel, two investigators, and the prosecutor perjured
themselves when each denied the existence of such an agreement. D'Agostino therefore
maintains that the trial court erred in denying his motion because this alleged agreement
was never disclosed to the defense, and consequently violated his rights to due process.
therefore maintains that the trial court erred in denying his motion because this alleged
agreement was never disclosed to the defense, and consequently violated his rights to due
process. We disagree.
[Headnote 2]
To merit a new trial, newly-discovered evidence must be evidence that could not have
been discovered through reasonable diligence either before or during trial. Sanborn v. State,
107 Nev. 399, 406, 812 P.2d 1279, 1284 (1991). Although evidence that the charges against
Rose were disposed of after the trial could not have been discovered prior to trial, evidence of
the pending misdemeanor and felony charges was presented to the jury. This provides the
basis, which the prosecutor in this case twice mentioned to defense counsel outside the jury's
presence, for defense counsel's examination of Rose concerning any agreement or possible
bias she may have had. See Davis v. Alaska, 415 U.S. 308, 317-18 (1974) (cross-examination
of witness to develop potential bias is permissible). During trial, defense counsel
cross-examined Rose concerning any possible agreement. Thus, we conclude that the district
court did not abuse its discretion in denying D'Agostino's motion for a new trial.
[Headnotes 3, 4]
Moreover, newly-discovered evidence must be such as to render a different result
probable on retrial; not only an attempt to contradict, impeach, or discredit, a former witness,
unless the witness is so important that a different result would be reasonably probable.
Sanborn, 107 Nev. at 406, 812 P.2d at 1284-85. The district court found that since the issue
of benefits received and/or promised to Rose Lakel was fully explored at trial, the
information now proffered by the defense is not such as to render a different result probable
upon retrial.
At trial, defense counsel and/or the prosecutor questioned Rose about the following: the
witness having received a traffic warrant, a trespass warrant, a soliciting prostitution warrant,
and a grand larceny warrant; whether these warrants had been actively pursued; detectives
having successfully released Rose from jail five days after incarceration; Rose's previous drug
history; and the circumstances and timing of secret witness funds Rose received and the
possible impact of the money on her testimony. Despite this evidence suggesting cooperation
with the State, Rose consistently denied that she was working with the police, that she was
receiving any benefit for her testimony from the police, or that she consciously weighed the
existing warrants or the potential secret witness money when she went to the authorities.
Even defense counsel, outside the presence of the jury, stated, "[m]aybe she [Rose] doesn't
think she is [working with the police], but I think the inference is that Metro thinks she
is."
jury, stated, [m]aybe she [Rose] doesn't think she is [working with the police], but I think the
inference is that Metro thinks she is. See Ransey v. State, 100 Nev. 277, 279, 680 P.2d 596,
597 (1984) (holding that bias of witness is always relevant to credibility); see also Davis v.
Alaska, 415 U.S. 308, 320 (1974) (quoting Alford v. United States, 282 U.S. 687, 693
(1931)). Given the extent to which areas of cooperation between Rose and the police was
explored, we are persuaded that the trial court did not abuse its discretion in finding that
evidence of the dismissed warrants was not sufficiently material to render a different result
probable upon retrial. McCabe v. State, 98 Nev. 604, 608, 655 P.2d 536, 538 (1982) (holding
that the granting of a new trial on the grounds of newly discovered evidence is largely
discretionary with the trial court and that the trial court's determination will not be disturbed
unless an abuse of discretion is clearly shown).
[Headnote 5]
Moreover, despite the fact that Rose Lakel was indeed a key witness for the State, we are
convinced from our review of the record, that the evidence against D'Agostino was
overwhelming. Although D'Agostino would have had the jury believe that he was guilty only
of grand larceny and arson, and that Varela killed Ellie during a brief period when he left for
a nearby store and returned to find her dead (the story communicated at trial by witness
Anthony Wells related what D'Agostino told him), the evidence is clearly to the contrary.
Where, as here, evidence of guilt is overwhelming, there is great reason to extend deference
to the district court's discretionary denial of D'Agostino's new trial motion. Cf. Pacheco v.
State, 81 Nev. 639, 641, 408 P.2d 715, 716 (1965) (adopting standard that the new evidence
must be such as to render a different result probable on retrial. Stating that such standard calls
for an exercise of discretion by the trial court).
[Headnote 6]
Finally, we note that the district court, in its oral denial of D'Agostino's new trial motion,
found that D'Agostino failed to satisfy the criteria for meriting a new trial under NRS
176.515(3). NRS 176.515(3) provides that [a] motion for a new trial based on the ground of
newly discovered evidence may be made only within 2 years after the verdict or finding of
guilt.
On October 30, 1990, D'Agostino's jury returned a verdict of guilty. D'Agostino was
sentenced to death on December 12, 1990, and filed his motion for a new trial on August 13,
1993, well after D'Agostino was convicted of Ellie's murder. D'Agostino nevertheless
contends that the two-year statutory period commences at the conclusion of the proceedings,
meaning, in a capital case, after a variety of appeals and the final verdict and imposition of
sentence, which, he contends, could not occur until after this appeal.
verdict and imposition of sentence, which, he contends, could not occur until after this
appeal.
We disagree and conclude that the district court did not err in finding that D'Agostino did
not comply with NRS 176.515(3). In Snow v. State, 105 Nev. 521, 779 P.2d 96 (1989), this
court upheld the trial court's denial of a motion for a new trial, not on its merits, but on the
court's conclusion that it lacked jurisdiction. Id. at 522-23, 779 P.2d at 97. Snow involved a
defendant who received the death sentence and later claimed to have discovered evidence that
a key witness committed perjury. This court concluded that the two-year limit was not
unconstitutional because a defendant sentenced to death may bring such evidence before the
court for consideration, even after the two-year time limit imposed by NRS 176.515(3) has
run, in a petition for a writ of habeas corpus. Id. at 523, 779 P.2d at 97. Implicitly, Snow
contradicts D'Agostino's contention that the two-year window begins after the conclusion of
all appeals in a capital case. Additionally, we conclude, as we did in Snow, that D'Agostino
would not be foreclosed from seeking habeas relief despite the two-year period of limitations
under NRS 176.515(3).
CONCLUSION
For the reasons discussed above, we conclude that the district court did not err in denying
D'Agostino's motion for a new trial. We accordingly affirm.
I dissent in this case and would reverse the judgment of conviction because D'Agostino
was denied his right to a full and meaningful cross-examination of Rose Lakel, who was the
principal witness
1
for the prosecution.
Rose Lakel received a number of benefits from the police and the prosecution as a result of
her cooperation as a State's witness. For example, investigating detectives in this case
sought dismissal or other favorable treatment for Rose Lakel relative to a number of criminal
charges pending against her. Detectives contacted one jurist and explained the situation to
the jurist (that is to say, the situation relating to Lakel's assistance to the police in the
D'Agostino case) and sought and obtained for Lakel a suspended sentence in a criminal
matter. Further evidence of police intervention is seen in a letter appearing on the letterhead
of Justice of the Peace William Jansen.
__________

1
Mr. Harmon, the prosecuting attorney in this case, agreed during oral argument that Rose Lakel was the
prosecution's principal witness.
of Justice of the Peace William Jansen. Judge Jansen wrote: Officer Steve Scholl requested
that the defendant (Rose Lakel) be released. She is working for Met. (Metropolitan Police
Department). Further, according to prosecutor Harmon the police told Rose Lakel that there
would be secret witness money available for her; and, during the course of this prosecution,
the police paid Lakel (out of its secret witness fund) $1,000.00 after the warrant for
D'Agostino was issued, $500.00 after she testified in the preliminary examination and
$500.00 during trial. Some of the favors that the State did for its principal witness were made
known to the jury, others were not. The prosecution did not advise defense counsel of all of
the benefits which Lakel received from the State.
The mentioned $2,000.00 payment by the police to Rose Lakel during the course of this
prosecution was disclosed to D'Agostino, and D'Agostino had an opportunity to
cross-examine this witness about these police payments; however, D'Agostino was not told
about a number of other instances of favors provided to Rose Lakel by the police and the
prosecution by way of securing dismissals and favored sentencing treatment for her during
the time that she was testifying for the prosecution in the preliminary examination and at trial.
The State argued to the trial court in its answer in opposition to the motion for new trial
that [b]eyond the consideration outlined above [the payment of $2,000] there were no
promises of benefits to Rose Lakel in return for her cooperation and that favorable
dispositions of pending criminal cases against Lakel do not, in themselves, establish that
there was a pre-existing, undisclosed, under the table agreement to dispose of Rose Lakel's
felony charge.
The State also argues that benefits given to or expected by a witness for the prosecution
need not be disclosed to the defendant by the State if the prosecutor who is involved in the
actual prosecution of the specific case has no knowledge of them. The State also continues to
argue that it must have made an explicit under the table deal in order to violate a
defendant's right to cross-examine a rewarded witness on all benefits received by that witness.
Neither of these arguments is sustainable.
In my view, denial of this defendant's cross-examination rights are not dependant either on
a showing of an explicit promise of benefits in exchange for testimony or upon knowledge on
the part of the trial prosecutor of benefits that were not disclosed to that prosecutor by the
police, the district attorney's office and others within the prosecution apparatus.
If the prosecutor (collectively the police and the district attorney's office) has made
undisclosed promises or threats to a witness, then the defendant is denied rights under the
Sixth and Fourteenth Amendments of the Federal Constitution and under the Nevada
Constitution, article 1, sections 3 and S, whether the actual trial prosecution is aware of
these facts or not.
witness, then the defendant is denied rights under the Sixth and Fourteenth Amendments of
the Federal Constitution and under the Nevada Constitution, article 1, sections 3 and 8,
whether the actual trial prosecution is aware of these facts or not.
Giglio v. United States, 405 U.S. 150 (1972), is on point. In that case the prosecutor who
presented evidence to the grand jury promised a witness immunity in exchange for trial
testimony helpful to the state's case. At trial, the witness testified falsely that no promises had
been made to him. A different prosecutor, who claimed not to know of the previous promise,
tried the case. The Supreme Court held that whether the nondisclosure was a result of
negligence or design, it is the responsibility of the prosecutor; and then: To the extent this
places a burden on the large prosecution offices, procedures and regulations can be
established to carry that burden and to insure communication of all relevant information on
each case to every lawyer who deals with it. Id. at 154. In Fulford v. Maggio, 692 F.2d 354
(5th Cir. 1982), the issue under review related to statements that were in the hands of the
police but which were claimed not to be known by the prosecutor. The court pointed out:
The State's duty of disclosure is imposed not only upon its prosecutor, but also on the State
as a whole, including its investigative agencies. Id. at 358 n.2. Thus, statements held by the
police are constructively held by the State's attorney when both have access to and control
over documents.
The prosecuting attorney's obligations under this standard extend to material and
information in the possession or control of members of the prosecutor's staff and of any
others who have participated in the investigation or evaluation of the case and who
either regularly report or, with reference to a particular case, have reported to the
prosecutor's office.
11 ABA, Standards for Criminal Justice, Standard 11-2.1(d) at 11-15 (2d ed. 1980).
Failure by the State to disclose all of the favors that had been given or promised to Lakel
might very well have had a strong effect on the jury's assessment of the strength of the
prosecution's case as it was developed by the State's principal witness, Rose Lakel. The jury
might have taken an entirely different view of her testimony if it had known all of the facts
relating to her testimony. This effect on a jury is the same whether the failure to disclose was
knowing or unknowing with regard to the prosecutor who actually presented the State's case.
With regard to the State's claim that it made no deals with witness Rose Lakel, that there
was no quid pro quo and no promise that if she testified agreeably, she would be given
favored treatment with regard to criminal proceedings pending against her, the absence
of such a "deal" really does not matter in these kinds of cases.
promise that if she testified agreeably, she would be given favored treatment with regard to
criminal proceedings pending against her, the absence of such a deal really does not matter
in these kinds of cases. It is the jury's ability to assess the credibility of the State's witness that
is determinative; and it is the witness's bias, as generated by promises or threats by the State,
that must be fully explored. If, because the full extent of the favored treatment given to Rose
Lakel was kept from D'Agostino in this case, D'Agostino was not able to engage in a
complete cross-examination of the State's principal witness, then his constitutional rights
have been violated. It does not matter that the nondisclosure was unintentional or that the
State made no explicit promises in exchange for the witness's testimony. [W]henever a
prosecution witness may be biased in favor of the prosecution because of outstanding
criminal charges or because of any non-final criminal disposition against him within the same
jurisdiction, that possible bias, in fairness, must be known to the jury. Commonwealth v.
Evans, 512 A.2d 626, 631 (Pa. 1986). The rationale behind such a holding is simply that
[e]ven if the prosecutor has made no promises, either on the present case or on other pending
criminal matters, the witness may hope for favorable treatment from the prosecutor if the
witness presently testifies in a way that is helpful to the prosecution. And if that possibility
exists, the jury should know about it. Id. at 631-32.
I would hold in this case that the conviction was obtained by use of a principal witness
who may have been influenced by a hope for benefit or fear of harm from the State, and under
conditions in which it appears that full information about the relationship between the
prosecution and the witness was not disclosed to the defense. Under these circumstances, I
would reverse the judgment of conviction and remand for a new trial.
____________
112 Nev. 428, 428 (1996) Johnson v. Egtedar
JOAN JOHNSON, Appellant, v. ASCAR EGTEDAR, M.D. and ASCAR EGTEDAR, M.D.,
INC., Respondents.
No. 26031
April 30, 1996 915 P.2d 271
Appeal from final judgment in an action for medical malpractice. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Patient brought action against surgeon for battery and medical malpractice arising out of
lower back surgery. Upon jury verdict, the district court entered judgment in favor of surgeon.
Patient appealed.
appealed. The supreme court held that: (1) trial court erred in refusing to give patient's
proposed jury instruction on res ipsa loquitur; (2) jury was properly instructed to use but for
test of causation; (3) district court improperly limited plaintiff's expert testimony on
causation; and (4) pathology slides offered by surgeon were properly authenticated.
James Oran Porter, Chtd. and Robert D. Walker, Las Vegas, for Appellant.
Dawson & Associates and Booker T. Evans, Las Vegas; Schuering, Zimmerman, Scully &
Nolen and Thomas J. Doyle, Sacramento, California, for Respondents.
1. Trial.
Party is entitled to jury instructions on every theory of her case that is supported by evidence.
2. Physicians and Surgeons.
Medical malpractice plaintiff's proposed jury instruction, patterned on statutory res ipsa loquitur rule for medical malpractice
cases, was adequate res ipsa loquitur instruction despite fact that it was modified to reflect alleged existence of only two of five
possible factual predicates enumerated in statute. Legislature intended statutory formulation to replace, rather than supplement, classic
res ipsa loquitur formulation in medical malpractice cases. NRS 41A.100.
3. Negligence.
Under traditional res ipsa loquitur doctrine, presumption of negligence only arises after plaintiff has established that event in
question is one that ordinarily does not occur in absence of negligence. Restatement (Second) of Torts 328D comment c.
In medical malpractice case, under traditional res ipsa loquitur doctrine, whether event in question is one that ordinarily does not
occur in absence of negligence may be within common knowledge of lay person, if not, testimony of expert witness is required.
Restatement (Second) of Torts 328D comment d.
All medical malpractice plaintiff need do to warrant instruction under statutory medical malpractice res ipsa loquitur rule is
present some evidence of existence of one or more of factual predicates enumerated in statute, and if trier of fact finds that one or more
of factual predicates exist, then presumption must be applied. NRS 41A.100.
Medical malpractice plaintiff's proposed jury instruction on statutory res ipsa loquitur rule was supported by evidence, and thus
district court erred in refusing to give proposed jury instruction where plaintiff presented evidence that surgeon injured her colon and
ureter during spinal laminectomy and that surgeon operated at wrong level of her spine. NRS 41A.100(l)(d), (e).
If party requests jury instruction and it is refused by trial court, in order to preserve issue for review, party must
object and distinctly state grounds for objection, but general objection is generally inadequate to preserve
issue for appeal unless there is plain error.
order to preserve issue for review, party must object and distinctly state grounds for objection, but general objection is generally
inadequate to preserve issue for appeal unless there is plain error. Where counsel timely calls to district court's attention issues of law
involved, slight omission in compliance with rule of civil procedure will not preclude appellate review. NRCP 51.
Objections to jury instructions made during conferences in chambers should be on record. NRCP 51.
Although jury instructions were settled in chambers off record and doctor's objection, made on record, was at most, only slightly
more than general objection, district court was adequately apprised of issue of law involved in doctor's objection to medical
malpractice plaintiff's proposed res ipsa loquitur jury instruction and was given opportunity to correct error, and thus issue was
adequately preserved for appellate review. NRCP 51.
Trial court's erroneous refusal to give medical malpractice plaintiff's proposed jury instruction patterned on statutory res ipsa
loquitur rule for medical malpractice cases was not harmless since error had possible effect of shifting burden of proof onto plaintiff.
NRS 41A.100.
Trial court properly instructed jury to use but for test of causation in medical malpractice action where each side argued its own
theory of causation for each of patient's injuries and disputed theory of causation of other side, and two theories were presented as
being mutually exclusive.
12. Appeal and Error; Evidence; Witnesses.
Scope of witness' testimony and whether witness will be permitted to testify as expert witness are within discretion of trial court,
and trial court's ruling will not be disturbed unless there is abuse of discretion.
Surgeon had notice that medical malpractice plaintiff was planning to call expert for purpose of asking his opinion as to whether
surgeon caused plaintiff's injuries, and thus district court erred by limiting expert's testimony as to whether surgeon caused patient's
injuries.
Pathology slides, offered by surgeon to show diverticulities of patient's colon in medical malpractice action, were properly
authenticated and admitted where sponsoring witness testified that slides were recuts of original blocks and that original blocks were
unavailable, there was no significant difference between recuts of blocks and original slides, each slide had label with patient's name
and patient number, information gleaned from pathology slides corresponded to information in pathology report, and sponsoring
witness testified that, in his opinion, they were patient's pathology slides. NRS 52.015.
OPINION
Per Curiam:
Appellant Joan Johnson underwent surgery to the lumbar region of her spine. Following the surgery, Johnson exhibited various
adverse symptoms.
various adverse symptoms. Johnson thereafter filed suit against respondents Ascar Egtedar,
M.D. and Egtedar, M.D., Inc. (referred to collectively as Dr. Egtedar) for battery and
medical malpractice. After a trial, the jury returned a six-to-two verdict in favor of the
respondent physician. Because the district court abused its discretion by refusing Johnson's
proposed jury instructions and by limiting the testimony of one of her expert witnesses, we
are constrained to vacate the judgment entered below and remand this case for a new trial.
FACTS
The present litigation arises out of plaintiff/appellant Joan Johnson's December 1986 lower
back surgery (lumbar laminectomy), which was performed by defendant/respondent Ascar
Egtedar, M.D., an orthopedic surgeon. At trial, Johnson presented expert testimony that Dr.
Egtedar operated at the wrong level of Johnson's spine and plunged an instrument out of the
operative field penetrating her spinal dura, psoas major muscle, colon and left ureter.
Following the surgery, Johnson developed peritonitis and began to accumulate fluid,
presumably urine, in the tissue surrounding her left ureter. Soon thereafter, Johnson also
developed an e. coli spinal meningitis which resulted in serious disability. According to
Johnson's experts, the meningitis resulted from the transfer of e. coli bacteria by a
contaminated instrument during the operation and from the continuing migration of bacteria
from the colon to the spinal column along the abnormal pathway cut by Dr. Egtedar.
In rebuttal, Dr. Egtedar presented expert medical testimony contradicting the opinions
given by Johnson's experts. According to Dr. Egtedar's experts, Johnson's injuries and
illnesses were attributable to an unrelated disease process (namely, diverticulitis of the colon),
her post-operative positioning, and the conduct of Johnson's subsequent treating physicians.
Dr. Egtedar's experts also testified that the operation had been conducted at the proper level
of the spine.
On appeal Johnson contends that the district court erred (1) by refusing to instruct the jury
according to Nevada's statutory res ipsa loquitur rule in medical malpractice cases; (2) by
instructing the jury, using an improper definition of proximate cause; (3) by limiting the
testimony of one of her expert witnesses; and (4) by admitting pathology slides without
proper authentication. Johnson also contends that she was denied a fair trial because of
certain misstatements allegedly made by the bailiff in response to a question from the jury
foreman.

DISCUSSION
Res ipsa loquitur instruction
[Headnote 1]
It is well established that a party is entitled to jury instructions on every theory of her case
that is supported by the evidence. See Allan v. Levy, 109 Nev. 46, 846 P.2d 274 (1993);
Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). Johnson contends that the trial court
erred in refusing her proposed jury instructions patterned on NRS 41A.100, Nevada's
statutory res ipsa loquitur rule for medical malpractice cases.
1

[Headnote 2]
Johnson's Proposed Jury Instruction A (Plaintiff's A) follows Nev. J.I. 6.17, as modified to
reflect the alleged existence of only two of the five possible factual predicates enumerated in
NRS 41A.100, namely: 41A.100(1)(d) (injury suffered during the course of treatment to a
part of the body not directly involved in the treatment or proximate thereto) and
41A.100(l)(e), (surgical procedure performed "on the wrong patient or the wrong organ,
limb or part of a patient's body").2 Dr.
__________

1
NRS 41A.100, first adopted in 1975 as part of the medical legal screening panel legislation, provides:
1. Liability for personal injury or death is not imposed upon any provider of medical care based on
alleged negligence in the performance of that care unless evidence consisting of expert medical
testimony, material from recognized medical texts or treatises or the regulations of the licensed medical
facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from
the accepted standard of care in the specific circumstances of the case and to prove causation of the
alleged personal injury or death, except that such evidence is not required and a rebuttable presumption
that the personal injury or death was caused by negligence arises where evidence is presented that the
personal injury or death occurred in any one or more of the following circumstances:
(a) A foreign substance other than medication or a prosthetic device was unintentionally left within the
body of a patient following surgery;
(b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;
(d) An injury was suffered during the course of treatment to a part of the body not directly involved in the
treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a
patient's body.
2. As used in this section, provider of medical care means a physician, registered nurse or a licensed
hospital as the employer of any such person.
NRS 41A.100 substantially mirrors the model res ipsa loquitur law drafted by the American Medical Association
(AMA). The AMA's model res ipsa loquitur law has been endorsed by the American Bar Association
Commission on Medical Professional Liability. See Interim Report of the Commission on Medical Professional
Liability, pp. 53-54 (ABA 1976) (hereinafter ABA report).
cal procedure performed on the wrong patient or the wrong organ, limb or part of a patient's
body).
2
Dr. Egtedar objected to Plaintiff's A on the ground that it is an inadequate res ipsa
loquitur instruction. We believe the legislature intended NRS 41A.100 to replace, rather than
supplement, the classic res ipsa loquitur formulation in medical malpractice cases where it is
factually applicable. Thus, Dr. Egtedar's objection is without merit.
[Headnotes 3, 4]
Under the traditional res ipsa loquitur doctrine, the presumption of negligence only arises
after the plaintiff has established that the event in question is one that ordinarily does not
occur in the absence of negligence. Restatement (Second) of Torts 328D cmt. c (1965). In a
medical malpractice case, under the traditional doctrine, whether the event in question is one
that ordinarily does not occur in the absence of negligence may be within the common
knowledge of a lay person. If not, the testimony of an expert witness is required. Id. at cmt. d.
[Headnote 5]
Under NRS 41A.100, however, the presumption automatically applies where any of the
enumerated factual circumstances are present.
__________

2
Plaintiff's A provides:
The law provides for a rebuttable presumption that a personal injury was caused by negligence where the
personal injury occurred under any one or more of the following circumstances:
An injury was suffered during the course of treatment to a part o[f] the body not directly involved in the
A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's
body.
If you find by a preponderance of the evidence that:
body, then the rebuttable presumption operates to shift to the defendant the burden of proving, by a
preponderance of the evidence, that the personal injury was not caused by negligence.
If[,] on the other hand, you do not find by a preponderance of the evidence that:
body, then the burden of proving, by a preponderance of the evidence consisting of expert medical
testimony or material from recognized medical texts or treatises, that the personal injury was caused by
negligence remains with the plaintiff.
According to the use note following Nev. J.I. 6.17, this is the proper form of instruction when there is a jury
question as to the existence of the enumerated factual circumstances.
present. In regard to these factual predicates, the legislature has, in effect, already determined
that they ordinarily do not occur in the absence of negligence. Thus, we conclude, all a
plaintiff need do to warrant an instruction under the statutory medical malpractice res ipsa
loquitur rule is present some evidence of the existence of one or more of the factual
predicates enumerated in the statute. If the trier of fact then finds that one or more of the
factual predicates exist, then the presumption must be applied. This is the approach taken in
Nev. J.I. 6.17 and Plaintiff's A. Accordingly, the district court should have given the proposed
instruction if it was supported by evidence adduced at trial.
[Headnote 6]
In the present case, Johnson presented evidence that Dr. Egtedar injured her colon and
ureter during a spinal laminectomy and that Dr. Egtedar operated at the wrong level of her
spine. These circumstances fit the factual predicates enumerated in NRS 41A.100(1)(d) and
(e); therefore, Johnson's proposed jury instruction was supported by the evidence.
Consequently, we hold that the district court erred in refusing Johnson's proposed jury
instruction.
[Headnotes 7, 8]
Dr. Egtedar nevertheless contends that Johnson has not properly preserved this issue for
appeal. If a party requests an instruction and it is refused by the trial court, in order to
preserve the issue for review, the party must object and distinctly state the grounds for the
objection. NRCP 51; Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974). A
general objection such as the instruction is proper is generally inadequate to preserve the
issue for appeal unless there is plain error. Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855
(1969); Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966). However, where counsel
timely calls to the district court's attention the issues of law involved, a slight omission in
compliance with NRCP 51 will not preclude appellate review. Tidwell v. Clark, 84 Nev. 655,
447 P.2d 493 (1968); see also Barnes v. Delta Airlines, Inc., 99 Nev. 688, 690 n.1, 669 P.2d
709, 710 n.1 (1983) (by providing the trial judge with a citation to relevant legal authority in
support of giving the instruction, the requirements of NRCP 51 were met, despite the fact that
extensive legal arguments did not take place concerning the propriety of giving this
instruction). In view of the need for precision in establishing compliance with NRCP 51,
objections made during conferences in chambers should be on the record. Carson Ready Mix,
Inc. v. First Nat'l Bank, 97 Nev. 474, 477, 635 P.2d 276, 278 (1981).
[Headnotes 9, 10]
In the present case, instructions were settled in chambers off the record. The parties then
made a record of their objections. Johnson's objection, as it appears in the record, was, at
most, only slightly more than a general objection.
3
Nevertheless, upon review of the
record in this case, including Dr. Egtedar's original objection to the proposed instruction, we
conclude that the district court was adequately apprised of the issue of law involved and was
given an opportunity to correct the error.
4
The requirements of NRCP 51 have, therefore,
been met. See Barnes, 99 Nev. 688, 669 P.2d 709; Tidwell, 84 Nev. 655, 447 P.2d 493.
Accordingly, we reject Dr. Egtedar's contention that the issue has not been preserved for
appeal.
5

Proximate causation instruction
Johnson contends that the district court erred in using a jury instruction for causation that
included a but for test rather than Johnson's proposed instruction, which employed a
substantial factor test for causation.
6
The actual and proposed instructions are based on
Nev. J.I. 4.04 and Nev. J.I. 4.04A, respectively. The use note to Nev. J.I. 4.04 correctly points
out that the but for instruction should be abandoned in favor of the substantial factor
instruction in cases in which an injury may have had two causes, either of which, operating
alone, would have been sufficient to cause the injury.
__________

3
In objecting to the district court's refusal to give the instruction, Johnson stated for the record: Finally with
regard to what has been marked as plaintiff's A as in Adam, the instruction under the circumstances of this case
based upon Baji [California's Book of Approved Jury Instructions] 6.17[,] that that instruction is appropriate and
should be given.

4
Dr. Egtedar objected to Plaintiff's A on the grounds that the instruction did not contain all the elements of a
classic res ipsa loquitur instruction and that there was no evidence adduced that the colon and ureter were parts
of the body not directly involved in Johnson's back surgery or proximate thereto.

5
We also reject Dr. Egtedar's contention that the error, if there was any, was harmless. Here the error had the
possible effect of shifting the burden of proof onto Johnson; thus, we conclude that the error was not harmless.

6
Johnson's proposed instruction read:
A legal cause of injury, damage, loss, or harm is a cause which is a substantial factor in bringing about
the injury, damage, loss, or harm.
Instead, the district court used Dr. Egtedar's instruction, which read:
A proximate cause of injury, damage, loss, or harm is a cause which, in natural and continuous sequence,
produces the injury, damage, loss, or harm, and without which the injury, damage, loss, or harm, would
not have occurred.
[Headnote 11]
In the present case, each side argued its own theory of causation for each of Johnson's
injuries and disputed the theory of causation of the other side. The two theories were
presented as being mutually exclusive. For example, at trial it was argued that the damage to
the colon was caused by diverticulitis or a surgical instrument wielded by Dr. Egtedarbut
not both. Under the circumstances, it was proper for the district court to choose an instruction
including a but for test of causation.
Dr. George Schanz's opinion
[Headnotes 12, 13]
Johnson next contends that the district court erred by not allowing Dr. Schanz, one of
Johnson's treating physicians, to give his expert opinion during testimony at trial as to
whether Dr. Egtedar caused the injuries to Johnson's colon, ureter, or dura. The scope of a
witness' testimony and whether a witness will be permitted to testify as an expert witness are
within the discretion of the trial court, and the trial court's ruling will not be disturbed unless
there is an abuse of discretion. See Murphy v. F.D.I.C., 106 Nev. 26, 787 P.2d 370 (1990);
Provence v. Cunningham, 95 Nev. 4, 588 P.2d 1020 (1979). In its decision to limit the scope
of Dr. Schanz's testimony, the district court relied on Johnson's expert witness designation,
which indicated that Dr. Schanz would testify as to his treatment of Johnson and other
information in his medical records. We have reviewed the record, including Dr. Schanz's
medical records, and conclude, as a matter of law, that Dr. Egtedar had notice that Johnson
was planning to call Dr. Schanz for the purpose of asking his opinion as to whether Dr.
Egtedar caused her injuries. Accordingly, we conclude that the district court erred by limiting
Dr. Schanz's testimony in this regard.
Pathology slides
[Headnote 14]
Finally, Johnson contends that the district court erred by admitting pathology slides,
offered to show diverticulitis of Johnson's colon, on the basis that they had not been properly
authenticated. NRS 52.015 provides, in part: [t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence or other
showing sufficient to support a finding that the matter in question is what its proponent
claims. Dr. Soloway, the sponsoring witness, testified that the slides were recuts of the
original blocks and that the original blocks were unavailable. Dr. Soloway also testified that
there was no significant difference between the recuts off the blocks and the original
slides.
there was no significant difference between the recuts off the blocks and the original slides.
Each slide had a label with Johnson's name and patient number. According to Dr. Soloway,
the information gleaned from the pathology slides corresponded to the information in the
pathology report. Finally, Dr. Soloway testified that, in his opinion, they were Johnson's
pathology slides. On these facts, this case can be distinguished from Frias v. Valle, 101 Nev.
219, 698 P.2d 875 (1985), wherein this court held thermograms, purportedly showing
plaintiff's soft-tissue injuries, to be insufficiently authenticated. In that case, the thermograms
had been handed to the testifying expert by the plaintiff's counsel just prior to the expert's
testifying in court, and the only indication that the thermograms were what they purported to
be was that they were marked with the plaintiff's name. Accordingly, we hold that Johnson's
contention that the pathology slides were not properly authenticated is without merit.
7

CONCLUSION
We conclude: (1) the district court erred in refusing Johnson's proposed jury instruction
based on Nevada's statutory medical malpractice res ipsa loquitur rule and that the issue has
been properly preserved for review by this court; (2) the district court did not err in giving the
proximate cause jury instruction rather than the substantial factor jury instruction; (3) the
district court abused its discretion in limiting the scope of Dr. Schanz's testimony; and (4) the
district court did not err in admitting pathology slides over Johnson's objection that they had
not been properly authenticated. We further conclude that these errors were not harmless.
Accordingly, we vacate the judgment entered below and remand this case to the district court
for a new trial consistent with this opinion.
__________

7
Due to the disposition of this case, we need not reach Johnson's contention that she was prejudiced by certain
alleged misstatements of the bailiff to the jury.
____________
112 Nev. 438, 438 (1996) Norwood v. State
CARLOS NORWOOD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25820
April 30, 1996 915 P.2d 277
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
robbery with use of a deadly weapon, burglary, and battery. Second Judicial District Court,
Washoe County; James A. Stone, Judge.
The supreme court, Shearing, J., held that: (1) district court improperly relied on its belief
that defendant was gang leader to impose harsher sentence, and (2) victims' medical costs for
treatment of their injuries directly resulting from crime committed by defendant were proper
subject of restitution.
Sentence vacated and remanded for a new sentencing hearing.
Springer, J., and Steffen, C. J., dissented.
Michael R. Specchio, Public Defender and John Reese Petty, Chief Appellate Public
Defender, Washoe County, for Appellant.
Attorney and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Sentencing court's imposition of sentence in excess of that recommended by state immediately following court's recitation of
defendant's gang affiliations indicated that court improperly relied on its belief that defendant was gang leader to impose harsher
sentence, though court's sentence was within statutory range for robbery, where gang affiliation was not at issue and there was no
evidence relating to gangs at trial.
2. Criminal Law.
Sentencing judge has wide discretion in imposing sentence.
3. Criminal Law.
Sentencing judge's determination will not be overruled absent showing of abuse of discretion.
4. Criminal Law.
Sentencing court is privileged to consider facts and circumstances which would clearly not be admissible at trial.
5. Criminal Law.
Victims' medical costs for treatment of their injuries directly resulting from crime committed by defendant were proper subject of
restitution order imposed on defendant.
OPINION
Appellant Carlos Norwood broke into an apartment occupied by two men, hit one victim,
Donald Smith, on the head to subdue him, and took Smith's money from his pocket. Norwood
then went into the bedroom and stole Smith's gun. One of Norwood's accomplices shot the
other victim, Paul Rivera, in the shoulder. A jury convicted Norwood of robbery with use of a
deadly weapon, burglary, and battery.
At Norwood's sentencing hearing, the State and defense counsel agreed that Norwood
should receive a sentence of seven years for the robbery plus seven years for the deadly
weapon enhancement. The Parole and Probation Department recommended a sentence of ten
plus ten years. At the sentencing hearing, the district judge made an unexpected and
unsubstantiated assertion which appears to have affected the sentence, that Norwood is a
Crips gang leader. The district court then proceeded to sentence Norwood to ten plus ten
years for the robbery with use of a deadly weapon count. The district court also imposed
restitution in the amount of $475.67.
[Headnote 1]
On appeal, Norwood argues that the district court erred because the judge relied upon a
belief regarding Norwood's gang membership in sentencing him when there was no evidence
introduced regarding his gang membership. We agree.
At Norwood's sentencing hearing, the district court unexpectedly stated the following to
the defendant:
I don't believe for one minute you have any intention of changing association of people
you associate with or your patterns of association once you are released.
I know you are a member of the Krips [sic]not a member, but a leader of the Krips
[sic]. I presume that everyone thinks I am stupid or anyone sitting up here is stupid and
we don't know what is going on out in the real world. Well, we do.
. . . .
I'm not going to follow the recommendation. I want to be tougher on you than what the
State is recommending to me. I don't have any choice but to do this, I don't think,
because I think somewhere along the line, we have to get a message not just to you, but
to anybody like you. There are a hundred kids out there running around looking to see
what is going to happen to you. Well, it's not going to be pleasant.
Immediately following these comments, the district court announced the sentence: ten years
plus ten years for robbery with use of a deadly weapon; seven years for the burglary count to
run concurrently with the robbery sentence and $2000 as a fine; and six years for the battery
count.
[Headnotes 2-4]
The sentencing judge has wide discretion in imposing a sentence, and that determination
will not be overruled absent a showing of abuse of discretion. Houk v. State, 103 Nev. 659,
664, 747 P.2d 1376, 1379 (1987). A sentencing court is privileged to consider facts and
circumstances which would clearly not be admissible at trial. Silks v. State, 92 Nev. 91,
93-94, 545 P.2d 1159, 1161 (1976). In Silks, this court further held:
So long as the record does not demonstrate prejudice resulting from consideration of
information or accusations founded on facts supported only by impalpable or highly
suspect evidence, this court will refrain from interfering with the sentence imposed.
Id. at 94, 545 P.2d at 1161.
Here, the district court made a declaration that Norwood is a gang leader, not with reliance
on highly dubious or inflammatory evidence, but without reliance on any supporting evidence
whatsoever. The trial transcript indicates that gang affiliation was not at issue, and there was
no reference to gangs at trial. It is clear from the record that the district court's accusation
resulted in prejudice to Norwood in that he received a greater sentence of imprisonment for
robbery than the seven-year sentence recommended by the State. Although ten years is within
the statutory range for robbery under NRS 200.380
1
and the Parole and Probation
Department recommended a ten-year sentence for the robbery count, the district judge's
statements in context demonstrate that his decision was infected by his beliefs regarding
Norwood's gang affiliation. The district court's unsubstantiated assertion appears to have
affected the sentence, thus resulting in prejudice to Norwood. We therefore conclude that
Norwood is entitled to a new penalty hearing.
2

[Headnote 5]
Norwood also contends on appeal that the district court improperly imposed $475.67 in
restitution because it was for the purpose of reimbursing the Washoe Medical Center for its
treatment of Smith and Rivera.
__________

1
NRS 200.380 provides that the penalty for robbery shall not be less than one year nor greater than fifteen
years.

2
We, of course, have no way of knowing whether or how the district court judge had personal knowledge
concerning Norwood's asserted gang involvement. Speculation on the subject is irrelevant, however, as all
factors bearing on a defendant's sentence must have a basis in the record.
purpose of reimbursing the Washoe Medical Center for its treatment of Smith and Rivera. He
asserts that the Washoe Medical Center is not a victim entitled to restitution under NRS
176.033(1)(b).
We conclude that Norwood's contention is not properly before this court. In the judgment,
the district court ordered restitution in the amount of Four Hundred Seventy-Five Dollars
and Sixty-Seven Cents ($475.67) on Count III to run concurrent [sic] with Counts I and II.
The district court did not direct that payment be made to Washoe County Medical Center and
therefore, Norwood's assertion is unsubstantiated. This court need not address Norwood's
argument due to the lack of supporting evidence. Watson v. Watson, 95 Nev. 495, 497, 596
P.2d 507, 508 (1979).
Assuming that the purpose of the restitution was to cover the medical costs of the victims'
treatment, we conclude that restitution was proper. NRS 176.033(1)(b) provides, [i]f
restitution is appropriate, [the court shall] set an amount of restitution for each victim of the
offense. Here, Smith testified that he and Rivera went to the hospital following the incident.
The evidence therefore suggests that the victims incurred debts for their medical treatment.
After careful review, we conclude that the victims' medical costs for the treatment of their
injuries directly resulting from the crime are the proper subject of restitution.
Based upon the foregoing discussion, we vacate Norwood's sentence and remand this case
to the district court for a new sentencing hearing before a different district court judge.
Young and Rose, JJ., concur.
Springer, J., with whom Steffen, C. J., agrees, dissenting:
The district judge in this case sentenced the defendant in accord with the presentence
report. The judge was advised in open court by probation officials that the defendant had had
numerous opportunities granted to him by the criminal justice system to modify his behavior,
but decided to continue his affiliation with gang members and drug activities. I believe the
trial judge acted very appropriately under the circumstances, and his judgment should be
affirmed.
____________
112 Nev. 442, 442 (1996) Cimini v. Nevada Ins. Guar. Ass'n
GEORGE CIMINI, Appellant, v. NEVADA INSURANCE GUARANTY ASSOCIATION,
Respondent.
No. 26488
April 30, 1996 915 P.2d 279
Appeal from district court order granting summary judgment in action for insurance
benefits. Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Driver brought action against Insurance Guaranty Association (IGA) to recover
underinsured motorist (UIM) benefits under policy issued to automobile owner. The district
court entered summary judgment in favor of IGA. Insured appealed. The supreme court held
as matter of first impression that amount payable on covered claim could not be reduced by
amount that driver recovered under his UIM policy.
Leslie Mark Stovall, Las Vegas, for Appellant.
Pico & Mitchell, Las Vegas; Hoffman, Test & Guinan, Reno, for Respondent.
1. Judgment.
Summary judgment may be granted only when no genuine issue of material fact remains for trial and one party is entitled to
judgment as matter of law.
2. Insurance.
Covered claim for underinsured motorist (UIM) benefits under policy issued to automobile owner could not be reduced by amount
of recovery by driver under his UIM policy. Driver was not required to exhaust rights under his policy, and Insurance Guaranty
Association (IGA) was obligated to cover any damages in excess of liability policy and UIM coverage under driver's policy, up to
policy limit under owner's policy. NRS 687A.100(1).
Standard of review was plenary for question of right to summary judgment as matter of law.
4. Insurance.
Ambiguity in statute requiring insured to exhaust right under his insurance policy and reducing covered claim against Insurance
Guaranty Association (IGA) by amount of recovery under claimant's policy justified decision to look to legislature's purpose in creating
IGA statute. NRS 687A.100(1).
5. Insurance.
Purpose of act creating and governing Insurance Guaranty Association (IGA) is to place insured in position to recover same
amount available under insured's policy as if insurer had not become insolvent, subject only to certain limitations on IGA's liability.
NRS 687A.060(1)(b).
OPINION
Per Curiam:
Appellant George Cimini filed a claim against respondent Nevada Insurance Guaranty
Association (NIGA) for declaratory relief. The district court granted NIGA's motion for
summary judgment on grounds that NRS 687A.100(1) required its obligation to be reduced
by the amount recovered by Cimini under his underinsured motorist policy. Concluding that
the district court erroneously granted NIGA's motion for summary judgment, we reverse and
remand with instructions.
FACTS
George Cimini was involved in an automobile accident on August 21, 1991, while driving
a vehicle owned by Lorilee Main, which collided with a vehicle driven by Kay Dyson.
Dyson's vehicle was insured by a liability insurance policy issued by Allstate Insurance
Company. Cimini settled with Allstate for its policy limit of $15,000.
Cimini had underinsured motorist coverage with Farmers Insurance Exchange
(Farmers). As a result of the subject accident, Cimini recovered his underinsured motorist
policy limit in the amount of $15,000 from Farmers.
AzStar Casualty Co. (AzStar) issued a policy to Lorilee Main covering the 1987 Toyota
automobile which Cimini was driving at the time of the accident.
1
The policy provided
underinsured motorist coverage. On November 19, 1992, AzStar was declared insolvent and
ordered liquidated by a court of competent jurisdiction; AzStar thus became an insolvent
insurer within the meaning of NRS 687A.035. As a result of AzStar's insolvency, on March 9,
1993, and again on January 4, 1994, Cimini submitted a claim to the Nevada Insurance
Guaranty Association (NIGA), which was denied based upon the provisions of NRS
687A.100(1).
On March 24, 1994, Cimini filed a complaint against NIGA alleging breach of contract,
breach of implied covenant of good faith and fair dealing, and requesting declaratory relief.
The first two causes of action were eventually dismissed. On June 22, 1994, NIGA filed a
motion for summary judgment, which the district court granted on October 20, 1994. The
district court ruled that pursuant to NRS 687A.100(1), the statutory obligation of NIGA
amounting to $15,000 had to be reduced by the $15,000 which Cimini recovered from his
Farmers underinsured motorist policy. Thus NIGA's obligation was reduced to zero.
__________

1
The AzStar policy limit was $15,000.
Cimini appeals, contending that the district court misinterpreted NRS 687A.100(1), and
that the payment by Farmers should be deducted from the total damages, rather than from
NIGA's obligation.
DISCUSSION
[Headnotes 1-3]
Summary judgment may be granted only when no genuine issue of material fact remains
for trial and one party is entitled to judgment as a matter of law. Posadas v. City of Reno, 109
Nev. 448, 452, 851 P.2d 438, 441 (1993). In the present case, the issue is whether NIGA was
entitled to summary judgment as a matter of law, under the terms of NRS 687A.100(1). Our
standard of review is therefore plenary. Walker v. American Bankers Ins., 108 Nev. 533, 836
P.2d 59 (1992).
NIGA is a non-profit association of Nevada insurers created by statute. Nevada Ins.
Guaranty v. Sierra Auto Ctr., 108 Nev. 1123, 1124, 844 P.2d 126, 127 (1992). The NIGA act
contains twenty-five sections under chapter 687A, which relate to the organization,
operations, duties, powers and responsibilities of NIGA. NRS 687A.100(1) relates to the
exhaustion of remedies of the insured, stating:
Any person having a claim against his insurer, under any provision in his insurance
policy, which is also a covered claim shall be required to exhaust first his right under
the policy. Any amount payable on a covered claim under this chapter shall be reduced
by the amount of recovery under the claimant's insurance policy.
2

Under NRS 687A.060(1)(a),
3
the maximum amount of NIGA's obligation on a covered
claim is $300,000 or the face amount of the policy issued by the insolvent insurer, whichever
is less. In this case the policy limits on the AzStar policy are $15,000; therefore, the
maximum amount of any potential covered claim against NIGA is $15,000.
__________

2
NRS 687A.100(1) was amended by the Nevada Legislature in 1993. However, the claim in the present case
was submitted and denied prior to the effective date of the amendment. Since there is no retroactive provision,
the amendment is not applicable in this case.

3
NRS 687A.060(1)(a) states:
1. The association shall:
(a) Be obligated to the extent of the covered claims existing prior to the determination of insolvency and
arising within 30 days after the determination of insolvency, or before the policy expiration date if less
than 30 days after the determination, or before the insured replaces the policy or on request effects
cancellation if he does so within 30 days of the determination. The obligation shall include only that
amount of each covered claim which is less than $300,000. In no event shall the association be obligated
to a policyholder or claimant in amount in excess of the face amount of the policy from which the claim
arises.
this case the policy limits on the AzStar policy are $15,000; therefore, the maximum amount
of any potential covered claim against NIGA is $15,000.
The term covered claim is defined in NRS 687A.033(1):
Covered claim means an unpaid claim or judgment, . . . which arises out of and is
within the coverage of an insurance policy to which this chapter applies issued by an
insurer which becomes an insolvent insurer.
This case presents a first impression review of exhaustion of remedies by the insured
under NRS 687A.100(1). The exhaustion question has been addressed in several other
jurisdictions where the corresponding statutes under judicial review are similar to NRS
687A.100(1).
4
Although the language in many of the statutes is virtually identical, differing
interpretations have emerged. Hetzel v. Clarkin, 772 P.2d 800, 803 (Kan. 1989).
[Headnotes 4, 5]
We initially note that we agree with Arizona Property & Casualty Ins. Guar. Fund v.
Herder, 751 P.2d 519, 523 (Ariz. 1988), which, in construing a clause almost identical to
NRS 687A.100(1), observed that the second sentence is neither a model of clarity nor an
exemplar of the draftsman's craft. See also Int'l Collection Service v. Vermont Property &
Casualty Ins., 555 A.2d 978, 980 (Vt. 1988); Washington Ins. Guar. Ass'n v. McKinstry Co.,
784 P.2d 190, 194 (Wash. Ct. App. 1990). In light of such ambiguity, we look to the
legislature's purpose in creating the NIGA act. See Sheriff v. Marcum, 105 Nev. 824, 826,
783 P.2d 1389, 1390 (1989) (a statute that is ambiguous should be construed in line with the
legislative intent, reason and public policy). The language of NRS 687A.060(1)(b) reveals the
intended purpose of the NIGA act, declaring that NIGA is deemed the insurer to the extent
of its obligations on the covered claims and to such extent shall have all rights, duties and
obligations of the insolvent insurer as if the insurer had not become insolvent. Thus, the
purpose of the act is to place the insured in a position to recover the same amount available
under the insured's policy, as if the insurer had not become insolvent, subject only to certain
limitations on NIGA's liability. See Herder, 751 P.2d at 521; Connecticut Ins. Guar. Ass'n v.
Union Carbide Corp., 585 A.2d 1216, 1225 (Conn. 1991); Lucas v. Illinois Insurance
Guaranty Ass'n, 367 N.E.2d 469, 471 (Ill. 1977); Int'l Collection, 555 A.2d at 980; McKinstry
Co., 784 P.2d at 194.
__________

4
The individual state legislatures drafted statutes based on the recommendations of the National Association of
Insurance Commissioners (NAIC).
In the present case, NIGA concedes that had AzStar remained solvent, Cimini would have
been able to recover proceeds under the AzStar, Allstate and Farmers policies, assuming the
damages exceeded $45,000.
5
Thus, applying the construction of the NIGA act to the case at
hand, we conclude that NIGA may not reduce its potential obligation by the amount
recovered by Cimini under his underinsured motorist policy, but rather NIGA is obligated to
cover any damages in excess of the Allstate and Farmers policies, up to the AzStar policy
limit of $15,000.
CONCLUSION
For the reasons discussed above, we reverse the district court's order granting summary
judgment, and remand for further proceedings on the issue of damages and the entry of
judgment in accordance with the principles set forth in this opinion.
____________
112 Nev. 446, 446 (1996) Hudson v. Horseshoe Club Operating Co.
JUANITA HUDSON, Appellant, v. HORSESHOE CLUB OPERATING CO.,
1
Respondent.
No. 26631
April 30, 1996 916 P.2d 786
Appeal from a district court order denying a petition for judicial review of an appeals
officer's decision affirming a denial of vocational rehabilitation benefits. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
The supreme court held that: (1) in industrial injury case, any reasons for injured
employee's discharge which are unrelated to the injury are relevant only if evidence shows
that they, rather than the injury, caused employee's inability to secure subsequent work, and
(2) even if claimant's misconduct was relevant and provided employer with the right not to
offer her light-duty employment, employer by its conduct waived any right it had not to offer
suitable employment to claimant without incurring liability for rehabilitation services.
__________

5
The issue of damages was not resolved by the district court.

1
The Department of Administration Appeals Officer is not a party to this appeal under NRAP 3A(a).
Accordingly, the clerk of this court shall amend the caption on this court's docket sheet to correspond to the
caption on this Opinion.
Greenman, Goldberg, Raby & Martinez, Las Vegas, for Appellant.
Marquis & Aurbach and Dale A. Hayes, Las Vegas, for Respondent.
Function of supreme court in reviewing administrative decision is identical to district court's.
When reviewing administrative agency's decision, appellate court reviews questions of law de novo.
Appeals officer erred in finding that, except for her firing, temporary total disability benefits claimant would have been returned to
the job position she held before her injury notwithstanding any limitation placed by doctor. Claimant's former work was as a waitress
and this usually required her to carry heavy trays of food to tables. Doctor did not want claimant to do the lifting required of a waitress
and released her to work only as a counter server. Fulltime counter server was not the job claimant held before her industrial accident.
Evidence presented to appeals officer supported finding that workers' compensation claimant worked at jewelry store in violation
of collective bargaining agreement prohibiting employees on leave from engaging in new outside employment, for purposes of
determining whether claimant was entitled to vocational rehabilitation benefits. Claimant's statements that she was opening business
indicated that she was working for compensation, fact that claimant's name was on business cards indicated that she was not just
helping a friend out by answering the phone, and shortness of the outside work did not prevent it from being violation of collective
bargaining agreement.
Issue as to whether workers' compensation claimant worked at jewelry store in violation of collective bargaining agreement
prohibiting employees on leave from engaging in new outside employment was presented to appeals officer when determining whether
claimant was entitled to vocational rehabilitation benefits. Claimant's counsel was aware that issue of outside employment was central
to employer's case. Although claimant's counsel attempted to exclude employer's exhibits on the issue, they came in and appeals officer
ruled that issue was decided. Claimant's counsel did not protest.
In workers' compensation case, any reasons for injured employee's discharge which are unrelated to the injurysuch as
misconduct, strike, or economic conditionare relevant only if evidence shows that they, rather then the injury, caused employee's
inability to secure subsequent work.
Even if workers' compensation claimant's misconduct, namely working at another business in violation of collective bargaining
agreement prohibiting employees on leave from engaging in new outside employment, was relevant and provided employer with the
right to offer claimant light duty employment, employer by its conduct waived any right it had not to offer
suitable employment to claimant without incurring liability for rehabilitation services.
claimant light duty employment, employer by its conduct waived any right it had not to offer suitable employment to claimant without
incurring liability for rehabilitation services. Employer agreed to retract denial of temporary total disability (TTD) benefits and then
affirmatively misled claimant and her doctor into believing that it would put claimant back to work at light duty position if doctor
released her to return to work. NRS 616C.590(1)(b).
8. Estoppel.
Waiver occurs where party knows of existing right and either actually intends to relinquish the right or exhibits conduct so
inconsistent with intent to enforce the right as to induce reasonable belief that the right has been relinquished.
OPINION
Per Curiam:
Appellant Juanita Hudson worked as a waitress for respondent Horseshoe Club Operating Company (Horseshoe). Horseshoe accepted
an industrial injury claim by Hudson in January 1992. The next month, Horseshoe terminated her employment and then her temporary total
disability benefits because Hudson was working at another job in violation of the collective bargaining agreement between her union and
Horseshoe. Hudson appealed the denial of benefits, and she and Horseshoe settled the appeal, with Horseshoe agreeing to pay the benefits.
In July 1993, Hudson's doctor released her to light duty status as a counter server with Horseshoe. When Hudson tried to return to
work, she was told that she had no job due to her earlier dismissal. Based on Hudson's release to return to work, Horseshoe then ended her
temporary total disability benefits. Hudson requested vocational rehabilitation benefits, which Horseshoe denied. An appeals officer
affirmed Horseshoe's determinations, and the district court affirmed the appeals officer's decision.
We conclude that the appeals officer erred in determining that Hudson was released to return to the position she held at the time of her
injury and in considering Hudson's dismissal from work to be dispositive of the case. We hold that in an industrial injury case, any reasons
for an injured employee's discharge which are unrelated to the injury, such as misconduct, are relevant only if the evidence shows that those
reasons, rather than the injury, caused the employee's inability to secure subsequent work. We further conclude that even if Hudson's
original misconduct was relevant and provided Horseshoe with the right not to offer Hudson light duty employment, Horseshoe waived that
right by its conduct.
We therefore reverse the district court's order and remand the case to the appeals officer
for instatement of appropriate vocational rehabilitation benefits.
FACTS
Hudson worked as a waitress for Horseshoe. She filed an industrial injury claim for an
injury occurring on January 20, 1992. Horseshoe, a self-insured employer, accepted the claim,
and Hudson began to receive temporary total disability (TTD) benefits. About two weeks
after the injury, Horseshoe terminated Hudson's employment and then, after another two
weeks, her TTD benefits. Horseshoe claimed that Hudson was working at another job in
violation of her disability claim and her union's collective bargaining agreement with
Horseshoe. (Horseshoe presented strong evidence of this other job to an appeals officer in
April 1994, as summarized below.)
Hudson appealed the termination of her TTD benefits. In February 1993, she and
Horseshoe settled the appeal, which was still pending. Hudson agreed to accept as full
settlement, retroactive [TTD] payments from May 20, 1992, up through, and including the
present date. The parties agreed that she would receive current TTD payments pending
further written determinations by the administrator for Horseshoe. They agreed that the
settlement was a compromise of a contested industrial insurance claim. By accepting the
settlement, Hudson agreed to waive all her rights regarding the appeal of her claim,
including appeal to any court. Pursuant to the stipulated agreement, an appeals officer
dismissed Hudson's appeal with prejudice.
Dr. Dennis Gordon wrote Horseshoe's insurer on June 7, 1993, stating that Hudson
is really doing quite well. I feel that she should be able to be released to light duty for
retraining. She has only worked as a waitress and has been terminated from the
Horseshoe so she will need retraining. By this letter, I am releasing her for retraining
with no frequent bending or stooping and no lifting over 20 pounds on an intermittent
basis. I really think a sedentary or light office job would do for her.
Horseshoe's insurer wrote Dr. Gordon on July 28, 1993, stating: Please find enclosed a job
description available for [Hudson]. Would you please review same and give your approval or
disapproval regarding whether or not this meets the job medical restrictions placed upon the
claimant. The job description was for a Coffee Shop Food Server - Counter Server and
stated in part: There is no heavy lifting required. Employee works a food counter and brings
entrees to the counter, no more than two at a time.
counter and brings entrees to the counter, no more than two at a time. Each entree weighs
between 2 and 2 1/2 lbs. Dr. Gordon responded in a letter on July 29, 1993:
I have reviewed Juanita Hudson's job description both alone and with Juanita and we
agree that she should at least give it one month's try. Therefore, she is released to the
light duty status as described by you and I will see her back after she has been back to
work for about one month.
However, when Hudson tried to go back to work, she was told that she had no job due to her
earlier termination.
On August 6, 1993, Horseshoe's insurer advised Hudson that pursuant to Dr. Gordon's
medical report of July 29, 1993, you were released to return to your previous job position . . .
. Therefore, the [TTD] benefits cease as of July 29, 1993. Hudson appealed this
determination, and on October 13, 1993, a hearing officer affirmed it. The hearing officer
concluded that Hudson was not entitled to TTD benefits because Dr. Gordon determined that
she was capable of gainful employment. The officer did not decide whether Dr. Gordon had
released Hudson to the employment she held when injured or whether she was entitled to
rehabilitation benefits.
Hudson requested vocational rehabilitation benefits from the insurer on October 12, 1993.
The insurer denied the request. Hudson's appeal of this denial and her appeal of the
termination of her TTD benefits were combined. An appeals officer held a hearing on these
matters on April 5, 1994. At the hearing, Hudson's counsel objected that exhibits offered by
Horseshoe regarding Hudson's earlier termination for engaging in outside work were
irrelevant. The appeals officer admitted them provisionally and, as it turned out, considered
them relevant.
Hudson testified that before her injury she worked as a waitress, which required her to
carry food on a tray out to tables. She said that she and the other waitresses also filled the
position of counter server about twice a month on a rotating basis, but that it was never her or
anyone else's full-time job. The difference between the positions was that the counter server
did not have to carry as heavy a tray. Horseshoe called its restaurant manager, whose
testimony regarding Hudson's work and the positions of waitress and counter server was
consistent with Hudson's.
When Horseshoe tried to cross-examine Hudson in regard to her earlier termination, her
counsel objected. The appeals officer stated: I understand what [Hudson's counsel's]
argument is, but I think we still have to establish the fact that she was terminated for violation
of collective bargaining. A little later, Hudson's counsel objected again and said: If we're
going to litigate the issue of whether that termination was proper or not, then that's fine,
I've got a lot of evidence I can introduce on that."
issue of whether that termination was proper or not, then that's fine, I've got a lot of evidence
I can introduce on that. The appeals officer responded: We've already established that she
was terminated and the reason she was terminated, so I don't thinkthere's no need to do any
more questioning there.
The evidence presented by Horseshoe on this issue included the following. The collective
bargaining agreement governing Hudson's employment provided:
Any employee on leave of absence who engages in new outside employment or
expands the scope of current outside employment or actively works at current outside
employment in conflict with his/her disability shall have his/her employment with the
Employer terminated immediately.
In an affidavit, Annette Fennell-McGhee stated that she managed personnel at Horseshoe's
coffee shop. On January 20, 1992, Hudson requested a thirty-day leave of absence so that she
could open a new business, and Fennell-McGhee told Hudson that was not possible. Hudson
then stated that she had experienced back problems and would go to her doctor to get a
medical excuse so that she could have the time off. I later learned that during her shift that
night, she had fallen at work and injured herself. In another affidavit, Timothy Sellers, a
fellow worker of Hudson's, stated Hudson told him that she was co-owner of Sin's Fine
Jewelry but that her name did not appear on any business documents. After Hudson's job
injury, Sellers visited Hudson at the jewelry store, and Hudson told him that though she was
in pain, she could answer phones and take care of customers.
Horseshoe provided the signed statement of Paula Avery, the Horseshoe department head
who signed Hudson's termination slip. Avery phoned Sin's Fine Jewelry on February 5, 1992,
and acted like a customer. She spoke with Hudson, who answered her questions regarding
store items and offered to help her if she came to the store. Horseshoe also presented business
cards for Sin's Fine Jewelry with the names of Hudson and another woman, Sally Bajjali,
printed on them.
Hudson offered two documents relevant to this issue, a notarized handwritten statement by
Sally Bajjali and an affidavit by West Stauffer. Bajjali wrote that she opened Sin's Jewelry
from the third to the sixth of February and then closed it because she had to go find a missing
son. She stated that Hudson
never worked for me at all. She came to visit with me because she is my friend. . . .
I have printed the cards by mistake. When I printed the cards at that time, I was hoping
to ask her to work for me, but I have found out that to apply for second hand license it
takes 90 days.
Stauffer stated that he managed the property which Bajjali rented for a jewelry store and
that Bajjali
only had possession of the lease space for a very short period of time, was in the
process of making tenant improvements and then for family reasons wanted to cancel
the lease. . . . [T]he lease was cancelled and to the knowledge of your Affiant the
jewelry store never actually opened for ordinary business.
On April 20, 1994, the appeals officer affirmed Horseshoe's determination. He found that
Horseshoe had terminated Hudson in compliance with the collective bargaining agreement
for her outside work. He also found that Hudson, but for her termination for cause, would
have been returned to the job position she held before her injury notwithstanding any
limitation placed by Dr. Gordon. However, the appeals officer's decision and order
elsewhere referred to the modified position and modified duty position which Horseshoe
would have offered Hudson. He concluded that vocational rehabilitation benefits terminate
when a disabled worker is returned to gainful employment and that, but for her termination,
Hudson would have returned to such employment.
On November 22, 1994, the district court affirmed the appeals officer's decision and order
and denied Hudson's petition for judicial review.
DISCUSSION
[Headnotes 1, 2]
The function of this court in reviewing an administrative decision is identical to the district
court's. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983).
A reviewing court shall not substitute its judgment for that of an agency in regard to a
question of fact. NRS 233B.135(3). The standard for such review is whether the agency's
decision was clearly erroneous or an arbitrary abuse of discretion. NRS 233B.135(3)(e) and
(f). However, questions of law are reviewed de novo. SIIS v. United Exposition Services Co.,
109 Nev. 28, 30, 846 P.2d 294, 295 (1993).
Whether Hudson was released to return to the employment she held when she was injured
An injured employee is not eligible for vocational rehabilitation unless the treating
physician approves the return of the injured employee to work but imposes permanent
restrictions that prevent the injured employee from returning to the position that he held
at the time of his injury."
prevent the injured employee from returning to the position that he held at the time of his
injury. NRS 616C.590(1)(a).
2

[Headnote 3]
The appeals officer found that except for her firing, Hudson would have been returned to
the job position she held before her injury notwithstanding any limitation placed by Dr.
Gordon. Horseshoe argues that substantial evidence supports this finding because the
counter server position was part of Hudson's former job duties. However, the appeals officer
also tellingly referred to the modified position and modified duty position which
Horseshoe would have offered Hudson.
The record shows that the appeals officer clearly erred on this issue. Hudson's former work
was as a waitress. This occasionally included lighter work behind the counter, but usually
required her to carry heavy trays of food to tables. Dr. Gordon did not want Hudson to do the
lifting required of a waitress and released her to work only as a counter server, not as a
waitress. Full-time counter server was not the job she held before her accident.
Whether it was properly established that Hudson's termination was justified
Hudson argues that whether or not she was terminated is irrelevant to her right to
rehabilitation benefits. (We discuss this issue below.) However, if this court disagrees with
that proposition, she asserts that the evidence shows that she never worked at the jewelry
store. She also asserts that this issue was never litigated and that this court should remand the
case for determination of the issue if it is relevant.
[Headnote 4]
First, we conclude that the evidence presented to the appeals officer supports a finding that
Hudson worked at the jewelry store in violation of the collective bargaining agreement
provision prohibiting employees on leave from engaging in new outside employment. Hudson
points out that no evidence showed that she had received pay. However, her statements to
Fennell-McGhee and Sellers that she was opening a business indicate that she was working
for compensation. Her name on the business cards indicates that she was not just helping a
friend out by answering the phone, as claimed in her brief to this court. (Bajjali's notarized
statement that the business cards were a mistake and Avery's statement regarding her phone
call to Hudson at the jewelry store do not appear to be sworn statements. We give them no
weight in our analysis.)
__________

2
See note 3 below.
no weight in our analysis.) Seller's affidavit indicates that Hudson was working at, not just
visiting, the store. Hudson presented evidence that the store was open only for about four
days, but the shortness of the work would not prevent it from being a violation of the
collective bargaining agreement.
[Headnote 5]
Second, we conclude that the issue was presented to the appeals officer. Although Hudson
attempted to exclude Horseshoe's exhibits on the issue, they came in. The appeals officer
ended cross-examination of Hudson on the matter, but not because he considered it irrelevant.
He ruled that the issue was decided, and Hudson's counsel did not protest. Hudson now
claims that she was ready, willing, and able to prove she had no outside employment. The
record shows instead that Hudson's counsel wished to avoid the issue. However, he was
aware that the issue was central to Horseshoe's case, for example as argued in Horseshoe's
brief to the appeals officer, and he attached Bajjali's statement and Stauffer's affidavit, which
had relevance only to this issue, to Hudson's own hearing statement. When Hudson's counsel
objected to exploration of the issue, the appeals officer said that it was necessary to establish
the fact that she was terminated for violation of collective bargaining. Soon afterwards, the
officer stated: We've already established that she was terminated and the reason she was
terminated. . . .
We conclude that the reason for Hudson's termination was litigated and that substantial
evidence supports the appeals officer's finding that the termination was justified.
Whether Hudson's termination for cause was a proper basis to deny her vocational
rehabilitation benefits
NRS 616C.590(1) provides that generally
an injured employee is not eligible for vocational rehabilitation services, unless:
(a) The treating physician or chiropractor approves the return of the injured
employee to work but imposes permanent restrictions that prevent the injured employee
from returning to the position that he held at the time of his injury;
(b) The injured employee's employer does not offer employment that the employee is
eligible for considering the restrictions imposed pursuant to paragraph (a); and
(c) The injured employee is unable to return to gainful employment at a gross wage
that is equal to or greater than 80 percent of the gross wage that he was earning at the
time of his injury.
3

__________

3
A somewhat different version of this statutory provision was codified as
Horseshoe cites Coon v. Rycenga Homes, 379 N.W.2d 480, 483 (Mich. Ct. App. 1985),
for the general rule that an employee who is discharged from performing favored work for
just cause is not entitled to receive workers' compensation benefits. However, it appears that
the majority of jurisdictions reject this rule.
The Arizona Supreme Court considered whether, and to what extent, termination of
post-injury employment for misconduct affects an employee's right to recover workers'
compensation benefits for loss of earning capacity arising out of the earlier industrial injury.
Arizona DPS v. Industrial Com'n, 861 P.2d 603, 605 (Ariz. 1993). The court stated that
we fail to see the wisdom in holding that an employee who loses a post-injury job
because of misconduct voluntarily forfeits benefits for a loss of earning capacity which,
depending on the nature and extent of disability, may be quite profound. The purpose of
the Arizona workers' compensation scheme, to dispense with, as much as possible, the
litigation between employer and employee and to place upon industry the burden of
compensation, Marriott, 147 Ariz. at 121, 708 P.2d at 1312, would hardly be served
by such a punitive rule.
Id. at 608. The basic rule is that losses attributable to industrial injuries are compensable, but
losses attributable to other factors are not. Id. at 606.
Misconduct should beand isirrelevant except as it pertains to this causation
question. Payment of benefits does not depend on a claimant's good moral character,
but is based simply on an injury within the scope of the workers' compensation statutes.
Termination reasons unrelated to the industrial injury, such as layoff, strike,
economic conditions, or misconduct become significant only where the evidence
demonstrates that they, rather than claimant's disability, caused the subsequent inability
to secure work.
Id. at 608 (citations omitted; emphasis added).
The Minnesota Supreme Court has similarly held that
a justifiable discharge for misconduct suspends an injured employee's right to wage
loss benefits
__________
NRS 616.222(3)(a) at the time of Hudson's injury. Among other differences, it did not require that the
physician-imposed restrictions in paragraph (a) be permanent. 1993 Nev. Stat., ch. 265, 115 at 703-04.
Therefore, the permanence of Hudson's restrictions is apparently not an issue. See also former NAC 616.076.
The former statute also did not have the requirement in paragraph (c) regarding inability to return to other
gainful employment at an adequate wage.
employee's right to wage loss benefits; but the suspension of entitlement to wage loss
benefits will be lifted once it has become demonstrable that the employee's
work-related disability is the cause of the employee's inability to find or hold new
employment. Such a determination should be made upon consideration of the totality of
the circumstances including the usual work search requirements.
Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924 (Minn. 1989) (emphasis added);
accord PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 549 (Colo. 1995); State ex rel. Watts
v. Schottenstein Stores, 623 N.E.2d 1202, 1205 (Ohio 1993).
These cases stand for the rule that an employer who discharges an injured employee for
cause is not liable for that employee's disability benefits unless the record establishes that the
employee's disability rather than her discharge caused her wage loss or inability to obtain
work.
This rule is consistent with a recent opinion by this court. Jerry's Nugget v. Keith, 111
Nev. 49, 888 P.2d 921 (1995). In Jerry's, this court held that vocational rehabilitation benefits
can be awarded upon a change in circumstances. Id. at 53, 888 P.2d at 924. The claimant in
Jerry's was injured at work, received disability benefits, returned to work, and then was fired
for cause. Id. at 50, 888 P.2d at 922. The firing did not prevent this court from concluding
that a later change in the claimant's circumstances made him eligible for rehabilitation
benefits. However, our opinion did not address why the firing did not preclude benefits, even
though an appeals officer based denial of benefits in part on the claimant's dismissal. Id. at
51, 888 P.2d at 922. This result is inconsistent with the view that a discharge for cause
automatically forfeits a claimant's rights to all industrial insurance benefits.
4

[Headnote 6]
We consider the approach taken in Arizona and other jurisdictions persuasive and hold
that in an industrial injury case, any reasons for an injured employee's discharge which are
unrelated to the injurysuch as misconduct, strike, or economic conditionare relevant
only if the evidence shows that they, rather than the injury, caused the employee's
inability to secure subsequent work.
__________

4
Horseshoe points out that in 1993 the Legislature amended the statutory provisions regarding reopening
claims, adding a subsection that provides that an employee whose claim is reopened
is not entitled to vocational rehabilitation services . . . if, before his claim was reopened, he:
(a) Retired; or
(b) Otherwise voluntarily removed himself from the work force,
for reasons unrelated to the injury for which the claim was originally made.
NRS 616C.390(6); 1993 Nev. Stat., ch. 265, 187 at 742. The instant case does not involve reopening a claim.
Even if this provision were applicable, it is difficult to see how dismissal from a particular job for cause could be
construed as voluntary removal from the work force.
reasons for an injured employee's discharge which are unrelated to the injurysuch as
misconduct, strike, or economic conditionare relevant only if the evidence shows that they,
rather than the injury, caused the employee's inability to secure subsequent work.
[Headnotes 7, 8]
It might be argued that in this case Hudson's misconduct is relevant because it caused
Horseshoe's refusal to rehire her and her consequent need for vocational rehabilitation.
However, we do not need to address this issue because we conclude that Horseshoe waived
any right it had to refuse to reemploy Hudson. Hudson's misconduct of working at the jewelry
store provided Horseshoe with legitimate grounds to discharge Hudson. Horseshoe also
denied her TTD benefits on those grounds. The propriety of this denial is not before us
because Horseshoe for some reason agreed to retract that denial. Horseshoe then affirmatively
misled Hudson and her doctor into believing that it would put Hudson back to work at a light
duty position if the doctor released her to return to work. Waiver occurs where a party knows
of an existing right and either actually intends to relinquish the right or exhibits conduct so
inconsistent with an intent to enforce the right as to induce a reasonable belief that the right
has been relinquished. McKeeman v. General American Life Ins., 111 Nev. 1042, 1048, 899
P.2d 1124, 1128 (1995). Therefore, by its conduct Horseshoe waived any right it had not to
offer suitable employment to Hudson without incurring liability for rehabilitation services
under NRS 616C.590(1)(b).
Therefore, the appeals officer erred in concluding that Hudson's dismissal justified
Horseshoe's refusal to offer her suitable employment. Given Horseshoe's failure to offer her
employment, the pertinent issue is whether Hudson's injury restricts her from returning to the
position she held at the time of her injury.
5
Dr. Gordon's reports established that Hudson's
injury did restrict such a return. We therefore reverse the district court's order denying
Hudson's petition for judicial review and remand this matter to the appeals officer for
instatement of appropriate vocational rehabilitation benefits.
CONCLUSION
The appeals officer clearly erred in determining that Hudson was released to return to the
position she held at the time of her injury.
__________

5
Under current NRS 616C.590(1), if an employer refuses to offer an injured employee suitable employment,
the pertinent issue would be whether the employee's injury restricts her from returning both to the position she
held at the time of her injury and to other gainful employment at an adequate wage. See note 3 above.
injury. The appeals officer did not err in determining that Hudson's dismissal from work was
justified; however, he erred in considering this determination to be dispositive of the case.
We hold that in an industrial injury case, any reasons for an injured employee's discharge
which are unrelated to the injurysuch as misconduct, strike, or economic conditionare
relevant only if the evidence shows that they, rather than the injury, caused the employee's
inability to secure subsequent work. Even if Hudson's earlier misconduct was relevant and
provided Horseshoe with the right not to offer Hudson light duty employment, Horseshoe
waived that right by its conduct.
We reverse the district court's order denying the petition for judicial review and remand
the case to the appeals officer for instatement of appropriate vocational rehabilitation
benefits.
____________
112 Nev. 458, 458 (1996) Howe v. State
MARK ROBERT HOWE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24408
April 30, 1996 916 P.2d 153
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of using or
being under the influence of a controlled substance, and one count of possession of drug
paraphernalia. Seventh Judicial District Court, White Pine County; Llewellyn Young, Judge
1
.
After denial by the district court of his motion to suppress evidence, defendant pled guilty
in the district court to using or being under the influence of controlled substance and
possession of drug paraphernalia. Defendant appealed. The supreme court, Shearing, J., held
that: (1) defendant did not consent to law enforcement officers' warrantless entry into
defendant's home to search for marijuana; (2) exgient circumstance of imminent destruction
of evidence was not present and could not justify violating defendant's state and federal
constitutional right to privacy through officers' warrantless entry into defendant's home to
search for marijuana; and (3) warrantless entry could not be justified on basis of arrest.
Reversed.
James J. Jackson, State Public Defender and James P. Logan, Deputy Public Defender,
__________

1
Judge Merlyn H. Hoyt heard and decided the Motion to Suppress that is the subject of this appeal.
112 Nev. 458, 459 (1996) Howe v. State
Frankie Sue Del Papa, Attorney General, Carson City; John M. Hanford, District Attorney
and Michael D. Jensen, Deputy District Attorney, White Pine County, for Respondent.
Warrantless searches and seizures in home are presumptively unreasonable. U.S. Const. amend. 4.
Warrantless searches in home are permitted if based upon both probable cause and exigent circumstances. U.S. Const. amend. 4.
Consent exempts search in home from probable cause and warrant requirements of Fourth Amendment. U.S. Const. amend. 4.
When considering citizens' constitutional right to be secure in their homes and free from unreasonable searches and seizures,
supreme court, on review, must be careful not to permit exception to swallow up rule that warrantless searches and seizures in home are
presumptively unreasonable. U.S. Const. amend. 4.
Defendant did not consent to law enforcement officers' warrantless entry into defendant's home to search for marijuana.
Defendant's stepping aside from doorway did not establish consent, officers testified that defendant consented to search only after
officers were over threshold of door, and officers believed their entry was justified, not because they believed they had defendant's
consent, but ostensibly because they thought relevant evidence would be destroyed. U.S. Const. amend. 4.
Question of defendant's consent to law enforcement officers' search of defendant's home was to be determined by analyzing
whether officers had permission at time they entered, not by examining which statements or actions subsequent to entry could support
theory of consent. U.S. Const. amend. 4.
State bears burden of proving consent to warrantless search in home by clear and persuasive evidence. U.S. Const. amend. 4.
Stepping away from doorway, without more, is not clear and persuasive evidence of consent to warrantless search in home. U.S.
Const. amend. 4.
Law does not require that occupant of home physically block law enforcement officers' entry to indicate lack of consent to their
warrantless entrance. U.S. Const. amend. 4.
Warrantless entry into home for either search and seizure of property or search and seizure of person is unlawful in absence of
exigent circumstances. U.S. Const. amend. 4.
Exigent circumstances allowing for warrantless entry into home for search and seizure of property or person are circumstances
that would cause reasonable person to believe that entry or other relevant prompt action was necessary to prevent physical
harm to law enforcement officers or other persons, destruction of relevant evidence, escape of suspect, or
some other consequence improperly frustrating legitimate law enforcement efforts.
112 Nev. 458, 460 (1996) Howe v. State
prompt action was necessary to prevent physical harm to law enforcement officers or other persons, destruction of relevant evidence,
escape of suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. U.S. Const. amend. 4.
For purposes of determining whether exigent circumstances existed for warrantless entry into home for search and seizure of
property or person, in absence of showing by State of true necessity, that is, imminent and substantial threat to life, health, or property,
constitutionally guaranteed, right to privacy must prevail. U.S. Const. amend. 4.
For purposes of determining whether exigent circumstances existed for warrantless entry into home for search and seizure of
property or person, State bears burden of showing that exigencies of situation required intrusion without a warrant. U.S. Const. amend.
4.
Exigent circumstances of imminent destruction of evidence was not present and could not justify violating defendant's state and
federal constitutional right to privacy through law enforcement officers' warrantless entry into defendant's home to search for
marijuana. There was no urgency because officers had no objectively reasonable belief that marijuana was about to be destroyed,
officers' belief that contraband was about to be removed, based primarily on their testimony that they smelled burning marijuana, was
not reasonable, and there was no evidence that any officers would have been in danger had they guarded site of contraband while
search warrant was sought. Const. art. 1, 18; U.S. Const. amend. 4.
Mere fear or apprehension alone that evidence will be destroyed will not justify warrantless entry of private home. U.S. Const.
amend. 4.
When government agents have probable cause to believe contraband is present, the following five factors are relevant in
determining whether exigency of destruction of evidence exists so as to support warrantless entry of home: degree of urgency involved
and amount of time necessary to obtain warrant, reasonable belief that contraband is about to be removed, possibility of danger to
police officers guarding site of contraband while search warrant is sought, information indicating the possessors of contraband are
aware that police are on their trail, and ready destructibility of contraband and knowledge that efforts to dispose of narcotics and to
escape are characteristic behavior of persons engaged in narcotics traffic. U.S. Const. amend. 4.
17. Arrest.
Warrantless entry by law enforcement officers into defendant's home to search for marijuana could not be justified on basis of
arrest; none of factors for considering justifiability of such entry were present except suspect's presence in premises and peaceable
entry. Const. art. 1, 18; U.S. Const. amend. 4.
Home is sanctuary, which government may not invade without warrant or exigent circumstances. U.S. Const. amend. 4.
112 Nev. 458, 461 (1996) Howe v. State
OPINION
Mark Robert Howe appeals from a judgment of conviction, pursuant to a guilty plea, of
one count of using or being under the influence of a controlled substance, a felony, in
violation of NRS 453.411, and one count of possession of drug paraphernalia, a
misdemeanor, in violation of NRS 453.566. The district court sentenced Howe to three years
in the Nevada State Prison. The judge suspended Howe's sentence and placed him on
probation for a period not to exceed three years. On appeal, Howe contends that the district
court erred in denying his motion for suppression of the evidence because the evidence was
obtained in violation of his right to be free from unreasonable searches and seizures under the
Fourth Amendment of the United States Constitution and Article 1, Section 18 of the Nevada
Constitution. We agree.
FACTS
On February 21, 1992, Nevada Division of Investigations Officers John Cripps, James
Mercado and Curtis Cooley went to Howe's home in Ely to investigate a report that Howe
was in possession of a quarter pound of marijuana and might be selling it. Mercado and
Cooley went to Howe's front door while Cripps took up a surveillance position approximately
half a block from Howe's home. When Mercado and Cooley knocked on Howe's door, Cripps
observed a man carrying a white garbage sack leave through the back door, pick up what
appeared to be a garbage container, set it back down and re-enter the house. He
communicated this information to the two officers at the door via a two-way transmitter
radio.
Howe answered the front door, and Cooley and Mercado identified themselves as police
officers. Cooley testified that Howe appeared extremely nervous, was talking quickly and
appeared to be perspiring even though it was cool outside. Cooley informed Howe that they
had received complaints that Howe was possibly in possession of marijuana. He further told
Howe that if he did not have any marijuana, the officers wanted to clear that situation up.
According to Cooley, Howe stated that he was not a dope dealer and that he does not do
dope. When Cooley asked for permission to enter Howe's residence, Howe responded, No,
no, no. Mercado then informed Cooley that he detected the odor of burning marijuana.
Cooley testified that he was initially not in a position to smell the marijuana smoke but that
when he stepped a bit to his right, he too could smell the burning marijuana from inside
the residence.
112 Nev. 458, 462 (1996) Howe v. State
a position to smell the marijuana smoke but that when he stepped a bit to his right, he too
could smell the burning marijuana from inside the residence. Cooley further testified that
Mercado then again advisedthen he askedthen we went into the residence.
Once inside the residence, Mercado and Cooley were joined by Cripps and a parole and
probation officer. Cooley testified that at some point after their entrance, Howe said words to
the effect of, Yes, if you want to search, go ahead. Nonetheless, in order to make sure that
[Howe was] aware that the consent to search was completely voluntary, Cooley testified that
he asked Howe if he would sign a written consent to search form. A tape-recording was made
of the interaction, in which Cooley can be heard telling Howe, [W]e have probable cause to
come in this house right now with the smell. Without a warrant, we can be in here. Let me tell
you something else: Number one, if you want to cooperate, makes it lots easier. One way or
another, we're going to search this house. Cooley testified that he then provided Howe with
the consent form, which he read word by word to Howe. Cripps testified that while Cooley
was advising Howe of the contents of the consent form, Cripps told Howe that Howe had two
choices: either go ahead and give the consent or refuse to consent. If he refused, we would
seek or obtain a warrant. Howe signed the consent form.
Mercado testified that the officers entered Howe's residence in order to prevent the
destruction of critical evidence. He further testified that once they were inside the residence,
Howe told him that he had smoked marijuana prior to the officers' arrival and that he had
swallowed the roach. During the search, Mercado found a cut straw with a powder-like
substance residue. He also located a plastic baggie of marijuana under a board underneath the
trash can in the back yard.
Mercado conducted a preliminary drug influence examination on Howe to determine
whether Howe was under the influence of a controlled substance. This included some
rapid-eye tests and a divided-attention test. He also examined the inside of Howe's mouth and
found green leafy matter stuck between Howe's teeth. Based on these tests, Mercado arrested
Howe for being under the influence of marijuana.
Howe was taken to the Public Safety Building in White Pine County. There, Mercado
requested consent to conduct a urine test. Mercado testified that he informed Howe that there
were two ways to obtain a urine sample: Howe could either voluntarily submit to a urine
sample or Mercado would attempt to obtain a seizure order and use accepted medical
techniques to take the urine sample. Howe then asked him what the medical techriques
consisted of and Mercado told him that they would insert a catheter into Howe's penis to
extract the urine sample.
112 Nev. 458, 463 (1996) Howe v. State
niques consisted of and Mercado told him that they would insert a catheter into Howe's penis
to extract the urine sample. Howe provided the urine sample, which revealed the presence of
marijuana.
In addition to the two charges to which Howe pleaded guilty, Howe was also charged with
possession of a controlled substance. After the district court denied his motion to suppress,
Howe pleaded guilty to using or being under the influence of a controlled substance and
possession of drug paraphernalia.
LEGAL DISCUSSION
[Headnotes 1-4]
The Fourth Amendment to the United States Constitution forbids unreasonable searches
and seizures. U.S. Const. amend. IV. Warrantless searches and seizures in a home are
presumptively unreasonable. Doleman v. State, 107 Nev. 409, 413, 812 P.2d 1287, 1289
(1991) (citing Payton v. New York, 445 U.S. 573, 587 (1980)). However, warrantless
searches are permitted if based upon both probable cause and exigent circumstances. Id.
Consent also exempts a search from the probable cause and warrant requirements of the
Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Davis v. State, 99
Nev. 25, 656 P.2d 855 (1983). When considering our citizens' constitutional right to be secure
in their homes and free from unreasonable searches and seizures, this court, on review,
must be careful not to permit the exception to swallow the rule.' Phillips v. State, 106 Nev.
763, 765-66, 801 P.2d 1363, 1365 (1990) (quoting Nelson v. State, 96 Nev. 363, 368, 609
P.2d 717, 719 (1980)).
The district court found that Howe consented to the officers' entry. However, the officers
based their warrantless entry into Howe's home on what they perceived as exigent
circumstances. We conclude that neither consent nor exigent circumstances were present in
this case.
[Headnotes 5-7]
The State bears the burden of proving consent by [c]lear and persuasive evidence.'
McIntosh v. State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970) (quoting Thurlow v. State, 81
Nev. 510, 515, 406 P.2d 918, 921 (1965)). The district court found that when the officers
came to the residence, Howe clearly repeated No but that this response could be interpreted
in two ways: as an answer to the questions regarding whether Howe was involved in drug
dealing or in response to the questions regarding entry into the house. While stating that this
is a close, marginal type case," the district court found that Howe's act of stepping aside
from the doorway evidenced his consent to the officers' entry.
112 Nev. 458, 464 (1996) Howe v. State
case, the district court found that Howe's act of stepping aside from the doorway evidenced
his consent to the officers' entry.
2

[Headnotes 8, 9]
Stepping away from the doorway, without more, is not clear and persuasive evidence of
consent. See State v. Summers, 440 So. 2d 911, 913 (La. Ct. App. 1983) (defendant's act of
leaving front door open and unattended while he retrieved requested driver's license did not
demonstrate his consent to allow officers to enter his home). This is particularly true where
the officers have manifested a definite intent to enter Howe's home. Mercado testified that
[a]s we entered the house, Mr. Howe stepped out of the way. Also, prior testimony was
introduced wherein Mercado stated, Mr. Howe stepped out of the way as soon as I indicated
I smelled marijuana. Mr. Howe knew we were going to go into the housecould go into the
house. The law does not require that the occupant of a home physically block the officers'
entry in order to indicate lack of consent to their entrance.
Additionally, both Cooley and Mercado testified that Howe consented to the search only
after the officers were over the threshold of the door. Moreover, Cooley clearly understood
that Howe denied the officers permission to enter. During cross-examination, Cooley testified
as follows:
[Defense Counsel]. [D]id he deny you permission to enter?
A. He said no. I took that as a no, yes.
Q. So that would be consistent then with the statement you gave in your affidavit,
where you said again that the defendantlet's see, if I candenied you permission, I
think I have he denied you permission?
A. Yes.
It was only after prodding from the State on re-direct that Cooley testified that when Howe
said, no, no, no, he could have been responding to the accusation that he had been dealing
narcotics.
__________

2
The district court stated:
That physical act, that's a very important physical act under these circumstances. I give it special attention
because this is a close, marginal type case. There is evidence here that he stepped aside. He was not lifted
aside nor was he pushed aside or moved aside by anyone. He voluntarily got out of the door, let them go
in.
Then he said, You're free to search. I think that was his position throughout.
The fact that Howe said words to the effect of , you're free to search once the officers had entered should not
have been considered in determining whether the officers had consent at the time they entered. The question of
consent should be determined by analyzing whether the officers had permission at the time they entered, not by
examining which statements or actions subsequent to the entry could support a theory of consent.
112 Nev. 458, 465 (1996) Howe v. State
Furthermore, the issue is not what Howe could have meant, but what Cooley understood
when he entered. Clearly, Cooley understood that he was entering Howe's home without
Howe's consent.
During direct examination, Mercado was ambiguous as to whether he understood Howe's
negative answer to be in response to the request for entry or to the accusation that he sold
drugs. He testified that when Howe answered the door, the officers informed him of the
allegation that he was selling narcotics and asked if they could come in to talk about it. Howe
stated, No, no, no I'm not evenI'm unemployed and I'm living on retirement from the Post
Office. However, when the prosecutor asked Mercado during cross-examination if he was
aware that the defendant had not given [him] permission to enter, he responded, Yes.
Indeed, the record indicates that the officers believed their entry was justified, not because
they believed they had Howe's consent, but ostensibly because they thought relevant evidence
would be destroyed. When asked why the officers went into Howe's residence after hearing
no, Cooley responded:
Due to the strong odor of marijuana and due to the exigent circumstances that we felt
possibly being indicated with the smell of marijuana and possibly more marijuana being
inside the residence, the action of somebody coming outside to do something outside,
the furtive movement or rapid movement in the house, so forth, all added up to the
possibility that evidence could have been destroyed or may be destroyed.
Mercado stated that after the officers smelled marijuana, they stepped into the residence. He
further stated that the reason he did so was to prevent critical evidence from being destroyed.
Even the prosecutor appears to have conceded that there was no consent to the entry.
During defense counsel's cross-examination, the prosecutor, during an objection, stated, I
don't think there's any evidence that there was any consent prior to Investigator Mercado's
entrance into the residence. Moreover, in closing argument, the prosecutor stated that after
the officers smelled marijuana, the issue at [that] point [was] whether or not the officer had
exigent circumstances to enter the house without having a consent.
[Headnote 10]
Having determined that Howe did not consent to the officers' entry, we now examine
whether the officers were correct that exigent circumstances existed to permit a warrantless
entry into Howe's home. A warrantless entry into a home for either a search and seizure of
property or a search and seizure of a person is unlawful in the absence of exigent
circumstances. Payton v. New York, 445 U.S. 573 (1980). The United States Supreme Court
stated in Payton, 445 U.S. at 589-90: The Fourth Amendment protects the individual's
privacy in a variety of settings.
112 Nev. 458, 466 (1996) Howe v. State
The Fourth Amendment protects the individual's privacy in a variety of settings. In
none is the zone of privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual's homea zone that finds its roots
in clear and specific constitutional terms: The right of people to be secure in their . . .
houses . . . shall not be violated. That language unequivocally establishes the
proposition that [a]t the very core [of the Fourth Amendment] stands the right of a
man to retreat into his own home and there be free from unreasonable governmental
intrusion. Silverman v. United States, 365 U.S. 505, 511. In terms that apply equally to
seizures of property and to seizures of persons, the Fourth Amendment has drawn a
firm line at the entrance to the house. Absent exigent circumstances, that threshold may
not reasonably be crossed without a warrant.
[Headnotes 11-13]
Exigent circumstances are those circumstances that would cause a reasonable person to
believe that entry (or other relevant prompt action) was necessary to prevent physical harm to
the officers and other persons, the destruction of relevant evidence, the escape of the suspect,
or some other consequence improperly frustrating legitimate law enforcement efforts.'
Doleman v. State, 107 Nev. 409, 414, 812 P.2d 1287, 1290 (1991) (quoting United States v.
McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984)). [I]n the
absence of a showing, by the State, of a true necessitythat is, an imminent and substantial
threat to life, health, or propertythe constitutionally guaranteed right to privacy must
prevail. Nelson v. State, 96 Nev. 363, 366, 609 P.2d 717, 719 (1980). The State bears the
burden of showing that the exigencies of the situation required intrusion without a warrant.
State v. Hardin, 90 Nev. 10, 13, 518 P.2d 151, 153 (1974).
[Headnotes 14, 15]
State argues that the exigency in the instant case was that critical evidence would be
destroyed. Mere fear or apprehension alone that evidence will be destroyed will not justify a
warrantless entry of a private home. United States v. Perez, 700 F.2d 1232, 1237 (8th Cir.
1983), cert. denied, 468 U.S. 1217 (1984). Instead, [t]here must exist specific and
articulable facts which, taken together with rational inferences . . . ,' support the warrantless
intrusion. United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985) (quoting United States
v. Dugger, 603 F.2d 97, 99 (9th Cir. 1979)).
112 Nev. 458, 467 (1996) Howe v. State
[Headnote 16]
In United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833 (1973), the
court formulated a test for determining whether the possible destruction of evidence justifies
a warrantless entry.
3
When government agents have probable cause to believe contraband is
present, the following five factors are relevant in determining whether the exigency of
destruction of evidence exists:
(1) the degree of urgency involved and the amount of time necessary to obtain a
warrant; (2) reasonable belief that the contraband is about to be removed; (3) the
possibility of danger to police officers guarding the site of the contraband while a
search warrant is sought; (4) information indicating the possessors of the contraband
are aware that the police are on their trail; and (5) the ready destructibility of the
contraband and the knowledge that efforts to dispose of narcotics and to escape are
characteristic behavior of persons engaged in the narcotics traffic.
Rubin, 474 F.2d at 268-69 (citations omitted) (quoting United States v. Manning, 448 F.2d
992, 998-99 (2d. Cir. 1971)).
The first and second Rubin factors are interrelated in the instant case. There was no
urgency because the officers had no objectively reasonable belief that the marijuana was
actually about to be destroyed.
The officers' belief that the contraband [was] about to be removed, was based primarily
on their testimony that they smelled marijuana. Rubin, 474 F.2d at 268. We conclude that this
belief was not reasonable. Mercado testified that he and Cooley were outside Howe's door
approximately three minutes before Mercado detected the odor of burning marijuana, and
Cooley testified that he did not notice it until Mercado mentioned it and Cooley stepped to
the right. Therefore, the odor was not sufficiently strong to create a reasonable belief that
Howe was in the process of burning his supply of marijuana. Rather, the reasonable inference
is that Howe was in the process of smoking marijuana, which the evidence later obtained
corroborated.
Moreover, the officers' ostensible belief that Howe had set fire to the marijuana and that
the officers had to enter the residence in order to prevent the destruction of this evidence is
belied by the officers' actions. Once they entered the residence, they did not attempt to locate
the burning evidence. Mercado testified that the first thing he did when he entered was to
try to calm Howe.
__________

3
Wayne LaFave has deemed this case the most careful treatment of this point. 3 Wayne LaFave, Search and
Seizure 6.5(b), at 342 (3d ed. 1996).
112 Nev. 458, 468 (1996) Howe v. State
first thing he did when he entered was to try to calm Howe. Cooley testified that upon entry,
he attempted to procure Howe's signature on the consent form and went over the form word
for word. The facts demonstrate that the officers had no objectively reasonable belief that the
marijuana was being destroyed because they failed to act quickly to locate the burning
evidence.
Regarding the third Rubin factor, there was no evidence that any of the officers would
have been in danger had they guarded the site of the contraband while a search warrant was
sought. Finally, with respect to the fourth and fifth Rubin considerations, it is true that Howe
knew that the police officers were on his trail after the officers knocked and that marijuana
is readily destructible. Nevertheless, as stated, without a reasonable belief that the marijuana
was being destroyed, a warrantless entry into Howe's home was unjustified. Moreover, Howe
might well have believed that he had successfully hidden his supply of marijuana in the back
yard and therefore, had less of an incentive to destroy it. If the officers truly believed that the
information they had that led to the investigation and the action at the garbage can in the back
yard amounted to probable cause, they should have sought a warrant and then no danger of
destruction would have existed, because Howe would have been unaware that he was under
suspicion.
Under the factors articulated in Rubin, we conclude that the exigent circumstance of
imminent destruction of evidence was not present and cannot justify violating Howe's right to
privacy in the sanctuary of his home as guaranteed by the Fourth Amendment of the United
States Constitution and Article 1, Section 18 of the Nevada Constitution.
[Headnotes 17, 18]
We note that other courts addressing circumstances similar to the instant case have refused
to find the presence of exigent circumstances where an officer smelled marijuana smoke
emanating from within a residence. See Johnson v. United States, 333 U.S. 10, 13 (1948)
([O]dors alone do not authorize a search without warrant.); State v. Dorson, 615 P.2d 740,
746 (Haw. 1980) ([W]hile the smell of marijuana may establish probable cause, it is not an
exigent circumstance that will justify a warrantless entry.); People v. Cohen, 496 N.E.2d
1231, 1235 (Ill. Ct. App. 1986) ([H]aving probable cause from the odor of burning cannabis
will not alone justify an officer to enter and search a private residence.); State v. Schur, 538
P.2d 689, 694 (Kan. 1975) (Absent a showing of circumstances indicating the likely
destruction of evidence, other than defendant's refusal of entry, the observation of a yellow,
rolled cigarette in plain view and the detection of an odor similar to burning marijuana
would not authorize a search of the [apartment] without a valid warrant or consent.");
112 Nev. 458, 469 (1996) Howe v. State
detection of an odor similar to burning marijuana would not authorize a search of the
[apartment] without a valid warrant or consent.); Summers, 440 So. 2d at 913 (quoting State
v. Jones, 358 So. 2d 1257, 1259 (La. 1978)) (warrantless entry unjustified where police
smelled marijuana from within a home since [t]he constitutional sanctity of a home against
unreasonable government intrusion should not depend on the unfounded imagination of
police officers, or the potential for fabrication that thereby would result' ). It has been argued
that the officers properly arrested Howe without a warrant and therefore had the right to
search incident to the arrest. Even if the officers had probable cause to arrest Howe if he had
been in a public place, they had no justification to enter his home in order to effect a
warrantless arrest. The United States Supreme Court made it very clear in Payton v. New
York, 445 U.S. 573 (1980), that the home is a sanctuary, which the government may not
invade without a warrant or exigent circumstances. The considerations that courts have
recognized for exigent circumstances to justify a home entry for making a warrantless arrest
are even more rigid than for warrantless searches. In Dorman v. United States, 435 F.2d 385,
392-93 (D.C. Cir. 1970), the court cited the following material considerations in determining
whether a warrantless entry was justified: (1) a grave offense is involved, particularly a crime
of violence; (2) the suspect is reasonably believed to be armed; (3) the probable cause for
believing the suspect committed the crime is clear, even more than required to obtain a
warrant; (4) there is a strong reason for believing the suspect is in the premises; (5) there is a
likelihood that the suspect will escape if not quickly apprehended; and (6) entry is made
peaceably if possible. Clearly none of these considerations were present in this case except
the suspect's presence in the premises and the peaceable entry. The entry into Howe's home
cannot be justified on the basis of the arrest.
Based on the foregoing, we hold that exigent circumstances did not support the warrantless
entry into Howe's home.
Having determined that the initial entry was illegal, we next consider whether Howe's
subsequent signature on the consent to search form was sufficiently purged of the primary
taint of the illegal entry. See Wong Sun v. United States, 371 U.S. 471 (1963). We hold that it
was not. First, Howe's consent was given in close temporal proximity to the illegal entry.
Howe told the officers they could search immediately after or perhaps even during the time
the officers illegally entered his home. He signed the consent form shortly thereafter. While
the officers informed Howe that he was not required to give consent, they clearly indicated
that it would behoove him to do so, as they had the right to be there and were going to
search despite his lack of consent.
112 Nev. 458, 470 (1996) Howe v. State
indicated that it would behoove him to do so, as they had the right to be there and were going
to search despite his lack of consent. We cannot say that, under the circumstances of this
case, the consent was sufficiently purged of the taint from the illegal entry. Consequently,
the search of Howe's home was also illegal. We conclude that the evidence seized following
the officers' illegal entry must be suppressed as fruit of the illegal entry. See generally Wong
Sun v. United States, 371 U.S. 471 (1963).
4
We therefore reverse the judgment of
conviction.
5

Rose, J., concurs.
Steffen, C. J., with whom Springer, J., agrees, concurring:
I concur in the result reached by the majority but do not subscribe to the view that police
officers who are exposed to the smell of drugs, in this case marijuana, do not have probable
cause to make a warrantless arrest and then a search incident to the arrest. See State v.
Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971) (citing Chimel v. California, 395 U.S. 752
(1969)). Indeed, officers who approach a suspect at the door of his house, and are able to
smell the odor of an illegal controlled substance, certainly have probable cause to believe that
a felony is occurring in their presence, such as to justify a warrantless arrest. Id.; State v.
Pool, 652 P.2d 254 (N.M. Ct. App. 1982) (holding warrantless entry and subsequent arrest
valid where officer smelled odor of burning marijuana and thus had good faith belief that
defendant, who closed door upon seeing officer, would immediately attempt to dispose of the
contraband); see also United States v. Botero, 589 F.2d 430 (9th Cir.) (where officers
followed recipient of bags of cocaine to apartment and placed him under warrantless arrest in
the doorway as he opened the door, court held that arrest would have been valid if made after
police entry into apartment because justified by exigent circumstances, i.e., the imminent
prospect of contraband being removed or destroyed), cert. denied, 441 U.S. 944 (1979).
Moreover, I disagree with the majority on the issue of exigent circumstances. Even under
the five-factor test adopted in United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied,
414 U.S. 833 (1973), and applied by the majority, I believe that exigent circumstances are
demonstrated here.
__________

4
In light of this decision, we need not consider Howe's additional contentions that the urine sample was
illegally obtained and that Howe's incriminating statements were obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966), and should have been suppressed.

5
appeal.
112 Nev. 458, 471 (1996) Howe v. State
First, the majority seems to minimize the criminality involved in the possession of a
quarter pound of marijuana by declaring that the possibility of Howe disposing of it while the
officers sought a warrant does not demonstrate urgency. Of course, under Nevada law, the
described offense is a felony. It is therefore a serious crime and the officers were under a duty
not to ignore it.
Second, the majority dismisses as unreasonable the officers' belief that the evidence would
be destroyed. I suggest that the majority's assessment is optimistic to the extreme. When
Howe opened the front door, Cooley and Mercado identified themselves as police officers.
The officers also informed Howe that they had received complaints against Howe for possibly
possessing marijuana. Mercado told Cooley that he detected the odor of burning marijuana.
Under these circumstances, I suggest that it would have been irresponsible for the officers to
have assumed that Howe would have left the marijuana untouched and available for seizure
after they obtained a warrant.
Moreover, I also believe that the most logical belief concerning the burning marijuana
would have been that Howe had been smoking the substance and placed the burning material
in an ash tray or some other receptacle while he went to the front door. If the officers had left
for a warrant, or posted one of them outside while the other left for the warrant, it is
unreasonable to assume that Howe would not destroy the contraband during the officers'
absence.
Third, although it would appear that there would have been no danger to one of the
officers remaining outside Howe's residence while the other officer left to secure a warrant,
there would have been an obvious and extreme danger that the contraband would be
destroyed during the wait.
1
If, however, the warrantless arrest is deemed valid, then a limited
search incident to the arrest would have been justified to assure the officers' safety.
Finally, the majority concludes that the fourth and fifth Rubin factors are satisfied, but
nevertheless concludes that the possible destruction of a small quantity of marijuana, without
more, does not justify a warrantless entry into a person's home.
2
I have great difficulty with
this court undermining felony classifications determined by the legislative branch of
government.
__________

1
Given the majority's conclusion that Howe's warrantless arrest was unjustified, it would also be necessary to
conclude that the officer who remained at the residence would have had no right to either enter Howe's residence
or order Howe not to move from the open doorway while the other officer went for a warrant.

2
It will be recalled, as noted in the majority opinion, that factors 4 and 5 are: (4) information indicating the
possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the
contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of
persons engaged in the narcotics traffic.
112 Nev. 458, 472 (1996) Howe v. State
difficulty with this court undermining felony classifications determined by the legislative
branch of government. In the state of Nevada, our citizen-representatives have determined
that possession of a small quantity of marijuana is a felony. It is not the prerogative of this
court to countermand the public policy of this State and conclude that the crime implicated in
this case is not sufficiently serious for officers to effectively deal with in the absence of a
warrant. The fact of the matter is that if the officers had left Howe in order to obtain a
warrant, all traces of the marijuana would have been gone when they returned. Thus, the
majority has effectively declared that despite the fact that the possession and use of marijuana
in Nevada is a felony, we as a court will not countenance the warrantless arrest of persons
who commit these crimes in the immediate presence of a police officer.
Notwithstanding my concern that we not proceed too far in our rulings as to what may or
may not be done under Fourth Amendment jurisprudence regarding the type of situation that
prompted the entry by the officers in the instant case, under the current state of the law, the
officers could not conduct the extensive search that occurred here. A search incident to a
lawful arrest could not have justified a warrantless search beyond the immediate vicinity of
the arrest unless there was consent or exigent circumstances. The majority is correct in
concluding that neither existed in the present case.
3

With the exception of the points of concern noted above, I concur in the majority's
opinion.
____________
112 Nev. 472, 472 (1996) Blume v. State
DAVID MICHAEL BLUME, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24671
April 30, 1996 915 P.2d 282
Appeal from a judgment of conviction pursuant to a guilty plea of felony driving under the
influence of alcohol with four prior convictions. Third Judicial District Court, Churchill
County; Archie E. Blake, Judge.
__________

3
I note, however, that the officers would have been justified in making a search for additional persons based
upon Officer Cripps' observation of a man temporarily exiting and re-entering the house at the rear while
Officers Cooley and Mercado were knocking on the front door. At the time when the officers entered Howe's
house, they could not have known whether Howe was the man who had been seen by Cripps at the rear of the
house.
112 Nev. 472, 473 (1996) Blume v. State
Defendant pleaded guilty in the district court to felony driving under influence of alcohol
with four prior convictions, and defendant reserved right to argue validity of prior
convictions. Defendant appealed. The supreme court held that: (1) two prior convictions for
driving under influence in California were admissible as same kind of offense, even though
blood alcohol percentage for California offenses was .08, rather than .10 as in Nevada, and
(2) sentence of six years in prison and fine of $2,000 were within statutory limits, and so did
not constitute cruel and unusual punishment.
Affirmed.
Law Offices of Kenneth V. Ward and Leah Harper, Yerington, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Kevin L. Pasquale, District
Attorney and Robert V. Bogan, Deputy District Attorney, Churchill County, for Respondent.
1. Automobiles.
Two prior California convictions for driving under influence of intoxicating liquor were of same kind or species of conduct as
Nevada violation of driving while under influence of intoxicating liquor, even though blood alcohol percentage for California offenses
was .08 percent, while level in Nevada was .10 percent, and so California convictions were admissible at sentencing in Nevada
prosecution for felony driving under influence of alcohol as same or similar conduct. NRS 484.379, 484.3792(8).
2. Criminal Law.
Sentence within statutory limits is not cruel and unusual punishment unless statute fixing punishment is unconstitutional, or
sentence is so unreasonably disproportionate to offense as to shock conscience. U.S. Const. amend. 8.
3. Automobiles; Criminal Law.
Sentence of defendant to six years in prison and imposition of $2,000 fine following defendant's plea of guilty to one count of
felony driving under influence of alcohol with four prior convictions was within statutory limits that imprisonment not exceed six years
and that fine not exceed $5,000, and so sentence did not constitute cruel and unusual punishment; defendant did not challenge
constitutionality of sentencing statute. U.S. Const. amend. 8; NRS 484.3792(1)(c).
OPINION
Per Curiam:
This is an appeal from a judgment of conviction pursuant to a guilty plea of one count of felony driving under the influence of alcohol
with four prior convictions. The memorandum of plea bargain indicates that in exchange for entering a guilty plea to the
charge of driving under the influence, appellant reserved the right to argue the validity of his prior convictions.
112 Nev. 472, 474 (1996) Blume v. State
bargain indicates that in exchange for entering a guilty plea to the charge of driving under the
influence, appellant reserved the right to argue the validity of his prior convictions.
In April, 1993, appellant David Michael Blume was arrested for and subsequently charged
with driving under the influence of alcohol, third offense, in violation of NRS 484.379 and
484.3792. At the sentencing hearing, the state introduced and the district court admitted into
evidence four prior convictions for driving under the influence, all of which took place in
California.
[Headnote 1]
On appeal, appellant contends that the district court erred in admitting state's exhibits 3
and 4 (violations which occurred on August 5, 1990 and April 11, 1992, respectively) on the
ground that the blood alcohol percentage for the California offenses is 0.08 percent, while the
level in Nevada is 0.10 percent. Appellant contends that because the elements of the crimes
are different, the California offenses may not be considered for sentence enhancement
purposes in Nevada. See Burnette v. Municipality of Anchorage, 823 P.2d 10 (Alaska Ct.
App. 1991).
We disagree, and conclude that all four convictions were properly admitted. NRS
484.3792(8) provides:
As used in this section, unless the context otherwise requires, offense means a
violation of NRS 484.379[
1
] or 494.3795 or homicide resulting from the driving of a
vehicle while under the influence of intoxicating liquor or a controlled substance, or the
violation of a law of any other jurisdiction which prohibits the same or similar conduct.
(Emphasis added.) The definition of offense includes a violation of NRS 484.379, and a
violation of a law of another jurisdiction which prohibits the same or similar conduct. Under
the plain language of NRS 484.379, a person driving a vehicle may violate NRS 484.379 in
either of two ways: by driving while under the influence of intoxicating liquor or by driving
while having 0.10 percent or more by weight of alcohol in the blood. Long v. State, 109
Nev. 523, 528, 853 P.2d 112, 115 (1993).
__________

1
NRS 484.379, Driving under the influence of intoxicating liquor or controlled substance: Unlawful acts;
affirmative defense, provides in part:
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood; or
(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle
to have 0.10 percent or more by weight of alcohol in his blood,
to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has
access.
112 Nev. 472, 475 (1996) Blume v. State
Appellant was convicted in California of driving under the influence of intoxicating liquor.
This court recently concluded that driving while visibly impaired due to the consumption
of intoxicating liquor, a lesser-included offense of driving under the influence of alcohol in
Michigan, constituted the same or similar conduct under NRS 484.3792(8) for purposes of
sentence enhancement. Marciniak v. State, 112 Nev. 242, 911 P.2d 1197 (1996). Likewise,
driving under the influence of intoxicating liquor in California, even though the blood alcohol
weight in California is 0.02 percent lower than in Nevada constitutes the same or similar
conduct as driving under the influence of intoxicating liquor in Nevada. See Jones v. State,
105 Nev. 124, 126-27, 771 P.2d 154, 155 (1989) (same need not mean identical, but can
refer to conduct of the kind or species). Thus, we conclude that the California offenses were
properly considered for sentence enhancement purposes.
[Headnotes 2, 3]
Appellant also contends that the punishment imposed constituted cruel and unusual
punishment. The district court sentenced appellant to six years in prison and ordered him to
pay a $2,000 fine. NRS 484.3792(1)(c) provides that imprisonment must be for not less than
one year and not more than six years, and that a fine must not be less than $2,000 and not
more than $5,000. A sentence within the statutory limits is not cruel and unusual punishment
unless the statute fixing punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience. Culverson v. State, 95 Nev. 433,
435, 596 P.2d 220, 221-22 (1979). Appellant has not challenged the constitutionality of the
statute and both the prison term and the fine are within the statutory limits. Therefore, we
conclude that the sentence imposed does not constitute cruel and unusual punishment.
Accordingly, we affirm the judgment of conviction.
____________
112 Nev. 475, 475 (1996) Davenport v. State
RICHARD ALLAN DAVENPORT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27030
April 30, 1996 915 P.2d 878
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of driving
under the influence of alcohol, third offense. Second Judicial District Court, Washoe County;
Brent T. Adams, Judge.
The supreme court held that mere fact that defendant signed waiver of counsel on day after
hearing incident to out-of-state conviction did not render conviction inadmissible as prior
conviction, in light of presence of counsel for defendant at hearing.
Affirmed.
Attorney and Terrance P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Koenig determination that out-of-state conviction complies with spirit of constitutional principles, as required for out-of-state
conviction to constitute prior conviction for sentencing purposes and subsequent criminal proceeding, does not solely govern
convictions that arise from plea of guilty, but also governs cases that arise as result of trial.
2. Criminal Law.
If state produces record of judgment of conviction which shows that defendant was represented by counsel, then it is presumed
that conviction is constitutionally adequate, such that judgment constitutes prior conviction for sentencing purposes; burden is on
defendant to present evidence to rebut presumption.
3. Criminal Law.
If state produces record of judgment of conviction from proceeding in which defendant was not represented by counsel, state has
burden to produce evidence to demonstrate that defendant validly waived right to counsel, and that spirit of constitutional principles
was respected, in order for judgment to constitute valid prior conviction.
4. Criminal Law.
Out-of-state conviction was constitutionally adequate, as required for conviction to be used as prior conviction in sentencing
defendant, even though defendant signed waiver of rights on day after his hearing at which defendant agreed to submit case to judge on
record, since defendant was represented by counsel at hearing; mere fact that waiver was formalized following day did not indicate that
defendant had not waived his rights at hearing.
OPINION
Per Curiam:
On April 12, 1995, Appellant Richard Allan Davenport was convicted of one count of driving while under the influence of alcohol, a
violation of NRS 484.379 and 484.3792. The conviction was the result of a guilty plea, pursuant to plea negotiations. At sentencing, the
state offered exhibits showing that Davenport had two prior convictions of driving under the influence; one conviction
was from Snohomish County, Washington, and the other was from Washoe County.
had two prior convictions of driving under the influence; one conviction was from
Snohomish County, Washington, and the other was from Washoe County. Davenport was
sentenced to one year in the Nevada State Prison and fined $2,000.00.
On appeal, Davenport contends that the district court erred by admitting a facially
defective certification of conviction. This court has held that the state is required to present
proof of prior offenses at the sentencing hearing. Robertson v. State, 109 Nev. 1086, 1089,
863 P.2d 1040, 1042 (1993). The state satisfied this requirement, but Davenport argues that
the conviction from Snohomish County does not reflect compliance with the spirit of
constitutional principles, as required by this court's decision in Koenig v. State, 99 Nev. 780,
789, 672 P.2d 37, 43 (1983). Specifically, Davenport argues that the waiver of rights he
signed in the Snohomish County case was signed the day after his hearing, so it could not
have been a valid waiver.
[Headnote 1]
In response to this argument, the state argues that Koenig does not apply because the prior
conviction in the instant case was entered pursuant to a hearing in Snohomish County.
According to the state, [v]irtually every reported decision of [the Nevada Supreme] Court
dealing with the question of the validity of a prior conviction has arisen via a plea of guilty. In
each case, that is, the prior conviction was obtained by a guilty plea. The state is mistaken.
This court has applied the Koenig standard in at least one case where the prior conviction was
the result of a trial. Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990). In Pettipas, this
court reversed a felony driving under the influence conviction because one of the
misdemeanor offenses used to enhance the charge was the result of a trial at which appellant
was not represented by counsel. Id. at 379, 794 P.2d at 706. This court held that because in
the previous offense Pettipas had no counsel and the record contained no waiver of counsel,
the prior conviction did not reflect that the spirit of constitutional principles' was
respected. Id. at 380, 794 P.2d at 706 (quoting Koenig, 99 Nev. at 789, 672 P.2d at 43).
Thus, we conclude that Koenig and its progeny apply in the instant case.
The requirement of Koenig is merely this: So long as the court records from [the
municipal and justices'] courts reflect that the spirit of constitutional principles [was]
respected . . . the court record should be deemed constitutionally adequate. Koenig, 99 Nev.
at 789, 672 P.2d at 43. This standard was further refined in Dressler v. State, 107 Nev. 686,
819 P.2d 1288 (1991). In Dressler, this court held that in order to rely on a prior
misdemeanor judgment of conviction for enhancement purposes, the state had the burden of
proving either that the defendant was represented by counsel or validly waived that right,
and that the spirit of constitutional principles was respected in the prior misdemeanor
proceedings." Id. at 697, S19 P.2d at 1295.
the state had the burden of proving either that the defendant was represented by counsel or
validly waived that right, and that the spirit of constitutional principles was respected in the
prior misdemeanor proceedings. Id. at 697, 819 P.2d at 1295.
The one fact which all of our previous cases in this area have in common is that the
defendant lacked counsel when convicted of the prior offenses. Although we have never
explicitly so stated, it is clear that the primary focus of the analysis pursuant to Koenig,
Pettipas, and Dressler is on whether the defendant was represented by counsel when
convicted of a prior offense, regardless of whether that conviction was the result of a guilty
plea or a trial. If the defendant did have counsel, then it can be safely presumed that the
spirit of constitutional principles was honored in that earlier proceeding.
[Headnotes 2, 3]
Further, in Dressler, this court held: If the state produces valid records of a judgment of
conviction which do not, on their face, raise a presumption of constitutional deficiency, then
the defendant has the burden of presenting evidence rebutting the presumption of regularity
given to a judgment of conviction. 107 Nev. at 693, 819 P.2d at 1292-93. Put another way, if
the state produces a record of a judgment of conviction which shows that the defendant was
represented by counsel, then it is presumed that the conviction is constitutionally adequate,
i.e., that the spirit of constitutional principles was respected. The burden is then on the
defendant to present evidence to rebut this presumption. If the defendant was not represented
by counsel, then, as we stated in Dressler, the state has the burden of going forward with
evidence to overcome the defendant's prima facie case. 107 Nev. at 693, 819 P.2d at 1293.
That is, the state must produce evidence which demonstrates that the defendant validly
waived the right to counsel and that the spirit of constitutional principles was respected.
[Headnote 4]
In the instant case, it is clear from the record that Davenport was represented by counsel at
the hearing in Snohomish County, so we presume that the spirit of constitutional principles
was honored. Davenport argues that the conviction was constitutionally inadequate because
his waiver of rights was apparently signed the day after the hearing. However, the record
shows that Davenport appeared at the hearing on January 21, 1988. At that hearing,
Davenport apparently agreed to submit the case to the judge on the record. Accordingly, on
January 22, 1988, Davenport signed a form entitled Statement of Defendant on Submittal or
Stipulation of Facts.
Submittal or Stipulation of Facts.
1
This process is akin to declining to present a defense at
trial, but it is not analogous to a guilty plea. Davenport was represented by counsel when he
agreed to submit the case to the judge, and we can presume that he understood and waived his
rights. The fact that this waiver was formalized the following day does not indicate that
Davenport had not waived his rights at the hearing. Therefore, Davenport has not presented
evidence which overcomes the presumption that the conviction is constitutionally adequate.
Accordingly, we conclude that the district court did not err by admitting evidence of the
conviction in Snohomish County, and we affirm the judgment of conviction.
____________
112 Nev. 479, 479 (1996) Levingston v. Washoe Co.
NOAH LEVINGSTON, Individually and as Administrator of the Estate of Daniel W.
Levingston, Appellant, v. WASHOE COUNTY, NEVADA, by and Through the
Sheriff of Washoe County, Respondent.
No. 26265
April 30, 1996 916 P.2d 163
Appeal from a final judgment in a civil forfeiture action. Second Judicial District Court,
Following ex parte seizure of real property, based on alleged illegal drug activity, county
filed civil forfeiture complaint. The district court after conducting bench trial, granted
requested forfeiture. Appeal was taken. The supreme court held that: (1) challenge to
constitutional validity of civil forfeiture statute would be considered for first time on appeal;
(2) ex parte seizure of real property violated due process; (3) commencing civil forfeiture
proceeding after owners were convicted of drug offenses violated double jeopardy; and (4)
findings were required on whether forfeiture of real estate was excessive fine.
[Rehearing pending]
Lynn G. Pierce, Reno, for Appellant.
Richard A. Gammick, District Attorney, Margaret Crowley, Deputy, Washoe County, for
Respondent.
__________

1
By signing this form, Davenport indicated that he understood that he was waiving his right to a jury trial, the
right to hear and question witnesses, the right to call witnesses in his behalf and the right to testify or not to
testify. The document is also signed by Davenport's attorney.
Constitutional challenges to statute will be considered, even when raised for first time on appeal.
2. Forfeitures.
Constitutional validity of civil forfeiture statutes would be considered, even though challenge was raised for first time of appeal.
NRS 179.1165, 453.305.
3. Forfeitures.
Civil forfeiture statute authorizes government to seize property subject to forfeiture, without notice, when probable cause exists
that property is danger to public health and safety. NRS 179.1165(2)(c).
Real property is subject to forfeiture under civil forfeiture statute if owner or tenant uses real property to facilitate illegal
possession, sale, and trafficking of controlled substances. NRS 453.301(8).
Mere proof of drug transactions is not exigent circumstance required by due process to justify pre-hearing civil forfeiture of
property; government must show that less restrictive measures would not suffice to protect its interests. U.S. Const. amend. 14; NRS
179.1165(2)(c).
6. Constitutional Law; Drugs and Narcotics.
County's ex parte seizure of real property violated due process, even though authorized by civil forfeiture statute, given that seizure
affected fundamental right, seizure without owner presenting any evidence of defenses created unacceptable risk of unfair or mistaken
deprivation, and illegal drug activities at property were not exigent circumstances. U.S. Const. amend. 14; NRS 179.1165(2)(c).
7. Forfeitures.
Illegal seizure of property, standing alone, does not immunize property from civil forfeiture if improperly obtained evidence is not
used in forfeiture proceeding. NRS 179.1165(2)(c).
8. Constitutional Law; Drugs and Narcotics.
Civil forfeiture of real property used to facilitate possession, sale, and trafficking in controlled substances did not violate due
process, even though ex parte seizure of property was illegal, given that use of property to facilitate violation of controlled substances
laws was proven without using evidence tainted by illegal seizure. U.S. Const. amend. 14; NRS 453.301(8).
9. Double Jeopardy.
Civil forfeiture of real property used to facilitate violation of controlled substances laws was punishment and, thus, double
jeopardy barred forfeiture proceeding brought after property owners were prosecuted on drug offenses; innocent owner defense applied
and forfeiture was directly tied to illegal drug activity. U.S. Const. amend. 5; NRS 179.1164(2).
Double jeopardy prohibits imposition of punishment for same conduct in separate criminal and civil actions; actions must occur in
single proceeding for criminal and civil punishments may be imposed for same conduct. U.S. Const. amend. 5.
11. Criminal Law.
Excessive Fines Clause of United States Constitution applies to in rem civil forfeiture proceedings. U.S. Const. amend. 8.
12. Criminal Law.
Civil forfeiture of property used or intended to be used for drug activity is subject to Excessive Fines Clause of United States
Constitution, even if forfeiture also serves some remedial purpose. U.S. Const. amend. 8.
On remand in civil forfeiture proceeding against real property used to facilitate violation of controlled substances laws, trial court
was required to consider whether forfeiture imposed excessive fine. U.S. Const. amend. 8; NRS 453.301(8).
OPINION
Per Curiam:
FACTS
Daniel Levingston (Daniel), the owner of a home at 1361 East 10th Street (the 10th Street home) in Reno, died intestate in June
1991. In August 1991, appellant Noah Levingston (Noah) was appointed administrator of Daniel's estate. Daniel left four heirsNoah,
Lula Levingston (Lula), Rita Dennis (Rita), and David Levingston (David). On April 28, 1993, the probate court ordered that the
10th Street home be distributed among Lula, Rita and David. The probate court also awarded Noah a $5,751.10 administrator's lien against
the 10th Street home. On June 20, 1994, the probate court reaffirmed its April 1993 order, ruling that the order was final and not subject to
alteration.
After Daniel's death, the 10th Street home reportedly became a crack house. At the trial below, respondent Washoe County
(Washoe) presented evidence that extensive drug activity occurred at the 10th Street home between May 1992 and May 1993. Part of the
evidence included Rita's arrest at the 10th Street home for being under the influence of cocaine. On October 1, 1992, Rita pleaded guilty to
possession of a controlled substance. Rita also admitted that drugs were being sold at the 10th Street home. David was arrested at the 10th
Street home and later pleaded guilty to possession of a controlled substance for the purpose of sale. During Rita's and David's arrests, police
searched the 10th Street home and found drugs and paraphernalia that indicated cocaine was being sold on the premises.
On June 21, 1993, Washoe seized the 10th Street home based on the illegal drug activity. Washoe did not formally notice the owners of
the 10th Street home, or provide a hearing, before the seizure. Washoe filed a civil forfeiture complaint against the 10th Street home on
June 22, 1993. Noah, as administrator of Daniel's estate, answered the complaint.
estate, answered the complaint. A bench trial was conducted in May 1994.
On August 17, 1994, the district court issued an order granting Washoe the requested
forfeiture of the 10th Street home. In this appeal, Noah challenges the district court's order by
contending that Nevada's civil forfeiture statutes violate the Due Process, Double Jeopardy,
and Excessive Fines Clauses of the United States Constitution. For the reasons stated below,
we conclude that the application of Nevada's forfeiture statutes in this case was
unconstitutional.
DISCUSSION
Ownership of the 10th Street home
Noah and the heirs of Daniel's estate did not properly appeal the April 1993 probate court
distribution when that distribution was made. See Breckenridge v. Andrews, 88 Nev. 520,
524-25, 501 P.2d 657, 660 (1972). Even so, Noah and the beneficiaries of Daniel's estate had
the opportunity to challenge the April 1993 distribution when the probate court reconsidered
that order in June 1994. After reviewing Noah's contentions in this appeal, we conclude that
Noah did not present sufficient evidence to challenge the propriety of the probate court's
April 1993 order. Accordingly, we conclude that when Washoe filed the present forfeiture
action, Lula, Rita and David were the owners of the 10th Street home and Noah had an
administrator's lien against the 10th Street home.
1

Consideration of the constitutional issue
[Headnotes 1, 2]
Washoe argues that this court should not consider the constitutional issues raised in this
appeal because they were not raised before the district court. However, in McCullough v.
State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983), we ruled that issues of a constitutional
nature may be addressed when raised for the first time on appeal. This opportunity is
necessary because the privilege of bringing every law to the test of the constitution belongs
to the humblest citizen, who owes no obedience to any legislative act, which transcends the
constitutional limits. Justice Joseph Story, Address to the Suffolk Bar (Sept. 4, 1821), in The
Miscellaneous Writings of Joseph Story 428 (James Monroe and Company, eds.,
__________

1
Based on the record from the forfeiture proceedings and the briefs filed for this appeal, it is clear that Noah is
representing the interests of Lula, Rita and David. Accordingly, this opinion will address the interests of Lula,
Rita and David in the 10th Street home.
and Company, eds., 1835). In this opinion, we will review whether NRS 179.1165 and NRS
453.305 are constitutionally valid as applied in this case.
[Headnotes 3, 4]
Pursuant to NRS 179.1165(c), the government may seize property that is subject to
forfeiture without notice if probable cause exists that the property is a danger to public health
and safety.
2
Based on NRS 453.301(8), real property is subject to forfeiture if an owner or
tenant uses the real property to facilitate a violation of the NRS provisions relating to the
possession, sale, and trafficking in controlled substances.
3

Requirements of due process
On December 13, 1993, the United States Supreme Court addressed the constitutional
parameters of civil forfeiture laws in United States v. James Daniel Good Real Property, 510
U.S. 43, 114 S. Ct. 492 (1993). Although Good Real Property was filed after Washoe's
complaint, it was decided before Washoe's complaint was ruled upon. Accordingly, the
holding in Good Real Property governed Washoe's forfeiture action.
__________

2
NRS 179.1165 states the following:
179.1165 Seizure of property: Requirement of process.
1. Except as provided in subsection 2, property that is subject to forfeiture may only be seized by
a law enforcement agency upon process issued by a magistrate having jurisdiction over the property.
2. A seizure of property may be made by a law enforcement agency without process if:
(a) The seizure is incident to:
(1) An arrest;
(2) A search pursuant to a search warrant; or
(3) An inspection pursuant to a warrant for an administrative inspection;
(b) The property is the subject of a final judgment in a proceeding for forfeiture;
(c) The law enforcement agency has probable cause to believe that the property is directly or
indirectly dangerous to health or safety; or
(d) The law enforcement agency has probable cause to believe that the property is subject to forfeiture.

3
NRS 453.301 provides, in pertinent part, as follows:
453.301 Property subject to forfeiture. The following are subject to forfeiture pursuant to NRS
179.1156 to 179.119, inclusive:
. . . .
8. All real property and mobile homes used or intended to be used by any owner or tenant of the property
or mobile home to facilitate a violation of the provisions of NRS 453.011 to 453.552, inclusive, except
NRS 453.336, or used or intended to be used to facilitate a violation of a law of any other jurisdiction
which prohibits the same or similar conduct as prohibited in NRS 453.011 to 453.552, inclusive, except
NRS 453.336. . . .
Real Property governed Washoe's forfeiture action. See Griffith v. Kentucky, 479 U.S. 314,
328 (1987) (a new rule for the conduct of criminal prosecutions is applied retroactively in
pending state cases).
4

1. Seizure of the 10th Street home
[Headnote 5]
Due process affords an individual notice and an opportunity to be heard before the
government can deprive him of property. Good Real Property, 510 U.S. at 48, 114 S. Ct. at
498. Mere proof of drug transactions is not in itself an exigent circumstance that justifies the
postponement of notice and a hearing. Id. at 62, 114 S. Ct. at 505. [T]he Government must
show that less restrictive measures [other than seizure]i.e., a lis pendens, restraining order,
or bondwould not suffice to protect the Government's interests. Id.
A review of whether NRS 179.1165(c) violates the Due Process Clause requires an inquiry
into the interest affected by the seizure of real property, the risk of erroneous seizure, and the
government's interest in seizing real property without a hearing. See Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
a. Interest affected by seizure of real property
[Headnote 6]
The seizure of real property affects the fundamental interest of our citizenry in maintaining
control over their residence and remaining free from government interference. Fuentes v.
Shevin, 407 U.S. 67, 80-81 (1972). The purpose of due process is to protect that fundamental
right from arbitrary encroachments by minimizing unfair or mistaken deprivations of
property. Id.
b. Risk of erroneous seizure
The practice of ex parte seizures presents an unacceptable risk of unfair or mistaken
deprivations of property. Good Real Property, 510 U.S. at 55, 114 S. Ct. at 501. Pursuant to
NRS 179.1165, the government may seize property without presenting any evidence of
defenses the owner may have. The owner's first opportunity to challenge the State's action in
an adversarial proceeding may be months or even years after the initial seizure of
property.
__________

4
We consider the constitutional protections afforded a defendant in a civil forfeiture proceeding to be as
fundamental as the constitutional protections afforded a defendant in a criminal prosecution. Therefore, the same
rationale that mandates the retroactive application of a new rule governing criminal prosecutions mandates the
retroactive application of a new rule governing civil forfeitures.
proceeding may be months or even years after the initial seizure of property. In the instant
case, the owners of the 10th Street home waited almost fourteen months for a district court
ruling. In the event a district court refuses to grant a requested forfeiture after months of
property deprivation, that determination does not cure the temporary deprivation of property
that could have been prevented by an earlier hearing. Connecticut v. Doehr, 501 U.S. 1, 15
(1991).
When such interests are at stake, [n]o better instrument has been devised for arriving at
truth than to give a person in jeopardy of serious loss notice of the case against him and
opportunity to meet it. Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-72 (1951)
(Frankfurter, J. concurring) (footnotes omitted). The right to a fair and open hearing is one
of the rudiments of fair play assured to every litigant by the Federal Constitution as a minimal
requirement. Railroad Comm'n. of Cal. v. Pacific Gas Co., 302 U.S. 388, 393 (1938).
c. The government's interest
The government's interest in seizing real property before a forfeiture hearing rests in the
need to ensure the subject property is not sold, destroyed, or used for illegal activity before
forfeiture can become final. Good Real Property, 510 U.S. at 58, 114 S. Ct. at 503. When
property may be easily transferred or hidden, frustrating the government's interest, a special
need for prompt action justifies postponement of notice and a hearing. Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 678 (1974). The government's special need for
prompt action is less apparent when real property is subject to forfeiture. The government
may prevent the sale of real property by filing a notice of lis pendens or by obtaining an ex
parte restraining order. Also, continued illegal activity can be countered by search and arrest
warrants. With these means at the government's disposal, seizure of real property without
notice or a hearing can only occur in the most exigent of circumstances.
We conclude that exigent circumstances were not present in the case at bar. In this case,
Washoe argued that illegal drug activity was occurring at the 10th Street home and that the
drug activity was a threat to neighborhood safety. However, we conclude that Washoe failed
to show that the threat to neighborhood safety justified the seizure of real property without
notice or a hearing. Accordingly, we conclude that Washoe's seizure of the 10th Street home
pursuant to NRS 179.1165(c) violated the Due Process Clause of the United States
Constitution. See Mathews, 424 U.S. at 335.
2. Forfeiture of the 10th Street home
[Headnotes 7, 8]
The illegal seizure of property, standing alone, does not immunize property from forfeiture
if improperly obtained evidence is not used in the forfeiture proceeding. United States v.
Property at 4492 S. Livonia Rd., Livonia, 889 F.2d 1258, 1265 (2d Cir. 1989); United States
v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351, 351-52 (9th Cir. 1974).
Accordingly, the forfeiture order issued by the district court is not invalid despite the illegal
seizure of the 10th Street home if the evidence introduced at the forfeiture proceeding was
derived independently from the illegal seizure. See John Bacall Imports, Ltd. v. United States,
412 F.2d 586 (9th Cir. 1969).
During the forfeiture proceeding, Washoe had to prove that an owner or tenant of the 10th
Street home used the 10th Street home to facilitate a violation of Nevada's controlled
substances laws. NRS 453.301(8). Washoe presented evidence that David and Rita were
convicted of drug related offenses at the 10th Street home. Washoe also presented evidence
of other drug activities at the 10th Street home. Therefore, Washoe proved the requirements
for forfeiture of the 10th Street home without using evidence tainted by the illegal seizure of
the 10th Street home.
We conclude that despite Washoe's illegal seizure of the 10th Street home, the forfeiture of
the 10th Street home was not tainted by that illegal seizure because the forfeiture was proven
without the use of evidence gained through the illegal seizure.
Protections against double jeopardy
[Headnote 9]
The longstanding protection flowing from the Double Jeopardy Clause is that no man
shall be twice vexed for one and the same offense. Ex parte Lange, 85 U.S. 163, 168 (1873).
In applying double jeopardy scrutiny to Nevada's civil forfeiture statutes, we must address
three questions: (1) whether a civil forfeiture action constitutes punishment, (2) whether
forfeiture in this case was based upon acts previously punished criminally, and (3) whether
the civil forfeiture action and the criminal prosecution were separate proceedings. See United
States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1216 (9th Cir. 1994).
[T]he determination whether a given civil sanction constitutes punishment in the relevant
sense requires a particularized assessment of the penalty imposed and the purposes that the
penalty may fairly be said to serve. United States v. Halper, 490 U.S. 435, 448 (1989).
In Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801 {1993), the Court considered
whether in rem civil forfeitures constitute punishment in the context of the Excessive
Fines Clause.
(1993), the Court considered whether in rem civil forfeitures constitute punishment in the
context of the Excessive Fines Clause. In concluding that the federal forfeiture statute
constitutes punishment, the Austin Court indicated that Congress' intent was to apply the
statute only against culpable individuals. Id. The Austin Court also referred to a United States
Senate report on the federal forfeiture statute stating the conventional criminal sanctions were
inadequate to deter and punish unlawful drug activities. Id. at 620, 113 S. Ct. at 2811. Based
upon these observations, the Austin Court concluded that the federal forfeiture statutes look
more like punishment, not less. Id. at 619.
5

As with the statute reviewed in Austin, Nevada's forfeiture statute looks more like
punishment. The innocent owner defense is recognized in forfeiture actions. Property is not
subject to forfeiture if the illegal act giving rise to the forfeiture was committed without the
knowledge, consent or wilful blindness of the owner. NRS 179.1164(2). Also, NRS chapter
179 ties forfeiture actions directly to illegal drug activity.
This court has previously acknowledged that Nevada's civil forfeiture statutes have an
ancillary punitive effect. City of Sparks v. Nason, 107 Nev. 202, 204, 807 P.2d 1389, 1390
(1991). Further, we concluded in Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995), that
taxes and civil penalties imposed pursuant to NRS chapter 372A constitute punishment.
With respect to whether Washoe's forfeiture proceeding was based on acts that were
previously punished criminally, we conclude they were. David and Rita were convicted of
drug related offenses and served sentences pursuant to those convictions. While Washoe
presented evidence of other arrests and drug activities at the 10th Street home, we conclude
that the evidence of David's and Rita's previous convictions were important to Washoe's
allegation regarding drug activity.
[Headnote 10]
To impose punishment for the same conduct in a criminal and civil action, the actions
must occur in a single proceeding.
6
Halper, 490 U.S. at 450.
__________

5
The reasoning that Austin applied in the excessive fines context is equally applicable in double jeopardy
analysis. See $405,089.23 U.S. Currency, 33 F.3d at 1219.

6
The federal circuit courts differ on what constitutes a single proceeding. The United States Court of Appeals
for the Ninth Circuit ruled that a forfeiture case and criminal case constitute the same proceeding if they are
brought in the same indictment and tried in the same trial. $405,089.23 U.S. Currency, 33 F.3d at 1216. The
United States Court of Appeals for the Second and Eleventh Circuits adopted a less rigid rule. According to
those courts, civil and criminal actions may be filed and docketed separately, but must be pursued
simultaneously, as part of a single, coordinated prosecu-
Halper, 490 U.S. at 450. Otherwise, only the first action brought will stand while the second
action brought will fall under the weight of double jeopardy scrutiny. Desimone, 111 Nev. at
1230, 904 P.2d at 7. Washoe's civil forfeiture action was clearly a separate legal proceeding
that subjected David and Rita to additional punishment for the same unlawful activity.
Based on the reasoning presented above, we conclude that the civil forfeiture proceeding
under review in the case at bar subjected Rita and David to double jeopardy. Accordingly, to
the extent the district court's forfeiture order deprived Rita and David of their ownership
interest in the 10th Street home, that order is reversed.
Protection against excessive fines
[Headnotes 11-13]
The Excessive Fines Clause applies to in rem civil forfeiture proceedings. Austin, 509 U.S.
at 604, 113 S. Ct. at 2803. A civil forfeiture of property used or intended to be used for drug
activity is payment to the sovereign for some offense and, therefore, is subject to the
Excessive Fines Clause even if the forfeiture also serves some remedial purpose. Id. at 622,
113 S. Ct. at 2812. While we conclude that excessive fines analysis applies to civil forfeiture
actions, insufficient evidence was presented to the district court to determine whether
Washoe's forfeiture of the 10th Street home violated the Excessive Fines Clause.
Accordingly, we direct the district court to consider on remand whether the forfeiture action
in this case imposed an excessive fine upon Lula. See id. As part of its inquiry, the district
court should consider whether Noah's lien upon the 10th Street home was a property interest
subject to forfeiture and, if it was, whether the forfeiture of that lien was an excessive fine.
CONCLUSION
We conclude that Washoe's seizure of the 10th Street home pursuant to NRS 179.1165(c)
violated the Due Process Clause because it occurred without a pre-seizure notice or hearing.
Notwithstanding Washoe's illegal seizure of the 10th Street home, however, we conclude that
the forfeiture of the 10th Street home was not tainted by evidence from an illegal seizure.
With respect to whether the civil forfeiture proceedings in this case punished Rita and
David for acts that were previously the basis of criminal punishment, we conclude that they
did.
__________
tion. United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11th Cir. 1994); United States v.
Millan, 2 F.3d 17, 20 (2nd Cir. 1993). Because Washoe's civil forfeiture proceeding failed both tests, this
opinion does not address what procedures constitute a single proceeding.
basis of criminal punishment, we conclude that they did. As such, the forfeiture of the 10th
Street home was not invalid because of the lack of a preseizure notice or hearing; it was
unconstitutional because it subjected David and Rita to double jeopardy. [A]n
unconstitutional Act . . . is, in legal contemplation, as inoperative as though it had never been
passed. Norton v. Shelby County, 118 U.S. 425, 442 (1886). Accordingly, to the extent the
forfeiture order in this case deprived Rita and David of their interest in the 10th Street home,
we reverse the district court's order.
With respect to Lula's and Noah's interest in the 10th Street home, we remand this case to
the district court to determine whether Lula and Noah were aware of criminal activity on the
premises and, if so, whether the present forfeiture order imposed an excessive fine on Lula or
Noah.
____________
112 Nev. 489, 489 (1996) Denson v. State
TYRONE RANDOLPH DENSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26581
April 30, 1996 915 P.2d 284
Appeal from a judgment of conviction entered pursuant to a guilty plea of two counts of
burglary. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
The supreme court held that: (1) trial court was entitled to rely on videotape surveillance
and narration by surveillance shift supervisor, but (2) trial court impermissibly punished
defendant for prior uncharged crimes.
Sentence vacated and remanded for resentencing.
Michael Specchio, Public Defender, John Reese Petty, Chief Appellate Public Defender,
Attorney, and Gary H. Hatlestad, Deputy, Washoe County, for Respondent.
1. Criminal Law.
In sentencing, courts are generally free to consider information extraneous to presentencing report.
2. Criminal Law.
Possession of the fullest information possible concerning defendant's life and characteristics is essential to sentencing judge's task
of determining type and extent of punishment.
3. Criminal Law.
A sentencing proceeding is not a second trial, and court is privileged to consider facts and circumstances that would not be
admissible at trial.
4. Criminal Law.
District court is vested with wide discretion regarding sentencing.
5. Criminal Law.
Supreme court will reverse sentence if it is supported solely by impalpable and highly suspect evidence.
6. Criminal Law.
In sentencing defendant for burglary, district court's sentencing decision was not founded solely upon impalpable and highly
suspect evidence, and thus court did not abuse its discretion by relying on surveillance videotape from casino that allegedly showed
defendant and another person preparing to rob customers and by allowing surveillance shift supervisor to narrate videotape. Supervisor
testified that he personally saw defendant in casino on numerous occaions and believed that defendant was intending to rob customers,
security officers at other casinos were prepared to testify that they had recorded defendant committing crimes, and court was informed
that defendant had three prior gross misdemeanor convictions that were similar to crimes with which defendant was charged.
7. Criminal Law.
Trial court's sentence for burglary impermissibly punished defendant for prior uncharged crimes. Court told defendant that
[y]ou're going to pay for it now, and you're going to pay for it for all the other times that you walked into a casino, and court
indicated that sentences would be served consecutively because sentence was for every time you have done it [committed a
burglary].
8. Criminal Law.
Although district court has wide discretion to consider prior uncharged crimes during sentencing, court must refrain from
punishing defendant for prior uncharged crimes.
9. Criminal Law.
Consideration of prior uncharged crimes in sentencing is solely for purpose of gaining a fuller assessment of defendant's life,
health, habits, conduct, and mental and moral propensities.
OPINION
Per Curiam:
Appellant Tyrone Randolph Denson (Denson) agreed to plead guilty to two counts of burglary. During the sentencing hearing, the
district court viewed a surveillance videotape that showed a series of incidents recorded by surveillance cameras at Harrah's, Reno
(Harrah's). Seven of the eight incidents on the videotape showed Denson in Harrah's. The videotape was narrated by an employee of
Harrah's security department. After viewing the videotape, the district court sentenced Denson. The district court's sentence included two
five-year prison terms, one for each burglary charge to which Denson pleaded guilty. The district court also directed that the two
prison terms be served consecutively.
district court also directed that the two prison terms be served consecutively.
In this appeal, Denson contends that the district court improperly relied upon the
surveillance videotape and the testimony of the Harrah's security officer in its sentencing
decision. We conclude that the district court properly considered the videotape and properly
allowed the security officer to narrate that videotape. Because the district court's sentence was
intended to punish Denson for uncharged crimes, however, we vacate the district court's
sentencing determination and remand this case to a different district judge for resentencing.
FACTS
Denson was charged by information with five burglaries at five different casinos. During
the preliminary hearing, testimony was heard from victims of the burglaries and from security
officers at the five casinos. Subsequently, Denson agreed to plead guilty to two counts of
burglary. The Parole and Probation Department (PPD) recommended that Denson's
sentence includes a six-year prison term for each burglary count to which Denson pleaded
guilty. PPD also recommended that the sentences be served concurrently.
Over Denson's objection, the district court viewed a videotape offered by the prosecution
during Denson's sentencing hearing. The videotape was prepared by Les Silva (Silva), a
surveillance shift supervisor at Harrah's, from portions of surveillance tapes recorded at
Harrah's. Also over Denson's objection, Silva narrated the videotape while it was played for
the district court.
The first incident on the videotape showed Denson with another individual at Harrah's.
Silva believed that Denson was working with the other individual to distract a casino
customer in order to rob that customer. The videotape then showed a second incident in
which Denson approached a casino customer from behind. Silva conceded that no theft was
reported on that day. The third event on the videotape, according to Silva, showed Denson
moving a plastic barrier between two rows of slot machines. Also, the videotape showed a
person standing next to Denson whom Silva could not identify. Silva believed the person was
conspiring with Denson to rob casino patrons.
The fourth videotaped incident showed an unidentified person distracting a casino
customer while Denson removed coins from that customer's coin bucket. A fifth videotaped
event showed a person, often seen with Denson, distracting a casino change person. While
Denson was not present in the fifth videotaped event, Silva commented that he had seen
similar diversions occur which allowed another person, possibly Denson, to take coins from
the distracted change person.
from the distracted change person. In a sixth incident, Denson was looking at the mirrors in
the casino. Silva opined that Denson was using mirrors to locate a potential victim on the
other side of a row of slot machines. A seventh videotaped event showed Denson watching a
security guard. An eighth videotaped event showed Denson talking to a woman at Harrah's.
After viewing the videotape, the district court sentenced Denson to a five-year prison term
for each count of burglary to which Denson pleaded guilty. The district court also directed
that the two prison terms be served consecutively.
DISCUSSION
Consideration of the surveillance videotape
[Headnotes 1-5]
Few limitations are imposed on a judge's right to consider evidence in imposing a
sentence, and courts are generally free to consider information extraneous to the
pre-sentencing report. See United States v. Trigg, 392 F.2d 860, 864 (7th Cir. 1968); United
States v. Schipani, 315 F. Supp. 253, 257-60 (E.D.N.Y. 1970). Possession of the fullest
information possible concerning a defendant's life and characteristics is essential to the
sentencing judge's task of determining the type and extent of punishment. Williams v. New
York, 337 U.S. 241, 247 (1949). Further, a sentencing proceeding is not a second trial, and
the court is privileged to consider facts and circumstances that would not be admissible at
trial. Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). A district court is vested
with wide discretion regarding sentencing, but this court will reverse a sentence if it is
supported solely by impalpable and highly suspect evidence. Renard v. State, 94 Nev. 368,
369, 580 P.2d 470, 471 (1978); Silks, 92 Nev. at 94, 545 P.2d at 1161.
[Headnote 6]
We conclude that the district court's consideration of the surveillance videotape in the
present case withstands the Silks test because the district court's sentencing decision was not
founded solely upon impalpable and highly suspect evidence. At Denson's preliminary
hearing, the State presented testimony from security personnel at five casinos regarding five
separate burglaries.
At the sentencing hearing, Silva testified that he personally saw Denson in Harrah's casino
on numerous occasions and believed Denson was intending to rob casino customers. The
State was also prepared to examine three other witnesses at the sentencing hearing who were
security officers at other casinos. The security officers were prepared to testify that they were
familiar with Denson "on sight," and had recorded Denson committing crimes on
videotape.
Denson on sight, and had recorded Denson committing crimes on videotape. Further, the
district court was informed that Denson had three prior gross misdemeanor convictions that
were similar to the crimes with which Denson was charged in this case. See United States v.
Weston, 448 F.2d, 626, 633 (9th Cir. 1971), cited with approval in Silks, 92 Nev. at 94 n.2,
545 P.2d at 1161 n.2.
Accordingly, we conclude that the district court did not abuse its discretion by considering
the videotape in question.
Narration of surveillance videotape by Silva
A district judge's sentencing decision will be reversed if it is supported solely by
impalpable and highly suspect evidence. Silks, 92 Nev. at 94, 545 P.2d at 1161. As stated
above, however, Silva's narration was not the only evidence that the district court relied upon
before sentencing Denson. Therefore, we conclude that the district court did not abuse its
discretion by allowing Silva to narrate the surveillance videotape during Denson's sentencing
hearing.
Punishment for uncharged crimes
[Headnote 7]
Denson contends that the district court improperly sentenced him for prior acts which were
not supported by any evidence. We agree. Before issuing its sentencing decision, the district
court made the following comments:
[I] am absolutely convincedthe tape and Mr. Silva's testimony probably capped it all
for me, but I started wondering from the first time I saw you . . . . [I]'m absolutely
convinced you are a dangerous person.
. . . .
I think every single time you walk into a casino you have the intent to steal. Every
single time you walk into a casino. And you know what, Mr. Denson? That's burglary.
Every single time.
. . . .
Well, you're going to pay for it now. . . . You're going to pay for it now, and you're
going to pay for it for all the other times that you walked into a casino. Sort of like it
just caught up with you.
(Emphasis added.)
After sentencing Denson, the district judge told Denson that the sentence would be served
consecutively because it is for every time you have done it [committed a burglary].
[Headnotes 8, 9]
While a district court has wide discretion to consider prior uncharged crimes during
sentencing, the district court must refrain from punishing a defendant for prior uncharged
crimes. See Sheriff v. Morfin, 107 Nev. 557, 561, 816 P.2d 453, 455 (1991); see also Riker v.
State, 111 Nev. 1316, 1326-27, 905 P.2d 706, 712-13 (1995). Consideration of those crimes
is solely for the purpose of gaining a fuller assessment of the defendant's life, health, habits,
conduct, and mental and moral propensities. Williams, 337 U.S. at 245.
After reviewing the comments made by the district judge during Denson's sentencing
hearing, we conclude that Denson's sentence was improperly intended to punish Denson for
crimes with which he was not charged.
CONCLUSION
Based upon our conclusion that the district court's sentence was improperly intended to
punish Denson for crimes with which he was not charged, we reverse the district court's
sentence and remand this case to a different district judge for resentencing.
1

____________
112 Nev. 494, 494 (1996) Washoe Medical Ctr. v. Reliance Ins. Co.
WASHOE MEDICAL CENTER, INC., a Non-Profit Nevada Corporation, Appellant, v.
RELIANCE INSURANCE COMPANY, a Pennsylvania Corporation, Licensed to Do
Business in the State of Nevada, Respondent.
No. 26941
April 30, 1996 915 P.2d 288
Appeal from an order of the district court granting respondent's motion to dismiss and
denying appellant's motion for partial summary judgment. Second Judicial District Court,
Washoe County; Steven R. Kosach, Judge.
Hospital brought action against patient's uninsured motorist (UM) carrier to recover for
paying UM benefits to insured in violation of hospital lien. The district court dismissed case.
Hospital appealed. The supreme court, Young, J., held that hospital lien could not attach to
insured patient's UM benefits under her policy.
Affirmed.
__________

1
The Honorable Justice Robert E. Rose did not participate in the decision of this appeal.
Durney, Brennan and Shea, Reno, for Appellant.
Thorndal, Backus, Armstrong, and Balkenbush, and Charles L. Burcham, Reno, for
Respondent.
1. Hospitals.
Hospital lien could not attach to insured patient's uninsured (UM) benefits under her policy; statute provides for hospital lien
whenever patient claims damages from person responsible for causing the injury, statute on perfecting lien does not require notice to
UM carrier, and legislature thus did not intend hospital liens to encompass injured person's first-person UM coverage. NRS
108.590(3), 108.610(3).
2. Hospitals.
Hospital liens do not attach unless injured patient claims damages from third-party tort-feasor and patient is subsequently awarded
damages pursuant to judgment, settlement, or compromise with third-party tort-feasor or with tort-feasor's liability insurer. NRS
108.590(1), 108.610(3).
OPINION
Appellant Washoe Medical Center, Inc. (WMC) provided treatment for a patient, Kathryn Boyer (Boyer), who was injured in an
automobile accident by an uninsured driver. WMC filed notice of a hospital lien on Boyer's automobile insurance company, respondent
Reliance Insurance Company (Reliance), for Boyer's hospital costs. Reliance paid the proceeds from Boyer's uninsured motorist (UM)
policy to Boyer, rather than WMC.
WMC filed suit against Reliance pursuant to NRS 108.650, seeking to recover the amount of the UM benefits paid to Boyer. Reliance
filed a motion to dismiss, arguing that Nevada's hospital lien statute does not apply to a patient's UM benefits. WMC moved for partial
summary judgment, arguing that the express language of NRS 108.650 allows a hospital lien to reach a patient's UM benefits.
On March 9, 1995, the district court granted Reliance's motion to dismiss and denied WMC's motion for partial summary judgment.
WMC appeals, arguing that the district court erred in granting Reliance's motion to dismiss because the language of NRS 108.650 is very
comprehensive, contains no exclusions for UM insurance and must be liberally construed to promote the legislative intent.
DISCUSSION
In Edgar v. Wagner, 101 Nev. 226, 227, 699 P.2d 110, 112 (1985), this court stated that
[o]n review of a motion to dismiss, our task is to determine whether or not the challenged
pleading sets forth allegations sufficient to make out the elements of a right to relief.
(Citations omitted.) The Edgar court further stated that [t]he complaint cannot be dismissed
for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no
set of facts which, if accepted by the trier of fact, would entitle him to relief. Id. at 228, 699
P.2d at 112 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
[Headnote 1]
The question presented in this case is whether Nevada's hospital lien statute encompasses
the UM benefits paid to an insured pursuant to her automobile insurance policy.
This court has recognized that lien statutes are remedial in character and should be
liberally construed . . . . Las Vegas Plywood v. D & D Enterprises, 98 Nev. 378, 380, 649
P.2d 1367, 1368 (1982). However, this court has also indicated that [s]tatutes should be
interpreted so as to effect the intent of the legislature in enacting them; the interpretation
should be reasonable and avoid absurd results. Las Vegas Sun v. District Court, 104 Nev.
508, 511, 761 P.2d 849, 851 (1988) (citations omitted).
This court has stated that [w]hen a statute is susceptible to but one natural or honest
construction, that alone is the construction that can be given. Building & Constr. Trades v.
Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992) (citation omitted). The Building
& Construction Trades court further stated that [w]hen construing a specific portion of a
statute, the statute should be read as a whole, and, where possible, the statute should be read
to give meaning to all of its parts. Id. (citation omitted).
In applying these principles to the present case, we conclude that Nevada's hospital lien
statute, when read as a whole, indicates that the legislature did not intend hospital liens to
encompass an injured person's first-person UM coverage.
[Headnote 2]
Nevada's hospital lien statute is codified at NRS 108.590 et seq. Two provisions are
particularly applicable to our review of the present issue. First, NRS 108.590(1), the
provision addressing the extent of the hospital's lien, provides in pertinent part:
Whenever any person receives hospitalization on account of any injury, and he . . .
claims damages from the person responsible for causing the injury, the hospital has a
lien upon any sum awarded the injured person or his personal representative by
judgment or obtained by a settlement or compromise to the extent of the amount
due the hospital for the reasonable value of the hospitalization rendered before the
date of judgment, settlement or compromise.
representative by judgment or obtained by a settlement or compromise to the extent of
the amount due the hospital for the reasonable value of the hospitalization rendered
before the date of judgment, settlement or compromise.
(Emphasis added.)
The second applicable provision is NRS 108.610, which sets forth the notice requirements
for perfecting a hospital lien. NRS 108.610(3) states in pertinent part:
Prior to the date of judgment, settlement or compromise, [the hospital must] serve a
certified copy of the notice of lien by registered or certified mail upon the insurance
carrier, if known, which has insured against liability of the person, firm or corporation
alleged to be responsible for causing the injury and alleged to be liable for damages on
account thereof and from which damages are claimed.
(Emphasis added.)
We conclude that Nevada's hospital lien statute does not encompass an individual's UM
benefits for several reasons. First, the language of NRS 108.590(1) indicates that a hospital's
lien rights are effectuated only when the person who receives hospitalization claims
damages from the person responsible for causing the damage. Consequently, we conclude
that hospital liens do not attach unless an injured person claims damages from the third-party
tortfeasor and the injured person is subsequently awarded damages pursuant to a judgment,
settlement or compromise with the third-party tortfeasor or the third-party tortfeasor's
insurance carrier. See NRS 108.590(1).
Second, we conclude that NRS 108.610(3) supports our determination that UM benefits
are not encompassed by Nevada's hospital lien statute. Pursuant to NRS 108.610(3), a
hospital must perfect its hospital lien by giving notice to the insurance carrier . . . which has
insured against liability of the person . . . responsible for causing the injury and alleged to be
liable for damages on account thereof and from which damages are claimed. Nothing in
NRS 108.610(3) requires that the injured person's UM carrier receive notice of the hospital
lien. Although Reliance received notice of WMC's hospital lien in the present case, we
conclude that the legislature's omission of UM insurance carriers from the notice requirement
of NRS 108.610 indicates that the legislature did not intend Nevada's hospital lien statute to
encompass an individual's UM insurance coverage.
Our ruling in this case is consistent with another court's interpretation of a similar statute.
See Kratz v. Kratz, 905 P.2d 753 (Okla. 1995). In Kratz, the Supreme Court of Oklahoma
stated that "[t]he obvious purpose of the hospital lien statute is to encourage hospitals to
care for accident victims who might otherwise be non-paying patients." Id. at 756.
stated that [t]he obvious purpose of the hospital lien statute is to encourage hospitals to care
for accident victims who might otherwise be non-paying patients. Id. at 756. However, the
Kratz court recognized that
[a] lien that is not provided by the clear language of the statute cannot be created by
judicial fiat, for the words of the statute are the measure of the right and the remedy. A
court cannot create a lien out of a sense of fairness if the terms of the statute are found
too narrow and have not been met.
Id.
We realize that other courts have enforced hospital liens against an injured party's UM
benefits. See Dade County v. Pavon, 266 So. 2d 94 (Fla. Dist. Ct. App. 1972); Storey v.
University of New Mexico Hosp., 730 P.2d 1187 (N.M. 1986). However, we conclude that
these cases are not persuasive because the hospital lien statutes in those cases were much
broader than Nevada's hospital lien statute.
In sum, we recognize that hospital lien statutes have the general purpose of lessening the
burden imposed on hospitals by non-paying patients. See generally Carol A. Crocca,
Annotation, Construction, Operation, and Effect of Statute Giving Hospital Lien Against
Recovery from Tortfeasor Causing Patient's Injuries, 16 A.L.R.5th 262, 285 (1993).
However, this court's duty is to interpret the language of Nevada's hospital lien statute, not to
expand upon that language. Accordingly, we conclude that broadening the scope of Nevada's
hospital lien statute is a function of the legislature, not this court.
For the reasons discussed above, we affirm the district court's order granting Reliance's
motion to dismiss and denying WMC's motion for partial summary judgment.
Steffen, C. J., and Shearing, J., concur.
Rose, J., with whom Springer, J., agrees, dissenting:
NRS 108.590(1) gives a hospital the right to lien money due when a patient claims
damage from the person responsible for causing the injury . . . Because the record does not
reflect that the patient Boyer made a claim against the apparent negligent driver, the majority
concludes that the statute does not invest the hospital with a lien against Boyer's uninsured
motorist coverage.
The statutes in question were obviously written to cover the usual situation where a
patient's expenses are paid for by the third party insurance coverage of the negligent driver.
But when the negligent driver is uninsured and has no assets, the patient's first party
uninsured motorist coverage is substituted for the usual responsibility of the negligent driver.
Whether dealing with the third party insurance coverage of a negligent driver or the first
party uninsured motorist coverage of the patient, the policy behind the hospital lien
statutes is to invest a hospital with the authority to collect for services provided from the
people or insurance companies responsible for paying for such care and treatment.
third party insurance coverage of a negligent driver or the first party uninsured motorist
coverage of the patient, the policy behind the hospital lien statutes is to invest a hospital with
the authority to collect for services provided from the people or insurance companies
responsible for paying for such care and treatment. Permitting the hospital to recover that
portion of the patient's insurance benefits designed to pay for damage caused by uninsured
motorists does no violence to the statutory scheme. This construction would be the
appropriate liberal construction to carry out the intent of these remedial statutes. See Las
Vegas Plywood v. D & D Enterprises, 98 Nev. 378, 380, 649 P.2d 1367, 1368 (1982).
Reliance was on notice that Washoe Medical Center was placing a claim against Boyer's
uninsured motorist coverage. When Reliance ignored the hospital's lien and paid the
uninsured motorist proceeds directly to Boyer, it did so at its own jeopardy. I believe a
reasonable construction of the hospital lien statutes before recent amendment should permit a
hospital to assert a lien against the uninsured motorist coverage of a patient, even though
uninsured motorist coverage is not specifically mentioned in the statutes. Accordingly, I
disagree with the majority and would reverse this summary judgment entered in Reliance's
favor.
____________
112 Nev. 499, 499 (1996) Whitney v. State
HAROLD ROBERT WHITNEY, JR., Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 27024
April 30, 1996 915 P.2d 881
Appeal from a judgment of conviction, entered pursuant to a jury verdict, of one count of
receiving, possessing or withholding stolen goods. Fourth Judicial District Court, Elko
County; Jack B. Ames, Judge.
The supreme court, Shearing, J., held that prosecutor's comments on defendant's failure to
call witnesses impermissibly shifted burden of proof to defense.
Frederick B. Lee, Jr., Public Defender and Frederick H. Leeds, Deputy Public Defender,
Elko County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D.
D. Woodbury, District Attorney and John S. McGimsey, Deputy District Attorney, Elko
County, for Respondent.
1. Criminal Law.
Prosecutor was not entitled to comment on defendant's failure to produce witnesses who might have testified that defendant was
not at party at which he allegedly stole rifle or that state's witness was the one who stole rifle; comments impermissibly shifted burden
of proof to defense.
2. Criminal Law.
It is generally improper for prosecutor to comment on defense's failure to produce evidence or call witnesses; such comment
impermissibly shifts burden of proof to defendant.
OPINION
On Sunday, April 3, 1994, Mr. Dennis Bohall returned home to his residence in Elko to discover that his deer rifle was missing from
his bedroom. On Monday, April 4, 1994, appellant Harold Whitney sold Bohall's deer rifle to an employee of Sierra Jewelry and Loan, an
Elko pawn shop, for $130.
Whitney was arrested and charged with one count of receiving, possessing, or withholding stolen goods, a felony as defined by NRS
205.275. A jury trial was held. The State attempted to demonstrate that Whitney knew the rifle was stolen by introducing evidence
suggesting that Whitney himself stole the rifle. While Bohall had been out of town, his 17-year-old daughter, Melinda Bohall had given a
party for her young friends on Friday, April 1, and then again on April 2, 1994. One of the partygoers, Chad Gibson, testified that Whitney
had been at the Bohalls' residence on either April 1 or 2, 1994, thus implying that Whitney had the opportunity to steal the rifle. The jury
found Whitney guilty as charged. Whitney was sentenced to serve two years in the Nevada State Prison.
On appeal, Whitney claims that the district court erred in allowing the prosecutor, during closing argument, to repeatedly call attention
to the defense's lack of witnesses. The State concedes that while the prosecutor did not directly comment on Whitney's failure to testify, he
did refer to the absence of witnesses.
[Headnote 1]
During closing argument, defense counsel pointed out that the prosecutor failed to call other witnesses who were at Melinda Bohall's
party who might have testified that Whitney was not at the party or that Chad Gibson, the State's only witness who was at the party,
was the one who stole the rifle and gave the rifle to an unsuspecting Whitney.
at the party, was the one who stole the rifle and gave the rifle to an unsuspecting Whitney. In
response, the prosecutor stated the following to the jury:
Now, as far as these hypotheticals about what Chad Gibson might have doneand
he may have a mind to do that, Ladies and Gentlemen, we don't know. That's
speculation. We also don't know whether or not the defendant received it as gift. I can
say that too. Where is the evidence to show that he received it as a gift? Did you hear
any evidence to show that he received it as a gift? No.
What you heard the last two days was that he [Whitney] was at the party,
undisputed. Where were all these witnesses to come forward and say, no, he wasn't at
the party?
. . . .
Where were all these witnesses? There were 50 people on that list. And then
Mr.Miss Melindawhat's her nametestified. Where were all those witnesses to
come up and say, no, Mr. Gibson wasn't there. No, Mr.the defendant wasn't there.
No, the defendant wasn't there. No, I didn't see him. This and that.
I would suggest the reason that those witnesses weren't here is because they couldn't
add anything to the case. If there were 50 witnesses that didn't see Mr.the defendant
there, why would they be a witness? Why would they be asked to testify?
I would suggest that the reason that the car was parked in the back was someone
could bet [sic] access to the car. And I would suggest, why would Chad Gibsonof all
people, why would he come back in and steal the weapon? I would assume that if there
is 50 people there or whatever, and he gets kicked out, then there is going to be 50
people to know than [sic] he is no longer welcome there.
He gets kicked out the front door with 50 people, then comes back in the back door
and grabs a weapon and leaves? That does not make a heck of a lot of sense, because
you would surmise that if 50 people saw him or 10 people saw him there or 35 people
saw him there, knew he was no longer welcome, they would have called it to the
attention of Miss Bohall and she would have testified about that.
That didn't happen. The reason it didn't happen is because there is no evidence to
show that Mr. Chad Gibson came back.
The prosecutor repeatedly referred to the defense's failure to produce evidence or witnesses in
support of Whitney's defense theory that Whitney was not at the party and Chad Gibson stole
the rifle.
[Headnote 2]
In Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105-06 (1990), this court stated the
following:
It is generally also outside the boundaries of proper argument to comment on a
defendant's failure to call a witness. Colley v. State, 98 Nev. 14, 16, 639 F.2d 530, 532
(1982). This can be viewed as impermissibly shifting the burden of proof to the
defense. Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). Such shifting is
improper because [i]t suggests to the jury that it was the defendant's burden to produce
proof by explaining the absence of witnesses or evidence. This implication is clearly
inaccurate. Id. (citing Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Winship, 397
U.S. 358 (1970)).
Accordingly, it is generally improper for a prosecutor to comment on the defense's failure to
produce evidence or call witnesses as such comment impermissibly shifts the burden of proof
to the defense. Id. It is clear from Ross that it was error for the district court to allow the
prosecutor to proceed, over objection, in commenting on the defendant's failure to produce
evidence and call people who were at Melinda Bohall's party as witnesses. See United States
v. Williams, 739 F.2d 297, 299 (7th Cir. 1984). Given this impermissible burden-shifting by
the prosecutor, we reverse Whitney's conviction and remand to the trial court; accordingly,
we need not address Whitney's other claims of error.
Young, Springer, and Rose, JJ., concur.
The majority sees this case as that of a prosecutor seeking to shift the burden of proof to
the defendant below. I see it as a case of fair comment by a prosecutor after defense counsel
attempted to demonstrate that the State failed to properly investigate the case by not calling
other witnesses who attended Melinda Bohall's party. Indeed, the prosecutor suggested that:
the reason that those witnesses weren't here is because they couldn't add anything to the case.
If there were 50 witnesses that didn't see Mr.the defendant there, why would they be a
witness? Why would they be asked to testify? It appears to me that the prosecutor is fairly
responding to defense counsel's comments, indicating that the reason the State did not call
other witnesses is because they had nothing to contribute to the evidence. In any event, I see
this case as overturning a jury verdict by making a mountain out of a molehill. I therefore
dissent.
____________
112 Nev. 503, 503 (1996) Wesley v. State
HERBERT DWAYNE WESLEY, Appellant, v. THE STATE OF NEVADA, Respondent
No. 27175
April 30, 1996 916 P.2d 793
Appeal from a judgment of conviction pursuant to a jury verdict of one count of robbery
with a deadly weapon and two counts of murder with a deadly weapon, and from a sentence
of death. Eighth Judicial District Court, Clark County; A. William Maupin, Judge.
Defendant was convicted in the district court of robbery with a deadly weapon and two
counts of murder with a deadly weapon in connection with stabbing of his father and
stepmother. Defendant appealed. The supreme court held that: (1) trial judge was justified in
refusing to recuse deputy district attorney due to her relationship with judge; (2) trial court
was not manifestly wrong in concluding that defendant's prior convictions could be admitted
if he testified; (3) trial court was justified in denying motion for continuance due to state's late
endorsement of witnesses; (4) prior bad acts evidence was admissible; (5) autopsy
photographs of victims were admissible; (6) record did not support defendant's contention
that prosecutor implied that prosecution witness was threatened by defendant; (7) although
apparently improper, prosecutor's closing statement regarding reasonable doubt was harmless;
(8) evidence supported finding of depravity of mind aggravator; (9) instruction on that
aggravator was adequate; (10) special verdict form on that aggravator was not
unconstitutionally vague; (11) instruction regarding minimum term defendant would serve if
he was sentenced to life with possibility of parole was adequate; (12) instruction regarding
commutation process was proper; (13) antisympathy instruction was not improper; and (14)
victim impact evidence in form of testimony of friends and neighbors did not violate
defendant's Eighth Amendment rights.
Affirmed.
[Rehearing denied October 17, 1996]
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy, Clark County, for
Appellant.
James Tufteland, Chief Deputy, and David Schwartz, Deputy, Clark County, for Respondent.
1. Criminal Law.
Trial judge was justified in refusing to recuse deputy district attorney due to judge's relationship with attorney; while defendant
contended that parties had personal relationship, judge explained that relationship was merely professional,
and defendant failed to present any nonspeculative evidence that judge had anything more than
professional relationship with deputy district attorney.
that parties had personal relationship, judge explained that relationship was merely professional, and defendant failed to present any
nonspeculative evidence that judge had anything more than professional relationship with deputy district attorney.
2. Judges.
Right to fair trial incorporates right to have trial presided over by judge who was free from bias or prejudice. Bias and
prejudice means, among other things, undue favoritism toward one of litigants. U.S. Const. amend. 6.
3. Criminal Law.
Courts must avoid any appearance of partiality, not merely to secure confidence of litigants in case, but to assure that fair results,
meriting respect, follow every judicial determination.
4. Witnesses.
Trial court was not manifestly wrong in ruling that defendant's prior convictions could be admitted for impeachment purposes if
defendant testified. Defendant was charged with robbery and murder with deadly weapon, and prior convictions were for robbery and
assault with deadly weapon. NRS 50.095.
5. Criminal Law.
Decision to admit evidence is within sound discretion of trial court and will not be disturbed unless it is manifestly wrong.
6. Witnesses.
Evidence of prior conviction may be admitted for purpose of impeachment if conviction involved sentence of death or
imprisonment for more than one year and conviction is not more than ten years old. NRS 50.095.
7. Witnesses.
Evidence of prior convictions for crimes that reflect untruthfulness is admissible after balancing of probative value and prejudicial
effect of convictions.
8. Criminal Law.
Trial court was justified in denying murder defendant's motion for continuance, which was sought due to fact that state had
prevailed on three motions to endorse witnesses, with result that witness list was increased from 53 witnesses to 77 witnesses during
two weeks preceding trial. Defendant had notice of additional witnesses at least one week before trial and three weeks before penalty
hearing, and defendant could clearly anticipate added witnesses' testimony since added witnesses were police department employees,
and family members or associates of victims.
9. Criminal Law.
Decision to grant or deny trial continuance is within sound discretion of trial court and will not be disturbed absent clear abuse of
discretion.
10. Criminal Law.
Defendant failed to establish that he was prejudiced by trial court's limitation on voir dire examination of one prospective juror,
who was removed by peremptory challenge. Defendant failed to assert on appeal any jury partiality or bias on part of empanelled jury.
11. Criminal Law.
When defendant claims prejudice based on wasted peremptory challenge, claim must focus on whether empanelled jury was
impartial; if empanelled jury was impartial, defendant cannot prove prejudice.
12. Criminal Law.
In defendant's prosecution for robbery and murder, prior bad acts evidence that defendant was kicked out of place of employment
of mother of his child and that defendant attempted to sell appliances to someone and buy illegal drugs was admissible. One of
defendant's victims had close relationship with child and may have become upset when mother indicated that child would no longer be
visiting, and attempted sale of appliances, which came from victims' home, occurred on day of murders and was relevant to defendant's
apparent motive to buy drugs.
13. Criminal Law.
When admitting prior bad acts evidence, trial court should conduct recorded hearing that allows meaningful opportunity to review
court's exercise of discretion.
14. Criminal Law.
Trial court adequately reviewed admissibility of prior bad acts evidence on the record so as to allow for meaningful review; when
defendant objected to prosecutor's reference to such evidence during opening statement, bench conference was conducted outside
presence of jury and on the record, and judge, after hearing defendant's argument that evidence was inadmissible, referred to discussion
that occurred at unrecorded bench conference and specifically responded to that argument.
15. Criminal Law.
Trial court was justified in concluding that probative value of autopsy photographs of murder victims outweighed their potential
for prejudice. Photographs assisted jury in understanding nature and quality of wounds inflicted by stabbings and were used to explain
findings of autopsy.
16. Criminal Law.
Admission of photographs of victims is within sound discretion of trial court and will be disturbed only if that discretion is abused.
17. Criminal Law.
Photographic evidence is admissible unless photographs are so gruesome as to shock and inflame the jury.
18. Criminal Law.
Record did not support defendant's contention that prosecutor's questioning of witness on redirect implied that witness was
threatened by defendant not to testify; redirect came after defense counsel asked witness on cross-examination about being in custody
until he testified at trial, and questioning on redirect was thus proper effort to rehabilitate witness' credibility.
19. Criminal Law.
Unless substantial credible evidence is presented that defendant is source of witness intimidation, implying that defendant
intimidated witness is reversible error.
20. Criminal Law.
Reasonable doubt instruction, which had previously been upheld by state supreme court, was constitutionally sound since
reasonable likelihood did not exist that jury applied instruction in unconstitutional manner.
21. Criminal Law.
Although apparently improper, prosecutor's closing statement that reasonable doubt did not exist if you feel it in your stomach
and if you feel it in your heart did not materially alter jury's consideration of reasonable doubt as defined by court, and any error was
harmless.
22. Criminal Law.
Reasonable doubt is subjective state of near certitude.
23. Criminal Law.
Any error in submitting particular aggravator to jury during sentencing phase in capital case was harmless in view of fact that jury
did not find that aggravator to be present.
24. Homicide.
Evidence supported finding during penalty phase in capital murder case that depravity of mind aggravator was present in killing
of defendant's father and stepmother; both victims were stabbed multiple times and with significant force. NRS 200.033(8).
25. Homicide.
Depravity of mind aggravator applies in capital cases if torture, mutilation, or other serious and depraved physical abuse beyond
act of killing itself is shown. NRS 200.033(8).
26. Homicide.
Jury instruction on depravity of mind aggravator during sentencing phase in capital murder case was adequate in that jury was
required to find torture, mutilation, or excessive abuse beyond act of killing, and court also defined torture and mutilation. NRS
200.033(8).
27. Criminal Law.
States wishing to impose death penalty must limit jury's discretion by providing clear and objective standards and specific and
detailed guidance.
28. Criminal Law.
States must make process for imposing death penalty rationally reviewable.
29. Criminal Law.
Death sentencing scheme must narrow class of persons eligible for death penalty by providing sensible basis for sentencer to
distinguish between defendants who deserve death penalty and those who do not.
Special verdict form used for depravity of mind aggravator during sentencing phase in capital murder case was not
unconstitutionally vague due to its disjunctive format, i.e., form required finding that murder involved torture, depravity of mind, or
mutilation of victims. U.S. Const. amend. 14; NRS 200.033(8).
Instruction under statute regarding circumstances in which death penalty could be imposed in capital murder case did not
unconstitutionally shift burden to defendant to establish mitigating circumstances. NRS 200.030(4).
32. Criminal Law.
Jury instruction in capital murder case that defendant would serve at least 20 years in prison before he would be eligible for parole
if he was sentenced to life imprisonment with possibility of parole was accurate statement of law, despite defendant's contention that
court should have instructed jury that use of deadly weapon enhancement would automatically double any sentence. Defendant would
be eligible for parole after ten years if sentenced to life imprisonment with possibility of parole for first-degree murder, while use of
deadly weapon would result in mandatory sentence enhancement equal to original sentence. NRS 193.165(1), 200.030(4)(b).
33. Criminal Law.
Trial court may inform jury to potential date of parole for defendant, but must do so accurately.
Jury instruction during penalty phase in capital case regarding commutation process did not violate either United States or Nevada
Constitution.
35. Criminal Law.
When viewed in conjunction with court's instruction to jury during penalty phase in capital case that jury should consider any
aspect of circumstances of offense proffered as basis for sentence less than death, trial court's antisympathy instruction did not violate
defendant's right to present and have jury consider mitigating evidence.
36. Criminal Law.
During penalty phase in capital murder trial, admission of victim impact evidence in form of testimony of victims' friends and
neighbors did not violate defendant's Eighth Amendment rights. U.S. Const. amend. 8.
37. Criminal Law.
Questions regarding admissibility of evidence during penalty phase of capital trial are left to discretion of trial court and will not
be disturbed absent abuse of discretion.
OPINION
Per Curiam:
A jury convicted appellant Herbert Dwayne Wesley (Wesley) of one count of robbery with a deadly weapon and two counts of
murder with a deadly weapon. The jury sentenced Wesley to death. For the reasons set forth below, we affirm the judgment of conviction
and sentence.
FACTS
On Tuesday, March 10, 1992, Robert Walker (Walker), a neighbor of Ike and Doella Wesley's (Ike and Doella), noticed Wesley
driving Ike's truck. Because Walker had never seen Wesley driving Ike's truck before, Walker asked Wesley where Ike was. Wesley, who
was Ike's son and Doella's stepson, resided in Ike and Doella's home. He said Ike was at work. Wesley then entered Ike and Doella's home
after unlocking the security bars and front door. Later that day, Walker knocked on the door of Ike and Doella's home to contact Ike. After
no one responded to the knocks, Walker looked through a window and noticed Ike's body lying on the floor.
Daniel Holstein (Holstein), a crime scene analyst for the Las Vegas Metropolitan Police Department, went to Ike and Doella's home
to investigate the apparent homicide. Holstein found Ike's body in the home's dining roomJkitchen and found Doella's
body covered by a blanket in a bedroom opposite the kitchen.
found Ike's body in the home's dining room/kitchen and found Doella's body covered by a
blanket in a bedroom opposite the kitchen. Holstein obtained fingerprints and blood samples
from objects in the house. Holstein also noticed a television antenna on the floor of the
residence and a tabletop with a dust pattern, both indicating that a television had been
removed from the table.
Officer Robert Plummer (Plummer) responded to Ike and Doella's home and left with
Ike's grandson, Anthony Carter (Carter), to find Wesley. Plummer and Carter went to a
home where Ike's truck was parked and later saw Wesley cautiously approach the truck.
Plummer took Wesley into custody and transported him to Ike and Doella's home. Detective
Norm Ziola (Ziola) then questioned Wesley. Wesley stated that he had not been at the
home since Sunday, March 8, 1992, when he borrowed Ike's truck. Ziola noticed abrasions on
Wesley's hands. Ziola then arrested Wesley, impounded his clothes and transported him to the
Clark County Detention Center.
Dr. Robert Jordan (Jordan) performed autopsies on Ike's and Doella's bodies on March
11, 1992. Jordan discovered that Ike was stabbed approximately eighteen times in the head,
neck, chest, abdomen and right hand. According to Jordan, Doella was stabbed thirty-six
times, including twenty-six stab wounds in her chest and shoulders. Jordan concluded that Ike
and Doella were killed between twenty-four and forty-eight hours before the autopsy, and that
the killings occurred relatively contemporaneously.
On May 5, 1992, Wesley was charged by information with one count of robbery with a
deadly weapon and two counts of murder with a deadly weapon. The State filed a notice of
intent to seek the death penalty.
At trial, Roderick Rancher (Rancher) testified that he knew Wesley for nearly ten years
and that at 7 a.m. on March 9, 1992, Wesley asked Rancher if he wanted to buy a VCR,
television or microwave. Rancher also testified that Wesley asked him where he could buy
drugs. Wesley contacted Rancher again later in the day about purchasing the appliances.
Rancher then went to Ike and Doella's home to buy the appliances. Wesley was wearing a
blue robe and a towel was wrapped around his hand. Rancher saw blood on the robe and the
towel. Wesley told Rancher that he cut his hand and spilled blood on the robe when he was
cutting chicken.
Jackie Blood (Blood) testified that she and Wesley had a child together and that she and
the child spent a great deal of time with Ike and Doella. On March 8, 1992, Blood and Wesley
had a heated argument at Blood's place of employment, and Wesley was forced to leave the
establishment. Blood then notified Ike and Doella that her child would no longer spend time
at their house.
Doella that her child would no longer spend time at their house. On March 10, 1992, Blood
saw Wesley in the front yard of Ike and Doella's home in a blue robe. Blood also stated that
she never knew Ike and Doella to allow Wesley to use their truck. On cross-examination,
Blood admitted that she was an ex-felon and that she did not tell the police in her initial
statement that she saw Wesley on Tuesday morning in Ike and Doella's front yard.
A crime lab expert testified regarding blood tests that were conducted at a crime
laboratory. Based on a phosphoglucomutase sub-typing system, the expert was able to
distinguish Ike's, Doella's and Wesley's blood. The expert concluded that the blood taken
from objects in Ike and Doella's home could have been Wesley's blood. Blood from the socks
Wesley was wearing when he was arrested was from Doella, Ike or Wesley. Based upon the
evidence presented, the jury found Wesley guilty on all counts.
During the penalty phase of the trial, the prosecution presented evidence that Wesley was
convicted of assault with a deadly weapon and robbery in 1983. Also, Walker, Blood and one
of Ike's co-workers testified that Ike was a fine friend and church member, and would be
severely missed. Two witnesses testified that Doella was a fine person and they would miss
her greatly. One witness stated that Wesley should die for killing Doella. Numerous witnesses
testified that they did not think Wesley should receive the death penalty for his actions. At the
conclusion of the penalty phase, the jury sentenced Wesley to death.
LEGAL DISCUSSION OF GUILT PHASE
Wesley contends that nine errors occurred during the guilt phase of his trial. We conclude
that none of Wesley's nine assignments of error merit reversal of Wesley's conviction.
1. Deputy district attorney's recusal
[Headnotes 1-3]
Before trial, Wesley's counsel requested that the district court recuse a deputy district
attorney from this case because of an alleged personal relationship between the female deputy
district attorney and the male district judge. The right to a fair trial incorporates the right to
have a trial presided over by a judge who is free from bias or prejudice. Bias and prejudice
mean, among other things, undue favoritism toward one of the litigants. See State v. Hill, 848
P.2d 1375, 1381-83 (Ariz. 1993). Further, courts must avoid any appearance of partiality, not
merely to secure the confidence of litigants in a case, but to assure the public that fair results,
meriting respect, follow every judicial determination. NCJC Canon 2; People v. Hrapski, 718
P.2d 1050, 1054 (Colo. 1986).
The district judge in this case admitted that a relationship existed between the deputy
district attorney and himself, but explained that the relationship was merely professional.
Wesley failed to present any non-speculative evidence that the judge had anything more than
a professional relationship with the deputy district attorney. Also, the judge stated under oath
that as an attorney for twenty-two years before taking the bench, and as a judge and active
member of the State Bar, he personally knows nearly every attorney in Clark County. Without
more proof of an intimate relationship, we conclude that the judge in this case acted properly
by refusing to recuse the deputy district attorney.
1

2. Wesley's prior criminal record
[Headnotes 4-7]
Wesley requested that the district court exclude any evidence of his 1983 convictions for
robbery and assault with a deadly weapon. The district court ruled that the convictions could
be admitted for the purpose of impeachment if Wesley testified. Wesley did not testify, and
the prior convictions were not admitted during the guilt phase of the trial. Wesley argues that
the denial of his motion to suppress his prior convictions was improper. The decision to
admit evidence is within the sound discretion of the district court and will not be disturbed
unless it is manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
Evidence of a prior conviction may be admitted for the purpose of impeachment if the
conviction involved a sentence of death or imprisonment for more than one year, and the
conviction is not more than ten years old. NRS 50.095. Also, the Nevada Legislature intended
district courts to admit evidence of prior convictions for crimes that reflect untruthfulness
after balancing the probative value and prejudicial effect of the convictions. Yates v. State, 95
Nev. 446, 449-50, 596 P.2d 239, 241 (1979). Having fully reviewed Wesley's contention, we
conclude that the district court was not manifestly wrong in ruling that Wesley's prior
convictions could be admitted if Wesley testified. See id.; Anderson v. State, 92 Nev. 21, 23,
544 P.2d 1200, 1201 (1976).
3. Request for a continuance of trial
[Headnote 8]
After the State prevailed on three motions to endorse names, the witness list for Wesley's
trial was increased from fifty-three witnesses to seventy-seven witnesses during the two
weeks preceding trial.
__________

1
This opinion does not reach the question of whether the district court has the authority to recuse a certain
member of the district attorney's office from a case.
ceding trial. Wesley objected to the endorsements and requested a continuance of trial
because the preparation necessary for effective assistance of counsel allegedly could not be
completed before the trial date. Wesley's request for a continuance of trial was denied; and
Wesley now argues that the district court's endorsement of additional witnesses, coupled with
the denial of his motion to continue the trial, denied Wesley effective assistance of counsel.
[Headnote 9]
The decision to grant or deny trial continuances is within the sound discretion of the
district court and will not be disturbed absent a clear abuse of discretion. Doyle v. State, 104
Nev. 729, 731, 765 P.2d 1156, 1157 (1988). In three separate decisions, we have affirmed the
endorsement of witness names one to four days before trial. See Armstrong v. State, 92 Nev.
675, 557 P.2d 272 (1976); Hess v. State, 73 Nev. 175, 313 P.2d 432 (1957); State v. Teeter,
65 Nev. 584, 200 P.2d 657 (1948). In the present case, Wesley had notice of the additional
witnesses at least one week before trial and three weeks before the penalty hearing. Further,
Wesley could clearly anticipate the type of testimony that would be elicited from the added
witnesses because the witness list showed that nearly all the added witnesses were employees
of the Las Vegas Police Department, the Parole and Probation Department or Ike's former
employer. The other added witnesses were family members of the victims. Therefore, we
conclude that the district court did not abuse its discretion by denying Wesley's request for a
continuance.
4. Jury voir dire
[Headnotes 10, 11]
During jury selection, the district court interrupted questioning and directed counsel to
refrain from inquiring into the details of a certain juror's prior jury service. The juror was later
removed through a peremptory challenge. When a defendant claims prejudice based on a
wasted peremptory challenge, the claim must focus on whether the impaneled jury was
impartial. Ross v. Oklahoma, 487 U.S. 81, 86 (1988). If the impaneled jury is impartial, the
defendant cannot prove prejudice. Id. Because Wesley failed to assert any jury partiality or
bias in this appeal, we conclude that he was not prejudiced by the district court's limitation on
the voir dire examination of one juror.
5. The State's opening statement
[Headnote 12]
During the State's opening statement, the prosecutor referred to a timeline chart that
included two of Wesley's prior bad acts: (1) when Wesley was kicked out of Blood's place of
employment after their fight, and {2) Wesley's attempts to sell appliances to Rancher and
buy illegal drugs.
after their fight, and (2) Wesley's attempts to sell appliances to Rancher and buy illegal drugs.
Wesley objected, arguing that the two acts were inadmissible and they were improperly
shown to the jury before the court made a ruling on their admissibility. The district court
overruled Wesley's objection, and the acts were later admitted during trial.
[Headnotes 13, 14]
The admissibility of evidence is within the sound discretion of the trial court and will not
be disturbed unless manifestly wrong. Petrocelli, 101 Nev. at 52, 692 P.2d at 508. When
admitting prior bad act evidence, the district court should conduct a recorded hearing that
allows a meaningful opportunity to review the district court's exercise of discretion.
Armstrong v. State, 110 Nev. 1322, 1324, 885 P.2d 600, 601 (1994); Petrocelli, 101 Nev. at
51, 692 P.2d at 508. We conclude that the district court adequately reviewed the admissibility
of Wesley's prior bad acts on the record. After the opening statement, a bench conference was
conducted outside the presence of the jury and on the record. Wesley presented his argument
that the acts were inadmissible; and the judge, referring to a discussion that occurred at an
unrecorded bench conference, specifically responded to the argument.
We further conclude that the district court did not abuse its discretion by ruling to admit
the two acts in question. After Wesley was kicked out of Blood's place of employment, Blood
called Ike and Doella and informed them that her son would no longer be visiting them due to
Wesley's acts. Because Ike had a close relationship with Blood's child, he may have become
upset and a confrontation between Wesley and Ike may have ensued. Because this incident
occurred a day before the killings, it was probative of Wesley's probable confrontation with
Ike. Also, the statements that Wesley made to Rancher were highly probative of Wesley's
intent and motive to commit the charged robbery. Wesley attempted to sell appliances from
Ike and Doella's home on the day the murders occurred, and Wesley's apparent motive was to
buy illegal drugs. See NRS 48.045(2).
6. Autopsy photographs of the victims
[Headnotes 15-17]
The district court, after reviewing the autopsy photographs of Ike and Doella, determined
their probative value was not outweighed by their prejudicial effect and allowed certain
photographs to be presented during Jordan's testimony. Wesley contends that the admission
of the photographs was impermissably prejudicial. The admission of photographs of victims
is within the sound discretion of the trial court and will be disturbed only if that discretion
is abused.
within the sound discretion of the trial court and will be disturbed only if that discretion is
abused. Redmen v. State, 108 Nev. 227, 231-32, 828 P.2d 395, 398 (1992). Photographic
evidence is admissible unless the photographs are so gruesome as to shock and inflame the
jury. See Cutler v. State, 93 Nev. 329, 332, 566 P.2d 809, 811 (1977). The photographs
admitted in this case assisted the jury in understanding the nature and quality of the wounds
inflicted by the stabbings and were used by Jordan to explain the findings of his autopsy.
While the photos may have been graphic and troubling to human sensibility, we conclude that
the district court did not abuse its discretion by concluding that their probative value
outweighed their potential for prejudice. Robins v. State, 106 Nev. 611, 623, 798 P.2d 558,
566 (1990), cert. denied, 499 U.S. 970 (1991).
7. Threats and witness intimidation
[Headnotes 18, 19]
Wesley contends that the prosecutor's questioning of Rancher implied that Rancher was
threatened by Wesley not to testify. The State argues that the questioning of Rancher focused
on his reluctance to testify and never implied that violence was threatened by Wesley. Unless
substantial credible evidence is presented that a defendant is the source of witness
intimidation, implying that a defendant intimidated a witness is reversible error. Lay v. State,
110 Nev. 1189, 1193, 886 P.2d 448, 450-51 (1994). Here, Rancher stated that his own father's
murder was the reason he was reluctant to testify. Also, Wesley's counsel opened the door to
the prosecutor's disputed questions when, on cross examination, Wesley's counsel questioned
Rancher about being in custody until he testified at the trial. Further, the prosecutor never
stated that Wesley threatened or intimidated Rancher. Therefore, we conclude that the district
attorney properly questioned Rancher on redirect examination to rehabilitate Rancher's
credibility and did not imply that Wesley had threatened him.
8. Reasonable doubt instruction
[Headnote 20]
Before closing arguments, the district court provided the jury with a reasonable doubt
instruction that was adapted from NRS 175.191 and NRS 175.211. We upheld the same
instruction in Bollinger v. State, 111 Nev. 1110, 901 P.2d 671 (1995), and Lord v. State, 107
Nev. 28, 806 P.2d 548 (1991). After reviewing Wesley's assertions regarding the specific
language of the instruction, we conclude that the reasonable doubt instruction was
constitutionally sound because a reasonable likelihood did not exist that the jury applied the
instruction in an unconstitutional manner.
manner. See Victor v. Nebraska, 511 U.S. 1, 6, 114 S. Ct. 1239, 1243 (1994).
9. Prosecutor's argument regarding reasonable doubt
[Headnotes 21, 22]
During the prosecutor's closing statement, he argued, [I]f you feel it in your stomach and
if you feel it in your heart . . . then you don't have reasonable doubt. Wesley contends that
this statement improperly elaborated on the definition of reasonable doubt. Reasonable doubt
is a subjective state of near certitude. McCullough v. State, 99 Nev. 72, 75, 657 P.2d 1157,
1158 (1983). However, when prosecutors attempt to rephrase the reasonable doubt standard,
they venture into troubled waters. Howard v. State, 106 Nev. 713, 721, 800 P.2d 175, 180
(1990). On this basis, the prosecutor's comment appears improper. However, we conclude
that the statement was harmless. The prosecutor referred to the language of the instruction
before he made the comment to which Wesley now objects. Accordingly, we conclude that
the jury was properly instructed on reasonable doubt, and the prosecutor's statement did not
materially alter the jury's consideration of reasonable doubt.
LEGAL DISCUSSION OF PENALTY PHASE
Wesley contends that seven errors occurred during the penalty phase of his trial. We
conclude that none of Wesley's seven assignments of error merit vacating Wesley's sentence.
1. Aggravating circumstances
Pursuant to NRS 200.033(2)-(8), the State sought to present evidence of four aggravating
circumstances during the penalty phase of Wesley's trial. Wesley's counsel filed a motion to
strike the aggravating circumstances. Although the district court modified the language of one
aggravator to comport with the facts of this case, the motion to strike aggravators was denied,
and four aggravating circumstances were read to the jury.
2
The jury concluded that
aggravators one and four were present in the murder of Doella and aggravators one,
three and four were present in the murder of Ike.
__________

2
The aggravators presented to the jury were as follows:
1. The murder was committed by a person who was previously convicted of a felony involving the use or
threat of violence to the person of another, to-wit: Assault With a Deadly Weapon and Robbery.
2. The murder was committed by a person who knowingly created a great risk of death to more than one
person by means of a course of action which would normally be hazardous to the lives of more than one
person.
3. The murder was committed while the person was engaged in the commission of or an attempt to
commit any robbery.
4. The murder involved torture, depravity of mind or the mutilation of the victim.
cluded that aggravators one and four were present in the murder of Doella and aggravators
one, three and four were present in the murder of Ike. Wesley now contends that aggravators
two and four were improperly submitted to the jury.
a. Aggravating circumstance number two
[Headnote 23]
Even if aggravator number two was erroneously submitted to the jury, we conclude the
submission was harmless error. The jury did not find aggravator two present in the killing of
either Ike or Doella. Accordingly, aggravator two did not contribute to Wesley's sentence.
b. Aggravating circumstance number four
[Headnote 24, 25]
Wesley contends that the depravity of mind aggravator was improperly given to, and
considered by, the jury. The depravity of mind aggravator applies in capital cases if torture,
mutilation or other serious and depraved physical abuse beyond the act of killing itself is
shown. Robins, 106 Nev. at 629, 798 P.2d at 570.
We conclude that sufficient evidence showed that Wesley tortured and inflicted serious
and depraved physical abuse on his father and stepmother beyond the act of killing itself. Ike
was stabbed eighteen times. Jordan testified that Ike's skull was chipped by the force of
various stab wounds. Doella's thirty-six stab wounds covered her body. Accordingly, we
conclude that the depravity of mind aggravator was properly submitted to the jury. See
Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989) (holding depravity of mind aggravator
was sustainable where two victims were stabbed multiple times, but reversed sentence due to
jury's consideration of other improper aggravators); Williams v. State, 103 Nev. 227, 737
P.2d 508 (1987) (finding depravity of mind present where victim was stabbed thirty-eight
times and coroner testified that evidence of torture was present).
2. Depravity of mind instruction
[Headnote 26]
As to aggravating circumstance number four, Wesley challenges the sufficiency of the
instruction that defined a murder involving torture, depravity of mind or the mutilation of the
victim. The district court gave the following instruction to the jury:
INSTRUCTION NO. 11
The condition of mind described as depravity of mind is characterized by an
inherent deficiency of moral sense and rectitude.
characterized by an inherent deficiency of moral sense and rectitude. It consists of evil,
corrupt and perverted intent which is devoid of regard for human dignity and which is
indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or
inhuman.
To find an aggravating circumstance based on depravity of mind you must
additionally find that there was torture, mutilation, or other serious and depraved
physical abuse beyond the act of killing itself.
Jury instruction number twelve provided a series of facts that the jury had to find before
concluding that torture was present. Jury instruction number thirteen defined mutilate. The
jury returned a special verdict indicating that they found the murder involved torture,
depravity of mind or the mutilation of the victim. Wesley challenges the sufficiency of the
instructions and the special verdict.
[Headnotes 27-29]
States wishing to impose the death penalty must limit the jury's discretion by providing
clear and objective standards and specific and detailed guidance. Godfrey v. Georgia, 446
U.S. 420, 428 (1980). Also, states must make the process for imposing the death penalty
rationally reviewable. Id. These principles are intended to minimize the risk of wholly
arbitrary and capricious action. Lewis v. Jeffers, 497 U.S. 764, 774 (1990). Further, the
sentencing scheme must narrow the class of persons eligible for the death penalty by
providing a sensible basis for the sentencer to distinguish between defendants who deserve
the death penalty and those who do not. Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534,
1542 (1993).
This court has narrowly construed NRS 200.033(8), the depravity of mind aggravator, to
include torture, mutilation or other serious and depraved physical abuse beyond the act of
killing itself. Robins, 106 Nev. at 629, 798 P.2d at 570. In Robins, we ruled that the inclusion
of torture, mutilation or other serious and depraved abuse beyond the act of killing in a
finding of depravity of mind effectively channels the sentencer's discretion. Id.
We conclude that the instructions offered in this case satisfied the requirements of Godfrey
and Robins. The jury was required to find torture, mutilation or excessive abuse beyond the
act of killing in order to find depravity of mind. Torture and mutilation were described in
separate instructions. Accordingly, we conclude that the jury's discretion was sufficiently
narrowed. See Robins, 106 Nev. at 629, 798 P.2d at 570.
[Headnote 30]
Wesley also challenges the special verdict form used by the jury because its disjunctive
format did not reveal whether the jury found torture, mutilation or excessive abuse beyond
the act of killing. A similar challenge was rejected in Neuschafer v. State, 101 Nev. 331, 705
P.2d 609 (1985). In Neuschafer, we ruled that such language in a jury form is not
unconstitutionally vague because the jury was fully instructed as to the definitions of torture
and depravity of mind. Id. at 336 n.2, 705 P.2d at 612 n.2. Here, the jury was also fully
informed as to the definitions of torture and depravity of mind.
3. Nevada's death penalty statute
[Headnote 31]
At the time of Wesley's trial, Nevada's death penalty statute, found at NRS 200.030(4),
stated:
Every person convicted of murder of the first degree shall be punished:
(a) By death, only if one or more aggravating circumstances are found and any
mitigating circumstance or circumstances which are found do not outweigh the
aggravating circumstance or circumstances.
(b) Otherwise, by imprisonment in the state prison for life with or without the
possibility of parole. . . .
The district court instructed the jury pursuant to NRS 200.030(4). Wesley contends that
NRS 200.030(4) and the district court's instruction unconstitutionally shift the burden of
proof and persuasion to the defendant by requiring the defendant to present mitigators that
outweigh the aggravating circumstances. We rejected a similar claim in Bennett v. State, 106
Nev. 135, 144, 787 P.2d 797, 802-03, cert. denied, 498 U.S. 925 (1990). The Bennett court
stated that the defense is not required to present mitigating factors under Nevada's statute
because imposition of the death sentence by the jury is permissive. Id. at 144-45, 787 P.2d at
803. As the district court instructed the jury during Wesley's trial, [t]he jury may impose a
sentence of death if . . . at least one aggravating circumstance has been established . . . and
further finds that there are no mitigating circumstances sufficient to outweigh the aggravating
circumstances or circumstance found. (Emphasis added.) Accordingly, Wesley was not
required to establish any mitigating circumstances in order to avoid being sentenced to death.
Bennett, 106 Nev. at 144-45, 787 P.2d at 803; accord Proffitt v. Florida, 428 U.S. 242 (1976)
(upholding a similar death penalty statute).
4. Mandatory enhanced sentence
[Headnotes 32, 33]
Jury instruction number five stated that if Wesley was sentenced to life imprisonment with
the possibility of parole, he would serve at least twenty years in prison before he would be
eligible for parole. The district court denied Wesley's request to instruct the jury that the use
of a deadly weapon enhancement would automatically double any sentence the jury issued.
A district court may inform a jury of the potential date of parole for a defendant, but the court
must do so accurately. Kazalyn v. State, 108 Nev. 67, 78, 825 P.2d 578, 585 (1992). A person
sentenced to life imprisonment with the possibility of parole for first degree murder is eligible
for parole after ten years. NRS 200.030(4)(b). The use of a deadly weapon results in a
mandatory sentence enhancement equal to the original sentence. NRS 193.165(1).
Accordingly, a defendant like Wesley who is sentenced to life imprisonment with the
possibility of parole for first degree murder with the use of a deadly weapon is eligible for
parole after twenty years. Kazalyn, 108 Nev. at 77-78, 825 P.2d at 585. Accordingly, the
instruction given by the district court properly stated that Wesley would be eligible for parole
after at least twenty years if the jury sentenced him to life imprisonment with the possibility
of parole.
5. Jury instruction number five
[Headnote 34]
Jury instruction number five also discussed the issue of commutation of a sentence of life
imprisonment without the possibility of parole. Wesley contends that the instruction violates
the United States and Nevada Constitutions. A district court may instruct a jury during a
capital penalty hearing to consider possible commutation of a sentence. California v. Ramos,
463 U.S. 992, 1001 (1983). The Ramos Court concluded that such an instruction is relevant to
the sentencing decision because it allows the jury to consider whether the defendant is a
desirable candidate for return to society in the future. Id. at 1005. Further, [a]n instruction
that discusses parole in a murder case is proper if the jury is not misled and so long as it does
not enlarge upon the matter of parole.' Petrocelli, 101 Nev. at 57, 692 P.2d at 511 (quoting
Summers v. State, 86 Nev. 210, 213, 467 P.2d 98, 100 (1970)). In fact, instruction number
five is mandated by the Petrocelli decision. Id. at 56, 692 P.2d at 510-11. Accordingly, we
conclude that jury instruction number five was properly offered regarding the commutation
process.
6. Antisympathy jury instruction
[Headnote 35]
Over Wesley's objection, the district court instructed the jury that [a] verdict may never
be influenced by sympathy, prejudice or public opinion. Your decision should be the product
of sincere judgment and sound discretion in accordance with the rules of law. Wesley
contends that the district court's instruction violated his right to present, and to have the jury
consider, any relevant mitigating evidence regarding his character, record, and the
circumstances of the offense. A district court may instruct the jury not to consider sympathy
during a capital penalty hearing, as long as the court also instructs the jury to consider
mitigating factors. Lay, 110 Nev. at 1195, 886 P.2d at 451-52. In the present case, the district
court instructed the jury to consider any aspect of the defendant's character or record and any
of the circumstances of the offense that the defense proffers as a basis for a sentence less than
death. Accordingly, we conclude that the district court's antisympathy instruction was
proper. Id.; accord Saffle v. Parks, 494 U.S. 484, 492-93 (1990).
7. Victim impact evidence
[Headnotes 36, 37]
Robert Gaines testified during the penalty hearing that he had grown up with Ike, attended
the same church, and respected Ike as a friend and a father-figure. Blood testified that she
knew Ike and Doella for ten years, considered them to be like her parents and was hurt by
their absence in her life. Walker, Ike's neighbor for roughly twenty-seven years, testified that
Ike provided him with advice and helped him become a deacon at their church. Wesley
asserts that the testimony of these three witnesses denied him a fair and impartial sentencing
proceeding.
Questions regarding the admissibility of evidence during the penalty phase of a capital trial
are left to the discretion of the trial court and will not be disturbed absent an abuse of
discretion. Smith v. State, 110 Nev. 1094, 1106, 881 P.2d 649, 656 (1994); see NRS
175.552(3). According to the United States Supreme Court's holding in Payne v. Tennessee,
501 U.S. 808, 823 (1991), the admission of victim impact evidence during a capital penalty
hearing does not violate the Eighth Amendment and is relevant to show each victim's
uniqueness as an individual human being. Further, this court has held that individuals
outside the victim's family can present victim impact evidence. Lane v. State, 110 Nev. 1156,
1166, 881 P.2d 1358, 1365 (1994).
Wesley contends that the Payne Court did not condone the admission of victim impact
evidence from neighbors, co-workers and any other well wishers the State could find.
and any other well wishers the State could find. Further, Wesley asserts that the use of such
efforts violates the mandates of Godfrey which require specific and detailed guidance to the
jury to prohibit the arbitrary application of the death penalty. We conclude that the admission
of Blood's, Walker's, and Gaines' testimony did not violate Wesley's Eighth Amendment
rights. Each witness's testimony was relevant to the impact of Wesley's actions. See Lane, 110
Nev. at 1166, 881 P.2d at 1365. The evidence provided the jury with the individualized
circumstances present in Ike's and Doella's lives, and the specific harm caused by the crime
charged, helping the jury make the individualized sentence required by the Eighth
Amendment. Payne, 501 U.S. at 825.
CONCLUSION
Having thoroughly reviewed all Wesley's contentions, we conclude they are without merit.
Also, we conclude that the sentence of death was not imposed under the influence of passion,
prejudice or any arbitrary factor and is not excessive, considering both the crime and the
defendant. Accordingly, we affirm Wesley's judgment of conviction and sentence.
____________
112 Nev. 520, 520 (1996) Winnerford H. v. State
WINNERFORD FRANK H., aka, WINNERFORD FRANK T., a Minor, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 24921
April 30, 1996 915 P.2d 291
Appeal from an order of the district court adjudicating appellant a delinquent after finding
him guilty of sexual assault. Eighth Judicial District Court, Clark County; Steven E. Jones,
Judge.
Delinquency proceedings were brought against ten-year-old boy who, while playing
children's group game called Hide-and-go-get-it, allegedly placed his hand between child's
legs in manner which, but for his minority, would support sexual assault conviction. The
district court entered order adjudicating child delinquent, and appeal was taken. The supreme
court, Springer, J., held that state failed to satisfy its burden of proving that, at time of alleged
improper contact, child understood the wrongfulness of his acts.
Reversed.
Shearing, J., and Steffen, C. J., dissented.
Morgan D. Harris, Public Defender, Sharon G. Dickinson, Deputy Public Defender, Clark
James Tufteland, Chief Deputy District Attorney, Tim O'Brien, Chief Deputy District
Attorney, Ronald C. Bloxham, Deputy District Attorney, Clark County, for Respondent.
1. Infants.
To obtain adjudication of delinquency against ten-year-old boy for having committed act which, if committed by adult, would
constitute sexual assault, state had burden of presenting sufficient evidence that ten-year-old boy had mental capacity to commit sexual
assault by demonstrating, beyond reasonable doubt, that boy knew the wrongfulness of his actions when, in course of children's group
game called hide-and-go-get-it, he allegedly placed his hand between child's legs in area of her vagina. NRS 194.010.
2. Infants.
State failed to satisfy its burden of proving that, when ten-year-old boy placed his hand between female child's legs during group
game of hide-and-go-get-it, he understood the wrongfulness of his acts, based solely on child's ambiguous response to prosecutor's
leading question that he had not wanted to do that because he was afraid of getting in trouble; accordingly, ten-year-old boy could
not be adjudicated delinquent for having committed act which, if committed by adult, would amount to sexual assault.
OPINION
This case is about a ten-year-old boy, Winnerford H., who was convicted (adjudicated) by the juvenile court to be guilty of sexual
assault (formerly rape), a crime that he is charged with committing while he and a number of other children were playing a children's group
game called hide-and-go-get it.
1
One of the game players claimed that in the course of the game
Winnerford placed his finger on her privacy.
Winnerford and Kedrick and Shamoya and Latoya and Angelo and Marcello and Crissie
(the victim of this crime) and some other children were engaged in a game that they called
hide-and-go-get-it, it being the girls' external genitalia. (As put by Crissie herself: [T]he
boys catch you, they throw you down and do it to you.) The three boys who got it during
the game with Crissie and the other children were Angelo, who held her hands, and Marcello
who held her "feets" and Winnerford, who Crissie claims "touched" her "privacy.
__________

1
Rules of the game: [T]he boys catch you, they throw you down and do it to you.
and Marcello who held her feets and Winnerford, who Crissie claims touched her
privacy.
2
Crissie testified that Winnerford's touching was real quick, just like touching
and let off. Crissie answered the prosecutor's question during her direct testimony as
follows:
Q. Okay. You said he put his hand inside your privacy. Does that mean he actually
went inside of you or did he just touch the outside of you?
A. Just the outside of me.
Q. Did he go inside of you at all?
A. No.[
3
]
One of the child witnesses, a ten-year-old, whom we shall refer to as K.S., testified
concerning the particular hide-and-go-get-it game that the children were playing on that
fateful day. First K.S. identified the defendant, Winnerford (He's in a white tuxedo and a
black bow tie.) and explained the rules of the group game: You got to chase a girl, and if
you get her you've got to do real nasty stuff to her. Crissie, the victim in this case was at
first mainly upset because the other children did not include her in the game. No one would
chase her and do nasty stuff to her, that is, until (as put by K.S.), she started crying for it.
Crissie was very upset because everyone was chasing Annie and not her; and Crissie started
crying, [and] said, Frank, you never come get me. Frank, you never come get me.' And she
kept crying, [and] saying that. Crissie's sister, Alecia, got so upset because of Winnerford's
inattention to her sister that she refused to play hide-and-go-get-it anymore unless Winnerford
agreed to go after her sister, Crissie.
__________

2
Actually there are three ten-year-old sexual assailants (rapists) in this case if we wanted to carry the case to the
limits of absurdity.

3
On redirect examination the prosecutor was able to lead Crissie into describing what Winnerford did with his
hand:
Q. Let's take my hand, I'm going to take my hand right here.
A. Okay.
Q. And we'll pretend like this is your privacy part, okay. And I'm going to create a little groove for you,
okay? Does this look something like what your privacy part looks like?
A. Yes.
Q. What I'm going to do is I'm going to hold this over here for you. Now, I want you to show me what
Frank did with his hand, what you felt Frank do with his hand. Could you just show me?
A. Well, like that.
Q. Could you show me exactly how he did it. Go ahead and go slow and show me how he did it.
A. Like that.
. . . .
Q. Let the record reflect she put her middle finger in the groove I created between my thumb and the
major part of my hand.
agreed to go after her sister, Crissie. After this conversation, Crissie, according to the
testimony, just laid on the slide waiting for him [Winnerford] to come and get her.
According to K.S., Crissie was laying down backwards on [the slide]. She wanted
somebody to get her before she get into it. So she laid down on the slide waiting for
somebody to come and get her. K.S. and Charles grabbed her legs on the slide and pulled her
up the slide. Winnerford came along and touched her outside of her panties. She never did
have her panties off. Charles moved her legs apart. Charles was holding her legs. All the
children were laughing until Crissie screamed, at which time Charles let go of her legs, and
Winnerford took his hands off of her panties. Winnerford was like he was on there like five
seconds and then she started hollering . . . .
Another ten-year-old witness, Latoya, testified basically to the same facts. She testified
that Winnerford did not pull Crissie's dress up nor did he pull her pants down. Latoya testified
that Winnerford put his hand up Crissie's dress and that he jabbed her twice with
outstretched finger. The jabs were sort of like real fast, like that [demonstrating]. Latoya
explained on cross-examination that, at the time, Crissie's skirt was down to her knees and
that she saw his hand go under her skirt. This jabbing action apparently caused Crissie to
suffer some pain, and this is when she hollered and put an end to her participation in the
hide-and-go-get-it game.
Another eyewitness, a child named Tuesday, observed Winnerford feeling Crissie's legs
and her panties. She also saw Winnerford do basically the same thing that other witnesses
had seen. I saw Frank touch on her legs and close to her vagina, but he didn't really go real
like into her panties. I saw him touch her panties. I saw him touch her panties, but he didn't go
up in there. Tuesday also limits the episode to about five seconds.
Given these accounts of the manner in which Winnerford played this game with Crissie, it
is indeed doubtful as to whether there was such sexual penetration as to justify a rape
conviction. None of the players who testified in this case testified that Winnerford had the
time or opportunity to penetrate Crissie's vagina; and most of the players outrightly denied
that this had occurred. There was no physical evidence to support a finding of vaginal
penetration. There were many inconsistencies in Crissie's testimony, but we do not find it
necessary to catalogue them in this opinion. On balance, it appears that her testimony that he
did not go inside of her at all is considerably more persuasive on the question of penetration
than her response to the leading questions of the prosecutor relative to what Winnerford did
or did not do with reference to the representative groove in the prosecutor's hand.
prosecutor's hand. There is no direct testimony by Crissie or by anyone else that Winnerford
inserted his finger into Crissie's vagina, and it is highly improbable that he did so. Although
there is a very strong argument that there is insufficient evidence upon which the juvenile
court judge could have found beyond a reasonable doubt that Winnerford penetrated Crissie's
vagina with his finger, we choose not to rest reversal of Winnerford's conviction
(adjudication) on the basis of insufficiency of the evidence but, rather, on the ground that the
State failed to rebut the presumption that Winnerford did not have the legal capacity to
commit sexual assault.
[Headnotes 1, 2]
NRS 194.010 provides in pertinent part that
All persons are liable to punishment except those belonging to the following classes:
. . . .
2. Children between the ages of 8 years and 14 years, in the absence of clear proof
that at the time of committing the act charged against them they knew its wrongfulness.
(Emphasis added.) Winnerford's counsel argues that the State failed to present clear proof that
Winnerford knew the wrongfulness of his actions at the time he is said to have inserted his
finger into Crissie's vagina.
Without citing in its brief any support from the record, the State claims that Winnerford
testified that he did not want to touch Crissie between her legs because he knew he was
going to get in trouble. This, the State submits, is clear proof that Winnerford possessed the
capacity to commit sexual assault. The testimony on which the prosecutor is apparently
relying is the following, which was elicited during the prosecutor's cross-examination of
Winnerford:
Q. You said you humped [Crissie]. What does that mean? What did you do to her?
A. When you get on top of her and do it to her.
Q. Describe what you mean by do it to her.
. . . .
A. Go like that on top of her.
Q. Can you stand up, show me what that is?
A. Like this.
. . . .
Q. While you were on top of her, didn't you also place your hand between her legs?
A. No.
Q. Why didn't you place your hand between her legs?
A. Huh?
Q. Why didn't you place your hands between her legs? Didn't Charles get away with
it?
. . . .
A. I didn't do it. I didn't want to do it.
Q. You didn't want to do it?
A. No.
Q. Okay. Why did you want to hump her?
A. Huh?
Q. Why did you want to hump her?
A. I don't know.
Q. Okay. Why didn't you want to do that?
A. Huh?
Q. Why didn't you want to do that? Is it because you were afraid of getting in
trouble?
A. Yeah. I said I didn't want to because I knew I was going to get in trouble.
Q. Okay. So you wanted to do it but you knew you would get in trouble if you did?
A. I still didn't want to do it. I wasn't thinking of it.
Q. You weren't thinking of it?
A. No.
Q. But you knew you would get in trouble if you did do that?
A. Yes.
(Emphasis added.) This testimony certainly does not present clear or adequate proof that
Winnerford knew the wrongfulness of his decision to go and get it, at the time he is alleged
to have actually done so. The prosecutor's questioning was ambiguous. It is unclear what
exactly he was referring to when he asked the leading question. Why didn't you want to do
that? Is it because you were afraid of getting in trouble? It is not clear what that refers to.
The preceding question referred to humping, which the prosecutor and Winnerford
distinguished from Winnerford's allegedly placing his hands between Crissie's legs. Further, it
is not clear when Winnerford realized he could get in trouble if he placed his hand between
Crissie's legs as he twice stated that he did not even think of placing his hands between
Crissie's legs. Finally, Winnerford only testified that he knew he would get in trouble in
response to the State's leading question.
4
There is nothing else in the record that relates to
Winnerford's criminal capacity, and the above-discussed cross-examination does not
suffice for this purpose.
__________

4
Cf. Poole v. State, 97 Nev. 175, 625 P.2d 1163 (1981) (evidence presented that thirteen-year-old accused of
murder hid murder weapon, as well as other pieces of evidence; fabricated stories in attempting to create an
alibi; claimed the shooting had been accidental; and testified that he knew killing people was wrong sufficient to
establish that the minor knew the wrongfulness of his act).
capacity, and the above-discussed cross-examination does not suffice for this purpose. We
conclude that the State did not present sufficient evidence to rebut the presumption that
Winnerford was incapable of committing sexual assault.
The State did not prove beyond a reasonable doubt that Winnerford had the required mens
rea to commit sexual assault. Sexual assault is generally considered a general intent crime.
Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983). NRS 193.200 defines intention as
follows: Intention is manifested by the circumstances connected with the perpetration of the
offense, and the sound mind and discretion of the persons accused. NRS 193.220 defines a
person who is considered of sound mind as one who has arrived at the age of 14 years, or
before that age, if such person knew the distinction between good and evil.
The circumstances connected with the alleged offense have been previously
describedthese children were playing a game. The accused is a ten-year-old child. The only
evidence presented regarding whether he knew the distinction between good and evil is the
testimony discussed above regarding whether the State failed to rebut the presumption that
Winnerford did not have the capacity to commit sexual assault. This testimony is not
sufficient to establish beyond a reasonable doubt that Winnerford knew the distinction
between good and evil for purposes of assessing whether he was of sound mind as
contemplated by NRS 193.200. The State did not establish that Winnerford had the mental
capacity to commit the crime of sexual assault at the time Winnerford is claimed to have put
his hand on Crissie's privacy; therefore, the State did not prove beyond a reasonable doubt
that Winnerford had the requisite mens rea to commit a sexual assault.
The adjudication of delinquency is reversed. Since the hide-and-go-get-it game was
played over two and one-half years ago, we think it would be wise and in the interest of both
Winnerford and the State of Nevada if this matter would be brought to a close. The juvenile
court is instructed to dismiss all pending proceedings in this matter.
Shearing, J., with whom Steffen, C. J. agrees, dissenting:
I would affirm the judgment of the district court adjudicating the subject minor a
delinquent.
The majority purports to base its decision to reverse the adjudication of delinquency on
NRS 194.010 and NRS 193.220. However, these statutory provisions apply to criminal
convictions in the adult courts, not delinquency adjudications in the juvenile courts. Relying
upon these statutes, the majority finds that the minor did not have the requisite intent to
commit a crime, even if he intended to commit the act which would have been a crime if
he had been an adult.
minor did not have the requisite intent to commit a crime, even if he intended to commit the
act which would have been a crime if he had been an adult. If the minor had been convicted
of a crime, the majority's argument might have some relevance, but he was not; he was
adjudicated a delinquent. Whether or not the minor knew the act was wrong under the law is
irrelevant. He intentionally did the acts, and that finding satisfies the requirement for an
adjudication of delinquency
By applying the cited statutory provisions to the juvenile proceedings, the majority has, in
effect, deprived the juvenile court of the opportunity to completely fulfill its responsibility to
the community and to children under the age of fourteen by making it extremely difficult, if
not impossible, to hold children under the age of fourteen accountable for their delinquent
acts.
At the time of this proceeding, NRS 194.010, upon which the majority relies, read in
pertinent part:
NRS 194.010. Persons capable of committing crimes.
All persons are liable to punishment except those belonging to the following classes:
1. Children under the age of 8 years.
2. Children between the ages of 8 years and 14 years, in the absence of clear proof
that at the time of committing the act charged against them they knew its wrongfulness.
This statute was clearly enacted to define when a person may be convicted of a crime in the
adult courts and to clarify the common law. The common law and statutory law regarding
eligibility for criminal conviction has varied over the years. Under the early common law,
children of any age could be held criminally responsible. Later, the common law rule held
that children under the age of seven were conclusively presumed to be without criminal
capacity, but there was a rebuttable presumption of incapacity for children from age seven to
thirteen and children over thirteen were held fully responsible. Most states have adopted
statutes that reflect these concepts, although the age of capacity has varied. NRS 194.010 was
clearly designed to address these principles of criminal liability for children.
NRS 194.010 and its underlying precepts have no application to juvenile courts.
1
Our
juvenile courts were not established to secure criminal convictions. Rather, the juvenile court
has exclusive jurisdiction over children who have committed delinquent acts, which are acts
designated crimes under the law of the State of Nevada, if committed by adults. NRS
62.040(b). NRS 62.031(1) provides in relevant part, [t]his chapter shall be liberally
construed to the end that each child coming within the jurisdiction of the court shall receive
such care, guidance and control . . . as will be conducive to the child's welfare and the best
interests of the state. . . ."
best interests of the state . . . . A child is defined as a person less than eighteen years of age
who has not been certified or sentenced as an adult. NRS 62.020(2). The adjudication here
clearly comes within the umbrella of Chapter 62 and not the provisions applicable to criminal
convictions in the adult court.
The majority's position requiring the State to prove that the juvenile knew that the
prohibited act was wrong, rather than that the juvenile had general intent to perform the
prohibited act requires greater proof than for an adult criminal conviction. This additional
requirement virtually eviscerates the juvenile court's ability to provide care, guidance and
control to juveniles under the age of fourteen in delinquency proceedings. It is incredible
that the majority wants to mandate this heightened proof requirement in delinquency
adjudications when it is clearly in the best interests of both the child and society that the child
receive guidance as early as possible so that he or she may be influenced to conform his or
her behavior to the proper standard. There is an enormous difference between an adult
receiving a punishment of a life sentence for sexual assault and a juvenile receiving the
counseling and temporary supervision that was provided here.
Even if the State was required to prove that the juvenile knew that his act was wrong, the
State amply met its burden in this case. The minor's testimony clearly establishes that he
knew the game was wrong. He described the game as getting on top of her and doing it to
her. When asked what doing it to her meant, he said [n]asty things. In denying that he
put his hand between the victim's legs, he said I said I didn't want to because I knew I was
going to get into trouble. Contrary to the majority's position, it is clear that the minor was
referring to putting his hands between the victim's legs and not to humping, since the minor
admitted to humping the victim. This is ample evidence that the juvenile understood the
wrongfulness of his acts at the time he performed them.
The majority purports to base its decision on NRS 194.010(2), but the opinion makes clear
that the court is actually reweighing the evidence, arrogating to itself the function of assessing
the weight of the evidence and determining the credibility of witnesses. That is not the
function of this court. The trial court determined that sexual penetration occurred. Yet the
majority states that "it is indeed doubtful as to whether there was such sexual
penetration," and again "it is highly improbable that he did so."
__________

1
The Model Penal Code takes this position, stating:
In barring criminal proceedings against offenders who are under 16 at the time of the conduct charged to
constitute the offense, Section 4.10 renders moot the legal issue of criminal capacity of juveniles. Under
this section, an individual under the age of 16 is accountable only in juvenile court.
Model Penal Code 4.10 cmt. 2 (1985).
states that it is indeed doubtful as to whether there was such sexual penetration, and again
it is highly improbable that he did so.
Nevertheless, there is substantial evidence supporting the trial court's finding. The
majority's doubt must be wishful thinking, because the testimony of every witness, including
the perpetrator, supports the allegation of sexual penetration in some respect. The majority
chooses to report only some portions of evidence, not even in context, that support its belief
that no delinquent activity occurred. To suggest that every witness must admit to participating
in wrongful activity before there is substantial evidence is both unrealistic and wrong.
Determining the credibility of witnesses is the function of the trial court, not this court.
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). The appropriate standard of
review for this court is the same as in a criminal case: whether, after viewing the evidence
in the light most favorable to the [State], any rational trier of fact could have found the
essential elements of the [offense] beyond a reasonable doubt.' Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Both the victim and another witness stated that the minor jabbed inside the victim with his
finger. All but one witness who testified agreed that at one point, while the minor's hand was
up the victim's skirt, the victim cried out. The other witness also agreed that she cried out, but
claimed that it was while another boy's hand was in the victim's panties. They all agree that
the victim cried and complained about pain on the way home. One witness observed spots of
blood when the victim went into the bathtub after she arrived home. The school counselor
testified that the victim complained of burning in her vagina a day or so later. To suggest that
this court is in a better position to evaluate this evidence and to conclude that no penetration
occurred is ludicrous.
The majority states that none of the players who testified in this case testified that [the
minor] had the time or opportunity to penetrate [the victim's] vagina; and most of the players
outrightly denied that this had occurred. This assertion is simply wrong. Every witness who
testified acknowledged that the minor had the time and opportunity for penetration, even
those who denied that it had occurred. Other than the victim and accused minor, only three of
the children participating in the game testified. One of the witnesses was one of the boys
who was holding the victim down while the accused minor was on top of her.
2
He denied
seeing any penetration, but he certainly did not deny that the minor had the time and
opportunity to do so.
__________

2
The majority suggests that it would be the limits of absurdity to call two males sexual assailants (rapists)
when they hold down a female while a third penetrate her sexually. That is outrageous! Just because the majority
seeing any penetration, but he certainly did not deny that the minor had the time and
opportunity to do so. On the contrary, he was holding the victim down for some time. He
was also quoted as saying to the accused minor after the victim made her accusation,
[name], you shouldn't have did that. Even the accused minor admitted that he was lying on
top of the victim, even though he denied otherwise touching her.
Another girl claimed she saw a hand inside the victim's pants, but claimed it was another
boy's hand. However, she acknowledged that the accused minor touched the victim on the
legs and close to her vagina, but he didn't really go real like into her panties. I saw him touch
her panties, but he didn't go up in there. The other witness testified that she saw the minor
make two fast jabs under the victim's skirt. Contrary to what the majority says, every witness,
including the accused minor, made it clear that the accused minor had both the time and
opportunity to penetrate the victim. The evidence of penetration was not only substantial, it
was overwhelming.
The majority cites lack of any physical evidence as one of the reasons for doubting that
penetration occurred. Crimes which do not leave physical evidence when they are not
reported to the authorities immediately can only be proven by testimonial evidence. Sexual
assault is one such crime because it often fails to leave any physical evidence which can be
brought to court. Here, even the testimony of a witness who said she saw blood when the
victim took a bath immediately after the incident is not good enough for the majority. The
suggestion that the lack of physical evidence is grounds to reverse the judgment and to reject
the trial court's findings regarding the witnesses' credibility is outrageous! This is the type of
reasoning which makes victims unwilling to come forward with allegations of sexual assault.
In the juvenile proceeding, the court determined that the subject minor had performed
delinquent acts and adjudicated him a delinquent. Contrary to the majority's suggestion, the
trial court certainly did not convict the minor of a crime and did not label him a rapist or
subject him to anything resembling a life sentence as would be the case in adult court. This
court has no justification for such an insinuation because it ignores the entire law and policy
toward juveniles set forth by the Nevada legislature in Title 5 of the Nevada Revised Statutes.
NRS 62.193(1) makes clear that [p]roceedings concerning any child alleged to be
delinquent . . . are not criminal in nature . . . ."
__________
evidences a hostility to prosecution in this type of situation, there would be nothing absurd at all about such a
prosecution if these males were adults. These boys are juveniles and would not be held to be guilty of a crime,
but if the allegations are true, as the trial judge found, they certainly engaged in delinquent acts.
be delinquent . . . are not criminal in nature . . . . (Emphasis added.) The act charged would
be a crime if committed by an adult, but not when committed by a child.
The juvenile court system is designed not to stigmatize children with labels as criminals,
but to provide helpful guidance in teaching them appropriate conduct so that they will not
become criminals in their adulthood. The disposition in this case reflects this aim. The district
court placed the minor on formal probation for three years and ordered him to complete a
Sexual Offense Specific Psychoeducational Program and to participate with his mother in
family therapy. This disposition appears the most appropriate to protect the public and to
satisfy the minor's rehabilitative needs.
The majority appears to regard the alleged actions as mere child's play. I strongly disagree.
The children were playing a nasty game which foreshadows adult criminal activity if the
children are not properly educated. The children may have regarded this as a game, but when
a game involves sexual activity that would be a crime if performed by adults, the children
certainly need to learn that this conduct is wrong. Other children need protection from the
minor who continues such behavior, and the public needs protection from the minor who
grows up thinking that this is acceptable conduct.
The judgment should be affirmed.
____________
112 Nev. 531, 531 (1996) Jones v. First Mortgage Co. of Nevada
ROBERT V. JONES, Individually, ROBERT V. JONES CORPORATION, SEAVIEW INC.,
a Nevada Corporation, LIGHTHOUSE COVE INC., a Nevada Corporation, and
MORNINGSTAR, INC., a Nevada Corporation, Appellants, v. FIRST MORTGAGE
COMPANY OF NEVADA, LTD., Respondent.
No. 26738
April 30, 1996 915 P.2d 883
Appeal from an order of the district court granting summary judgment in favor of
respondent on respondent's claim for a loan brokerage commission. Eighth Judicial District
Court, Clark County; Gerard J. Bongiovanni, Judge.
Loan broker sued to recover commission allegedly owing once borrower secured financing
for his projects. The district court granted broker's motion for summary judgment, and
borrower appealed. The supreme court held that material fact questions regarding broker's
alleged breach of obligation to assist borrower in completing loan acquisition process
precluded entry of summary judgment for broker.
in completing loan acquisition process precluded entry of summary judgment for broker.
Thorndal, Backus, Armstrong & Balkenbush and Patrick Rose and Michael L. Hermes,
Las Vegas, for Appellants.
John Peter Lee and Paul C. Ray, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is appropriate only when, after review of record in light most favorable to non-moving party, court concludes
that there remain no genuine issues of material fact, and that moving party is entitled to judgment as matter of law.
2. Judgment.
On motion for summary judgment, all of non-movant's statements must be accepted as true, and court may not pass on credibility
of affidavits.
Supreme court reviews order granting summary judgment de novo.
4. Brokers.
Before loan broker is entitled to commission, broker must prove that employment contact, either express or implied, existed
between parties, and that he or she is procuring cause of action.
5. Brokers.
General common-law requirements for loan broker's recovery of commission are not absolute prerequisite to broker's recovery,
where parties have bargained to define more precisely broker's duties under listing agreement.
6. Judgment.
Material question of fact as to whether loan broker had obligation, as prerequisite to its recovery of commission, to assist borrower
in completing loan acquisition process, and as to whether broker breached its contractual obligation by allegedly abandoning borrower
during loan processing period, precluded entry of summary judgment in broker's action to recover commission.
OPINION
Per Curiam:
Appellants (collectively referred to as Jones) challenge the entry of summary judgment on the ground that issues of material fact
remain, making summary judgment improper. We agree and, therefore, reverse the order of the district court and remand the case for
further proceedings.
FACTS
In May of 1991, Jones was in need of a lender for permanent financing relating to several real estate development projects.
1
Jones
contacted respondent First Mortgage Company of Nevada, Ltd.
__________

1
Because this case is before this court upon appeal of an award of
Jones contacted respondent First Mortgage Company of Nevada, Ltd. (First Mortgage) to
inquire about loans for the projects. First Mortgage told Jones that it could locate a lender for
Jones.
In March of 1992, First Mortgage notified Jones that First Mortgage had located a lender,
Manns Haggerskjold. Manns Haggerskjold was previously unknown to Jones. First Mortgage
provided Jones a commitment agreement from Manns Haggerskjold for a $2,017,000.00 loan
on Jones' Morning Star Apartments project, which Jones accepted. The loan commitment
agreement: (1) identified Manns Haggerskjold as the lender and explained that the loan
would be funded by assigning it to a mortgage pool; (2) stated that the commitment was
contingent upon the mortgage pool being adequately funded and securitized; (3) identified
First Mortgage as the broker and stated that Jones agreed to pay all fees due to First
Mortgage; and (4) provided that it would remain in full force and effect until March 11, 1993,
at which time it would expire if the loan had not been funded.
Jones informed First Mortgage that it was also seeking permanent financing for Jones'
Seaview and Lighthouse Cove apartment projects. First Mortgage informed Manns
Haggerskjold of Jones' desire to have these projects included in the mortgage pool, and, in
June of 1992, Manns Haggerskjold committed to loans on the Seaview and Lighthouse Cove
projects in the amounts of $596,000.00 and $2,700,000.00, respectively. The Seaview and
Lighthouse Cove commitment agreements are substantially similar to the Morning Star
agreement in their terms. On July 2, 1992, Jones executed the Seaview and Lighthouse Cove
commitment agreements and returned them directly to Manns Haggerskjold.
At first, Jones submitted all documents necessary to process the loans to First Mortgage to
be forwarded to Manns Haggerskjold. At some point Jones found out from Manns
Haggerskjold that items sent to First Mortgage to be forwarded to Manns Haggerskjold had
never been forwarded. Also, Jones' phone calls to First Mortgage requesting status reports on
the loans were not being returned. Finally, Jones began communicating with Manns
Haggerskjold directly on loan-related matters. According to Mr. Jones, after the summer of
1992, he had absolutely no contact with First Mortgage regarding the loans. All work done to
complete the loans was by Jones and Manns Haggerskjold without any assistance from First
Mortgage.
In March of 1993, Jones obtained financing in excess of $5,000,000.00 for Morning Star,
Seaview, and Lighthouse Cove through Manns Haggerskjold.
__________
summary judgment, the facts are related in the light most favorable to appellant. See Butler v. Bogdanovich, 101
Nev. 449, 451, 705 P.2d 662, 663 (1985).
through Manns Haggerskjold. The loans were funded by DLJ, an entity previously unknown
to Jones. Jones refused First Mortgage's demand for payment of a commission on the three
loans, and this litigation ensued. At trial, First Mortgage moved for summary judgment,
which the district court granted. The district court ordered judgment against Jones in the
amount of $53,956.70, the combined total of the disputed brokerage fees held in escrow, and
ordered the escrow company, named as a nominal defendant, to turn over to First Mortgage
the impounded brokerage fees.
DISCUSSION
[Headnotes 1-3]
most favorable to the non-moving party, there remain no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985). All of the non-movant's statements must be accepted as
true, and a district court may not pass on the credibility of affidavits. Sawyer v. Sugarless
Shops, 106 Nev. 265, 267, 792 P.2d 14, 15 (1990). This court's review of an order granting
summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282
(1989).
[Headnotes 4, 5]
The parties contend that, in the absence of relevant Nevada authority involving
commercial loan brokerage disputes, this court should look to the related law of real estate
brokerage commissions. We agree. Before a loan broker is entitled to a commission, the
broker must prove (1) that an employment contract, either express or implied, existed and (2)
that he or she is the procuring cause of the loan. See Marrow v. Barger, 103 Nev. 247, 250,
737 P.2d 1153, 1154-55 (1987) (discussing real estate brokers' commissions). Moreover,
[s]atisying this court's two-part test is not an absolute prerequisite to a broker's recovery of a
commission where the parties have bargained to define more precisely the broker's duties
under the listing agreement. Carrigan v. Ryan, 109 Nev. 797, 799, 858 P.2d 29, 31 (1993).
[Headnote 6]
Jones contends, inter alia, that a question of fact exists as to whether First Mortgage may
have breached an obligation to Jones to assist Jones in completing the loan acquisition
process. We agree. Nevertheless, First Mortgage argues that the issue of abandonment
during the loan processing period is immaterial because First Mortgage is not seeking a
fee as a loan servicing agent.
abandonment during the loan processing period is immaterial because First Mortgage is not
seeking a fee as a loan servicing agent. First Mortgage's contention is without merit. If the
alleged abandonment constitutes a breach of an agreement between the parties, this fact
would be material to First Mortgage's entitlement to a commission from Jones. Whether First
Mortgage had an obligation to Jones to assist Jones in completing the loan application and
closing process and whether such an obligation may have been breached by First Mortgage
are questions of material fact. Accordingly, we conclude that the district court erred in
entering summary judgment.
CONCLUSION
We conclude that questions of material fact remain making summary judgment
inappropriate. Accordingly, we reverse the order of the district court and remand this case to
the district court for trial.
2

____________
112 Nev. 535, 535 (1996) State v. Burkholder
THE STATE OF NEVADA, Appellant, v. KENNETH OWEN BURKHOLDER,
Respondent.
No. 27386
May 1, 1996 915 P.2d 886
Appeal from a district court order granting a motion to suppress laboratory tests on urine
and blood samples and an order dismissing a criminal charge. Second Judicial District Court,
Washoe County; James A. Stone, Judge.
State appealed from order entered in the district court granting defendant's motion to
suppress and dismissing charge. The supreme court held that: (1) defendant was not seized
within meaning of Fourth Amendment when officer simply approached him and asked for
consent to search him; (2) evidence established that consent was voluntary; and (3) district
court improperly dismissed charge sua sponte.
Attorney, and Terrence P. McCarthy, Deputy, Washoe County, for Appellant.
__________

2
In light of this court's disposition, we need not address Jones' remaining contentions.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Appellate Public
Defender, Washoe County, for Respondent.
1. Arrest.
Seizure of person without probable cause or warrant is per se unreasonable, subject only to a few specifically established and
well-delineated exceptions; however, not all interactions between police and citizenry involve seizure of persons. U.S. Const. amends.
4, 14.
2. Arrest.
Mere police questioning does not constitute seizure under Fourth Amendment. Police may randomly, without probable cause or
reasonable suspicion, approach people in public places and ask for leave to search. U.S. Const. amends. 4, 14.
3. Criminal Law.
In context of defendant's motion to suppress, police were free to question defendant on public street without violating his Fourth
Amendment rights, and pertinent inquiry was not whether they had sufficient suspicion to ask questions, but whether defendant's
consent to be searched in response to questions was voluntary and not result of duress or coercion. U.S. Const. amends. 4, 14.
To establish lawful search based on consent, state must demonstrate that consent was voluntary and not result of duress or
coercion. Voluntariness is determined by ascertaining whether reasonable person in defendant's position, given totality of
circumstances, would feel free to decline police officer's request or otherwise terminate encounter. U.S. Const. amends. 4, 14.
5. Criminal Law.
Evidence on motion to suppress established that defendant's consent to be searched when he was approached by police officer on
public street and asked for such consent was voluntary and not result of coercion or duress. Evidence showed that officer did not block
defendant's ability to leave and, while officer identified himself and showed his badge, there was no indication that he used force or
displayed weapon. Officer's failure to tell defendant that he could decline to answer officer's requests did not foreclose finding of
voluntariness. U.S. Const. amends. 4, 14.
6. Criminal Law.
After granting defendant's motion to suppress, district court improperly dismissed charge sua sponte. State had right to decide
whether to proceed to trial without evidence that was suppressed or move to dismiss case, and evidence that was not suppressed could
have been used by state to pursue charge against defendant.
OPINION
Per Curiam:
Officers Jeffrey Freelove (Freelove) and William Abbott (Abbott) approached respondent Kenneth Owen Burkholder
(Burkholder) on a public street and asked Burkholder if they could search him for weapons or illegal drugs. Burkholder allowed the
search, and Freelove found a brass smoking pipe with marijuana residue and a glass vial containing trace
amounts of a light brown powdery substance.
allowed the search, and Freelove found a brass smoking pipe with marijuana residue and a
glass vial containing trace amounts of a light brown powdery substance. Burkholder was
charged with using a controlled substance. Burkholder filed a motion to suppress evidence,
alleging that Freelove conducted an unlawful search. The district court granted Burkholder's
motion to suppress and dismissed the charge against Burkholder.
In this appeal, the State contends that the district court erred by determining that Freelove's
search of Burkholder was unconstitutional and that the district court erred by dismissing the
charge against Burkholder. For the reasons stated below, we conclude that the State's
contentions are correct.
FACTS
On May 20, 1995, Freelove and Abbott were conducting a proactive drug recognition
assignment in Reno. Freelove observed Burkholder receiving multiple phone calls on a pay
telephone. Freelove also saw Burkholder walk to the Carriage Inn and have a very brief
conversation with a man who stood in the doorway of a room at the Carriage Inn. That
specific room, and the man, were also being watched by police due to the high amount of foot
traffic going to the room. After Burkholder's conversation with the man, Burkholder walked
out of the Carriage Inn and returned to the pay telephone he was using earlier.
Based on Burkholder's phone calls, his nervous appearance, his trip to the Carriage Inn
room and his conversation with the man, Freelove believed that Burkholder was buying or
selling illegal drugs. Freelove approached Burkholder on the sidewalk near the pay telephone.
Freelove was dressed in plainclothes, had his police badge hanging on a chain around his
neck and told Burkholder that he was a police officer. Freelove asked Burkholder if he would
answer a few questions. Burkholder replied yes. Freelove asked Burkholder if he was
carrying any weapons or drugs. Burkholder replied no. Freelove then asked Burkholder if
he could search him for weapons and drugs. Burkholder replied yes.
Freelove searched Burkholder and found a small brass smoking pipe soiled with marijuana
residue in Burkholder's front pants pocket. Freelove found a glass vial containing small
amounts of a light brown powdery substance in Burkholder's inside jacket pocket. Freelove
did not tell Burkholder that he was free to go, could decline to answer the police officer's
questions or could decline the police officer's request to search his person.
After the search, Burkholder admitted to Freelove that he had used methamphetamine on
the day before the search and marijuana three hours before the search.
juana three hours before the search. Freelove detected physical symptoms of recent use of a
central nervous system stimulant, and Abbott conducted a drug recognition exam. Freelove
and Abbott then arrested Burkholder for possession of drug paraphernalia and transported
Burkholder to the Reno Police Department. At the station house, urine and blood samples
were collected from Burkholder. The samples were analyzed to determine whether
Burkholder was under the influence of illegal drugs at the time of his arrest.
On June 12, 1995, Burkholder was charged by information with using a controlled
substance. Burkholder filed a motion to suppress all evidence linked to the laboratory tests on
his urine and blood samples, alleging that Freelove's search was illegal. On August 16, 1995,
the district court conducted a hearing on Burkholder's motion to suppress. The prosecutor
argued that Freelove's search was legal based upon the holding in Florida v. Bostick, 501 U.S.
429 (1991). The district court ruled that Freelove's search of Burkholder was not based on
probable cause. Accordingly, the district court granted the motion to suppress. Also, the
district court dismissed the charge against Burkholder.
DISCUSSION
Constitutionality of the search
[Headnote 1]
Pursuant to the Fourth and Fourteenth Amendments of the United States Constitution, the
seizure of a person without probable cause or a warrant is per se unreasonable . . . subject
only to a few specifically established and well-delineated exceptions. Katz v. United States,
389 U.S. 347, 357 (1967). As such, not all interactions between policemen and our citizenry
involve the seizure of persons. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
[Headnotes 2, 3]
Mere police questioning does not constitute a seizure. Bostick, 501 U.S. at 434. The police
may randomlywithout probable cause or a reasonable suspicionapproach people in
public places and ask for leave to search. Id. As stated by the United States Supreme Court in
Florida v. Royer, 460 U.S. 491, 497 (1983):
[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him if he is
willing to answer some questions, by putting questions to him if the person is willing
to listen, or by offering in evidence in a criminal prosecution his voluntary answers
to such questions.
him if the person is willing to listen, or by offering in evidence in a criminal
prosecution his voluntary answers to such questions.
Accordingly, we conclude that the district court's focus on whether Burkholder's conduct
gave Freelove sufficient suspicion to ask Burkholder questions was misplaced. Freelove was
free to question Burkholder without violating Burkholder's Fourth Amendment rights.
[Headnote 4]
The appropriate inquiry in this case is whether Burkholder's consent to be searched was
given voluntarily. To establish a lawful search based on consent, the State must demonstrate
that consent was voluntary and not the result of duress or coercion. Schneckloth v.
Bustamonte, 412 U.S. 218, 248 (1973). Voluntariness is determined by ascertaining whether
a reasonable person in the defendant's position, given the totality of the circumstances, would
feel free to decline a police officer's request or otherwise terminate the encounter. See
Bostick, 501 U.S. at 434. The test is necessarily imprecise, because it is designed to assess
the coercive effect of police conduct, taken as a whole, rather than to focus on particular
details of that conduct in isolation. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).
1

[Headnote 5]
In this case, one officer approached Burkholder on a public street and had a very brief
conversation with him before the search in question. The evidence does not indicate that
Freelove blocked Burkholder's ability to proceed down the sidewalk. The officer identified
himself as a police officer and showed his badge. However, the record does not indicate that
Freelove physically touched Burkholder, displayed his weapon, used a commanding tone in
his questions or threatened Burkholder. Accordingly, we conclude that Burkholder voluntarily
consented to the search in question.
Burkholder contends that the fact he was not told that he could decline to answer
Freelove's requests is crucial to this court's analysis of the voluntariness of Freelove's search.
[W]hile the subject's knowledge of a right to refuse is a factor to be taken into account, the
prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a
voluntary consent.
__________

1
Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty
of a citizen may we conclude that a seizure' has occurred. Terry, 392 U.S. at 19 n.16. Further, so long as a
reasonable person would feel free to disregard the police and go about his business, the encounter is
consensual. California v. Hodari D., 499 U.S. 621, 628 (1991).
Schneckloth, 412 U.S. at 248-49. As such, numerous cases have held a consent voluntary
even where the police did not inform the accused that they could refuse the police's requests.
See generally United States v. Gonzales, 979 F.2d 711 (9th Cir. 1992); United States v.
$25,000 United States Currency, 853 F.2d 1501 (9th Cir. 1988).
Accordingly, in light of the public location of Freelove's questioning and Freelove's
non-coercive conduct toward Burkholder during the questioning, we conclude that
Burkholder's consent to the search was voluntary. Therefore, the district court erred by
granting Burkholder's motion to suppress.
Dismissal of the charge against Burkholder
[Headnote 6]
On October 9, 1995, the district court issued an order dismissing the controlled substance
charge against Burkholder. Apparently, however, Burkholder never filed a motion to dismiss.
For that reason, the State argues that the district court's dismissal of the charge against
Burkholder was improper. We agree.
The State has the right to decide whether to proceed to trial without evidence that is
suppressed or move to dismiss the case. Until trial, the district court cannot know the full
extent of the State's evidence against an accused because the State may not have presented all
their evidence at the preliminary hearing. Also, despite a suppression order, other evidence
presented at a preliminary hearing is still admissible at trial. The jury, not the district court,
should be allowed to determine whether the State has sufficient evidence to prove a crime
charged beyond a reasonable doubt.
In the case at bar, evidence that was not suppressed could have been used by the State to
pursue the charge against Burkholder. The motion to suppress sought to exclude only the
results of any laboratory tests on Burkholder's urine or blood. Freelove's and Abbott's
observations and opinions of Burkholder, the drug recognition examination that was
conducted on Burkholder, and Burkholder's admission that he used methamphetamine and
marijuana prior to the incident in question may still be admissible.
Accordingly, we conclude that the district court improperly dismissed the charge against
Burkholder.
CONCLUSION
We conclude that the district court incorrectly ruled that Freelove's search of Burkholder
was illegal. Also, we conclude that the district court acted outside its authority by dismissing
the charge against Burkholder.
charge against Burkholder. Therefore, we reverse the district court's orders which granted
Burkholder's motion to suppress and which dismissed the charge against Burkholder, and we
remand this case to the district court for further proceedings.
____________
112 Nev. 541, 541 (1996) Sunde v. Contel of California
J. MICHAEL SUNDE and WESTCOM LONG DISTANCE, INC., a Nevada Corporation,
Appellants, v. CONTEL OF CALIFORNIA, a California Corporation, Doing Business
in Nevada as CONTEL OF NEVADA, Respondent.
No. 26928
May 1, 1996 915 P.2d 298
Proper person appeal from a final judgment in an action based on numerous claims
including unfair trade practices, breach of contract, fraud and negligence. Ninth Judicial
District Court, Douglas County; David R. Gamble, Judge.
Plaintiff-corporation brought suit against defendant corporation. After defendant objected
to plaintiff's president acting as its representative in lieu of a licensed attorney, complaint was
amended to add president as plaintiff, and plaintiff transferred its interest in litigation to
president. Thereafter the district court entered judgment for defendant and appeal was taken.
On appeal, defendant moved to require plaintiff to retain counsel. The supreme court held
that plaintiff would be required to be represented by counsel on appeal, despite claim by
president that he was representing himself.
Motion granted requiring appellant Westcom to retain counsel.
J. Michael Sunde, In Proper Person, Reno, for Appellants.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd., Carson City, for Respondent.
Corporations.
President of corporation-plaintiff could not represent corporation on appeal of adverse trial court decision, even though prior to
decision corporation had assigned its rights in litigation to president, who had been added as additional plaintiff, and president claimed
that he was representing himself; rule that corporation must be represented by attorney would nonetheless be applied.
OPINION
Per Curiam:
FACTS
On November 18, 1991, appellant Westcom Long Distance, Inc. filed a complaint through
counsel against respondent Contel of California. Westcom asserted numerous causes of
action including unfair trade practices, interference with prospective economic advantage and
slander. On March 16, 1992, Westcom's counsel filed a substitution of counsel in the district
court. Counsel consented to allow appellant J. Michael Sunde to be substituted in his place.
Sunde, a non-lawyer, is the president of Westcom.
Contel objected to the substitution and contended that Sunde could not represent Westcom
because a corporation cannot appear in proper person and Sunde was not authorized to
practice law. The district court stayed the proceedings until Westcom and Sunde retained
counsel. The district court noted that Sunde could represent his own interests but that he
could not represent Westcom's.
Sunde did not obtain counsel for himself or for Westcom; instead, he filed a motion to add
himself as a plaintiff to the complaint. In the motion, Sunde explained that as president of
Westcom, he had assigned Westcom's rights under the complaint to himself.
Contel opposed Sunde's motion to add himself as a plaintiff. On January 7, 1993, the
district court ruled that Sunde could add himself as a party to the complaint to represent his
own interests and those of Westcom.
The case proceeded to a bench trial which lasted from May 9, 1994, to June 1, 1994. The
district court granted judgment in favor of Contel and rejected all of the claims in Sunde's and
Westcom's complaint. This appeal followed.
On April 28, 1995, Contel filed a motion in this court to order Sunde and Westcom to
obtain counsel in this appeal. Sunde opposes the motion.
DISCUSSION
Non-lawyers generally may not represent another person or an entity in a court of law.
Rowland v. California Men's Colony, 506 U.S. 194, 201, 113 S. Ct. 716, 721 (1993). Some
courts have allowed non-lawyers to represent entities in court under certain circumstances.
See, e.g., Vermont ANR v. Upper Valley Reg. Landfill, 621 A.2d 225, 228 (Vt. 1992). This
court, however, has consistently required attorneys to represent other persons and entities
in court.
consistently required attorneys to represent other persons and entities in court. Salman v.
Newell, 110 Nev. 1333, 885 P.2d 607 (1994); Pioneer Title v. State Bar, 74 Nev. 186,
189-90, 326 P.2d 408, 410 (1958); see also NRS 7.285 (no person allowed to practice law in
Nevada unless admitted to State Bar).
Sound policy reasons support requiring entities to be represented only by licensed counsel:
[The reasons] are principally that the conduct of litigation by a nonlawyer creates
unusual burdens not only for the party he represents but as well for his adversaries and
the court. The lay litigant frequently brings pleadings that are awkwardly drafted,
motions that are inarticulately presented, proceedings that are needlessly multiplicative.
In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of
the attorney's ethical responsibilities, e.g. to avoid litigating unfounded or vexatious
claims.
Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2nd Cir. 1983). Requiring attorney
representation also protects the public by helping to ensure that its interests are competently
litigated. Margaret Maunder Associates v. A-Copy, Inc., 499 A.2d 1172, 1174 (Conn. Super.
1985).
We grant Contel's motion to require Westcom to be represented by counsel in this appeal,
and we deny Sunde's motion to proceed in proper person. Westcom shall have thirty (30) days
from the date of this order within which to retain counsel to represent it in this appeal, and to
enter counsel's appearance with the clerk of this court. See NRAP 46(a). Counsel for
Westcom shall have thirty (30) days from the date counsel enters an appearance within which
to file the opening brief. Briefing shall then proceed in accordance with NRAP 31(a)(1). We
caution appellants that failure to comply with this order will result in the immediate dismissal
of this appeal.
____________
112 Nev. 544, 544 (1996) Binegar v. District Court
MARK ALLEN BINEGAR, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
LEE GATES, District Judge, Respondents, and THE STATE OF NEVADA, Real
Party in Interest.
No. 27579
May 1, 1996 915 P.2d 889
Petition for writ of mandamus or in the alternative writ of prohibition challenging an order
of the district court denying respondents' motion for a protective order. Eighth Judicial
District Court, Clark County; Lee A. Gates, Judge.
Criminal defendant filed petition for writ of mandamus or, in alternative, writ of
prohibition challenging constitutionality of newly enacted criminal discovery statutes. The
supreme court held that: (1) issue raised was capable of repetition yet evading review even
though defendant had been convicted after application of statutes was stayed; (2) as written,
statutes were not limited to witnesses that defendant intended to call at trial and required
disclosure of any relevant witness statements and any reports and results of physical
examinations or scientific tests even if defendant did not intend to introduce them at trial; (3)
as so construed, statutes violated Fifth Amendment; and (4) remaining statutes enacted by
pertinent legislation could not be sustained even if they were constitutional.
Statute declared unconstitutional.
Patricia M. Erickson, Las Vegas; Wright Judd & Winckler, Las Vegas, for Petitioner.
James Tufteland, Chief Deputy District Attorney, Clark County, for Real Party in Interest.
Dominic P. Gentile, Ltd. and Jonell Thomas, Las Vegas, for Amicus Curiae Nevada
Attorneys for Criminal Justice.
Morgan D. Harris, Public Defender, Kedric A. Bassett, Deputy Public Defender, Clark
County, for Amicus Curiae Clark County Public Defender's Office.
Richard A. Gammick, District Attorney, Terrence C. McCarthy, Deputy District Attorney,
Washoe County; Patricia Lynch, City Attorney, William L. Gardner, Chief Deputy City
Attorney, Reno; Steven Elliott, City Attorney, Sparks; Noel Waters, District Attorney, Roy
L.
Attorney, Reno; Steven Elliott, City Attorney, Sparks; Noel Waters, District Attorney, Roy L.
Stralla, Deputy District Attorney, Carson City; Scott Doyle, District Attorney, Kristine L.
Brown, Deputy District Attorney, Douglas County; Janet Hess, District Attorney, Storey
County, for Amici Curiae (District Attorneys).
1. Mandamus; Prohibition.
Criminal defendant's petition for writ of mandamus or, in alternative, writ of prohibition challenging constitutionality of reciprocal
discovery statutes was not moot even though state supreme court had entered order staying application of statute and verdict had been
rendered in defendant's case prior to rendering of decision on petition. Issue of whether statutes were constitutional was capable of
repetition yet evading review since, in almost every case challenging statutes, defendant would request stay, stay would be granted, and
case would reach verdict before constitutionality issue would be addressed. NRS 174.089(1), 174.235(2).
2. Statutes.
If statute lacks clear meaning on its face, court must interpret it consistent with intent of legislature.
3. Criminal Law.
Reciprocal discovery statutes which, as written, applied to any relevant witness statements and any reports or results of physical
examinations or scientific tests even if defendant did not intent to introduce them at trial violated Fifth Amendment; in compelling
disclosure of even information that defendant did not intend to disclose at trial, statute compelled disclosure of possibly incriminating
evidence. U.S. Const. amend. 5; NRS 174.089(1), 174.235(2).
4. Statutes.
After state supreme court declared certain provisions of reciprocal discovery statutes unconstitutional as violative of criminal
defendant's Fifth Amendment rights, remaining provisions also had to be stricken even if they could pass constitutional muster; scope
and object of legislation creating statutes was defeated by rejection of provisions in question. U.S. Const. amend. 5; NRS 174.089(1),
(2), 174.235(2), 174.245(2).
5. Statutes.
If law passed by legislature is constitutional in part but unconstitutional as to some of its provisions, that which is constitutional
will be sustained unless whole scope and object of law is defeated by rejecting objectionable features.
OPINION
Per Curiam:
FACTS
This case involves the constitutionality of Nevada's reciprocal discovery statute, passed as Assembly Bill 151 (AB 151) and codified
as amendments to NRS Chapter 174.
codified as amendments to NRS Chapter 174. AB 151 became effective on October 1, 1995.
AB 151 added a new section to NRS Chapter 174 which is codified at NRS 174.089 and
provides:
A defendant shall:
1. Not later than the date on which both parties appear before the court and
announce they are ready for trial or, if such an appearance is not required, not less than
5 judicial days before trial, file and serve upon the prosecuting attorney a written notice
containing the names and last known addresses of all known prospective witnesses; and
2. If any witness is expected to offer testimony as an expert witness, file and serve
upon the prosecuting attorney not less than 21 days before trial or at such other time as
the court may direct, a written notice containing:
(a) A brief statement regarding the subject matter on which the witness is expected
to testify and the substance of his testimony; and
(b) A copy of the curriculum vitae of the witness.
The defendant has a continuing duty to disclose promptly the names and last known
addresses of any additional witnesses which come to the attention of the defendant and
to provide promptly any information required by subsection 2.
1995 Nev. Stat., ch. 174, 1 at 263. AB 151 also amended the following two existing
sections of NRS Chapter 174. NRS 174.235(2) now reads as follows:
At the request of the prosecuting attorney, the defendant shall permit the prosecuting
attorney to inspect and copy or photograph any relevant:
(a) Written or recorded statements made by any witness, or copies thereof, within the
possession, custody or control of the defendant, the existence of which is known, or by
the exercise of due diligence may become known, to the defendant; and
(b) Results or reports of physical or mental examinations, and of scientific tests or
experiments made in connection with the particular case, or copies thereof, within the
possession, custody or control of the defendant, the existence of which is known, or by
the exercise of due diligence may become known, to the defendant.
1995 Nev. Stat., ch. 174, 3 at 264. NRS 174.245(2) now reads as follows:
At the request of the prosecuting attorney, the defendant shall permit the prosecuting
attorney to inspect and copy or photograph books, papers, documents, tangible
objects, buildings or places, or copies or portions thereof, which are within his
possession, custody or control.
photograph books, papers, documents, tangible objects, buildings or places, or copies or
portions thereof, which are within his possession, custody or control. This subsection
does not authorize the discovery or inspection of reports, memoranda or other internal
defense documents made by the defendant, or his attorneys or agents in connection with
the investigation or defense of the case, or of statements made by the defendant, or by
state or defense witnesses, or by prospective state or defense witnesses, to the
defendant, his agents, or attorneys.
1995 Nev. Stat., ch. 174, 4 at 265.
Binegar was charged with one count of first degree murder. Pursuant to NRS 174.235(2),
the State requested that Binegar produce any evidence regarding the psychiatric examination
the defense had conducted on Binegar. On October 16, 1995, at the hearing prior to trial to
determine if Binegar was required to produce the examination reports, Binegar argued that he
should not have to produce the results of the examination because he did not intend to call the
psychiatrist as a witness or introduce the results of the examination at trial. Binegar further
claimed that NRS 174.089(1) violated his Fifth and Sixth Amendment rights because it
applied to prospective witnesses, which could be almost anybody, and was not limited to
witnesses that defendant intended to call at trial.
The prosecutor stated that he was interested in utilizing the provisions of AB 151 only as
to the witnesses or materials that Binegar intended to call or introduce at trial and that he
needed the report because he was unsure if Binegar was going to call the psychiatrist or
introduce the report at trial. The prosecutor also stated that AB 151 was patterned after
identical California Penal Code statutes which the California Supreme Court in Izazaga v.
Superior Court, 815 P.2d 304 (Cal. 1991), determined were constitutional under both the
federal and California Constitutions. Binegar argued that the identical California Penal
Code statutes were actually different from AB 151 because the California statutes were
strictly limited to apply only to witnesses and materials that the defendant intended to call at
trial, and NRS 174.089(1) and NRS 174.235(2) were not so limited. Therefore, Binegar
argued that the Izazaga decision should be ignored.
The district judge determined that the reciprocal discovery statute was constitutional
except for NRS 174.245(2), which the district judge believed authorized a prosecutor to
inspect and copy objects within the control of the defendant in violation of the Fourth
Amendment. The district judge denied Binegar's motion for a protective order and ordered
Binegar and his counsel to turn over to the prosecutor the names and addresses of the
"prospective witnesses they intended to call at trial."
over to the prosecutor the names and addresses of the prospective witnesses they intended to
call at trial.
On October 16, 1995, Binegar filed with this court an original petition for a writ of
mandamus or in the alternative a writ of prohibition challenging the district court's order
denying his motion for a protective order. On October 17, 1995, this court entered an order
staying the application of the amendments to NRS Chapter 174 to Binegar pending a further
order of this court.
In its reply to Binegar's writ petition, the State admitted that NRS 174.089(1), which
applied to prospective witnesses, might be overly broad, requested that this court interpret
prospective witnesses to mean witnesses that the defendant intended to call at trial, and
stated that after such an interpretation this court should conclude that AB 151 is
constitutional. Binegar, however, argued that the prosecution's interpretation would
contravene the intent of the legislature, that this court should evaluate NRS 174.089(1), as
well as the remaining sections of AB 151, as written, and that such an evaluation should lead
this court to conclude that AB 151 is unconstitutional.
DISCUSSION
[Headnote 1]
We initially note that this court entered an order staying the application of AB 151 to
Binegar's case pending a further order from this court. Furthermore, a verdict was rendered in
Binegar's case prior to the rendering of this opinion. Thus, Binegar was never subjected to the
provisions of AB 151, and it appears that his petition should be denied as moot.
However, this court will still consider Binegar's writ petition, and additionally determine
the adjunct issue of the constitutionality of AB 151, because the claims fall within an
exception to the mootness doctrine for cases which are capable of repetition, yet evading
review. Langston v. State, Dep't of Mtr. Vehicles, 110 Nev. 342, 344, 871 P.2d 362, 363
(1994). The issue of whether AB 151 is constitutional is capable of repetition, yet evading
review, because it presents a situation whereby an important question of law could not be
decided because of its timing. State v. Washoe Co. Public Defender, 105 Nev. 299, 301, 775
P.2d 217, 218 (1989). Binegar's case illustrates this fact because the order staying the
application of the statute to Binegar's case was granted, and Binegar's case was concluded
before this court was able to reach the issue of the constitutionality of AB 151. We note that
in almost every case challenging the constitutionality of AB 151, the defendant will request
this court to stay the application of the statute to his or her case pending an opinion by this
court determining whether the statute is constitutional, this court will grant the stay, and
the defendant's case will reach a verdict before this court can evaluate the statute.
determining whether the statute is constitutional, this court will grant the stay, and the
defendant's case will reach a verdict before this court can evaluate the statute. Therefore
because the issue of determining the constitutionality of AB 151 is capable of repetition yet
evading review, we will evaluate the constitutionality of the statute now.
To determine the constitutionality of AB 151, this court first must decide whether
prospective witnesses in NRS 174.089(1) should be interpreted to apply only to witnesses
that the defendant intends to call at trial. Additionally, this court must decide whether NRS
174.235(2) should be interpreted as written to apply to all relevant statements and reports
within the defendant's control or if it should be interpreted more narrowly to apply only to
statements and reports within the defendant's control that the defendant intends to introduce
at trial. After deciding how to interpret these two sections of AB 151, this court must then
determine if these sections, as interpreted, are constitutional.
[Headnote 2]
If the statute lacks clear meaning on its face, [i]t is well established that the court must
interpret [the statute] consistent with the intent of the legislature. Steward v. Steward, 111
Nev. 295, 302, 890 P.2d 777, 781 (1996); see Sheriff v. Morris, 99 Nev. 109, 117, 659 P.2d
852, 858 (1983) (concluding that it is a fundamental principle of statutory construction that
where at all possible, statutes should be construed so as to give effect to the legislative
intent). Therefore, this court must ascertain the intent of the legislature to determine how to
interpret NRS 174.089(1) and NRS 174.235(2).
[Headnote 3]
Based on the statements made and actions taken during the legislative sessions concerning
AB 151, it appears that the legislature intended prospective witnesses in NRS 174.089(1) to
apply to persons other than just witnesses that the defendant intended to call at trial. The
original version of NRS 174.089(1) required the defendant to disclose the names and
addresses only of the witnesses that the defendant intended to call at trial, but that language
was expressly stricken and later substituted with the prospective witness language seen in
the final version of NRS 174.089(1). Additionally, NRS 174.089(2), which applies to expert
witnesses, requires that the defendant provide certain information to the prosecution only if
the expert is expected to offer testimony. The legislature could have put such limiting
language in NRS 174.089(1) but chose not to do so. Therefore, we conclude that we cannot
interpret NRS 174.089(1) to apply only to witnesses that the defendant intends to call at trial
because to do so would be contrary to the intent of the legislature.
We similarly conclude that we cannot interpret NRS 174.235(2) to apply only to witness
statements and reports that the defendant intends to introduce at trial because to do so would
contravene the legislature's intent. The legislature had the opportunity to limit NRS
174.235(2) in such a way but failed to do so. Therefore, we will evaluate the constitutionality
of NRS 174.235(2) based on the fact that it applies, as written, to any relevant witness
statements and any reports or results of physical examinations or scientific tests, even if the
defendant does not intend to introduce those statements and materials at trial.
1

The next step is to determine whether NRS 174.089(1) and NRS 174.235(2), as interpreted
above, are constitutional. We conclude that they are not because they present a violation of an
accused's rights under the Fifth Amendment of the United States Constitution.
2
Preliminarily, we note that these sections of AB 151 are not identical to the reciprocal
discovery statutes enacted in California in 1990 and declared constitutional by the California
Supreme Court in Izazaga v. Superior Court, 815 P.2d 304 (Cal. 1991), because California's
statutes are specifically limited to witnesses and materials that the defendant intends to
introduce at trial and these sections are not. See California Penal Code 1054-1054.7 (West
1985 & Supp. 1996).
In Williams v. Florida, 399 U.S. 78 (1970), the United States Supreme Court considered
the issue of whether a Florida notice of alibi statute violated the Fifth Amendment of the
United States Constitution. Florida's statute required the defendant to give notice in advance
of trial if he intended to claim an alibi and to furnish the prosecutor with information as to the
place where he claimed to have been and with the names and addresses of the alibi witness he
intended to use. The prosecutor had a reciprocal duty to inform the defendant of any
witnesses it intended to call to rebut the alibi defense. The defendant declared an intent to
claim an alibi but refused to disclose any other information, stating that the notice-of-alibi
rule violated his Fifth Amendment rights.
The United States Supreme Court concluded that the privilege against self-incrimination
was not violated by the notice-of-alibi statute. The Court stated that the defendant would have
been forced to reveal the identity of the alibi witness at trial, and that
[a]t most, the rule only compelled the petitioner to accelerate the timing of his
disclosure, forcing him to divulge at an earlier date information that the petitioner
from the beginning planned to divulge at trial.
__________

1
We recognize the fact that the Nevada legislature will reconvene in less than one year and that they can redraft
these sections to reflect a different intent if they so choose.

2
No person . . . shall be compelled in any criminal case to be a witness against himself . . . . U.S. Const.
amend V.
earlier date information that the petitioner from the beginning planned to divulge at
trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of
constitutional right to await the end of the State's case before announcing the nature of
his defense, any more than it entitles him to await the jury's verdict on the State's
case-in-chief before deciding whether or not to take the stand himself.
Id. at 85.
The California Supreme Court used the logic from Williams and determined that
California's reciprocal discovery statutes did not violate the Fifth Amendment because they
did nothing more than compel the defendant to accelerate the timing of disclosures that the
defendant intended to divulge at trial anyway. Izazaga, 815 P.2d at 309-314. However, we
have concluded that California's reciprocal discovery statutes are fundamentally different
from AB 151 and therefore AB 151 is not saved by the reasoning of Izazaga.
We conclude that NRS 174.089(1) and NRS 174.235(2) have a greater effect than simply
compelling the defendant to accelerate the timing of disclosures that the defendant intended
to divulge at trial. Under NRS 174.089(1), the defendant would be forced to disclose names
and addresses of prospective witnesses, which would likely include an extremely large class
of individuals and could certainly include witnesses that the defendant never intended to
introduce at trial. Under NRS 174.235(2), the defendant would be forced to disclose witness
statements and the results or reports of mental and physical examinations and scientific tests
or experiments, even if the defendant never intended to introduce the statements or materials
at trial. In such circumstances the defendant would be compelled to do more than simply
accelerate the timing of intended disclosures of materials; the defendant would be forced to
disclose information that he never intended to disclose at trial, some of which could be
incriminating. Such a situation would violate a defendant's constitutional guarantees against
self-incrimination.
[Headnotes 4, 5]
The final issue concerns the effect of this court's rulings on the constitutionality of NRS
174.089(1) and NRS 174.235(2) on the remaining sections of AB 151, namely NRS
174.089(2) and NRS 174.245(2). If a law passed by the legislature is constitutional in part,
but unconstitutional as to some of its provisions, that which is constitutional will be
sustained, unless the whole scope and object of the law is defeated by rejecting the
objectionable features.' Jones v. State, 85 Nev. 411, 415, 456 P.2d 429, 431 {1969)
{quoting State v. Westerfield, 23 Nev. 46S, 474
(1969) (quoting State v. Westerfield, 23 Nev. 468, 474, 49 P. 119, 121 (1897)).
Without reaching the issue of whether NRS 174.089(2) and NRS 174.245(2) are
constitutional, we conclude that those sections cannot be sustained because the scope and
object of AB 151 is defeated with the rejection of NRS 174.089(1) and NRS 174.235(2).
Therefore, NRS 174.089(2) and NRS 174.245(2) must also be stricken.
Even if we did embark on a course to interpret the relevant sections of AB 151 to apply
only to witnesses and materials that the defendant intended to introduce at trial, thereby
bringing these sections into compliance with Williams
3
, other constitutional problems would
remain.
First, NRS 174.089(1) does not contain a reciprocal duty for the State to comply with
requirements equivalent to those placed upon the defendant to provide names and addresses
of witnesses, and such a situation might violate a criminal defendant's due process rights. See
Wardius v. Oregon, 412 U.S. 470 (1973). Therefore, we would have been required to (1)
determine whether we should interpret NRS 174.089(1) to contain a reciprocal duty for the
State to comply with; and (2) determine whether NRS 174.089(1), however interpreted,
violated a criminal defendant's due process rights.
Second, NRS 174.245(2) appears to give the State the authority to improperly search and
seize a criminal defendant's property in violation of the Fourth Amendment of the United
States Constitution. The section states that upon the request of the prosecutor, the criminal
defendant shall permit the prosecutor to inspect the defendant's buildings or places, which
likely includes places such as the defendant's home and business where the defendant has a
reasonable expectation of privacy. The section contains no safeguards or procedures to
prevent the State from using NRS 174.245(2) to circumvent search warrant requirements
which the State must usually satisfy before conducting a search of a place in which the
defendant has a reasonable expectation of privacy, and the lack of such safeguards or
procedures might create a constitutional infirmity in NRS 174.245(2).
__________

3
Even if the relevant sections of AB 151 were in compliance with Williams, and therefore with the United
States Constitution, this court would still have to evaluate the statute under the Fifth Amendment provisions of
the Nevada Constitution. See Nev. Const. art. 1, 8. Furthermore, this court is under no compulsion to follow
decisions of the United States Supreme Court in determining whether a statute violates the Nevada Constitution.
Zale-Las Vegas v. Bulova Watch, 80 Nev. 483, 501-02, 396 P.2d 683, 693 (1964). However, this court has not
considered the issue of whether NRS 174.089(1) and NRS 174.235(1) would violate article 1, section 8 of the
Nevada Constitution if they were interpreted to apply only to witnesses and materials that the defendant intended
to introduce at trial.
CONCLUSION
We conclude that Binegar's contentions have merit.
4
After evaluating AB 151, we
conclude that we cannot interpret NRS 174.089(1) and NRS 174.235(2) to apply only to
witnesses and materials that the defendant intends to call at trial because to do so would
contravene the legislature's intent. As written, those sections present unconstitutional
violations of the Fifth Amendment of the United States Constitution because they require a
defendant to do more than accelerate the timing of disclosures that the defendant intended to
divulge at trial and potentially forces the defendant to incriminate himself in violation of
constitutional guarantees.
Additionally, we conclude that the remaining sections of AB 151, namely NRS 174.089(2)
and NRS 174.245(2), cannot be sustained because the scope and object of AB 151 was
defeated with the rejection of NRS 174.089(1) and NRS 174.235(2). Therefore, NRS
174.089(2) and NRS 174.245(2) must also be invalidated.
____________
112 Nev. 553, 553 (1996) Hogan v. Warden
MICHAEL RAY HOGAN, Appellant, v. WARDEN, ELY STATE PRISON, Respondent.
No. 23193
May 3, 1996 916 P.2d 805
Petition for rehearing and post-judgment motions. Seventh Judicial District Court, White
Pine County; Jack B. Ames, Judge.
After petitioner's convictions for murder and attempted murder, and imposition of death
sentence were affirmed, 103 Nev. 21, 732 P.2d 422 (1987); petitioner sought post-conviction
relief. The district court dismissed subsequent habeas petition, and petitioner appealed. The
supreme court, 109 Nev. 952, 860 P.2d 710 (1993), affirmed. Petitioner sought rehearing and
postjudgment motions. The supreme court, Shearing, J., held that: (1) petitioner was not
entitled to disclosure of grounds for disqualification of justice, and (2) petitioner was not
entitled to disclosure of informal judicial discipline proceedings as potential grounds for
disqualification.
Petition and motions denied.
__________

4
Issuance of a writ will provide no effective relief for Binegar because by virtue of this court's stay order, the
statute was never applied to him. Accordingly, it is unnecessary to issue the requested writ. Nevertheless, this
constitutes this court's final decision respecting the important public policy issue of whether the statute was
constitutional.
Michael Pescetta, Nevada Appellate and Postconviction Project, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General and Robert E. Wieland, Deputy Attorney
General, Carson City, for Respondent.
1. Judges.
Petitioner's motion for complete disclosure of information relating to judicial disqualification, which immediately followed motion
to disqualify, was procedurally barred by rule prohibiting serial disqualification motions. NRAP 35(d).
2. Judges.
Petitioner was not entitled to disclosure of grounds for disqualification of justice on basis of allegations that board member of state
post-conviction project had previously represented justice in another matter, though petitioner alleged that board member attempted to
have motion to disqualify withdrawn and another board member represented petitioner, where it was not alleged that board member
represented justice during time in which disqualification motion was pending before court.
Due process clause prohibits judge with direct interest in case from participating in its resolution. U.S. Const. amend. 14.
4. Judges.
Subjecting judges to informational quests regarding their qualifications to sit on certain matters erodes public's regard for
judiciary's integrity and directly contravenes foundation on which Code of Judicial Conduct rests.
5. Judges.
Standard which provides that party seeking to disqualify judge has burden of setting forth sufficient facts that demonstrate bias or
appearance thereof applies with equal force to motion for information regarding potential grounds for disqualification.
6. Judges.
Petitioner was not entitled to disclosure of informal judicial disciplinary proceedings as potential grounds for judicial
disqualification, in light of petitioner's failure to set forth any facts suggesting that any judge involved in his proceedings was subject
to attorney general's supervision due to such informal discipline.
OPINION
FACTS
On September 29, 1993, we issued an opinion in Hogan v. Warden, 109 Nev. 952, 860 P.2d 710 (1993), in which we affirmed the
district court's order dismissing Hogan's post-conviction petition for a writ of habeas corpus. In our opinion, we concluded that the two
aggravating circumstances on which Hogan's death penalty is based are constitutionally valid.
Hogan's death penalty is based are constitutionally valid. On October 18, 1993, Hogan filed a
petition for rehearing. On October 27, 1993, this court filed an order substituting attorney
Michael Pescetta, then Executive Director of the Nevada Appellate and Postconviction
Project, as Hogan's counsel.
On December 7, 1993, Hogan filed a motion for Justice Rose's disqualification. In his
motion, Hogan asserted that because Justice Rose was investigated in 1993 after he spoke to
the Clark County District Attorney about a pending criminal matter, he should be disqualified
from Hogan's appeal, which was pending in this court during the same time frame. On
December 10, 1993, attorney Cal J. Potter III, then President of the Postconviction Project's
Board of Directors, filed a notice of withdrawal of the motion for disqualification.
Subsequently, on December 23, 1993, this court filed an order denying the request to
withdraw the motion and noting that neither attorney Potter nor the Postconviction Project
was counsel of record for Hogan.
On February 18, 1994, we denied Hogan's disqualification motion; in our order, we
determined that Hogan's motion stated no legally cognizable ground warranting
disqualification. On the same day (February 18, 1994), Hogan filed with this court a motion
for leave to file a motion under seal. With this motion for leave, he submitted a Motion for
Disclosure of Grounds for Disqualification, which this court received. According to this
motion, attorney Thomas Pitaro, then Vice President of the Postconviction Project's Board of
Directors, represented Justice Rose when Justice Rose was investigated regarding his
conversation with the District Attorney. Hogan maintains that attorney Pitaro also
participated in the Postconviction Board's decision to withdraw Hogan's disqualification
motion. According to Hogan, the fact that Pitaro represented Justice Rose and participated in
making decisions about Hogan's case gives rise to a conflict, notwithstanding this court's
conclusion that the disqualification motion could not be withdrawn.
On May 9, 1994, Hogan filed, through Pescetta, a motion for an order requiring the
disclosure of informal judicial discipline proceedings. In this motion, Hogan seeks an order
from this court directing disclosure by each justice and each judge before whom his case was
previously pending of any informal discipline, any informal arrangement to avoid discipline,
or any other similar action of the Commission on Judicial Discipline, when the Commission
was represented by the Attorney General or any other state prosecutor, to which the judicial
officer was a party at the time [Hogan's] case was also pending. According to Hogan, this
court's opinion in Whitehead v. Nevada Commission on Judicial Discipline, 110 Nev. 3S0
Judicial Discipline, 110 Nev. 380, 873 P.2d 946 (1994), reveals that in the past, the Attorney
General administered secret disciplinary arrangements to some judges. Hogan maintains
that if any judge involved in his proceedings was concurrently subject to such secret
disciplinary proceedings, the judge would be disqualified under the Nevada Code of Judicial
Conduct (NCJC).
DISCUSSION
Motion for Disclosure of Grounds for Disqualification
In his motion, Hogan asks this court to take whatever action is necessary to ensure
complete disclosure of information relating to the disqualification issue. We conclude,
however, that Hogan's motion must be denied.
1

[Headnote 1]
First, because Hogan's motion follows an earlier motion, it constitutes a serial
disqualification motion. NRAP 35(d) provides that [s]erial motions or charges, whether
entitled as separate challenges, or as supplements, or entitled in any other way, must not be
filed, and will not be entertained. See also Whitehead v. Comm'n on Jud. Discipline, 110
Nev. 380, 429, 873 P.2d 946, 977 (1994) (recognizing that NRAP 35(d) precludes this court's
consideration of serial disqualification motions). Therefore, Hogan's motion is procedurally
deficient under NRAP 35(d). Additionally, to the extent that Hogan's motion is a supplement
to his original disqualification motion, it became moot when, on February 18, 1994, we
denied the original motion. See generally NCAA v. University of Nevada, 97 Nev. 56, 624
P.2d 10 (1981).
[Headnote 2]
Finally, even considering the merits of Hogan's motion, we conclude that it sets forth no
basis for disqualification.
2
This court has previously rejected a similar disqualification claim.
In Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958
(1989), after this court had rendered its decision, the insurer filed a motion to disqualify
former Justice Gunderson.
__________

1
As Hogan has not demonstrated good cause for filing a sealed motion, we deny his motion for leave to file
under seal. Despite Hogan's failure to comply with NRAP 35, we direct the clerk of this court to file the motion.

2
Pescetta recognizes that with regard to the attempt to withdraw Hogan's disqualification motion, this court
correctly determined that Hogan was not represented by either attorney Potter or the Postconviction Project.
Presumably, then, Pescetta also recognizes that Hogan was not represented by attorney Pitaro. Nevertheless,
Pescetta inexplicably suggests that because Pitaro was involved in the Postconviction Project and formerly
represented Justice Rose in an unrelated matter, Justice Rose should be disqualified.
its decision, the insurer filed a motion to disqualify former Justice Gunderson. The motion
was based, in part, on the ground that the attorney who had signed an amicus brief (Laura
Wightman FitzSimmons) had simultaneously represented former Justice Gunderson in
another matter.
This court concluded that this alleged ground did not warrant disqualification. With regard
to former Justice Gunderson's simultaneous representation by attorney FitzSimmons, who had
signed an amicus brief in the appeal, this court determined that FitzSimmons' involvement in
the case was extremely limited and [could not] reasonably support any inference of
impropriety. Id. at 265, 774 P.2d at 1023. In addition, this court noted that FitzSimmons did
not author the amicus brief, but merely signed it. Id.
Here, Hogan contends that attorney Pitaro repeatedly requested Pescetta to withdraw the
disqualification motion and later moved the Postconviction Board's Executive Committee to
withdraw the disqualification motion. According to Hogan, Pitaro did not vote on whether to
file the notice of withdrawal but that Pitaro proposed a number of editing changes to the draft
motion. Hogan does not allege that Pitaro was representing Justice Rose when the
Postconviction Board's decision to withdraw the disqualification motion was made. Hogan's
disqualification claim is therefore weaker than that presented in Ainsworth, and we conclude
that Hogan has not raised a viable disqualification claim.
3

Motion for Order Requiring Disclosure of Informal Judicial Discipline Proceedings
NCJC Canon 3, Section E provides, in part, as follows:
E. Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances
where:
__________

3
The dissenting justice protests that Hogan has been denied information from the attorney general and the
district attorney and has been denied access to court files relating to the investigation of Justice Rose. He
maintains that this court should direct that the district court's order sealing the files be vacated and that all of the
information requested by Hogan's counsel be furnished to him. He also opines that Hogan should be permitted to
bring a supplemental disqualification motion after receiving the relevant information. The basis for the
dissenting justice's position escapes us. First, NRAP 35(d) precludes serial disqualification motions. In addition,
Hogan's original motion for disqualification explained that he was unable to obtain relevant information from the
primary sources of information. Even so, the dissenting justice signed the order denying Hogan's motion, in
which we explained that Hogan had failed to set forth a factual basis supporting the motion.
bly be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer,
or personal knowledge[] of disputed evidentiary facts concerning the proceeding[.]
[Headnote 3]
The Due Process Clause also prohibits a judge with a direct interest in a case from
participating in its resolution. The Supreme Court has explained that an interest is
disqualifying under the Due Process Clause if it would offer a possible temptation to the
average . . . judge . . . not to hold the balance nice, clear and true.' In Re Murchison, 349
U.S. 133, 136 (1955) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).
In several recent opinions, it was suggested that the Nevada Commission on Judicial
Discipline had, in the past, acted outside the scope of its governing rules and the Nevada
Constitution when investigating and disciplining judges. See, e.g., Whitehead v. Comm'n on
Jud. Discipline, 110 Nev. 380, 873 P.2d 946 (1994); Whitehead v. Comm'n on Jud.
Discipline, 110 Nev. 874, 879-80, 878 P.2d 913, 917 (1994). The Whitehead court mentioned
secret arbitration,' secret mediation' and secret probation.' 110 Nev. at 416, 873 P.2d at
969. Additionally, the Whitehead court discussed the case of Judge D
------
, who was
placed on informal probation under the supervision of the Attorney General's office without
a probable cause hearing first being held. Id. at 418-19, 873 P.2d at 970-71.
Although we recognize that, depending on the factual circumstances presented, a judicial
disciplinary arrangement with the Attorney General's involvement could raise an appearance
of impropriety under NCJC Canon 3E, see, e.g., In Interest of McFall, 617 A.2d 707 (Pa.
1992), we conclude that Hogan's motion must be denied. We emphasize at the outset that
Hogan has not filed a disqualification motion and has instead filed a motion for the disclosure
of information. Therefore, we do not analyze whether any particular set of facts would
warrant judicial disqualification. Nevertheless, several policy considerations relating to
judicial disqualification are relevant to our evaluation of Hogan's motion.
[Headnote 4]
To begin, the primary policy behind the Code of Judicial Conduct is to promote public
confidence in the judiciary. See H.R. Rep. No. 1453, 93d Cong., 2d Sess. (1974), reprinted in
1974 U.S.C.C.A.N. 6351, 6355. Public confidence is not fostered by motions such as
Hogan's; such motions serve only to raise, without any factual basis, possible doubts about
the impartiality of Nevada's judiciary.
raise, without any factual basis, possible doubts about the impartiality of Nevada's judiciary.
Subjecting judges to informational quests regarding their qualifications to sit on certain
matters erodes the public's regard for the judiciary's integrity and directly contravenes the
foundation on which the Code of Judicial Conduct rests.
4

The NCJC recognizes the tension between legitimate disqualification claims and judicial
maneuvering: its preamble provides that the purpose of the Code would be subverted if the
Code were invoked by lawyers for mere tactical advantage in a proceeding. Similarly, NRAP
35 attempts to thwart attorney abuses by, inter alia, precluding serial disqualification
motions.
Here, Hogan has filed, through attorney Pescetta, three motions relating to judicial
disqualification. Although we certainly recognize that Hogan is entitled to a fair tribunal,
Hogan's multiple motions give us cause for concern that he seeks to delay and manipulate his
post-conviction proceedings.
In addition, we have repeatedly held that a judge or justice is presumed not to be biased,
and the burden is on the party asserting the challenge to establish sufficient factual
grounds warranting disqualification."
__________

4
We note that even if Hogan were to show that a judge involved in his proceedings was subject to an informal
disciplinary arrangement, the policy of fostering public confidence in the judiciary could, depending on the facts,
make retroactive relief problematic. The United Stales Supreme Court has concluded that in some post-judgment
and post-appeal cases, retroactive relief is required. See, e.g., Aetna Life Ins. v. Lavoie, 475 U.S. 813 (1986). In
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864 (1988), the Supreme Court concluded that
in determining whether a judgment should be vacated for a violation of [28 U.S.C.] 455(a) [the federal
statute which contains the same disqualification language as NCJC Canon 3E], it is appropriate to
consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will
produce injustice in other cases, and the risk of undermining the public's confidence in the judicial
process.
If any judge were deemed disqualified on the basis of the Attorney General's involvement in informal discipline
arrangements, this could open the door for every criminal defendant who appeared before the judge during the
relevant time period. (The Attorney General is at least a nominal party in most criminal appeals filed in Nevada.)
The state's efforts in the former proceedings would be invalidated, and countless new proceedings could be
required in a system that is already severely backlogged.
Further, such proceedings could (again, depending on the facts) potentially undermine the public's confidence in
the judiciary. See Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415 (Fed. Cir.), cert. denied, 490 U.S. 1047
(1989) (concluding that fundamental fairness precluded vacation of judge's orders rendered over six-year period
because there was little risk of injustice in other cases, public's confidence in integrity of judicial system was less
likely undermined if rulings were adhered to than if vacated years later on grounds other than merits, and party
bringing motion knew about disqualifying facts but remained silent).
asserting the challenge to establish sufficient factual grounds warranting disqualification.
Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988), quoted in In re Petition
to Recall Dunleavy, 104 Nev. 784, 788, 769 P.2d 1271, 1273 (1988).
5
This rule promotes
public confidence in the judiciary and encourages efficiency and finality in litigation. If a
party fails to allege sufficient facts, summary dismissal of the motion has been deemed
appropriate. See, e.g., PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 437, 894 P.2d 337, 341
(1995); Ainsworth v. Combined Ins. Co., 105 Nev. 237, 270, 774 P.2d 1003, 1026, cert.
denied, 493 U.S. 958 (1989); Dunleavy, 104 Nev. at 789, 769 P.2d at 1273-74.
[Headnotes 5, 6]
Here, although Hogan's motion is not a disqualification motion and instead seeks
information regarding potential grounds for disqualification, the policy that judges are
presumed unbiased applies with equal force. With regard to judicial disqualification, the
party has the burden of setting forth sufficient facts that demonstrate bias or the appearance
thereof; this standard would be set on end if a party could simply file a motion requesting
judges to reveal potentially disqualifying circumstances.
6
A party cannot simply end-run the
burden of production by seeking information from the court. Nevada law makes no provision
for the discovery of potentially disqualifying facts from judicial sources. If parties are
permitted to seek discovery from courts before which they appear, and to indirectly suggest
that an appearance of partiality may exist, then the standard that judges are presumed not to
be biased would be substantially eroded, especially where, as here, a matter has been finally
resolved on the merits.
__________

5
See also United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993), cert. denied,
------
U.S
------
, 115 S. Ct.
2250 (1995) (concluding that [r]umor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and
similar non-factual matters do not ordinarily satisfy the requirements for disqualification); Franks v. Nimmo,
796 F.2d 1230, 1235 (9th Cir. 1986) (concluding that [s]ection 455(a) must not be so broadly construed that it
becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of
personal bias or prejudice' ) (quoting United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982)); Austin v.
State, 528 N.E.2d 792, 794 (Ind. Ct. App. 1988) (ruling that in absence of circumstances suggesting otherwise, it
should be assumed that judge would have disqualified himself or herself if any reasonable question of
impartiality existed).

6
We note that while a case is pending, the judge or judges presiding over the case are encouraged by the NCJC
to reveal potentially disqualifying information: A judge should disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider relevant to the question of disqualification, even
if the judge believes there is no real basis for disqualification. NCJC Canon 3E, Commentary.
In line with this view, we have previously concluded that a potential death penalty
recipient has no right to voir dire a three-judge sentencing panel to discover how the judges
were selected. Paine v. State, 110 Nev. 609, 877 P.2d 1025 (1994). In Paine, we recognized
that
[a] judge is required by the Code of Judicial Conduct to respect and comply with the
law and [to] act at all times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary. Canon 2(A). Moreover, NRS 47.250(9), (10) and (16)
specify, respectively, as disputable presumptions: [t]hat official duty has been
regularly performed; [t]hat a court or judge, acting as such, whether in this state or
any other state or country, was acting in the lawful exercise of his jurisdiction; and
[t]hat the law has been obeyed.
Id. at 618, 877 P.2d at 1030. Here, as in Paine, we must assume, unless Hogan independently
sets forth specific facts showing otherwise, that the judges involved in his various
proceedings complied with the law and were impartial.
Finally, the Nevada Constitution provides for confidentiality of judicial discipline
commission proceedings: The supreme court shall make appropriate rules for . . . [t]he
confidentiality of all proceedings before the commission, except a decision to censure, retire
or remove a justice or judge. Nev. Const. art. 6, 21(5)(a). Rule 5(1) of the Administrative
and Procedural Rules for the Nevada Commission on Judicial Discipline states that [a]ll
proceedings must be confidential until there has been a determination of probable cause and a
filing of formal statement of charges. Rule 5(2) explains that [c]onfidentiality'
encompasses all proceedings of the commission and all information and materials, written,
recorded or oral, received or developed by the commission in the course of its work and
relating to alleged misconduct or disability of a judge. Further, Rule 6 provides that [a]ny
person who breaches the confidentiality of judicial disciplinary proceedings is subject to
being found guilty of contempt of the supreme court. In addition, members of the commission
who are judges are subject to disciplinary proceedings before the commission for violation of
this rule . . . . We conclude that a judge's constitutional right to confidentiality must not be
jeopardized by speculation or innuendo.
As explained throughout this opinion, we decline to speculate whether any particular
informal discipline scenario would require disqualification. Hogan has set forth no facts
suggesting that any judge involved in his proceedings was subject to the Attorney General's
supervision, nor are we aware of any such facts. Therefore, we refuse to take the
extraordinary measures that Hogan requests.
Therefore, we refuse to take the extraordinary measures that Hogan requests. Hogan is not
entitled to a judicial fishing expedition. We must presume, in accordance with our prior case
law, the NCJC, and sound public policy, that the judges involved in Hogan's proceedings
complied with the applicable law and conducted themselves in a manner consistent with the
canons and policies of the NCJC. Consequently, we deny Hogan's motion for an order
requiring the disclosure of informal judicial discipline proceedings.
Finally, we have considered Hogan's petition for rehearing, and we conclude that the
issues raised lack merit. Accordingly, we deny the petition. NRAP 40(c).
Rose, J., concurring:
I do not respond to the many scathing, misleading and false accusations and conclusions
made by Justice Springer in his dissent. I do caution that many factual statements made by
Justice Springer are not accurate or complete. It is just further evidence of the animosity that
Chief Justice Steffen and Justice Springer have toward me.
Mindful that this is a death case, I dissent to the majority's denial of Hogan's motion to
disqualify Justice Rose, who Hogan claims is prejudiced against him. I dissent also to the
majority's denial of Hogan's request to be provided with certain presently-concealed
documents relating to his case.
JUSTICE ROSE'S DECIDING HIS OWN
DISQUALIFICATION CHALLENGE
Strangely, Justice Rose has signed and participated in the majority opinion even though it
is Justice Rose's own qualification to sit in this case that is the subject of Hogan's motion.
Hogan claims that Justice Rose is disqualified to sit in his case because Justice Rose has been
subject to undue influence by certain prosecutorial officials. Hogan asserts that he will be able
to establish a firm factual basis for his claim if he is permitted to have access to certain secret
documents and other information that has been sealed in district court files by Judge Nancy
Becker.
Justice Rose has recently been insisting upon playing a part in decisions in which his own
impartiality is being questioned. (See, for example, Snyder v. Viani, 112 Nev. 568, 916 P.2d
170 (1996); Allum v. Valley Bank, 112 Nev. 591, 915 P.2d 895 {1996); Martin v. Beck, 112
Nev. 595
(1996); Martin v. Beck, 112 Nev. 595, 915 P.2d 898 (1996)).
1
To my way of thinking it is
clearly impermissible for Justice Rose to sit in judgment of himself in these matters.
HOGAN'S REQUEST FOR SECRET DOCUMENTS
The second reason that I dissent is that the court has before it in this case, sworn testimony
submitted in support of Hogan's request for certain disclosures of concealed facts, facts
which, for the most part, have been hidden from this court as well as from Hogan. A number
of issues in this case rest upon the nature of the sought-after facts; and, certainty, this court is
in no position to rule on Hogan's renewed motion to disqualify Justice Rose until it has
gained access to and has examined the critical information that is presently being denied to
Hogan and denied to this court.
Death-sentenced Michael Ray Hogan asks this court to enter an order requiring
disclosure of certain information relating to those who sit in judgment of his life. I can think
of no reason why the requested disclosure of sealed judicial materials should not be made,
especially in a death case.
The attorney general vigorously opposes the disclosure of the information sought by
Hogan and stridently argues that Hogan's request for information impugns her ethics and
the ethics of this court. One would think that the ethics of this court and of the attorney
general would be enhanced rather than impugned by granting Hogan's request for full
disclosure of the readily-available but sealed information that Hogan wishes to examine. It
is my belief that Hogan is entitled to all facts that might have any relevancy to the impartiality
of jurists who have had anything to do with this case. As Hogan points out in his motion,
the Judicial Code of Conduct, Canon 3(E)(1), makes it clear that a jurist should not sit on a
criminal case if the prosecutorial agencies of the state have put the jurist in a compromised or
vulnerable position by reasons of favors done for the jurist by the prosecutorial apparatus.
That this is a problem in the present case is more than just a possibility.
__________

1
Perhaps the most extravagant example of Justice Rose's deciding matters relating to his own qualification is
found in Nevada Attorney General v. Steffen, et al., Docket No. 27847, a pending case in which the attorney
general has petitioned for a writ of prohibition which would prohibit the court in the Whitehead case, 111 Nev.
70, 893 P.2d 866 (1995), from proceeding in that case (that is to stay all actions of the majority justices in that
case). Justice Rose has, of course, disqualified himself in the Whitehead case; still, he has voted in Case No.
27847 (even though he is disqualified to act in matters relating to the Whitehead case) to deny challenges to his
own qualifications and voted to disqualify Justices Zenoff, Steffen and Springer, the majority justices in
Whitehead.
During the course of proceedings in this court, Hogan has expressed two concerns that
give me some pause. First, he expresses his concern about certain unlawful practices that
have admittedly been carried out by the Nevada Commission on Judicial Discipline. It is now
clearly established that the Discipline Commission has for some time been conducting secret
sessions out of which have emanated a number of unlawfully secret discipline decrees.
Among these secret decrees have been orders placing judges on secret probation to the
attorney general.
2
Although our order in the Whitehead
3
case preventing the attorney
general from any further participation in judicial discipline cases precludes any future
probationary control over judges by the attorney general, the practice of judicial probation
was clearly going on during the time that criminal proceedings were pending against Hogan.
Hogan certainly is entitled to know if any of the jurists in his case were subject to
probationary supervision under the attorney general while they were deciding matters relating
to his case.
It seems to me that judges who were under coercive supervision by the attorney general
should not be sitting on criminal cases, at least while they were actually probationers. Hogan
has asked that any probationary judge or justice who has had any decision-making power in
his case be required to disclose this fact to him. This seems like a reasonable request to me. I
would require all such jurists to make, on the record, not only a full disclosure of the nature of
their secret probation but also a disclosure of any favorable consideration of any kind that
might have been given to such jurists by the attorney general during the time that the attorney
general was acting as both counsel and probation officer for the Judicial Discipline
Commission.
Hogan's second concern is about the favors that he claims have been done for Justice Rose
by the attorney general and the district attorney of Clark County. All of the members of this
court have been made aware of the attempts by Hogan's counsel to secure secret documents
relating to the questioned relationships between Justice Rose and Hogan's prosecutors. Justice
Rose, himself, tells us (in his Response, filed with this court on February 7, 1994) that [i]n
the instant matter, the Clark County District Attorney found that Chief Justice Rose had
committed no criminal acts,4 and the Attorney General concurred in that conclusion."
__________

2
It was only through a fortuitous array of circumstances that this court learned of the unlawful practice by the
Discipline Commission of placing judges on secret probation under the control of the attorney general.

3
Whitehead v. Comm'n on Jud. Discipline 110 Nev. 874, 878 P.2d 913 (1994).
no criminal acts,
4
and the Attorney General concurred in that conclusion. Justice Rose went
on in the mentioned Response to announce that he became aware of the pending criminal
charges against him "less than two weeks prior to the Attorney General's decision" not to
pursue the criminal charges against him.
__________

4
Justice Rose cannot accurately claim that prosecutors found that Chief Justice Rose had committed no
criminal acts. No prosecutorial authority has ever ruled that Justice Rose has not committed any criminal acts.
The attorney general, saying that it was questionable whether the matter submitted [by the district attorney] was
within the jurisdiction of this office, nevertheless agreed with [the] analysis of the district attorney concerning
alleged violations of NRS 199.520 (disclosure of information to subject of investigation) and NRS 199.540
(notification of interception of wire or oral communication). The district attorney had ruled that NRS 199.540
was inapplicable to the evidence uncovered in the police investigation and that the evidence does not support
a violation of NRS 199.520. The district attorney decided not to prosecute the alleged violations; and the
attorney general agreed. This is not the same as saying that Justice Rose had committed no criminal acts.
Hogan's concern here is not whether Justice Rose committed any criminal acts; rather, his only concern is
whether the mentioned prosecutors' refusal to prosecute Justice Rose gives rise to the possibility that the district
attorney and the attorney general might be able to exert some influence over Justice Rose. Prosecutorial
influence over Justice Rose, according to Hogan, might have arisen out of the prosecutors' refusal to prosecute
Justice Rose on charges of obstructing a criminal investigation or out of the threat, or potential threat, of
prosecution [that is] universally recognized as a potent factor affecting an individual's impartiality. Hogan
points out that the possibility of criminal violations other than those relating to obstructing a criminal
investigation is quite real, citing as examples, NRS 197.100 (influencing public officer); NRS 197.110(2)
(misconduct of public officer); NRS 197.190 (obstructing public officer) and other related criminal statutes.
Other possible threats of prosecution might be seen under NRS 199.480(3)(f) (conspiracy to commit an act
injurious to or a corruption of public justice or the due administration of law).
The gist of Hogan's moving papers is that possible favors done for Justice Rose and potential threats of further
prosecution hanging over Justice Rose have placed Justice Rose in a position of conflict with respect to Hogan's
conviction and death sentence. Hogan bases his assertions on factual allegations that he claims to be able to
establish if he is allowed to examine the secret and sealed court documents and other materials relating to
police investigations and charges relating to Justice Rose. Hogan claims that Justice Rose had certain telephone
conversations with his business associate and former law clerk, Rhonda Mushkin, which were intercepted by
police detectives. Hogan claims that Ms. Mushkin asked Justice Rose to help her in dealing with the pending
criminal proceedings against her and that, in response to this request, Justice Rose agreed to pay a visit to the
district attorney. According to Hogan, Justice Rose then discussed . . . the pending criminal prosecution of
Rhonda Mushkin with the district attorney. It is reported that then Chief Justice Rose said to the district
attorney, They [Ms. Mushkin and her co-defendant] would like to see it go away or diverted out of the system
or something, and I would love that too.
Simply put, Hogan's position is that the district attorney's and attorney general's refusal to prosecute charges of
obstruction of a criminal investigation (disclosure of information relating to investigation and notification of
criminal charges against him less than two weeks prior to the Attorney General's decision
not to pursue the criminal charges against him. We also learned from Justice Rose's Response
that the attorney general's nolle prosequi decision confirmed a comparable decision by the
Clark County District Attorney that the criminal charges against Justice Rose constituted a
no merit' case.
In a letter directed both to the attorney general and to the Clark County District Attorney,
Hogan's counsel demanded a disclosure of information relating to the criminal charges
against Justice Rose that were in the hands of these mentioned prosecutorial officials. Hogan
legitimately seeks out the existence of a conflict of interest which he claims arises out of
what he sees as favoritism on the part of prosecuting officials who refused to prosecute
Justice Rose. After pointing out that there was no conceivable danger to law enforcement
personnel or other reason to withhold facts relating to the Rose criminal investigation,
Hogan's counsel made written demands upon both the attorney general and the Clark County
District Attorney that they provide him with copies of all information, including tape
recordings, transcripts of tape recordings, investigative reports, and any and all other
documents relating to the investigations of a justice of the Supreme Court in the matter
identified by the state at Metro DR# 930625-1024. The demand was refused or ignored by
the attorney general and the district attorney.
In letters to the mentioned prosecutors, Hogan's counsel correctly pointed out that the
State's investigation of a justice of this court, during a time that criminal proceedings were
pending in this court against Hogan, necessarily relate to material which the state, through
all of its prosecution agencies, has an obligation to disclose to opposing counsel. Hogan's
counsel also correctly pointed out that [t]here can be no rational dispute that the pendency of
a criminal investigation of a jurist by counsel for the state raises a conflict of interest with
respect to cases in which the state is a party. (Citing In Interest of McFall, 556 A.2d 1370
(Pa. Super. 1989), aff'd, 617 A.2d 707 (Pa. 1992)). Counsel also cited Supreme Court Rule
179 which relates to the prosecution's duty to disclose specified information to defense
counsel.
__________
interception of wire communication) and the threat of possible prosecution under NRS Chapters 197 and 199
have compromised Justice Rose in such a way as to disqualify him from sitting in judgment on Hogan's death
case. Hogan complains that the primary sources of information with respect to [Justice Rose's] conflict are
entirely unavailable to him and that the State has access to the records of investigation of the Chief Justice,
[but] has not disclosed the existence of the investigation or its subject to Hogan. It seems to me that Hogan is
entitled, at least, to be provided with the primary sources of information which are contained in the court
documents sealed by Judge Becker.
cited Supreme Court Rule 179 which relates to the prosecution's duty to disclose specified
information to defense counsel.
One reason (other than the refusal of the attorney general and district attorney) that
Hogan's counsel had been and is presently unable to obtain the requested information is
because of an order sealing the court files relating to the subject criminal investigation of
Justice Rose. The order sealing these public records was signed by Judge Nancy Becker of the
Clark County District Court. In my opinion, Hogan is entitled to these documents whether
they are delivered by Judge Becker, the attorney general or the Clark County District
Attorney. Until this information is made available to Hogan and his attorney, it is impossible
for him to make adequate preparation for his intended pursuit of motions relative to the
qualifications of Justice Rose to sit on his case.
In his opposition to a previous motion to disqualify Justice Rose, filed by Hogan in this
case, Justice Rose resisted disqualification by pointing out that Hogan's motion to disqualify
Chief Justice Rose is generally deficient because it presents no facts that established bias on
the part of Justice Rose. This may have been true at the time Justice Rose wrote these words,
but the reason that it was true at the time Hogan first filed his motion to disqualify Justice
Rose was because the facts relating to possible favored treatment given to Justice Rose by the
attorney general and the district attorney were being improperly withheld by the very persons
who had at their disposal the pertinent information, namely, Hogan's prosecutors.
There is another matter, well known to the members of this court, that should persuade this
court to permit Hogan to explore further the scope of possible prejudicial bias on the part of
Justice Rose. I refer to the facts surrounding the mysterious withdrawal of Hogan's motion
to disqualify Justice Rose.
The gist of Hogan's motion (the one that was withdrawn) was his allegation that the
State was holding something over Justice Rose's head that prevented him from acting fairly
and impartially in criminal prosecutions in general and in Hogan's prosecution in particular.
As put by Hogan, in his motion, there was a conflict presented by the State's possession of
information potentially damaging to Justice [Rose], and by the decision of relevant
prosecutorial agencies to decline to prosecute. Startlingly, only three days after Hogan's
defense counsel filed the mentioned motion to disqualify Justice Rose, defense counsel's
employer (Nevada Appellate and Postconviction Project) filed a motion with this court to
withdraw the motion to disqualify Justice Rose which had been filed by Hogan's personal
attorney. Hogan's defense attorney was an employee of the mentioned Nevada Appellate and
Postconviction Project.
The vice-president of defense counsel's employer (the Nevada Appellate and
Postconviction Project, which attempted to withdraw Hogan's motion to disqualify Justice
Rose) was one Thomas Pitaro. Mr. Pitaro was Justice Rose's personal attorney. Neither Mr.
Pitaro nor the Project was able successfully to have the motion to disqualify Justice Rose
withdrawn and the motion was eventually ruled on and denied on the paradoxical ground that
Hogan was unable to support his motion with the factual material that was being denied to
him by the attorney general, the Clark County District Attorney and Judge Becker.
That Hogan's counsel would be subject to interference with his attorney-client relationship,
by his counsel's employer, in a death case is a matter of serious concern to me as it well
should be to the other members of the court. All of the foregoing information appears by
affidavit in the file of this matter and appears to have been totally ignored by the court.
In my opinion, the court should order that Judge Becker's order sealing the public files be
vacated, that all of the information requested by Hogan's counsel be delivered to him and that
the full extent of the interference with Hogan's attorney-client relationship by Justice Rose's
attorney, Thomas Pitaro, and the managing officials of counsel's employer (the Nevada
Appellate and Postconviction Project) should be brought to light and considered by this court.
After this information has been made available to Hogan and to this court, Hogan should be
permitted to bring an amended or supplemental motion to disqualify Justice Rose, and this
motion should be heard in due course by this court.
____________
112 Nev. 568, 568 (1996) Snyder v. Viani
SHAUNA SNYDER, as the Special Administrator of the Estate of DANIEL PATRICK
LOVETT, Decedent, Appellant, v. JOSEPH VIANI, Individually and dba JOE'S
TAVERN; TOMMY JO MONTOYA; TAMMY ADAMS; MINERAL COUNTY
SHERIFF'S OFFICE, a Political Subdivision; JOHN MADRASO, JR., in His Official
Capacity as Sheriff and Individually; JOHN LEONHARDT, in His Official Capacity
as Sheriff and Individually, Respondents.
No. 23726
May 3, 1996 916 P.2d 170
Appeal from an order of the district court granting a motion to dismiss. Fifth Judicial
District Court, Mineral County; John P. Davis, Judge.
Appeal was taken from order entered in the district court dismissing dram shop action.
After that decision was affirmed, 110 Nev. 1339, 885 P.2d 610 (1994); plaintiff-appellant
filed motion to disqualify one justice on grounds of his restaurant/bar ownership. The
supreme court, Young, J., held that: (1) record established that plaintiff's former attorney had
actual notice of justice's interest; (2) such actual notice could be imputed to plaintiff; (3)
evidence established that plaintiff and/or her attorney had constructive notice of justice's
ownership interest; (4) evidence did not establish fraud or similar illegal conduct so as to
justify disqualification after decision had been rendered on appeal; (5) case did not present
gaming issues such that disqualification was required under gaming regulations; and (6)
letters sent by tavern owners/operators, one of whom worked at justice's bar/restaurant,
supporting justice's reelection was not improper.
Motion to disqualify Justice Robert Rose denied; motion to vacate opinion denied;
petition for rehearing denied.
Steffen, C. J., and Springer, J., dissented.
Peter Chase Neumann, Reno, for Appellant.
Erickson, Thorpe & Swainston, Reno; Bradley, Drendel & Jeanney, Reno, for
Respondents.
1. Judges.
When justice has participated in a case, appellate rule requires that motion to disqualify must establish that it is timely filed and
that alleged disqualifying interest amounts to fraud or illegal conduct. NRAP 35.
2. Judges.
In context of motion to disqualify justice of state supreme court after dismissal of dram shop action was affirmed on appeal, record
established that plaintiff-appellant's former attorney had actual notice of justice's restaurant/bar ownership. Experienced investigator
had detailed recollection of conversation with attorney about case and justice's ownership interest, and attorney did not respond to
investigator's allegations when given opportunity. NRAP 35.
3. Judges.
Plaintiff-appellant's former attorney's knowledge of state supreme court justice's restaurant/bar ownership interest was sufficient to
bind plaintiff in context of motion to disqualify justice after dismissal of dram shop action was affirmed on appeal, and attorney's
failure to take action to object to justice's sitting on case on basis of ownership amounted to waiver of such grounds for
disqualification. NRAP 35.
4. Judges.
If party or his/her attorney has constructive notice of judge's interest or relationship before case is decided and does not object,
such conflict or relationship will be waived.
5. Judges.
In context of plaintiff-appellant's motion to disqualify state supreme court justice after dismissal of dram shop action was affirmed
on appeal, evidence established that plaintiff andJor her former attorney had constructive knowledge of
justice's restaurantJbar ownership interest before appeal was heard, and failure to object to justice's
sitting on case amounted to waiver of such grounds for disqualification.
evidence established that plaintiff and/or her former attorney had constructive knowledge of justice's restaurant/bar ownership interest
before appeal was heard, and failure to object to justice's sitting on case amounted to waiver of such grounds for disqualification.
NRAP 35.
6. Judges.
Evidence established that state supreme court justice's restaurant/bar ownership interest did not amount to fraud or similar illegal
conduct so as to justify disqualification after dismissal of dram shop action was affirmed on appeal. Justice had no interest in
defendant's tavern and there were no lawsuits pending that claimed liability against justice on theory espoused by plaintiff; moreover,
justice's interest in restaurant/bar was not ongoing since he had entered into written contract to sell four months prior to decision in
case. NRAP 35.
7. Judges.
Dram shop action did not present gaming issue such that state supreme court justice who owned interest in restaurant/bar was
precluded from participating in case on appeal under gaming regulation; case involved fatal accident and service of alcohol to minor,
while regulation barred judges or justices holding a gaming license from participating in gaming-related matters.
8. Judges.
Letter sent by tavern owners/operators to other owners/operators seeking support for reelection of state supreme court justice who
owned interest in bar/restaurant at which one of letter writers worked was not improper so as to require disqualification of justice after
dismissal of dram shop action was affirmed on appeal; letter did not come from justice campaign or on its stationary, and instead was
response to tavern owners to attacks by justice's opponent based on his ownership interest, and fact that campaign manager approved
letter for its general content did not make it part of justice's campaign. Letter writers stated reasons for their support of justice, and
Code of Judicial Conduct permits candidate to state background, legal record, and commitment to upholding law. Code of Jud.
Conduct, Canon 5, A(3)(d)(i), A(3)(e), C(2).
OPINION
The Nevada Supreme Court issued its opinion in this case on November 30, 1994, upholding our prior decisions that have refused to
impose liability upon servers of alcoholic beverages for damage caused by patrons who subsequently use our highways absent legislation
establishing such liability. Justice Robert Rose was part of the three-Justice majority; Chief Justice Steffen and Justice Springer dissented.
On February 1, 1995, Shauna Snyder's new counsel filed a motion to disqualify Justice Rose pursuant to NRAP 35(a) on the ground
that Justice Rose should not have participated in the decision because he owned a restaurant/bar in Clark County, Nevada, and this created
a conflict of interest with the issue decided.
decided. Snyder's motion also seeks vacation of the issued opinion and a rehearing before
non-disqualified judges, pursuant to NRAP 40.
[Headnote 1]
When a justice has participated in a case, NRAP 35 requires that a motion to disqualify
must establish that it is timely filed and that the alleged disqualifying interest amounts to
fraud or like illegal conduct. Snyder and her attorney had actual and constructive
knowledge of Justice Rose's restaurant/bar ownership well prior to our decision in November,
1994 and Snyder waived any disqualification claim by not asserting it sooner. Further,
Snyder's allegations, even if true, do not amount to fraud or like illegal conduct and
therefore the grounds for her motion to disqualify are insufficient as a matter of law.
We also conclude that Justice Rose's ownership did not create a direct, ongoing pecuniary
interest such that would disqualify him from participation in this case. Accordingly, we deny
Snyder's motion to disqualify Justice Rose and her petition for rehearing.
DISCUSSION
The threshold issue is whether Snyder had, as a matter of law, actual or constructive notice
of Justice Rose's ownership of a restaurant/bar in Las Vegas prior to our decision in this case
and is thereby precluded from now asserting this motion pursuant to NRAP 35. We answer
this question in the affirmative.
Actual notice of interest
[Headnote 2]
In addition to the substantial information that clearly gave constructive notice to the public
at large about Justice Rose's restaurant/bar ownership, the record establishes that Snyder's
attorney had actual notice of Rose's interest. In June 1994, Snyder's former attorney in the
appeal of this case had a conversation with Clark Santini about this very case and Rose's
ownership of a bar. Santini, an experienced investigator by profession, had a detailed
recollection of that conversation.
1
[Headnote 3]
__________

1
In Santini's affidavit, he stated:
The second was a case involving a minor who was served liquor at Joe Viani's bar and then killed himself
and others in an automobile accident thereafter. McKenna indicated he had lost the case in district court
but had appealed it to the Nevada Supreme Court. He indicated that he was uncertain about the Supreme
Court result and elaborated. McKenna stated that he knew Justice Steffen was a Mormon and always
voted
[Headnote 3]
While Snyder's former attorney initially denied having any knowledge of Rose's
restaurant/bar interest prior to the decision, he did not respond to Santini's allegations when
given the opportunity, and Snyder argued only that notice to her former attorney is
insufficient to bind her.
Snyder's claiming that her attorney's knowledge does not bind her is directly contrary to
our holding in the Ainsworth case and in numerous additional cases we have decided in the
past decade. See, e.g., Stoecklein v. Johnson Electric, Inc., 109 Nev. 268, 273, 849 P.2d 305,
309 (1993); Arteaga v. Ibarra, 109 Nev. 772, 776-77, 858 P.2d 387, 390 (1993). Therefore,
Snyder's former attorney's actual knowledge of Rose's restaurant/bar ownership is imputed to
Snyder. Since Snyder did not take any action to object to Rose's sitting on this case on the
basis of his restaurant/bar ownership, those grounds for disqualification have been waived.
Constructive notice of interest
[Headnote 4]
This court has established that if a party or his/her attorney has constructive notice of a
judge's interest or relationship before a case is decided and does not object, that conflict or
relationship will be waived. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003
(1989). In that case, numerous conflicts or relationships of a former justice who authored an
opinion were cited as grounds for a rehearing of the case, and this court stated what was
sufficient, as a matter of law, to put the insurance company, Combined, and its attorneys on
notice of an interest or relationship.
Combined alleged that the counsel for the winning party, Ainsworth, had assisted the
former justice in a prior campaign and was also a close personal friend. After observing that
allegations of bias in favor of or against an attorney for a litigant generally are not sufficient
for disqualification of a judge, this court observed that Ainsworth's attorney's relationship
with the campaign conducted years previous was fully disclosed in numerous public,
political advertisements and was well-known among members of the state bar long before this
appeal was ever perfected. Id. at 261, 774 P.2d at 1020. The court determined that
Combined knew or should have known of this political relationship and stated:
__________
against the bars in these types of cases, but McKenna said he did not know how he would fare with
Justice Rose because he knew Justice Rose owned a bar in Las Vegas. However, he gave me the
impression that he did not necessarily think Justice Rose would be biased. It was unmistakable that Ken
McKenna knew in June, 1994, that Justice Rose owned a bar in Las Vegas.
that Combined knew or should have known of this political relationship and stated:
Well-reasoned authority supports a conclusion, however, that counsel, knowing facts
assertively supportive of a motion for reconsideration, recusal or vacatur based upon
charges of bias and impropriety, may not lie in wait and raise those allegations in a
motion only after learning the court's ruling on the merits.
Id. at 260, 774 P.2d at 1019 (quoting Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th
Cir. 1986), cert. denied, 481 U.S. 1016 (1987)).
Combined Insurance also claimed that the former justice had a close association with the
Nevada Trial Lawyers Association (NTLA) and had been given an award by it the previous
year, this being grounds for disqualification because NTLA had filed an amicus brief in the
case and Ainsworth's attorney was prominent in the organization. However, this court
concluded that some of the attorneys representing Combined were members of NTLA and
presumably had knowledge of the award at the time it was conferred. The court also referred
to several newspaper articles about the former justice's award and concluded that Combined's
counsel knew or had reason to know of the award prior to the issuance of this court's
decision, and that Combined's failure to tender a prompt objection constitutes a waiver of
its right to raise the issue at this late date. Ainsworth, 105 Nev. at 263-64 n.17, 774 P.2d at
1022 n.17.
Combined also claimed that the former justice had an interest in a business venture with
Ainsworth's counsel. However, the court stated that: [I]t is clear from the record that such a
relationship was revealed in a public notice published in Reno's largest newspaper of general
circulation on four separate occasions. Id. at 270 n.22, 774 P.2d at 1026 n.22. After a review
of all the evidence sufficient to provide actual or constructive knowledge of the interests or
relationships of the former justice prior to the decision, this court concluded that the former
justice did not have any direct, ongoing pecuniary interest in the outcome of any litigation
before this court, that the factual allegations supporting a rehearing were known or should
have been known to Combined's counsel well before the decision, and that no rehearing was
warranted because it was not established that the former justice had any direct disqualifying
interest in this litigation or that his impartiality toward the litigants might reasonably be
questioned. Id. at 269, 270, 774 P.2d at 1026.
[Headnote 5]
In numerous instances of claimed conflicts of interest, we held in Ainsworth that
newspaper articles, legal notices, or common knowledge provided actual or constructive
knowledge to the litigant's attorney and precluded a challenge on those grounds after the
issuance of the court's opinion.
in Ainsworth that newspaper articles, legal notices, or common knowledge provided actual or
constructive knowledge to the litigant's attorney and precluded a challenge on those grounds
after the issuance of the court's opinion. The information available to Snyder and her attorney
of Rose's restaurant/bar ownership prior to the decision in this case was far more extensive
than any such information cited in the Ainsworth case. Specifically, there was abundant
evidence of Rose's restaurant/bar ownership presented throughout Nevada in the years prior
to our decision, specifically including the following:
1. More than a decade of application filings and hearing notices made by the Nevada
Gaming Control Board and Commission concerning Justice Rose's ownership of a
restaurant/bar with fifteen slot machines in Las Vegas, Nevada.
2. A decade of applications, filings, and hearing notices before the Liquor and Gaming
Control Board in Clark County, Las Vegas, and Henderson, Nevada, concerning Justice
Rose's ownership of a restaurant/bar and fifteen slot machines.
3. The listing of the business entity that owned the restaurant/bar in Justice Rose's annual
judicial disclosure reports for the years he has been a justice, most of the notices specifically
describing the business as a restaurant/bar.
4. Numerous newspaper articles about Justice Rose's ownership of a restaurant/bar that
appeared when the yearly disclosure reports were filed and when there was any activity taken
by the Nevada Gaming Control Board or Commission concerning Justice Rose's ownership.
5. The enormous publicity given Justice Rose's restaurant/bar ownership during the 1994
election. This included an entire month of television and radio commercials about his
ownership. One radio commercial stated that Justice Rose moonlights as a poolroom and
tavern owner and another made a very similar assertion. A television ad that ran extensively
before the November 8, 1994 election stated that Rose operates a bar and pool hall in Las
Vegas and at the same time showed film of the tavern. Literally hundreds of radio and
television commercials were broadcast throughout Nevada about Justice Rose's interest just a
month prior to the decision in this case.
NRAP 35
After the Ainsworth decision, this court adopted NRAP 35 to set forth the requirements a
party must meet when attempting to disqualify a justice. A portion of the rule addressed the
situation presented in the Ainsworth case.
In no event will the supreme court deem timely any motion or charge seeking the
disqualification or recusal of a justice who has heard argument upon, or otherwise
considered, any contested matter in the cause, except as to grounds based on fraud
or like illegal conduct of which the challenging party had no notice until after the
contested matter was considered.
who has heard argument upon, or otherwise considered, any contested matter in the
cause, except as to grounds based on fraud or like illegal conduct of which the
challenging party had no notice until after the contested matter was considered.
NRAP 35(a).
The case of PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 894 P.2d 337 (1995), was the
first one to consider Rule 35 when a justice's disqualification was sought after an opinion had
been rendered. In PETA, a limited exception was made to the requirement that a claim for
disqualification is untimely after the opinion has been issued unless fraud or like illegal
conduct is shown. The court determined that, in the interest of justice, PETA should not be
precluded if there was no way that it could have known of the interest or association the judge
had prior to the decision. Id. at 433 n.2, 894 P.2d at 338 n.2.
We feel this is an appropriate exception to the strict preclusion set forth in Rule 35, but it
has no application in this case. We have set forth the facts that gave Snyder both actual and
constructive knowledge of Justice Rose's interest, and a further exemption to Rule 35 is not
warranted. Additionally, we would recommend that future exceptions to Rule 35 should be
done by amendments to the rule rather than by court decision.
No direct, ongoing interest
[Headnote 6]
The facts concerning Justice Rose's ownership of a restaurant/bar are not in dispute. He
has had this interest prior to becoming a judge, and such ownership has been common
knowledge in Nevada. In fact, Justice Rose participated in the case of Hinegardner v. Marcor
Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), that this court decided three years ago which
presented the same issue as did this case, and no complaint about Rose's participation was
made.
It is obvious that Justice Rose had no interest in Joe Viani's tavern, and no lawsuits were
pending that claimed liability against Rose on the theory espoused by Snyder. In Goldman v.
Bryan, 104 Nev. 644, 651, 764 P.2d 1296, 1300 (1988), we cited State v. Scarborough, 410
P.2d 732, 734 (N.M. 1966), with approval for the proposition that a judge's disqualifying
interest' must be a present interest in the outcome of the proceeding, not some indirect,
remote, speculative, theoretical or possible interest.' It is true that Rose owned a
restaurant/bar similar to that owned by Viani, but it has been held many times that a judge
with an interest similar to that in litigation is not disqualified thereby. This principle was
clearly stated in City of Valdosta v. Singleton, 2S S.E.2d 759, 763 {Ga.
Singleton, 28 S.E.2d 759, 763 (Ga. 1944), in which the Georgia Supreme Court stated:
[A] judge is not disqualified merely because of an interest in some abstract legal
question that is presently involved and which may arise in some future litigation
affecting him or his property rights . . . .
See also State v. Churchwell, 195 So. 2d 599, 600-01 (Fla. Dist. Ct. App. 1967). If this case
had been decided in Snyder's favor, the decision would have had no economic impact on
Justice Rose.
Further, Justice Rose's interest is not ongoinghe entered into a written contract to sell
the restaurant/bar in July 1994, four months prior to the decision in this case. At the time the
opinion was issued, the sale was in escrow awaiting only the final approval of the Nevada
Gaming Control Board and Commission. Approval was given, and the sale was finalized in
early 1995.
Justice Rose has stated that he has no feelings of bias toward or against any party in this
litigation and that he believes he has and can be impartial to all concerned. This court has
previously held that a judge's opinion as to his or her impartiality should be given substantial
deference. In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). Given this
deference and considering the undisputed facts and legal authority above-cited, we conclude
that Justice Rose's ownership, as a matter of law, does not create a direct, ongoing pecuniary
interest that would disqualify him from participation in this case or be a violation of the
Nevada Code of Judicial Conduct.
Since Snyder's allegations present no legally cognizable grounds whatsoever supporting a
reasonable inference of bias or impropriety, summary dismissal of her motion is warranted as
a matter of law without any formal hearing. Ainsworth v. Combined Ins. Co., 105 Nev. 237,
270, 774 P.2d 1003, 1026 (1989); Dunleavy, 104 Nev. at 789, 769 P.2d at 1274. This rule of
law was recently reaffirmed in Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 873
P.2d 946 (1994). In that case, Justices Steffen and Springer joined in determining that a
motion to disqualify them was untimely, without merit, and insufficient as a matter of law to
warrant a formal hearing under NRS 1.225(4). Id. at 422-29, 873 P.2d at 972-77.
Finally, the Commission contended that this court improperly refused to conduct a
hearing on the motion for disqualification. See NRS 1.225(4) (hearing on a motion or
charge for disqualification shall be had before the other justices of the supreme court).
Not every motion for disqualification, however, rises to the level of a statutory
charge, which automatically calls for a formal hearing before unchallenged
justices.
which automatically calls for a formal hearing before unchallenged justices. For
example, in the case of In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d
1271, 1274 (1988), this court explained:
[T]he statutory provisions and mechanisms providing for a judge's
disqualification are not activated, and summary dismissal of the challenge is
appropriate, where the challenge fails to allege legally cognizable grounds
supporting a reasonable inference of bias or prejudice.
Similarly, in Ainsworth, 105 Nev. at 270-271, 774 P.2d at 1026, this court explained
that because factual allegations raised in support of a motion to disqualify present[ed]
no legally competent grounds supporting a reasonable inference of bias . . . the hearing
before unchallenged justices that is provided under NRS 1.225(4) [was] inapplicable.
Therefore, in view of the legal insufficiency of the Commission's motion for
disqualification, the Commission was not entitled to a hearing under NRS 1.225(4).
Id. at 428-29, 873 P.2d at 976-77.
Petitioner's other contentions
[Headnote 7]
Snyder claims that this case presents a gaming issue and thus Justice Rose is precluded
from participating in this case because of gaming Regulation No. 12. Regulation 12 requires
any judge or justice holding a gaming license to refrain from participating in gaming-related
matters. The record is uncontroverted that a gaming issue for a judge or justice has been
narrowly construed and is one that involves the Gaming Control Board or Commission, its
members or employees, or the enforcement or interpretation of Nevada gaming statutes.
The case before us does not involve any of these individuals or statutes. It is a case
involving a fatal accident caused by a drunk driver whose estate Snyder now administers and
a suit against a tavern asserting that it is responsible for the underaged drunk driver's death
because it served him alcoholic beverages six hours before the accident. This is a case
involving a fatal accident and the service of alcohol to a minor. It has nothing to do with
gaming or the enforcement or interpretation of Nevada's gaming statutes. Accordingly, we
reject Snyder's claim that Justice Rose should not participate in this case because it involves a
gaming matter.
[Headnote 8]
Snyder claims that a letter sent at the close of the 1994 election campaign by four tavern
owners or operators, one of whom worked for the bar owned by Justice Rose, to other
tavern owners seeking their support for Rose's re-election was improper.
campaign by four tavern owners or operators, one of whom worked for the bar owned by
Justice Rose, to other tavern owners seeking their support for Rose's re-election was
improper. We disagree. The letter was on stationery that contained the logo of the four
taverns and was signed by each tavern owner or operator. It was not a letter or brochure that
came from the Rose campaign for re-election or on its stationery.
The tavern owners wrote the letter in response to numerous attacks by Rose's election
opponent based on Rose's bar ownership. The letter made two basic points. First, that Justice
Rose was a good justice who made sound decisions and was attempting to reform the Nevada
court system. Second, that he understood Nevada and its gaming/liquor industry since he had
held a liquor/gaming license for more than a decade. An appendix was attached to the letter
summarizing three cases decided by the Nevada Supreme Court in which Rose participated.
One case concerned this court's established legal position that dram shop liability should be
addressed by the Legislature and not enacted by an activist court. In that summary, it stated
that Rose believed in strong but fair DUI enforcement.
This letter was sent out by individuals who were not part of Justice Rose's campaign for
re-election and did not represent that they were speaking for the justice. It was an interest
group supporting a candidate and stating the reason for such support. The fact that a
campaign manager approved the letter for its general content did not make it part of Justice
Rose's campaign. Further, a candidate for judicial office has always been permitted to state
his or her background, legal record, and commitment to upholding the law. Cf. Nevada Code
of Judicial Conduct 5A(3)(d)(i), 5A(3)(e), and 5C(2). Although not called upon to decide
this issue because the statements were made by an independent group and not by Justice
Rose, it would appear that any judge or justice should be permitted to state what he or she has
done to improve the court system and the decisions he or she has made that are part of the
record.
We conclude that Snyder's other claims are also without merit.
CONCLUSION
Snyder, through knowledge imputed to her by what her former counsel knew, had actual
knowledge of Justice Rose's ownership of a restaurant/bar and also constructive notice of that
interest. Pursuant to NRAP 35(a), Snyder is precluded from raising this claim because it was
not asserted prior to this court's opinion.
The undisputed facts also show that the Justice's ownership did not create a direct
pecuniary interest in this case and such ownership was in the final stages of being sold.
not create a direct pecuniary interest in this case and such ownership was in the final stages of
being sold. Accordingly, the motion to disqualify and the petition for rehearing are denied,
along with all other requests for relief asserted by Snyder.
Shearing, and Rose, JJ., concur.
I concur to address the dissent, which is both hypocritical and misleading.
The fact that I owned a bar-restaurant in Las Vegas has been public knowledge since I
joined this court seven years ago. The business has been listed in my yearly disclosure
statement filed at the court, and I have talked many times with Justices Steffen and Springer
about the bar and my attempts to sell it. When I voted at conference on this case and on
Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), neither Justice Steffen
nor Justice Springer made a whimper of any concernas a judge is required to do if he or she
observes what he or she believes is improper conduct by a fellow judge. See Nevada Code of
Judicial Conduct, 3D(1). If there was an authentic objection, it should have been voiced at
that time.
Justices Steffen and Springer also express concern with my participation in this motion to
disqualify, but they did the very same thing in the Whitehead case in which they were
extremely interested. Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 422-29, 873
P.2d 946, 972-77 (1994) (Whitehead II). The Attorney General filed a motion to disqualify
Justices Steffen and Springer, claiming that they had a disqualifying personal and financial
interest because of a letter written by the justices' attorney to the Las Vegas Review-Journal.
As the majority explains, Justices Steffen and Springer participated in the dismissal of the
motion to disqualify lodged against them, stating that not every motion for disqualification
rises to the level of a statutory charge,' which automatically calls for a formal hearing before
unchallenged justices. Id. at 429, 873 P.2d at 976.
This case presents the same situation as in Whitehead II, but this time the motion is filed
against me, and Justices Steffen and Springer now want to change the rules. What is good for
the goose should be good for the gander.
In the dissents, Chief Justice Steffen and Justice Springer claim that they did not vote on
their own disqualification, but one need only review pages 422-30 of the Whitehead II
decision to see that Justices Steffen and Springer clearly considered the motion to disqualify
them, determined that they could participate and then denied the challenge. Id. at 422-30, 873
P.2d at 972-77.
The concurrence signatures of Justices Steffen and Springer appear on page 430. The Justices'
statements that they did not vote on their own disqualification are a reflection of the accuracy
of many of the statements in their dissents.
When a judge is charged with a disqualifying interest, it must be established that the
interest is a direct substantial ongoing financial or personal interest, and Snyder has totally
failed to do that. A decision adverse to Viani's tavern would not have affected me personally
or financially. At the time of the decision, my business had been sold, and the transfer was
awaiting gaming board and commission approval. It was also subject to the control of the
United States Bankruptcy Court. When I voted in the Viani case, there was no direct ongoing
interest for me with my bar business. The dissent seems to acknowledge this, but states that it
is possible that I will retake the bar business if not paid the remaining sales price. This is rank
speculation; and if this remote eventuality occurred, I would simply resell the property.
Not being able to establish a disqualifying ongoing direct interest when the Viani case was
decided, the dissent refers back to the 1992 Hinegardner decision and claims I improperly
voted on that case. That vote is not the subject of the motion to disqualify, and the dissent's
criticism also misses the mark in claiming that the Hinegardner decision lessened my
insurance costs. I have always carried full high limits insurance coverage, including a one
million dollar personal liability insurance umbrella. My insurance costs would have remained
the same with or without a dram shop act. However, this may not be true for other taverns or
casinos.
The letter written by my bar manager and three of his bar manager/owner friends was an
action taken independent of my campaign for reelection. I wrote no part of the letter, did not
approve it in advance, and only gave three case citations which that constituency might have
approved. I have always thought that a judge could refer to his record in a campaign and that
he was not responsible for the statements and actions of third parties. The dissent states that
this letter was on behalf of the campaign, and that is simply false. It also claims that I
fulfilled a campaign promise made in this letter in voting on the underlying case, but any
promise made in the letter by the bar owners/managers was not a promise made by me, and I
certainly did not feel bound by the letter.
I participate in the motion to disqualify me because, as a matter of law, the motion was not
timely filed and does not establish fraud or like illegal conduct on my part, as is required by
NRAP 35. Even before the stringent requirements of NRAP 35 had been promulgated,
Justices Steffen and Springer decided that a motion to disqualify former Justice Elmer
Gunderson was not timely filed because prior to the court decision information had been
in the newspapers about Gunderson's asserted disqualifying interests.
that a motion to disqualify former Justice Elmer Gunderson was not timely filed because prior
to the court decision information had been in the newspapers about Gunderson's asserted
disqualifying interests. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003
(1989). They also decided that although Gunderson's own attorney, Laura FitzSimmons, was
an attorney in the Ainsworth case, this was not a sufficient outside interest to merit
disqualification of Gunderson. When you combine the Ainsworth decision with the
Whitehead II decision, where Justices Springer and Steffen participated in dismissing the
disqualification motion filed against them, and with NRAP 35, it is clear that, as a matter of
law, the motion to disqualify me is not timely and is legally insufficient. I am using the same
rules and reasoning Justices Steffen and Springer used to reject disqualification attempts filed
against them and former Justice Elmer Gunderson.
As a final point, it certainly appears that the dissent is motivated more by continuing
animosity towards me rather than any reasonable belief that Snyder has any chance of taking
her case to trial for the estate of a drunk driver who killed four people. For decades the law in
Nevada has been that no such action lies because this court will not judicially enact a dram
shop law. In 1995, the Legislature passed a law stating unequivocally that such actions will
not lie against a purveyor of alcoholic beverages. NRS 41.1305. Since the law of this state is
very clear that an action such as Snyder asserts will not be entertained by the courts, I can
only think that the dissents' motivation is again to criticize and embarrass me.
Steffen, C. J., joined by Springer, J., dissenting:
Respectfully, I dissent from the majority's conclusion that Justice Rose is qualified to sit
on this case, and for that reason would vacate the court's opinion and grant rehearing with
another judge sitting in the place of Justice Rose.
Canon 2 of the Nevada Code of Judicial Conduct states that [a] judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities. In the
Commentary to Canon 2, it notes that [p]ublic confidence in the judiciary is eroded by
irresponsible or improper conduct by judges. . . . The test for appearance of impropriety is
whether the conduct would create in reasonable minds a perception that the judge's ability to
carry out judicial responsibilities with integrity, impartiality and competence is impaired.
In order to demonstrate why I strongly believe Justice Rose is disqualified to sit on the
instant case, I attach hereto as Exhibit A, a letter dated October 26, 1994, (hereafter the
letter) which was signed by our colleague's bar manager, Steve McLaughin, on behalf of
Justice Rose's reelection campaign.
was signed by our colleague's bar manager, Steve McLaughin, on behalf of Justice Rose's
reelection campaign. Justice Rose was aware of the letter and even provided the case citations
that it referenced. The letter, which notes that Justice Rose was one of the majority of three
(thus the swing vote) in the case of Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d
800 (1992) (Hinegardner involved basically the same issue concerning the liability of
negligent vendors of alcoholic beverages as the instant case), ends with the following portent,
which Justice Rose fulfills by voting on the instant case: Bob's election is a good betfor
you [the bars and commercial alcohol vendors of the state] and the State of Nevada. This is an
important issue to each of our livelihoods.
The letter, which was signed by representatives of four commercial purveyors of alcoholic
beverages, including Justice Rose's Sidelines Lounge and Restaurant, was directed to owners
of similar establishments in an effort to secure campaign contributions for Justice Rose's
reelection to this court. In referring to the Hinegardner case, the letter notes that:
[T]he Nevada Supreme Court upheld the Nevada dram shop protection for bars and
casinos by a 3-2 vote, even though the person, who later was involved in a serious
automobile accident, was a minor. Bob [Rose] was in the majority. Imagine the
increased cost of insurance if all bars and restaurants were responsible for whatever
injury a patron caused after leaving the establishment.
(Emphasis added.)
I consider Justice Rose's participation in the Hinegardner case as inappropriate as the
instant case, but his participation was not challenged in Hinegardner. When Hinegardner was
decided by the margin of Justice Rose's vote, our colleague benefitted directly from avoiding
the necessity of paying for the increased cost of insurance noted in the letter. He also
benefitted from his later sale of the Sidelines Lounge and Restaurant because the profitability
of the business would have reflected the lower insurance costs resulting from his vote in
Hinegardner. Moreover, since he still holds a large, secured promissory note on his bar, there
is the distinct possibility that he could reacquire ownership of the business without the
increased insurance costs that a majority vote favoring Snyder in the instant case could
produce.
The letter strongly demonstrates that Justice Rose's personal interest in minimizing
insurance costs to his own business was far more than de minimis. Thus the letter's entreaty to
[i]magine the increased cost of insurance if all bars and restaurants were responsible for
whatever injury a patron caused after leaving the establishment."
establishment. (Emphasis supplied.) Given the direct, substantial and personal interest that
our bar-owning colleague had, and potentially still has, I consider it self-evident that he
cannot sit on this case and avoid the appearance of impropriety that Canon 2 indicates he
must avoid.
Moreover, I am of the opinion that the United States Supreme Court case of Aetna Life
Ins. Co. v. Lavoie, 475 U.S. 813 (1986), has direct application here. In Lavoie, the challenged
justice of the Alabama Supreme Court had participated in deciding a case that established a
rule of law that would prove beneficial to another case in which he was a litigant. As the
Supreme Court noted, his [the challenged justice's] opinion for the Alabama Supreme Court
had the clear and immediate effect of enhancing both the legal status and the settlement value
of his own case. In concluding that the challenged justice's participation constituted a
violation of the appellant's right to due process, the Lavoie court vacated the judgment of the
Supreme Court of Alabama. Other parallels exist between Lavoie and the instant case, viz, in
both instances the challenged judge cast the deciding vote and wrote the opinion in the case.
Concerning this state of affairs, the High Court wrote:
[W]e are aware of no case, and none has been called to our attention, permitting a
court's decision to stand when a disqualified judge casts the deciding vote. Here Justice
Embry's vote was decisive in the 5-to-4 decision and he was the author of the court's
opinion. Because of Justice Embry's leading role in the decision under review, we
conclude that the appearance of justice will best be served by vacating the decision
and remanding for further proceedings.
Interestingly, the settlement Justice Embry received in his own case amounted to the tidy
sum of $30,000, which the Court determined to be sufficient, even minus any attorney's fee
he may have had to pay, to establish the substantiality of his interest in the Lavoie appeal. I
suggest that Justice Rose's pecuniary benefit from the Hinegardner decision and potentially
from this decision could far exceed the amount of $30,000. Given the amount of annual cost
of insurance savings, and the impact of those savings in determining a sales price for his bar
and restaurant, it is not unlikely that the amount at stake here was substantially greater than in
Lavoie.
The opinion written by Justice Rose and authored by Justice Young on behalf of the
majority, declaring himself qualified to sit, is patently inappropriate. By his own act and vote,
he fulfills a campaign promise and continues to minimize insurance costs to bars and
casinos.
bars and casinos. Moreover, he provides himself with the assurance that if the buyers of his
bar default on their payments to him, he will reacquire his business without having to pay the
increased insurance premiums that were of such concern in the letter soliciting funds for his
reelection to the court.
1
Indeed, the impropriety of the majority's ruling appears compounded
by the fact that the rule of law reaffirmed by this case is in clear opposition to that established
by the overwhelming majority of courts across the nation which recognize the need to do
something about the terrible cost in human lives that results from the presence of intoxicated
drivers on our highways. Commercial vendors of alcoholic beverages in these other
jurisdictions have survived, but in Nevada this court apparently places a higher value on
minimizing insurance costs to bars and casinos than it does on human life.
For the reasons noted above, I am forced to separate myself from the ethical standards
acceptable to my colleagues in the majority.
2
I therefore dissent.
3

__________

1
Furthermore, if the buyers of our colleague's bar and restaurant do not default in their payments, Justice Rose
will continue to reap a profit from his deciding vote in Hinegardner that provided a perceptibly more favorable
historical expense of operating factor attributable to the lower insurance rate.

2
It is unfortunate that my colleague, Justice Rose, is unable to evaluate this dissent in an objective, forthright
manner. Instead, he attacks the dissent as hypocritical and misleading. It is neither.
My colleague's allusion to hypocrisy has reference to Justices Steffen and Springer having assertedly
participated in determining their own disqualification in the Whitehead case, claiming that they therefore did
the very same thing [as Justice Rose is doing here] in the Whitehead case in which they were extremely
interested. He is wrong. In Whitehead, the actual substantive challenges to Justices Steffen and Springer were
decided only by Justice Shearing, Sr. Justice Zenoff, and District Judge Guy in orders filed with the court on
January 31, 1994 and February 18, 1994, respectively. The latter order denied the third challenge to the two
justices. The only participation the challenged justices were involved in regarding the issue of their
disqualification is found in Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 422-30, 873 P.2d 946,
972-77 (1994), where the court patiently again explained why there was no basis for disqualification as ruled by
Justice Shearing, Sr. Justice Zenoff and District Judge Guy. Indeed, the referenced three justices, in their order
of February 18, 1994, referenced the cited case issued the same day, and held that Justices Steffen and Springer
had no personal financial interest in the outcome of the case and that there was no due process basis for
challenging any justices' continued participation in the case.
Moreover, the nature of the challenge in Whitehead was entirely different than the instant case. The financial
interest alluded to by Justice Rose and raised against Justices Steffen and Springer by the Attorney General was
not only expressly eliminated by a waiver of liability by the two justices (as held in the February 18, 1994 order
by the three other members of the court), but the Commission conceded that the two justices had no
disqualifying financial interest in the outcome of the Whitehead litigation. It is also
worthy of emphasis that unlike here, neither Justice Steffen nor Justice Springer was the swing vote on any
aspect of the issue of disqualification; they simply did not participate in determining the issue concerning their
qualification to sit in the Whitehead case. Finally, unlike the instant case, Justices Steffen and Springer were not
extremely interested in the Whitehead case other than to see it through to an honorable conclusion as required
by their oaths of judicial office. It is apparent here that irrespective of actual intent, Justice Rose is fulfilling the
promise of the campaign letter sent out on his behalf to raise campaign funds. Justice Rose provided to the
author of the letter the citation to the Hinegardner case, cited in the letter as an example of how he looks out for
the interests of bars and saloons.
My colleague also advances the novel proposition that I should have whimpered at his participation in
Hinegardner if I entertained thoughts of impropriety over his sitting on the court. To my knowledge, a judge is
on his honor and oath to recuse himself if there is a disqualifying bias. The members of the court have been
under no obligation, and indeed could not be without a legion of full-time investigators, to determine whether an
unchallenged justice is sitting on a case improperly. The question now raised with respect to Hinegardner is
brought into sharp focus by the present case, and the fact that Justice Rose gave the Hinegardner cite to one or
more persons for use in his reelection campaign.
Finally, Justice Rose indicates that the dissent is misleading because (at least in part) I stated that the [Exhibit A]
letter was on behalf of the campaign,' and that is simply false. I leave it to the reader to determine whether the
letter is on behalf of Justice Rose's reelection campaign. Unless my senses have been terribly dulled, it appears
that the letter was sent for the express and singular purpose of soliciting funds for none other than Justice Rose
in his reelection campaign, and that the letter indicates how the prospective contributors will be rewarded by
helping to reelect Bob to the court. If Justice Rose can advise me on whose behalf the letter was sent other
than his own, I will be happy to consider any modification necessitated by the facts.
This dissent, if embarrassing to my colleague, has such an effect only because of the facts surrounding the
question of his qualification to sit. I did not create the facts, and the reasons expressed concerning the propriety
of his qualification to sit are forthright and in no sense an exercise created to either criticize or embarrass my
colleague. Indeed, I truly regret the necessity of having to write this dissent. Moreover, the fact that Justice Rose
is the swing vote on the matter of his own disqualification represents a factor or condition with which he is
comfortable. I am not.
Giving my colleague the benefit of all doubt as to whether he is able to hold the balance nice, true and clear in
this case, I simply return to Canon 2 of the Nevada Code of Judicial Conduct and ask the readers whether, in
their view, the facts described herein create an appearance free of impropriety.

3
I also note the possibility that the majority's decision, as per Lavoie, could later be subject to vacation under a
due process challenge stemming from Justice Rose's clear interest in the outcome of this case. Whether finality
will therefore be achieved by the majority's ruling is more than slightly problematical.
EXHIBIT A
Dear Colleague, October 26, 1994
We have joined together to write this letter to you because we feel that the information we have to give you is of
the utmost importance to our businesses.
This letter is to recommend Chief Justice Bob Rose for election to a second term on the Nevada Supreme Court.
We have known Bob for years and think he has earned the right to a second term.
First, he has proven to be an excellent Justice. He is a tireless public servant, and his decisions have been logical
and sound. He is also fighting to reform the entire court system to make it more efficient, accessible, and
user-friendly.
Second, Bob understands the gaming-liquor industry because he has held a limited gaming and liquor license for
more than ten years. He well knows the benefits and problems of these privileged licensesthe burdens of
heavy regulation and that the difference between a profit and a loss is often a matter of a few percentage points.
A summary of a few of the major cases reflecting his sensitivity to our industry is enclosedplease read them.
What we all need to realize is how big of a part the Supreme Court/Justice Rose plays in setting of precedents
that end up making the rules that we as business people have to live by. This includes handling of cases dealing
with SIIS, State Unemployment Taxes, State and local gaming and liquor regulations, firing at will, liability
cases that effect our insurance, etc. All of which effect us
We ask for your support for Justice Bob Rose this year and hopefully a campaign contribution. If all of us gave
$100.00 to the campaign, it would probably ensure his victory. Campaign contributions should be make out to
Nevadans for Justice Rose and sent to 631 No. Stephanie St., #187, Henderson, Nevada 89014.
Bob's election is a good betfor you and the State of Nevada. This is an important issue to each of our
livelihoods.
Sincerely yours,
Sal's Kurt's Backstop BC
Salvatore J. Cammarano Kurt Erick
Stage Door Casino Sidelines
Randy Markin Steve McLaughin
* * *
In Hinegardner v. Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), the Nevada Supreme Court upheld the
Nevada dram shop protection for bars and casinos by a 3-2 vote, even though the person, who later was involved
in a serious automobile accident, was a minor. Bob was in the majority. Imagine the increased cost of insurance
if all bars and restaurants were responsible for whatever injury a patron caused after leaving the establishment.
Palmer v. Del Webb's High Sierra, 108 Nev. 673, 838 P.2d 435 (1992), the Nevada Supreme Court held that a
worker's injury from cigarette smoke allegedly acquired in a casino-bar was not an occupational disease for the
purposes of SIIS benefits. If the Nevada Supreme Court had held otherwise, the additional cost and the raise in
everyone's premiums might have destroyed an already shaky system.
Chief Justice Rose believes in strong but fair DUI enforcement. He also believes that a person accused of a DUI
should be in actual control of the vehicle and not just sleeping in the car. For the reasons stated, I believe that
Leanette Isom, sound asleep on the front seat of a vehicle parked in a vacant lot of a closed business, was not in
actual physical control of the vehicle when arrested. Accordingly, I dissent from the majority's opinion. Isom v.
State, 105 Nev. 391, 396, 776 P.2d 543, 547 (1989).
Sound Judgementtough leadershipRobert E. Rose,
Nevada Supreme Court
Join us in helping this fine man get re-elected.
____________
I join in Justice Steffen's dissent, but file this separate dissent because I think more has to
be said about Justice Rose's authoring
1
an opinion in which he decides a controversy relating
to his own eligibility to sit in this case. I address the propriety of a supreme court justice's
deciding matters relating to his or her own qualifications, with particular reference to the
manner in which this point is argued by Justice Rose in his majority opinion and in his
concurrence to the majority opinion.
Justice Rose is correct in identifying the threshold issue as being whether Ms. Snyder
had actual or constructive notice of Justice Rose's ownership of a restaurant/bar in Las
Vegas prior to our decision in this case and is thereby precluded from now asserting this
motion pursuant to NRAP 35. The thrust of Justice Rose's argument on this threshold issue
is that it is too late for Ms. Snyder to raise the question of the Justice's bias because her
former attorney knew about Justice Rose's tavern when this case was first decided.
Under PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995), the majority
agrees, if Snyder did not know that Rose was a tavern owner when the present case was
decided against her, she is entitled to have her disqualification motion decided by the court,
rather than having it rejected for technical reasons. Justice Rose argues against Ms. Snyder's
position in two ways. First, he says that everyone knew that he owned the Sidelines Bar in
Las Vegas and that the public at large had constructive notice about Justice Rose's
restaurant/bar ownership. Not content to rely entirely on the supposed common knowledge
about his business interests {the argument being that Ms.
__________

1
The majority opinion in its present form was presented to me by Justice Rose, accompanied by the explanatory
legend From the Chambers of Rose, J., as were several previous drafts of the majority opinion. I complain in
this dissent that Justice Rose should not be participating in an opinion (much less authoring an opinion) in which
he makes such factual findings as Snyder and her attorney had actual knowledge of Justice Rose's restaurant/bar
ownership well prior to our decision in November, 1994 and such legal conclusions as that Justice Rose's bar
ownership did not create a direct, ongoing pecuniary interest such that would disqualify him from participation
in this case. These are hotly-disputed fact issues and legal issues that should be presented to an impartial
tribunal rather than being decided by Justice Rose.
I would note that Justice Rose's majority opinion now appears on its face to have been authored by Justice
Young; but this, of course, is impossible because the majority opinion is merely an almost-identical variant of an
opinion first circulated by Justice Rose on December 13, 1995, accompanied by a memorandum in which Justice
Rose states: I circulate this draft denying the motion filed by the appellant. I object to Justice Rose's writing an
opinion deciding conflicting factual and legal issues relating to his own qualifications, even as ghost-writer for
Justice Young.
mon knowledge about his business interests (the argument being that Ms. Snyder must have
known Justice Rose was a bar owner because she is part of the public at large), Justice
Rose relies secondarily on his contention that Ms. Snyder's former attorney, Mr. McKenna,
supposedly admitted to Justice Rose's campaign manager, Clark Santini, that he knew that
Justice Rose owned a bar in Las Vegas. Therefore, claims Justice Rose, Ms. Snyder waived
any disqualification claim by not asserting it sooner and her motion to disqualify [is]
insufficient as a matter of law.
Ms. Snyder, of course, denies knowing about Justice Rose's bar interests until after the
time that he cast his deciding vote in her case. Justice Rose's decision to deny Ms. Snyder's
motion to disqualify him appears to rest primarily
2
on whether Justice Rose's campaign
manager is telling the truth when he claims that Mr. McKenna told him that he knew Justice
Rose owned a bar at the time he was deciding this bar-liability case. I suggest that some jurist
other than Justice Rose ought to be deciding these fact-intensive issues.
Even if we were to accept Justice Rose's fact-finding that Ms. Snyder's former attorney
knew that Justice Rose was a bar owner at the time Justice Rose decided this case against her,
another critical legal issue remains, namely, whether Ms. Snyder's former attorney's
knowledge, uncommunicated to Ms. Snyder, should be an absolute bar to Ms. Snyder's
challenging Justice Rose's bias at this juncture. My own opinion is that it should not be.
Justice Steffen's opinion is that it should not be. The third, deciding judge of this issue should
be some impartial jurist, and not Justice Rose.
Reverting to argument ad hominem, Justice Rose characterizes my objection to his
participation in the decision to deny Ms. Snyder's challenge as being hypocritical. Justice
Rose offers two bases for branding me as a hypocrite, namely that I should have raised the
issue at the time that he was voting in favor of bar interests and, further, that in another case I
did the very same thing that he is now doing.
Putting aside the unseemliness of a supreme court justice, in published judicial opinion,
calling his colleague a hypocrite, I answer his charges as follows: (1) I was under no duty to
challenge Justice Rose's decision to cast the deciding vote in either this case or the
Hinegardner case; (2) I have not sat in judgment of my own qualifications, as claimed by
Justice Rose; and, even if Justice Rose's charge were true, this would not justify his being
the deciding vote in denying Ms.
__________

2
I reject out of hand and without discussion Justice Rose's contention that Ms. Snyder must have known about
his bar ownership at the time this case was decided against her because the public at large knew that he was a
bar-owner.
judgment of my own qualifications, as claimed by Justice Rose; and, even if Justice Rose's
charge were true, this would not justify his being the deciding vote in denying Ms. Snyder's
challenge of his impartiality in cases involving bars and taverns.
Justice Rose remarks that when he cast the deciding vote in this case, I did not, at our
decision conference, make a whimper of any concern. The reason that I did not whimper is
that I have been unable to predict whether Justice Rose is going to disqualify himself in bar
and casino cases. To his credit, I must say that in most bar and casino cases Justice Rose does
disqualify himself. Once in while, however, unpredictably, he will sit on one of these cases.
(For example: Trump v. District Court, 109 Nev. 687, 857 P.2d 740 (1993)). I know of
nothing in the Code of Judicial Conduct that would require me to monitor Justice Rose's
decisions to sit or not to sit in any given case.
With regard to Justice Rose's charge that I did the same, unacceptable thing that he is
doing, I would first say that if I had sat in judgment of a challenge of my own qualifications,
it would have been wrong for me to do so. The fact of the matter is that I did not
3
; but, if I
had done so, this certainly would not provide justification for Justice Rose's doing so.
Because I disagree with his insistence upon sitting in judgment on this motion to
disqualify him, Justice Rose calls me a hypocrite and imputes bad motives to me for filing
this dissent. I am saddened that Justice Rose would make an embarrassing spectacle out of
what seems to me to be a matter that is almost beyond dispute, namely that a supreme court
justice should not be passing judgment on factual and legal issues that bear on his own
eligibility to sit in a case.
__________

3
Justice Rose claims that in the Whitehead case I did the same thing that he is now trying to doto pass
judgment on my own qualifications. This is not true. When a challenge to my qualifications was filed in the
Whitehead case, I immediately withdrew, and the motion was submitted to and decided by the remaining
members of the court (Justice Shearing, Senior Justice Zenoff and District Judge Guy). I will not take the time to
recount the tortured history in Whitehead of the challenges that had been improperly tendered . . . for a serial,
fourth time. Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 422, 873 P.2d 946, 972 (1994). The
majority recognizes that my participation in the various Whitehead opinions did not touch on my own
qualifications to sit but, at most, after the motions had been decided by the other three members of the court, to
rule that, based on the court's prior ruling on the legal insufficiency of the motions to disqualify, the
Commission was not entitled to a hearing on the already-decided motions. (Majority Opinion at 8). If this is
the same thing as Justice Rose's ruling that his campaign manager's statements are true and ruling that he had
no pecuniary interest in this case, this still would not justify Justice Rose's ruling to reject Ms. Snyder's challenge
to his qualifications to decide her case.
____________
112 Nev. 591, 591 (1996) Allum v. Valley Bank of Nevada
ROBERT L. ALLUM, Appellant, v. VALLEY BANK OF NEVADA, VALLEY CAPITAL
CORPORATION, VALLEY MORTGAGE COMPANY, KENNETH CALLAHAN,
ARTHUR DANIEL RYSSMAN and PERRY DILORETO, Respondents.
No. 23394
ROBERT L. ALLUM, Appellant, v. VALLEY BANK OF NEVADA, a Nevada State
Chartered Banking Association; NEVADA FIRST DEVELOPMENT
CORPORATION, a Banking Holding Company and a Nevada Corporation; VALLEY
MORTGAGE COMPANY, a Mortgage Company and Wholly Owned Subsidiary of
Valley Bank of Nevada; KENNETH CALLAHAN and ARTHUR DANIEL
RYSSMAN, Respondents.
No. 24604
ROBERT L. ALLUM and J.D. JENKINS, Appellants, v. BANK OF AMERICA NEVADA
and NEVADA FIRST DEVELOPMENT, Respondents.
No. 25594
May 3, 1996 915 P.2d 895
Appeals from orders of the district court dismissing a claim and counterclaims and from a
judgment of the district court in favor of respondents Valley Bank of Nevada, Nevada First
Development Corporation, Valley Mortgage Company, Kenneth Callahan, and Arthur Daniel
Ryssman. Second Judicial District Court, Washoe County; Mark Handelsman and Peter I.
Breen, Judges.
The district court dismissed claims and counterclaims and entered judgment. On appeal,
appellant moved to disqualify all state supreme court justices. The supreme court held that:
(1) one justice's personal indebtedness to respondent bank and ownership of tavern indebted
to respondent bank were too attenuated to require that justice's disqualification from hearing
appeal involving bank, and (2) justices' alleged bias in past rulings did not warrant their
disqualification.
Motions for disqualification denied.
Kenneth J. McKenna, Reno; Robert L. Allum, In Proper Person, Sparks; J.D. Jenkins, In
Proper Person, Reno, for Appellants.
Scarpello & Alling and Rick Oshinski, Carson City; Beasley, Holden & Kern, Reno, for
Respondents.
1. Judges.
Appellant's failure to file motion to disqualify state supreme court justice promptly after attorney learned of alleged grounds for
disqualification warranted denial of motion NRAP 35(a).
2. Judges.
State supreme court justice's personal indebtedness to respondent bank and ownership of tavern indebted to respondent bank
would not have been affected by outcome of attorney's appeals and were thus too attenuated to require justice's disqualification from
hearing appeal involving bank. NRS 1.225; Code of Jud. Conduct, Cannon 3E(1)(c).
3. Judges.
Justices of state supreme court were not disqualified from hearing appeal involving appellant based on alleged demonstrations of
bias against appellant through their rulings in his appeals. Code of Jud. Conduct, Canon 3E(1).
4. Judges.
Justices of state supreme court were not disualified from hearing appeal based on their failure to disqualify one justice; that justice
had no disqualifying interest, and appellant failed to set forth sufficient factual grounds demonstrating court bias. NRS 1.225; Code of
Jud. Conduct, Canon 3E(1).
OPINION
Per Curiam:
On February 14, 1995, this court received appellant Robert Allum's proper person petition for leave to file motions to disqualify all of
the Supreme Court Justices from participating in his three appeals and vacating all orders previously entered. On the same day, this court
received two proper person motions from Allum: (1) a motion to disqualify Justice Rose from participating in Docket Nos. 23394, 24604
and 25594 and to vacate all orders entered in these cases; and (2) a motion to disqualify Chief Justice Steffen and Justices Shearing, Young
and Springer from participating in Docket Nos. 23394, 24604, and 25594 and to vacate all orders entered in these cases.
[Headnote 1]
Allum alleges that Justice Rose was disqualified from participating in his appeals because Justice Rose and a tavern that he owned
were financially indebted to Bank of America for a first deed of trust on land and buildings in Henderson, Nevada. Preliminarily, we note
that Allum's motions are procedurally deficient. Allum submitted his disqualification motions approximately eighteen months after his
appeal in Docket No. 23394 was resolved and eight months after his appeal in Docket No. 25594 was dismissed. NRAP 35(a) states, in
relevant part, that [i]n cases or proceedings before the Supreme Court of Nevada, motions and charges seeking the
disqualification or recusal of a justice must not be based on any ground that the moving party has theretofore
omitted to raise formally as soon as possible after receiving either actual or constructive notice thereof.
[i]n cases or proceedings before the Supreme Court of Nevada, motions and charges
seeking the disqualification or recusal of a justice must not be based on any ground that
the moving party has theretofore omitted to raise formally as soon as possible after
receiving either actual or constructive notice thereof.
Allum admits that he learned of a connection between Justice Rose and Bank of America as
early as November 12, 1993. Attached to Allum's disqualification motions are Justice Rose's
financial disclosure statements for 1991, 1992 and 1993. These public documents reflect that
Valley Mortgage Co./Bank of America is a creditor of Justice Rose and the tavern. Thus, it
appears that Allum had, at the very least, constructive notice of the loan long before he filed
his disqualification motions.
[Headnote 2]
Although we could deny Allum's motions solely on his lack of compliance with NRAP 35,
we conclude that his motions lack substantive merit as well.
1
Canon 3E of the Nevada Code
of Judicial Conduct provides, in pertinent part, that
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned, including but not limited to instances
where:
. . . .
(c) the judge knows[] that he or she, individually or as a fiduciary, . . . has an economic
interest[] in the subject matter in controversy or in a party to the proceeding or has any
other more than de minimis[] interest that could be substantially affected by the
proceeding. . . .
In addition, NRS 1.225 provides, in part, as follows:
2. A justice of the supreme court shall not act as such in an action or proceeding when
implied bias exists in any of the following respects:
(a) When he is a party to or interested in the action or proceeding.
Here, any interest that Justice Rose had in Bank of America would not have been
substantially affected by the outcome of Allum's appeals and was therefore too attenuated to
require disqualification.
__________

1
In spite of Allum's failure to comply with NRAP 35, we direct the clerk of this court to file Allum's proper
person petition and motions for disqualification, which this court received on February 14, 1995. We also direct
the clerk of this court to file Allum's proper person certificate of service, which this court received on February
24, 1995. Finally, we direct the clerk of this court to file respondents' objection and the joinder of Perry
DiLoreto, which this court received on February 24, 1995, and March 2, 1995, respectively.
disqualification. See Madsen v. Prudential Federal Savings & Loan, 767 P.2d 538 (Utah
1988) (concluding that judge who had mortgage with party did not have disqualifying, direct
interest in outcome of litigation); see also In re Drexel Burnham Lambert Inc., 861 F.2d 1307
(2d Cir. 1988), cert. denied sub nom. Milken v. S.E.C., 490 U.S. 1102 (1989); Herrington v.
Sonoma Cty., 834 F.2d 1488 (9th Cir. 1987), opinion amended on unrelated grounds and
reh'g denied, 857 F.2d 567 (9th Cir. 1988), cert. denied, 489 U.S. 1090 (1989); In re New
Mexico Natural Gas Antitrust Litigation, 620 F.2d 794 (10th Cir. 1980); In re Virginia Elec.
& Power Co., 539 F.2d 357 (4th Cir. 1976).
[Headnote 3]
Allum also asserts that the justices of this court have demonstrated actual bias through
their rulings in his appeals. We have specifically held that a judge is not disqualified merely
because of his or her judicial rulings. In re Petition to Recall Dunleavy, 104 Nev. 784,
789-90, 769 P.2d 1271, 1275 (1988), cited in Ainsworth v. Combined Insurance Co., 105
Nev. 237, 255, 774 P.2d 1003, 1016, cert. denied, 493 U.S. 958 (1989). The United States
Supreme Court has recently reiterated that judicial rulings alone almost never constitute [a]
valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555, 114 S.
Ct. 1147, 1157 (1994). Consequently, Allum's contention is meritless.
[Headnote 4]
Finally, Allum nebulously maintains that in light of Justice Rose's failure to disqualify
himself, the other justices are disqualified because they did not take appropriate action. As
Justice Rose had no disqualifying interest, this argument is specious. Furthermore, Allum has
not even attempted to meet his burden under NRS 1.225 of setting forth sufficient factual
grounds demonstrating this court's bias. See Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d
1296, 1299 (1988).
For the foregoing reasons, we deny Allum's motions for disqualification.
In the titled cases, appellant Allum has moved to disqualify all of the members of the state
supreme court. Insofar as the motion to disqualify me is concerned, I disqualify myself from
sitting in judgment on the matter. I firmly believe that the other members of the court should
do likewise and that any adjudications relating to motions to disqualify individual members
of the court should be made without the participation of the justice whose qualifications are
being challenged. Whatever may be the merits of the majority opinion, I certainly do not think
that my name should appear on any order which rules on my own qualifications; therefore,
I decline to participate in the majority opinion.
appear on any order which rules on my own qualifications; therefore, I decline to participate
in the majority opinion.
____________
112 Nev. 595, 595 (1996) Martin v. Beck
LESLIE MARTIN, Appellant, v. CRAIG STEPHEN BECK, GREGORY LYNN BECK and
DONA-LIS WALLER as Co-Executors of the Estate of DON BECK, Deceased,
Respondents.
No. 27205
May 3, 1996 915 P.2d 898
Appeal from an order of the district court denying a motion to reopen an estate. Second
Judicial District Court, Washoe County; Peter I. Breen, Judge.
The district court denied motion to reopen estate. On appeal, appellant submitted motion
to disqualify a state supreme court justice. The supreme court, Shearing, J., held that justice's
alleged actions did not demonstrate a qualifying bias against appellant's attorney.
Motion for disqualification denied.
Kenneth J. McKenna, Reno, for Appellant.
Mortimer, Sourwine & Sloane, Ltd., Reno, for Respondents.
1. Judges.
Appellant's failure to include attorney's certificate in motion to disqualify state supreme court justice from hearing appeal
warranted denial of motion. NRAP 35(a).
2. Judges.
Allegations that a judge has a personal bias against a party's attorney must be carefully scrutinized so that independence of state's
judiciary is not impeded. Code of Jud. Conduct, Canon 3E.
3. Judges.
State supreme court justice's alleged action of filing perjury complaint against party's attorney and alleged personal bias against
party's attorney based on justice's response to motion to disqualify justice in another case did not demonstrate a disqualifying bias
against attorney. Code of Jud. Conduct, Canon 3E.
OPINION
Appellant Leslie Martin has submitted a motion to disqualify Justice Rose from participating in her appeal. Martin's motion is based
on two alleged grounds: {1) that Justice Rose has filed a perjury complaint against her counsel, Kenneth J.
112 Nev. 595, 596 (1996) Martin v. Beck
is based on two alleged grounds: (1) that Justice Rose has filed a perjury complaint against
her counsel, Kenneth J. McKenna, with the Attorney General's Office; and (2) that Justice
Rose has a personal bias against McKenna as demonstrated in Justice Rose's response to the
motion to disqualify him in Snyder v. Viani, Docket No. 27326.
[Headnote 1]
We first note that Martin's motion is procedurally deficient. NRAP 35(a) requires that a
disqualification motion
contain the certificate of the attorney, as an officer of the court, reciting specifically
under oath that the attorney has read the motion . . . and supporting documents, that
they all are in the form required by this rule, that based on personal investigation the
attorney believes all grounds asserted to be legally valid and all supporting factual
allegations to be true, and that the motion is made in good faith and not for purposes of
delay or for other improper motive.
Martin's motion includes no attorney's certificate, and this failure to comply with NRAP 35(a)
is sanctionable. See NRAP 35(e). Although we could reject Martin's motion on the procedural
deficiency alone, we conclude that her motion lacks substantive merit as well.
1

[Headnote 2]
Nevada Code of Judicial Conduct (NCJC) Canon 3E provides that [a] judge shall
disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited to instances where: (a) the judge has a
personal bias or prejudice concerning a party or a party's lawyer. The NCJC's preamble
provides that it should be applied consistently with constitutional requirements, statutes,
other court rules and decisional law and in the context of all relevant circumstances, and that
it is to be construed so as not to impinge on the essential independence of judges in making
judicial decisions.
This court has previously concluded that
[i]n a small state such as Nevada, with a concomitantly limited bar membership, it is
inevitable that frequent interactions will occur between the members of the bar and the
judiciary. Thus, allegations of bias based upon a judge's associations with counsel for a
litigant pose a particularly onerous potential for impeding the dispensation of justice.
__________

1
In spite of Martin's failure to comply with NRAP 35, we direct the clerk of this court to file Martin's motion to
disqualify Justice Rose, which this court received on August 9, 1995.
112 Nev. 595, 597 (1996) Martin v. Beck
In re Petition to Recall Dunleavy, 104 Nev. 784, 790-91, 769 P.2d 1271, 1275 (1988).
Therefore, although NCJC Canon 3 requires disqualification when a judge has a personal bias
against a party's attorney, allegations of such bias must be carefully scrutinized so that the
independence of Nevada's judiciary is not impeded.
[Headnote 3]
In the present case, we are not convinced that McKenna has demonstrated that Justice
Rose has a disqualifying personal bias against him. The Court of Appeals for the First Circuit
has recognized that [a] judge who believes misconduct has occurred has a responsibility to
act. If a counsel oversteps his bounds, delay in issuing warnings or taking action may lead to
matters getting further out of hand . . . . In re Cooper, 821 F.2d 833, 843 (1st Cir. 1987)
Additionally, courts have concluded that a judge's referral of an attorney to the state
disciplinary board does not constitute disqualifying bias against the attorney. See, e.g., State
v. Mata, 789 P.2d 1122 (Haw. 1990).
We conclude that under the circumstances presented here, Justice Rose could reasonably
have determined that he had a responsibility to act and that his alleged actions regarding
McKenna's possible perjury do not demonstrate a disqualifying bias against McKenna.
Accordingly, appellant Martin's motion to disqualify Justice Rose is denied.
Steffen, C. J., Young and Rose, JJ., concur.
I concur to address the statements made by Justice Springer in his concurrence and dissent.
I merely informed law enforcement authorities that a Clark Santini had filed an affidavit
indicating that Kenneth McKenna had actual knowledge of my bar ownership prior to our
decision in the Viani case, contrary to McKenna's claim under oath. It appeared that a crime
may have been committed by an attorney and I reported it to the appropriate law enforcement
authorities as any citizen should and a judge is obligated to pursuant to the Nevada Code of
Judicial Conduct, Section 3D(2).
Justice Springer also objects to my participating in this case; but it seems very hypocritical
for Justice Springer to object to my participation in this motion to disqualify when this is
precisely what Justices Steffen and Springer did when the Attorney General filed a motion
against them claiming a disqualifying personal and financial interest in the Whitehead case.
Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380, 422-29, 873 P.2d 946, 972-77
(1994).
112 Nev. 595, 598 (1996) Martin v. Beck
Springer, J., concurring in part and dissenting in part:
I concur in that part of the majority opinion which holds that Martin has not complied with
NRAP 35(a) when he failed to file the required certificate of attorney. This, however, is a
minor procedural irregularity which can be easily cured merely by allowing Martin to comply
with this procedural requirement.
The majority justices state that they are not convinced that McKenna has demonstrated
that Justice Rose has a disqualifying personal bias against him. The problem with the
majority opinion is that one of the majority justices is Justice Rose, who, again, is not only
sitting in judgment of his own qualifications, he is the deciding or swing vote in making the
decision. (For other cases in which Justice Rose has recently insisted upon sitting in judgment
on cases involving factual and legal disputes relating to his qualifications, see, for example,
Hogan v. Warden, 112 Nev. 553, 916 P.2d 805 (1996); Snyder v. Viani, 112 Nev. 568, 916
P.2d 170 (l996); Allum v. Valley Bank of Nevada, 112 Nev. 591, 915 P.2d 895 (1996).
I am not prepared to discuss the question of whether Justice Rose's pursuing
1
of criminal
charges against appellant's attorney, while his appeal was pending, is sufficient to disqualify
Justice Rose. I know that I would feel very uncomfortable if I were a lawyer arguing a case
before the supreme court, if one of the deciding justices was at the time pressing criminal
charges against me. It is not necessary to decide this question now, however, when it is so
clear that Justice Rose should not hear and decide this motion challenging his qualifications.
If Justice Rose had decided to remove himself from the decision-making process in the
pending motion to disqualify him, I would have been pleased to deliberate matters relating to
his qualifications with the remaining majority and to express my views in the appropriate
manner. I am concerned now only with the propriety of Justice Rose sitting in judgment of
himself
2
; therefore, I will simply dissent only on the ground that Justice Rose is not
qualified to sit in judgment of his own qualifications.
__________

1
Justice Rose did not actually file a criminal complaint against Mr. McKenna, but, according to Justice Rose,
he merely reported to law enforcement authorities incriminating information about Mr. McKenna that he had
received from one of his campaign managers.

2
I deeply regret that Justice Rose in his concurring opinion has reduced himself to name-calling, accusing me of
being hypocritical when I object to his participation in the motion to disqualify him. As in other recent cases,
Justice Rose does not seem to realize that disputed factual and legal issues relating to his impartiality should be
resolved by some person other than himself. With regard to Justice Rose's suggestion that I have ruled in matters
relating to my own qualifications, this is simply not true; and even if it were, it would not justify Justice Rose in
acting as his own judge. In the case mentioned by Justice Rose in his concurring opinion, I withdrew from
participating in the decision on the motion to disqualify me. The motion was
112 Nev. 595, 599 (1996) Martin v. Beck
simply dissent only on the ground that Justice Rose is not qualified to sit in judgment of his
own qualifications.
____________
112 Nev. 599, 599 (1996) Hogle v. Hall
DAVID M. HOGLE, M.D., Individually; and MANILLA, CORTEZ, HOGLE, YOUNG,
LTD., a Nevada Corporation, dba ELKO REGIONAL MEDICAL CENTER,
Appellants, v. BRYCE MICHAEL HALL, a Minor, by and Through CAROL
EVANS, Guardian ad Litem, RICHARD A. HALL, Individually, and KIM MARIE
HALL, Respondents.
No. 27299
May 10, 1996 916 P.2d 814
Appeal from a judgment pursuant to a jury verdict in an action for medical malpractice,
and from orders: (1) denying a motion to set aside judgment; (2) granting a motion for
additur; and (3) granting a motion for attorney's fees. Fourth Judicial District Court, Elko
County; Dan L. Papez, Judge.
Infant's father, as infant's natural guardian, sued physician for medical malpractice,
alleging that infant was born profoundly retarded because his mother took acne drug that
defendant prescribed for her during early stages of pregnancy. Complaint was subsequently
amended to allege that infant's grandmother had been appointed guardian ad litem, and that
bank had been appointed co-guardian. After jury returned verdict awarding infant $2.63
million, and finding physician and infant's mother 60 and 40 percent negligent, respectively,
the district court assessed additur of $300,000 to infant's damages. Defendant appealed. The
supreme court held that: (1) no fraudulent transfer arose from permitting complaint to be
amended to reflect grandmother and bank as new guardians pursing action for infant (2) trial
court did not modify its pretrial order; (3) defendant was not prejudiced by exclusion of
circumstances surrounding mother's pre-pregnancy suicide attempt; and (4) trial court
properly ordered additur, rather than new trial on damages and liability.
Affirmed.
__________
denied (four times) by Justice Shearing, Senior Justice Zenoff and District Judge Guy. I did not participate in
these decisions. In the Whitehead opinion, I did join in ruling that, once the motions challenging my
qualifications had been finally decided by an impartial panel, the moving party was not entitled to a hearing on
the matter. Whitehead has no relevance of any kind to the present case.
112 Nev. 599, 600 (1996) Hogle v. Hall
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Osborne and
Gamboa, Reno, for Appellants.
White & Meany, Reno; Puccinelli & Puccinelli, Elko, for Respondents.
1. Infants.
Unborn child who sustains injury prior to birth may sue for those personal injuries after being born. NRS 12.080.
2. Infants; Parent and Child.
Although mother or father are statutorily permitted to bring suit for injuries sustained by their minor child, right to sue for those
damages belongs to minor unless parent has paid expenses for minor or incurred them him or herself. NRS 12.080.
Although parents have statutory right of action for tortious injury of minor child, it was not legislature's intent to deprive infant of
his common law right to sue for damages for such injury, though elements of damages recoverable by him may be limited to such items
as pain, suffering, disfiguerment, and the like; in suit by parents, they would be entitled to recover only damages as they may have
sustained, such as their loss of child's services and earnings, and medical expenses incurred by them in effecting cure. NRS 12.080.
Minor who sustains personal injuries may bring suit either through his parents or through guardian ad litem appointed by court.
NRS 12.080.
5. Negligence.
Parent's negligence in contributing to his or her innocent child's injuries cannot be imputed to child, and proper remedy is for all
tortfeasors to be held jointly and severally liable. NRS 12.080.
6. Infants; Negligence.
No fraudulent transfer arose from amendment of medical malpractice complaint to replace plaintiff child's father with plaintiff's
grandmother as plaintiff's guardian ad litem, despite defendant's claim that, had parents brought action instead of transferring it to
child (through his guardian ad litem), judgment would have been offset by mother's comparative negligence. Mother's comparative
negligence would not have been imputed to plaintiff even if mother were parent who asserted plaintiff's cause of action, and in
permitting complaint to be amended, trial court did nothing more than recognize change of individual and entity responsible for
plaintiff's action. NRS 12.080, 112.190.
Trial court's exclusion of defendant physician's testimony concerning abortion was not modification of pretrial order in medical
malpractice action alleging that plaintiff infant was born profoundly retarded because his mother took drug that defendant prescribed
for mother's acne during early stages of pregnancy. Physician's proposed testimony, which he claimed would show that he would not
have prescribed drug unless mother agreed to consider abortion in event she became pregnant, was cumulative, as notes physician
made during his consultation with patient were entered into evidence and presented to jury several times, and those notes indicated that
mother agreed to consider abortion if she should get pregnant while taking that drug.
112 Nev. 599, 601 (1996) Hogle v. Hall
Pretrial order that permitted testimony that plaintiff infant's mother attempted suicide before defendant physician prescribed acne
drug that caused plaintiff's severe birth defects, but which precluded testimony concerning circumstances surrounding suicide, (i.e.,
that mother used drugs and had been victim of domestic violence), did not prejudice defendant physician, despite his claim that he was
thereby denied opportunity to effectively cross-examine plaintiff's expert, who testified that one guideline for drug was that patient be
reliable, and that red flag would go up in his mind as to whether patient who had attempted suicide was reliable. Defendant was able
to testify that patient's suicide was behind her, that patient's life had changed, and that he felt she was reliable.
9. New Trial.
Additur is just, speedy, efficient, and inexpensive vehicle to correct inadequate jury verdict.
Additur of $300,000, rather than grant of new trial for damages and liability, was proper in medical malpractice action in which
jury's $2.63 million award did not include general damages for plaintiff infant, whose severe birth defects were caused by his mother
taking acne drug that defendant physician prescribed for her during early stages of pregnancy. Defendant admitted that all injuries
suffered by plaintiff were caused by his mother's use of that drug, and thus, there was not interrelationship between liability and
damages, and jury was very clear as defendant's comparative fault, assigning him 60 percent of liability.
OPINION
Per Curiam:
The minor child Bryce Michael Hall (Bryce) was born profoundly retarded because his mother took the prescribed drug Accutane for
her acne during the early stages of pregnancy. The appellants were found negligent, and damages were awarded to Bryce. The appellants
now claim that numerous errors occurred in this case, including that the district court permitted new guardians ad litem to be named as
party plaintiffs on behalf of Bryce prior to trial and assessed an additur of $300,000.00 to Bryce's damages, along with the assessment of
attorney's fees subsequent to trial. We conclude that all of appellants' contentions are without merit, and we affirm the judgment entered in
district court.
FACTS
Kim Hall, a twenty-seven-year-old resident of Elko, had been troubled by acne since she was a teenager. In 1986, Kim's acne had been
successfully treated with Accutane by a dermatologist in Idaho. Accutane is a prescription drug which is recommended for treating severe
recalcitrant cystic acne. Accutane is also extremely teratogenic {birth-defect causing).
112 Nev. 599, 602 (1996) Hogle v. Hall
extremely teratogenic (birth-defect causing). In fact, at one point, the FDA considered taking
Accutane off the market because of the large number of birth defects it caused. Instead, the
FDA consulted with physicians and Roche, the manufacturer of the drug, and came up with
guidelines for prescribing Accutane. These guidelines appear in the Physician's Desk
Reference and consist of six conditions which must be met by the patient before the physician
prescribes Accutane. According to the guidelines, the patient must: (1) have severe
disfiguring cystic acne which has not responded to other therapies; (2) be reliable in
understanding and carrying out instructions; (3) be capable of complying with mandatory
contraceptive measures; (4) receive oral and written warnings of the teratogenic properties of
Accutane and acknowledge understanding of these warnings in writing; (5) have a negative
serum pregnancy test within two weeks prior to beginning Accutane; and (6) begin Accutane
only on the second or third day of the next normal menstrual period. It is further
recommended that effective birth control be used for one month before beginning Accutane
and that birth control be continued until one month after the conclusion of the Accutane
therapy.
On January 8, 1991, Kim went to Dr. David Hogle (Hogle) for treatment of her acne. Kim
told Hogle that her last menstrual period had been that month. Hogle gave Kim a prescription
for Accutane without following the checklist contained in the PDR. He did not give Kim
written warnings or have her sign a written acknowledgment that she understood the risks.
Kim was unknowingly pregnant on January 8, 1991, as her last menstrual period had actually
been December 21, 1990. Bryce was born on September 3, 1991, with severe birth defects as
a result of Kim's ingestion of Accutane. Bryce is profoundly retarded, his pupils do not
respond to light, and he has virtually no ability to suck, swallow or move his tongue or lower
facial muscles. It is estimated that he may survive to ten or fifteen years of age.
A complaint of medical malpractice was submitted to the Northern Nevada Medical-Legal
Screening Panel, and on March 1, 1994, the Screening Panel returned a finding that there was
a reasonable probability of medical malpractice by Hogle and that Bryce was injured by such
malpractice.
In March 1994, Richard Hall filed the initial complaint on behalf of his son, Bryce, as his
parent and natural guardian for damages sustained by Bryce. Hogle and Elko Regional
Medical Center (ERMC) were named as defendants. Richard subsequently amended the
complaint to add one claim of relief asserting damages on his own behalf for loss of
consortium, care and companionship of Bryce. The appellants answered the complaint and
filed a third-party complaint against Bryce's mother, Kim Hall, claiming that Kim's
negligence proximately caused damage to Bryce and asking for contribution and costs to
the extent of her negligence.
112 Nev. 599, 603 (1996) Hogle v. Hall
Hall, claiming that Kim's negligence proximately caused damage to Bryce and asking for
contribution and costs to the extent of her negligence. Prior to trial, the complaint filed by
Richard Hall on behalf of Bryce was amended a second time to allege that Bryce's
grandmother, Carol Evans, had been appointed guardian and guardian ad litem of Bryce for
purposes of prosecuting this action and First Interstate Bank of Nevada had been appointed
co-guardian for the purpose of handling any monies found due and owing Bryce. The caption
was changed to reflect that the action was now being asserted by the co-guardians Evans and
First Interstate Bank and Richard Hall individually. At no time did Kim Hall ever make a
claim for recovery on behalf of Bryce or claim any damages flowing from Bryce's personal
injuries.
On August 12, 1994, a settlement conference was held pursuant to NRS 41A.059. The
judge assigned to evaluate the settlement value of the case found the settlement value to be
$2,613,000.00.
Before the trial commenced, the district court entered a pretrial order which dealt with
several motions in limine. The district court ruled:
The parties and their witnesses may not refer to, comment on, or attempt directly or
indirectly to suggest to the jury in any manner, that Counterdefendant KIM MARIE
HALL has ever used illegal or street drugs at any time; that she has ever been the
victim of spousal abuse or domestic violence; that she has ever abused the use of
alcohol, and any related matters designed to put KIM MARIE HALL in a bad light.
There was also evidence that Kim had attempted suicide in January 1990, but this was not
excluded by the pretrial order. The court further ruled that because Kim had no duty to have
an abortion when she found out she was pregnant, the testimony as to abortion would be very
limited. The purpose of this order was apparently to prevent the jury from finding that Kim
was negligent by failing to abort Bryce.
A six-day jury trial was held, beginning on January 18, 1995. The jury returned a verdict in
favor of Bryce in the amount of $2,630,000.00, finding Hogle sixty percent negligent and
Kim forty percent negligent. The district court entered judgment which held Hogle and
ERMC jointly and severally liable. The judgment also specified that Hogle and ERMC could
recover forty percent of the judgment from Kim.
On March 25, 1995, Bryce moved the court for additur, arguing that the jury apparently
did not award general damages, i.e., pain and suffering. Instead, the damages correlated
almost exactly to past and future medical damages, and so were only special damages.
112 Nev. 599, 604 (1996) Hogle v. Hall
exactly to past and future medical damages, and so were only special damages. As an
alternative to additur, Bryce asked for a new trial limited to the issue of damages.
Additionally, Richard requested additur, since the jury had found that he had been damaged
by his son's injuries, but had chosen to award him nothing.
In his opposition to the motion for additur, Hogle argued that even if the verdict was
inadequate, it was the result of a compromise between the issues of liability and damages.
Hogle argued that the jury may have felt that Kim's conduct was a superseding cause and the
jury then compromised and awarded Bryce only his medical damages and no pain and
suffering damages. Hogle urged that the only proper remedy was to award a new trial.
The district court granted Bryce's motion for additur, specifically rejecting Hogle's notion
of a compromise verdict. The court noted:
The jury specifically found that Ms. Hall's negligence and Dr. Hogle's negligence were
contributing causes of the injuries suffered by Bryce in the instant case. Moreover, the
jury calculated the degree to which Dr. Hogle and Ms. Hall were at fault herein. The
jury has already resolved the issues of negligence and causation; therefore the Court
need not indulge Defendants' elaborate compromise verdict theory and concomitant
request for a complete new trial herein.
On April 10, 1995, Hogle moved for relief from judgment under NRCP 60(b)(2).
1
The
thrust of Hogle's argument was that the action for medical expenses belonged to the
community of Richard and Kim and that substituting Evans as guardian ad litem effected a
fraudulent transfer under NRS 112.190.
2
Hogle requested that the transfer be set aside and
the judgment for medical damages be reduced by the forty percent for which the community
was liable because of Kim's negligence.
In an order filed June 5, 1995, the district court denied Hogle's motion. The court noted
that a parent has a right to pursue a claim for medical expenses incurred to care for an
injured minor child.
__________

1
NRCP 60(b)(2) provides that the court may relieve a party from a judgment for fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party which would have
theretofore justified a court in sustaining a collateral attack upon the judgment.

2
NRS 112.190(1) provides that:
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before
the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and
the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or
obligation.
112 Nev. 599, 605 (1996) Hogle v. Hall
claim for medical expenses incurred to care for an injured minor child. The court further
noted that the child has his own right of action to damages and that this right is either
subordinate or concomitant to a parent's right to bring an action. The court concluded that
Kim and Richard had waived their right of action in order to entitle [Bryce] to recover the
full amount of his damages.' In the view of the district court, such waiver did not constitute
a transfer as prohibited by NRS 112.190. Further, the court found that even if there was a
transfer, there was no evidence that it was fraudulent.
On March 27, 1995, Bryce moved for an award of attorney's fees. The motion was made
pursuant to NRS 41A.059(4), which provides that after the judge at the settlement conference
has determined the value of a medical malpractice claim, [i]f the defendant rejects the
determination and the plaintiff is awarded an amount greater than the amount of the
determination, the plaintiff must be awarded reasonable costs and attorney's fees incurred
after the date of the rejection. The motion was accordingly based on the defendants' rejection
of the amount set by the judge at the settlement conference. That amount ($2,613,000.00) was
less than what the jury finally awarded ($2,630,000.00); thus, Bryce argued that defendants
were liable pursuant to NRS 41A.059(4) for attorney's fees incurred after the rejection.
In his opposition to the motion for attorney's fees, Hogle argued that if the judgment were
reduced because of the fraudulent transfer of the claim from Kim and Richard to Evans,
then it would be less than the amount set at the settlement conference and attorney's fees
would not be appropriate. The district court rejected this argument and awarded attorney's
fees pursuant to NRS 41A.059(4).
On July 3, 1995, the district court entered a Supplemental Judgment, which awarded
Bryce attorney's fees and $300,000.00 for pain and suffering in the form of additur. The
judgment further stated that Hogle and ERMC could recover forty percent of these pain and
suffering damages from Kim.
DISCUSSION
Hogle and ERMC appeal, arguing that: (1) the substitution of Evans as guardian ad litem
was an assignment of the claim from Kim and Richard to Evans and constituted a fraudulent
transfer; (2) the district court erred by altering a pretrial order without making appropriate
findings; (3) the district court abused its discretion by allowing evidence of Kim's attempted
suicide without allowing evidence of the surrounding circumstances; (4) the district court
should have granted a new trial on all issues; and (5) an offset or set-aside for the fraudulent
transfer would reduce the judgment to less than the settlement value, making the award of
attorney's fees improper.
112 Nev. 599, 606 (1996) Hogle v. Hall
judgment to less than the settlement value, making the award of attorney's fees improper.
Hogle and ERMC argue that a claim for medical expenses belongs to the parents of the
injured child. Hogle and ERMC further argue that had Kim and Richard brought the action
instead of transferring the action to Bryce (through his guardian ad litem), the judgment
would have been offset by Kim's negligence. Hogle and ERMC therefore request that the
judgment be reduced by forty percent to reflect Kim's percentage of the liability.
[Headnotes 1-4]
An unborn child who sustains injury prior to birth may sue for those personal injuries after
being born. Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307 (1972). While NRS 12.080
permits a mother or father to bring suit for injuries sustained by their minor child, the right to
sue for those damages belongs to the minor unless the parent has paid the expenses for the
minor or incurred them him or herself. See Armstrong v. Onufrock, 75 Nev. 342, 347, 341
P.2d 105, 107 (1959).
While sec. 8553, N.C.L. 1929, (the predecessor to NRS 12.080) gives the parents a
right of action for the tortious injury of their minor child, there is nothing in that section
which warrants the conclusion that it was the intention of the legislature to deprive the
infant of his common law right to sue for damages for such injury, though the elements
of the damages recoverable by him may be limited to such items as pain, suffering,
disfigurement and the like. In a suit by the parents, they would be entitled to recover
only such damages as may have been sustained by them, such as their loss of the child's
services and earnings and the medical expenses incurred by them in effecting a cure.
(Citation omitted.)
Walker v. Burkham, 63 Nev. 75, 83, 165 P.2d 161, 164 (1946). Therefore, a minor who
sustains personal injuries may bring suit either through his parents pursuant to NRS 12.080 or
through a guardian ad litem appointed by the court.
[Headnotes 5, 6]
This court has held that the negligence of a parent cannot be imputed to an innocent child,
and the proper remedy is for all tortfeasors to be held jointly and severally liable. Buck v.
Greyhound, 105 Nev. 756, 764, 783 P.2d 437, 442 (1989). Hogle and ERMC seek to avoid
this result by arguing that the claim was fraudulently transferred and so offset is appropriate.
Kim's comparative negligence would not be imputed to Bryce even if she was the parent who
asserted Bryce's cause of action. In permitting the complaint to be amended to reflect Evans
and First Interstate Bank as the new guardians pursuing the action for Bryce, the district
court did nothing more than recognize the change of the individual and entity responsible
for Bryce's action.
112 Nev. 599, 607 (1996) Hogle v. Hall
Bryce, the district court did nothing more than recognize the change of the individual and
entity responsible for Bryce's action. This was in no sense a fraudulent transfer, and the
appellants' argument is without merit.
[Headnote 7]
Hogle and ERMC next argue that the district court improperly modified its pretrial order.
Recognizing that Kim had no duty to have an abortion, the district court entered a pretrial
order which provided, in part:
The parties and their witnesses may only refer to abortion in a very limited manner,
through testimony which concerns only the standard of care of the defendant, DAVID
M. HOGLE, M.D., and the advice he may or may not have given to KIM HALL
concerning an abortion if she became pregnant while taking the drug Accutane.
Hogle testified twice, once during the plaintiff's case and again during the defendants' case.
During redirect on the second day of Hogle's testimony, the following exchange took place:
Q: Are there any things that a patient would say, an Accutane patient would say, that
would absolutely put you in a position where you wouldn't give them the drug?
A: If we discussed abortion and
MR. WHITE [counsel for Bryce]: Objection, Your Honor.
MR. PUCCINELLI [counsel for Kim]: Objection.
MR. OSBORNE [counsel for Hogle]: Why?
THE COURT: Sidebar.
(WHEREUPON the following proceedings were had at the bench)
MR. WHITE: Your Honor, I think that Mr. Osborne on three other occasions has
definitely crossed the line on this particular question. He is eliciting testimony that is
repetitive, is repetitive, is repetitive. We have heard it before from this witness, we have
heard it from other witnesses, we have heard it come in. It should be excluded just on
the basis of repetition alone.
The district court judge then sustained the objection, stating, We have all the information
that is necessary for the jury regarding standard of care and abortion. I am not going to allow
any more questioning about that. Hogle and ERMC argue that Hogle was thereby precluded
from showing that he would not have prescribed Accutane unless Kim agreed to consider an
abortion in the event she became pregnant.
Hogle and ERMC argue that this ruling by the district court constitutes a modification of
the pretrial order. We conclude that it is clear from the record that the testimony was
excluded on the grounds that it was cumulative and not because of some modification of
the pretrial order.
112 Nev. 599, 608 (1996) Hogle v. Hall
it is clear from the record that the testimony was excluded on the grounds that it was
cumulative and not because of some modification of the pretrial order. Indeed, the testimony
of Hogle that was excluded was cumulative. The notes made by Hogle during his consultation
with Kim were entered into evidence and presented to the jury several times. These notes
indicated that Kim had agreed to consider an abortion if she should get pregnant while taking
Accutane. We therefore conclude that the proposed evidence was properly disallowed by the
district court as being cumulative and that Hogle and ERMC's argument that the district
court's ruling was a modification of the pretrial order is without merit.
[Headnote 8]
During the plaintiff's case/in/chief, Dr. Tom McAfee testified as an expert witness.
McAfee is a board-certified internist. During direct examination of McAfee by Bryce's
attorney, the following exchange took place:
Q: Doctor, I want you to assume that a female patient who had attempted suicide less
than a year before and who told you that she had gone off birth control pills comes into
your office and says, Dr. McAfee, I want you to prescribe me this miracle drug
Accutane. What do you do in this situation?
MR. OSBORNE: That is not the question, what he would do. The question is what is
the standard.
THE COURT: That's correct.
Q: (By Mr. White) What is the standard in that situation?
A: The standard of care isas described in the P.D.R.is to use this drug, but follow
certain guidelines. One of the guidelines is to make sure that it's a reliable patient. So in
the hypothetical case that you are describing, I would havea real red flag would go up
in my mind as to whether this was a reliable patient.
Hogle and ERMC argue on appeal that because of the district court's order that there could
be no testimony that Kim had used drugs or had been the victim of domestic violence,
defense counsel was denied an opportunity to effectively cross-examine Dr. McAfee.
Cross-examination would have demonstrated that Kim Hall's attempted suicide' actually
consisted of an overdose of pain medication (Darvon) and that she was in a very unfortunate
life situation at the time.
However, Hogle was able to testify that Kim's life was different. The suicide event was
behind her. Hogle was able to so testify without specifically mentioning drugs and domestic
violence. Hogle further testified that he disagreed that because someone once committed
suicideor tried to commit suicide, that they are unstable or incapable of following
instructions."
112 Nev. 599, 609 (1996) Hogle v. Hall
someone once committed suicideor tried to commit suicide, that they are unstable or
incapable of following instructions.
[Headnotes 9, 10]
Hogle and ERMC argue that the proper exercise of discretion would have been to . . .
exclude the suicide attempt along with all the surrounding circumstances. However, Hogle
and ERMC fail to show how the granting of the pretrial order was an abuse of discretion.
Even assuming arguendo that it was an abuse of discretion, we conclude that such error was
harmless, since Hogle was able to testify, within the constraints of the pretrial order, that
Kim's life had changed and he felt she was reliable.
Hogle and ERMC next argue that the district court should have ordered a new trial, rather
than granting additur. [A]dditur is a just, speedy, efficient, and inexpensive vehicle to
correct an inadequate jury verdict. Drummond v. Mid-West Growers, 91 Nev. 698, 712 n.8,
542 P.2d 198, 207 n.8 (1975). Further, this court has held that an award of no damages for
pain and suffering may be inadequate. Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707
P.2d 1137, 1139 (1985). Hogle and ERMC argue that instead of granting the motion for
additur, the district court should have ordered a new trial as to both liability and damages. In
support of this argument, Hogle and ERMC cite Shere v. Davis, 95 Nev. at 491, 596 P.2d 499
(1979). In Shere, this court held that where there is an interrelationship of liability and
damage issues it is inappropriate to grant either additur or a new trial limited to damages. Id.
at 493, 596 P.2d at 500. However, Shere can be distinguished from the instant case. In Shere,
the respondent suffered various injuries in a car accident. Some evidence suggested that a
back injury of which respondent complained was not caused by the accident. There was
clearly an interrelationship between liability and damages because if the back injury was not
caused by the accident, then the damages would be decreased. It was appropriate for the
district court in that case to hold a new trial as to liability and damages.
In the instant case, however, Hogle admitted that all the injuries suffered by Bryce were
caused by Kim's use of Accutane. There was not, therefore, an interrelationship between
liability and damages. Further, the jury was very clear as to Hogle's comparative fault,
assigning him sixty percent of the liability.
Hogle and ERMC try, once again, to assert that the verdict was the result of some
improper compromise on the part of the jury, but they offer no evidence that this is the case.
Accordingly, we conclude that it was not error for the district court to grant additur rather
than order a new trial as to both liability and damages.
Attorney's fees were awarded by the district court pursuant to NRS 41A.059{4), which
provides that after the judge at the settlement conference has determined the value of a
medical malpractice claim, "[i]f the defendant rejects the determination and the plaintiff
is awarded an amount greater than the amount of the determination, the plaintiff must be
awarded reasonable costs and attorney's fees incurred after the date of the rejection."
112 Nev. 599, 610 (1996) Hogle v. Hall
NRS 41A.059(4), which provides that after the judge at the settlement conference has
determined the value of a medical malpractice claim, [i]f the defendant rejects the
determination and the plaintiff is awarded an amount greater than the amount of the
determination, the plaintiff must be awarded reasonable costs and attorney's fees incurred
after the date of the rejection.
Hogle and ERMC argue that after offset of Kim's comparative fault (forty percent) for
fraudulent transfer, the resulting judgment would be less than the amount assigned to the
case by the settlement judge and attorney's fees should not be allowed. This argument must
fail since we have concluded that the judgment should not be offset.
For the foregoing reasons, we conclude that all of Hogle and ERMC's arguments are
without merit.
3
Accordingly, we affirm the judgment of the district court.
4

Young, Shearing, and Rose, JJ., and Gibbons, D. J., concur.
____________
112 Nev. 610, 610 (1996) Jimenez v. State
VICTOR MAXIMILLIAN JIMENEZ, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 24580
May 30, 1996 918 P.2d 687
Appeal from denial of petition for post-conviction relief in a death penalty case. Eighth
Judicial District Court, Clark County; J. Charles Thompson, Judge.
After his convictions for first-degree murder and robbery with use of deadly weapon were
affirmed and his sentence of death was affirmed, petitioner sought post-conviction relief. The
district court denied relief, and petitioner appealed. The supreme court held that: (1)
prosecution's failure to disclose evidence regarding other possible suspects violated
defendant's due process rights; (2) prosecution's failure to disclose information regarding
informant's associations with police in other cases violated defendant's due process rights;
and (3) instructions during penalty phase did not reasonably lead jurors to believe that
mitigating evidence could not be considered in its deliberations unless unanimously found
to exist.
__________

3
The Honorable Bob Miller, Governor, designated The Honorable Michael P. Gibbons, District Judge of the
Ninth Judicial District, to sit in this case in place of The Honorable Thomas L. Steffen, Chief Justice, who
voluntarily disqualified himself. Nev. Const., art. 6, 4.

4
The Honorable Charles E. Springer, Justice, did not participate in the decision of this appeal.
evidence could not be considered in its deliberations unless unanimously found to exist.
Laura Wightman FitzSimmons, Las Vegas, for Appellant.
In capital murder prosecution, evidence regarding other possible suspects was relevant to informant's impeachment and to
challenge methods and reliability of police investigation, and therefore prosecution's failure to disclose such evidence violated
defendant's due process rights, where evidence against defendant was circumstantial, informants' testimony that he overheard
defendant's telephone conversation with his father in which he admitted to killing was impeachable, and police did only slight
investigation of other possible suspects. U.S. Const. amend. 14.
It is violation of due process for prosecutor to withhold exculpatory evidence, and his motive for doing so is immaterial. U.S.
Const. amend. 14.
3. Criminal Law.
Prosecutor represents state and has duty to see that justice is done in criminal prosecution.
4. Criminal Law.
Prosecutor must disclose evidence favorable to accused when that evidence is material either to guilt or to punishment.
5. Criminal Law.
Standard for determining materiality of withheld evidence varies. In cases where defense makes no request or general request for
evidence, if omitted evidence creates reasonable doubt which did not otherwise exist, constitutional error has been committed.
6. Criminal Law.
Evidence is material, for purposes of prosecution's duty to disclose exculpatory evidence, if there is reasonable probability that
result would have been different if evidence had been disclosed.
7. Criminal Law.
Reasonable probability, for purpose of prosecution's duty to disclose exculpatory evidence, is one sufficient to undermine
confidence in outcome.
8. Criminal Law.
Brady violation for prosecution's failure to disclose exculpatory evidence occurring after specific request is material if there
exists reasonable possibility that claimed evidence would have affected judgment of trier of fact and thus outcome of trial.
9. Criminal Law.
State attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law
enforcement officers.
Evidence that police informant had assisted police in other cases in exchange for dismissal of charges could have altered outcome
of capital murder case, and therefore prosecution's failure to disclose such information violated defendant's due process rights, where
informant's testimony was most damning evidence against defendant, all other evidence was circumstantial, and police witness and
informant both testified informant had no relationship with police in other cases. U.S. Const. amend. 14.
11. Criminal Law.
Evidence that would enable effective cross-examination and impeachment may be material and prosecutor's nondisclosure of such
evidence may deprive accused of fair trial. U.S. Const. amend 14.
12. Criminal Law.
If prosecution uses perjured testimony which it knew or should have known was perjurious, conviction obtained by such testimony
is fundamentally unfair and must be set aside if there is any reasonable likelihood that false testimony could have affected judgment of
jury.
13. Criminal Law.
Instructions during penalty phase of capital murder prosecution did not reasonably lead jurors to believe that mitigating evidence
could not be considered in its deliberations unless unanimously found to exist, where there was no instruction indicating need for
unanimity regarding evidence in mitigation, jury was instructed that each aggravating circumstance had to be unanimously found by
evidence beyond reasonable doubt, and jury was instructed that it could consider specified mitigating circumstances and any other
mitigating circumstances.
14. Criminal Law.
In capital case, sentencer may not be precluded from considering any relevant mitigating evidence.
15. Criminal Law.
In capital case, sentencer is improperly precluded from considering relevant mitigating evidence if jury believes that it cannot give
mitigating evidence any effect unless it unanimously agrees that mitigating circumstances exist.
OPINION
Per Curiam:
After a May 1987 mistrial resulting from a hung jury, appellant Victor Maximillian Jimenez's second trial in January 1988 produced
convictions of first-degree murder and robbery with use of a deadly weapon, and a sentence of death. This court affirmed his convictions on
appeal, but reversed his capital sentence. Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989) (Jimenez I). Following a second penalty
hearing, Jimenez again received a death sentence, which this court affirmed. Jimenez v. State, 106 Nev. 769, 801 P.2d 1366 (1990). Except
where otherwise noted, this opinion addresses only the second trial and second penalty hearing.
In December 1991, Jimenez petitioned the district court in proper person for post-conviction relief.
proper person for post-conviction relief. Through counsel, he filed a supplemental petition in
June 1992. The court denied the supplemental petition on May 12, 1993, and Jimenez
appealed. Pursuant to SCR 250(IV)(H), this court referred the case back to the district court
to consider certain evidence for purposes of determining whether that evidence would affect
the court's denial of the petition. On December 5, 1994, after considering the evidence, the
district court again denied relief.
For reasons discussed hereafter, we conclude that Jimenez's convictions are infirm and that
he is entitled to a new trial.
FACTS
Background
Relevant to this appeal, the following evidence was presented at trial. Leandrew Domingo,
an acquaintance of Jimenez, testified that he and Jimenez had been at Gabe's Bar on the
evening of January 9, 1987. Jimenez and Domingo broke into a truck parked outside the bar
and stole some items, including a tool box. They took the tool box to Jimenez's residence,
where he obtained ten dollars for it. Among the tools that the owner of the truck reported
missing were a carpet knife, two sheetrock knives, and a dagger.
The next morning the North Las Vegas Police found two bodies at Gabe's Bar, victims of
multiple stab wounds. One victim was the bartender, and the other was a customer. No
weapons were ever found, but an expert testified that the victims' wounds could have been
inflicted by a carpet knife and a dagger. The investigation at the scene revealed bloody
footprints made by tennis shoes and $330.00 missing from the bar's slot bank and jukebox.
Detective Thomas Harry of the North Las Vegas Police Department (NLVPD) testified.
On January 22, 1987, Harry received information regarding the killings, and he and Detective
Bruce Scroggin picked up Jimenez and took him to the police station for questioning.
Jimenez was advised of his constitutional rights, but did not invoke his right to remain silent
or to have an attorney. None of Jimenez's statements was recorded. Detective Harry asked
Jimenez if he or Domingo had been involved with the murders at Gabe's Bar. According to
Harry, Jimenez asked what would happen to him if he was. Harry said it would depend on
what had happened in the bar. Jimenez asked if he would be killed, and Harry told him he
could get the death penalty or life in prison. Jimenez also asked if it would be easier on him if
two people had been involved. Harry again told him it would depend.
Harry interrupted the interview and went to Jimenez's residence and obtained the stolen
tool box and some of Jimenez's clothes from Jimenez's father.
clothes from Jimenez's father. A luminol test indicated blood on a pair of his pants and his
jacket. The blood was later identified as human, but could not be typed. Harry testified that
when he informed Jimenez that blood had been found, Jimenez said, Okay, you have me.
According to Harry, Jimenez asked the detectives if they thought more than one person had
done it, and Harry said they did not know. Jimenez asked what if he told them he did it
himself. Harry said to tell them, but Jimenez said he could not, that his family would be in
danger. The interview ended.
Detective Scroggin testified. On January 27, 1987, Jimenez's parents spoke with their son
at the police station. Scroggin escorted Jimenez back to his cell immediately after his visit
with his parents. Jimenez was subdued and appeared sad. When the two were alone in an
elevator, Jimenez hung his head and cried. Scroggin testified that when he asked what was
wrong, Jimenez said it just felt better to tell someone.
Billy Ray Thomas testified. Thomas had been incarcerated in the North Las Vegas jail and
shared a cell with Jimenez and several other inmates on January 28, 1987. That evening,
Jimenez was talking on a telephone which had been brought to the cell. Thomas wanted to
use the phone and sat down near Jimenez to await his turn. Thomas testified that Jimenez
turned his body away from Thomas, covered his mouth with his hand, and said, They got
me, dad. I stabbed the guy.
In January 1988, Jimenez was convicted of murder and robbery with use of a deadly
weapon and sentenced to death. Upon remand from this court, a second penalty hearing was
held in November 1989, and he was again sentenced to death.
Jimenez filed a supplemental petition for post-conviction relief in June 1992. The district
court allowed an evidentiary hearing only in regard to Jimenez's claim that the State failed to
inform him of exculpatory evidence prior to trial. The court denied the petition in May 1993,
and Jimenez appealed. Pursuant to SCR 250(IV)(H), this court referred the case back to the
district court for a second hearing to allow the court to consider evidence relating to the
credibility of a witness against Jimenez and to determine whether this evidence would affect
its denial of the petition. On December 5, 1994, the district court found that the evidence was
unrelated to Jimenez's case and again denied relief.
Exculpatory Evidence
At the trial, defense counsel asked Detective Harry on cross-examination if he had any
other suspects before he arrested Jimenez on January 22, 1987. Harry said no. However,
Harry and Detective Scroggin admitted to receiving information on two possible suspects.
and Detective Scroggin admitted to receiving information on two possible suspects. The
detectives did not pursue this lead very far and dropped it completely when they got a tip
regarding Jimenez. Sharon Bromley had provided the information regarding the two suspects.
When defense counsel called her as a witness, the State successfully interposed hearsay
objections to counsel's attempts to question her regarding the two possible suspects.
The following evidence was presented to the district court at the first post-conviction
evidentiary hearing in April 1993. Mel Harmon, the prosecutor at the trial, testified that his
file had been open to defense counsel and that all police reports should have been in his file
prior to trial. When shown police reports obtained by Jimenez's post-conviction counsel
several years after the trial, Harmon was not familiar with them but stated that even if he had
had this information, he would not have felt a duty to disclose it to the defense. The
information in question included indications that a day or two after the murders, a man by the
name of John Johnson overheard two men talking about killing two people at a bar and saw
one of the men display a knife. Johnson later made a photo identification of one of the men.
Johnson shared this information with Sharon Bromley, who thereafter informed Detectives
Harry and Scroggin. The information in the police reports also included the fact that a knife
was found in a toilet at Gabe's Bar on February 6, 1987, less than a month after the murders,
and that a man who had reportedly threatened the bartender at Gabe's Bar a few days before
the murders then allegedly returned and killed the two victims.
John Johnson also testified at the hearing. He testified that a day or two after the murders,
Sharon Bromley told him about the murders and asked him to let her know if he heard
anything about them. Bromley worked for the Las Vegas Metropolitan Police Department
(LVMPD) in gun detail and knew one of the victims. Johnson was an apartment manager in
public housing at the time. The same night after talking to Bromley, Johnson overheard two
Hispanic men at the Jack Daniels Bar speaking in mixed English and Spanish. (The Jack
Daniels Bar is about eight blocks from Gabe's Bar.) Johnson understood very little Spanish,
but heard them speak of the killing of a bartender. One of them said something to the effect,
I wish I would have made sure the other one was down or dead, and produced a long-bladed
knife with what appeared to be a bone-inlaid handle. Johnson revealed this information to
Bromley, who brought him photos from which he identified one of the men he had overheard.
No one in law enforcement or from Jimenez's defense team ever contacted Johnson. He
would have willingly testified at Jimenez's trial if he had been asked.
been asked. Johnson did not know the context of the conversation he overheard. When
Jimenez's post-conviction counsel offered an exhibit to support Johnson's credibility, the
State's attorney said, I'm not questioning the sincerity . . . and good faith of this witness.
Sharon Bromley testified that after she learned of the murders, she contacted Johnson
because of his street knowledge. After he told her what he had heard and seen, she contacted
Detective Harry. Harry provided her with photographs of two Hispanic men arrested for
robbery three days after the murders. She later showed the photos to Johnson, who identified
one as one of the two men he had overheard. (These men came to be referred to as the two
Cubans.) Bromley called Harry to give him the information provided by Johnson. Harry told
her he had things under control, and she never heard again from those who were investigating
the two murders. Jimenez's trial counsel contacted Bromley and called her as a witness at the
trial.
Former Detective Harry, who had retired from the police department, testified at the
hearing. He vaguely remembered receiving information from Bromley, but said he would not
have given her any photos. He recalled very little regarding an investigation of the two
Cubans, arrested for robbery three days after the murders at Gabe's Bar, as suspects in those
crimes. He testified at the first trial that he went to the Las Vegas jail and examined their
clothes and tennis shoes and had their knife checked at the crime lab. However, the police file
on the case uncharacteristically contained no report of this investigative activity or request to
the crime lab.
Detective Al Adams testified that he completed two reports concerning the murder
investigation which he gave to Detectives Harry and Scroggin. The first report, prepared two
days after the murders, indicated that a reliable informant had heard two Hispanic males
talking in the Jack Daniels Bar about the murder of a bartender, and that one of them had a
bone-handled knife. The second report, prepared five days after the murders, recorded the fact
that two Hispanic men who had a bone-handled knife had been arrested for a robbery. The
second report also indicated that Adams had requested photographs and fingerprints of the
two men, and the testing of the knife.
Arnold Weinstock, Jimenez's trial counsel, testified that he had reviewed the State's file
before trial. The only material he had seen in the file concerning Sharon Bromley's
information consisted of two pages indicating that a confidential informant had told her about
two Hispanic males discussing the killing of a bartender. He never saw other materials
regarding the arrest of the two Cubans for a robbery, their photos, the confiscation of their
knife, the finding of a knife in the toilet of Gabe's Bar, and the report that another man
threatened the bartender and later killed the two men at Gabe's Bar.
their knife, the finding of a knife in the toilet of Gabe's Bar, and the report that another man
threatened the bartender and later killed the two men at Gabe's Bar. Weinstock had contacted
Bromley, but she would not reveal the identity of the informant. As previously noted, when
he called Bromley as a witness, he was unable to elicit her testimony regarding Johnson's
knowledge due to successful hearsay objections by the prosecutor.
Evidence Regarding the State's Informant Witness
Billy Ray Thomas testified for the State at trial. Thomas shared a jail cell with Jimenez in
late January 1987 and testified to admissions made by Jimenez. The crucial testimony
indicated that he overheard Jimenez say on the telephone, They got me, dad. I stabbed the
guy. Thomas stated that the next day he was taken from the cell without explanation.
Detectives questioned him, and he told them about Jimenez's remarks. Thomas stated that he
had been in jail three or four times prior to January 1987. The day after he told the police
about Jimenez's remarks, Thomas, who was incarcerated on a felony drug charge, was
released on his own recognizance. The charge was eventually dropped. When asked if he
gave police information in any other cases, Thomas said no. He said that in this case, he
revealed the information simply because he was asked and he felt it was something he had to
do. Thomas maintained that he was promised nothing and received no benefits from talking
to the police.
Detective Scroggin testified at trial that he had taken Thomas's statement. When asked if
he promised or provided Thomas any benefits for informing on Jimenez, Scroggin said no.
The following exchange then took place on cross-examination.
Q When did you first meet up with Billy Thomas?
A Billy Thomas is one of those types that gets arrested from time to time and I don't
know if I have ever arrested Billy Thomas, but you might be able to run a check
somewhere seven or eight years ago and see that yes, I did arrest him or havehad
knowledge of him.
Q You were pretty familiar with Billy Thomas weren't you?
A It's a name that is familiar with North Las Vegas police officers.
Q And, again, we're talking prior to January 28th, 1987, you were familiar with Billy,
right?
A Yes, I'd heard the name, was familiar with him.
Q Has Billy ever provided you with any information on any other cases?
A Me, no.
Q Do you know of him providing other officers with information?
A I have no personal knowledge of him giving any other officers information.
Scroggin further testified that a corrections officer told him that he should interview
Thomas because Thomas had overheard something that might help in his investigation.
Scroggin said he did not know what Thomas had been in jail for or that Thomas had been
released the day after the interview. Scroggin said, it was none of my doing.
At the first post-conviction hearing, Scroggin's testimony was appreciably different. He
first met Thomas at the jail in January 1987, while investigating this case. Scroggin stated:
I did nothing with the charges he was in on at the time he was in custody, and told him I
would not help him with anything he was in for. And he didn't ask for any help. I
helped him later on in other charges that he was booked for after all this was done.
Post-conviction counsel asked, So you helped him after on in other charges because he was
helping in Jimenez? Scroggin answered, Yes. And he was still supplying me with
information. . . . in other areascases. Scroggin testified that he had a charge against
Thomas dropped in April 1987. (Scroggin's trial testimony that Thomas had never provided
him with other information was given in January 1988.) He had another charge against
Thomas dismissed sometime in 1988. Scroggin did not know if he ever told Harmon, the
prosecutor, that Thomas was an active police informant.
DISCUSSION
I. The State's failure to provide the defense with exculpatory evidence.
[Headnotes 1-3]
Jimenez argues that the State violated its constitutional duty to inform him of exculpatory
evidence it possessed. The State contends that Jimenez's trial counsel knew of some of this
evidence and that the evidence was not material. It is a violation of due process for the
prosecutor to withhold exculpatory evidence, and his motive for doing so is immaterial.
Wallace v. State, 88 Nev. 549, 551-52, 501 P.2d 1036, 1037 (1972) (citing Brady v.
Maryland, 373 U.S. 83 (1963)). The prosecutor represents the state and has a duty to see that
justice is done in a criminal prosecution. Id. at 552, 501 P.2d at 1037.
[Headnotes 4-7]
A prosecutor must disclose evidence favorable to an accused when that evidence is
material either to guilt or to punishment. Roberts v. State, 110 Nev. 1121, 1127, 881 P.2d 1,
5 (1994). The standard for determining the materiality of withheld evidence varies. In cases
where the defense makes no request or a general request for evidence, if the omitted
evidence creates a reasonable doubt which did not otherwise exist, constitutional error has
been committed.' Id. at 1128, 881 P.2d at 5 (quoting United States v. Agurs, 427 U.S. 97,
112 (1976)) (emphasis added in Roberts). Under this standard, evidence is material if there is
a reasonable probability that the result would have been different if the evidence had been
disclosed. Id. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id.
[Headnote 8]
In federal cases, this is now the standard for requests for specific evidence as well. Id. at
1128-29, 881 P.2d at 5. However, in Nevada and a number of other states a Brady violation
occurring after a specific request is material if there exists a reasonable possibility that the
claimed evidence would have affected the judgment of the trier of fact, and thus the outcome
of the trial. Id. at 1132, 881 P.2d at 8 (emphasis added).
In this case, the district court directed that full discovery take place pursuant to trial
counsel's request. It does not appear that Jimenez made a specific request before trial in
regard to the evidence now at issue, but given the fact that full discovery had been ordered by
the trial court, defense counsel had no reason to anticipate that other reports existed that were
not made available. Moreover, it is relevant that defense counsel attempted to examine
witnesses in regard to some of this evidence but was thwarted by the prosecutor's objections.
We conclude that the combination of these factors amounted to the functional equivalent of a
specific request for the information from the State.
In its order denying post-conviction relief, the district court concluded that the other
suspect information should have been provided to the defense, but was nevertheless
confident that no Brady v. Maryland violation occurred. It found that the failure to provide
the information was inadvertent, not intentional. The order discussed only the conversation
overheard by Johnson. The court noted that the conversation was in both Spanish and English
and that Johnson had no knowledge of its actual context. The court believed that the
conversation did not constitute statements against penal interest and would have been
excluded as hearsay. Finally, even if the remarks were admissible, it found no reasonable
likelihood that their introduction would have changed the outcome of the trial.
There are two major problems with the district court's analysis of the Brady issue. First, it
did not deal with the full range of withheld evidence. Besides the overheard conversation,
there was the arrest of two men with a knife for a robbery, Johnson's identification of one of
the arrested men as one of the men he had overheard, the report that another man had
threatened one of the victims and later killed them, and the finding of a knife in a toilet at
Gabe's Bar. Second, the assumed inadmissibility of the overheard remarks is irrelevant to the
issue of whether the State should have informed the defense of the evidence. Discovery in a
criminal case is not limited to investigative leads or reports that are admissible in evidence.
The issue is whether the State had a duty to inform the defense of this potentially exculpatory
evidence, thereafter leaving to the defense problems concerning the extent to which the
evidence could be used or expanded upon both before and during trial. Furthermore, much of
the evidence disregarded by the court had no hearsay complications.
[Headnote 9]
The district court also concluded that the failure to divulge the information was
inadvertent, but Jimenez points to evidence suggesting that it was withheld intentionally. We
need not address this issue because the prosecutor's motive or reason for withholding
exculpatory evidence is immaterial. Wallace v. State, 88 Nev. 549, 551-52, 501 P.2d 1036,
1037 (1972). Moreover, even if the detectives withheld their reports without the prosecutor's
knowledge, the state attorney is charged with constructive knowledge and possession of
evidence withheld by other state agents, such as law enforcement officers. Gorham v. State,
597 So. 2d 782, 784 (Fla. 1992); cf. United States v. Butler, 567 F.2d 885, 891 (9th Cir.
1978).
The dispositive issue before us concerns the materiality of the withheld evidence. After
careful consideration, we conclude that the exculpatory evidence at issue was material, even
under the stricter standard requiring a showing of reasonable probability that the result would
have been different. We reach this conclusion because the evidence against Jimenez was
circumstantial and the credibility of the informant who testified to Jimenez's most damning
admission was impeachable. Unfortunately, however, as hereinafter discussed, the evidence
relevant to the informant's impeachment was also withheld from the defense. There is
therefore a reasonable probability that the result would have been different had this
information regarding other possible suspects
1
been revealed.
__________

1
The undisclosed evidence was also relevant under Brady to the extent that the defense could have used it to
challenge the methods and reliability of the police investigation. Kyles v. Whitley,
------
U.S.
------
,
------
n. 13,
------
, 115 S. Ct. 1555, 1569 n.13, 1571-72 (1995).
II. The State's failure to provide the defense with impeachment evidence against the State's
informant witness.
[Headnote 10]
Jimenez contends that the State did not divulge evidence relevant to impeachment of its
informant witness and that its witnesses lied under oath when questioned about that issue.
The State maintains that its informant received no benefits for helping the State in this case,
regardless of benefits he received in other instances, and therefore the defense had no right to
such information.
[Headnote 11]
It is well settled that evidence that would enable effective cross-examination and
impeachment may be material and that nondisclosure of such evidence may deprive an
accused of a fair trial. Roberts, 110 Nev. at 1132-33, 881 P.2d at 8. This is simply another
aspect of the application of Brady and its progeny. See id.
In Roberts, the defendant claimed that he had been entrapped by a confidential informant
(CI) and that the police had not prosecuted the informant because of his work for them. The
prosecution refused to disclose its entire file on the CI despite the defendant's discovery
request. This court concluded that if evidence substantiating Roberts' entrapment claim and
allowing effective impeachment of [the CI] is contained in the CI file, and if Roberts was
denied access to that information, then he was deprived of a fair opportunity to present his
only legitimate defense, and that he was therefore not afforded a fair trial. Id. at 1134, 881
P.2d at 9.
In this case, the State argued to the district court that it had no duty to disclose to the
defense the fact that its informant, Thomas, had received benefits from the State because the
State and Thomas had not worked out a specific bargain for Thomas's testimony against
Jimenez. The district court accepted the State's position both factually and legally, finding
that the action by Detective Scroggin in April 1987 was not the product of any bargain for
the testimony of Billy Ray Thomas and concluding that Jimenez was afforded all the
procedural safeguards to which he is entitled.
There are two problems with the position taken by the State and the district court. First, it
ignores the fact that the trial testimony of the informant and of the detective was at best
inaccurate and at worst perjury. Even if the State had no duty to disclose unrelated benefits
given to Thomas, its witnesses had a duty to testify truthfully in response to defense questions
regarding such benefits. Detective Scroggin, however, had at the very least an extreme lapse
of memory when he testified in January 1988 that he hardly knew Thomas and knew of no
other cases where Thomas had provided police with information.
he hardly knew Thomas and knew of no other cases where Thomas had provided police with
information. In actuality, just nine months before his trial testimony, Scroggin dropped a
charge against Thomas for help Thomas gave him in the instant case and other cases.
Thomas's testimony was similarly false. It is also notable that by dropping the charge in April
1987, the month before Jimenez's first trial, the State paved the way for Thomas to testify at
the first trial as a free man, rather than a jail inmate charged with a drug offense.
[Headnote 12]
If the prosecution uses perjured testimony which it knew or should have known was
perjurious, a conviction obtained by such testimony is fundamentally unfair and must be
set aside if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury. United States v. Agurs, 427 U.S. 97, 103 (1976). The district court did
not even address this troubling issue.
Second, the prosecution's duty to disclose exculpatory or impeachment evidence is not
limited to situations where the State admits that it made a deal with an informant specific to
the case at hand. Although Scroggin admitted that he gave benefits to Thomas in return for
Thomas's testimony against Jimenez, he and the State maintain that at the time that Thomas
agreed to testify, Thomas had not been promised or provided any benefits in exchange for his
cooperation in this case. Therefore, the State insisted and the district court concluded that
Jimenez had no right to know about any benefits given to Thomas. However, despite the
plausibility of the State's assertion that Thomas testified without any expectation that it would
benefit him, the State had a duty to disclose the facts in question.
In United States v. Shaffer, 789 F.2d 682, 688 (9th Cir. 1986), the appellant alleged that
the government never disclosed that the informant who testified against him was a paid
informant in a separate drug case and never disclosed the full promises and benefits given to
the informant. The government contended that because there was no explicit agreement on
this matter, it had nothing to disclose. Id. at 690. The court held: While it is clear that an
explicit agreement would have to be disclosed because of its effect on [the informant's]
credibility, it is equally clear that facts which imply an agreement would also bear on [his]
credibility and would have to be disclosed. Id. The Supreme Court held that where the
credibility of a witness is an important issue in the case, evidence of any understanding or
agreement as to a future prosecution would be relevant to his credibility and the jury was
entitled to know of it. Giglio v. United States, 405 U.S. 150, 155 (1972) (emphasis added);
see also Haber v. Wainwright, 756 F.2d 1520, 1524 (9th Cir. 1985).
Even if the prosecutor was unaware of Thomas's history as a police informant and the
benefits he had received, any failure to disclose material evidence would be reviewable for
prejudice to the defendant. Moreover, when the police do not reveal a witness's informant
status to the prosecutor, the state attorney is charged with constructive knowledge and
possession of evidence withheld by other state agents, such as law enforcement officers.
Gorham v. State, 597 So. 2d 782, 784 (Fla. 1992); cf. United States v. Butler, 567 F.2d 885,
891 (9th Cir. 1978).
We are still called upon to determine whether the withheld evidence was material. During
examination of Detective Scroggin (as well as Thomas), Jimenez's trial counsel specifically
requested the information regarding Thomas's informant status and any benefits he had
received. Therefore, the standard of materiality is whether there exists a reasonable
possibility that the claimed evidence would have affected the judgment of the trier of fact,
and thus the outcome of the trial. Roberts, 110 Nev. at 1132, 881 P.2d at 8.
We conclude that there is such a reasonable possibility in this case. Thomas's testimony
provided the most damning evidence against Jimenez in a case otherwise dependent upon
circumstantial evidence. Thomas testified to the only explicitly incriminating admission by
Jimenez. In Jimenez I, this court culminated its recitation of the facts with that admission and,
in assessing the sufficiency of the evidence, stated that Jimenez ignored the circumstantial
evidence against him and, most notably, his own incriminating statements. Jimenez I, 105
Nev. at 342, 775 P.2d at 697. Thomas's testimony was central to the case, and therefore the
jury's assessment of his credibility was important to the outcome of the trial. Cf. Shaffer, 789
F.2d at 688-89; Gorham, 597 So. 2d at 784-85. Furthermore, the undisclosed exculpatory
evidence regarding other investigative leads must also be considered because the materiality
of withheld evidence is judged collectively, not item by item. Kyles v. Whitley,
------
U.S.
------
,
------
, 115 S. Ct. 1555, 1567-69 (1995).
III. The jury instructions regarding the finding of mitigating circumstances.
[Headnote 13]
Given our disposition of the above issues, we need not address Jimenez's other
assignments of error. However, we will address one penalty phase issue in order to eliminate
uncertainty on the matter in the event Jimenez is again faced with a jury deliberating the issue
of death-worthiness. Jimenez contends that the penalty phase instructions were
unconstitutional because a reasonable juror would have interpreted the instructions as a whole
to require a unanimous finding of any mitigating circumstances.
a unanimous finding of any mitigating circumstances. We disagree.
[Headnotes 14, 15]
In a capital case, a sentencer may not be precluded from considering any relevant
mitigating evidence. Mills v. Maryland, 486 U.S. 367, 374-75 (1988). This rule is violated if
a jury believes that it cannot give mitigating evidence any effect unless it unanimously agrees
that the mitigating circumstance exists. Id. at 375. The question here is whether the jury,
acting reasonably, could have interpreted the instructions and verdict form in this proscribed
manner. Id. at 375-76.
In this case, the penalty instructions did not explicitly state that a single juror could find
and give effect to mitigating evidence. However, we conclude from the totality of the
instructions that reasonable jurors would have interpreted the instructions to allow any of
them to place whatever weight they deemed proper concerning any proffered evidence of
mitigating circumstances. In the end, each juror must have evaluated the juxtaposition of
aggravating circumstances and mitigating circumstances in reaching the conclusion that the
latter were not sufficient to outweigh the former. This weighing or evaluative process by the
individual jurors must result in a unanimous verdict. There was no instruction indicating the
need for unanimity regarding evidence in mitigation, and of course the State did not make the
mistake of suggesting a requirement of such unanimity. Moreover, the jury was instructed
that each aggravating circumstance had to be unanimously found by evidence beyond a
reasonable doubt, conditions that were not attached to findings of mitigating circumstances.
Indeed, the jury was instructed that it could consider specified mitigating circumstances and
[a]ny other mitigating circumstances. There was no constraint on the right of individual
jurors to find mitigators, such as a requirement of unanimity or proof by a preponderance of
the evidence or any other standard.
Nevada's statutory scheme and practice is entirely different from that described in Mills v.
State, 527 A.2d 3, 14-20 (Md. 1987). In Mills, the Maryland Supreme Court made clear the
requirement then existing under Maryland law that juries must find mitigating circumstances
by unanimous vote. Hence, the petitioner in Mills v. Maryland took the position that a jury
that does not unanimously agree on the existence of any mitigating circumstance may not
give mitigating evidence any effect whatsoever, and must impose the sentence of death.
Mills v. Maryland, 486 U.S. at 375. The United States Supreme Court thus had cause for
concern that under the Maryland instructions requiring jury unanimity in finding mitigating
circumstances, the death sentence might result because individual jurors could not factor
into the penalty determination their own conclusions regarding the existence of
mitigating circumstances.
might result because individual jurors could not factor into the penalty determination their
own conclusions regarding the existence of mitigating circumstances. Such is not the law in
Nevada, and there was no basis in the instructions for jurors to believe that their own
individual views on the existence and nature of mitigating circumstances could not be applied
by each of them in weighing the balance between aggravating circumstances and mitigating
circumstances. Unanimity is required only in the verdict concerning the presence of
aggravating circumstances and the fact that the mitigating circumstances, whatever they are,
are not sufficient to outweigh the aggravating circumstances. We therefore conclude that
there is no basis for determining that the jury, acting reasonably, could have believed that
mitigating evidence could not be considered in its deliberations unless unanimously found to
exist.
2

CONCLUSION
We conclude that Jimenez's petition for post-conviction relief should be granted because
the State violated its constitutional duty to inform Jimenez of material exculpatory evidence it
possessed and of material evidence relevant to impeachment of its informant witness.
Accordingly, we reverse the district court's order denying Jimenez's petition, and remand this
case to the district court with directions to vacate Jimenez's judgment of conviction and
sentences and to provide Jimenez with a new trial.
3

____________
112 Nev. 625, 625 (1996) Sportsco Enter. v. Morris
SPORTSCO ENTERPRISES, Appellant, v. WILLIAM W. MORRIS, WILLIAM P.
MORRIS, JAYMIE BODENSTEINER, DAWN DUDAS and WESLEY ANN MORRIS,
Respondents.
No. 25592
May 30, 1996 917 P.2d 934
Appeal from a judgment following a bench trial. Eighth Judicial District Court, Clark
County; Gerard Bongiovanni, Judge.
__________

2
We also note that, contrary to the statutory scheme in Maryland as described in Mills v. Maryland, Nevada
juries are free to impose a penalty less than death despite a finding by the jury that the mitigating circumstances
do not outweigh the aggravating circumstances.

3
The Honorable Robert E. Rose voluntarily recused himself from participation in the decision of this appeal.
Judgment creditor sued judgment debtor for fraudulent transfer after debtor assigned part
of his rights in private sports box at university to a friend for money and the remainder of
those rights to his children. The district court entered judgment in favor of debtor, and
creditor appealed. The supreme court, Rose, J., held that: (1) debtor's interest in sports box,
which was used to watch basketball games, was property liable to execution and capable of
fraudulent transfer, and (2) case had to be remanded for determination of whether debtor
received fair consideration for the transfer.
Robert A. Massi, Ltd., Las Vegas, for Appellant.
Foley & Jones, Las Vegas, for Respondents.
Nevada Supreme Court will not set aside state district court's findings of fact unless they are clearly erroneous.
Questions of law such as interpretation of statutory provisions are reviewed de novo by Nevada Supreme Court.
3. Execution.
Statutes permitting execution against specified kinds of property must be liberally construed for benefit of creditors.
4. Execution.
Generally, if interest is assignable or transferable, it is subject to execution.
5. Execution.
Judgment debtor's interest in sports box, which was used to watch basketball games at university, was an asset subject to
execution. NRS 21.080(1).
6. Fraudulent Conveyances.
Judgment debtor's interest in sports box, which was used to watch basketball games at university, was lease, and thus was property
interest under fraudulent conveyance statute, where debtor could sell part of his interest, interest included right to use box during
basketball season and to sublicense that use to third parties. NRS 112.150(10).
Fraudulent conveyance does not require proof of intent to defraud. NRS 112.190(1).
Under fraudulent conveyance statute, creditor bears burden of proof both with respect to debtor's insolvency and inadequacy of
consideration. NRS 112.190(1).
Under fraudulent conveyance statute, if creditor establishes existence of certain indicia or badges of fraud, burden shifts to
defendant to come forward with rebuttal evidence that transfer was not made to defraud creditor. NRS 112.190(1).
Under fraudulent conveyance statute, defendant must show either that debtor was solvent at time of transfer and was not rendered
insolvent by transfer, or that transfer was supported by fair consideration. NRS 112.190(1).
Issue of whether judgment debtor's transfer of interest in his sports box, which was used to watch basketball at university, was
fraudulent transfer or was for fair consideration had to be remanded where debtor was insolvent at time of transfer, but he had sold part
of his interest in the sports box for $32,000, which gave him a profit, but had transferred the remainder of his interest to his children
only in exchange for their assumption of the rent under the box lease. NRS 112.190(1).
OPINION
In April 1989, respondent William W. Morris executed a confession of judgment of
$750,000 in favor of Sportsco Enterprises, Inc. (Sportsco). In October 1989, Morris assigned
part of his rights in a private sports box at the University of Nevada, Las Vegas (UNLV) to a
friend for $32,000 and the remainder of those rights to his children for lesser or no
consideration. Sportsco sued Morris and his children for fraudulent transfer pursuant to NRS
Chapter 112, the Uniform Fraudulent Transfer Act, and for fraud. The district court entered
judgment in favor of Morris on both causes of action.
We conclude that the district court erred in concluding that Morris's interest in the box was
not property liable to execution or capable of fraudulent transfer. We therefore reverse its
judgment and remand the case for further proceedings in regard to Sportsco's action for
fraudulent transfer.
FACTS
In August 1988, respondent Morris entered into a license agreement with the Board of
Regents of the University of Nevada System (the University), on behalf of UNLV, for the use
of a private box at the Thomas and Mack Center. The purpose of the agreement was for
Morris to view UNLV basketball games. The agreement was for a five-year period, beginning
on July 1, 1988, and ending on June 30, 1993. Morris agreed to pay the University $24,750 a
year as a license fee and to purchase a minimum of ten and a maximum of twenty season
basketball tickets for seating in the box. Under the agreement, Morris had the right to
exclusive use of the private box during basketball games and other public events at the center,
he could sublicense that use to third parties whom he chose, and he was under no
obligation to "sublicense" to the University when he did not purchase tickets to such
events.
no obligation to sublicense to the University when he did not purchase tickets to such
events. When the center was used for convention purposes, Morris had the right to demand
$4,000 a day in return for use of the box. At all other times, Morris was entitled to the sole
and exclusive right of access to the box, subject to University approval, which could not be
unreasonably withheld. Morris had the right to furnish and improve the box as he saw fit as
long as the improvements met University standards and building and fire codes. Any
improvements became the property of the University at the expiration of the term of the
agreement.
On April 17, 1989, Morris executed a confession of judgment of $750,000 in favor of
Sportsco in an unrelated matter. Almost six months later, on October 11, 1989, Morris
assigned part of his rights in the box to a friend, C. Jay Nady. The written assignment
provided that Morris assigned Nady four seats and an undivided twenty-five percent
interest in the box for the remaining term of Morris's lease of the box from the University.
Although the assignment referred to the remaining four year term of the lease, less than
three years and nine months remained in that term. The assignment provided that Nady also
receive four season tickets to UNLV basketball games and two season parking passes for
parking in the private box owners' designated parking area. It also provided that Nady had the
right to lease the box if Morris or his wife or his children did not exercise the option to renew
the lease.
1
In exchange, Nady paid Morris $8,000 per year in advance as rent for the box,
for a total of $32,000.
Also on October 11, 1989, Morris executed assignments of equal interests in his remaining
rights to the box to each of his four children. Each child was assigned four seats and an
undivided 18.75 percent interest in the box for the remaining term of Morris's lease. Each
child also received four season tickets to UNLV basketball games and two season parking
passes for parking in the private box owners' designated parking lot. Each assignment
provided that the assignee child pay twenty-five percent of the rent per year for three years.
Each child acknowledged that Nady had the right to lease the assignee's portion of the box if
the assignee chose not to exercise the option to renew the lease. Each assignment stated that
for valuable consideration . . . the parties agree as follows. No amount of consideration was
stated, and Morris admitted in his answer that he assigned his remaining rights in the box to
his children for no consideration.
__________

1
The district court's later written judgment included the finding of fact that around July 30, 1993, the University
executed a new five-year license agreement for the box with Nady and three of Morris's children.
assigned his remaining rights in the box to his children for no consideration. (However,
according to the terms of the assignments, the children agreed collectively to pay the rent for
three years. If this assumption of part of Morris's rent obligation occurred, it constituted some
consideration.)
Five months later, on March 20, 1990, Sportsco issued a Notice of Sheriff's Sale of
Personal Property Under Execution concerning Morris's interest in the box. Pursuant to a
sheriff's certificate of sale dated May 24, 1990, Sportsco became the owner of Morris's
agreement with the University to use the box.
On August 22, 1990, Sportsco filed a complaint against Morris and his children, claiming
two causes of action: fraudulent transfer pursuant to NRS Chapter 112, the Uniform
Fraudulent Transfer Act, and fraud. On September 14, 1990, Sportsco filed an application for
a temporary restraining order and a motion for a preliminary injunction. That same day, the
district court entered an Order to Show Cause and Temporary Restraining Order. Six months
later, on March 20, 1991, the district court denied Sportsco's motion for a preliminary
injunction, stating that it was not satisfied that the rights to the box constituted a property
interest subject to execution.
A bench trial was conducted on November 22, 1993. On February 7, 1994, the district
court filed an Order and Judgment and its Findings of Fact and Conclusions of Law. The
court entered judgment in favor of the defendants, dismissed Sportsco's complaint with
prejudice, and ordered that execution documents concerning the box be considered void. The
district court concluded: the assignments executed by Morris on October 11, 1989, assigning
his interests in the box to Nady and Morris's children were valid and enforceable assignments;
the defendants' rights to the box were not property which could be the subject of a fraudulent
transfer or the subject of execution; and Sportsco did not meet its burden of proving fraud.
DISCUSSION
[Headnotes 1, 2]
This court will not set aside a district court's findings of fact unless they are clearly
erroneous. Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 592
(1990). Questions of law such as interpretation of statutory provisions are reviewed de novo
by this court. SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295
(1993).
Property Interest
In the instant case, the district court concluded that the rights in the box were not property
for purposes of either execution or the Uniform Fraudulent Transfer Act.
the Uniform Fraudulent Transfer Act. We conclude that the district court erred as a matter of
law and that Morris's interest in the private sports box in this case was property by statutory
definition and under relevant case law.
All goods, chattels, moneys and other property, real and personal, of the judgment
debtor, or any interest therein of the judgment debtor not exempt by law, and all
property and rights of property seized and held under attachment in the action, shall be
liable to execution. . . . [S]hares and interests in any corporation or company, and debts
and credits and other property not capable of manual delivery, may be attached in
execution in like manner as upon writs of attachments. . . .
In NRS 21.090, the Legislature provided express exemptions from execution for some
property interests. None of these exemptions apply to Morris's interest in the private box. Of
course, all personal property and salable real estate owned by a judgment debtor is subject to
execution unless specifically exempted by statute. Krysmalski by Krysmalski v. Tarasovich,
622 A.2d 298, 310 n.7 (Pa. Super. Ct.), appeal denied, 636 A.2d 634 (Pa. 1993).
[Headnotes 3-5]
Statutes permitting execution against specified kinds of property must be liberally
construed for the benefit of creditors. 33 C.J.S. Executions 18 (1942). The general rule is
that if the interest is assignable or transferable, it is subject to execution. 30 Am. Jur. 2d
Executions and Enforcement of Judgments 165 (1994). [W]hen property or a right in or to
property is salable it is seizable, and . . . the sheriff can sell upon execution and convey any
property, real or personal, tangible or intangible, which may be sold and transferred by the
owners thereof at voluntary sale.' Gordon v. Rees, 36 A.2d 841, 843 (Pa. Super. Ct. 1944)
(quoting Brennan v. Pittston Brewing Corp., 26 A.2d 334, 335 (Pa. 1942)). In this case,
Morris's interest was transferable and, whether deemed an interest in real property or some
kind of intangible personal property, was an asset liable to execution pursuant to NRS
21.080(1). Cf. Greear v. Greear, 303 F.2d 893, 896 (9th Cir. 1962) (holding that NRS 21.080
authorizes the execution upon all property except spendthrift trusts and therefore seems to
contemplate the ability to reach all other equitable interests).
[Headnote 6]
The definition of property in regard to fraudulent conveyances is, if anything, even
broader than the definition of property for execution.
is, if anything, even broader than the definition of property for execution. NRS 112.150(10)
defines property as anything that may be the subject of ownership. Morris clearly owned
some kind of interest in the box: he was able to sell part of that interest to Nady for $32,000.
That interest included the right to exclusive use of the private box during basketball games
and other public events at the center and the right to sublicense that use to third parties. It
did not include any obligation to sublicense to the University when the owner of the interest
did not purchase tickets to other events. When the center was used for convention purposes,
the owner of the interest had the right to demand $4,000 a day in return for use of the box. At
all other times, the owner of the interest was entitled to the sole and exclusive right of
access to the box, subject to University approval, which could not be unreasonably withheld.
The owner of the interest also had the right to furnish and improve the box. The interest
appears to have been a lease, definite in its duration and its description of the property
involved.
2
See State, Dep't Commerce v. Carriage House, 94 Nev. 707, 709, 585 P.2d 1337,
1339 (1978).
Fraudulent Transfer
[Headnote 7]
The district court determined that Sportsco failed to prove fraud. However, this
determination disposed only of Sportsco's action for fraud. Fraudulent conveyance under
NRS Chapter 112 does not require proof of intent to defraud. Pursuant to NRS 112.190(1),
where a creditor's claim arose before a transfer made by a debtor, the transfer is fraudulent if
the debtor did not receive reasonably equivalent value in exchange and was insolvent at the
time of making the transfer or became so as a result of the transfer.
3
Cf. NRS 112.180(1)(b).
__________

2
Although the written agreement between the University and Morris was designated a license, the agreement
even calls the arrangement between the University and Morris a lease at one point. Morris himself referred to
the arrangement as a lease in transferring part of his interest to Nady in return for rent totalling $32,000.
Morris's interest in the box was obviously not a mere license. The University could not revoke it, and Morris
could transfer it. See State, Dep't Commerce v. Carriage House, 94 Nev. 707, 709, 585 P.2d 1337, 1339 (1978).
However, the exact categorization of Morris's property rights to the box is not crucial to this case.

3
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before
the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the
obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and
the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or
obligation.
[Headnotes 8-10]
Generally, the creditor bears the burden of proof both with respect to the insolvency of the
debtor and the inadequacy of consideration. Matusik v. Large, 85 Nev. 202, 205, 452 P.2d
457, 458 (1969). In Matusik, the debtor received fair consideration for the transfer of his
property. Id. at 207-09, 452 P.2d at 460-61. However, where the creditor establishes the
existence of certain indicia or badges of fraud, the burden shifts to the defendant to come
forward with rebuttal evidence that a transfer was not made to defraud the creditor. Territorial
Sav. & Loan Ass'n v. Baird, 781 P.2d 452, 462 n.18 (Utah Ct. App. 1989); see also Erjavec v.
Herrick, 827 P.2d 615, 617 (Colo. Ct. App. 1992). The defendant must show either that the
debtor was solvent at the time of the transfer and not rendered insolvent thereby or that the
transfer was supported by fair consideration. Kirkland v. Risso, 159 Cal. Rptr. 798, 802 (Ct.
App. 1980); see also Harvey v. Harvey, 841 P.2d 375, 377 (Colo. Ct. App. 1992). Generally
recognized indicia of fraud include
lack of consideration for the conveyance, the transfer of the debtor's entire estate,
relationship between transferor and transferee, the pendency or threat of litigation,
secrecy or hurried transaction, insolvency or indebtedness of the transferor, departure
from the usual method of business, the retention by the debtor of possession of the
property, and the reservation of benefit to the transferor.
[Headnote 11]
Montana Nat. Bank v. Michels, 631 P.2d 1260, 1263 (Mont. 1981).
A number of these indicia exist here: relationship between the transferor and transferees,
the pendency or threat of litigation, and insolvency or indebtedness of the transferor. Morris's
indebtedness to Sportsco in the sum of $750,000 was established by a confession of
judgment. Morris has not disputed that he was insolvent at the time he transferred his interest
in the box to his children, and his deposition at his post-judgment examination and his actions
indicate that he was. See NRS 112.160.
4
His deposition also shows that he was a defendant
or potential defendant in a number of pending or threatened lawsuits regarding his debts. The
relationship between Morris and the transferees was extremely close, that of parent and child.
__________

4
NRS 112.160 provides in part:
1. A debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair
valuation.
2. A debtor who is generally not paying his debts as they become due is presumed to be insolvent.
Sportsco also argues that the transfer was marked by lack of consideration. Morris asserts
that the value of the interest that he transferred to his children was nothing; he therefore
concludes that they appropriately paid him no consideration. The record flatly contradicts
Morris's assertion that the interest transferred had no value. However, if his children actually
assumed part of Morris's obligation to pay rent, as set forth in the written assignments, they
provided Morris with some consideration. Whether this consideration amounted to reasonably
equivalent value in exchange for the transfer of the majority of Morris's interest in the box
remains an issue.
On the same day that Morris assigned a majority of his interest in the box to his children,
he transferred a minority interest to Nady for $32,000. Although the assignments executed by
Morris stated that Nady received a 25 percent interest in the box and the children only 18.75
percent interests, Nady and each of the children were assigned four seats and four season
tickets out of a total of twenty; i.e., in effect Nady and each child received equal interests of
20 percent. Under Morris's agreement with the University, four seats in the box over four
years cost Morris $19,800; four seats for three years and nine months cost about $18,560. In
contrast, Nady paid Morris $32,000 for four seats for a term of less than three years and nine
months. This provided Morris with a profit of more than $13,400 over what he paid the
University for that term. Assuming this was the market value of a 20 percent interest in the
box for that term, Morris forwent a profit of well over $50,000 in assigning the other 80
percent interest to his children in return only for their assumption of the rent for the final
three years of the lease. (The children received a total of 80 percent interest in the box for a
term of almost three years and nine months. The children's payment of 100 percent of the rent
for three years nearly equals payment of 80 percent of the rent for that term.)
We conclude that we must remand this case for the district court to decide whether under
all the relevant facts Morris received reasonably equivalent value in exchange for the transfer
of the majority of his interest in the box to his children.
CONCLUSION
Morris's interest in the sports box constituted property. We therefore reverse the district
court's judgment in regard to Sportsco's cause of action for fraudulent transfer and remand for
further proceedings to determine whether Morris received reasonably equivalent value in
exchange for transferring the majority of his interest in the box to his children.
William Morris entered into an agreement with UNLV to obtain a license to use one of
the said boxes at the Thomas and Mack Center. The use of this box was offered by UNLV to
Morris for the purpose of permitting [Morris] to view from the box collegiate basketball
games presented by the University . . . . As I see the arrangement between Morris and
UNLV, it was very similar to a season ticket by which the ticketholder/licensee would be
permitted to use a certain seat to watch basketball gameshardly the kind of interest that
could be characterized as property. In fact, Morris and UNLV agreed in writing that the box
license creates no possessory interest which would be subject to property taxes.
Just because Morris and UNLV believed that the license had no taxable value is not, of
course, conclusive on the question of whether Morris had a property right or had any interest
that was of value; still, I find nothing in the record that indicates that Morris' right to watch
basketball games, by virtue of what amounts to a glorified season ticket, can be translated
into either a property right or an interest of value that would be subject to execution.
Morris was permitted to watch games from the box only for so long as he paid a very high
fee for the privilege. In addition to paying the box fee, Morris was required by his agreement
with UNLV to purchase ten season basketball tickets for seating in the box. Morris was
prohibited from selling his tickets for a profit and, as I read the agreement, prohibited from
scalping his box at cost higher than that which he was paying for the use of the box.
Morris' use of the box was conditioned upon his paying to UNLV $24,750.00 per year.
Morris assigned a twenty-five per cent right in the box (four seats) to Jay Nady, who in turn
agreed to pay $8,000.00 per year for the privilege. Morris assigned to his four children the
remaining interest in the box, provided that they pay their proportionate share of the rent per
year for the three remaining years under the agreement.
Now there may be something sinister in the assignment transaction, but I cannot see it; and
neither could the trial judge. It should be noted that the trial judge's decision in favor of
Morris was based on a record that we do not now have before us. The trial court based its
decision on the records and documents on file herein and admitted as evidence. Sportsco
failed to designate the entire record as the Record on Appeal and, specifically, did not
designate the trial exhibits or the deposition transcripts entered as evidence. We have ruled
that the lack of a trial record precludes our consideration of the issues raised on appeal.
Turner v. Staggs, 89 Nev. 230, 510 P.2d 870 (1973). When the evidence on which a district
court's judgment rests is not properly included in the record on appeal, it is assumed that the
record supports the lower court's findings. NRAP 10. Raishbrook v. Estate of Bayley, 90
Nev. 415, 528 P.2d 1331 (1974). I would note that there is no Statement of Evidence or any
other agreed upon statement under NRAP 10. Under these circumstances I assume that the
trial court's finding and conclusions are supported by the absent record.
I do not think a season ticket or a season box is property; and, if it were, the property
would certainly lose its value at the end of the sports year. Whatever the value of the
usufruct that a season ticket or box holder might have is certainly cancelled out by the
obligation for continued payment that is attached to the privilege. I have been cited to no
evidence in this case to show me that a holder of one of these boxes is in a position to peddle
the privilege for a profit or that, if this were possible, there is a property interest of value that
would be subject to execution proceedings. Under these circumstances, I would give
deference to the trial court and affirm its judgment.
____________
112 Nev. 635, 635 (1996) Barozzi v. Benna
RAY BAROZZI and RUTH BAROZZI, Appellants, v. BRUNO BENNA, STEVE BENNA,
and C.B. CONCRETE, Respondents.
No. 25659
May 30, 1996 918 P.2d 301
Appeal from district court order awarding attorney's fees. Second Judicial District Court,
Guarantors, who had paid notes to payee bank, brought action to enforce, as third-party
beneficiaries, alleged oral contract in which concrete company owner agreed to assume
maker's note, and for breach of fiduciary duty and intentional infliction of emotional distress
against owner in his capacity as bank director, arising from bank's decision to call note.
Following admission by maker that owner had not committed to assume note, and following
summary judgment for owner, the district court awarded attorney fees to owner and
sanctioned guarantors' attorney. Guarantors appealed. The supreme court held that: (1)
guarantors' claims for breach of contract and breach of implied covenant of good faith and
fair dealing were not frivolous when initiated, and guarantors thus were not liable for owners'
attorney fees as to those claims, and {2) guarantors' claims for breach of fiduciary duty and
intentional infliction of emotional distress were frivolous when initiated, and guarantors
thus were liable for attorney's fees as to those claims.
those claims, and (2) guarantors' claims for breach of fiduciary duty and intentional infliction
of emotional distress were frivolous when initiated, and guarantors thus were liable for
attorney's fees as to those claims.
Reversed; remanded with instructions.
David Allen & Associates and James Andre Boles; Richard F. Cornell, Reno, for
Appellants.
Bible, Hoy, Trachok, Wadhams and Zive, Reno, for Respondents.
1. Costs.
Decision to award attorney fees is within sound discretion of district court, but award made in disregard of applicable legal
principles may constitute abuse of discretion.
2. Costs.
Frivolousness of claim is determined as of time claim is initiated, rather than time of trial, for purposes of award of attorney fees to
prevailing party when opposing party brings suit without reasonable grounds or to harass prevailing party. NRS 18.010(2)(b).
3. Costs.
Guarantors' claims, as third-party beneficiaries, against cement company owner, for breach of contract in which owner allegedly
agreed to assume note, and breach of implied covenant of good faith and fair dealing, were not frivolous when guarantors initiated
claims, and guarantors thus were not liable for owner's attorney fees; maker initially represented that owner had agreed to assume note,
maker did not make contrary admission until after suit was filed, and guarantors made reasonable investigation into claims. NRS
18.010(2)(b).
4. Costs.
Guarantors' claims against bank director, arising from bank's decision to call loan to maker, for breach of fiduciary duty by
director, and for intentional infliction of emotional distress by director in intentionally violating his duty, were frivolous when
guarantors initiated claims, and guarantors thus were liable for director's attorney fees, if guarantors had conducted even cursory
investigation, they would have found that, because note was for less than $1,000,000, director would have had no connection with
bank's decision to call loan. NRS 18.010(2)(b).
OPINION
Per Curiam:
Appellants Raymond and Ruth Barozzi filed a complaint against respondents Bruno Benna, Steve Benna and CB Concrete Company
(CBC) to enforce, as third-party beneficiaries, an alleged oral agreement between Bruno and Bilt-Rite Concrete. The action was
comprised of four claims relevant to this appeal: {1) breach of contract; {2) breach of implied covenant of good faith and
fair dealing; {3) breach of fiduciary duty by Bruno in his capacity as a director of First Interstate Bank {"FIB");
and {4) intentional infliction of emotional distress by Bruno in intentionally violating his fiduciary duty.
(1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3)
breach of fiduciary duty by Bruno in his capacity as a director of First Interstate Bank
(FIB); and (4) intentional infliction of emotional distress by Bruno in intentionally violating
his fiduciary duty.
The district court granted respondents' motion for summary judgment and awarded the
Bennas $50,000 in attorney's fees, finding the claims were not reasonably grounded. The
Barozzis appeal the attorney's fees award. We hold that the frivolousness of a claim is
determined at the time the claim is filed, and conclude that the Barozzis' first two claims were
reasonably grounded at the time of filing. Therefore, we remand the case to the district court
to apportion the attorney's fees between the grounded and groundless claims.
FACTS
In September 1987, Max Barozzi and Red Taliaferro formed a concrete placing
company named Bilt-Rite Concrete, Inc. (Bilt-Rite). Prior to that time, Max and Red
worked many years for I. Christensen Co., which was owned by Bruno Benna.
1
Sometime
after Bilt-Rite was formed, Bruno stopped operating I. Christensen Co.
Max and Red eventually borrowed over $230,000 from FIB in order to operate Bilt-Rite.
Initially, the loans were personally guaranteed by Max, Red, and Max's parents, Raymond and
Ruth Barozzi, but eventually, FIB also required a certificate of deposit of $100,000, which the
Barozzis provided.
In 1989, Max and Red also obtained a $175,000 loan from Bruno to help meet payroll; this
loan was paid in full. In 1990, Bruno refused to loan Max and Red an additional $250,000,
because they owed him approximately $180,000 for concrete they had purchased on an open
account. Around this time, Bruno began operating I. Christensen Co. again.
In February 1990, a meeting took place between Max, Red, Bruno, and Steve, in which the
following was agreed upon: (1) Max and Red would stop operating Bilt-Rite; (2) Max and
Red would return to work at I. Christensen Co.; (3) Bilt-Rite would transfer all of its
equipment to CBC in consideration of their outstanding $180,000 debt; and (4) CBC would
finish all Bilt-Rite projects at cost, and transfer any profit to Max and Red. During sworn
deposition testimony, Max asserted that he told Bruno that the FIB notes must be part of any
agreement, and that Bruno stated in response, That's fine, and Let's get to work.
However, during that same deposition, Max conceded that Bruno never agreed to assume
the FIB debt.
__________

1
I. Christensen Co. was a subsidiary of CBC.
never agreed to assume the FIB debt. Moreover, Bruno, Steve, and Red all denied that the
Bennas had committed to assume the FIB debt.
2

In August 1990, FIB began demanding payment on the outstanding loans made to
Bilt-Rite, since the loans were in default. FIB gave notice to the Barozzis that it was going to
require payment on the guarantees. The Barozzis paid the notes which were thereafter
assigned to them.
3
Based upon Max's assertion that the FIB loans were part of the agreement
with Bruno and Steve, the Barozzis filed suit against the Bennas, claiming: (1) breach of
contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of fiduciary
duty by Bruno in his capacity as FIB director; and (4) intentional infliction of emotional
distress by Bruno in intentionally violating his fiduciary duty.
On March 26, 1993, respondents filed a motion for summary judgment, which the district
court granted. In January 1994, the Bennas filed a motion for attorney's fees and sanctions,
pursuant to NRS 18.010(2)(b) and NRCP 11. The district court acknowledged that the
Barozzis were unfortunate victims of Max's misrepresentations which triggered the filing of
the lawsuit. The district court also noted, however, that in his deposition Max repudiated
what he had told his parents, thus forcing respondents to defend against an action in which
there was no credible evidence in support of the claims. Therefore, the district court awarded
the Bennas $50,000 in attorney's fees, and sanctioned Barozzis' attorney. On appeal, the
Barozzis challenge the award of attorney's fees.
DISCUSSION
[Headnote 1]
The decision to award attorney's fees is within the sound discretion of the district court,
but an award made in disregard of applicable legal principles may constitute an abuse of
discretion. Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 995, 860 P.2d 720, 724 (1993).
The Barozzis contend that NRS 18.010(2)(b)
4
allows an assessment of attorney's fees
only if the grounds for the action are unreasonable at the time of filing.
__________

2
Red was no longer employed at I. Christensen Co. when he filed an affidavit denying that Bruno and Steve
agreed to assume the FIB loans.

3
The notes totalled $233,086.41.

4
NRS 18.010(2)(b) states, in relevant part: [T]he court may make an allowance of attorney's fees to a
prevailing party: . . . (b) . . . when the court finds that the claim . . . of the opposing party was brought without
reasonable grounds or to harass the prevailing party.
ment of attorney's fees only if the grounds for the action are unreasonable at the time of filing.
In Duff v. Foster, 110 Nev. 1306, 1308, 885 P.2d 589, 591 (1994), this court emphasized that
the proper inquiry is whether the claim was brought without reasonable grounds. We also
agreed that [i]f an action is not frivolous when it is initiated, then the fact that it later
becomes frivolous will not support an award of fees.' Id. at 1309, 885 P.2d at 591 (quoting
State of Florida, Dep't of Health and Rehabilitative Servs. v. Thompson, 552 So. 2d 318, 319
(Fla. Dist. Ct. App. 1989)).
Respondents cite to Allianz in contending that [a] claim is groundless if the allegations
in the complaint . . . are not supported by any credible evidence at trial.' 109 Nev. at 996,
860 P.2d at 724 (quoting Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984))
(emphasis added). Although Allianz and Duff appear to differ concerning the relevant point in
time when a claim is determined to be groundless, upon closer examination it is apparent that
there is no conflict between the two cases.
In Allianz, the district court determined that the plaintiff's claims were grossly inflated
and fraudulent, based in part on false representations. But the district court rejected a request
for attorney's fees because it could find no authority for the proposition that fraudulent claims
are also groundless. This court reversed, stating that a claim is groundless if not supported by
any credible evidence at trial.
We nevertheless considered appellant's argument that the claim was well grounded when
initiated, but that the evidence had become stale in the years preceding trial. Although we
rejected the argument as inconsistent with the lower court's finding of fraud, we recognized
that [i]f factually true, this argument could have merit. 109 Nev. at 996, 860 P.2d at 725.
[Headnote 2]
Moreover, a review of the authorities upon which Allianz and Duff rely supports the
conclusion that under NRS 18.010(2)(b), frivolousness is determined at the time the claim is
initiated. Allianz quotes Isaacs, a Colorado case. Under Colorado law [t]he court shall not
award attorney's fees among the parties unless it finds that the bringing, maintaining, or
defense of the action against the party entitled to such award was frivolous or groundless.
679 P.2d at 1066. In contrast, the Nevada statute only speaks of bringing suits without
reasonable ground, not maintaining them. See NRS 18.010(2)(b). Since the Colorado statute
expressly addresses the maintaining of a frivolous claim, it is understandable that the
Isaacs court would look to the trial when determining the credibility of the claim for the
purpose of assessing attorney's fees.
it is understandable that the Isaacs court would look to the trial when determining the
credibility of the claim for the purpose of assessing attorney's fees. However, since NRS
18.010(2)(b) only references the bringing of groundless suits, the Duff court's focus on the
point when the claim is initiated follows the language of the Nevada statute more closely than
does the language in Allianz.
Duff cites Thompson, a Florida case, in support of its ruling. Under Florida law [t]he
court shall award a reasonable attorney's fee . . . in any civil action [in] which the court finds
that there is a complete absence of a justiciable issue of either law or fact raised by the
complaint or defense of the losing party. Fla. Stat. Ann. 57.105 (West 1994). The Florida
statute speaks of complaints, which more closely parallels NRS 18.010(2)(b), in that it
focuses on the time the claim is initiated. Thus, we conclude that the rule pronounced in Duff
remains the appropriate rule under NRS 18.010(2)(b).
[Headnote 3]
In the instant case, it is apparent that the district court felt that the first and second claims,
which related to the contract, were not frivolous when the action was initiated. Although the
district judge did state at one point during the hearing on attorney's fees that the Barozzis
didn't have legitimate grounds to file the case, the judge also stated during the hearing that
he wanted the attorneys to focus their arguments on why the defendants shouldn't be
awarded attorney's fees from the time it became clear that [Max's] testimony would not be as
it apparently was in the first instance when he talked to Mr. Boles [the Barozzis' attorney].
(Emphasis added.) Significantly, in its written order, the district court also opined that the
Barozzis were unfortunate victims of representations made by their son, Max Barozzi,
which, apparently, triggered the filing of the instant law suit, and which were not supported
by the evidence.
Moreover, the record reflects that the Barozzis made a reasonable investigation into the
first and second claims. The affidavit of the Barozzis' trial counsel states that Max told the
Barozzis and their counsel at separate times that the Bennas had agreed to make the FIB loans
part of the contract. The affidavit also reveals that an attempt to meet with Bennas' counsel
prior to filing was unsuccessful. Although Bennas' counsel indicated that he had one or more
documents that would clearly establish that there was no liability on the part of the Bennas, he
refused to produce the documents prior to filing. Attempts by the Barozzis to talk to Red and
his reported counsel were also unsuccessful. Without anything to directly discredit Max's
statements, the Barozzis filed the contract claims. For the above-enumerated reasons, we
conclude that the Barozzis had reasonable ground upon which to bring the contract
claims.
that the Barozzis had reasonable ground upon which to bring the contract claims. Since the
contract claims proved groundless after the suit was initiated, the order awarding attorney's
fees with regard to those claims is improper. We therefore reverse that part of the award.
[Headnote 4]
In imposing sanctions, the district court stated that there is not one single shred of
credible evidence to support the proposition that Mr. Benna breached any fiduciary
responsibility or duty to any person in this litigation by virtue of his having been on the Board
of Directors of First Interstate Bank. The record reveals that if the Barozzis had conducted
even a cursory investigation into the matter, they would have found that only loans of $1
million or more were presented to the board of directors for action, and since the loan in
question was far below $1 million, Bruno and the board of directors would have had no
connection with FIB's decision to call the loan and resort to the collateral. The Barozzis
argued that considering the size of the debt, it was reasonable to assume that the Bank's
Board of Directors would have known about this debt before the Bank decided to look to
BAROZZI. However, as the district court noted, all theories' must be supported by, at
least, some evidence prior to becoming a cause of action in a publicly filed law suit. We
therefore conclude that the district court did not abuse its discretion in finding that the third
and fourth claims had no reasonable grounds.
CONCLUSIONS
For the reasons discussed above, we reverse the district court's order awarding attorney's
fees for the first and second claims, and remand for a redetermination of fees limited only to
the groundless claims. See Bergmann v. Boyce, 109 Nev. 670, 675, 856 P.2d 560, 563 (1993)
(The prosecution of one colorable claim does not excuse the prosecution of [other]
groundless claims).
I disagree with the majority's hair-splitting analysis of the trial court's decision in this case.
I agree with the trial court's reasoning and decision; therefore, I respectfully dissent.
____________
112 Nev. 642, 642 (1996) McKee v. State
ROCKWOOD LEE McKEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26675
May 30, 1996 917 P.2d 940
Appeal from a judgment of conviction pursuant to a jury verdict of one count of trafficking
in a controlled substance and one count of possession of a controlled substance. Sixth Judicial
District Court, Humboldt County; Jerry V. Sullivan, Judge.
The supreme court held that: (1) defendant lacked standing to object to search of vehicle
which he drove while vehicle's owner rode as passenger; (2) prosecution could not properly
impeach defendant with photograph allegedly showing defendant in possession of drugs on
certain date several days before his arrest, in trial in which defendant had stated that he did
not use drugs on that date, since whether defendant used drugs on that date was collateral
matter and photograph was extrinsic evidence; and (3) prosecutor committed act of deception
which was unfair, and prejudicial to defendant's defense, when it failed to place, in
defendant's open file, photograph showing defendant in possession of drugs, and then used
photograph to impeach defendant.
James J. Jackson, Public Defender, James P. Logan, Deputy Public Defender, Carson
Frankie Sue Del Papa, Attorney General, Carson City; R. Michael McCormick, District
Attorney, Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for Respondent.
Defendant lacked standing to object to search of vehicle which he drove while vehicle's owner rode as passenger; since owner did
not give up possession of vehicle to defendant, defendant did not have reasonable expectation of privacy in vehicle. U.S. Const. amend
4.
2. Witnesses.
Prosecutor could not properly impeach drug defendant with photograph allegedly showing defendant in possession of drugs on
certain date several days before his arrest, in trial in which defendant had stated that he did not use drugs on that date; whether
defendant used drugs on that date was collateral matter, and photograph was extrinsic evidence. NRS 50.085(3).
3. Witnesses.
It is error for state to impeach defendant's credibility with extrinsic evidence relating to collateral matter. NRS 50.085(3).
4. Criminal Law.
Prosecutor committed act of deception which was unfair, and extremely prejudicial to drug defendant's defense, when
it failed to place, in defendant's open file, photograph showing defendant in possession of drugs, and then used
photograph to impeach defendant; defendant reasonably believed that, pursuant to prosecutor's open file
policy, prosecutor would make available all relevant inculpatory, as well as exculpatory, evidence.
112 Nev. 642, 643 (1996) McKee v. State
extremely prejudicial to drug defendant's defense, when it failed to place, in defendant's open file, photograph showing defendant in
possession of drugs, and then used photograph to impeach defendant; defendant reasonably believed that, pursuant to prosecutor's open
file policy, prosecutor would make available all relevant inculpatory, as well as exculpatory, evidence. NRS 178.598.
5. Criminal Law.
It is as much a duty of prosecutor to refrain from improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of one count of possession of a controlled substance, and one count of trafficking in a
controlled substance-level III. On appeal, appellant Rockwood Lee McKee (McKee) contends that the evidence discovered during the
search of the vehicle he was driving should be suppressed since the search was conducted without probable cause, and that he is entitled to
a new trial since the prosecutor engaged in misconduct. We hold that McKee lacks standing to challenge the validity of the search. We also
hold that the prosecutor engaged in misconduct that materially prejudiced McKee's defense. We therefore reverse the district court's
judgment of conviction, and remand the matter to the district court.
THE FACTS
In July 1994, McKee was living in Las Vegas, Nevada, where he worked as a carpenter. Prior to moving to Las Vegas, McKee lived in
Southern California. While in Southern California, McKee performed several carpentry jobs for Verna Lovely (Lovely). On July 10, 1994,
Lovely called McKee and asked him to drive her to Boise, Idaho, so that she could visit a friend. In return for his efforts, Lovely offered to
fly McKee to Los Angeles and give him enough money to fix his truck. McKee agreed, and flew to Los Angeles.
After arriving in Los Angeles, McKee made some repairs to Lovely's vehicle. Because it was getting late, McKee purchased some
methamphetamine to help him stay awake during the trip. McKee hid the drug in his sock. At about 1:00 a.m. on July 13, 1994, the couple
began their trip. When they arrived in Truckee, California, some minor repairs were made to the car, and Lovely began driving. However,
Lovely became fatigued before they arrived in Reno, so McKee took over the driving. Later that day, at about 9:00 p.m., Nevada Highway
Patrol Trooper Charles Stamey (Stamey) observed Lovely's car traveling at a high rate of speed near Winnemucca, Nevada.
112 Nev. 642, 644 (1996) McKee v. State
speed near Winnemucca, Nevada. After Stamey stopped the car, the couple informed the
trooper that Lovely was the owner of the vehicle. Even though McKee was driving, Stamey
asked to see Lovely's license and registration. As she was looking for her license, Stamey
observed a telephone pager, a cellular telephone, a large road atlas, a pit bull dog in the back
seat, the smell of air freshener, and a two-inch hole in the passenger side door.
Lovely could not find her license, so Stamey asked if she had any other identification.
Lovely got out of the car, opened the rear hatchback, and began looking for her checkbook.
Stamey observed that the car alarm went off as Lovely opened the hatchback. He also noticed
a twelve-by-six-inch hole in the rear quarter panel, apparently designed by the manufacturer
to allow access to the brake lights. After Lovely found her checkbook, she returned to the cab
of the car and began looking for her registration in the glove box. Stamey observed a wallet in
the glove box that appeared to contain a large amount of money.
As Lovely was looking for the registration, Stamey asked McKee for his license. Stamey
returned to his patrol vehicle to prepare a citation when he noticed that McKee's license was
expired. Growing ever more suspicious, Stamey returned to Lovely's car and asked McKee
about the details of the trip. McKee told him that he and Lovely left Los Angeles about 1:00
a.m. and were traveling to Boise to meet a friend, that McKee began driving the vehicle near
Lovelock, and that he and Lovely planned to return to Los Angeles the next day. Stamey then
began questioning Lovely. She told him that she and McKee left Los Angeles about 5:00
a.m., that McKee began driving the vehicle near Lake Tahoe, and that they planned to stay in
Boise for about a week. Stamey returned to his vehicle and requested a criminal history on
McKee. Stamey was informed that McKee had a history of weapons and narcotics violations.
Stamey returned to Lovely's vehicle and asked McKee if he had any large amounts of
currency or any drugs either on his person or in the car. McKee told him no and that the
only thing that belonged to him was a bag in the back. Stamey asked to search the bag.
McKee refused. Stamey asked McKee if he could search the car. McKee told him that he did
not own the car and that Stamey would have to ask Lovely. Stamey asked Lovely if he could
search the car. Lovely refused. While these events were taking place, Stamey noticed that
Lovely was acting as though she was very nervous.
Concluding that he had probable cause, Trooper Stamey conducted a search of the car.
Stamey's search produced the following: a loaded nine millimeter semi-automatic pistol; a
brown bag containing 451.27 grams of methamphetamine; a salt container with a false
bottom in which Stamey found a baggy containing methamphetamine; a set of scales
capable of weighing up to 1,000 grams; a white envelope containing 4.S grams of
marijuana; and a pink paper bag containing three grams of methamphetamine.
112 Nev. 642, 645 (1996) McKee v. State
with a false bottom in which Stamey found a baggy containing methamphetamine; a set of
scales capable of weighing up to 1,000 grams; a white envelope containing 4.8 grams of
marijuana; and a pink paper bag containing three grams of methamphetamine. Stamey
arrested McKee and Lovely. While searching McKee's person, Stamey found a baggy
containing 0.83 grams of methamphetamine in McKee's sock.
A jury trial was held on September 21, 22, and 23, 1994, after which a jury found McKee
guilty of trafficking in a controlled substance-level III, and possession of a controlled
substance. On January 11, 1995, the district court sentenced McKee to serve twenty-five
years in the Nevada State Prison and to pay a $500,000.00 fine for trafficking in a controlled
substance-level III, and to serve four years in the Nevada State Prison for possession of a
controlled substance. On January 27, 1995, McKee filed a timely notice of appeal.
THE SEARCH
In Rakas v. Illinois, 439 U.S. 128, 148 (1978), the Supreme Court held that a passenger in
a car who fails to assert a property or a possessory interest in the automobile or the property
seized lacks standing to assert that his Fourth Amendment rights have been violated.
However, in Scott v. State, 110 Nev. 622, 628, 877 P.2d 503, 507 (1994), we recognized that
a non-owner driver or passenger who can show lawful possession of a car may have standing
to challenge a search. But, when the owner of the vehicle is present in the vehicle, at least one
federal court has found that the non-owner driver lacks standing. In United States v.
Jefferson, 925 F.2d 1242 (10th Cir. 1991), Jefferson, his brother, and Tillis were driving in
Tillis' car when the car was pulled over and searched. Drugs were found, and Jefferson was
charged with possession. Jefferson argued that the drugs should be suppressed, since the
officer did not have probable cause to search the vehicle and since Jefferson was driving the
car when it was stopped. The Tenth Circuit Court of Appeals concluded that because Tillis,
who was present in the car, did not transfer a possessory interest in the vehicle to Jefferson,
Jefferson was without standing to challenge the validity of the search. Id. at 1251.
[Headnote 1]
Like Jefferson, McKee was driving a car while the owner (Lovely) was riding as a
passenger. Since Lovely did not give up possession of the vehicle to McKee, McKee did not
have a reasonable expectation of privacy in the vehicle. Accordingly, we conclude that
McKee lacked standing to object to Stamey's search.
112 Nev. 642, 646 (1996) McKee v. State
THE IMPEACHMENT
[Headnote 2]
In the course of cross-examining McKee, the prosecution asked McKee if he had used
drugs on July 12, 1994. McKee answered, [N]o. The prosecution then produced a
photograph of McKee, dated July 12, 1994, in which McKee was shown holding a straw and
a baggy in his right hand. McKee then admitted that he had used drugs on July 12, 1994.
McKee's counsel objected to the use of the photograph.
[Headnote 3]
It is error to allow the State to impeach a defendant's credibility with extrinsic evidence
relating to a collateral matter. See NRS 50.085(3)
1
; Rembert v. State, 104 Nev. 680, 766
P.2d 890 (1988); Moore v. State, 96 Nev. 220, 607 P.2d 105 (1980). In Rowbottom v. State,
105 Nev. 472, 779 P.2d 934 (1989), Rowbottom was charged with first-degree murder. At
one point, Rowbottom testified to the close relationship he had with his sisters. On
cross-examination, the prosecution inquired into his relationship with his sisters.
Rowbottom's mother was then called as a witness. During the prosecution's
cross-examination of the mother, the mother testified about Rowbottom's past sexual
misconduct with his sisters. In concluding that this impeachment was improper, we stated:
Had the prosecution wished to rebut [Rowbottom's] testimony and impeach
Rowbottom's credibility with specific instances of conduct it could have done so by
inquiring about Rowbottom's alleged prior misconduct during his cross-examination.
NRS 50.085(3) [sic]. If Rowbottom denied having committed the act, the prosecution
could not, however, prove specific instances of conduct by extrinsic evidence, i.e.,
Rowbottom's mother's testimony.
Id. at 485, 779 P.2d at 942 (citations omitted).
In the instant case, the district court erred in allowing the prosecutor to impeach McKee
with the photograph. Initially, we conclude that whether McKee was using methamphetamine
on July 12, 1994, several days before his arrest, is an issue collateral to whether he was
trafficking in a controlled substance on the night in question.
__________

1
Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other
than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to
truthfulness, be inquired into on cross-examination of the witness himself or on cross-examination of a
witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the
general limitations upon relevant evidence and the limitations upon interrogations and subject to the
provisions of NRS 50.090.
112 Nev. 642, 647 (1996) McKee v. State
July 12, 1994, several days before his arrest, is an issue collateral to whether he was
trafficking in a controlled substance on the night in question. Impeachment on a collateral
matter is clearly not allowed. In addition, the photograph used to impeach McKee's testimony
is extrinsic evidence. As we noted in Rowbottom, under NRS 50.085(3), the prosecution is
allowed to inquire into specific instances of conduct on cross-examination, but must accept
the witness' answer. The prosecution is not allowed to prove up the conduct through extrinsic
evidence. Unfortunately, that is exactly what happened here. The prosecution asked McKee if
he used drugs on July 12, 1994, McKee said, [N]o; then the prosecution proved through
extrinsic evidence that he did. In so doing, the prosecutor violated the rules of impeachment
under NRS 50.085(3).
THE OPEN FILE POLICY
[Headnote 4]
The district attorney's office of Humboldt County has an open file policy. Several days
before trial was to begin, the police discovered a camera in Lovely's vehicle. The film was
developed and a picture, dated July 12, 1994, showing McKee in possession of drugs, was
produced. However, because the prosecution was not going to use the picture in its
case-in-chief, and because the picture was inculpatory rather than exculpatory, the
prosecution decided not to place the picture in the file. Instead, the prosecution withheld the
picture in the hope that McKee would testify. McKee did, and the prosecution used the
picture to impeach him.
[Headnote 5]
Prosecutors are put in the precarious position of having to pursue criminal convictions
zealously, while at the same time, insure that defendants receive a fair and impartial trial. As
was stated in Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983):
Even more egregious, however, are attempts by representatives of the government to
resort to these reprehensible means to shortcut their responsibility to ferret out all
admissible evidence and use only that to meet their burden of proof. We fear resort to
such conduct indicates either an absence of sufficient evidence to convict or reflects
shoddy government efforts that have failed to unearth admissible evidence. . . . He has
no obligation to win at all costs and serves no higher purpose by so attempting. Indeed,
[i]t is as much a duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just one.
[Berger v. United States, 295 U.S. 78, 88 (1934).]
112 Nev. 642, 648 (1996) McKee v. State
See also Citti v. State, 107 Nev. 89, 807 P.2d 724 (1991) (State is held to the most meticulous
standards of both promise and performance); Perry v. State, 106 Nev. 436, 794 P.2d 723
(1990) (reasonable expectations of the parties should be honored); Wolf v. State, 106 Nev.
426, 794 P.2d 721 (1990) (case remanded for new sentencing hearing because prosecutor
violated the letter and spirit of plea agreement); State v. Smith, 105 Nev. 293, 774 P.2d 1037
(1989) (when a plea rests on a promise or agreement of the prosecutor, such promise must be
fulfilled).
We conclude that these cases stand for the proposition that a prosecutor, as the agent of the
State, is held to a high ethical standard and must abide by the promises he makes. Here,
McKee relied on the open file policy of the Humboldt County District Attorney's Office.
Though the boundaries of that policy do not appear to be defined, the record shows that
McKee's counsel believed that the open file policy meant that the District Attorney's Office
would make available all relevant inculpatory, as well as, exculpatory evidence. We conclude
that it was reasonable for McKee to believe that the District Attorney's Office would make
available all relevant evidence. Moreover, the record seems to indicate that the prosecutor
knew McKee was relying on this policy when he (the prosecutor) chose to withhold the
photograph. Because the photo was never placed in the file, McKee had no reason to believe
such incriminating evidence existed. We hold that this act of deception was clearly unfair,
and extremely prejudicial to McKee's defense.
2

CONCLUSION
Even though Trooper Stamey's search of Lovely's vehicle was proper and the evidence
discovered during that search is admissible against McKee, we cannot overlook the fact that
the prosecution engaged in several acts of misconduct that are clearly prejudicial to McKee;
and we hold that the acts in question cannot be considered harmless. See NRS 178.598. The
district court's judgment of conviction is hereby reversed, and the case is remanded to the
district court for a new trial.
__________

2
In his closing argument, the prosecutor stated, Defense counsel stated that the State is assuming quite a bit. I
believe that defense counsel is assuming his client was telling the truth. Clearly, he hasn't. Why should we
believe him today? In emphasizing McKee's lack of credibility, the prosecutor focused the jury's attention on
improper impeachment evidence. This emphasis compounded an already extremely prejudicial mistake.
____________
112 Nev. 649, 649 (1996) Enterprise Citizens v. Clark Co. Comm'rs
ENTERPRISE CITIZENS ACTION COMMITTEE, Appellant, v. CLARK COUNTY
BOARD OF COMMISSIONERS, a Political Subdivision of the State of Nevada;
UNION PACIFIC RAILROAD COMPANY, a Nevada Corporation; and INLAND
PROPERTIES, INC., a Nevada Corporation, Respondents.
No. 25357
May 30, 1996 918 P.2d 305
Appeal from an order of the district court denying a petition for a writ of mandamus.
Eighth Judicial District Court, Clark County; Donald Mosley, Judge.
Opponent of zoning variance which allowed applicants to operate concrete/asphalt batch
plant on property petitioned for writ of mandamus, seeking to overturn decision of county
board of commissioners granting variance. The district court denied petition, and opponent
appealed. The supreme court, Rose, J., held that: (1) applicants presented no substantial
evidence of hardship or difficulty to board warranting granting of variance; (2) batch plant
was not incidental to sand and gravel pit and, in any event, sand and gravel pit was not
permitted use; (3) board erred in failing to provide deference to master plan; and (4)
opponent was not entitled to attorney fees.
Shearing and Springer, JJ., dissented.
Hayes & Gourley, Las Vegas, for Appellant.
Stewart L. Bell, District Attorney, Johnnie B. Rawlinson, Chief Deputy District Attorney,
Clark County; Dominic P. Gentile, Ltd. and James N. Mancuso, Las Vegas, for Respondents.
Grant or denial of variance, like grant or denial of request for special use permit, is discretionary act, and if it is supported by
substantial evidence, there is no abuse of discretion. Substantial evidence is evidence which reasonable mind might accept as
adequate to support conclusion.
Function of district court, in reviewing grant or denial of variance by county board of commissioners, is to ascertain as matter of
law whether there was substantial evidence before board which would sustain board's actions, and function of supreme court on
subsequent review is same as that of district court; both courts are limited to record made before board in reviewing board's decision.
No presumption of validity attaches to decision of district court that does not hear additional evidence in reviewing zoning
decision made by municipality.
4. Mandamus; Zoning and Planning.
Applicants for variance allowing construction and operation of concrete/asphalt batch plant provided no evidence to prove that
unusual lot shape, abutting railroad tracks, nearby manufacturing zoning, and dedications on abutting boulevard created hardship or
difficulty warranting grant of variance and, thus, opponent of variance should have been granted mandamus relief. Clark County Code
29.66.030.
Although unusual shape of property, dedications on abutting boulevard, abutting railroad tracks, and nearby industrial zoning
qualified under county code as circumstances which might create exceptional difficulties to or undue hardships upon property owner,
they did not ipso facto create difficulty or hardship warranting variance; it was incumbent upon owner to prove what hardship or
difficulty was, i.e., that without variance, owner should be deprived of all beneficial uses, value of property would decrease
significantly, reasonable return of property would not be realized, land would be virtually useless, or no feasible use could be made of
land. Clark County Code 29.66.030.
Concrete/asphalt batch plant was not incidental to sand and gravel pit, as urged in support of claim that batch plant was
permitted use of property. Batch plant could operate in any location and did not have to be adjacent to sand and gravel pit, plant did
not serve gravel pit by assisting or aiding in excavation of gravel, but was required only to mix necessary components to create new
product, and addition of plant might have expanded owners' business so extensively that they would be operating new business.
Even if concrete/asphalt batch plant were incidental to sand and gravel pit, batch plant would still have been disallowed under
zoning regulations allowing accessory uses, buildings and structures if clearly incidental to permitted use, as sand and gravel pit was
not permitted use in area as zoned but, rather, was conditional use requiring permit. Clark County Code 29.06.030(B), (C).
Master plan of community is standard that commands deference and presumption of applicability, but should not be viewed as
legislative straightjacket from which no leave can be taken. NRS 278.250.
Landowner and operator of sand and gravel pit, in applying for down-zone, requesting conditional use permit for pit, and
requesting variance for concrete/asphalt batch plant, made improper attempt to circumvent master plan, and county board of
commissioners' decision to grant variance completely ignored master plan, which expressly prohibited manufacturing on property.
Landowner and operator should have requested that property be rezoned to allow manufacture of concrete and/or asphalt on property,
and board's permitting them to conduct such manufacturing indirectly amounted to spot zoning and provided no deference to master
plan. NRS 278.250.
Statute providing for actual damages to party which submitted application requesting improvement or change of use
on its property after responsible agency acts arbitrarily in imposing some type of restriction on use in
excess of agency's statutorily derived powers does not provide for relief in form of actual damages for party
challenging application, even if agency acted arbitrarily in granting application.
application requesting improvement or change of use on its property after responsible agency acts arbitrarily in imposing some type of
restriction on use in excess of agency's statutorily derived powers does not provide for relief in form of actual damages for party
challenging application, even if agency acted arbitrarily in granting application. NRS 278.0233.
OPINION
For many years, Union Pacific Railroad Company has owned a 180 acre tract of real property adjacent to its railroad track and
easement in Clark County, Nevada. The property is zoned for Residential Estates and Union Pacific has twice tried to change this zoning,
first in 1989 to Industrial Without Dwellings, and then to Light or Designed Manufacturing in 1991. Both applications were denied.
By 1993, Inland Properties, Inc. had agreed to operate a sand and gravel pit on the real property at issue, and respondents Union Pacific
Railroad Company and Inland Properties, Inc. (respondents) filed for a zone change, conditional use permit, and zone variance, all of which
were granted by the Clark County Board of Commissioners (Board). Appellant Enterprise Citizens Action Committee (appellant), a
committee comprised of people who own property surrounding respondents' property at issue, filed a petition for a writ of mandamus in
district court seeking to overturn the Board's decision. The district court denied the petition for a writ of mandamus. We conclude that the
district court's denial of the writ petition was improper.
FACTS
Respondents filed applications for a zone change, a conditional use permit, and a zone variance with the Clark County Department of
Comprehensive Planning on June 15, 1993. At issue was an approximately 180 acre parcel of land owned by the respondents and located
near Jones Boulevard south of the Blue Diamond Highway in Las Vegas.
1
Respondents first requested that the
property be "down-zoned" from R-E {Rural Estates) to R-U {Rural Open Land).
__________

1
Because the shape of the property at issue and the type of zoning surrounding the property are important to
this opinion, both must be explained. The property is almost triangular in shape, but is better defined as a
trapezoid, with the northern and southern boundaries running parallel to each other, the eastern boundary
running perpendicular to the northern and southern boundary, and the western boundary running southwest to
northeast, resulting in a northern boundary only about one third the length of the southern boundary. The
dimensions of each boundary were not provided to this court, but in general terms if the northern boundary is
one unit long, then the western boundary is four and one-half units long, the southern boundary
Respondents first requested that the property be down-zoned from R-E (Rural Estates)
to R-U (Rural Open Land). In conjunction with this down-zoning, respondents filed a
second application for a conditional use permit to operate a sand and gravel pit on the
property. Finally, respondents requested a zone variance in order to operate a concrete and
asphalt batch plant in conjunction with the sand and gravel pit.
2
The only application at issue
is the one requesting the variance because appellant admitted that the down-zoning from
R-E to R-U was in conformity with the master plan
3
and the grant of the conditional use
permit for the sand and gravel pit was in conformity with the Clark County Code.
The Board held a hearing regarding the three applications. Appellant opposed the variance
because it permitted an industrial use of the property. It cited concerns regarding noise, dust
particle control, traffic, and the safety of the children in the neighborhood. Respondents
presented environmental studies indicating that potential problems cited by the appellant
would be mitigated and that the project would have a favorable impact on the economic
growth of the city. The Board voted 4-2 in favor of permitting the down-zoning, granting
the conditional use permit, and granting the variance.
Appellant filed a petition for a writ of mandamus in district court requesting that the
Board's decision be overturned. It argued that a variance permitting the construction and
operation of a concrete/asphalt batch plant would result in a high-intensity manufacturing use
of the property in contravention of the master plan which had zoned the property for
residential use. It also argued that respondents had not demonstrated that they suffered
any hardship or difficulty which warranted the Board's granting of a variance.
__________
is three units long, and the eastern boundary is four units long. The property has railroad tracks abutting the
entire western boundary of the property. M-1 (Light Manufacturing) zoning extends directly west of the railroad
tracks for 1,000 feet. All of the property located west of the M-1 zoning is zoned R-E (Residential Estates). The
southern boundary is abutted by a road, and all of the property located south of that road is zoned R-E. The
eastern boundary of the property is abutted by Jones Boulevard, and it appears that the property located east of
Jones Boulevard is zoned for residential use. Finally, the northern boundary of the property is abutted by Serene
Avenue, and it appears that the property located north of Serene Avenue is zoned for residential use. (This court
was not provided with a map detailing what type of residential zoning existed on the property located directly
east and north of the property at issue. However, residents from those areas testified in front of the Board of
County Commissioners that they owned homes in those areas.)

2
All three applications were filed at the same time.

3
The property at issue was designated by the master plan as a Community 3 District. Appropriate land uses
described for a Community 3 District are residential developments with densities equal to or lesser than two
dwellings per acre, agricultural, recreational, open space and resource production land use. Property zoned both
R-E and R-U satisfy these requirements.
argued that respondents had not demonstrated that they suffered any hardship or difficulty
which warranted the Board's granting of a variance. The district judge, however, stated that
respondents provided the Board with sufficient evidence of a hardship which warranted the
variance. Additionally, the district judge felt that while it may have been sleight of hand for
respondents to request the down-zoning, use permit, and variance rather than requesting a
zoning change, he concluded that it was clever lawyering, it was successful, and it was not
illegal.
Appellant then filed a timely appeal requesting this court to reverse the district court's
order denying its petition for a writ of mandamus.
DISCUSSION
Respondents presented no substantial evidence of hardship or difficulty to the Board which
warranted the granting of a variance
[Headnote 1]
The grant or denial of a variance, like a grant or denial of a request for a special use
permit, is a discretionary act. See City of Las Vegas v. Laughlin, 111 Nev. 557, 558, 893 P.2d
383, 384 (1995). If this discretionary act is supported by substantial evidence, there is no
abuse of discretion. Id. Substantial evidence is evidence which a reasonable mind might
accept as adequate to support a conclusion. State, Emp. Security v. Hilton Hotels, 102 Nev.
606, 608, 729 P.2d 497, 498 (1986).
[Headnotes 2, 3]
The function of the district court is to ascertain as a matter of law whether there was
substantial evidence before the Board which would sustain the Board's actions, and the
function of this court at this time is the same as that of the district court. McKenzie v. Shelly,
77 Nev. 237, 242, 362 P.2d 268, 270 (1961). Like the district court, this court is limited to the
record made before the Board in reviewing the Board's decision. Laughlin, 111 Nev. at 558,
893 P.2d at 384. Finally, no presumption of validity attaches to the decision of a district
court that does not hear additional evidence in reviewing a zoning decision made by a
municipality. City of Reno v. Harris, 111 Nev. 672, 677, 895 P.2d 663, 666 (1995). Because
the district court heard arguments regarding whether there was substantial evidence to sustain
the Board's actions but heard no additional evidence, the district court's decision will receive
no presumption of validity.
[Headnote 4]
We note, preliminarily, that the district court properly subjected the Board's actions to a
substantial evidence standard of review.
review. However, after reviewing the record made before the Board, we conclude that
respondents presented no substantial evidence to the Board which would sustain the Board's
action granting the variance, and therefore we conclude that the Board abused its discretion in
granting the variance and that the district court erred in denying appellant's petition for a writ
of mandamus.
Clark County Code Section 29.66.030 grants the planning commission the power
where by reason of exceptional narrowness, shallowness or shape of a specific property
at the time of the enactment of the regulation, or by reason of exceptional topographic
conditions or other extraordinary and exceptional situation or condition of such piece of
property, the strict application of such regulation enacted upon this title would result in
peculiar and exceptional practical difficulties to, or exceptional and undue hardships,
upon, the owner of such property, to authorize upon an application relating to the
property, a variance from such strict application so as to relieve such difficulties or
hardship, provided such relief may be granted without substantial detriment to the
public good and without substantially impairing the intent and purpose of any ordinance
or resolution and under such conditions as such board may deem necessary to assure
that the general purpose and intent of this title will be observed, public safety and
welfare secured and substantial justice done.
Therefore, respondents had the burden to prove that because of the narrowness, shallowness,
topographic conditions or other exceptional conditions of the property, the strict application
of the zoning regulations would result in exceptional practical difficulties to, or exceptional
and undue hardships, upon, the owner of such property.
4
See Constantino v. Zoning
Hearing Bd., 618 A.2d 1193, 1196 (Pa. Commw. Ct. 1992) (concluding that the applicant has
the burden to prove the hardship); Wells & Highway 21 Corp. v. Yates, 897 S.W.2d 56, 62
(Mo. Ct. App. 1995) (concluding that the applicant has the burden of proving the hardship).
Only after respondents met this burden could the Board properly grant the variance.
This court has not previously provided a definition of hardship, but many other courts
and authorities have done so.
__________

4
Respondents argue that at the hearing in front of the Board, appellant did not challenge the variance on the
grounds that no legal hardship or difficulty existed, and instead only complained about the noise, traffic, dust,
and safety impacts of the project. However, respondents had the burden to prove that a hardship or difficulty
existed, and therefore it was not incumbent upon appellant to raise the issue at the hearing.
but many other courts and authorities have done so. See 101A C.J.S. Zoning & Land Planning
242 (1979) (hardship exists where the application of the regulation to property greatly
decreases or practically destroys its value for any permitted use, so as to deprive the owner of
the land of all beneficial use of the land); Wells & Highway 21 Corp., 897 S.W.2d at 62
(hardship requires showing that land cannot yield reasonable return if used only for the
purpose allowed in that zone); Concerned Residents v. Zoning Bd. of App., 634 N.Y.S.2d
825, 826 (App. Div. 1995) (hardship requires dollars and cents proof that property cannot
yield reasonable return as currently zoned); Miller v. Zoning Hearing Bd. of Ross Tp., 647
A.2d 966, 969 (Pa. Commw. Ct. 1994) (hardship requires showing that land is virtually
useless as it is presently zoned); State v. Winnebago County, 540 N.W.2d 6, 9 (Wis. Ct. App.
1995) (hardship is a situation where, in the absence of a variance, no feasible use could be
made of the land). While we are not compelled to employ any of these definitions, we
conclude that respondents have failed to prove, pursuant to any of these definitions, that the
strict application of the zoning regulations would result in a hardship or difficulty which
merited the granting of the variance.
On June 15, 1993, respondents submitted their zone change application, conditional use
permit application, and variance application. The variance application requires the applicant
to answer five questions regarding the variance. The questions, and respondents' answers (in
italics), were as follows:
1. What special circumstances or conditions exist, applicable to the property or
building referred to in the application, which you believe justify a change of restrictions
(exceptional narrowness, shallowness, shape or topography?)
a. Unusual lot shape resulting from railroad and street alignments.
b. Excess dedication required for arterial road (Jones Blvd.).
2. Explain any other special circumstances or hardships (not pertaining to the lot)
which you believe justify a change in restrictions.
Site is near existing industrial uses and abuts railroad and M-1 zoning, making it
unsuitable for residential use.
3. Explain why the granting of this application is necessary for the preservation and
enjoyment of substantial property rights.
Facility will meet all applicable health and safety standards. Traffic impacts will
be mitigated in accordance with traffic study.
4. Explain how the granting of such application will not materially affect the health or
safety of persons residing or working in the neighborhood and will not be materially
detrimental to the public welfare or injurious to property or improvements in the
neighborhood.
This area is master planned for R-U land uses by the recently-adopted Clark
County land use guide for Enterprise.
5. Explain how the granting of this application will not adversely affect the Clark
County Comprehensive Plan.
[No answer given]
Respondents argued to the district court and to this court that their answers on the variance
application provided substantial evidence to prove that a hardship existed to justify the
granting of the variance. However, we conclude that these answers were at most merely
conclusory statements that a hardship or difficulty existed and that respondents presented no
evidence that they were subjected to exceptional practical difficulties or exceptional and
undue hardships which warranted the variance.
[Headnote 5]
Respondents stated that the unusual shape of their property, the excess dedication required
for Jones Boulevard,
5
the abutting railroad tracks on the western boundary, and the industrial
zoning west of the railroad tracks were all special circumstances which they believed made
the property unsuitable for residential use and justified a variance. According to Clark County
Code Section 29.66.030, these reasons qualify as circumstances which may create exceptional
difficulties to or undue hardships upon the property owner. However, these circumstances do
not ipso facto create a difficulty or hardship which warrants a variance, and it is incumbent
upon the property owner to prove what the hardship or difficulty is, i.e., the owner of the
property would be deprived of all beneficial uses of the land if the land was used solely for
the purpose allowed in that zone, the value of the property would decrease significantly if the
property was used solely for the purpose allowed in that zone, a reasonable return on the
property would not be realized unless the variance was granted, the land is virtually useless as
zoned, or no feasible use could be made of the land as zoned.
Respondents had an opportunity to provide proof of a hardship or difficulty in their answer
to question number three on the zoning variance application. The question asked respondents
to explain why the variance was required to preserve the enjoyment of the property rights, in
essence asking why the circumstances provided in the answers to questions one and two
created a hardship or difficulty which required the granting of the variance.
__________

5
Respondents never stated what excess dedication means.
of the property rights, in essence asking why the circumstances provided in the answers to
questions one and two created a hardship or difficulty which required the granting of the
variance. Respondents' answer stated only that the facility would meet health and safety
standards and that traffic impacts would be mitigated. This answer was non-responsive and
failed to provide any evidence that a hardship or difficulty existed which warranted the
granting of the variance which would allow manufacturing in a residential district.
Respondents never explained why the circumstances listed in the answers to questions one
and two made the property unsuitable for its zoned residential use and therefore valueless
without a variance, especially in light of the fact that people owned residences in the
immediate surrounding area. Moreover, respondents had already requested a conditional use
permit to maintain a sand and gravel pit on the property which would have provided
respondents with a conditionally permitted, non-residential use of the property. Respondents
never alleged or argued that they could not receive a reasonable return from the operation of
the sand and gravel pit absent the variance permitting the batch plant.
Additionally, respondents failed to present any evidence at the Board hearing to establish
that the circumstances claimed by them created a hardship or difficulty which warranted the
granting of the variance. Respondents presented the Board with five different reports
addressing environmental, geological, economic, noise, and traffic impacts of the project.
Respondents stressed to the Board that the project would have minimal noise impact, that
traffic and safety concerns would be mitigated, and that the project would be a boon to the
economy, creating both jobs and significant tax revenues. However, at no time did the Board
inquire about or did respondents address the issue of why the lot shape, abutting railroad
tracks, nearby industrial zoning, or dedications required on Jones Boulevard created a
hardship or difficulty which warranted the variance in conjunction with the conditional use
permit. In fact, the only two times that hardship or difficulty was even mentioned, the
conclusion was that none existed: the opinion of the Board's staff was that no legal hardship
existed (although the staff proclaimed that they were not concerned about that fact and
recommended granting the variance), and one county commissioner stated that he believed no
hardship existed.
Based on the variance application and respondents' testimony to the Board, it is clear that
respondents provided no evidence to prove that the unusual lot shape, abutting railroad tracks,
nearby manufacturing zoning, and dedications on Jones Boulevard created a hardship or
difficulty which warranted the Board to grant a variance allowing respondents to construct
and operate a concreteJasphalt batch plant on property zoned R-U.
variance allowing respondents to construct and operate a concrete/asphalt batch plant on
property zoned R-U. Therefore, the district court erred in concluding that respondents had
provided the Board with substantial evidence that a hardship existed and in subsequently
denying appellant's petition for a writ of mandamus.
The concrete/asphalt batch plant was not incidental to the sand and gravel pit, and
additionally the sand and gravel pit was a conditional use not subject to the provisions
allowing accessory uses, buildings and structures
[Headnote 6]
Respondents also argued that the concrete/asphalt batch plant was incidental to the sand
and gravel business and should therefore be permitted. Respondents' argument fails for two
reasons. First, the batch plant was not incidental to the sand and gravel pit. Incident is
defined as something dependent upon, appertaining or subordinate to, or accompanying
something else of greater or principal importance, something arising or resulting from
something else of greater or principal importance. Black's Law Dictionary 762 (6th ed.
1990).
Other courts have determined that a concrete/asphalt batch plant is not incidental to a sand
and gravel pit for several reasons. First, the concrete/asphalt plant can operate in any location
and need not be adjacent to the sand and gravel pit. NBZ Enterprises v. City of Shakopee, 489
N.W.2d 531, 536 (Minn. Ct. App. 1992). Additionally, the concrete/asphalt batch plant does
not serve the gravel pit by assisting or aiding in the excavation of the gravel, and is required
only to mix necessary components to create a new product, either concrete or asphalt. Id.
Finally, the addition of the concrete/asphalt batch plant might expand respondents' business
so extensively that respondents would be operating a new business. Medusa Aggregates Co.
v. City of Columbia, 882 S.W.2d 223, 225 (Mo. Ct. App. 1994). Therefore, a situation could
arise whereby the concrete/asphalt batch plant would not be subordinate to the sand and
gravel pit, but just the opposite would occur; the sand and gravel pit would be subordinate to
the concrete/asphalt batch plant and would operate to the concrete/asphalt batch plant's
benefit, not vice versa. Id. Such a situation would make a mockery of the master plan and
therefore will not be permitted.
[Headnote 7]
Second, the zoning regulations governing permitted uses of land in an R-U (Rural Open)
district states that accessory uses, buildings and structures, if clearly incidental to the
permitted use and placed upon the same lot with a permitted use, will also be permitted.
buildings and structures, if clearly incidental to the permitted use and placed upon the same
lot with a permitted use, will also be permitted. Clark County Code 29.06.020 (B).
However, sand and gravel pits are conditional uses requiring a permit and are not permitted
uses. Clark County Code 29.06.030 (C). The plain and ordinary meaning of Clark County
Code Section 29.06.020 (B) is that it applies only to accessory uses, building and structures
incidental to a permitted use and does not apply to accessory uses, buildings or structures
incidental to a conditional use requiring a permit. See NBZ Enterprises v. City of Shakopee,
489 N.W.2d 531, 536 (Minn. Ct. App. 1992); Prior Lake Aggregates, Inc. v. City of Savage,
349 N.W.2d 575, 578-79 (Minn. Ct. App. 1984). Therefore, even if the batch plant was
clearly incidental to the sand and gravel pit, the concrete/asphalt batch plant would still be
disallowed because the sand and gravel pit is not a permitted use in an area zoned R-U.
Respondents' strategy was an improper attempt to circumvent the master plan, and the
Board's decision to grant the variance did not accord substantial deference to the master
plan
[Headnote 8]
NRS 278.250 governs many aspects of planning and zoning and provides not only for the
adoption of master plans, but also for zoning in accordance with an adopted master plan. The
master plan of a community is a standard that commands deference and a presumption of
applicability, but should not be viewed as a legislative straightjacket from which no leave
can be taken. Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723
(1989).
[Headnote 9]
The master plan provided that the subject property was originally zoned R-E (Rural
Estates), which permitted low density residential use and the raising of crops and of a limited
number of animals for noncommercial purposes. Clark County Code 29.10.010.
Manufacturing is not permitted either expressly or by virtue of a conditional use permit in a
district zoned R-E or R-U, and in order to conduct manufacturing (and more specifically
operate a concrete/asphalt batch plant) on respondents' property, the property would have to
be rezoned as M-2 (Industrial Without Dwellings), which expressly permits mixing plants for
concrete and asphalt. Clark County Code 29.42.010 (50). Union Pacific had twice
previously tried to get the subject property rezoned for manufacturing and had twice failed. In
1989, Union Pacific requested that the property be rezoned as M-2, and the request was
denied. In 1991, Union Pacific requested that the property be rezoned as M-1 {Light
Manufacturing) and M-D {Designed Manufacturing), and that request was also denied.6
rezoned as M-1 (Light Manufacturing) and M-D (Designed Manufacturing), and that request
was also denied.
6

Apparently, due to their failures to have the property rezoned for manufacturing uses,
respondents chose the present course of applying for a down-zone, requesting a conditional
use permit for a sand and gravel pit, and also requesting a variance for the batch plants. The
district judge sanctioned this conduct, stating that
It may have been sleight of hand, but it's not unlawful. You could argue that it's good
lawyering and I think we can ascribe to that, but it was done in a clever manner. It was
successful and, as far as I can determine, is not illegal.
However, we conclude that the course chosen by respondents was an improper attempt to
circumvent the master plan and that the Board's decision to grant the variance completely
ignored the master plan, which expressly prohibited manufacturing on respondents' land.
Taken individually, the three requests made by the respondents were all minor changes
which likely did not amount to a non-conforming use of the property. However, taken as a
whole, the three requests amounted to a non-conforming use of the property because their
effect would have been to allow manufacturing in a district which expressly forbids
manufacturing. Because respondents' goal was to manufacture concrete and/or asphalt on the
property, they should have requested that the property be rezoned to allow that type of
manufacturing.
7

Additionally, by evaluating respondents' three requests separately and by permitting the
manufacturing use, the Board completely ignored the master plan. The Board permitted
respondents to do indirectly what they could not accomplish directly, i.e., manufacture
concrete and asphalt in a zoning district which expressly forbids manufacturing.
__________

6
Both times manufacturing zoning was requested, Union Pacific proceeded on its own because at those times
Inland Properties, Inc. held no ownership interest in the property.

7
An application for rezoning requires the submission of nine separate reports addressing the impact of the
rezoning on the surrounding area. Clark County Code 29.68.025 (E). Additionally, non-conforming use
requests, i.e., zone changes, are required to have at least one public hearing before the Planning Commission and
at least one public hearing before the Board of County Commissioners. Clark County Code 29.68.030. By
cloaking their request for a zone change as one for a variance in conjunction with a conditional use, respondents
received three major benefits. First, they were not required to submit the nine impact reports to the Planning
Commission and the Board of County Commissioners, thereby lessening their burden of production. Second,
they avoided having to request manufacturing zoning from the Planning Commission, which had twice before
denied respondents' same request. Third, they avoided the public hearing in front of the Planning Commission
which would have exposed their plan to greater scrutiny both by the Planning Commission and by citizens.
to do indirectly what they could not accomplish directly, i.e., manufacture concrete and
asphalt in a zoning district which expressly forbids manufacturing. Such a decision amounts
to spot zoning and provides no deference to the master plan in violation of this court's ruling
in Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989).
Therefore, we conclude that the Board erred in granting the variance and that the Board's
decision must be overturned.
Award of Attorney's Fees
[Headnote 10]
Appellant argues that it is entitled to attorney's fees pursuant to NRS 278.0233
8
because it
had an interest in real property which might be damaged by the Board's actions. However, the
statute indicates that relief in the form of actual damages is available only to the party which
submitted the application requesting an improvement or change of use on its property and
only after the responsible agency acts arbitrarily in imposing some type of restriction on the
use of the property in excess of the agency's statutorily derived powers. The statute does not
provide for relief in the form of actual damages for a party challenging the application, if
indeed the agency acted arbitrarily in granting the application. Therefore, appellant is not
entitled to attorney's fees pursuant to NRS 278.0233.
CONCLUSION
We conclude that the district court erred in denying appellant's petition for a writ of
mandamus for three reasons. First, respondents did not provide substantial evidence to the
Board that a hardship or difficulty existed which justified the granting of a variance to allow
the concrete/asphalt batch plant. Second, the Clark County Code does not permit accessory
uses, buildings, and structures incidental to a conditional use in areas zoned R-U.
__________

8
NRS 278.0233 states:
Any person who has a right, title, or interest in real property, and who has filed with the appropriate state
or local agency an application for a permit which is required by statute or an ordinance, resolution or
regulation adopted pursuant to NRS 278.010 to 278.630, inclusive, before that person may improve,
convey or otherwise put the property to use, may bring an action against the agency to recover actual
damages caused by:
(a) Any final action, decision or order of the agency which imposes requirements, limitations, or
conditions upon the use of the property in excess of those authorized by ordinances, resolutions, or
regulations adopted pursuant to NRS 278.010 to 278.630, inclusive, in effect on the date the application
was filed and which:
(1) Is arbitrary or capricious; or
(2) Is unlawful or exceeds lawful authority.
Third, the Board of County Commissioners erred by not providing deference to the master
plan. Therefore, the order of the district court denying appellant's petition for a writ of
mandamus is reversed, and this matter is remanded to the district court with instructions to
reverse the Board's decision to grant the variance. We also conclude that appellant is not
entitled to attorney's fees.
Shearing, J., with whom Springer, J., joins, dissenting:
I would affirm the judgment of the district court denying the petition for writ of mandamus
and upholding the decision of the Clark County Board of Commissioners.
In 1968, this court stated:
The days are fast disappearing when the judiciary can look at a zoning ordinance and,
with nearly as much confidence as a professional zoning expert, decide upon the merits
of a zoning plan and its contribution to the health, safety, morals or general welfare of
the community. Courts are becoming increasingly aware that they are neither super
boards of adjustment nor planning commissions of last resort.
Coronet Homes, Inc. v. McKenzie, 84 Nev. 250, 255-56, 439 P.2d 219, 223 (1968). In 1996,
decisions regarding land use are much more complicated in the increasingly urban
environment of Clark County. This court must be very circumspect about interfering with the
decisions made by those who are selected by the people of Clark County to make those
decisions.
I agree with the majority that a grant or denial of a variance is a discretionary act which
this court must uphold if the discretion is not abused. Nevada Contractors v. Washoe County,
106 Nev. 310, 314, 792 P.2d 31, 33 (1990). I believe that there was substantial evidence
presented to support the grant of the variance under Clark County Code Section 29.66.030
and that the Clark County Board of Commissioners did not abuse its discretion.
Section 29.66.030 authorizes the Commission to grant a variance to relieve a property
owner from the zoning regulation when such regulation . . . would result in peculiar and
exceptional practical difficulties to, or exceptional and undue hardships, upon, the owner of
such property. The plot plans showing the long, narrow shape of the property abutting the
railroad tracks and the photographs showing the railroad tracks, the tower, the gravel pit and
the existing structures on the other side of the railroad tracks, together, make it clear that the
property is not suitable for residential zoning. The photographs alone testify to the
exceptional practical difficulties, and the exceptional and undue hardships," in requiring
the owner to keep the land for residential use.
undue hardships, in requiring the owner to keep the land for residential use.
The complainants did not even raise the issue of lack of difficulty or hardship. They raised
numerous other objections which the majority of the Commissioners obviously thought had
been adequately addressed by the property owner and by the conditions to the variance
imposed by the Commission. I do not believe that this court can conclude as a matter of law
that the Clark County Board of Commissioners abused its discretion.
I disagree most emphatically that any adverse inferences should be drawn from the fact
that M-2 zoning for the property had previously been turned down or that three separate
requests led to the grant of the variance. Changing an R-l zoning to a zoning permitting
manufacturing is quite different from granting a variance on a particular parcel that has
unique problems. Granting an M-2 zoning could lead to a change in the entire character of the
area, while a variance on a parcel is unlikely to do so.
____________
112 Nev. 663, 663 (1996) Breliant v. Preferred Equities Corp.
WILLIAM BRELIANT, Trustee of the Breliant Trust, and ROBERTA SILVERMAN,
Appellants, v. PREFERRED EQUITIES CORPORATION, a Nevada Corporation,
Respondent.
No. 26748
May 30, 1996 918 P.2d 314
Appeal from a judgment in favor of respondent in an action to quiet title to real property.
Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Property owner sought declaratory relief against adjoining property owner to abrogate
easement giving adjoining property owner right to use parking spaces on property owner's
land. After remand, 109 Nev. 842, 858 P.2d 1258 (1993), the district court entered judgment
in favor of adjoining property owner, and property owner appealed. The supreme court held
that: (1) joining of dominant and servient properties in same ownership extinguished
easement on servient tenement; (2) easement was not revived or recreated by implication or
otherwise; and (3) property owner was not equitably estopped from challenging existence of
easement.
Jones, Jones, Close & Brown and Gary T. Foremaster, Las Vegas, for Appellants.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Respondent.
Whether there was unity of interest in dominant and servient tenements, so as to extinguish easement, was not law of case on
remand from determination that property owner pleaded sufficient facts to state claim based on extinguishment.
Principle or rule of law becomes law of case only if it is necessary to appellate court's decision.
In deciding whether to dismiss complaint for failure to state claim, all allegations pleaded must be accepted as true. NRCP
12(b)(5).
4. Estoppel.
In suit over extinguishment of easement, adjoining property owner's argument in unsuccessful pre-trial motion that common
ownership of servient tenement was undisputed did not judicially estop it from contesting common ownership on appeal.
5. Estoppel.
Under doctrine of judicial estoppel party may be estopped merely by fact of having alleged or admitted in his pleadings in former
proceedings contrary of assertion sought to be made.
Where trial court, sitting without jury, makes determination predicated upon conflicting evidence, that determination will not be
disturbed on appeal where supported by substantial evidence.
Substantial evidence, for purposes of supporting determination of trial court, sitting without jury, predicated upon conflicting
evidence, is that which reasonable mind might accept as adequate to support conclusion.
8. Quieting Title.
In quiet title action, burden of proof rests with plaintiff to prove good title in himself.
9. Quieting Title.
In quiet title action, there is presumption in favor of record title-holder.
10. Easements; Husband and Wife.
Recitation in deed that property was transferred to each married men as their sole and separate property was insufficient to
establish that such property was not held as community property with transferees' spouses, and therefore joining ownership of such
property with other community property extinguished easement on servient tenement.
Properties acquired during marriage are presumed to be community property, and presumption can only be overcome by clear and
certain proof.
12. Easements.
Following ownership of dominant and servient tenement by same persons and consequent extinguishment of easement, recitation
of same legal description of dominant tenement, including description of easement, in document severing
properties and document subsequently transferring dominant tenement was insufficient to revive or
recreate easement by implication or otherwise, where there was no language reviving or recreating
easement and easement was not necessary to comply with zoning ordinances.
legal description of dominant tenement, including description of easement, in document severing properties and document
subsequently transferring dominant tenement was insufficient to revive or recreate easement by implication or otherwise, where there
was no language reviving or recreating easement and easement was not necessary to comply with zoning ordinances.
13. Easements.
When easement has been extinguished by joining of dominant and servient tenements, easement does not come into existence
again merely by severance of united estates; nevertheless, upon severance, newly created easement authorizing use corresponding use
authorized by extinguished easement may arise.
14. Easements.
In deciding whether implied easement by necessity has been established, court looks to conditions at time of severance.
15. Estoppel.
Property owner was unaware that easement burdening his property had been extinguished, and therefore his unsuccessful attempt
to negotiate arrangement regarding parking spaces covered by easement did not equitably estop him from challenging existence of
easement.
16. Estoppel.
Equitable estoppel operates to prevent party from asserting legal rights that, in equity and good conscience, they should not be
allowed to assert because of their conduct.
17. Estoppel.
Burden of proof on claim of equitable estoppel is upon party asserting estoppel.
OPINION
Per Curiam:
This case arises out of a dispute between the owners of adjoining parcels of land (referred to respectively as the Breliant Property and
the PEC Property). Appellants (referred to collectively as Breliant) brought a declaratory relief action against respondent Preferred
Equities Corp. (PEC) in an attempt to abrogate an easement of record giving the owner of the PEC Property the use of thirty unspecified
parking spaces on the Breliant Property. Because we conclude that the district court erred in refusing to declare the easement extinguished,
we reverse the order of the district court and remand with instructions to enter judgment in favor of Breliant.
FACTS
The Breliant Property is a tract of land in Las Vegas upon which is situated an apartment complex. The PEC Property is a contiguous
tract of land upon which is situated a commercial office complex consisting of four buildings. Some time prior to December 7,
1976before either Breliant or PEC acquired their respective propertiesan express easement was created entitling the owner of
what is now the PEC Property to the use of thirty unspecified parking spaces on what is now the Breliant
Property.
the owner of what is now the PEC Property to the use of thirty unspecified parking spaces on
what is now the Breliant Property. This easement is referred to as the First Easement. The
First Easement thus benefited what is now the PEC Property (the dominant tenement) and
burdened the Breliant Property (the servient tenement). Although the First Easement is not
mentioned in Breliant's deed, the First Easement is recited in PEC's deed and recorded in
Breliant's chain of title.
On December 7, 1976, again before Breliant or PEC acquired their respective properties,
the Breliant Property was conveyed to Joseph R. Laird, Jr. and Kenneth J. Fisher, each
married men as their sole and separate property. On March 2, 1977, the PEC Property,
including the First Easement, was conveyed to Joseph R. Laird, Jr. and Kenneth J. Fisher.
By quitclaim deed dated April 4, 1979, Joseph R. Laird and Patricia J. Laird, husband and
wife, released their interest in the Breliant Property to Kenneth J. Fisher (Fisher). In
connection with the conveyance of the Breliant Property, but in a separate document dated
April 1, 1979, Fisher granted to Joseph R. Laird, Jr. (Laird) an easement entitling the owner
of the PEC Property to the use, in common with owner of the Breliant Property, of all exterior
parking between the office building on the PEC Property and the apartment building on the
Breliant Property. This easement is referred to as the Second Easement. Finally, in a deed
dated May 1, 1979, Fisher quitclaimed his interest in the PEC Property to Laird. All three
instruments were recorded on May 3, 1979.
After Breliant acquired the Breliant Property in 1988, PEC continued to assert that it was
entitled to the thirty unspecified parking spaces under the First Easement, in addition to the
parking spaces included in the Second Easement. Breliant, believing the First Easement to
still be in existence, approached PEC in an unsuccessful attempt to negotiate some
arrangement with regard to the thirty unspecified parking spaces. However, after seeking
the advice of legal counsel, Breliant took the position that the First Easement had been
extinguished by operation of law when the dominant and servient tenements were both held
by Laird and Fisher. Breliant subsequently initiated the present litigation in an attempt to
remove the cloud created by the continuing reference to the First Easement in PEC's deed.
In an earlier appeal, this court reversed an order of the district court dismissing Breliant's
complaint under NRCP 12(b)(5) because the district court erred in declining to consider the
merger and termination of the First Easement.
1
Following remand by this court, and a
bench trial, the district court concluded that {1) due to community property
presumptions, the conveyance of the Breliant Property to Laird and Fisher also created an
ownership interest in the property in the men's wives, but the conveyance of the PEC
Property did not; {2) because the dominant and servient tenements were therefore never
in common ownership, the doctrine of extinguishment through merger was not applicable
to the First Easement; {3) even if the merger doctrine might otherwise be applicable, the
First Easement was "re-created andJor revived" upon the severance of the common
ownership; {4) the First Easement is "necessary to the proper and reasonable use and
enjoyment of the PEC Property;" and {5) because of his conduct, Breliant is estopped from
claiming that the First Easement has been extinguished.
__________

1
See Breliant v. Preferred Equities, 109 Nev. 842, 847, 858 P.2d 1258, 1261 (1993) (reversal of order granting
motion to dismiss for failure to state a claim upon which relief could be granted).
remand by this court, and a bench trial, the district court concluded that (1) due to community
property presumptions, the conveyance of the Breliant Property to Laird and Fisher also
created an ownership interest in the property in the men's wives, but the conveyance of the
PEC Property did not; (2) because the dominant and servient tenements were therefore never
in common ownership, the doctrine of extinguishment through merger was not applicable to
the First Easement; (3) even if the merger doctrine might otherwise be applicable, the First
Easement was re-created and/or revived upon the severance of the common ownership; (4)
the First Easement is necessary to the proper and reasonable use and enjoyment of the PEC
Property; and (5) because of his conduct, Breliant is estopped from claiming that the First
Easement has been extinguished. Thus, the district court entered judgment in favor of PEC.
Breliant now appeals the district court's entry of judgment.
DISCUSSION
The Law of the Case
[Headnote 1]
Breliant contends that the district court failed to follow the law of the case as set forth in
the prior appeal when the district court considered whether the Breliant and PEC properties
were ever held in common ownership.
2
We disagree.
[Headnotes 2, 3]
A principle or rule of law becomes the law of the case only if it is necessary to the
appellate court's decision. Cord v. Cord, 98 Nev. 210, 213, 644 P.2d 1026, 1028 (1982); see
also Sherman Gardens Co. v. Longley, 87 Nev. 558, 565, 491 P.2d 48, 53 (1971) (an issue
becomes the law of the case only if presented, considered, and deliberately decided).
However, in deciding whether to dismiss a complaint pursuant to NRCP 12(b)(5), [a]ll
allegations pled must be accepted as true. Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d
560, 563 (1993). As Bergmann makes clear, the dispositive resolution of questions of fact
is not a part of a motion to dismiss on the pleadings.
__________

2
In Breliant, we stated:
When one party acquires present possessory fee simple title to both the servient and dominant tenements,
the easement merges into the fee of the servient tenement and is terminated. Therefore, accepting as true
the facts as alleged in the amended complaint, and agreed to by the parties, the First Easement was
extinguished on March 2, 1977, when Laird and Fisher, who owned what is now the Breliant Property,
also acquired what is now the PEC property. Laird and Fisher held both the dominant (the PEC Property)
and the servient (the Breliant Property) tenements in common ownership, and thus the First Easement
merged into the fee of the Breliant Property and terminated.
109 Nev. at 846-47, 858 P.2d at 1261 (citation omitted) (emphasis added). See also id. at 843, 858 P.2d at 1259
([t]he facts as alleged in appellants complaint are undisputed).
Bergmann makes clear, the dispositive resolution of questions of fact is not a part of a motion
to dismiss on the pleadings. Consequently, insofar as Breliant may have purported to reach a
dispositive conclusion on the factual issue of unity of ownership, such a conclusion was
unnecessary in light of the procedural posture of the appeal.
We therefore hold that unity of ownership did not become the law of the case. Our holding
in Breliant was simply that (1) if there is unity of interest (i.e., common ownership) in the two
properties, then the First Easement was extinguished, and (2) Breliant pled sufficient facts to
state a claim based on extinguishment. See 109 Nev. at 847, 858 P.2d at 1261. It follows that,
on remand, the district courtas the trier of fact and free of the procedural constraints
accompanying the motion to dismissdid not act in excess of its jurisdiction in considering
whether in fact there was ever common ownership of the Breliant and PEC properties.
Judicial Estoppel
[Headnote 4]
Breliant contends that the district court erred in refusing to preclude PEC from denying
unity of interest at trial under the doctrine of judicial estoppel. Breliant points to various
pretrial motions in which PEC listed common ownership of the Breliant and PEC properties
as either an undisputed or agreed to fact. Apparently, the first indication that PEC would
be disputing unity of ownership appears in PEC's trial brief filed on November 8, 1994six
days before the post-remand trial. In response, PEC argues that the district court did not err
because PEC's previous representations did not inure to PEC's benefit. We agree.
[Headnote 5]
Under the doctrine of judicial estoppel a party may be estopped merely by the fact of
having alleged or admitted in his pleadings in a former proceeding the contrary of the
assertion sought to be made.' Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 549, 396 P.2d
850, 854 (1964) (quoting 31 C.J.S. Estoppel 121 at 649). In Sterling Builders, Fuhrman
sued Sterling Builders and another defendant as co-partners doing business as Sterling
Village Market. Id. at 544, 396 P.2d at 851. Sterling Builders' defense was that it was not a
partner, but merely a creditor. Id. However, in a previous action, Sterling Builders had
claimed that it was a partner in Sterling Village Market, thus enabling it to secure the
appointment of a receiver for Sterling Village Market and share in the eventual sale of the
market's assets. Id. at 549, 396 P.2d at 854. The district court ruled that Sterling Builders
was, by its actions in the receivership proceeding, judicially estopped from denying its
partnership relationship in the later proceeding. Id. at 550, 396 P.2d at S54.
Sterling Builders was, by its actions in the receivership proceeding, judicially estopped from
denying its partnership relationship in the later proceeding. Id. at 550, 396 P.2d at 854. This
court affirmed, concluding that Sterling Builders was judicially estopped from advancing in
the later proceeding the inconsistent claim that it was not a partner in Sterling Village Market
because it had initiat[ed], prosecut[ed], and effectuat[ed] the results of the receivership to its
own benefit. Id. at 549, 396 P.2d at 854.
In the present case, PEC ultimately did not prevail on its pretrial motions. Consequently,
we conclude that PEC did not benefit by arguing previously that common ownership was
undisputed. We note that some courts have held that a favorable judgment is not always a
necessary element of judicial estoppel, so long as the party against whom the estoppel is
sought has been successful in arguing its original position against the party asserting the
estoppel. See, e.g., DeMers v. Roncor, Inc., 814 P.2d 999 (Mont. 1991). Nevertheless, we
conclude that the inconsistencies in PEC's pre-trial arguments represent a legitimate
abandonment of a clearly unsupportable theory of the case, rather than an attempt by PEC to
have it both ways. Under the circumstances, we hold that the district court's refusal to estop
PEC to deny unity of ownership was not a clear abuse of discretion.
The First Easement
Breliant contends that the district court's conclusion that the First Easement was not
extinguished and, if it was, then it was re-created and/or revived, is not supported by
substantial evidence adduced at trial. We agree.
[Headnotes 6, 7]
Where the trial court, sitting without a jury, makes a determination predicated upon
conflicting evidence, that determination will not be disturbed on appeal where supported by
substantial evidence. Trident Construction v. West Electric, 105 Nev. 423, 427, 776 P.2d
1239, 1241 (1989). Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion. State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608,
729 P.2d 497, 498 (1986).
[Headnotes 8, 9]
In a quiet title action, the burden of proof rests with the plaintiff to prove good title in
himself. See, e.g., Ernie v. Trinity Lutheran Church, 336 P.2d 525 (Cal. 1959); Olsen v. Park
Daughters Investment Company, 511 P.2d 145, 146 (Utah 1973). Moreover, there is a
presumption in favor of the record title-holder. Cf. Biasi v. Leavitt, 101 Nev. 96, 89-90, 692
P.2d 1301, 1304 {19S5) {adverse possession claimant has the burden of establishing
claim "by clear and competent proof in order to overcome the presumption that
possession of the land is under the
1304 (1985) (adverse possession claimant has the burden of establishing claim by clear and
competent proof in order to overcome the presumption that possession of the land is under
the regular title).
1. Extinguishment of the First Easement through Merger
[Headnote 10]
Breliant contends that the district court's finding that the two properties were never held in
common ownership is not supported by substantial evidence because the district court
misapplied community property presumptions to the facts of this case. We agree.
[Headnote 11]
Properties acquired during marriage are presumed to be community property, and the
presumption can only be overcome by clear and certain proof. Burdick v. Pope, 90 Nev. 28,
29, 518 P.2d 146, 146-47 (1974); see also Forrest v. Forrest, 99 Nev. 602, 668 P.2d 275
(1983). In the present case, the Breliant Property was conveyed to Laird and Fisher, each
married men as their sole and separate property, while the PEC Property was conveyed
simply to Laird and Fisher. We conclude that the district court properly found that the
conveyance of the PEC Property to Laird and Fisher created a vested community interest in
the property in their wives. However, we also conclude that, regardless of the separate
property language in the Breliant Property deed, there was insufficient proof to rebut the
general presumption in favor of community property in regard to the Breliant property.
The only evidence in the record to support PEC's contention that the Breliant Property was
Laird and Fisher's separate property is the recitation in the deed that it was conveyed to them
as their sole and separate property. As Breliant points out, however, this court has
specifically held that the phrase sole and separate property in a deed, standing alone,
without supporting evidence, is not the clear and certain proof required to overcome the
presumption. Burdick, 90 Nev. at 30, 518 P.2d at 146-47. Because PEC was apparently
unable to trace the source of the funds Laird and Fisher used to purchase the Breliant Property
to a separate property source, we conclude that the district court's conclusion that the Breliant
property was Laird and Fisher's separate property is not supported by substantial evidence.
We hold, accordingly, that the district court erred in concluding that there did not exist a unity
of interest sufficient to extinguish the First Easement.
2. Revival or Re-creation of the First Easement
[Headnote 12]
Breliant contends that the district court erred in concluding that, as a result of the
circumstances surrounding the severance of the two properties, the First Easement was
re-created and/or revived either expressly or by implication.
[Headnote 13]
When an easement has been extinguished by the joining of the dominant and servient
tenements, the easement does not come into existence again merely by severance of the
united estates; nevertheless, upon severance, a newly created easement authorizing a use
corresponding to the use authorized by the extinguished easement may arise. Restatement of
Property 497 cmt. h (1944). According to the Restatement, [s]uch a new creation may
result . . . from an express stipulation in the conveyance by which the severance is made or
from the implications of the circumstances of the severance. Id.
In the present case, there is no language in any of the relevant instruments expressly
reviving or re-creating the First Easement (or a corresponding easement for thirty unspecified
parking spaces). However, both the quitclaim deed releasing Fisher's interest in the PEC
Property and the deed granting the second easement recite the same legal description of the
PEC Property as was contained in the deed by which Laird and Fisher had originally acquired
the PEC Propertyincluding the description of the First Easement.
We conclude that the mere reference to an extinguished easement in a deed is insufficient,
as a matter of law, to revive the easement. See Capital Candy Co. v. Savard, 369 A.2d 1363
(Vt. 1976) ([T]he mere reference in a deed to an earlier right-of-way which was extinguished
by law does not constitute the re-creation of that right.). Accordingly, we hold that the
reference to the extinguished easement in the deeds effecting the severance of the two
propertiesand, consequently, in the deed by which PEC presently holds title to the PEC
Propertyconveyed a nonexistent easement and thus provides merely color of title in the
First Easement.
3

__________

3
We recognize that [s]ometimes language not in itself appropriate to create an easement is found, when
construed in the light of the circumstances under which the conveyance containing the language was made,
competent to do so. Restatement of Property, 474, cmt. c. However, we can discern no such circumstances in
this case. In fact, a close reading of the deed granting the Second Easement provides further evidence that
revival of the First Easement was not intended by Laird and Fisher. Although the grant of the Second Easement
incorporates, by reference, a description of the PEC
[Headnote 14]
We also conclude that the district court's conclusion that the First Easement was re-created
by implication is not supported by the evidence. This court has held that an easement may be
revived or re-created after severance, by implication, where there is apparent and continuous
use and the asserted easement is necessary to the proper or reasonable use of the dominant
tenement. Jackson v. Nash, 109 Nev. 1202, 1213, 866 P.2d 262, 270 (1993). In deciding
whether an implied easement by necessity has been established, the court looks to conditions
at the time of severance. See id.
As a preliminary matter, we conclude that, because Breliant has established that the First
Easement was extinguished and that the reference to the First Easement in PEC's deed
provides PEC mere color of title, Breliant, as the holder of good title in the Breliant Property,
is entitled to the presumption in favor of the record title holder. See Biasi v. Leavitt, 101 Nev.
96, 692 P.2d 1301 (1985). Consequently, we conclude that PEC, as the adverse claimant,
must bear the burden of proving better title in itself through an implied revival or re-creation
of the First Easement.
Because neither Laird nor Fisher, nor anyone else having personal knowledge of the
conditions at the time of severance, testified at trial, the only evidence of an implied easement
by necessity is that which can be gleaned from the recital of the extinguished First Easement
in the quitclaim deed to Fisher, the concomitant grant of the Second Easement, and the
existence of the office complex itself. We conclude that this is weak evidence, at best, of an
apparent and continuous use at the time of severance. More importantly, however, we
conclude that there is nothing in this evidence to support a finding of necessity. PEC argues
that the parking spaces provided by the First, as well as the Second, Easement were necessary
to the compliance of the PEC Property with local zoning ordinances regarding the number of
parking spaces for commercial buildings. See Clark County Code 29.44.080 (as amended
January 13, 1978). The district court based its finding of easement by implication, at least in
part, on this argument. We note that the parking spaces provided by the Second Easement
alone were sufficient to bring the PEC Property into compliance with the pre-1978 zoning
requirements, which would have continued to apply to the PEC Property.
4

__________
Property that includes the First Easement, Fisher is specifically described in the grant itself as the owner of the
Breliant property and all outside parking thereon (emphasis added).

4
See Clark County Code 29.44.080 (parking requirements are only required for new construction,
reconstruction, enlargement, and major
PEC, nevertheless, argues that the additional parking spaces were necessary so that PEC
could comply with the post-1978 zoning requirement should future events make
reconstruction, enlargement, or major repairs necessary. Clearly, the flexibility to deal with
future zoning-related contingencies, which a legal surplusage of parking spaces would have
provided, would have been a benefit to the owner of the PEC Property. However, we disagree
with the contention that a potential future need for more parking created a necessity for
unneeded parking at the time of severance. Having thoroughly reviewed the record, and
finding no other evidence of necessity, we conclude that the district court's finding that the
First Easement was revived or re-created by implication is not supported by substantial
evidence.
Because we find insufficient evidence in the record to support a conclusion that an
easement for thirty parking spaces was re-created at the time of severance, either expressly or
by implication, we conclude that the district court erred in concluding that the First Easement
is still in existence.
Equitable Estoppel
[Headnote 15]
Finally, Breliant contends that the district court abused its discretion by estopping Breliant
from asserting any claim seeking to eliminate the First Easement. We agree.
It is undisputed that Mr. Breliant believed the First Easement to be still in effect at the time
he purchased the Breliant Property and that he approached PEC in an unsuccessful attempt to
negotiate an arrangement with respect to the thirty unspecified parking spaces covered by
the First Easement. In fact, Mr. Breliant testified that he did not become aware of the doctrine
of extinguishment, nor did he have any indication that it might be applicable to the First
Easement, until it was later brought to his attention by his present counsel.
Equitable estoppel operates to prevent a party from asserting legal rights that, in equity
and good conscience, they should not be allowed to assert because of their conduct. United
Brotherhood v. Dahnke, 102 Nev. 20, 22, 714 P.2d 177, 178-179 (1986). This court has
previously characterized equitable estoppel as generally comprised of the following four
elements:
(1) The party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel had the
right to believe it was so
__________
repairs exceeding fifty percent of the value of the structure); see also Pederson v. County of Ormsby, 86 Nev.
895, 897, 478 P.2d 152, 154 (1970) (zoning ordinances do not limit the right of a land owner to continue the
use of the land in existence at the time of the adoption of the ordinance).
right to believe it was so intended; (3) the party asserting estoppel must be ignorant of
the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
Cheqer, Inv. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982). The
burden of proof is upon the party asserting the estoppel. Nevada State Bank v. Jamison
Partnership, 106 Nev. 792, 799, 801 P.2d 1377, 1382 (1990). Thus, PEC bore the burden of
establishing the necessary elements for an estoppel.
Under the circumstances, we conclude that Mr. Breliant was not apprised of the true
facts when he approached PEC to negotiate an arrangement regarding the First Easement
parking spaces. Moreover, we conclude that there is no evidence in the record to show that
PEC was induced to make a detrimental change of position because of Breliant's
unintentional misrepresentation over the continuing existence of the First Easement. Thus,
PEC has failed to establish the necessary elements for application of the doctrine of equitable
estoppel. We therefore conclude that the district court abused its discretion in estopping
Breliant from challenging the existence of the First Easement.
CONCLUSION
We conclude: (1) the district court did not contravene the law of the case by considering
the extinguishment issue; (2) the district court did not err in refusing to preclude PEC, under
the doctrine of judicial estoppel, from asserting that there was never a unity of interest in the
Breliant and PEC properties; (3) the district court's findings that (a) there was never a unity of
interest sufficient to extinguish the First Easement and (b) even if the First Easement was
extinguished, it was subsequently revived or re-created, either expressly or by implication, are
not supported by substantial evidence; and (4) the district court abused its discretion in
estopping Breliant from challenging the existence of the First Easement. In sum, we conclude
that Breliant has established, as a matter of law, that the First Easement was extinguished and
not subsequently revived or re-created.
We reverse the district court's entry of judgment in favor of PEC and remand this case
with instructions that judgment be entered in favor of Breliant declaring the First Easement
extinguished.
5

__________

5
appeal.
____________
112 Nev. 675, 675 (1996) Phelps v. State Farm Mut. Auto. Ins.
ROYAL PHELPS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Respondent.
No. 26854
May 30, 1996 917 P.2d 944
Appeal from an order of the district court granting summary judgment. Second Judicial
District Court, Washoe County; Mark Handelsman, Judge.
Insured brought action against his uninsured motorist (UM) carrier to recover for total
damages without reduction for workers' compensation, employer's UM coverage, and private
disability insurance. The district court permitted the offsets. Insured appealed. The supreme
court held that: (1) offset provision was enforceable as to worker's compensation and benefits
under employer's UM coverage, and (2) offset provision was unenforceable as to benefits
received from privately purchased disability insurance.
Affirmed in part, reversed in part.
Robison, Belaustegui, Robb and Sharp, Reno, for Appellant.
Georgeson, McQuaid, Thompson & Angaran, Reno, for Respondent.
1. Insurance.
Offset provision reducing uninsured motorist (UM) coverage by any amount paid or payable under workers' compensation,
disability benefits, or similar law was consistent with public policy and enforceable as to amount received by insured from employer's
UM and workmen's compensation coverage, even though insured paid premiums for his UM coverage.
2. Insurance.
Statutory requirement to offer uninsured and underinsured motorist (UM/UIM) coverage does not require insured to purchase it.
NRS 687B.145(2), 690B.020(1).
3. Insurance.
Insured's payment of premiums for uninsured motorist (UM) coverage did not preclude offset reducing carrier's liability by
amounts received by employer's UM coverage and worker's compensation coverage.
4. Insurance.
Requiring uninsured motorist (UM) carrier to pay insured for injuries for which he had been compensated from other insurance
sources would sanction double recovery in contravention of established public policy.
5. Insurance.
Offset provisions which reduce insurance benefits by amount insured receives from other sources are valid.
6. Insurance.
Uninsured motorist (UM) carrier was entitled to offsets reducing liability by amount received under UM coverage of
insured's employer and from worker's compensation.
liability by amount received under UM coverage of insured's employer and from worker's compensation. Policy stated that it applied as
excess to any UM coverage applying to vehicle as primary coverage, and policy expressly stated that payments would be reduced by
amounts paid under worker's compensation law.
7. Insurance.
Benefits under privately purchased disability insurance policy were not paid to insured under worker's compensation, disability
benefits, or similar law within meaning of offset provision reducing uninsured motorist (UM) coverage by amount paid under
worker's compensation, disability benefits, or similar law, and, thus, offset provision was unenforceable as to benefits received by
insured through private disability insurance. Under rule of ejusdem generis, private disability insurance was not a law in same way
that worker's compensation and other statutorily created disability benefits were, and because private disability insurance was not in
same class or nature as those other benefits, it could not be grouped with them.
OPINION
Per Curiam:
Appellant Royal Phelps was injured while driving his employer's vehicle. Phelps made claims against his employer's
underinsured/uninsured motorist (UM) and workmen's compensation coverage and, additionally, against his own private disability
coverage. However, the amount recovered from these sources was insufficient to cover his total damages, and Phelps therefore made a
claim against his own UM coverage held by respondent State Farm Mutual Automobile Insurance Company (State Farm). State Farm only
paid Phelps the difference between his total damages and what he had received from other sources, and Phelps argued that State Farm was
required to pay him for his total damages and was not permitted to offset what he had received from other sources against his UM benefits.
Both parties filed motions for summary judgment, and the district court, concluding that the offsets were permissible, granted State Farm's
motion.
We conclude that the district court's grant of summary judgment was improper with regard to money Phelps received from his privately
purchased disability insurance, but was proper as to all other funds Phelps received.
FACTS
The underlying facts in this case are undisputed. On November 8, 1991, Phelps was in Florida driving a van rented by his employer,
Siemens/Stromberg Corporation, for the purpose of transporting equipment. While stopped at a red light, Phelps was rear-ended by a car
going approximately fifty-five miles per hour and suffered extensive injuries.
and suffered extensive injuries. The car that collided with Phelps was uninsured.
Siemens carried UM coverage on its employees while they were using rented vehicles in
the course and scope of their employment. Phelps made a claim against that coverage and
received the policy limit of $100,000.00. Phelps also made a claim against his employer's
workmen's compensation coverage and received a total of $98,022.40 on the following basis:
$16,542.40 for medical bills, $36,480.00 for past disability benefits, and $45,000.00 for
future disability benefits. Furthermore, Phelps made a claim against his privately purchased
disability insurance and received $13,770.00 from that policy. The total amount paid to
Phelps from these sources for his accident-related injuries and expenses was $211,792.40.
At the time of the accident, Phelps also carried his own UM coverage through State Farm.
Additionally, because he lived with his parents, he was considered a member of the
household and was also covered by his parents' UM coverage with State Farm. State Farm
permitted Phelps to stack all of this UM coverage, making $500,000.00 UM coverage
available to Phelps. All of the State Farm UM policies contained language stating:
6851RR.1 AMENDMENT OF UNINSURED MOTOR VEHICLE
COVERAGE U
. . . .
If There Is Other Coverage
. . . .
2. If the insured sustains bodily injury while occupying a vehicle which is not your
car or a newly acquired car, this coverage applies as excess to any other
uninsured motor vehicle coverage which applies to the vehicle as primary
coverage.
(Original emphasis omitted.) Furthermore, the policies stated:
Limits of Liability
. . . .
2. Any amount payable under this [uninsured motorist] coverage shall be reduced by
any amount paid or payable to the insured under any worker's compensation,
disability benefits, or similar law.
Phelps sought recovery against State Farm for the full amount of his damages, which
totaled $267,583.40, claiming that State Farm was not permitted to offset the amount that he
received from the other sources against the amount which it owed under the UM policy. State
Farm argued that pursuant to the UM policy, it was allowed to offset the full $211,792.40
that Phelps had received from other sources and therefore it was responsible only for the
difference between Phelps' total damages and the amount Phelps received from other
sources, which equaled $55,791.00.
allowed to offset the full $211,792.40 that Phelps had received from other sources and
therefore it was responsible only for the difference between Phelps' total damages and the
amount Phelps received from other sources, which equaled $55,791.00.
The parties entered into a settlement agreement on September 16, 1994, stipulating to the
amount of Phelps' total damages and to the amount that Phelps received from other sources.
Both parties agreed that State Farm owed Phelps $55,791.00 pursuant to Phelps' UM
coverage with State Farm, and State Farm paid that amount to Phelps. However, the parties
could not agree whether State Farm was permitted to offset the $211,792.40 or if State Farm
was also required to pay that amount to Phelps, and they agreed to let a district judge make
that determination. Both parties filed motions for summary judgment, and on January 23,
1995, the district court granted State Farm's motion and denied Phelps' motion, concluding
that the offsets were proper and that State Farm was liable to Phelps only for the $55,791.00
which it had already paid.
Phelps now appeals the district court's order granting State Farm's motion for summary
judgment and denying his motion for summary judgment.
DISCUSSION
We conclude that the district court's grant of summary judgment was proper with regard to
the $198,022.40 Phelps received from his employer's UM and workmen's compensation
coverage, but was improper with regard to the $13,770.00 Phelps received from his own
privately purchased disability insurance coverage.
I. The offset provisions in the UM policy are not contrary to public policy and are
enforceable as to the $198,022.40 Phelps received from his employer's UM and
workmen's compensation coverage
[Headnote 1]
Phelps argues that while this court has determined that offset provisions in UM insurance
policies may reduce the amount of insurance benefits owed under the UM policy by the
amounts received by the insured from other sources (such as an employer's UM and
workmen's compensation coverage), this is not a situation where such offsets are permissible.
State Farm argues that Nevada has long recognized that the purposes of UM coverage are to
make the claimant whole and to avoid double recovery and that these offsets are in accord
with those purposes.
Phelps' first argument is that the provisions in his UM policy which permit the offsets are
contrary to public policy. We disagree.
agree. In Continental Casualty v. Riveras, 107 Nev. 530, 814 P.2d 1015 (1991), Riveras, the
injured party, was injured while driving an Elko County school bus when an oncoming car
forced him off the road. The other driver's insurance was insufficient to cover Riveras'
damages, and because Riveras was insured under the automobile liability policy issued by
Continental to the Elko County School District, he made a claim against the UM coverage
which Elko County had on the bus. The policy contained an offset provision identical to the
one in the instant case which stated that any amount payable under this coverage shall be
reduced by . . . all sums paid or payable under any worker's compensation, disability benefits
or similar law. Id. at 532, 814 P.2d at 1017. Continental used this provision to reduce the
amount it owed Riveras by the amount of SIIS benefits that Riveras received. Riveras claimed
that the offset provision was against public policy because it prevented him from obtaining
insurance benefits for which insurance premiums were paid.
This court stated that the offset provision was not against public policy because (1) the
school district was not required by law to purchase the UM coverage for its employees; and
(2) the UM benefits received by Riveras were commensurate with the type of coverage upon
which the premiums were calculated and paid. Id. at 533, 814 P.2d at 1017.
[Headnote 2]
Based on the language from Riveras, we conclude that the offset provisions in the State
Farm UM policy are not against public policy. While Phelps states that he was required by
law to purchase UM coverage, such is not the case. NRS 687B.145(2) states only that:
Insurance companies transacting motor vehicle insurance in this state must offer, on
a form approved by the commissioner, uninsured and under insured vehicle coverage in
an amount equal to the limits of coverage for bodily injury sold to an insured under a
policy of insurance covering the use of a passenger car. . . .
NRS 690B.020(1) states that uninsured motorist coverage is not required when it is rejected
in writing, on a form furnished by the insurer describing the coverage being rejected, by an
insured named therein . . . . This language clearly demonstrates that while UM coverage
must be offered to the insured, the insured may decline this coverage. Therefore, an insured is
not required by law to purchase UM coverage.
[Headnote 3]
Phelps's second argument is that he is entitled to the proceeds of his UM policy because he
paid the premiums himself.
of his UM policy because he paid the premiums himself. Again, we disagree. In Maxwell v.
Allstate Ins. Co., 102 Nev. 502, 728 P.2d 812 (1986), the automobile insurance policy at
issue was purchased by an individual and contained a medical payments subrogation clause
which this court declared void as against public policy. In so holding, this court stated:
In the context of automobile insurance, we have consistently upheld the fundamental
principle that an insured is entitled to receive the insurance benefits for which he has
paid a premium.
Id. at 506, 728 P.2d at 815 (citations omitted).
Phelps argues that he paid the UM premiums himself and is therefore entitled to receive
the benefits from that policy. This argument, however, is not applicable in this situation
because this court has stated that in Maxwell it was concerned about the injured party
receiving something less than a full recovery. Inasmuch as [the injured party] received a full
and total recovery, Maxwell and its public policy concerns are inapplicable. Ellison v.
C.S.A.A., 106 Nev. 601, 605, 797 P.2d 975, 978 (1990); see also Mid-Century Ins. Co. v.
Daniel, 101 Nev. 433, 705 P.2d 156 (1985) (allowing the insurance company to set off the
injured party's liability benefits against her UM benefits because separate coverage had been
purchased for the same risk and the court wished to preclude double recovery in such
circumstances).
[Headnote 4]
We conclude that in the instant case there is no possibility that enforcement of the offset
provisions will deny Phelps a full recovery for his injuries because Phelps has already been
made whole through a combination of payments. Phelps purchased separate coverage for the
same risk, and requiring State Farm to pay Phelps for injuries which he has already been
compensated for from other insurance sources would sanction a double recovery in
contravention of established Nevada public policy. See Truck Ins. Exchange v. SIIS, 107 Nev.
995, 997, 823 P.2d 279, 281 (1991).
[Headnote 5]
It is well settled in this state that offset provisions in a policy which reduce the insurance
benefits by the amount the insured receives from other sources are valid. Id. (citing
Continental Casualty v. Riveras, 107 Nev. 530, 534, 814 P.2d 1015, 1018 (1991)).
Additionally, [t]he goal of UM coverage is to make the claimant whole. The offset clause
prevents a double recovery by the claimant. Id. at 997, 823 P.2d at 281. We conclude that
Truck Ins. Exchange is directly on point and permits State Farm to reduce the amount it
owes Phelps by the amount that Phelps collected from other sources, if other conditions
are satisfied.
to reduce the amount it owes Phelps by the amount that Phelps collected from other sources,
if other conditions are satisfied.
[Headnote 6]
Finally, we conclude that the UM policy at issue expressly authorizes State Farm to offset
funds that Phelps received from his employer's UM and workmen's compensation coverage.
The UM policy states that it applies as excess to any other UM coverage which applies to the
vehicle as primary coverage, as was the situation in this case.
1
Furthermore, the policy
expressly states that payments under the policy shall be reduced by amounts paid to the
insured under any workmen's compensation law. Therefore, State Farm had authority to take
these offsets, and as a result Phelps was denied a double recovery for his injuries while still
being made whole.
Because we have concluded that the offsets in this case prevent Phelps from obtaining a
double recovery for his injuries, and are expressly permitted by the provisions in the policy,
and do not violate public policy, State Farm's offset of money Phelps received from his
employer's UM and workmen's compensation coverage totalling $198,022.40 was valid, and
the district court's grant of summary judgment on these offsets was proper.
II. The offset provision in the insurance policy is not enforceable as to benefits Phelps
received through his private disability insurance
[Headnote 7]
The basic analysis from issue I applies here, and we conclude that the offset provisions in
the policy at issue do not expressly permit State Farm to offset funds Phelps received
pursuant to his privately purchased disability insurance.
Phelps' UM policy states in pertinent part that:
Limits of Liability
. . . .
2. Any amount payable under this [uninsured motorist] coverage shall be reduced by
any amount paid or payable to the insured under any worker's compensation,
disability benefits, or similar law.
Phelps argues that his private disability insurance is not a similar law as contemplated by
the policy and that State Farm should not be permitted to offset his private disability
payments against his UM benefits.
__________

1
Phelps argues that the provisions in the policy regarding this issue were vague and could have been construed
to preclude application of the UM coverage as excess. We conclude that Phelps' argument has no merit.
This court has previously applied the rule of ejusdem generis, which translated means of
the same kind, class or nature.' Zgombic v. State, 106 Nev. 571, 574, 798 P.2d 548, 550
(1990) (quoting State v. Church, 504 P.2d 940, 943-44 (Ariz. 1973)). By applying the rule of
ejusdem generis to this case, the issue becomes whether private disability insurance is of the
same kind, class or nature as worker's compensation or disability benefits such that the terms
can be grouped and considered together.
We conclude that private disability insurance is not a law in the same way that worker's
compensation and other statutorily created disability benefits are. Because private disability
insurance is not in the same class or nature as these other benefits, they cannot, pursuant to
the rule of ejusdem generis, be grouped together. Therefore, we conclude that State Farm was
not expressly authorized or permitted to offset the funds Phelps received from his private
disability insurance.
We realize that by not permitting State Farm to offset Phelps' private disability funds,
Phelps will be receiving a double recovery of $13,770.00. However, we note that just because
a UM policy exists does not mean that the policy issuer automatically has the authority to
offset any and all funds received by the insured in order to preclude a double recovery. It is
incumbent upon the policy issuer to specifically delineate in the policy which funds it can
offset, and in this case, State Farm could have expressly stated in its UM policy that payments
made to the insured pursuant to the UM policy would be offset by funds received by the
insured from the insured's own private disability insurance. State Farm, however, neglected to
include such language.
Because the UM policy did not expressly authorize State Farm to offset Phelps' private
disability funds, such an offset was improper. The district court's grant of summary judgment
on this issue must therefore be reversed and remanded, with directions to the district court to
have State Farm pay Phelps an additional $13,770.00.
CONCLUSION
We conclude that the district court correctly granted State Farm's motion for summary
judgment with regard to the $198,022.40 that Phelps received from his employer's UM and
workmen's compensation coverage because such offsets prevented Phelps from obtaining a
double recovery, were expressly permitted by the UM policy, and did not contravene public
policy. However, we conclude that the district court's grant of summary judgment with regard
to the $13,770.00 Phelps received from his own private disability insurance was improper
because such an offset was not expressly permitted by Phelps' UM policy.
because such an offset was not expressly permitted by Phelps' UM policy. Thus, the district
court's grant of summary judgment as to the private disability funds must be reversed with
orders to the district court to have State Farm pay Phelps an additional $13,770.00.
____________
112 Nev. 683, 683 (1996) Domingues v. State
MICHAEL DOMINGUES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26562
May 30, 1996 917 P.2d 1364
Appeal from a judgment of conviction and two sentences of death entered pursuant to a
jury verdict for first degree murder, first degree murder with use of a deadly weapon, robbery
with use of a deadly weapon, and burglary. Eighth Judicial District Court, Clark County; A.
William Maupin, Judge.
The supreme court, Shearing, J., held that: (1) corpus delicti rule did not require prosecutor
to show that defendant had actually used deadly weapon; (2) convictions for robbery with
deadly weapon and murder with deadly weapon were supported by evidence; (3) error in
limiting defendant's cross-examination of witness was harmless; (4) testimony of father of
defendant's girlfriend regarding separate and independent offenses was properly admitted; (5)
color photographs of autopsy and crime scene were properly admitted; (6) prosecutor's
statements did not constitute prosecutorial misconduct; (7) evidence of defendant's prior bad
acts was properly admitted in penalty phase; (8) evidence was insufficient to establish torture
as aggravating circumstance for imposition of death penalty; but (9) error in instructing jury
on torture aggravating factor did not affect result; and (10) imposition of death penalty was
not excessive.
Affirmed.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy Public Defender, Clark
1. Criminal Law.
To hold defendant for trial, there must be probable cause to believe that crime was committed and that defendant was the one who
committed it.
2. Criminal Law.
In determining whether crime has been committed, so that defendant may be held for trial, two elements, or corpus delicti, must be
established.
3. Homicide.
Corpus delicti of murder are fact of death, and criminal agency of another responsible for that death.
4. Criminal Law.
Under corpus delicti rule, only after corpus delicti is determined by lawful evidence may defendant's admissions be considered
in establishing whether it was defendant who committed crime.
5. Criminal Law.
Corpus delicti rule, under which only after corpus delicti is determined by lawful evidence may defendant's admissions be
considered in establishing whether it was defendant who committed crime, is inapplicable to deadly weapon sentencing enhancement;
purpose of rule is to establish that injury or crime in fact occurred, and sentencing enhancement is merely additional penalty for
primary offense. NRS 193.165(2).
6. Criminal Law.
Purpose of corpus delicti rule is to establish that injury or crime in fact occurred.
7. Criminal Law.
Aim of corpus delicti rule is to protect against accused's conviction based solely upon uncorroborated confession. Corpus delicti
requires prosecutor to show, for example, that person died as result of murder, rather than as result of accident, suicide, or natural
causes, and whether murder or another crime, such as robbery, was carried out with use of deadly weapon is irrelevant to establishment
of corpus delicti.
8. Criminal Law.
Corpus delicti rule did not require prosecutor to produce evidence to show that murder defendant, whose sentence State sought to
enhance based on use of deadly weapon, had actually used deadly weapon in crime, and defendant could be held on charges even
though only evidence of use of deadly weapon was defendant's own admission. Sentencing enhancement based on use of weapon is
merely additional penalty, and whether murder was carried out with deadly weapon was irrelevant to establishment of corpus delicti for
murder. NRS 193.165(2).
9. Criminal Law.
Standard of review for sufficiency of evidence in criminal case is whether any rational trier of fact could have found essential
elements of crime beyond reasonable doubt, after viewing evidence in light most favorable to prosecution.
10. Criminal Law.
Reviewing court will not disturb verdict on appeal if it is supported by substantial evidence.
11. Criminal Law; Homicide; Robbery.
Defendant's convictions for robbery with use of deadly weapon and murder with use of deadly weapon were supported by
testimony of defendant's girlfriend that defendant had told her he had entered home and put gun to head of woman, who was
subsequently killed, and autopsy photographs which showed brutally stabbed body of woman's son, who was also killed. NRS
193.165(2).
12. Criminal Law.
Knife is not necessarily deadly weapon under statute allowing enhancement of sentence based on use of deadly
weapon in crime.
enhancement of sentence based on use of deadly weapon in crime. NRS 193.165(2).
13. Criminal Law.
Error by trial court in admitting testimony of police officer regarding condition of bedroom window through which perpetrator of
robbery and murder had entered home as it appeared immediately prior to trial in murder prosecution, which was irrelevant, was
harmless in light of overwhelming evidence as to defendant's guilt of robbery, burglary, and two murders following entry of home.
NRS 178.598.
14. Criminal Law.
Murder defendant was improperly prohibited from cross-examining police detective regarding defendant's admission that he had
entered home in which murders had taken place after murders in order to steal credit card after State had introduced portions of
defendant's admissions during his interview through direct examination of detective. Following introduction of part of defendant's
statement to police, defendant was entitled under statute to introduce any other relevant parts of statement. NRS 47.120.
15. Criminal Law.
Error by trial court in refusing to allow murder defendant to cross-examine police detective regarding defendant's admission that
he had entered home in which murders had taken place after murders in order to steal credit card after State had introduced portions of
defendant's admissions during his interview through direct examination of detective was harmless in light of overwhelming evidence
proving that defendant was guilty of robbery and burglary of home and two murders committed in home. NRS 47.120, 178.598.
16. Criminal Law.
Decision to admit or exclude evidence of separate and independent offenses rests within sound discretion of trial court and will not
be disturbed unless it is manifestly wrong.
17. Criminal Law.
It is duty of trial court, in determining whether to admit or exclude evidence of separate and independent offenses, to strike proper
balance between probative value of evidence and its prejudicial dangers.
18. Criminal Law.
Trial court did not abuse its discretion in admitting testimony of father of girlfriend of murder defendant regarding separate and
independent offenses by defendant in taking up residence in father's attic and threats made by defendant to family, especially to
girlfriend. Testimony was germane to issues other than defendant's character or criminal disposition, as it was specifically probative of
girlfriend's credibility and her reason for delay in reporting defendant's confession to her to police. NRS 48.045(2).
19. Criminal Law.
Decision to grant or deny motion for new trial rests within sound discretion of trial court and will not be disturbed on appeal
absent palpable abuse.
20. Criminal Law.
Trial court's denial of defendant's motion for new trial which was based on remarks made by defendant's girlfriend during trial that
defendant had eluded law enforcement in the past did not constitute abuse of discretion. Statements were spontaneously uttered and
there was no bad faith on part of prosecution regarding their elicitation, and admission of statements was harmless beyond reasonable
doubt in light of other admissible evidence that defendant had several previous encounters with law
enforcement officials.
of other admissible evidence that defendant had several previous encounters with law enforcement officials.
21. Criminal Law.
Absent written stipulation, polygraph evidence is properly excluded.
22. Criminal Law.
Exclusion of evidence of results of polygraph test of victim's former husband was proper in murder prosecution where parties did
not stipulate to admissibility of evidence.
23. Criminal Law.
Admissibility of photographs lies within sound discretion of district court, and absent abuse of that discretion, decision will not be
overturned.
24. Criminal Law.
Color photographs of victim used by doctor to explain cause of death to jury are properly admissible because they aid in
ascertainment of truth.
25. Criminal Law.
Admission of autopsy and crime scene photographs into evidence in prosecution of defendant for two counts of murder did not
constitute abuse of discretion. Photographs were probative on issue of victims causes of death, and were more probative than
prejudicial.
26. Criminal Law.
Statements by prosecutor in argument which are indicative of his opinion, belief, or knowledge as to guilt of accused, when made
as deduction or conclusion from evidence introduced in trial, are permissible and unobjectionable.
27. Criminal Law.
Statements by prosecutor during closing argument at guilt phase of murder prosecution that it was belief of prosecution that
defendant had been proven beyond reasonable doubt to be a killer, and that evil is easy, eventually truth will come to light, and
that murder cannot be hid [sic] long were not prejudicial and did not constitute prosecutorial misconduct. Statement of belief as to
guilt demonstrated permissible conclusion from evidence introduced at trial, and later comments simply echoed commonly held notion
that crime does not pay.
28. Homicide.
Evidence of defendant's character and his record is proper and permissible in penalty phase hearing in capital murder prosecution,
but it must be more probative than prejudicial.
29. Homicide.
Decision to admit particular evidence during penalty phase in capitol murder prosecution is within sound discretion of trial court,
and will not be overturned absent abuse of that discretion.
30. Homicide.
Evidence of prior bad acts by defendant, including expulsion from high school and arrest for trespassing on school grounds, flight
from arrest and curfew violation as juvenile, incident in which he grabbed breasts of girlfriend with so much force after she refused to
have sex with him that his fingers touched, and throwing basketball with full force into girlfriend's face at close range, was properly
admitted during penalty phase of capital murder prosecution. Violent acts bore on whether death penalty was suitable punishment, and
evidence of trespassing and curfew violation, while not necessarily probative of whether death sentence was proper, was not highly
prejudicial.
31. Criminal Law.
State's ability to endorse additional witnesses whose names do not appear on pretrial endorsement list rests within sound discretion
of trial court, and its ruling will not be disturbed on appeal in absence of showing of abuse of discretion.
32. Criminal Law.
Endorsement of names of witnesses upon information is largely matter of discretion with court, and in absence of showing of
abuse, or that some substantial injury has resulted to accused, order permitting such endorsement, even after trial has commenced, does
not constitute of itself reversible error.
33. Criminal Law; Homicide.
Trial court's action in allowing witness who did not appear on pretrial endorsement list to testify during penalty phase of capital
murder prosecution did not constitute abuse of discretion where there was no bad faith on prosecution's part and late endorsement did
not prejudice defendant significantly in that trial court granted defense counsel opportunity to interview witness prior to her testimony.
34. Criminal Law.
Statement by prosecutor during penalty phase in capital murder prosecution with regard to torture, depravity of mind, or mutilation
aggravating circumstance that murder victim had taken blow to the head, which did not kill her, and was subsequently strangled and
that if you were to kill me, I would prefer a gunshot to the chest, to which objection was sustained on basis that it was improper
indication of how prosecutor would prefer to die, was not so prejudicial as to constitute prosecutorial misconduct.
35. Criminal Law.
Statement by prosecutor during penalty phase in capital murder prosecution arising from murder of woman and her young child
that nothing cries for justice like the voice of a murdered child and that This is the time for accountability and responsibility did
not amount to improper comment on community standards and did not constitute prosecutorial misconduct. Prosecutor sought to
remind jury that defendants should be held accountable and responsible for their reprehensible acts, that victims were individuals
whose lives had meaning and worth, and that their deaths represented unique loss to society.
36. Criminal Law.
Statements by prosecutor during closing argument in penalty phase of capital murder prosecution that no crime was so heinous as
one involving a little child and that child victim of murder would never again pick up telephone at eight o'clock and call his
grandmother did not constitute prosecutorial misconduct. Statements were properly based on testimony of grandmother, who had given
admissible victim impact testimony that child had always called her at eight o'clock to say that he loved her but was no longer able to
do so.
37. Homicide.
Testimony of grandmother of child victim of murder that child had called her every night at eight o'clock, before grandmother
went to bed, to say good night and that he loved her and that she still expected the call every night and had difficulty believing child
had been murdered was properly admitted as victim impact testimony in penalty phase of capital murder prosecution.
38. Homicide.
Finding of aggravating circumstance for imposition of death penalty that murder of child was committed to prevent lawful arrest of
defendant was supported by testimony of defendant's girlfriend that defendant had told her that he had
waited for victims in home, upon entry of child's mother had placed gun to her head, ordered her to floor,
and choked her, and then ordered child into bathtub and killed him.
was supported by testimony of defendant's girlfriend that defendant had told her that he had waited for victims in home, upon entry of
child's mother had placed gun to her head, ordered her to floor, and choked her, and then ordered child into bathtub and killed him.
Evidence was sufficient to support finding that child was killed to prevent him from identifying defendant as perpetrator of robbery
and murderer of child's mother. NRS 200.033(5).
39. Homicide.
Aggravating circumstance for imposition of death penalty of murder involving torture, depravity of mind, or mutilation of victim
requires that murderer must have intended to inflict pain beyond killing itself. NRS 200.033(8).
40. Homicide.
Evidence that defendant had ordered young child to lie down in bathtub and then threw electric hairdryer into bathtub in attempt to
electrocute child, and when attempt failed stabbed child to death, was insufficient to establish that murder of young child was
committed with aggravating circumstance for imposition of death penalty of torture, depravity of mind, or mutilation. Evidence did not
indicate that intent was anything other than to kill child by electrocution and later stabbing, and there was no evidence that specific
intent behind methods chosen was to inflict pain for pain's sake or for punishment or sadistic pleasure. NRS 200.033(8).
41. Homicide.
While most killings involve infliction of pain, most murders do not qualify as torture murders, for purposes of aggravating
circumstance for imposition of death penalty of murder involving torture, as torture involves calculated intent to inflict pain for
revenge, extortion, persuasion, or for any sadistic purpose. NRS 200.033(8).
42. Homicide.
Evidence that victim had suffered blunt force trauma to head and was then strangled was insufficient to establish aggravating
circumstance for imposition of death penalty of torture, depravity of mind, or mutilation of victim; there was no evidence of any act of
torture or mutilation other than ligature strangulation. NRS 200.033(8).
43. Homicide.
Error by trial court in instructing jury on aggravating factor for imposition of death penalty of torture, depravity of mind, or
mutilation did not require reversal of death penalty imposed by jury during penalty phase of prosecution of defendant for murder of
woman and her small child where evidence supported jury's findings of remaining three aggravating circumstances and jury
determined that there were no mitigating circumstances sufficient to outweigh aggravating circumstances, and jury beyond a
reasonable doubt would have reached same result had invalid aggravator been omitted. NRS 200.033(8).
44. Homicide.
Imposition of death penalty for defendant who was convicted of two counts of murder by jury which had found that he had
strangled woman with ligature during burglary of her house in order to steal certain items of personal property and had killed woman's
four-year-old son by stabbing him was not excessive, considering circumstances and senseless nature of murders. NRS 177.055.
OPINION
On the evening of October 22, 1993, Arjin Chanel Pechpo and her four-year old son,
Jonathan Smith, were murdered in their home in Las Vegas, Nevada. Appellant Michael
Domingues waited for Pechpo behind her front door, when she entered with Jonathan,
Domingues threatened her with a gun, tied up her hands, and strangled her with a cord.
Domingues then dragged Pechpo's body to the bathtub, filled it with water, ordered Jonathan
to get into the tub, and threw a hair dryer into the tub in an attempt to electrocute the boy.
When the electrocution attempt failed, Domingues stabbed Jonathan with a knife numerous
times, killing him.
The police investigation did not link Domingues to the crimes until November 19, 1993,
when police learned that Domingues had used Pechpo's credit card by forging her name to
purchase several items at a local Target department store. In relation to the Target incident,
Domingues's accomplice and friend, Joshua Rodgers, explained that Domingues commented
that he had strangled a woman because she was yelling at his then-girlfriend, Michelle Fleck
(Michelle). At a subsequent interview in November 1993, Domingues admitted to police
only that he entered the house, stole the credit card and used it at the Target store.
On January 3, 1994, the police received a call from Paul Fleck, Michelle Fleck's father,
and the next-door neighbor to the Pechpo residence. When police later met with Fleck, he
turned over a television set and a VCR, as well as other items reported to have belonged to
Arjin Pechpo. On January 4, 1994, the police returned to the Fleck residence and spoke with
Michelle. During this interview, Michelle fully implicated Domingues in the murders. Her
statement included crime details which had not been previously released to the media or to
any private citizens, including the victims' family.
Michelle related that approximately two weeks prior to the murders, Domingues told her
that he wanted to steal a car from a particular person living in the neighborhood and that he
wanted to beat them up and kill them if they put up a fight. Three days before the murders,
Michelle saw Domingues braiding some cord similar to that used by her father in his
plumbing business. Thereafter, on the night of October 22, 1993, Michelle recalled that
Domingues had come to her window dressed entirely in blacka black-hooded shirt over a
long-sleeved black shirt and black sweat pants.
black sweat pants. After Michelle climbed out of the window, Domingues pointed to a
burgundy car and asked her, How do you like my new car? When Michelle asked
Domingues where he had gotten the car, he replied that he had killed the woman next door,
pointing to the Pechpo home. At this point, Michelle did not know whether or not to believe
Domingues's declaration.
Domingues explained that they were going to California, and Michelle got into the car,
which she later identified as belonging to Pechpo. Michelle noticed a plastic bag containing a
knife, some yellow rope and an open wallet on the floor of the vehicle. She recognized the
knife as one from her kitchen. Michelle also saw a gun and recognized it as belonging to her
father. After some time, Michelle informed Domingues that she needed to use the restroom.
Domingues exited the freeway, and Michelle explained that she wanted to go home.
Domingues began yelling, I did it for you. On the way back to Las Vegas, Domingues kept
saying to Michelle that he had strangled her. At a trailer park, Domingues stopped the car
and discarded some of the black clothes he was wearing, a plastic grocery sack, some cord,
the wallet and a child's car seat into a trash dumpster. Domingues explained that he was
getting rid of evidence. Domingues did not throw away the knife. When the couple returned
to Michelle's house, Domingues directed her to wash the knife with bleach. Michelle washed
the knife noticing that it had blood on it.
Summarizing various discussions she had with Domingues that night, Michelle recounted
Domingues's admissions about the crimes. Domingues gained access to Arjin Pechpo's house
by breaking the kitchen window. He waited behind the door for Pechpo to come home.
Domingues stated that he was waiting for her so that he could kill her and steal her car. When
Pechpo and her son entered the house, Domingues placed a gun to Pechpo's head and ordered
her to lie down. Thereafter, he tied her hands with the cord Fleck later saw in the car and
strangled her with the cord. Domingues then dragged Pechpo's body to the bathroom and put
her in the tub. Domingues then instructed the little boy, Jonathan, to take off his pants and get
into the tub. He handed the boy a hair dryer in an effort to electrocute him. When this proved
ineffective, Domingues stabbed the boy repeatedly with Fleck's kitchen knife.
Domingues stayed the night with Michelle. The next morning, October 23, 1993, Michelle
noticed a cut on Domingues's finger. When Fleck asked what had happened, Domingues
explained that the injury occurred as he was choking the woman. Michelle related that after
the murders, Domingues had brought her a television set and two VCRs and intended them to
be payment to her father for a phone bill. He also brought her jewelry, hair curlers, curling
irons, a dress, some belts and a black teddy bear.
After her January 4, 1994, interview with the police, most of these items were turned over to
the police. Michelle also turned over the knife and the black-hooded T-shirt Domingues had
worn.
Michelle acknowledged that she initially gave false information to the police by telling
them that she had seen a car with some black men speed away on the night of the murders.
She also explained that she was extremely afraid of Domingues in that he told me if I told
anybody he would kill my whole family in front of me. He would tie me up and then torture
me until I die.
After the January 4, 1994, interview, police arrested and charged Domingues with first
degree murder for Pechpo's death, first degree murder with the use of a deadly weapon for
Jonathan's death, robbery with use of a deadly weapon, and burglary. After a trial, the jury
found Domingues guilty of all crimes charged. After a penalty hearing, Domingues was
sentenced to death for each of the murder counts, two consecutive fifteen-year terms of
imprisonment for robbery with use of a deadly weapon, and ten years of imprisonment for the
burglary.
On appeal, Domingues first argues that the district court erred in denying his pre-trial
petition for writ of habeas corpus, in that insufficient evidence existed to support use of a
deadly weapon for the robbery and murder charges in light of the corpus delicti rule.
Specifically, Domingues argues that there is absolutely no proof, independent of his own
admissions to Michelle Fleck, that either a gun or a knife was used in either the killing or
robbery of Pechpo. He contends that because the deadly weapon enhancement was appended
to the robbery and murder counts, use of a deadly weapon became an element of each offense.
Domingues claims that the corpus delicti rule precluded consideration of his admissions at
the preliminary hearing as sufficient evidence to support a finding of probable cause for each
offense.
[Headnotes 1-4]
To hold a criminal defendant for trial, there must be probable cause to believe that a crime
was committed and that the defendant was the one who committed it. Azbill v. State, 84 Nev.
345, 350-51, 440 P.2d 1014, 1017 (1968). In determining whether a crime has been
committed, two elements, i.e., the corpus delicti, must be established. Sheriff v. Larsgaard,
96 Nev. 486, 488, 611 P.2d 625, 626 (1980). The corpus delicti of murder are (1) the fact of
death, and (2) a criminal agency of another responsible for that death. Id. (citing Hicks v.
Sheriff, 86 Nev. 67, 464 P.2d 462 (1967)). According to the corpus delicti rule, only after the
corpus delicti is determined by lawful evidence may the defendant's admissions be considered
in establishing whether it was the defendant who committed the crime. State, Dep't of Mtr.
Vehicles v. McLeod, 106 Nev. 852, 855, 801 P.2d 1390, 1392 (1990).
[Headnotes 5-8]
We disagree with Domingues's argument because the corpus delicti rule is inapplicable to
a deadly weapon sentencing enhancement. The purpose of the corpus delicti rule is to
establish that an injury or crime in fact occurred. A sentencing enhancement is merely an
additional penalty for the primary offense. NRS 193.165(2), the statute providing for a
sentencing enhancement when a deadly weapon is used, states in pertinent part:
This section does not create any separate offense but provides an additional penalty for
the primary offense, whose imposition is contingent upon the finding of the prescribed
fact.
The corpus delicti rule asks a more fundamental question: Did a death occur and was it by
means of criminal agency? According to Wigmore:
The meaning of the phrase corpus delicti has been the subject of much loose judicial
comment, and an apparent sanction has often been given to an unjustifiably broad
meaning. It is clear that an analysis of every crime, with reference to this element of it,
reveals component parts, first, the occurrence of the specific injury or loss (as, in
homicide, a person deceased; in arson, a house burnt; in larceny, property missing);
second, somebody's criminality (in contrast, e.g., to accident) as the source of the
loss-these two together involving the commission of a crime by somebody.
7 John Henry Wigmore, Evidence 2072 (1970). The aim of the corpus delicti rule is to
protect against an accused's conviction based solely upon an uncorroborated confession. Id.
Corpus delicti requires the prosecutor to show, for example, that a person died as a result of
murder, rather than as a result of an accident, suicide or natural causes. Whether the murder
or another crime, such as robbery, was carried out with use of a deadly weapon is irrelevant to
the establishment of corpus delicti. Accordingly, we conclude that Domingues's contention
lacks merit.
[Headnotes 9-12]
Second, Domingues claims that there was insufficient evidence to support the jury's guilty
verdict for robbery with use of a deadly weapon and murder with use of a deadly weapon.
Specifically, Domingues argues that there was insufficient evidence to show that a deadly
weapon was used in the commission of either of these crimes.
of these crimes. The standard of review for sufficiency of the evidence in a criminal case is
whether any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt, after viewing the evidence in the light most favorable to the prosecution.
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). A reviewing court will not disturb
a verdict on appeal if it is supported by substantial evidence. Nix v. State, 91 Nev. 613, 614,
541 P.2d 1, 2 (1975). We conclude that sufficient evidence was presented at trial which
indicated that a deadly weapon was used in the commission of the robbery and in one murder.
Michelle Fleck gave a detailed account of Domingues's use of a firearm to subdue Pechpo.
Autopsy photographs admitted into evidence depicted the brutally stabbed body of Jonathan
Smith. Thus, sufficient evidence of use of a knife in the commission of the murder
1
and use
of a firearm in the commission of the robbery was presented.
[Headnote 13]
Third, Domingues contends that the district court erred in admitting Detective Ziola's
testimony regarding the condition of the bedroom window at the Pechpo residence as it
appeared immediately prior to trial. Although this evidence appears to be irrelevant and
therefore inadmissible, we conclude that its admission was harmless beyond a reasonable
doubt in light of the overwhelming evidence of Domingues's guilt as to the murders, robbery
and burglary. NRS 178.598; Chapman v. California, 386 U.S. 18 (1966).
[Headnotes 14, 15]
Fourth, Domingues asserts that the district court abused its discretion in limiting Detective
Ziola's testimony regarding his interview with Domingues in relation to the Target store
incident. Specifically, Domingues asserts that the district court erred in allowing Detective
Ziola to testify only to certain statements Domingues made during that interview but
expressly excluding Domingues's admission that he stole Pechpo's credit card after the
conclusion of the police investigation.
__________

1
A knife is not necessarily a deadly weapon under NRS 193.165. Milton v. State, 111 Nev. 1487, 908 P.2d 684
(1995). Here, the jury had the opportunity to view the knife that was used as the murder weapon. The jury
received the proper instruction for determining whether the knife was inherently dangerous as required by
Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990). It determined that the knife was a deadly weapon after
applying the inherently dangerous test.
However, even assuming that the knife was not inherently dangerous, the finding that a deadly weapon was used
in the murder did not prejudice Domingues because his murder sentence was not enhanced as a result. The jury
sentenced Domingues to death for the murder, not a term of imprisonment. When a deadly weapon is used to
commit the crime of murder, NRS 193.165(1) provides an additional term of imprisonment equal to the term
prescribed for the underlying crime. Here, there was no term of imprisonment imposed for the underlying crime,
and therefore, no additional term was assigned.
allowing Detective Ziola to testify only to certain statements Domingues made during that
interview but expressly excluding Domingues's admission that he stole Pechpo's credit card
after the conclusion of the police investigation. We agree. NRS 47.120 provides, [w]hen any
part of a writing or recorded statement is introduced by a party, he may be required at that
time to introduce any other part of it which is relevant to the part introduced, and any party
may introduce any other relevant parts. This section does not limit cross-examination. Here,
the State introduced portions of Domingues's admissions to police during his interview
through its direct examination of Detective Ziola. Yet, the district court prohibited defense
counsel from cross-examining Detective Ziola regarding Domingues's admission that he
entered the Pechpo residence after the murders to steal the credit card. Pursuant to NRS
47.120, defense counsel was permitted to introduce any other relevant parts of Domingues's
statement. Thus, the district court erred in prohibiting defense counsel from presenting this
evidence. However, in light of the overwhelming evidence proving that Domingues is guilty
of committing the murders, we hold that this error was harmless. NRS 178.598.
[Headnotes 16-18]
Fifth, Domingues argues that the district court abused its discretion in admitting Paul
Fleck's testimony regarding Domingues's taking up residence in his attic and Domingues's
threats to his family, especially Michelle. The decision to admit or exclude evidence of
separate and independent offenses rests within the sound discretion of the trial court and will
not be disturbed unless it is manifestly wrong. Petrocelli v. State, 101 Nev. 46, 692 P.2d 503
(1985). It is the trial court's duty to strike a proper balance between the probative value of the
evidence and its prejudicial dangers. Elsbury v. State, 90 Nev. 50, 518 P.2d 599 (1974). We
conclude that the district court did not abuse its discretion in determining that this evidence
was admissible under NRS 48.045(2) because it was germane to issues other than
Domingues's character or criminal disposition. It was specifically probative of Michelle's
credibility and her reason for delay in reporting Domingues's confession to the police, which
was a central issue in both the prosecution and the defense cases. Here, Paul Fleck testified
that he ejected Domingues from his home after he discovered that Domingues had taken up
residence in his attic. Paul Fleck's descriptions were simply part of his story as to how he
discovered Domingues in his home and the confrontation that ensued including Domingues's
threats to Michelle. We further conclude that Domingues's residence in the Fleck home was
more probative than prejudicial on the issue of Michelle's credibility and Domingues's
intimidation of her.
more probative than prejudicial on the issue of Michelle's credibility and Domingues's
intimidation of her.
[Headnotes 19, 20]
Sixth, Domingues asserts that the district court abused its discretion in denying his motion
for a mistrial based on Michelle's remarks at trial that Domingues had eluded law
enforcement in the past. The decision to grant or deny a motion for a new trial rests within
the sound discretion of the trial court and will not be disturbed on appeal absent palpable
abuse. Pappas v. State, Dep't Transp., 104 Nev. 572, 574, 763 P.2d 348, 349 (1988). We
conclude that the district court did not abuse its discretion because the statements were
spontaneously uttered, and there was no bad faith on the part of the prosecution regarding
their elicitation. In light of the other admissible evidence that Domingues had several
encounters with law enforcement officials, the admission of these statements was harmless
beyond a reasonable doubt.
[Headnotes 21, 22]
Seventh, Domingues contends that the district court erred in prohibiting evidence of
Pechpo's ex-husband's polygraph test results. Absent a written stipulation, polygraph evidence
is properly excluded. Corbett v. State, 94 Nev. 643, 584 P.2d 704 (1978). Here, the parties
did not stipulate to the admission of the polygraph examination. Therefore, Domingues's
contention lacks merit.
[Headnotes 23-25]
Eighth, Domingues argues that the district court abused its discretion in admitting into
evidence autopsy and crime scene photographs. Admissibility of photographs lies within the
sound discretion of the district court and, absent an abuse of that discretion, the decision will
not be overturned. Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800, cert. denied, 470
U.S. 1009 (1984). Color photographs of a victim used by a doctor to explain the cause of
death to a jury are properly admissible because they aid in the ascertainment of truth. Allen
v. State, 91 Nev. 78, 82, 530 P.2d 1195, 1197 (1975). After carefully reviewing the
photographs, we conclude that they were probative on the issue of the victims' causes of
death, and that they were more probative than prejudicial. Accordingly, the district court did
not abuse its discretion in admitting them.
[Headnotes 26, 27]
Ninth, Domingues asserts that the prosecutor's statements of personal belief in closing
argument at the guilt phase of trial amounted to prosecutorial misconduct requiring
reversal.
amounted to prosecutorial misconduct requiring reversal.
2
Statements by the prosecutor, in
argument, indicative of his opinion, belief, or knowledge as to the guilt of the accused, when
made as a deduction or conclusion from the evidence introduced in the trial, are permissible
and unobjectionable. Collins v. State, 87 Nev. 436, 439, 488 P.2d 544, 545 (1971). The
prosecutor's first comment demonstrates that he drew a conclusion of Domingues's guilt from
the evidence introduced at trial, which was permissible and unobjectionable under Collins.
The prosecutor's second set of comments that evil is easy, that eventually truth will come
to light, and that murder cannot be hid [sic] long, were not prejudicial because they simply
echo the commonly held notion that crime does not pay.
[Headnotes 28-30]
Tenth, Domingues claims that the district court erred in admitting evidence of
Domingues's prior bad acts at the penalty hearing.
3
Evidence of a defendant's character and
his record is proper and permissible in a penalty phase hearing, but it must be relevant and
must be more probative than prejudicial.
__________

2
Specifically, Domingues points to the prosecutor's following comments:
This is an adversary system. I hear Mr. Christensen [defense counsel] say he doesn't know why the
prosecution even has the audacity to ask for you to convict Michael Domingues. In an adversary system,
it's interesting each side always thinks the other side is audacious. Mr. Christensen, I won't disappoint
you, and I will announce to the jury at the outset, it is the belief of the prosecution based upon the
evidence you have heard that Michael Domingues has been proven beyond a reasonable doubt to be a
killer.
. . . .
In addition to believing that evil is easy, I also happen to believe that in most instances eventually truth
will come to light. Murder cannot be hid [sic] long. It was hid for a while in this case, and for a while the
police focused on someone else.

3
The State's evidence at the penalty hearing included the following: first, James Nares, a former investigator for
the San Diego County Sheriff's Department, testified that Domingues caused problems at his high school and
was eventually expelled. After Domingues's expulsion, Nares arrested Domingues for trespassing on school
grounds.
Second, Peter Callewaert, another officer with the San Diego County Sheriff's Department, testified to an
incident where he attempted to arrest Domingues pursuant to a juvenile detention order. Having been informed
that Domingues might be armed, Callewaert confronted Domingues with his weapon drawn and ordered him
onto the ground. Domingues ignored the order and fled, but was eventually captured. Incidental to his narration,
Callewaert mentioned that he often saw Domingues walking along streets after curfew hours.
Third, Michelle testified that on one occasion, because she refused to have sex with Domingues, he grabbed both
of her breasts and squeezed them with so much force that his fingers touched.
Fourth, Sheryl Beeman, Paul Fleck's girlfriend, testified to an incident she witnessed where Domingues threw a
basketball with full force into Michelle's face at close range.
and permissible in a penalty phase hearing, but it must be relevant and must be more
probative than prejudicial. Pellegrini v. State, 104 Nev. 625, 630-31, 764 P.2d 484, 488
(1988). The decision to admit particular evidence during the penalty phase is within the sound
discretion of the trial court, and will not be overturned absent an abuse of that discretion.
Milligan v. State, 101 Nev. 627, 708 P.2d 289 (1985), cert. denied, 479 U.S. 870 (1986).
Here, there is no question that the evidence was properly admitted under Pellegrini. The
breast squeezing incident and the basketball incident were properly admitted as relevant and
more probative than prejudicial concerning Domingues's propensity for committing acts of
violence. Past commission of violent acts bears on whether the death penalty is a suitable
punishment. On the other hand, the evidence of trespassing on school grounds and the
violation of curfew were relevant to Domingues's character but not necessarily probative of
whether Domingues should receive a death sentence. However, this testimony was not highly
prejudicial and the district court did not abuse its discretion by admitting it.
[Headnotes 31, 32]
Eleventh, Domingues contends that the district court erred in admitting testimony at the
penalty hearing from a state's witness whose name did not appear on the pre-trial
endorsement list. The State's ability to endorse additional witnesses rests within the sound
discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a
showing of an abuse of discretion. Hess v. State, 73 Nev. 175, 179, 313 P.2d 432, 433 (1957).
In State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948), this court stated:
[T]he indorsement of names of witnesses upon an information is largely a matter of
discretion with the court; and, in the absence of a showing of abuse, or that some
substantial injury has resulted to the accused, an order permitting such indorsement,
even after the trial has commenced, does not constitute of itself reversible error.
Id. at 613, 200 P.2d at 671 (quoting 16 Corpus Juris 2027 at 796).
[Headnote 33]
We conclude that the district court did not abuse its discretion in admitting this testimony.
There was no bad faith on the prosecution's part and the late endorsement of the witness did
not prejudice Domingues significantly in that the district court granted defense counsel the
opportunity to interview the witness prior to her testimony.
Twelfth, Domingues asserts that three of the prosecutor's statements at the penalty hearing
closing argument amounted to prosecutorial misconduct, thus requiring a new penalty
hearing.
[Headnote 34]
The prosecutor expressed the following to the jury at the penalty hearing with regard to the
torture, depravity of mind, or mutilation aggravating circumstance:
In an aggravated circumstance, it is based upon the depravity of mind. It must include
torture, mutilation or some other serious or depraved physical abuse beyond the act of
killing itself.
Well, let's take Arjin. She took a blow to the head. She took a blow to the head by the
defendant, that didn't kill. You heard the coroner testify. Certainly, if you were to kill
me, I would prefer a gunshot to the chest.
(Emphasis added.) At this point, defense counsel objected on the ground that this statement
improperly indicated how the prosecutor would prefer to die. The district court sustained the
objection. We conclude that this statement is not so prejudicial as to constitute prosecutorial
misconduct.
In concluding his closing argument to the jury, the prosecutor made the following remarks:
What kind of bizarre individual is this? This man should scare us. Nothing cries for
justice like the voice of a murdered child. This is the time for accountability and
responsibility. Death is the only appropriate sentence in this case. Anything less is
disrespectful to the dead and irresponsible to the living.
(Emphasis added.) On appeal, Domingues claims that this remark is an improper comment on
community standards and a call for revenge.
[Headnote 35]
In Collier v. State, 101 Nev. 473, 479, 705 P.2d 1126, 1129-30 (1985), this court
disapproved of a prosecutor's statement to the jury that it must be angry with the defendant or
else we are not a moral community. This court concluded that this comment, among others,
was a blatant attempt to inflame the jury and inappropriately encouraged them to approach
their duties with anger. Id. In the instant case, the prosecutor's statement does not rise to the
level of impropriety as the statement in Collier. Here, the prosecutor sought to remind the
jury that criminal defendants should be held accountable and responsible for their
reprehensible acts; the victims were individuals whose lives had meaning and worth; their
deaths represented a unique loss to society.
Accordingly, we conclude that the prosecutor's statement in the instant case does not amount
to prosecutorial misconduct.
[Headnotes 36, 37]
At the penalty hearing, Arjin Pechpo's mother, Tawin Thompson, testified regarding her
relationship with her grandson, Jonathan Smith:
Two people is so special for me. Eight o'clock at night, he look at the clock, no matter
where he is at, make phone call, eight o'clock. He know my time to go to bed. He call
and say, Good night, Grandma, I love you. How he affect my life, now eight o'clock
at night, I still looking for my grandson to call me. I didn't expect he leave me at all. I
still don't believe it, believe me.
Referring to Thompson's comments, the prosecutor later remarked in his closing argument to
the jury:
No crime is so heinous as one which involves a little child. Words were once said and it
seems appropriate now: A simple child that lightly draws its breath and feels its life in
every limb, what should it know of death? Such a child was Jonathan Smith, cheerful,
trusting, affectionate, innocent, pure, respectful of his family; never again to pick up the
telephone at eight o'clock in the evening and to call Grandma.
(Emphasis added.) These comments were based upon Thompson's testimony and were
therefore admissible. See Collins v. State, 87 Nev. 436, 439, 488 P.2d 544, 545 (1971)
(holding that the prosecutor's statements in closing argument, when made as a deduction or
conclusion from the evidence introduced in the trial, are permissible). Further, Thompson's
remarks, and the prosecutor's reiteration of them, were properly admitted as victim impact
testimony. Payne v. Tennessee, 501 U.S. 808 (1991); Homick v. State, 108 Nev. 127, 825
P.2d 600 (1992). We conclude that all three statements by the prosecutor taken together did
not constitute prosecutorial misconduct. Therefore, Domingues's argument lacks merit.
Finally, Domingues argues that the district court erred in denying his motion to strike the
aggravating circumstances relating to prevention of lawful arrest and torture, depravity of
mind, or mutilation. We hold that there was sufficient evidence to warrant the submission of
the prevention of lawful arrest aggravating circumstance to the jury for its consideration and
sufficient evidence to support the jury's finding of it for the murder of Jonathan Smith.
However, with regard to the torture, depravity of mind, or mutilation aggravator, we hold that
it was not appropriate for submission to the jury, as the facts surrounding both murders did
not warrant this instruction, and there was not sufficient evidence to support the jury's
finding of that aggravating circumstance for either murder.
ing both murders did not warrant this instruction, and there was not sufficient evidence to
support the jury's finding of that aggravating circumstance for either murder.
In its Notice of Intent to Seek Death Penalty, the State disclosed its intention to present
evidence of the following six aggravating circumstances at the penalty hearing:
1. The murder was committed by a person who knowingly created a great risk of death
to more than one person by means of a weapon, device or course of action which would
normally be hazardous to the lives of more than one person. NRS 200.033(3).
2. The murder was committed while the person was engaged in the commission of or
an attempt to commit any Burglary and/or Home Invasion. NRS 200.033(4).
an attempt to commit any Robbery. NRS 200.033(4).
4. The murder was committed to avoid or prevent a lawful arrest or to effect an escape
from custody. NRS 200.033(5).
5. The murder involved torture, depravity of mind or the mutilation of the victim. NRS
200.033(8).
6. The defendant has, in the immediate proceeding, been convicted of more than one
offense of murder in the first or second degree. NRS 200.033(10).
Domingues filed a pretrial motion to strike factors one (risk of death to more than one
person), four (prevention of lawful arrest), and five (torture, depravity of mind, or mutilation).
The district court determined that Domingues's motion was premature and agreed to hear it
following the guilt phase of the proceedings.
At the rehearing of Domingues's motion to strike certain aggravating factors prior to the
penalty hearing, the State acknowledged its agreement to strike the first aggravating
circumstancerisk of death to more than one person. The district court then struck the first
aggravating circumstance, but denied Domingues's motion to strike the aggravating factors of
prevention of lawful arrest and torture, depravity of mind, or mutilation. Specifically, the
district court ruled that sufficient issues of fact existed to warrant submission of each factor to
the jury for consideration.
After considering the evidence adduced at the penalty hearing, the jury imposed one
sentence of death for the murder of Arjin Pechpo and another sentence of death for the
murder of Jonathan Smith. In so doing, the jury found that every one of the aggravating
circumstances was established beyond a reasonable doubt for the murder of Jonathan Smith
and all but prevention of lawful arrest circumstance were found to exist beyond a
reasonable doubt for the murder of Arjin Pechpo.
arrest circumstance were found to exist beyond a reasonable doubt for the murder of Arjin
Pechpo. In both instances, the jury determined that there were no mitigating circumstances
sufficient to outweigh the aggravating circumstances.
On appeal, Domingues argues that the evidence did not warrant the district court's
instructions to the jury regarding the aggravating circumstances of prevention of lawful arrest
for the murder of Jonathan Smith, and the aggravating circumstance of torture, depravity of
mind, or mutilation for either murder. In the alternative, Domingues contends that there was
insufficient evidence to support the jury's findings of these aggravating circumstances.
[Headnote 38]
We hold that the evidence supports the aggravating circumstance of prevention of lawful
arrest for Jonathan Smith's murder.
4
Michelle Fleck testified that Domingues told her that he
waited for the victims, that upon Pechpo's entry he placed a gun to her head, ordered her to
the floor, tied her hands up and then went on choking her. After he had killed Pechpo and
dragged her body to the bathtub, Domingues turned his attention to Jonathan Smith who had
followed him into the room. At that point, Domingues ordered Jonathan into the bathtub and
killed him.
Based upon this sequence of events, there was sufficient evidence to support the
submission of this aggravating circumstance to the jury, and the jury's finding that
Domingues killed Jonathan to prevent him from identifying Domingues as the perpetrator of
his mother's murder and robbery. Cavanaugh v. State, 102 Nev. 478, 486, 729 P.2d 481, 486
(1986) (holding that it is unnecessary that arrest be imminent, and where the defendant clearly
murdered the victim to avoid arrest, no more is required under the statute for the aggravating
circumstance of prevention of lawful arrest). Thus, Domingues's contention concerning the
prevention of lawful arrest aggravating circumstance lacks merit.
__________

4
Domingues cites to Jiminez v. State, 105 Nev. 337, 775 P.2d 694 (1989), to support his position. In Jiminez,
this court reversed the defendant's penalty after concluding that there was insufficient evidence for the finding
that the defendant murdered his victim to prevent or avoid lawful arrest. Id. at 343, 775 P.2d at 698. The facts in
Jiminez are clearly distinguishable from those in the instant case. In Jiminez, the police found the two victims in
a bar the day after it had been robbed. Id. No evidence was adduced to indicate that they were killed while the
defendant attempted to flee or that the defendant killed to avoid arrest. Id.
Here, there is no reason other than the prevention of lawful arrest to explain the murder. Domingues must have
been concerned that Jonathan would be able to identify him. Therefore, prevention of lawful arrest was properly
submitted to the jury as an aggravating circumstance.
[Headnotes 39, 40]
Domingues also argues that there was insufficient evidence to support the torture,
depravity of mind, or mutilation aggravating circumstance set forth in NRS 200.033(8) as to
either murder.
5
We agree. In Robins v. State, l06 Nev. 611, 798 P.2d 558 (1990), this court
stated:
Although Instruction No. 8 specifies torture and depravity of mind in both the
disjunctive and conjunctive, we construe the instruction and the statute [NRS
200.033(8)] upon which it is based as requiring torture, mutilation or other serious and
depraved physical abuse beyond the act of killing itself as a qualifying requirement to
an aggravating circumstance based in part upon depravity of mind.
Id. at 629, 798 P.2d at 570. Thus, the aggravating circumstance enunciated in NRS
200.033(8) requires that the murderer must have intended to inflict pain beyond the killing
itself.
[Headnote 41]
Torture is the basis for the jury's finding of this aggravator, yet the circumstances of
Jonathan Smith's murder do not support a finding of torture. The evidence indicates that
Domingues ordered Jonathan Smith to lie down in the bathtub and then threw an electric
hairdryer into the bathtub in an attempt to electrocute the child. When this attempt proved
ineffective, Domingues stabbed the child to death. The evidence does not indicate that
Domingues's intent was anything other than to kill the child by electrocution and when that
method of execution failed, he stabbed the child to death. There is no evidence that the
specific intent behind the attempted electrocution or the stabbing was to inflict pain for pain's
sake or for punishment or sadistic pleasure.
6

[Headnote 42]
Similarly, there is insufficient evidence to support the aggravating circumstance of torture,
depravity of mind, or mutilation as to Arjin Pechpo's murder. Although there is evidence that
Pechpo suffered a blunt force trauma to her head, there is no evidence that she suffered any
act of torture or mutilation in addition to the ligature strangulation.
__________

5
NRS 200.033(8) provides that [t]he only circumstances by which murder of the first degree may be
aggravated are: . . . (8) [t]he murder involved torture, depravity of mind or the mutilation of the victim.

6
We accede that most killings involve the infliction of pain. However, most murders do not qualify as torture
murders. Torture involves a calculated intent to inflict pain for revenge, extortion, persuasion or for any sadistic
purpose. Black's Law Dictionary 1490 (6th ed. 1990). For this reason, we urge Nevada's district attorneys to be
more discriminating in charging the torture aggravating circumstance in the future.
ligature strangulation. Thus, there is no evidence to support this aggravating circumstance and
it cannot stand.
[Headnote 43]
However, we have carefully reviewed the evidence in this case and conclude that it
supports the jury's finding of each of the remaining three aggravating circumstances. The jury
determined that there were no mitigating circumstances sufficient to outweigh the aggravating
circumstances. After careful review, we conclude beyond a reasonable doubt that the jury
would have reached the same result had the invalid aggravator been omitted. Lane v. State,
110 Nev. 1156, 1169, 881 P.2d 1358, 1367 (1994); Canape v. State, 109 Nev. 864, 882, 859
P.2d 1023, 1035 (1993).
[Headnote 44]
In cases in which the death penalty is imposed, this court is also statutorily required to
consider whether the death sentence was imposed under the influence of passion, prejudice,
or any arbitrary factor and whether the sentence of death is excessive considering both the
crime and the defendant. NRS 177.055(2). We conclude that the death sentence was not
imposed under the influence of passion, prejudice or any arbitrary factor, nor was it excessive
in this case. The jury sentenced Domingues to death based upon the aggravating
circumstances of the murders as revealed during the trial. The jury found beyond a reasonable
doubt that Domingues killed Arjin Pechpo by strangling her with a ligature in order to steal
certain items of her personal property, and killed Pechpo's four-year old son, Jonathan Smith,
by stabbing him. Considering the circumstances and the senseless nature of these murders,
the jury's decision that Domingues should be put to death for the murders was not excessive.
Having determined that Domingues was fairly tried, convicted and sentenced, we affirm
the district court's judgment of conviction and the sentence of death.
Steffen, C. J., and Young, Springer and Rose, JJ., concur.
____________
112 Nev. 704, 704 (1996) Edwards v. State
JOHNNY H. EDWARDS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26843
May 30, 1996 918 P.2d 321
Appeal from an order of the district court denying appellant's motion to modify an illegal
sentence. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Defendant convicted pursuant to guilty pleas of five counts of attempted sexual assault
moved for modification of illegal sentence. The district court denied motion, and defendant
appealed. The supreme court held that defendant's motion would not be treated like petition
for writ of habeas corpus for purposes of determining when his notice of appeal was due.
Dismissed.
Gary E. Gowen, St. Mary's, Georgia, for Appellant.
1. Criminal Law.
Because of nature of remedy sought in motion for relief from sentence that is either facially illegal or is result of mistaken
assumption regarding criminal defendant's record, time constraints and procedural defaults necessarily do not apply.
2. Criminal Law.
Motion to modify sentence is limited in scope to sentences based on mistaken assumptions about defendant's criminal record
which work to defendant's extreme detriment, while motion to correct illegal sentence addresses only facial legality of sentence. NRS
34.724(2)(a), 176.555.
3. Criminal Law.
Motion to correct illegal sentence is appropriate vehicle for raising claim that sentence is facially illegal at any time, but such
motion cannot be used as vehicle for challenging validity of judgment of conviction or sentence based on alleged errors occurring at
trial or sentencing. Issues concerning validity of conviction or sentence must generally be raised in habeas proceeding. NRS
34.724(2)(b), 176.555.
4. Criminal Law.
If motion to correct illegal sentence or to modify sentence raises issues outside of narrow scope of inherent authority recognized by
supreme court, motion should be summarily denied. NRS. 34.724(2)(a), (b).
5. Habeas Corpus.
Defendant's motion for modification of an illegal sentence would not be treated like petition for writ of habeas corpus for
purposes of determining when his notice of appeal was due. Defendant had specifically pursued motion to modify sentence instead of
pursuing habeas relief because he believed he was procedurally barred from bringing successive habeas
petition, and he would not be allowed to selectively apply habeas procedures to take advantage of
protections of habeas appeal statute.
relief because he believed he was procedurally barred from bringing successive habeas petition, and he would not be allowed to
selectively apply habeas procedures to take advantage of protections of habeas appeal statute. NRS 34.575(1); NRAP 4(b).
6. Habeas Corpus.
Habeas corpus is unique remedy that is governed by its own statutes regarding procedure and appeal. NRS 34.720-34.830.
OPINION
Per Curiam:
FACTS
On May 2, 1988, appellant was convicted pursuant to guilty pleas of five counts of attempted sexual assault. The district court
sentenced appellant to serve five consecutive terms of fifteen years each in the Nevada State Prison. This court dismissed appellant's direct
appeal. Edwards v. State, Docket No. 19287 (Order Dismissing Appeal, March 30, 1989).
On January 12, 1990, appellant filed in the district court a petition for post-conviction relief. Appellant contended that he entered his
guilty pleas involuntarily, his trial counsel was ineffective and the district court breached the plea agreement. The state opposed appellant's
petition. On March 6, 1990, the district court denied appellant's petition without appointing counsel or conducting an evidentiary hearing.
We dismissed the appeal from that order. Edwards v. State, Docket No. 21026 (Order Dismissing Appeal, May 30, 1990).
On September 7, 1990, appellant filed in the district court a post-conviction petition for a writ of habeas corpus. Appellant raised the
same contentions in this petition as he raised in his prior petition. The state opposed the petition. On October 10, 1990, the district court
denied appellant's petition without appointing counsel or conducting an evidentiary hearing. This court dismissed the appeal from that
order. Edwards v. State, Docket No. 21930 (Order Dismissing Appeal, March 28, 1991).
On July 18, 1991, appellant filed in the district court a second post-conviction petition for a writ of habeas corpus. Appellant
contended that he unknowingly entered his guilty pleas. The state opposed the petition. On August 19, 1991, the district court denied
appellant's petition without appointing counsel or conducting an evidentiary hearing. Appellant did not appeal from the district court's
order.
On August 16, 1994, appellant filed in the district court a motion for modification of an illegal sentence. Appellant contended that
the district court sentenced him based on incomplete and untrue facts.
and untrue facts. According to appellant, his promiscuous stepdaughter seduced him one
night and he mistook his stepdaughter for his wife. Appellant contended further that his
stepdaughter threatened to inform appellant's wife of the indiscretion unless appellant
continued to have sexual relations with her and gave her favors. The stepdaughter eventually
became pregnant and gave birth to twins.
Appellant contended that at sentencing his wife did not fully disclose the details
surrounding appellant's seduction and sexual relationship with the stepdaughter. Appellant
asserted that there was evidence that another man might have fathered the twins. In addition,
appellant noted that his sentences were not appropriate because his stepdaughter has
graduated from high school, has gone to college on scholarship and has suffered no lasting
effects from appellant's misconduct.
The state opposed appellant's motion. On November 2, 1994, the district court, without
appointing counsel or conducting an evidentiary hearing, entered a written order denying
appellant's motion. Appellant filed a notice of appeal on December 12, 1994.
On July 24, 1995, this court entered an order requiring appellant to show cause why this
appeal should not be dismissed for lack of jurisdiction. We noted that appellant did not file
his notice of appeal within thirty days of entry of the written order denying his motion as
required under NRAP 4(b).
In his response, appellant responds by arguing that his motion to modify his sentence
should be treated as a petition for post-conviction relief in the nature of habeas corpus.
Pursuant to NRS 34.575(1), petitioners have thirty days after the district court serves written
notice of entry of the order denying a petition for a writ of habeas corpus within which to file
a notice of appeal. Appellant contends that his notice of appeal is timely because the district
court did not serve him with written notice of entry of the order denying his habeas-like
motion. Thus, the sole issue before this court is whether the appeal period in this case is
governed by NRAP 4(b), or NRS 34.575(1).
DISCUSSION
Appellant contends that his motion to modify an illegal sentence should be treated like a
petition for a writ of habeas corpus for purposes of determining when his notice of appeal is
due, based on the reasoning of Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967).
Appellant contends further that this court has employed various forms of legal fiction to
allow sentences to be modified without regard to time constraints. Appellant is mistaken.
NRS 34.724(2) (emphasis added) provides in part:
Such a petition [for a writ of habeas corpus filed after conviction]:
(a) Is not a substitute for and does not affect any remedies which are incident to the
proceedings in the trial court or the remedy of direct review of the sentence or
conviction.
(b) Comprehends and takes the place of all other common law, statutory or other
remedies which have been available for challenging the validity of the conviction or
sentence, and must be used exclusively in place of them.
This court has expressly recognized two types of post-conviction challenges to judgments
of conviction that are incident to the proceedings in the trial court, and thus are excepted by
NRS 34.724(2)(a) from the provisions of the habeas statutes: A motion to modify a sentence
based on very narrow due process grounds, and a motion to correct a facially illegal sentence.
Passanisi v. State, 108 Nev. 318, 831 P.2d 1371 (1992). In all other cases, post-conviction
challenges to the validity of [a] conviction or sentence must be brought pursuant to NRS
34.720 through NRS 34.830. See NRS 34.724(2)(b).
Beginning with Peters, this court established a line of cases in which we ruled, based on
due process considerations, that the district court has inherent authority to correct, vacate or
modify a sentence that is based on a materially untrue assumption or mistake of fact that has
worked to the extreme detriment of the defendant, but only if the mistaken sentence is the
result of the sentencing judge's misapprehension of a defendant's criminal record. State v.
District Court, 100 Nev. 90, 97, 677 P.2d 1044, 1048 (1984) (emphasis added); see also
Passanisi v. State, 108 Nev. 318, 320, 831 P.2d 1371, 1372 (1992); Staley v. State, 106 Nev.
75, 79-80, 787 P.2d 396, 398 (1990). We further recognized that the inherent power to
modify a sentence necessarily includes the power to entertain a motion to modify a sentence.
Passanisi, 108 Nev. at 320, 831 P.2d at 1372.
1

NRS 176.555 provides: The [district] court may correct an illegal sentence at any time.
We have recognized that the power of the district court to correct an illegal sentence is
inherent.
__________

1
Nothing in this line of cases would preclude criminal defendants from challenging sentences alleged to be
infirm for any reason in a post-conviction petition for a writ of habeas corpus. See Weaver v. Warden, 107 Nev.
856, 858, 822 P.2d 112, 114 (1991). Nevertheless, a petition for a writ of habeas corpus may not always be an
appropriate remedy when a party seeks a modification of a sentence. See Passanisi v. State, 108 Nev. 318, 321
n.1, 831 P.2d 1371, 1372-73 n.1 (1992) (discussing circumstances when a petition for a writ of habeas corpus
would not be an appropriate remedy).
of the district court to correct an illegal sentence is inherent. See, Passanisi, 108 Nev. at 321,
831 P.2d at 1372. The inherent power to correct an illegal sentence, like the inherent power to
modify sentences based on mistakes about a defendant's record, must necessarily include the
power to entertain a motion to correct an illegal sentence.
[Headnote 1]
Because of the very nature of the remedy sought in a motion for relief from a sentence that
is either facially illegal or is the result of a mistaken assumption regarding a criminal
defendant's record, time constraints and procedural defaults necessarily do not apply. Id.
Contrary to appellant's assertions, we have not employed any legal fiction to overcome
applicable time limitations; we have simply not applied time limitations in cases in which
they were not intended to apply.
[Headnotes 2-4]
We emphasize that a motion to modify a sentence is limited in scope to sentences based on
mistaken assumptions about a defendant's criminal record which work to the defendant's
extreme detriment. Motions to correct illegal sentences address only the facial legality of a
sentence. An illegal sentence for purposes of a statute identical to NRS 176.555 was
defined by the District of Columbia Court of Appeals as one at variance with the
controlling sentencing statute,' or illegal in the sense that the court goes beyond its authority
by acting without jurisdiction or imposing a sentence in excess of the statutory maximum
provided . . . . Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985) (quoting Prince v.
United States, 433 A.2d 720, 721 (D.C. 1981) and Robinson v. United States, 454 A.2d 810,
813 (D.C. 1982)). A motion to correct an illegal sentence presupposes a valid conviction and
may not, therefore, be used to challenge alleged errors in proceedings that occur prior to the
imposition of sentence. Id. A motion to correct an illegal sentence is an appropriate vehicle
for raising the claim that a sentence is facially illegal at any time; such a motion cannot,
however, be used as a vehicle for challenging the validity of a judgment of conviction or
sentence based on alleged errors occurring at trial or sentencing. Issues concerning the
validity of a conviction or sentence, except as detailed in this opinion, must be raised in
habeas proceedings. NRS 34.724(2)(b); see State v. Meier, 440 N.W.2d 700, 703 (N.D.
1989).
2

__________

2
We have observed that defendants are increasingly filing in district court documents entitled motion to
correct illegal sentence or motion to modify sentence to challenge the validity of their convictions and
sentences in violation of the exclusive remedy provision detailed in NRS 34.724(2)(b),
[Headnote 5]
In this case, appellant filed a motion entitled motion for modification of an illegal
sentence. Appellant specifically pursued a motion to modify his sentence instead of pursuing
habeas relief because he believed he was procedurally barred from bringing a successive
habeas petition. Appellant now seeks to selectively apply habeas procedures to take
advantage of the protections of the habeas appeal statute. We will not allow appellant to
abuse the legal process in the manner he proposes.
[Headnote 6]
Habeas corpus is a unique remedy that is governed by its own statutes regarding procedure
and appeal. See Mazzan v. State, 109 Nev. 1067, 863 P.2d 1035 (1993). Appellant's motion
was not filed pursuant to those statutes, and is not governed by them. Instead, appellant's
motion is simply a separate criminal proceeding. We have expressly held that the district
court's order granting or denying such a motion is appealable as the functional equivalent of
an order granting or denying a motion for a new trial pursuant to NRS 177.015(1)(b).
Passanisi v. State, 108 Nev. 318, 321-22, 831 P.2d 1371, 1373 (1992).
NRAP 4(b) provides that [i]n a criminal case, the notice of appeal by a defendant shall be
filed in the district court within thirty (30) days after the entry of the judgment or order
appealed from. We have consistently applied this rule to criminal appeals where no other
specific appeal period has been provided by statute. See Washington v. State, 104 Nev. 309,
756 P.2d 1191 (1988). The timely filing of a notice of appeal is mandatory and jurisdictional.
See Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985). Appellant's
notice of appeal was not filed within the time limit prescribed by NRAP 4(b). We conclude,
therefore, that we lack jurisdiction over this appeal. Accordingly, we dismiss this appeal.
__________
in an attempt to circumvent the procedural bars governing post-conviction petitions for habeas relief under NRS
chapter 34. We have also observed that the district courts are often addressing the merits of issues regarding the
validity of convictions or sentences when such issues are presented in motions to modify or correct allegedly
illegal sentences without regard for the procedural bars the legislature has established. If a motion to correct an
illegal sentence or to modify a sentence raises issues outside of the very narrow scope of the inherent authority
recognized in this Opinion, the motion should be summarily denied.
____________
112 Nev. 710, 710 (1996) Matter of Parental Rights of Weinper
In The Matter of The Parental Rights as To CORTNEY ANNE WEINPER, CORY ARVIN
WEINPER, Appellant, v. THE NEVADA STATE DEPARTMENT OF HUMAN
RESOURCES, DIVISION OF FAMILY SERVICES, Respondent.
No. 27047
May 30, 1996 918 P.2d 325
Appeal from an order of the district court terminating parental rights. Eighth Judicial
District Court, Family Division, Clark County; Gerald W. Hardcastle, Judge.
The supreme court, Rose, J., held that: (1) father was not denied procedural due process;
(2) evidence supported findings that father was unfit and that he had failed to adjust; and (3)
termination of father's parental rights was in child's best interest.
Affirmed.
Jennifer L. Henry, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Linda C. Anderson, Deputy Attorney General,
1. Constitutional Law; Infants.
Trial court's termination of father's parental rights without having current review of case plan prepared by Division of Child and
Family Services (DCFS) did not violate father's procedural due process rights, particularly as father was in court and able to inform
court of any changes in circumstances occurring after time of last report, such that court was fully informed as to father's situation.
U.S. Const. amend 14.
2. Infants.
Because of sacredness of parental rights, higher standard of proof, that of at least clear and convincing evidence, is required before
children can be judicially taken away. NRS 128.105.
3. Infants.
There was sufficient evidence of father's drug use and criminal activity to support finding that he was unfit as parent, for purposes
of determining whether to terminate his parental rights. Father had tested positive for drugs three times during three years preceding
termination hearing, he had misdemeanor drug violation while on probation, he had been arrested for theft of his mother's car and
credit cards, and at time of termination hearing, he was incarcerated pending resolution of charges of assault with deadly weapon
against his mother, with whom he had been living from time of child's birth. NRS 128.105, 128.106(4).
4. Infants.
There was sufficient evidence of father's failure to adjust as parent to support termination of his parental rights. Father was unable
to identify any area in which he had even made progress toward compliance with case plan, except for completion of drug treatment
program which he entered as condition of his release from jail, and he was unable to remain drug-free after
his completion of that program.
which he entered as condition of his release from jail, and he was unable to remain drug-free after his completion of that program. NRS
128.105, 128.109.
5. Infants.
Dispositional question in parental rights termination proceedings is whether terminating parental rights would be in best interest
of child; question focuses on placement which would be most beneficial to child. NRS 128.105.
6. Infants.
Termination of father's parental rights was in child's best interest; child was thriving in her foster home, where she had resided for
last two and one-half years, from time she was nine months old, and there was ample evidence of father's continuing unfitness as parent
and his inability and unwillingness to care for child, including his drug use and criminal activity. NRS 128.105.
OPINION
On April 3, 1992, Cortney Anne Weinper (Cortney) was removed from the home of her paternal grandmother and her father, Cory
Arvin Weinper (Weinper). Cortney was seven months old at the time. Cortney was removed because of Weinper's admitted drug use and
allegations that Weinper had physically abused the grandmother. A case plan was adopted for reunification that required Weinper: (1) to
submit to random drug testing; (2) to obtain substance abuse counseling; (3) to complete individual counseling with a Division of Child
and Family Services (DCFS) approved agency; (4) to pay child support; (5) to obtain and maintain legal employment for a period of six
months; (6) to obtain suitable and independent housing for a period of six months; and (7) to exercise visitation with Cortney.
The first review of Weinper's progress under the plan was conducted on November 4, 1992. Weinper did not appear at the hearing, but
the report stated that he had made no progress. Additionally, no child support had been paid. The hearing master recommended that DCFS
file a petition to terminate Weinper's parental rights by April 1993, unless Weinper made substantial effort toward compliance with the
plan.
In January 1993, Weinper was sentenced to three years probation on drug charges, and his release from the Clark County Jail was
conditioned upon his enrollment in a drug program. He enrolled in and completed a program at the Nevada Treatment Center, thereby
satisfying not only a condition of his probation, but also one of the conditions of his case plan for reunification with Cortney. After his
release from the treatment program, Weinper went to work for a telemarketing firm. It is unclear from the record how long Weinper
worked for the telemarketing firm, but when asked how long he worked there, Weinper replied, "I really can't
recall, it seemed pretty steady, probably at least six months steady, if not a year."
the record how long Weinper worked for the telemarketing firm, but when asked how long he
worked there, Weinper replied, I really can't recall, it seemed pretty steady, probably at least
six months steady, if not a year. Although Weinper was visiting Cortney about once a
month, he was still not paying child support. The only support that was received was $156.00
which was the result of a wage garnishment action initiated while Weinper was briefly
working at Ace Cab Company.
Weinper was arrested in July 1993 and again in September 1993 for being under the
influence of a controlled substance. During this time, Weinper was apparently attending the
Nevada Treatment Center on an outpatient basis, but was discharged on December 7, 1993.
Weinper tested positive for drugs in December 1993, and twice in February 1994.
The matter was reviewed again on May 31, 1994. Weinper was warned that if he did not
fully comply with the case plan, termination of his parental rights would be considered.
On September 21, 1994, the Nevada Attorney General, acting through DCFS, filed a
petition to terminate parental rights, on the grounds of neglect, unfitness, and Weinper's
failure to remedy substantially the conditions that led to Cortney's removal. A hearing on the
termination was held on November 10, 1994. Weinper appeared late and requested that
counsel be appointed. The court appointed an attorney, and the matter was continued.
The next normally-scheduled review of the case plan occurred on November 22, 1994.
DCFS filed the same report that it had previously filed in May, except that the date had been
altered. The court noticed that the report had not actually been updated, and refused to
consider the report as part of the review hearing.
The termination trial was held on February 10, 1995. At the time of the trial, Weinper was
being held on charges of assaulting his mother, Mary, with a deadly weapon. A probation
revocation hearing had also been scheduled.
At the termination trial, Weinper testified, inter alia, that he was familiar with the case
plan for reunification. On March 2, 1995, the district court entered an order terminating
Weinper's parental rights.
Weinper appeals, arguing that: (1) his right to procedural due process was violated; (2)
jurisdictional grounds were not established by clear and convincing evidence; and (3)
dispositional grounds were not established by clear and convincing evidence. We hold that
although DCFS' performance in this case was slipshod, Weinper received due process and
that jurisdictional and dispositional grounds were adequately established.
[Headnote 1]
Weinper first argues that his right to procedural due process, pursuant to the Fourteenth
Amendment to the United States Constitution, was violated by the actions of DCFS and
the district court.
pursuant to the Fourteenth Amendment to the United States Constitution, was violated by the
actions of DCFS and the district court. Specifically, Weinper alleges that the district court
erred by terminating his parental rights without having a current review of the case plan
prepared by DCFS.
The relationship between parent and child has long been recognized as a fundamental
liberty interest. See, e.g., Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405
U.S. 645 (1971); Meyer v. Nebraska, 262 U.S. 390 (1923). The United States Constitution
states that no State shall deprive any person of life, liberty, or property, without due process
of law. U.S. Const. amend. XIV, 1. This court has not specifically addressed the question
of what constitutes due process in an action to terminate parental rights. Other states,
however, have considered the question. See, e.g., In Interest of Brehm, 594 P.2d 269 (Kan.
1979) (due process requires that a parent be represented by counsel in a termination
proceeding); Matter of T.M.H., 613 P.2d 468 (Okla. 1980) (due process requires that parents
be adequately apprised of the conditions that resulted in the removal of the child, so that the
parents know which conditions need to he altered); State v. Darnell, 619 P.2d 1321 (Or.
1980) (allegations of the petition must be reasonably clear and definite); In re Clark, 611 P.2d
1343 (Wash. 1980) (parent must receive notice, an opportunity to be heard or defend, and
assistance of counsel). In sum, other states have determined that, as a matter of due process,
parents are entitled to: (1) a clear and definite statement of the allegations of the petition; (2)
notice of the hearing and the opportunity to be heard or defend; and (3) the right to counsel.
In the instant case, Weinper was afforded all of the above rights. He received a clear and
definite statement of the allegations, admitting at trial that he was familiar with the case plan
and the conditions for reunification. He was present at the termination hearing, and he had the
benefit of appointed counsel. The fact that the caseworker submitted a duplicate report prior
to the termination hearing did not violate Weinper's right to due process. A current report
from the caseworker is not a requirement of due process, especially where, as here, the parent
is in court and able to inform the court of any change in circumstances occurring since the last
report.
In this case, especially, the absence of a current case report did not work an injustice.
Weinper had ample opportunity at the hearing to apprise the court of any progress he had
made toward the case plan, and he was unable to show any progress. Weinper complains that
the old reports did not reflect the fact that he had worked sporadically, that he had suffered an
injury on the job, or that he had served seven weeks on a federal jury.
that he had served seven weeks on a federal jury. However, at the time of the hearing,
Weinper informed the court of all these things. Despite the duplicate report, the court was
fully informed as to Weinper's situation at the time of the hearing. We hold that Weinper's
due process rights were not violated, despite the negligence of DCFS in this case.
[Headnote 2]
Turning to Weinper's contention that DCFS failed to establish sufficient jurisdictional and
dispositional grounds, we hold that the district court correctly found both. This court has
previously interpreted NRS 128.105
1
as follows:
[T]here are two kinds of grounds necessary to be considered in termination
proceedings. One relates to parental conduct or incapacity and the parent's suitability as
a parent; the other relates to the best interest of the child.
Putting it another way: there must be jurisdictional grounds for terminationto be
found in some specific fault or condition directly related to the parentsand
dispositional groundsto be found by a general evaluation of the child's best interest.
Champagne v. Welfare Division, 100 Nev. 640, 646-47, 691 P.2d 849, 854 (1984) (footnote
omitted). Further, [b]ecause of the sacredness of parental rights a higher standard of proof,
that of at least clear and convincing evidence,' is required before the children can be
judicially taken away. Id. at 648, 691 P.2d at 854 (citation omitted).
__________

1
128.105 Grounds for terminating parental rights: Basic considerations. An order of the court for
termination of parental rights must be made in light of the considerations set forth in this section and NRS
128.106, 128.107, and 128.108, with the initial and primary consideration being whether the best
interests of the child would be served by the termination, but requiring a finding that the conduct of the
parent or parents demonstrated at least one of the following:
1. Abandonment of the child;
2. Neglect of the child;
3. Unfitness of the parent;
4. Failure of parental adjustment;
5. Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in,
the home of his parent or parents;
6. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
(b) To prevent neglect of the child;
(c) To avoid being an unfit parent; or
(d) To eliminate the risk of serious physical, mental, or emotional injury to the child; or
7. With respect to termination of the parental rights of one parent, the abandonment by that parent.
The district court found that jurisdictional grounds existed pursuant to: (1) NRS
128.105(3) (Weinper's unfitness as a parent) and (2) NRS 128.105(4) (Weinper's failure to
adjust). Weinper argues that neither of these grounds was proven by clear and convincing
evidence.
[Headnote 3]
NRS 128.106 sets forth specific considerations in determining the unfitness of a parent.
Among these is [e]xcessive use of intoxicating liquors, controlled substances or dangerous
drugs which renders the parent consistently unable to care for the child. NRS 128.106(4).
The district court specifically found that Weinper was unfit as a parent because of his drug
use and criminal activity. There was clear and convincing evidence of both. Weinper tested
positive for drugs three times during the three years preceding the termination hearing; the
last time just seven months before the hearing. Additionally, Weinper had a misdemeanor
drug conviction while on probation. As to the criminal activity, at the time Cortney was
removed from the home, Weinper had been arrested for the theft of his mother's car and credit
cards. At the time of the termination hearing, Weinper was incarcerated pending resolution of
charges of assault with a deadly weapon. The alleged victim of the assault was Weinper's
mother, with whom he had been living since Cortney's birth. There can be no question that
there was clear and convincing evidence of Weinper's unfitness as a parent.
[Headnote 4]
There was also clear and convincing evidence of Weinper's failure to adjust. NRS 128.109
provides that:
If a child has been placed in the custody of the division of child and family services of
the department of human resources and the parent or parents fail to comply
substantially with the terms and conditions of a plan to reunite the family within 6
months after the date on which the child so [sic] placed or the plan commenced,
whichever occurs later, that failure to comply is evidence of failure of parental
adjustment.
Despite the fact that the statute allows a determination to be made of parental failure to
adjust after only six months, DCFS tried to get Weinper to comply with the case plan for
nearly three years before starting termination proceedings.
Weinper testified that he was familiar with the case plan, and yet he was unable to identify
any area in which he had complied, or even made progress toward compliance, except that he
had completed a drug treatment program. However, we note that he entered the program as a
condition of his release from jail. It appears to be coincidental that this condition was also
included in his plan for reunification.
appears to be coincidental that this condition was also included in his plan for reunification.
We cannot help but wonder if he would have undertaken a drug treatment program had he not
been forced to do so in order to be released from jail. Additionally, we note that he was
unable to remain drug-free after his completion of the program. Certainly the point of
completing a drug treatment program is to gain the skills necessary to begin living life
without the aid of controlled substances. It is nearly pointless to complete the program and
still not make any significant lifestyle changes. In sum, we find that there was clear and
convincing evidence of Weinper's failure to adjust as a parent.
[Headnotes 5, 6]
The dispositional question is whether terminating parental rights would be in the best
interest of the child. . . . The [dispositional question] focuses on the placement which will be
most beneficial to the child. Champagne, 100 Nev. at 646, 691 P.2d at 854. Cortney is
thriving in her foster home, where she has resided for the last two and a half years, since she
was nine months old. This assertion was never challenged by Weinper. Additionally, as
already discussed, there was ample evidence to support the district court's finding that
Cortney's best interest would be served by terminating Weinper's parental rights because of
Weinper's continuing unfitness as a parent and his inability and unwillingness to care for
Cortney. Cortney would then be free to be adopted by the foster family; the only family she
has known for most of her life.
This case is troubling, primarily for two reasons. It is very unfortunate that DCFS chose to
act negligently and irresponsibly by failing to submit an updated report at the final review
before the termination hearing. Its behavior, however, does not change the fact that there are
clear jurisdictional and dispositional grounds for terminating Weinper's parental rights. It is
also troubling that we have before us a parent who was repeatedly told that if he failed to
comply with the case plan and assume the responsibilities of parenthood, his parental rights
were subject to termination. In the three years that DCFS was trying to reunify Weinper and
Cortney, Weinper was unable or unwilling to make the changes necessary to allow
reunification. In the meantime, Cortney's life has been in limbo. She is fortunate to have had a
beneficial foster placement which can now be made permanent. It would be a grave injustice
to force Cortney to remain in limbo indefinitely until such a time as her father decides that he
is ready to give up drugs and criminal activity. Accordingly, the order of the district court
terminating Weinper's parental rights is affirmed.
This is yet another in the spate of recent cases in which an ever-increasing number of
natural parents are losing their children to the State because they are flunking their
reunification test.
The Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. 620-628, 670-679
imposes upon the states a duty, when the state removes children from their homes, to use
reasonable efforts to make it possible for the child to return to his home. The Act requires
that a case review system be set up by the states. In response to the federal legislation, the
state has set up standards and regulations which require continued assessment of any child
placement and the development, revision and implementation of a written case plan.
(Substitute Care Manual, issued by Nevada State Welfare Division). The referred-to,
written case plan is part of the federally mandated requirement that states use reasonable
efforts to return to their homes children who have been removed from their homes by welfare
officials. The case plan is sometimes referred to as a reunification plan.
The mentioned Substitute Care Manual emphasizes that periodic evaluation is an integral
part of the casework process and provides that the purpose of periodic evaluation of case
plans is to measure the extent to which treatment goals have been or are being realized. In
other words, the primary duty of Welfare in cases where children have been removed from
their homes is to monitor parental progress or lack of it with respect to the case plan.
When Mr. Weinper's child was removed from his home, Welfare set about the formulation
of a reunification plan and arranged for periodic court reviews of the reasonable efforts that
they were supposedly engaging in so that the child might be returned to its father. When this
matter came before the district court for review on November 22, 1994, the court made a
startling discovery. The case manager presented to the court the identical report that had been
presented at the previous, May, 1994 hearing, only the date had been changed. The case
manager's failure to file a proper and current report is not just an example of official laziness
and neglect, it goes to the basic rights of this father, who was being denied the right to earn
the return of his child by his compliance with the reunification plan. The trial court had given
this father an ultimatum in May and told him that if he did not shape up (to use the
vernacular), he was in danger of losing his child permanently. In response to the judge's
ultimatum, the father did a number of things to improve his chances of having his child
returned, including attempts to get work; but he suffered set-backs in his employment by
reason of injuries and his having served seven weeks on a federal jury.
set-backs in his employment by reason of injuries and his having served seven weeks on a
federal jury.
The trial court decried the fact that the case manager had chose[n] to submit an exact
duplicate of a prior report rather than inform the court of the events during the review
period. This, concluded the court, made it impossible to review the efforts of the parents or
of the DCFS when this is done. It is particularly regrettable when the Court has stated an
ultimatum to a parent to comply.
The district court further observed that this was the second time that this particular case
worker had tried to hoodwink the court. The court commented that these proceedings were
not meant to be a sham and that case workers have the duty to act responsibly when
submitting these kinds of reports. Said the court:
This conduct cannot be tolerated, will not be tolerated, and as far as I'm concerned that
conduct puts my decision today in substantial jeopardy . . . that conduct creates a
difficulty that cannot be overcome.
In my judgment the proceedings leading up to this termination decree were, as recognized
by the court a sham; and I agree with the trial court that it is impossible to review the
efforts of the parents or the welfare agents when welfare agents are guilty of this kind of
misconduct. The trial judge was, of course, correct, when he recognized that his decision was
put in substantial jeopardy by the mentioned misconduct and that it create[d] a difficulty
that cannot be overcome.
Here we have a father who was trying. Here we have a father who does not deserve to lose
his child. Given the gross misconduct of the Welfare agents in this case, I would remand the
matter back to the trial court and order that the trial court provide the father with another six
month's trial period, after which his efforts would be reviewed and a decision made, based
upon a non-fraudulent welfare report, as to whether he is a fit parent and as to whether he
deserves
1
to lose his child.
__________

1
[A] parent does not deserve to forfeit the sacred liberty right of parenthood unless such unfitness is shown to
be severe and persistent and such as to render the parent unsuitable to maintain the parental relationship.
Champagne v. Welfare Division, 100 Nev. 640, 648, 691 P.2d 849, 855 (1984) (footnote omitted).
____________
112 Nev. 719, 719 (1996) Matter of Parental Rights of Montgomery
In The Matter of The Parental Rights as To VANESSA NICOL MONTGOMERY,
CHERREL A. MONTGOMERY, Appellant, v. THE STATE OF NEVADA,
DEPARTMENT OF HUMAN RESOURCES, DIVISION OF CHILD AND FAMILY
SERVICES, Respondent.
No. 27557
May 30, 1996 917 P.2d 949
Appeal from district court order terminating appellant's parental rights. Eighth Judicial
District Court, Clark County; Gerald W. Hardcastle, Judge.
The supreme court, Steffen, C. J., held that jurisdictional grounds for termination were not
proved by clear and convincing evidence.
Shearing and Young, JJ., dissented.
Ronald W. Rovacchi, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General and Linda C. Anderson, Deputy Attorney
1. Infants.
Power to terminate parental rights is awesome power tantamount to civil death penalty and, thus, actions of that nature and
severity must be closely scrutinized, though reviewing court will uphold termination orders if they are based on substantial evidence,
and will not substitute its judgment for that of trial judges who hear and observe witnesses. NRS 128.105.
2. Infants.
In order to terminate parental rights, both jurisdictional and dispositional grounds must be established by clear and convincing
evidence; jurisdictional aspect of action for termination involves specific fault or condition directly related to parent, whereas
dispositional aspect of action focuses on best interest of child. NRS 128.105.
3. Infants.
Intent is decisive factor in determining whether there has been abandonment of child, for purposes of determining whether to
terminate parental rights, and it may be shown by facts and circumstances. NRS 128.012(1), (2), 128.105.
4. Infants.
There was no clear and convincing evidence supporting jurisdictional finding based on abandonment in proceeding to terminate
mother's parental rights. During her absence, mother made several unsuccessful attempts to contact Department of Child and Family
Services (DCFS), when she returned, she immediately obtained suitable employment and housing and began attending meetings for
alcoholics, she made it clear that she would oppose petition to terminate her parental rights, and she appeared at
all hearings and complied with revised case plan.
that she would oppose petition to terminate her parental rights, and she appeared at all hearings and complied with revised case plan.
NRS 128.105.
5. Infants.
Term unsuitable parent, for purposes of determining whether to terminate parental rights, describes parent who by reason of
persistent fault or state of incapacity deserves to have his or her parental rights terminated or who must sacrifice such parental rights in
interest of child, by reason of irremedial inability to function as proper and acceptable parent. NRS 128.105, 128.106.
6. Infants.
There was no clear and convincing evidence of mother's unfitness, for purpose of determining whether to terminate her parental
rights, as sole issue bearing on her suitability, her alcoholism, was not shown to be irremediable condition. Mother had stable job,
where she had been successful, she married man who had stable job, had no criminal background and did not drink, and when given
additional four months to demonstrate commitment to remaining sober, she fully complied with revised case plan. NRS 128.105,
128.106.
7. Infants.
Although failure of parental adjustment may provide jurisdictional ground for termination of parental rights, it is fraught with
difficulty and must be applied with caution. The task in failure to adjust cases is to realistically evaluate parent's efforts to adjust
circumstances, conduct or conditions within reasonable amount of time to justify child's return home, and main concern is permanency
of adjustmentchild should not be held in limbo indefinitely. NRS 128.0126, 128.105.
8. Infants.
For purpose of determining whether to terminate mother's parental rights, there was no clear and convincing evidence that mother
had failed within reasonable amount of time to correct her drinking, which had led to child's removal. During approximately 22 months
that child was ward of court, there was five-month period where mother did not make efforts to adjust, three-month period where she
made partial effort to adjust, and she had otherwise made substantial efforts to adjust, including full compliance with revised case plan
when given four months to demonstrate her commitment to remaining sober. NRS 128.0126, 128.105.
OPINION
Appellant Cherrel A. Montgomery challenges the district court's order terminating her parental rights. Cherrel contends that the district
court lacked the requisite jurisdictional and dispositional grounds to terminate her rights as a parent. We agree and reverse.
FACTS
Vanessa Nicol Montgomery was born to Cherrel on September 10, 19S9, in Yakima, Washington.1 In February 1993,
Cherrel and then three-year-old Vanessa moved to Las Vegas.
10, 1989, in Yakima, Washington.
1
In February 1993, Cherrel and then three-year-old
Vanessa moved to Las Vegas.
Clark County Child Protective Services (CCCPS) first became involved with Cherrel
and Vanessa on May 7, 1993. Police officers responding to a family fight call at the apartment
where Vanessa was living with Cherrel and her boyfriend, Rob Coleman, took Vanessa to
Child Haven because Cherrel was intoxicated and unable to care for the child. As a result of
Cherrel's cooperation with CCCPS, a case officer determined that family preservation was the
best approach and involved Cherrel in Home Base Family Services (Home Base) for
counseling on issues of parenting and alcohol abuse.
2
Additionally, Cherrel left her
boyfriend and found a place to live. Vanessa was returned to Cherrel's custody.
On June 10, 1993, Vanessa was taken to Clark County Juvenile Hall after she was found
wandering around her apartment complex and police were unable to locate Cherrel. The
mother had left Vanessa with a babysitter and the child wandered away from the sitter's
apartment. Candace Bennett, a protective officer with Family Youth Services, ordered
Cherrel to secure appropriate supervision for Vanessa and referred the case to Cherrel's
ongoing caseworker with a recommendation that Cherrel continue with family preservation
counseling. Again, Vanessa remained in her mother's custody.
On August 10, 1993, Cherrel was arrested for DUI while en route to pick up Vanessa at a
day care center, and Vanessa was transported to Child Haven. The following day, Cherrel
voluntarily admitted herself to the VITA Day Treatment Program at the Nevada Treatment
Center.
After the August incident, Bennett talked to both Cherrel and Vanessa. Bennett described
Vanessa as very well-adjusted, developed mentally, and quite bonded with Cherrel. Bennett
also visited Cherrel's residence and found it to be clean and appropriate for a child. Bennett
felt that alcohol was at the heart of Cherrel's problem; she also recognized that Cherrel was
cooperative and seemed sincere in her desire to overcome her alcoholism. At the time,
Cherrel was still involved with Home Base. According to Bennett, Cherrel was a good mother
when sober and she would have no problem recommending that Vanessa live with her
mother once the alcohol problem was resolved.
__________

1
Cherrel has two other children who are living with their respective fathers in Washington. According to
Cherrel, these children were taken from her because of her drinking, but Washington protective services did not
attempt to reunite her with her children and, at the time, Cherrel thought the children would be better off with
their fathers.

2
Cherrel started drinking when she was fifteen years old.
mother once the alcohol problem was resolved. However, Bennett also believed that it would
take long-term sobriety to demonstrate Cherrel's commitment, and therefore recommended
that Vanessa be made a ward of the court and placed with the Department of Child and
Family Services (DCFS).
On August 18, 1993, CCCPS filed a petition to declare Vanessa a ward of the court
because Cherrel's use of alcohol adversely affects her parenting abilities. Cherrel admitted
to the allegations of the petition and on September 15, 1993, Vanessa was adjudicated a
neglected child and made a ward of the court.
Linda Kennedy, the DCFS social worker assigned to the case, agreed that Cherrel's alcohol
abuse was the main obstacle to Vanessa remaining with Cherrel. Accordingly, Kennedy
developed a case plan for reunification that would deal with this issue. The plan required that
Cherrel: (1) remain in the VITA program to address alcohol abuse; (2) enter individual
counseling; (3) submit to random urine analyses (UAs); (4) secure a stable job; (5) attend AA
meetings; (6) secure day care; and (7) pay child support.
Cherrel immediately started complying with the reunification plan. At the periodic review
on February 15, 1994, Kennedy assessed Cherrel's compliance during the first six months as
excellent. Although Cherrel had one relapse in November, she took appropriate steps to get
back on track. According to Kennedy, [r]elapse is a part of treatment. I mean you expect
people to relapse, so I didn't have a problem with that. During this initial evaluative period,
Cherrel had regular visits with Vanessa which increased over time. On March 31, 1994,
Vanessa went home with Cherrel.
Kennedy visited Cherrel's home every other month and generally found that the home was
clean, there was sufficient food and Vanessa was in good physical condition. However, at
some point Kennedy began having problems contacting Cherrel to monitor her progress. On
June 6, 1994, Kennedy tried to make a home visit after receiving a call from Rob saying that
Cherrel had been drinking and had left with Vanessa. When Kennedy arrived at the
apartment, the apartment was a mess and Rob told her that Cherrel was at another address.
Kennedy went there and saw Cherrel's truck, but was unable to locate Cherrel. Kennedy and
another social worker returned to Cherrel's apartment. Although Rob initially said Cherrel
was out, he eventually let them enter the apartment where they found Cherrel in an apparently
intoxicated state. Consequently, Vanessa was removed from the home and placed in foster
care.
Thereafter, Cherrel wrote a letter to DCFS stating that she was no longer drinking and
had left Rob.
no longer drinking and had left Rob. She also called and asked to talk with or see Vanessa;
however, this request was denied. Occasionally, Kennedy received collect calls from Cherrel,
which she could not accept. When Kennedy tried to return the calls, Cherrel either wasn't at
the number or the number had been disconnected. At some point in July 1994, Cherrel
disappeared. Kennedy testified that Cherrel had no contact with DCFS and provided no
financial support for Vanessa from July to December 1994.
During this time, Cherrel went with Rob to Texas and then to Florida. Cherrel claimed that
she was sober throughout this time, but was not in treatment. Eventually, she decided to leave
Rob and returned to Las Vegas around Thanksgiving. When she returned to Las Vegas, she
secured a job as a certified nurse assistant (CNA) at Life Care Center, a convalescent home.
On December 2, 1994, Kennedy filed a petition to terminate Cherrel's parental rights.
3
The petition alleged as jurisdictional grounds, neglect, unfitness and failure of parental
adjustment.
Also in December, Cherrel contacted Kennedy. She explained that she had been back since
Thanksgiving, had left Rob, was now working two jobs and attending AA meetings. During
this call Cherrel learned of the action to terminate her rights, and expressed her intent to
oppose the petition. Cherrel thereafter appeared at a hearing on February 16, 1995, to oppose
the petition, and the court appointed an attorney to represent her.
A contested hearing on the termination petition was held on March 17, 1995. Kennedy
testified that if Cherrel could be rehabilitated, it would be best for Vanessa to be with her
mother.
4
However, based on Cherrel's prior history, Kennedy concluded that Cherrel could
not be rehabilitated and that further efforts by DCFS would not change Cherrel's situation
because of her chronic alcoholism and Vanessa's fear of her mother's drinking.
Denise Bydlowski, a licensed practical nurse and Cherrel's supervisor over a period of four
months, rated Cherrel as one of her best CNAs. Bydlowski said she was aware of Cherrel's
problems with alcohol, but that as far as she knew Cherrel was sober.
__________

3
The petition also sought the termination of the father's parental rights. Cherrel identified Thomas Thompson as
the father; however, their relationship consisted of a single evening, and DCFS has been unable to locate him.
The father's rights are not at issue in this appeal.

4
Vanessa had expressed love for her mother and a desire to visit her, but did not want to live with her. Kennedy
explained that Vanessa might have developmental problems and needed a stable, secure home environment.
Kennedy also testified that Vanessa might suffer from Fetal Alcohol Syndrome. However, Vanessa has not been
tested for the condition and there was no evidence, other than Kennedy's testimony, that Vanessa actually suffers
from FAS.
problems with alcohol, but that as far as she knew Cherrel was sober.
5
Cherrel's husband,
Richard James Good,
6
testified that he is prepared both emotionally and financially for the
responsibility of raising Vanessa and would be willing to adopt the child. Good is a
non-drinker and also works at Life Care Center.
Cherrel explained that she has been sober since December 9, 1994. She testified that she
goes to AA meetings at least every other night and has a sponsor who has been sober for
thirteen years. When asked why the court should now believe that she will remain sober,
Cherrel responded that this time she was doing it for herself whereas before she had achieved
sobriety in order to be reunited with her daughter. She asked the court to give her an
opportunity to demonstrate that she could stay sober.
At the conclusion of the March 17, 1995 hearing, the district court stated that jurisdictional
grounds of abandonment and unfitness had been proved without a doubt. The judge said
that to some degree he was impressed with the fact the mother is trying. However, the
judge was concerned about the damage that had already been done to Vanessa and the
damage that would result if she were returned to Cherrel only to have the mother suffer
another relapse. The judge explained that he was inclined to go ahead and terminate Cherrel's
rights. However, the judge also expressed concern that on appeal the supreme court might
conclude there was not clear and convincing evidence to support the termination. Further,
the mother made a promise to us. Promise was that she'd be able to resolve this matter
within a short period of time. To the degree reunification could occur. Consequently, the
judge decided to continue the case for four months to explore whether Cherrel could sustain
an effort longer than just a few months. Even though then this Court may very well abide by
its earlier decision after consideration.
Cherrel and DCFS entered into a revised case plan on April 27, 1995. Under the revised
case plan, Cherrel had to: (1) attend counseling to deal with patterns of relapse; (2) submit to
random UAs; (3) attend AA meetings at least three times per week; (4) attend parent training
classes; (5) pay child support of $100 per month; and (6) provide a background check on Mr.
Good.
The hearing continued on July 14, 1995. Kennedy testified that Cherrel had complied with
the plan. Although Cherrel had attended only two drug counseling sessions, this was because
she had to wait for an opening in the program. DCFS had requested eight UAs, all of which
were clean. Kennedy had verified at least fifteen AA meetings per month. Cherrel was on a
waiting list for parenting classes because the classes required that the child be in the
home.
__________

5
Life Care Center conducts random drug testing of its employees.

6
Cherrel and Good were married on February 14, 1995. They had known each other for approximately eighteen
months prior to the marriage.
parenting classes because the classes required that the child be in the home. Cherrel had paid
the required support, and the background check on Good indicated no criminal history.
Kennedy also visited the home, which was clean.
Despite Cherrel's compliance with the revised reunification program, Kennedy testified
that she remained concerned about a relapse based on Cherrel's history. Consequently, she
still recommended termination.
Jacqueline Harris, a mental health counselor at DCFS, also testified. Harris had six
sessions with Vanessa since April 25, 1995. Vanessa had expressed fear and insecurity when
asked about living with her mother. Harris diagnosed Vanessa as suffering from chronic
post-traumatic stress, requiring a high level of care in a structured, nurturing environment.
She explained that if reunification were attempted, it would be traumatic at first for Vanessa
and would have to proceed at Vanessa's pace. Harris opined that such a reunification would
take at least six months to complete. Finally, Harris testified that if there were a reunification,
a relapse on Cherrel's part would have a severe impact on Vanessa.
Cherrel testified that she was still doing well at work and that she was attending AA. She
explained that she has learned to deal with stress by talking to her AA sponsor or a counselor
rather than drinking. She testified that in the next month she would begin paying the arrearage
in support.
At the conclusion of the July 14 hearing, the district court decided to terminate Cherrel's
parental rights. The judge was still concerned about a relapse and felt that Vanessa deserved
some sort of permanency in her life:
Now, is the time to say I have to look after Vanessa. That mymy concern here is not
the success or the failures of this mother. My concern here must be to protect Miss
Vanessa. Vanessa has moved on in her life. She has found a stable placement. She has,
in fact, found a family. A family who loves her, provides her with everything that she
needs, to a child that has high needs. It very well may be thatthat the mother has
succeeded, but so long as there is any risk.
Accordingly, the district court then concluded that jurisdictional grounds of unfitness and
failure of parental adjustment had been demonstrated by clear and convincing evidence and
that termination was in Vanessa's best interest.
On July 27, 1995, the district court entered its findings of fact, conclusions of law and
order terminating parental rights. The district court found that Cherrel was an unfit parent,
had placed Vanessa at risk and had failed to adjust her situation. The conclusions of law also
set forth abandonment as a basis for the termination.
sions of law also set forth abandonment as a basis for the termination.
DISCUSSION
Cherrel contends that there was insufficient evidence to support a termination based on
abandonment, unfitness or failure of parental adjustment.
7
We agree.
[Headnote 1]
The power to terminate parental rights is an awesome power. Champagne v. Welfare
Division, 100 Nev. 640, 645, 691 P.2d 849, 853 (1984). It is tantamount to a civil death
penalty. Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). Consequently, actions
of this nature and severity must be closely scrutinized. Kobinski v. State, 103 Nev. 293, 296,
738 P.2d 895, 897 (1987). However, we will uphold termination orders if they are based on
substantial evidence, and will not substitute our judgment for that of the trial judges who hear
and observe the witnesses. Id. (citations omitted).
[Headnote 2]
In order to terminate a parent's rights, both jurisdictional and dispositional grounds must
be clearly and convincingly satisfied. The jurisdictional aspect of an action for termination
involves a specific fault or condition directly related to the parent; whereas, the dispositional
aspect of the action focuses on the best interest of the child. Champagne, 100 Nev. at 646-47,
691 P.2d at 854. As previously indicated, and repeated for purposes of emphasis, both
grounds must be established by clear and convincing evidence. Id. at 648, 691 P.2d at 854.
__________

7
NRS 128.105 sets forth the basic considerations relevant to determining whether to terminate parental rights.
It provides, in relevant part:
An order of the court for termination of parental rights must be made in light of the considerations set
forth in this section and NRS 128.106, 128.107 and 128.108, with the initial and primary consideration
being whether the best interests of the child would be served by the termination, but requiring a finding
that the conduct of the parent or parents demonstrated at least one of the following:
1. Abandonment of the child;
. . . .
3. Unfitness of the parent;
4. Failure of parental adjustment;
. . . .
6. Only token efforts by the parent or parents:
(a) To support or communicate with the child;
. . . .
(c) To avoid being an unfit parent; or
(d) To eliminate the risk of serious physical, mental or emotional injury to the child; or
7. With respect to termination of the parental rights of one parent, the abandonment by that parent.
Abandonment
[Headnote 3]
The term abandonment of a child as used in NRS 128.105 is defined as any conduct of
one or both parents of a child which evinces a settled purpose on the part of one or both
parents to forego all parental custody and relinquish all claims to the child. NRS 128.012(1).
Intent is the decisive factor in abandonment and may be shown by the facts and
circumstances. Smith v. Smith, 102 Nev. 263, 266, 720 P.2d 1219, 1221 (1986). However, a
presumption of abandonment arises when a parent . . . leave[s] the child in the care and
custody of another without provision for his support and without communication for a period
of 6 months . . . . NRS 128.012(2).
[Headnote 4]
In the present case, it is undisputed that Cherrel was out of contact for less than six
months. Thus, the statutory presumption is inapplicable. Additionally, our review of the
record demonstrates anything but a settled purpose on Cherrel's part to forego all parental
custody and relinquish all claims to Vanessa. Prior to her absence, Cherrel made significant
strides to overcome her problems with alcohol. It appears that her absence was in part due to
a belief that she would be unable to regain custody of Vanessa; however, during that time she
made several unsuccessful attempts to contact DCFS. When Cherrel returned to Nevada, she
immediately obtained suitable employment and housing. She began attending AA meetings.
She also contacted DCFS and, when informed of the action to terminate her rights as a parent,
Cherrel made it abundantly clear that she would oppose the petition. She appeared at all
hearings and complied with the revised case plan. The evidence substantially indicates that
Cherrel intended to maintain a relationship with Vanessa and fight to regain custody of her
daughter. Under these circumstances, we conclude that there was not clear and convincing
evidence to support a jurisdictional finding based on abandonment.
Unfitness
The term unfit parent as used in NRS 128.105 is defined as any parent of a child who,
by reason of his fault or habit or conduct toward the child or other persons, fails to provide
such child with proper care, guidance and support. NRS 128.018. Pursuant to NRS 128.106
certain conditions diminish suitability as a parent, including:
4. Excessive use of intoxicating liquors, controlled substances or dangerous drugs
which renders the parent consistently unable to care for the child.
. . . .
8. Inability of appropriate public or private agencies to reunite the family despite
reasonable efforts on the part of the agencies.
[Headnote 5]
In the past, we have recognized that all parents are guilty of failure to provide proper care
on occasion; and a parent does not deserve to forfeit the sacred liberty right of parenthood
unless such unfitness is shown to be severe and persistent and such as to render the parent
unsuitable to maintain the parental relationship. Champagne, 100 Nev. at 648, 691 P.2d at
855 (footnote omitted) (emphasis added). The term unsuitable describes a parent who by
reason of persistent fault or state of incapacity deserves to have his or her parental rights
terminated or who must sacrifice such parental rights in the interest of the child, by reason of
irremedial inability to function as a proper and acceptable parent. Id. at 648 n.5, 691 P.2d
at 855 n.5 (emphasis added).
[Headnoce 6]
After reviewing the record in the present case, we are unable to conclude that there was
clear and convincing evidence of Cherrel's unfitness. Every social worker involved with this
case identified Cherrel's alcoholism as the sole issue bearing on Cherrel's suitability as a
mother. It is uncontroverted that Cherrel is a chronic alcoholic. What is controverted is
whether her condition is irremediable. Kennedy testified that in her opinion Cherrel would
not be able to maintain her sobriety. This conclusion is belied by the record; in particular by
Cherrel's conduct since December 1994. Once again, we note that Cherrel has a stable job,
where she has been successful. She has married a man who has a stable job, no criminal
background and does not drink. When given an additional four months to demonstrate her
commitment to remaining sober, Cherrel fully complied with the revised case plan.
Alcoholism is a devastating disease with tragic consequences for both alcoholics and their
families and friends. Here, however, we are faced with a mother who, although struggling,
has made significant progress. In light of the total record, we are simply unable to conclude
that Cherrel's condition was irremediable. In fact, her recent conduct demonstrates otherwise.
Failure of Parental Adjustment
[Headnote 7]
Failure of parental adjustment as used in NRS 128.105 arises
when a parent or parents are unable or unwilling within a reasonable time to correct
substantially the circumstances, conduct or conditions which led to the placement of
their child outside of their home, notwithstanding reasonable and appropriate
efforts made by the state or a private person or agency to return the child to his
home.
conduct or conditions which led to the placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts made by the state or a private person
or agency to return the child to his home.
NRS 128.0126. Although failure of parental adjustment may provide a jurisdictional ground
for termination, it is fraught with difficulties and must be applied with caution.
Champagne, 100 Nev. at 652, 691 P.2d at 857. The task in failure to adjust cases is to
realistically evaluate the parent's efforts to adjust circumstances, conduct or conditions
within a reasonable amount of time to justify the child's return home. The main concern is
permanency of adjustmenta child should not be held in limbo indefinitely. Id. at 651, 691
P.2d at 857.
We agree with the district court's concern for the amount of time that Vanessa has been in
the court's custody. However, we are disturbed by the district court's decision to give Cherrel
four months to demonstrate that she could remain sober and, thereafter, concluding that her
full compliance with the revised case plan was insufficient to demonstrate she could remain
sober. During the approximately twenty-two months (September 1993 to July 1995) that
Vanessa was made a ward of the court, there was a five-month period (July to December
1994) where Cherrel did not make efforts to adjust and a three-month period (January to
March 1995) where Cherrel made partial efforts to adjust; otherwise, Cherrel made
substantial efforts to adjust.
The present case is completely unlike that of Kobinski v. State, 103 Nev. 293, 738 P.2d
895 (1987), wherein this court upheld the termination of a mother's parental rights for, inter
alia, failure of parental adjustment despite evidence that the mother had found employment, a
home, a fiancee and had conquered her drinking problem. In Kobinski, the mother had made
this progress only after ten years of frequent state intervention during which time she
completely failed to meet minimal requirements to retain custody of her children. As noted
above, Cherrel's situation is much different.
In light of the total record, we are unable to conclude that Cherrel has reached the point
where society must give up on her motherhood. See Champagne, 100 Nev. at 651, 691 P.2d
at 857. We further conclude that there was not clear and convincing evidence that Cherrel had
failed within a reasonable amount of time to correct the condition (her drinking) which led to
Vanessa's removal.
Because none of the jurisdictional findings were supported by clear and convincing
evidence, we conclude that the district court erred in finding jurisdictional grounds for
termination of Cherrel's parental rights.
Cherrel's parental rights. Therefore, we need not address the district court's findings with
respect to dispositional grounds for termination. See id. at 647, 691 P.2d at 854.
We note, however, that the record indicates Vanessa still loves Cherrel and wants to visit
her, although Vanessa is afraid to live with Cherrel because of Cherrel's drinking problem.
Testimony during the second hearing indicates that reunification would be possible, but that it
must progress at a pace consistent with Vanessa's ability to handle such a transition without
undue trauma. We conclude that Cherrel deserves a chance to show her daughter that she can
remain sober and care for her.
8
We emphasize, however, that we fully respect and encourage
whatever measures may be necessary to attempt a reunification that will bless, rather than
injure, the long-suffering child.
CONCLUSION
For the reasons set forth above, we conclude that jurisdictional grounds for termination
were not proved by clear and convincing evidence. Vanessa shall remain in the custody of the
district court while DCFS develops a plan to reunify Cherrel and Vanessa, if at all possible.
Accordingly, we reverse the termination of Cherrel's parental rights and remand the case to
the district court for further proceedings.
Springer and Rose, JJ., concur.
Shearing, J., with whom Young, J., joins, dissenting:
I dissent because I believe that there was sufficient evidence to support the trial court's
decision. On appeal, our review is limited to determining whether there was clear and
convincing evidence to support the judgment. Kobinski v. State, 103 Nev. 293, 296, 738 P.2d
895, 897 (1987). This court may not substitute its own evaluation of the evidence for that of
the district court where the district court had an opportunity to hear the witnesses and judge
their demeanor. Id.
I sympathize with the majority view that Vanessa's mother has valiantly attempted to
conquer her alcoholism and to act as a mother to Vanessa. However, she has also frequently
lapsed and disappeared from Vanessa's life for months at a time. Termination of parental
rights cases in which the parent is struggling with substance abuse are some of the most
difficult. Often the parent truly wants to be a good parent and can be one for awhile, but then
relapses into a state in which the drugs or alcohol have greater importance than the child.
__________

8
Because of the pending termination petition, Cherrel has not been allowed contact with Vanessa since
December 1994.
then relapses into a state in which the drugs or alcohol have greater importance than the child.
The child is then abandoned. The question becomes, how long is it fair to the child to
continue in a life of instability and periodic abandonment? This is the difficult question with
which a district court must wrestle. The district court is in a better position to make that
determination than this court.
I do not agree that there was insufficient evidence of parental unfitness. In May 1993,
police officers responded to a call concerning a family fight. Vanessa was found with bruises
on her face and legs; her mother was so intoxicated she was unable to care for Vanessa.
Vanessa was taken to Child Haven. At first, Vanessa's mother denied having a drinking
problem, but smelled of alcohol while making this declaration. She eventually admitted that
she had a drinking problem and was referred for counseling on issues of parenting and
alcohol. Vanessa was returned to her mother's home. In June 1993, four-year-old Vanessa
was found wandering around her apartment complex while her mother was out drinking and
gambling. Vanessa was still allowed to remain in her mother's home. In August 1993,
Vanessa's mother was arrested for DUI while en route to pick up Vanessa from a day-care
center.
After this incident, in September 1993, Vanessa was made a ward of the State because she
was at risk due to her mother's ongoing drinking problem. Vanessa's mother admitted in court
that her use of alcohol adversely affected her parenting abilities. The Department of Child and
Family Services (DCFS) developed a caseplan and Vanessa's mother generally complied for a
few months. She had a relapse in November, but she took appropriate steps to resume her
compliance. In March 1994, Vanessa was returned to her mother's home. In June, the DCFS
caseworker received a call that Vanessa was in danger because her mother was drunk. After
an extensive search, the caseworker found Vanessa with her mother, who was intoxicated.
Vanessa expressed relief that the caseworker had come for her. Vanessa was returned to a
foster home. The caseworker was repeatedly unable to reach Vanessa's mother, and sometime
in July, Vanessa's mother disappeared. It was later discovered that she had moved to Texas
and then Florida. Vanessa's mother had no more contact with the DCFS until December 1994.
In December, after there had been no contact for six months, the DCFS filed the petition to
terminate parental rights.
Later in December, Vanessa's mother contacted DCFS to inform them that she was
employed and attending AA meetings. She stated that she had been in the area for over a
month, but had failed to contact DCFS or attempt to contact Vanessa. In March 1995, a
contested termination hearing was held.
1995, a contested termination hearing was held. The two Child Protective Service
caseworkers who had the initial contacts with Vanessa and had unsuccessfully tried to work
with Vanessa's mother testified at the hearing. The DCFS caseworker testified regarding her
experience with Vanessa's mother. A former foster parent and the present foster parent of
Vanessa, a registered nurse specializing in pediatric emergency nursing, testified about the
problems that Vanessa had with insecurity, nightmares, screams in her sleep and emotional
needs. The foster mother described how Vanessa was particularly needy and required
constant reassurance that her foster family would be there for her. Vanessa told the family
that she wanted to stay with them forever and forever. The foster mother testified as
follows:
The responses that I get from Vanessa are that she wants to visit her mother at the
welfare office, but she said to me on many occasions she does not want to live with her
mother. That she makes statements such as her mother drinks and that she fights. She
says things such as, My mother says she will stop drinking, but she lies.
She has said many, many times over to me that there were times when her mother
would not wake up. There was one instant she was talking with my children telling
them that there was a cup of milk or whatever, they lived in a home with a lot of bugs
and that she was drinking a glass of milk and a bug got on her face and she couldn't
wake her mother up and she was scared.
Vanessa's mother and her new husband testified as to the improvements Vanessa's mother had
made in her life.
At the conclusion of the March hearing, the district judge stated that if the best interests of
the child were the only issue, there would be no question that he would grant termination.
Nevertheless, he continued the hearing for four months to monitor the mother's actions and
then to receive additional testimony.
In July, the hearing continued and a mental health counselor testified that she had
evaluated Vanessa; she concluded that Vanessa suffered from chronic post-traumatic stress
and needed a high level of structured care and a safe, nurturing environment. The counselor
testified that if reunification with her mother were commenced and the mother had a relapse,
the impact on Vanessa would be severe. Both Vanessa's mother and the DCFS caseworker
testified that a caseplan had been developed after the first hearing in March. Vanessa's mother
had maintained sobriety and had complied with all of the counseling requirements, to the
extent possible, during the intervening four months.
The district judge found that there was clear and convincing evidence that Vanessa's
mother was unfit and unable to adjust as a parent, and that Vanessa's best interests would be
served by terminating her mother's parental rights. It does seem somewhat unfair for the judge
to have given the mother an extra four months to show her stability and then, when she did so
demonstrate, terminate her rights anyway. Nevertheless, the evidence of Vanessa's mother's
chronic problem was in the record, and even though she had made significant progress, the
evidence of frequent prior relapses is sufficient to conclude that the problem was
irremediable. Moreover, the judge was particularly concerned with Vanessa's best interests,
her two years of instability, her need for security and the devastating consequences to her if
her mother relapses. There may be a legitimate difference of opinion as to which course is in
Vanessa's best interests, but this court should not substitute its own judgment for that of the
district court.
____________
112 Nev. 733, 733 (1996) Roe v. State
MICHAEL JAMES ROE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25805
May 30, 1996 917 P.2d 959
Appeal from a judgment of conviction, entered pursuant to a guilty plea, of one count of
child abuse causing substantial bodily harm. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
The supreme court held that: (1) County Social Services Department and State Welfare
Department were victims to which restitution could be ordered, and (2) trial court
erroneously failed to determine specific dollar amount of restitution.
Affirmed in part, vacated in part and remanded.
Respondent.
1. Criminal Law.
County Social Services Department and State Welfare Department were "victims" to which defendant convicted of
child abuse could be ordered to make restitution.
112 Nev. 733, 734 (1996) Roe v. State
were victims to which defendant convicted of child abuse could be ordered to make restitution. Loss suffered was unexpected and
occurred without voluntary participation of agencies, money expended by agencies was to benefit children who were true victims of
defendant's criminal conduct, and reimbursing agencies was analogous to making restitution to guardian acting on behalf of children.
NRS 176.033(1), 213.005(2).
2. Criminal Law.
Order requiring child abuse defendant to pay restitution to County Social Services Department and State Welfare Department
erroneously failed to specify amount of restitution. Trial court was required to determine specific dollar amount of restitution, rather
than directing Division of Parole and Probation to determine restitution amount. NRS 176.033(1)(c).
OPINION
Per Curiam:
On February 13, 1994, Reno police officers responded to a local residential motel on a report of possible child neglect. In the motel
room, the officers found Michael and Ann Roe and their two children, Stephanie (two and one-half years old) and Jessica (six months old).
The motel room was filthy, with garbage and dirty clothes everywhere. The officers examined Stephanie and found numerous burns and
bruises on her body, what appeared to be an adult bite wound on her left shoulder and swelling and bruising to her forehead. Jessica showed
no signs of physical trauma. Stephanie was transported to the hospital, and it was discovered that she had a fractured rib. Michael and Ann
were arrested and charged with child abuse and neglect.
Pursuant to plea negotiations, Michael pleaded guilty to one count of child abuse causing substantial bodily harm to Stephanie. The
remaining two charges of willfully endangering a child as the result of neglect were dropped. Michael was sentenced to twelve years in the
Nevada State Prison and was ordered to pay restitution in an amount to be determined by the Division of Parole and Probation. Although
the order for restitution is vague, the Division of Parole and Probation indicated that restitution was to include the costs of medical attention
for Stephanie, as well as the costs of foster care. The restitution would be paid, in part, to the Washoe County Social Services Department
and the remainder to the State Welfare Department.
[Headnote 1]
On appeal, Michael challenges the portion of his sentence which orders restitution. First, he argues that a state agency cannot be
considered a victim for purposes of restitution pursuant to NRS 176.033{1).
112 Nev. 733, 735 (1996) Roe v. State
to NRS 176.033(1).
1
In support of his argument, Michael points to NRS 213.005(2) which,
at the time of sentencing, defined victim as (a) A person against whom a crime has been
committed; (b) A person who has been injured or killed as a direct result of the commission
of a crime; or (c) A relative of a person described in paragraph (a) or (b).
2
The definition of
victim in NRS 213.005 is not cross-referenced in NRS 176.033, and no definition of victim
appears in Chapter 176. This court has considered this very issue in a recent opinion.
Igbinovia v. State, 111 Nev. 699, 895 P.2d 1304 (1995). This court concluded, in Igbinovia,
that a police department that expended money to set up a drug transaction was not a victim
of crime and therefore was not entitled to restitution based on the money expended. 111 Nev.
at 706, 895 P.2d at 1308. We are persuaded that the word victim' has commonly-understood
notions of passivity, where the harm or loss suffered is generally unexpected and occurs
without the voluntary participation of the person suffering the harm or loss. Id. However,
this court went on, it is not without any foundation in logic that the government might fall
under the wording of subsection 2(a) [sic] of NRS 213.005 (defining victim' as one who has
been injured . . . as a direct result of the commission of a crime'). Id. It would be a drastic
over-simplification of the holding in Igbinovia merely to state that a governmental agency
cannot be considered a victim for the purposes of restitution. The rule announced in Igbinovia
is a narrow one, tailored specifically to cases where law enforcement agencies have expended
money to conduct undercover drug buys. Whether the state or a state agency is a victim for
purposes of restitution will depend on the facts of each case.
The state agencies involved in the instant case can be considered victims for the
purposes of restitution for two reasons. First, they qualify under the reasoning set forth in
Igbinovia, i.e., the harm or loss suffered was unexpected and occurred without the voluntary
participation of the agencies suffering the harm or loss. Second, the money expended by the
agencies was for the benefit of the children in this case, the true victims of Michael's criminal
conduct. Reimbursing the agencies for the money expended is analogous to making
restitution to a guardian acting on behalf of the children. In sum, we conclude that in the
instant case, an order of restitution is appropriate, even though that restitution will be
paid to state agencies.
__________

1
NRS 176.033(1)(c) provides, in pertinent part, that the district court shall [i]f restitution is appropriate, set an
amount of restitution for each victim of the offense.

2
NRS 213.005(2) was amended in 1995, and paragraph (a) now includes governmental entities against whom a
crime has been committed. See 1995 Nev. Stat. ch. 630, 232 at 2389.
112 Nev. 733, 736 (1996) Roe v. State
case, an order of restitution is appropriate, even though that restitution will be paid to state
agencies.
[Headnote 2]
Michael also contends that, even if an order of restitution was appropriate, the district
court erred because the amount of restitution was not specified, but instead was to be
determined by the Division of Parole and Probation. We agree. NRS 176.033(1)(c) provides,
in part, that if restitution is appropriate, the district court shall set an amount of restitution
for each victim of the offense. This court has held that [t]he statute contemplates that the
district court will set a specific dollar amount of restitution. The statute does not allow the
district court to award restitution in uncertain terms. Botts v. State, 109 Nev. 567, 569, 854
P.2d 856, 857 (1993). The order of restitution in the instant case must therefore be vacated
and the case remanded so that the district court can determine a specific dollar amount of
restitution, as required by NRS 176.033(1)(c).
3

In conclusion, we affirm the district court's determination that Michael must pay
restitution, but we vacate the order of restitution and remand the case for further proceedings
in accordance with the foregoing.
__________

3
This court has held that a defendant may be ordered to pay restitution only for an offense that he has
admitted, upon which he has been found guilty, or upon which he has agreed to pay restitution. Erickson v.
State, 107 Nev. 864, 866, 821 P.2d 1042, 1043 (1991). We note that, according to the record, Michael had
admitted to abusing Stephanie, but has admitted no wrongdoing regarding Jessica. Further, the record does not
show that he has agreed to pay restitution, so it would appear that the order of restitution could only include
medical and foster care expenses for Stephanie. As to the expenses incurred by the state agencies relating to
Jessica, the state could, of course, proceed pursuant to NRS 432.085, which allows the state to recover (from
parents) the cost of maintenance and special services provided to children who are placed in the state's custody.
____________
112 Nev. 737, 737 (1996) Achrem v. Expressway Plaza Ltd.
EDWARD J. ACHREM, CHARTERED, a Nevada Professional Corporation, and EDWARD
J. ACHREM, an Individual, Appellants, v. EXPRESSWAY PLAZA LIMITED
PARTNERSHIP, a Nevada Limited Partnership, Respondent.
No. 26879
May 30, 1996 917 P.2d 447
Appeal from a judgment of the district court denying a motion to dismiss and granting a
countermotion for summary judgment. Eighth Judicial District Court, Clark County; Sally L.
Loehrer, Judge.
Assignee of portion of settlement proceeds from underlying personal injury action sued
assignor's attorney, alleging that attorney violated contract law by releasing all settlement
funds to assignor despite knowledge of assignment. The district court granted assignee's
motion for summary judgment. Attorney appealed. The supreme court held that: (1)
assignment of proceeds did not violate public policy against assigning tort actions, and (2)
attorney's duty to assignor did not create conflict sufficient to justify his conveyance of all
settlement proceeds to assignor.
Affirmed.
Rawlings, Olson & Cannon, and Don F. Shreve, Jr., Las Vegas, for Appellants.
Brian Keith Berman, Las Vegas, for Respondent.
1. Assignments.
Personal injury plaintiff's assignment of portion of settlement proceeds of his action did not violate public policy against assigning
tort actions; plaintiff retained control of lawsuit without any interference from assignee.
Attorney's fiduciary duty to his personal injury client did not create conflict sufficient to justify attorney's conveyance to client of
portion of settlement proceeds that client had assigned to third party; after assignment, those proceeds no longer belonged to client,
and, if conflict did exist between client's interests and third party's, attorney should have deposited settlement proceeds in trust fund
account and requested court to direct fund's distribution.
3. Assignments; Attorney and Client.
When client assigns rights to proceeds of tort action to creditor, those proceeds no longer belong to client; thus, client's attorney is
not obligated to pay those funds to client.
4. Motions.
Points or contentions not raised in original hearing cannot be maintained or considered on rehearing.
OPINION
Per Curiam:
Shawn Nicholson (Shawn) suffered personal injuries during athletic activities at his school. Shawn and his mother, Marcia Ann
Nicholson (Marcia), hired appellant Edward J. Achrem (Achrem) to represent them in a legal proceeding against Shawn's school.
Shawn's lawsuit was settled for $45,000.00.
Prior to Shawn's injuries, Marcia leased part of a building from respondent Expressway Plaza Limited Partnership (Expressway).
After Marcia failed to pay rent and other expenses, Shawn and Marcia executed an irrevocable assignment that assigned to Expressway part
of Shawn's proceeds from his lawsuit. Expressway's counsel sent a letter to Achrem advising Achrem of the existence of the assignment.
However, after receiving Shawn's settlement, Achrem released the funds to Shawn.
Expressway filed a complaint against Achrem. The district court ruled that Achrem violated the laws of contract by failing to comply
with the assignment agreement. Achrem presents three arguments in this appeal challenging the propriety of the district court's ruling. First,
Achrem contends that the assignment under review was void as against public policy. Second, Achrem contends that obligations under the
assignment cannot be enforced against him due to his fiduciary duty as Shawn's legal counsel. Third, Achrem contends that the assignment
is not legally enforceable. Based on the reasoning in this opinion, we conclude that Achrem's arguments lack merit, and we affirm the
district court's ruling.
FACTS
On March 5, 1990, Shawn was injured when his high school baseball coach inadvertently hit him in the head with a baseball bat.
Shawn's coach was an employee of the Clark County School District (the school district). Shawn was seventeen years old on the date of
the injury. Shawn and Marcia hired Achrem to represent them in a legal proceeding against the school district. Achrem filed a lawsuit
against the school district that was settled for $45,000.00.
Prior to Shawn's injuries, Marcia leased part of a building from Expressway. Marcia fell into arrears by failing to pay rent and
maintenance fees on Expressway's facility. On December 9, 1992, Marcia allowed a confession of judgment to be entered
against her and in favor of Expressway in the amount of $16,SS6.S9.
1992, Marcia allowed a confession of judgment to be entered against her and in favor of
Expressway in the amount of $16,886.89. On January 6, 1993, Shawn and Marcia executed
an irrevocable assignment in favor of Expressway for the amount of $16,886.89 in exchange
for forbearance on the immediate collection on its judgment against Marcia. The agreement
assigned the first $16,886.89 of a settlement of Shawn's lawsuit against the school district to
Expressway.
On July 23, 1993, Expressway's counsel sent a letter to Achrem advising him of the
existence of Expressway's assignment. On August 9, 1993, Achrem met with Shawn to
discuss Expressway's letter, the assignment, and Achrem's response to the Expressway letter.
Shawn instructed Achrem to pay the proceeds of the settlement to Shawn. Achrem then
released the funds to Shawn.
Expressway filed a complaint against Achrem alleging that Achrem's conduct violated the
assignment agreement, that Achrem was negligent, and that Achrem violated a fiduciary duty
to maintain the settlement proceeds in a client trust fund. The district court found that Shawn
was of the age of majority when he signed the assignment with Expressway and the
settlement agreement with the school district. As to the assignment, the district court ruled
that it was a valid, legally binding document that assigned the rights to a portion of the
proceeds from Shawn's lawsuit. Also, the district court found that Achrem conveyed the
settlement funds to Shawn in derogation of that assignment. Accordingly, the district court
granted Expressway summary judgment, ruling that Achrem violated the laws of contract by
failing to comply with the assignment agreement.
DISCUSSION
Assignment of the proceeds of a tort action
[Headnote 1]
At common law, an assignment of the right to a personal injury action was prohibited. See
Karp v. Speizer, 647 P.2d 1197, 1198-99 (Ariz. Ct. App. 1982). Many jurisdictions continue
to adhere to the common law view. See 6 Am. Jur. 2D Assignments 37 (1963). However, in
most states an attorney is allowed by statute to receive an assignment of a portion of the
proceeds of a tort action through a contingency fee agreement with a client. SCR 155; Cal.
Bus. & Prof. Code 6146 (West 1990); N.Y. Jud. Law 474 (McKinney 1983).
Also, some states draw a distinction between the assignment of an action itself and the
assignment of the proceeds of that action. Block v. California Physicians' Service, 53 Cal.
Rptr. 51, 53-55 {Ct.
(Ct. App. 1966); Charlotte Hosp. Auth. v. First of Ga. Ins. Co., 455 S.E.2d 655, 657 (N.C.
1995), rehearing denied, 458 S.E.2d 186 (N.C. 1995); Kuhns v. Standard Oil Co., 478 P.2d
396, 405 (Or. 1970). These courts reason that the policy considerations underlying the
prohibition against assignments of tort actions are not present in the assignment of the
proceeds of an action. See Charlotte Hosp. Auth., 455 S.E.2d at 657. Specifically, when a tort
action is assigned, the assignor loses the right to pursue the action. In re Musser, 24 B.R. 913,
920-21 (Bankr. W.D. Va. 1982). However, when the proceeds of an action are assigned, the
assignor retains control of the action, and the assignee cannot pursue the action
independently. See id.; Block, 53 Cal. Rptr. at 53-55. Based on this reasoning, many courts
allow assignment agreements that assign the proceeds of a tort action. In re Duty, 78 B.R.
111, 114-16 (Bankr. E.D. Va. 1987); Bernstein v. Allstate Ins. Co., 288 N.Y.S.2d 646, 648-49
(N.Y. 1968); Neilson Rlty. Corp. v. Motor Vehicle Acc. Indem. Corp., 262 N.Y.S.2d 652,
657-58 (App. Div. 1965); Kuhns, 478 P.2d at 405. For example, medical professionals can
obtain a lien against a future personal injury award in exchange for medical services. Block,
53 Cal. Rptr. at 53-55.
This court first addressed the assignability of the rights to a tort action in Davenport v.
State Farm Mutual, 81 Nev. 361, 404 P.2d 10 (1965), by expressly allowing the assignment
of tort actions. Id. In 1967, the Nevada Legislature specifically prohibited the assignment of a
cause of action by passing NRS 41.100(3). 1967 Nev. Stat., ch. 190, 3 at 408. However, in
1979, the Nevada Legislature amended NRS 41.100(3) and deleted any statutory prohibition
against assigning tort actions. 1979 Nev. Stat., ch. 305, 2 at 458-59. See also Maxwell v.
Allstate Ins. Co., 102 Nev. 502, 504-05, 728 P.2d 812, 814 (1986).
In Maxwell, this court ruled that the assignment of a tort action through a subrogation
clause in an insurance agreement contravened public policy and was void. Id. at 507, 728
P.2d at 814-15. Specifically, this court stated:
Whether the subrogation clause is viewed as an assignment of a cause of action or as an
equitable lien on the proceeds of any settlement, the effect is to assign a part of the
insured's right to recover against a third-party tortfeasor. We hold such an assignment
is invalid. We are cognizant that in so doing we join a minority of jurisdictions so
holding.
Id. at 505, 728 P.2d at 814-15 (emphasis added) (citations omitted).
In the present case, the district court ruled that the holding in Maxwell applies only to a
subrogation clause in an automobile insurance policy.
insurance policy. We partially agree. Maxwell clearly applied to a subrogation clause, but the
reasoning of Maxwell applies equally wherever an assignment agreement assigns to a third
party the right of an injured plaintiff to recover against a tortfeasor. See Fifield Manor v.
Finston, 354 P.2d 1073, 1078 (Cal. 1960). Because Expressway's assignment did not assign
to Expressway the right to pursue Shawn's lawsuit, we conclude that the district court
properly distinguished the case at bar from the holding in Maxwell.
The district court also considered Expressway's assignment to be allowable because it
assigned a portion of Shawn's proceeds from his action against the school district, not
Shawn's tort action itself. We conclude that the district court was correct in ruling that a
meaningful legal distinction exists between assigning the rights to a tort action and assigning
the proceeds from such an action. See In re Musser, 24 B.R. at 920-21. When the proceeds of
a settlement are assigned, the injured party retains control of their lawsuit and the assignee
cannot pursue the action independently. See Charlotte Hosp. Auth., 455 S.E.2d at 657. Also,
the ability to assign portions of the proceeds of the suit allows an injured plaintiff to obtain an
attorney through a contingency fee arrangement and allows the plaintiff to pursue the action
without being burdened by medical bills associated with the accident.
In this case, Shawn and Marcia retained control of their lawsuit against the school district
without any interference from Expressway. Thus, we conclude that the public policy against
assigning tort actions was not present in this case. Accordingly, we affirm the district court's
ruling that Expressway's assignment was not void as against public policy.
Achrem's obligation pursuant to the assignment
[Headnote 2]
Achrem argues that his fiduciary duty to Shawn, as Shawn's counsel, conflicted with his
duty to comply with Expressway's assignment. The district court, relying heavily on the
reasoning in Bonanza Motors, Inc. v. Webb, 657 P.2d 1102 (Idaho Ct. App. 1983), ruled that
Achrem's duty to his client did not create a conflict sufficient enough to justify Achrem's
conveyance of the settlement proceeds to Shawn.
The facts presented in Bonanza Motors were nearly identical to the facts in the case at bar.
See id. at 1103. The Bonanza Motors court ruled that a defendant law firm's ethical
obligations did not require that law firm to pay funds to its client that were previously
assigned to a third party. Id. at 1105. Instead, the Bonanza Motors court ruled that the
assignment removed from the client any right to the amount of funds controlled by the
assignment. Id.
Accordingly, the funds did not belong to the client; therefore, the attorney did not have to pay
the funds to the client. Id.
[Headnote 3]
We conclude that the district court's reasoning was correct. First, when a client assigns
rights to the proceeds of a tort action to a creditor, those proceeds no longer belong to the
client. Id.; Leon v. Martinez, 638 N.E.2d 511, 514 (N.Y. 1994); see also Romero v. Earl, 810
P.2d 808 (N.M. 1991); Aiello v. Levine, 255 N.Y.S.2d 921 (App. Div. 1965); Brinkman v.
Moskowitz, 238 N.Y.S.2d 876 (App. Div. 1962). Accordingly, an attorney is not obligated to
pay those funds to his client. Further, we conclude that if a conflict existed between Shawn's
interests and Expressway's interests, Achrem should have deposited the settlement proceeds
in a trust fund account and requested a court to direct the fund's distribution. See NRCP 22.
Legal enforceability of the assignment
Achrem contends that the contested assignment agreement is unenforceable because there
was no meeting of the minds between Shawn, Marcia and Expressway, there was no
consideration, and the assignment was not properly notarized. The evidence in support of
Achrem's contention is contained within affidavits of Shawn and Marcia that were filed as
attachments to Achrem's motion for reconsideration. The district court refused to consider the
affidavits because they were not properly submitted as evidence before the district court
reached its decision in this case.
[Headnote 4]
We conclude that the district court properly refused to consider the arguments raised by
Achrem which were based on evidence that was not properly within the record. Points or
contentions not raised in the original hearing cannot be maintained or considered on
rehearing. Chowdhry v. NLVH, Inc., 111 Nev. 560, 562-63, 893 P.2d 385, 387 (1995);
Cannon v. Taylor, 88 Nev. 89, 92, 493 P.2d 1313, 1314-15 (1972). Accordingly, we conclude
that the district court properly refused to consider these issues.
CONCLUSION
We conclude that the district court properly granted Expressway summary judgment. As
described above, whether an assignment is allowed under Nevada law and whether Achrem is
liable for not conveying settlement proceeds to Expressway are matters of law. Further, we
conclude that the issues of fact that Achrem asserted with regard to the legal enforceability of
the assignment are procedurally barred from consideration because Achrem presented the
evidence in support of those issues in his motion for reconsideration.
assignment are procedurally barred from consideration because Achrem presented the
evidence in support of those issues in his motion for reconsideration. Accordingly, we
conclude that no genuine issues of fact remained for the district court to decide and summary
judgment was properly granted. Shepard v. Harrison, 100 Nev. 178, 179-80, 678 P.2d 670,
672 (1984).
____________
112 Nev. 743, 743 (1996) Pyramid Lake Paiute Tribe v. Washoe Co.
PYRAMID LAKE PAIUTE TRIBE OF INDIANS and BOARD OF SUPERVISORS, Lassen
County, California, Appellants, v. WASHOE COUNTY, NORTHWEST NEVADA
WATER RESOURCES LIMITED PARTNERSHIP, FISH SPRINGS RANCH LTD.,
and R. MICHAEL TURNIPSEED, Nevada State Engineer, Respondents.
No. 25066
June 14, 1996 918 P.2d 697
Appeal from an order of the district court entered upon a petition for judicial review of an
administrative agency decision. Second Judicial District Court, Washoe County; Mark
Handelsman, Judge.
Opponents of county's proposed project to import groundwater from basin petitioned for
judicial review of State Engineer's decision finding that project served public interest. The
district court denied relief and opponents appealed. The supreme court, Young, J., held that:
(1) State Engineer did not commit dereliction of duty by not including review of economic
considerations and alternative projects as part of guidelines defining public interest, and (2)
evidence supported Engineer's finding that proposed project was not detrimental to public
interest, despite claim that agreement under proposed negotiated settlement regarding water
rights on river was superior alternative.
Affirmed.
Benesch & Fermile, Reno; Fredericks, Pelcyger, Hester, & White, Boulder, Colorado;
Robert D. Stitser, Reno, for Appellants.
Frankie Sue Del Papa, Attorney General, and Margaret A. Twedt, Deputy Attorney
General, Carson City; and Hale, Lane, Peek Dennison & Howard and Alex J. Flangas, Reno,
for Respondents.
Agency charged with duty of administering act is impliedly clothed with power to construe it as necessary precedent to
administrative action.
2. Statutes.
Great deference should be given to administrative agency's interpretation of statute when interpretation is within language of
statute; while agency's interpretation is not controlling, it is persuasive.
3. Water and Water Courses.
State Engineer did not commit dereliction of duty by not including review of economic considerations and alternative projects as
part of guidelines defining public interest for purposes of determining whether to issue water appropriation permit in connection with
county's proposed project to import groundwater from basin. Legislature placed burden of choosing between water use alternatives on
county officials, not State Engineer, and Engineer has no express authority to engage in comparative economic analysis of water
delivery alternatives. NRS 244.157, 318.144, 533.370(3).
When reviewing State Engineer's findings, factual determinations will not be disturbed on appeal if supported by substantial
evidence.
Generally, decision of administrative agency will not be disturbed unless it is arbitrary and capricious.
6. Water and Water Courses.
Evidence supported State Engineer's finding that county's proposed project to import groundwater from basin was not detrimental
to public interest, despite claim that agreement under proposed negotiated settlement regarding water rights on river was superior
alternative. Engineer properly presumed that county had already reviewed available alternatives, based on speculative nature of
negotiated settlement and expert testimony that county would need water from proposed project even if negotiated settlement were
finalized, that settlement would not adequately improve groundwater conditions for certain development areas, and that importation
project was more cost-effective.
OPINION
FACTS
In the mid-1980s, Washoe County entered into joint ventures with Fish Springs Ranch LTD. (FSR) and Northwest Nevada Water
Resources Limited Partnership (NNWR) for the purpose of importing groundwater from the Honey Lake Basin
1
to the Reno
and Sparks areas. FSR and NNWR filed intra-basin transfer applications with the Nevada
State Engineer's Office to modify their existing Honey Lake Basin groundwater rights.
__________

1
Honey Lake Basin is a 2,200 square mile basin located on the California/Nevada border approximately
thirty-five miles northwest of Reno. The portion of the Honey Lake Basin impacted by this dispute is located
within Washoe County.
transfer applications with the Nevada State Engineer's Office to modify their existing Honey
Lake Basin groundwater rights. Washoe County filed thirty-one inter-basin applications to
transfer water from Honey Lake to the Truckee Meadows metropolitan area. Several of the
applications were to change FSR's and NNWR's existing water rights to industrial and
municipal use. The remaining applications by Washoe County requested the appropriation of
additional water rights from the Honey Lake Basin. In total, the county was requesting
permits to withdraw 28,588 acre feet of water annually from the Honey Lake Basin.
The State Engineer conducted twelve days of public hearings to consider the intra-basin
and inter-basin transfer applications. The hearings produced 136 exhibits and more than
2,800 pages of testimony from experts and lay witnesses.
Co-appellants Pyramid Lake Paiute Tribe of Indians and Board of Supervisors, Lassen
County, California (appellants) opposed the transfer permits on environmental and
economic grounds. One of appellants' contentions was that Washoe County's proposal was
not economically feasible or desirable in light of negotiations that were occurring over water
rights in Lake Tahoe, Pyramid Lake, the Truckee River and the Carson River. At the time of
the hearings, California, Nevada, and various Indian tribes (including the Pyramid Lake
Paiute Tribe) were attempting to reach a settlement that would greatly impact water rights on
the Truckee River (proposed negotiated settlement). See Truckee-Carson-Pyramid Lake
Water Rights Settlement Act, Pub. L. No. 101-618, 104 Stat. 3295 (1990).
2

After the hearings, the State Engineer issued Ruling 3786, granting the intra-basin
applications, and Ruling 3787, granting the inter-basin applications. Appellants petitioned
for judicial review, claiming that the State Engineer did not enter adequate findings in
compliance with NRS 533.370(3).
3
The district court granted judicial review and remanded
the decision to the State Engineer. The district court concluded that the State Engineer did
not specifically determine whether the applications were detrimental to the public
interest.
__________

2
When briefs were filed with this court in 1994, the proposed negotiated settlement was still not an operative
water solution for Washoe County's needs. The county indicated that the agreement was not finalized, the
Environmental Impact Statement was not completed, and various conservation measures were not implemented.

3
Except as otherwise provided in subsection 5, where there is no unappropriated water in the proposed
source of supply, or where its proposed use or change conflicts with existing rights, or threatens to prove
detrimental to the public interest, the state engineer shall reject the application and refuse to issue the
requested permit. . . .
(Emphasis added.)
Engineer did not specifically determine whether the applications were detrimental to the
public interest.
On remand, the State Engineer determined that additional hearings were not necessary.
Instead, his office issued Supplemental Rulings 3786A and 3787A. The forty-page
supplemental rulings responded to the order of remand by reviewing the consideration of the
public interest and making additional findings. The State Engineer identified the following
policy considerations contained in Nevada water statutes to help define the public interest:
1. An appropriation must be for a beneficial use.
2. The applicant must demonstrate the amount, source and purpose of the
appropriation.
3. If the appropriation is for municipal supply, the applicant must demonstrate the
approximate number of persons to be served and the approximate future
requirements.
4. The right to divert ceases when the necessity for the use of water does not exist.
5. The applicant must demonstrate the magnitude of the use of water, such as the
number of acres irrigated, the use to which generated hydroelectric power will be
applied, or the number of animals to be watered.
6. In considering extensions of time to apply water to beneficial use, the State Engineer
must determine the number of parcels and commercial or residential units which are
contained or planned in the area to be developed, economic conditions which affect
the availability of the developer to complete application of the water to beneficial
use, and the period contemplated for completion in a development project approved
by local governments or in a planned unit development.
7. For large appropriations, the State Engineer must consider whether the applicant has
the financial capability to develop the water and place it to beneficial use.
8. The State Engineer may also cooperate with federal authorities in monitoring the
development and use of the water resources of the State.
9. [The State Engineer] may cooperate with California authorities in monitoring the
future needs and uses of water in the Lake Tahoe area and to study ways of
developing water supplies so that the development of the area will not be impeded.
10. Rotation in use is authorized to bring about a more economical use of supplies.
11. The State Engineer may determine whether there is over pumping of groundwater
and refuse to issue permits if there is no unappropriated water available.
12. [The State Engineer] may determine what is a reasonable lowering of the static
water level in an area after taking into account the economics of pumping water for
the general type of crops growing and the effect of water use on the economy of the
area in general.
13. Within an area that has been designated, the State Engineer may monitor and
regulate the water supply.
After reviewing these guidelines, the State Engineer determined that substantial evidence
indicated the Honey Lake importation project served the public interest. With respect to
appellants' contentions that an agreement under the proposed negotiated settlement was a
more attractive alternative to water importation, the State Engineer ruled as follows:
The State Engineer cannot evaluate all possible alternatives to any particular water
project. The applicant, Washoe County, presumably already looked at the various
alternatives. The State Engineer finds that he must act on the applications before him
and is not in a position to interfere with the decisions and responsibilities of Washoe
County. The State Engineer can only look at the applicant's ability to finance the project
and finds [sic] it has the capability to put the water to beneficial use.
(Emphasis added.)
Appellants filed a second petition for judicial review, arguing that the State Engineer's
public interest review was insufficient. The same district judge who issued the initial remand
order disagreed. Appellants renew their contentions in this appeal.
DISCUSSION
This appeal presents two issues for review: whether the State Engineer properly defined
the meaning of the public interest and whether the Honey Lake importation project is
detrimental to the public interest.
Meaning of the public interest
[Headnotes 1, 2]
The appropriation of water in Nevada is governed by statute, and the State Engineer is
authorized to regulate such appropriations. NRS 533.030(1); see NRS 533.370(3). An
agency charged with the duty of administrating an act is impliedly clothed with power to
construe it as a necessary precedent to administrative action.' " State v. State Engineer,
104 Nev. 709, 713
clothed with power to construe it as a necessary precedent to administrative action.' State v.
State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (citations omitted). Further,
great deference should be given to the [administrative] agency's interpretation when it is
within the language of the statute.' Id. (citations omitted). While the agency's interpretation
is not controlling, it is persuasive. State Engineer v. Morris, 107 Nev. 699, 701, 819 P.2d 203,
205 (1991).
[Headnote 3]
Pursuant to NRS 533.370(3), the State Engineer must determine whether a proposed
appropriation is detrimental to the public interest before issuing a water appropriation permit.
Appellants argue that Nevada should follow the lead of the Idaho Supreme Court in Shokal v.
Dunn, 707 P.2d 441 (Idaho 1985), where the Idaho Supreme Court defined the public interest
using not only language from Idaho statutes, but also statutory criteria from Alaska.
Idaho's water law allows the Water Resources Director to deny a water permit if the
requested appropriation conflicts with the local public interest. Id. at 447 (citing Idaho Code
42-203A(5)(e)). In defining the term, the public interest, the Shokal court noted that
instructive public policy considerations were contained throughout Idaho's water
appropriation statutes. Id. at 448. Referencing those statutes, the court developed guidelines
defining the public interest. Id. at 449.
We conclude that the State Engineer's thirteen guidelines adequately defined the public
interest in this case. As in Shokal, the State Engineer reviewed Nevada's water appropriation
statutes to develop guidelines for defining the public interest. See Morris, 107 Nev. at 701,
819 P.2d at 205; State Engineer, 104 Nev. at 713, 766 P.2d at 266.
Appellants contend, however, that the State Engineer's failure to include economic
considerations or an analysis of alternatives in the public interest guidelines was a dereliction
of duty. The Shokal court included such factors in the definition of the public interest for
Idaho, incorporating statutory criteria that were enacted by Alaska. Shokal, 707 P.2d at 449
n.3 (citing Alaska Stat. 46.15.080).
4

Despite appellants' assertions regarding the definition of the public interest by the Idaho
Court, we can find no indication that Nevada's legislature intended that the State
Engineer determine public policy in Nevada by incorporating another state's statutes and
vesting the state with the authority to reevaluate the political and economic decisions
made by local government.
__________

4
Appellants also cite related cases and statutory schemes from other states. See Stempel v. Department of
Water Resources, 508 P.2d 166, 172 (Wash. 1973); Neb. Rev. Stat. 46-289 (1988). However, the Nevada
Legislature has not adopted any water appropriation or environmental protection statute requiring or permitting
the State Engineer to evaluate alternatives before granting permits.
public interest by the Idaho Court, we can find no indication that Nevada's legislature
intended that the State Engineer determine public policy in Nevada by incorporating another
state's statutes and vesting the state with the authority to reevaluate the political and economic
decisions made by local government.
1. Legislative intent
We conclude that the Shokal Court's decision to judicially adopt statutes relating to water
allocation in other western states would be contrary to the long-standing policy of this state.
The Legislature has the power to decide what the policy of the law shall be, and if it has
intimated its will, however indirectly, that will should be recognized and obeyed. Johnson v.
United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.). The Nevada Legislature,
presumably aware of the broad definition of the public interest enacted by other states
(particularly Alaska and Nebraska), demonstrated through its silence that Nevada's water law
statutes should remain as they have been for over forty-five years. We recognize that some
people may argue that the prior appropriation doctrine is not well suited to solve the modern
demands for water across our arid state. However, the legislaturenot this courtmust
signal a departure from such a long-recognized Nevada water policy.
2. Power of Washoe County's elected officials
Nevada water law statutes define separate roles for the State Engineer and Washoe
County. We conclude that at the time this dispute arose, the legislature placed the burden of
choosing between water use alternatives on the officials of Washoe County, not the State
Engineer. In 1991, the legislature directed Washoe County to choose among competing
methods of water augmentation and to develop a master plan for the preservation,
distribution, and development of water resources.
5
This legislative mandate necessarily
empowered Washoe County's local officials to conduct economic and cost-effectiveness
analyses of competing water projects, and to determine which alternative was optimal.
__________

5
In accordance with Nevada law, a board of county commissioners has the power to acquire, construct,
reconstruct, improve, extend or better a works, system or facilities for the supply, storage and distribution of
water for private and public purposes. NRS 318.144 (working in conjunction with NRS 244.157). In 1991, the
legislature amended specific legislation for Washoe County and provided that the members of the Washoe Board
of County Commissioners were ex officio members of the Washoe County Regional Planning and Advisory
Board. 1991 Nev. Stat., ch. 548, 1 at 1727. In accordance with this change, the Board was vested with the
power to [d]evelop and revise, as necessary, plans for regional facilities for the present and future use of water
resources within the region . . .[;] [i]dentify potential supplies of water and determine the extent of those supplies
and the nature of the problems involved in their development and management[;] [and] [d]evelop efficient
methods for the collection, storage, management,
mandate necessarily empowered Washoe County's local officials to conduct economic and
cost-effectiveness analyses of competing water projects, and to determine which alternative
was optimal. In contrast, NRS 533.370(3), which has remained essentially unchanged for
decades, limits the role of the State Engineer. The State Engineer has no express authority to
engage in a comparative economic analysis of water delivery alternatives.
Our conclusion is supported by the ruling in Helms v. State Environmental Protection
Division, 109 Nev. 310, 849 P.2d 279 (1993). In Helms, this court concluded that the Nevada
Division of Environmental Protection (NDEP) did not have a duty to independently review
a function that was statutorily reserved to county government, thereby allowing the NDEP to
presume the county's approval was valid. Helms, 109 Nev. at 314, 849 P.2d at 282.
This decision is also consistent with our recent ruling in Serpa v. County of Washoe, 111
Nev. 1081, 901 P.2d 690 (1995). In Serpa, we considered Washoe County's power as a local
government to make water use decisions, and we approved of Washoe County's denial of a
developmental permit that was previously approved by the State Engineer. Id. at 1085, 901
P.2d at 693.
In the instant case, the legislature specifically empowered Washoe County to choose
among competing methods of water augmentation projects. This necessarily demands an
economic and cost-effectiveness analysis of competing water delivery alternatives within
Washoe County. If Washoe County's proposed water project would unreasonably lower water
tables, prove financially unworkable or result in harm to wildlife or existing water users, the
State Engineer is authorized to reject the application. However, Washoe Countyand not the
State Engineeris required by statute to conduct the political and economic decision-making
required to determine which water allocation alternative is appropriate.
3. The State Engineer's lack of resources
Furthermore, the legislature's failure to increase funding for the State Engineer's staff
impliedly reinforces the conclusion that the legislature placed the burden of evaluating
economic considerations and project alternatives on local government. See United Plainsmen
Ass'n v. North Dakota State Water Conservation Comm.,
__________
treatment and delivery of water in order to increase the yield of existing supplies within the region. Id., 6 at
1729. Finally, the legislation granted the board the authority to [m]ake recommendations concerning the
management and use of water within the region to: . . . [among others] [t]he state engineer. Id.
Comm., 247 N.W.2d 457, 464 (N.D. 1976) (acknowledging that the appropriation of funds to
conduct water use planning indicates an intent to include an agency in such planning).
The State Engineer employs a relatively small staff: clerical workers, a hearing officer, and
a number of engineers familiar with principles of hydrology. At the present time, the State
Engineer struggles under a backlog of 4,200 applications for water appropriation. Senate
Committee on Finance; Joint Subcommittee on Public Safety, Natural Resources and
Transportation Budget Closing Action; April 17, 1995, at 1 (1995). Of these applications,
1,468 are contested, requiring a hearing and possible judicial review. Id. The State Engineer
estimates that he will continue to receive over 1,200 applications per year, 200 of which will
be contested. Id. Consequently, as the State Engineer acknowledges, some applications have
been awaiting processing since 1978 or 1979. Minutes of the Joint Subcommittee Meeting of
Senate Committee on Finance and Assembly Committee on Ways and Means: Sixty-eighth
Session, April 28, 1995, at 21 (statement of R. Michael Turnipseed, State Engineer). In the
present case, the State Engineer recognized his office does not have the resources or
personnel to weigh the social and political factors inherent in an economic analysis of
competing water projects.
Accordingly, we conclude that the State Engineer did not commit a dereliction of duty by
not including a review of economic considerations and alternative projects as part of the
guidelines defining the public interest. Morris, 107 Nev. at 701, 819 P.2d at 205; State
Engineer, 104 Nev. at 713, 766 P.2d at 266.
Detriment to the public interest
[Headnotes 4, 5]
Appellants contend that the State Engineer's findings regarding the public interest were not
supported by substantial evidence. When reviewing the State Engineer's findings, factual
determinations will not be disturbed on appeal if supported by substantial evidence. Morris,
107 Nev. at 701, 819 P.2d at 205. Moreover, as a general rule, a decision of an administrative
agency will not be disturbed unless it is arbitrary and capricious. Shetakis Dist. v. State, Dep't
Taxation, 108 Nev. 901, 903, 839 P.2d 1315, 1317 (1992).
[Headnote 6]
The State Engineer's findings of fact in Supplemental Rulings 3786A and 3787A cite
specific testimony taken in twelve days of public hearings amassed in over 2,800 pages of
transcripts. The State Engineer found that it is in the public interest to facilitate
augmentation of the Reno-Sparks water supply as well as to augment the supply in some
of the valleys north of Reno-Sparks that have declining water tables."
augmentation of the Reno-Sparks water supply as well as to augment the supply in some of
the valleys north of Reno-Sparks that have declining water tables.
The State Engineer determined that other public interest values would not be
compromised, specifically finding that the county had the ability to finance the project and
the capability to put the water to beneficial use. The State Engineer also found that no
evidence suggested pumping groundwater would result in an impairment of other water
rights. Additionally, the State Engineer found that pumping groundwater would not
unreasonably lower water tables. With respect to environmental impact, the State Engineer
found that there was substantial evidence presented to indicate that wildlife would not be
impacted as a result of these proposed changes [pumping water from the basin]. Specifically,
the State Engineer reported that
[t]estimony was received that showed the high mountain springs used by wildlife to the
south and east of the proposed well field were not connected to the alluvial aquifer
system. Any lowering of the water table and resulting impact or dying out of
phreatophytes, such as greasewood, would result in xerophytic species, such as
rabbitbrush and sagebrush taking the vacated space. Testimony was received that large
game animals rely on xerophytes and not phreatophytes for forage.
The State Engineer found that a minimal loss of wetlands would occur and that alkali flats
would not be substantially enlarged, resulting in no increase in dust hazards proving
With regard to the proposed negotiated settlement, the State Engineer found no evidence
that the approval of the intra-basin changes affects the [ongoing] Truckee River settlement
negotiations. In addition, the State Engineer also found that there is no evidence in the
record that the water pumped from Honey Lake Valley could not or will not be coordinated
and integrated with the negotiated settlement on the Truckee River.
At the hearings conducted by the State Engineer, Washoe County presented expert
testimony indicating that even if the proposed negotiated settlement were finalized, the
county would still need water from the Honey Lake project. Washoe County's experts claimed
that the proposed negotiated settlement would not adequately improve groundwater
conditions for development areas north of Reno. Experts also testified that the importation
project was more cost-effective than the proposed negotiated settlement would be. Based on
this testimony and the speculative nature of the negotiated settlement when this dispute arose,
we conclude that the State Engineer properly presumed that Washoe County already
reviewed available alternatives to the Honey Lake project.
conclude that the State Engineer properly presumed that Washoe County already reviewed
available alternatives to the Honey Lake project. See Helms, 109 Nev. at 314, 849 P.2d at
282.
Accordingly, we conclude that the State Engineer's findings of fact regarding the proposed
negotiated settlement were supported by substantial evidence. Shetakis Dist., 108 Nev. at 903,
839 P.2d at 1317; Morris, 107 Nev. at 701, 819 P.2d at 205.
CONCLUSION
We conclude that the State Engineer adequately defined the public interest in this case and
based his findings upon substantial evidence.
Shearing and Rose, JJ., concur.
The trial court, in its remand order of August 31, 1992, recognized the State Engineer's
failure to abide by NRS 533.370(3),
1
which commands the State Engineer to refuse to issue
the requested permit where its proposed use . . . threatens to prove detrimental to the public
interest. In its remand order (hereinafter Remand), the trial court ruled that the State
Engineer had not, in issuing the subject permits, properly considered vital public interest
issues raised by the protestants and sent the matter back to the State Engineer with
instructions on how to proceed properly in accordance with the law. Because the State
Engineer refused (or at least failed) to comply with the district court's orders, and because
crucial public policy issues relating to this huge inter-basin water transfer remain
unconsidered and undecided by the State Engineer, I dissent.
In its Remand, the trial court gave explicit and quite appropriate instructions to the State
Engineer as to how he should proceed:
First, the trial court instructed the State Engineer that by law he was "charged with
determining whether granting certain permits threatened to prove detrimental to the
'public interest.' "
__________

1
533.370 Approval or rejection of application by state engineer: Conditions; procedure.
. . . .
3. Except as otherwise provided in subsection 5, where there is no unappropriated water in the proposed
source of supply, or where its proposed use or change conflicts with existing rights, or threatens to prove
detrimental to the public interest, the state engineer shall reject the application and refuse to issue the
requested permit. Where a previous application for a similar use of water within the same basin has been
rejected on these grounds, the new application may be denied without publication.
(Emphasis supplied.)
he was charged with determining whether granting certain permits threatened to prove
detrimental to the public interest.'
Second, the trial court recognized the lack of any specific legislative criteria to be
evaluated in determining the public interest, or any threat thereto and that the legislature
[had] declined to define public interest,' or the factors that should be considered in defining
this term. The legislature, thus, had delegated the responsibility for defining the public
interest' to the state engineer.
Third, the trial court ruled that the bald, unsupported and conclusory finding by the
state engineer that the granting of a permit does not threaten to prove detrimental to the public
interest is, by itself, insufficient and that [s]uch a finding of ultimate fact must be
accompanied by additional findings concerning the basic evidentiary facts relied upon to
support the finding of ultimate fact. Citing Nova Horizon, Inc. v. City Council of Reno, 105
Nev. 92, 98, 769 P.2d 721, 724 (1989).
Fourth, the trial court ruled that the basic evidentiary facts relating to the public interest
must be weighed in a manner that necessarily entails a balancing of myriad competing
interests.
In sum, then, the trial court quite properly refused to accept the State Engineer's bald
finding that approving the change applications will not be detrimental to the public interest.
2
In accordance with this ruling the trial court remanded the application proceedings to the
State Engineer, ordering (1) that the Engineer furnish an administrative definition of the
meaning of the statutory expression, threatens to prove detrimental to the public interest,
(2) that the State Engineer make additional findings concerning the basic evidentiary facts
relied upon to support his conclusion on the public interest issue, (3) that the State Engineer
make the required public interest adjudication based upon his additional findings of fact
and by the process of a balancing of myriad competing interests.
The trial court's rulings on remand were absolutely necessary because, as put by the trial
court, the courts are entitled to know and review the State Engineer's factual bases for this
finding of no threat to the public interest. The basic and jurisdictional defect in this case that
has not been overcome arises out of the State Engineer's ignoring entirely the trial court's
order of remand. The State Engineer refused to define the crucial term threatens to prove
detrimental to the public interest. The State Engineer refused to make the "additional"
findings of fact that he was ordered to make in order to provide a "factual basis" for his
rulings.
__________

2
The only finding or conclusion by the State Engineer relating to the public interest was the following bald
finding:
The State Engineer finds no evidence that approval of the subject change applications would be
refused to make the additional findings of fact that he was ordered to make in order to
provide a factual basis for his rulings. The State Engineer refused to balance the myriad
competing interests that were presented by the applicants and by the protestants, Lassen
County and the Pyramid Lake Paiute Tribe. I cannot begin to understand why the trial court
permitted the State Engineer to get away with ignoring the proper orders contained in the
Remand. It is difficult to understand why this court would permit this to happen.
DEFINING THE PUBLIC INTEREST AND THREATS THERETO
NRS 533.370(3) comprises an unequivocal mandate to the State Engineer, commanding
that the State Engineer refuse to issue any permit where the proposed use threatens to prove
detrimental to the public interest. Because the legislature did not define the quoted term, the
duty to define what is a threat to the public interest becomes the administrative duty of the
State Engineer; yet the State Engineer adamantly refuses to perform this duty. The State
Engineer's impertinent response to the district court's order to define administratively the
subject statutory expression was to compile an odd medley of thirteen principles, none of
which have the slightest thing to do with the subject of how the public interest should be
treated in matters relating to the use of water in this state. These principles are set out in the
body of the majority opinion. The irrelevance of the State Engineer's rambling, unresponsive
statement of principles is immediately apparent. Rather than defining the statutory public
interest phrase, the State Engineer listed a bunch of statutory citations together with a
recitation of a number of things that he believes a hypothetical applicant for a water use
permit must do in order to be successful. For example, the State Engineer recited among his
thirteen principles the quite obvious requirements that an applicant must demonstrate the
amount, source and purpose of the appropriation, and must demonstrate the magnitude of
the use of water. The statement of principles also recited a number of things that the State
Engineer may do (may cooperate with federal authorities, may monitor and regulate the
water supply). The irrelevant and uncalled-for principles or guidelines compiled by the
State Engineer merely comprise a useless summary of readily accessible statutory water law.
None of the recited principles makes any reference at all to the dispositive issue in this
case, the threat or lack of threat to the public interest. After compiling his list of statutory
mays and musts, the State Engineer relied on these statutory abstracts {rather than on an
intelligible definition of the meaning of a threat to public interest) as support for his
post-Remand conclusion that the proposed project was not a threat to the public
interestwhen in truth, the statutory references have no palpable connection to the only
issue presented in this controversy.
(rather than on an intelligible definition of the meaning of a threat to public interest) as
support for his post-Remand conclusion that the proposed project was not a threat to the
public interestwhen in truth, the statutory references have no palpable connection to the
only issue presented in this controversy. It is very clear that the State Engineer's itemization
of readily-available statutory principles or guidelines does not comply with the district
court's mandate on remand and certainly provides no definition of the term, threatens to
prove detrimental to the public interest.
It was not at all difficult for the State Engineer to provide a useful, administrative
definition of the subject statutory expression. There are numerous examples of definitions of
the public interest as it relates to water matters that can be taken from statutes and judicial
decisions of other states.
3
As can be seen in the statutes cited in the margin, other states
have defined the public interest in water matters and have suggested a broad range of
factors that present themselves as being worthy of consideration in any controversy in
which it is claimed that the public interest is threatened.
__________

3
For example, reference may be made by the State Engineer to the Alaska Statute, section 46.15.080, which
states, in pertinent part:
(b) In determining the public interest, the commissioner shall consider
(1) the benefit to the applicant resulting from the proposed appropriation;
(2) the effect of the economic activity resulting from the proposed appropriation;
(3) the effect on fish and game resources and on public recreational opportunities;
(4) the effect on public health;
(5) the effect of loss of alternate uses of water that might be made within a reasonable time if not
precluded or hindered by the proposed appropriation;
(6) harm to other persons resulting from the proposed appropriation;
(7) the intent and ability of the applicant to complete the appropriation;
(8) the effect upon access to navigable or public waters.
The Idaho Supreme Court has ruled that the state water agency must consider the economic consequences of a
proposed water use to protect the public interest. Shokal v. Dunn, 707 P.2d 441, 449 (Idaho 1985). The Idaho
Supreme Court turned to the Alaska statute for guidance because the Alaska water permit statute states in detail
what broad public interest concerns the relevant administrative agency must consider, including the economic
effect of the proposed water use. Id. at 449. The Idaho Supreme Court approved and adopted the public interest
elements listed in the Alaska statute, but warned that those elements are not intended to be a comprehensive
list. Id. The Idaho Supreme Court determined that state agencies must examine the economic effect of any
proposed appropriation of water to protect the public welfare.
The Nebraska Legislature enacted a statute which directs the Director of Water Resources to consider: (1) the
economic, environmental, and other benefits of the proposed inter-basin transfer and use; (2) any adverse
impacts of the proposed inter-basin transfer and use; (3) any current beneficial uses being made of the
unappropriated water in the basin of origin; (4) any reasonably foreseeable future beneficial uses of the water in
the basin of origin; (5) the economic, environmental, and other benefits of leaving the water in the basin of
origin for current or future beneficial uses; (6) alternative sources of water supply available to the applicant; and
(7) alternative sources of water available to the basin of origin for beneficial uses. Neb. Rev. Stat. 46-289
(1986).
the statutes cited in the margin, other states have defined the public interest in water matters
and have suggested a broad range of factors that present themselves as being worthy of
consideration in any controversy in which it is claimed that the public interest is threatened.
4
If the State Engineer had defined the statutory, public interest language and furnished
standards by which he was going to evaluate claimed threats to the public interest under NRS
533.370(3), then he would have been in a position to have gone on and made the required
findings of fact. From these findings he could have based a proper adjudication that was in
compliance with NRS 533.370(3). Because the State Engineer failed to define the public
interestor, rather, because he refused to abide by the instruction of the district court that he
do sothe trial court thereby erred in affirming the State Engineer's approval of the permits
in complete disregard of the necessary conditions imposed by the Remand. The State
Engineer, rather clearly, granted permit applications which should, under NRS Chapter 533,
have been refused.
STATE ENGINEER'S REFUSAL TO MAKE FACT FINDINGS AND TO BALANCE
COMPETING INTERESTS
The root of most of the defects in the State Engineer's administrative handling of these
applications is the absence of a workable definition of threatens to prove detrimental to the
public interest; but there are other reasons why the permits should be disallowed and the
matter returned to the State Engineer. The State Engineer's refusal or failure to make the
ordered additional findings is also sufficient of itself to warrant sending this case back to
the State Engineer, so that he can do it right. I will not dwell on this point other than to say
that the trial court in its Remand was obviously right when it concluded that the "bald"
finding that the public interest was not threatened by these inter-basin water exchanges
"must be accompanied by additional findings concerning the basic evidentiary facts relied
upon to support" such a conclusion.
__________

4
The majority expresses great concern about [t]he State Engineer's lack of resources and the costs to the state
that might arise out of the State Engineer's conscientiously following the statute and making the required
adjudication that a particular water use does not pose a threat to the public interest. There is nothing in the
record to support the majority's conjectural apprehensions; and, even, if there were, this is a legislative matter. If
the legislature were to conclude that protecting the public interest in water-use matters is too costly, it is free to
repeal the statute that commands that the State Engineer shall . . . refuse to issue permits which threaten to be
This court has not, to date, considered the mandate of NRS 533.370(3); and it would seem safe to say that the
public interest issue is not one that has been of great trouble to the State Engineer. In cases, however, where
massive inter-basin water exchanges are involved and bona fide protests raising public interest issues are filed,
we see no way in which the State Engineer can, under the present statutory structure, avoid defining terms,
finding facts and rendering an adjudication on this issue, even when the merits of an application have been
affirmatively treated by local governmental entities.
Remand was obviously right when it concluded that the bald finding that the public interest
was not threatened by these inter-basin water exchanges must be accompanied by additional
findings concerning the basic evidentiary facts relied upon to support such a conclusion. I
also agree with the trial court that such a conclusory finding was not sufficient to permit
judicial review and that a reviewing court (including this one) is entitled to know and
review the State Engineer's factual bases for this finding of no threat to the public interest.
See Nova Horizon Inc., 105 Nev. 92, 769 P.2d 721. This failure on the part of the State
Engineer clearly calls for a remand to that administrative agency rather than the bland
approval given by this court to the State Engineer's derelictions in the administrative process.
STATE ENGINEER'S FAILURE TO BALANCE COMPETING INTERESTS
An even more significant dereliction on the part of the State Engineer (because of its dire
implications in the future) is the State Engineer's refusal to consider the competing interests,
public versus private, that are presented by the protest filed by the Paiute Tribe and by Lassen
County. These protestants maintain that they have offered unattended-to alternatives to the
Honey Lake Project and to the inter-basin water exchanges approved by the State Engineer
which are far superior to the approved proposal and which are beneficial to rather than
detrimental to the public interest. The State Engineer has steadfastly refused to consider
public and private competing interests or to take into account alternative plans for water use
and water conservation offered by the protestants.
The State Engineer told the district court (and now tells this court) that he had no authority
to interfere with decisions made by local government and that he acted in the assumption that
he was compelled to grant permits after approvals of the project were made on the local level.
When the State Engineer announced that he would not interfere with the decisions and
responsibilities of Washoe County,
5
he was abdicating his responsibility under NRS
533.370(3) and, as well, under NRS 540.011(1), which declares the critical nature of the
state's limited water resources and provides that the policy of the state [is] to encourage
efficient and nonwasteful use of these limited supplies. When the State Engineer told the
district court that he did not have the power to interfere with the decisions of Washoe County
in water matters, he was acting in direct contravention of NRS 533.370(3), which does not
permit him to issue a "requested permit" if the "proposed use" threatens the public
interest.
__________

5
State Engineer's Supplemental Ruling No. 3787A at 19.
requested permit if the proposed use threatens the public interest. If the public interest is
threatened, it matters not what decision Washoe County or any other governmental
subdivision might make relative to a proposed water use. If it is contended (as is the case
here) that the proposed water use presents a threat to the public interest of the people of this
state, the State Engineer must weigh competing interests and then decide whether the public
interest is threatened in the manner claimed and, if such a threat exists, must refuse to issue
the requested permit, even though Washoe County had made a contrary decision.
It is clear that the State Engineer's authority and his responsibility to protect this State's
limited water resources and to ensure efficient and nonwasteful use of these limited
supplies, supersede all local governmental power. This is not to say, of course, that the State
Engineer is placed in the position of having to choose among all possible water uses every
time he is faced with a grant or do-not-grant decision on a water permit application. All that
the statute requires of the State Engineer in the controversy at hand is that he define the term
threatens to prove detrimental to the public interest, that he make findings of fact relative to
the protestants' contention that the granting of the proposed use was a threat to the public
interest, that he balance the competing public and private interests called to his attention by
the protestants, that he adjudicate the protestants' contention that the project in question
threatened to prove detrimental to the public interest, and that he furnish reasons for his
decisions. The State Engineer did none of these things.
The State Engineer claims that it is sufficient for him merely to consider the four corners
of the applications themselves and that he has no duty to go further than this. It is difficult to
accept the contention that the critical public interest issues presented by this case can be
resolved merely by inspection of the application documents themselves. Sound judgment as
to whether permitting this massive inter-basin water transfer is a threat to the public interest
cannot be made without some consideration being given to the alternatives offered by the
protestants to the granting of this application.
The existence of a more desirable alternative is one of the factors which enters into a
determination of whether a particular proposal would serve the public convenience and
necessity. That the Commission has no authority to command the alternative does not
mean that it cannot reject the proposal.
City of Pittsburgh v. Federal Power Comm'n, 237 F.2d 741, 751 n.28 (D.C. Cir. 1956). In the
present case, although the State Engineer "has no authority to command the alternative,"
this does not mean that the State Engineer cannot reject the proposal if he determines
that the proposal poses a threat to the public interest.
Engineer has no authority to command the alternative, this does not mean that the State
Engineer cannot reject the proposal if he determines that the proposal poses a threat to the
public interest.
Protestants (appellants herein) raised a number of public interest issues. For example,
protestants presented evidence during the hearings below that granting the change
applications threatened to prove detrimental to nearby Pyramid Lake and was a danger to two
species of fish, the Lahontan cutthroat trout, a threatened species, and the cui-ui, an
endangered species. Testimony was also presented that granting the applications would have
an adverse effect on nearby wetlands, plant life and the wildlife in and around the basin.
Evidence was presented that approval of the applications could result in increased dust
pollution. Obviously, neither this court nor the district court can afford a meaningful review
of the State Engineer's decrees absent some discussion and fact-findings on the foregoing
public interest issues.
Protestants also raised public interest issues relative to the State Engineer's refusal to
consider available alternatives to the project that protestants offered during the administrative
proceedings. The trial court's Remand pointed out the necessity of the balancing of myriad
competing interests; yet, the State Engineer refused to consider proposed alternatives, a
refusal which protestants claim will result in unnecessary, wasteful or uneconomical water
uses.
The State Engineer has strongly resisted any suggestion that he is obliged to consider
available alternatives to the water exchanges which he has approved, claiming that it is not
his job to make choices as to optimum water usage. As mentioned, the State Engineer is
correct in stating that he is not obliged to decide which of several possible water uses is
optimal; but this is not to say that he is not obliged to examine available alternatives,
presented formally as a protest, in making a judgment on the public interest issue. If, for
example, a protestant were to claim in an application hearing, first, that granting of the
application would not be cost effective, would be wasteful of water and would have an
extremely adverse environmental effect and, second, that a readily available alternative would
avoid all such threat[]s to the public interest, then the State Engineer could not properly and
legally turn a deaf ear on the claims of such a protestant. Such claims call for careful
consideration and for findings of fact that would justify the State Engineer's conclusions that
granting of the subject applications either was or was not a threat to the public interest.
Protestants offered to the State Engineer an alternative called the "Negotiated Settlement.
the Negotiated Settlement.
6
The protestants claimed that rejection of that alternative and
granting of the applications would result in a threat of detriment to the public interest.
Protestants claim that the offered alternative is manifestly superior to the now-approved
multimillion dollar Honey Lake Project (which incurs a substantial public expenditure) and
would produce at least two-thirds more water. It appears from this record that the State
Engineer has refused to consider any alternatives to the project. Without considering the
alternatives to the Honey Lake Project presented by the protestants, the State Engineer was
clearly unable to make an informed judgment as to whether granting the applications
threatens to prove detrimental to the public interest.
Of course, even if the State Engineer were to conclude that options proffered by the
protestants were superior, economically or environmentally, to those accepted by Washoe
County and by the State Engineer, this alone would not mean that the granting of the
applications necessarily threatened to prove detrimental to the public interest. The point is
that when protestants come in and furnish evidence of a proposed water use plan that they
claim is far superior to that accepted by the County and the State Engineer, the State Engineer
may not ignore such evidence and is required to give some cognizance to these claims. The
State Engineer is not in a position to make a considered yes or no decision as to whether a
public interest threat is present until he has made some evaluation of the opposing claims. If,
for example, in a hypothetical situation, the State Engineer had granted a comparable
inter-basin permit and was told by protestants that there was a readily-available alternative
plan that would clearly conserve many thousands of acre-feet of water per year in evaporation
or other water loss, then, naturally, the State Engineer would be bound to take a look at such
an alternative plan to determine if accepting the plan proposed by the pending applications
would be clearly wasteful and thus a threat to the public interest.
__________

6
The Negotiated Settlement is legislation which was passed by the United States Congress. The purposes of
the Negotiated Settlement are: (1) to equitably divide the disputed Tahoe river waters; (2) to make good on
obligations owed to the injured American Indian tribes; (3) to settle and avoid litigation; and (4) to improve the
habitat of local fish and migratory waterfowl.
To these ends, the Negotiated Settlement allocates the Lake Tahoe Basin waters, provides for payments to the
Pyramid Lake Indian Tribe, and includes provisions to improve and protect wetland habitat. For a thorough
discussion of the Negotiated Settlement, the reader is referred to E. Leif Reid, Ripples from the Truckee: The
Case for Congressional Apportionment of Disputed Interstate Water Rights, 14 Stan. Envtl. L.J. 145 (1995).
The decisions of local governmental officials in water matters might in some instances
prove to be a threat to the public's interest in water conservation. The Legislature has told the
State Engineer that he must inquire into matters relating to overall public interest in all water
permit matters. In cases where the issue of public interest has been expressly raised by
protestants to the application, it is the duty of the State Engineer to make findings and to
adjudicate the public interest issue required to be considered by the language of the statute.
Under the present opinion he is freed in the future from having to perform this statutory duty.
PUBLIC TRUST DOCTRINE
Before a prospective user of water is allowed to use available water, an application for the
right to use that water must be filed with the State Engineer and approved by the State
Engineer. The State Engineer's refusal to consider alternatives to the project is not consistent
with the exercise of his functions as the trustee of water resources in Nevada and his
responsibility to insure that all sources of water supply with the . . . state whether above or
beneath the surface of the ground is managed as an asset belonging to the public.
7
NRS
533.025. in refusing to consider any of the alternatives presented by the protestants to the use
proposed by the applicants, the State Engineer has violated his trust and has failed to consider
adequately the public's interest in its water resources.
Consideration of alternatives is necessary in order to permit the State Engineer to make
informed findings and conclusions relative to comparative cost-effectiveness, efficiency,
waste avoidance and environmental impact. The public interest requires the largest possible
economic use of state waters. Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914).
Whether the Honey Lake Project or the Negotiated Settlement or some other water use plan
offers the most economic use of state waters is a question unanswered in these proceedings
and is a question that should have been answered by the State Engineer. As mentioned before,
the State Engineer has no authority to command the alternative, but the State Engineer does
have the power to reject a proposal in cases, for example, where there are clearly superior
alternatives.
__________

7
Under the Public Trust Doctrine, the state government, as trustee of all public natural resources, owes a
fiduciary obligation to the general public to maintain public uses unless an alternative use would achieve a
countervailing public benefit. See Nat. Audubon Soc. v. Super. Ct. of Alpine Cty, 658 P.2d 709, 712 (Cal.
1983). Thus, the Public Trust Doctrine serves to protect public expectations in natural resources held in common
against destabilizing change. Joseph L. Sax, Liberating the Public Trust Doctrine from Its Historical Shackles,
14 U.C. Davis L. Rev. 185, 188 (1980).
cases, for example, where there are clearly superior alternatives. In such a case, the public
interest would not be served by approving a substantially inferior and wasteful proposal.
The State Engineer's failure or refusal to find facts and his failure or refusal to balance the
various, conflicting public and private interests presented by the protestants invalidate all of
the administrative proceedings and decisions of the State Engineer. The State Engineer is
guilty of a number of clear violations of Nevada's water law and particularly of failing to
comply with the public interest requirements of NRS 533.370(3). Under such circumstances
it is difficult to see how the State Engineer's granting of these permits can possibly be
permitted to stand.
CONCLUSION
This appeal involves purely legal questions which can be decided by this court without
deference to the agency's decision. Mirage v. State, Dep't of Administration, 110 Nev. 257,
259, 871 P.2d 317, 318 (1994). Not only did the State Engineer act in defiance to the trial
court's Remand, the State Engineer clearly acted in contravention of Nevada water law and in
violation of NRS 533.370(3). I have enumerated a number of errors of law which call for
reversal and for a remand to the State Engineer; but the consequence of this decision that
gives me the most concern is that henceforth the State Engineer is allowed, if not directed, to
ignore the clear mandate of NRS 533.370(3) relative to the interest of all Nevadans in making
the best possible use of their limited water resources. This is unfortunate. The judgment of the
majority of this court threatens to prove detrimental to the public interest; therefore, I
dissent.
____________
112 Nev. 763, 763 (1996) Palmer v. State
RICHARD LEE PALMER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26842
June 24, 1996 920 P.2d 112
possession of a stolen vehicle. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The supreme court held that: (1) accomplice's Fifth Amendment right against
self-incrimination was invoked by counsel during in camera hearing; (2) refusing defendant's
request to have accomplice testify at trial did not violate defendant's Sixth Amendment right
to compulsory process; {3) possession of vehicle was established by testimony that
defendant was dismantling convertible top; {4) complainant's ownership of vehicle was
established; and {5) complainant's testimony that there was no consent for another to
operate vehicle established that vehicle was stolen.
Amendment right to compulsory process; (3) possession of vehicle was established by
testimony that defendant was dismantling convertible top; (4) complainant's ownership of
vehicle was established; and (5) complainant's testimony that there was no consent for
another to operate vehicle established that vehicle was stolen.
Affirmed.
Morgan D. Harris, Public Defender, Howard S. Brooks and Jennifer Hartman, Deputy
Public Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart Bell, District Attorney,
James Tufteland, Chief Deputy District Attorney, and Stacy L. Kollins, Deputy District
1. Witnesses.
Defendant in criminal action generally has right to compel production of witnesses in his or her own behalf. U.S. Const. amend. 6.
2. Witnesses.
Attorney for accomplice effectively invoked accomplice's Fifth Amendment right against self-incrimination at in camera hearing
and, thus, denial of defendant's request to have accomplice testify at trial did not violate defendant's right to compulsory process. U.S.
Const. amends. 5, 6.
3. Witnesses.
The Fifth Amendment right against self-incrimination may operate even when no specific question is asked of witness when there
has been a reliable indication that witness will invoke the Fifth Amendment. U.S. Const. amend. 5.
4. Witnesses.
Witness may invoke Fifth Amendment right against self-incrimination through counsel. U.S. Const. amend. 5.
5. Criminal Law.
Standard of review for sufficiency of evidence on appeal is whether jury, acting reasonable, could have been convinced of
defendant's guilt beyond reasonable doubt. Relevant inquiry is whether, after viewing evidence in light most favorable to prosecution,
any rational trier of fact could have found essential elements of crime beyond reasonable doubt.
6. Receiving Stolen Goods.
Possession supporting conviction for possession of stolen vehicle, was established by testimony that defendant was seen inside
vehicle dismantling convertible top, even though defendant did not have keys to vehicle and no one saw defendant drive vehicle. NRS
205.273.
Ownership of vehicle, required to support conviction for possession of stolen vehicle, was established by complainant's
testimony that he had lawful use of vehicle, through permission of agent of record owner, and that complainant paid monthly insurance
payment to agent for record owner. NRS 205.273.
Owner's testimony that he did not give consent to anyone driving vehicle established that vehicle was stolen, as needed to support
conviction for possession of stolen vehicle. NRS 205.271.
OPINION
Per Curiam:
At approximately 11:00 p.m. on July 29, 1994, John Wilson drove to the Point After Bar in Las Vegas to play pool with some friends.
He drove a 1993 Jeep Renegade, which his father, a general manager for Chrysler Corporation, allowed Wilson to use as his own vehicle.
While at the bar, Wilson played pool with friends while appellant Richard Lee Palmer and his companion, Leonard Thompson, played pool
at a neighboring table. The keys to the jeep were on a table adjacent to the pool tables. At 2:00 a.m., Wilson and his friends decided to leave
the bar, but Wilson was unable to locate his keys. Wilson went outside to where he parked the jeep only to discover that it was missing. He
called the police to report it as stolen.
Kenneth Pope, one of Wilson's friends, located the jeep within minutes, approximately one mile from the bar. Palmer and Thompson
were with the jeep, dismantling the convertible top. When the police arrived at the scene, they arrested Palmer and Thompson. Palmer and
Thompson were charged with grand larceny auto and possession of a stolen vehicle, and they were tried separately. The jury convicted
Palmer of possession of a stolen vehicle and the judge sentenced him to four years in the Nevada State Prison.
On appeal, Palmer contends that the district court erred when it denied his request to have Leonard Thompson testify as a witness at
Palmer's trial. As previously noted, the State filed criminal charges against Thompson based upon the same incident, but Thompson's case
was tried separately. Palmer's defense counsel requested that Thompson be called as a witness in the instant case, while Thompson had yet
to be tried for the charges against him. In response to defense counsel's request, the district court stated:
I discussed this matter this morning with Mr. Marty Hastings who represents Mr. Thompson on his case in Justice Court. He tells
me that Mr. Thompson is going to invoke his right to the [F]ifth [A]mendment and will not testify in his behalf. Based on that and
based on the law I cannot have him brought in.
Palmer's defense counsel made an objection to the ruling to preserve the issue for review by this court.
Palmer contends that his Sixth Amendment right to compulsory process was violated
because the district court denied his request to allow Thompson to testify. He cites Bell v.
State, 110 Nev. 1210, 885 P.2d 1311 (1994), to assert that the district court's reliance on
Thompson's attorney was improper because Thompson himself did not invoke his Fifth
Amendment right.
[Headnote 1]
Generally, a defendant in a criminal action has a right to compel production of witnesses
in his or her own behalf. U.S. Const. amend. VI; Washington v. Texas, 388 U.S. 14, 17-19
(1967); Bell v. State, 110 Nev. 1210, 1213, 885 P.2d 1311, 1313 (1994). However, this right
is not absolute. Bell, 110 Nev. at 1213, 885 P.2d at 1313-14. For example, [a] valid assertion
of the witness' Fifth Amendment rights justifies a refusal to testify despite the defendant's
Sixth Amendment rights. United States v. Goodwin, 625 F.2d 693, 700 (5th Cir. 1980).
This court has addressed a defendant's Sixth Amendment right to compulsory process in
Bell. 110 Nev. 1210, 885 P.2d 1311. In Bell, the defendant was convicted of twelve counts of
uttering a forged instrument. Id. at 1212, 885 P.2d at 1313. Bell argued on appeal that the
district court erred when it rejected his motion to compel the appearance at trial of an
out-of-state witness whom Bell asserted was material to his defense. Id. This court agreed and
reversed Bell's conviction and remanded for a new trial.
This court held that pursuant to NRS 174.425, Bell made a sufficient showing of
materiality to justify the issuance of a certificate to compel the witness to attend and testify at
Bell's trial, and the district court erred in failing to issue such a certificate. Id. at 1213-14, 885
P.2d at 1314. This court stated:
The reasons the trial court gave for refusing to compel Beyers' presence do not stand up
to scrutiny. One of the principal reasons the trial judge gave for refusing to compel
Beyers' appearance at trial was his belief that Beyers would probably refuse to testify
for fear of incriminating himself. However, the possibility that a witness may invoke
his or her Fifth Amendment privilege against self-incrimination, by itself, does not
justify refusing to secure an out-of-state witness' presence. State v. Schreuder, 712 P.2d
264, 275 (Utah 1985). The Fifth Amendment privilege comes into operation only when
a specific question is asked. Id. (citing State v. White, 671 P.2d 191, 193 (Utah 1983)).
Moreover, in order for a claim of privilege to be recognized, it must come from the
witness himself or herself. Id. (citing White, 671 P.2d at 193). For these reasons, the
trial court's concern about Beyers' possible silence was premature. More importantly,
given that Beyers actually, previously offered exculpatory testimony at Bell's
preliminary hearing, it was too speculative to say whether Beyers would refuse to
testify, or at what point he might do so.
patory testimony at Bell's preliminary hearing, it was too speculative to say whether
Beyers would refuse to testify, or at what point he might do so.
Id. at 1214, 885 P.2d at 1314. In Bell, this court determined that it was improper to deny
Bell's motion to compel an out-of-state witness to appear based upon the speculation that the
witness would invoke his Fifth Amendment right against self-incrimination. Id. In so doing,
this court stated that the Fifth Amendment only operates when a specific question is asked.
Id. This court further stated that the witness must invoke the privilege himself or herself in
order to be recognized. Id.
[Headnote 2]
Palmer argues that Bell's dicta regarding the Fifth Amendment is on point. Palmer asserts
that because Thompson's attorney, not Thompson himself, invoked the privilege against
self-incrimination, it was improper for the court to recognize the privilege. Further, because
Thompson was not specifically questioned by the court in an in camera hearing nor by
counsel at trial, the Fifth Amendment does not operate because no specific question was
asked.
[Headnotes 3, 4]
We recognize that the language in Bell regarding the Fifth Amendment may be viewed too
broadly. By way of clarification, we hold that the Fifth Amendment may operate even when
no specific question is asked of the witness when there has been a reliable indication that the
witness will invoke the Fifth Amendment. Moreover, a witness may invoke such a right
through his or her counsel. See State v. McDowell, 247 N.W.2d 499 (Iowa 1976) (holding
that witness may assert Fifth Amendment privilege against self-incrimination by speaking
through counsel); Sherrick v. State, 725 P.2d 1278 (Okla. Crim. App. 1986) (finding that trial
court properly refused defense counsel's request to call witness after in camera hearing where
witness's attorney informed court that witness intended to invoke privilege against
self-incrimination).
Although a personal invocation of the privilege is preferred, we conclude that the district
court did not err in denying Palmer's request to have Thompson testify at trial, because
Thompson invoked his Fifth Amendment right against self-incrimination through his counsel
at an in camera hearing. The district court was justified in relying upon Thompson's counsel's
representation in making its ruling. We must note that Thompson's counsel affirmatively
represented to the court that Thompson would invoke the right, unlike in Bell, where the
judge merely speculated that the witness would invoke the right.
Palmer also contends on appeal that there is insufficient evidence to convict him of
possession of a stolen vehicle on two grounds. First, he argues that the State failed to prove
that he had possession of the vehicle because no one saw him drive the jeep nor did he have
the keys. Second, Palmer asserts that the State failed to prove that the vehicle was stolen
because the record owner of the vehicle, Chrysler Corporation, failed to testify and assert that
it did not give consent for someone else to drive the jeep.
[Headnote 5]
The standard of review for sufficiency of evidence upon appeal is whether the jury, acting
reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt.
Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). This court has further stated
that when sufficiency of the evidence is challenged on appeal, [t]he relevant inquiry for the
court is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
[Headnote 6]
NRS 205.273, the statute defining the offense of possession of a stolen vehicle, states in
pertinent part:
Any person who, . . . has in his possession any motor vehicle which he knows or has
reason to believe has been stolen . . . shall be punished by imprisonment in the state
prison for not less than 1 year, nor more than 10 years, or by a fine of not more than
$10,000, or by both fine and imprisonment.
NRS Chapter 205, Crimes Against Property, does not define possession in the context of
stolen motor vehicles. However, other authorities provide a definition of possession.
According to Black's Law Dictionary:
The law, in general, recognizes two kinds of possession: actual possession and
constructive possession. A person who knowingly has direct physical control over a
thing, at a given time, is then in actual possession of it. A person, who, although not in
actual possession, knowingly has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or through another person or
persons, is then in constructive possession of it.
Black's Law Dictionary 1163 (6th ed. 1990). In cases addressing narcotics possession, this
court has stated that possession may be imputed when the contraband is found in a location
which is immediately and exclusively accessible to the accused and subject to [his] dominion
and control.' Sheriff v. Shade, 109 Nev. 826, 830, 858 P.2d 840, 842 (1993) (quoting
Glispey v. Sheriff, 89 Nev. 221, 223, 510 P.2d 623, 624 (1973)).
Baker v. State, 93 Nev. 11, 558 P.2d 629 (1977), is also instructive on the issue of
possession. In that case, Baker appealed the district court's denial of his pre-trial petition for
writ of habeas corpus. Id. at 12, 558 P.2d at 629. Baker and two other suspects were arrested
for possession of stolen property in violation of NRS 205.275 after police observed them
driving up and down a Las Vegas street attempting to sell chainsaws from the vehicle. Id.
The vehicle contained four stolen chainsaws, one in the back seat (with Baker) and three in
the trunk. Id.
This court rejected Baker's argument that his mere presence in a vehicle containing stolen
chainsaws was insufficient to support an inference that he possessed the chainsaws. This
court stated that although mere presence cannot support an inference that one is a party to an
offense, presence together with other circumstances may do so. Id. at 13, 558 P.2d at 629
(citing Winston v. Sheriff, 92 Nev. 616, 555 P.2d 1234 (1976)). This court continued, [h]ere,
as in Winston, the circumstances surrounding the mere presence' of Baker support a
reasonable inference that he probably committed the charged offense. Id.
In the instant case, we conclude that there is sufficient evidence to show that Palmer was
in constructive possession of the jeep, if not actual possession, despite the fact that he did not
have the keys and no one saw him drive the vehicle. Wilson's friend, Kenneth Pope, testified
that he saw Palmer inside the jeep dismantling the convertible top. When a police officer
arrived at the scene, he saw Palmer standing on the side of the jeep, leaning into the jeep,
and . . . taking parts off the jeep. We conclude that these circumstances are sufficient to
demonstrate that Palmer was in possession of the jeep because he was exercising control
over it at that point in time.
[Headnote 7]
Palmer also argues that the State failed to prove that the vehicle was stolen because no
agent of Chrysler Corporation, the record owner of the vehicle, testified at trial. Palmer
claims that in the absence of testimony from John Wilson's father or documentary evidence to
support Wilson's right to a possessory interest, the State has failed to show that the vehicle
was stolen.
[Headnote 8]
We conclude that this contention lacks merit. Under NRS 205.271, the word owner' [as
used in NRS 205.273] means a person having the lawful use or control or the right to the use
and control of a vehicle under a lease or otherwise for a period of 10 or more successive
days. NRS 205.271. Here, Wilson testified that he had the lawful use of the vehicle pursuant
to his father's permission as an agent of the record owner, Chrysler Corporation. Wilson
further stated that he made a $300-per-month insurance payment to his father for the jeep. We
conclude that this evidence was sufficient to establish that Wilson had a present right to
possess the jeep and that he was an owner under NRS 205.271. Wilson's testimony that he
did not give consent for anyone to drive the jeep is sufficient to show that the vehicle was
stolen.
Finally, Palmer argues that the prosecutor made three comments, each constituting
prosecutorial misconduct and warranting reversal under Sipsas v. State, 102 Nev. 119, 716
P.2d 231 (1986). We have carefully reviewed these comments and conclude that they do not
constitute prosecutorial misconduct.
For the foregoing reasons, the judgment of the district court is hereby affirmed.
____________
112 Nev. 770, 770 (1996) Golconda Fire Dist. v. Co. of Humboldt
GOLCONDA FIRE PROTECTION DISTRICT, Appellant, v. COUNTY OF HUMBOLDT, a
Political Subdivision of the State of Nevada, Respondent.
No. 26906
June 24, 1996 918 P.2d 710
Appeal from an order of the district court granting respondent's motion to dismiss. Sixth
Judicial District Court, Humboldt County; Richard A. Wagner, Judge.
Fire protection district brought suit against county for allegedly wrongfully retaining
interest earned on taxes collected for district. The district court dismissed, and fire protection
district appealed. The supreme court held that: (1) county did not have discretion with respect
to apportionment of fire protection district's tax proceeds, and (2) taxes and interest collected
by county for fire protection district were required to be deposited into county treasury and
used only for fire protection purposes.
Rehearing granted. Opinion clarified. Golconda Fire Dist. v. Co. of Humboldt, 113
Nev. 104, 930 P.2d 782 (1997).
Puccinelli & Puccinelli and Alvin R. Kacin, Elko, for Appellant.
R. Michael McCormick, District Attorney, and Kyle B. Swanson, Deputy, Humboldt
County, for Respondent.
1. Counties.
County only had authority to utilize interest when county invested its own money, and therefore county did not have discretion
with respect to apportionment of fire protection district's tax proceeds and interest earned thereon, and county's actions in doing so
were not protected by doctrine of governmental immunity. NRS 355.170(3), (5), 355.175.
2. Counties.
Taxes and interest collected by county for fire protection district were required to be deposited into county treasury and used only
for fire protection purposes. NRS 474.200(3).
3. Trusts.
Constructive trust was placed on county to require it to administer taxes collected by county for fire protection district. NRS
474.200.
OPINION
Per Curiam:
On June 30, 1994, appellant Golconda Fire Protection District (Golconda) filed a complaint against respondent County of Humboldt,
a political subdivision of the State of Nevada (Humboldt County), alleging that Humboldt County wrongfully retained the interest earned
on the taxes Humboldt County collected for Golconda. Golconda contended that Humboldt County improperly credited Golconda's earned
interest to the county's general fund. The district court granted Humboldt County's motion to dismiss, finding that Humboldt County's
decision to credit interest earned on Golconda's tax collections to the county's general fund was a discretionary act that is immune from
challenge. For the reasons stated below, we reverse the district court's order dismissing Golconda's complaint and remand this case for an
accounting.
FACTS
Golconda was established as a fire protection district in Humboldt County on January 20, 1954. Pursuant to NRS 474.200, Humboldt
County has levied and collected tax revenues for Golconda, and acted as custodian for those revenues, since 1954. On June 30, 1994,
Golconda filed a complaint against Humboldt County, alleging that Humboldt County wrongfully retained the interest earned on the taxes
Humboldt County collected on behalf of Golconda. Specifically, Golconda contended that Humboldt County, between 1954 and 1992,
improperly credited the interest earned on Golconda's tax proceeds to the county's general fund.
On August 4, 1994, Humboldt County filed a motion to dismiss Golconda's complaint.
Humboldt admitted that between 1954 and 1991 the accrued interest on Golconda's tax
collections was inadvertently appropriated to Humboldt County's general fund. Since the
1991-92 fiscal year, all interest earned on Golconda's tax proceeds has been credited to
Golconda and Humboldt County has charged Golconda $1,000.00 per year for auditing and
accounting services. Prior to the 1991-92 fiscal year, such auditing and accounting services
were provided to Golconda free of charge. On January 5, 1995, the district court dismissed
Golconda's complaint, finding that Humboldt County's decision to credit interest earned on
Golconda's tax collections to the county's general fund was a discretionary act that was
protected by governmental immunity.
In this appeal, Golconda presents two issues. First, Golconda contends that the district
court erroneously concluded that Humboldt County's crediting decision was protected by
governmental immunity. Second, Golconda contends that Humboldt County's crediting
decision violated Nevada's open meeting law. Because we reverse the district court's ruling
based on Golconda's former contention, we do not address Golconda's latter contention in this
opinion.
DISCUSSION
Pursuant to NRS 41.031, the State of Nevada waived its immunity, and the immunity of all
its political subdivisions, from liability and legal actions. However, NRS 41.032 establishes
an exception to the waiver of immunity when an action is based on a state or political
subdivision's exercise of a discretionary function. According to the district court, Golconda's
complaint arose out of Humboldt County's exercise of a discretionary function that was
authorized by NRS 355.170(5) and NRS 355.175.
Authority provided by NRS 355.170(5)
1

[Headnote 1]
The title of NRS 355.170 is Authorized investments for counties, cities, and school
districts; disposition of interest, implying a general grant of authority to counties for
investing money.
__________

1
NRS 355.170(5) reads as follows:
5. Any interest earned on money invested pursuant to subsection 3, may, at the discretion of the board of
county commissioners, the board of trustees of a county school district or governing body of the city, be
credited to the fund from which the principal was taken or to the general fund of the county, school
district or incorporated city.
(Emphasis added.)
money. However, NRS 355.170(5), the provision dealing with the use of interest earned on
investments, applies only to investments made pursuant to NRS 355.170(3). Pursuant to NRS
355.170(3), a county may make an investment authorized by NRS 355.170(1)-(2) if the
county commissioners believe there is sufficient money in any fund of the county. NRS
355.170(3) (emphasis added). Accordingly, we conclude that the discretion granted to
counties by NRS 355.170(5) only applies when the county is investing its own money.
Attorney General Opinion 493 reached a similar result. The attorney general concluded
that NRS 355.170 confers authority to invest funds held by counties and cities and confers no
authority for counties to act in any manner with respect to school funds or interest thereon.
Op. Att'y Gen. No. 493 (February 27, 1968). Likewise, we conclude that NRS 355.170 did
not confer authority to Humboldt County with respect to the apportionment of Golconda's tax
proceeds and the interest earned thereon.
Authority provided by NRS 355.175
2

Pursuant to NRS 355.175(3), interest earned on investments made pursuant to NRS
355.175 may be credited at the discretion of the local governing unit. Golconda contends that
NRS 355.175 does not convey any authority to counties for the investment of government
funds, but instead extends the authority for investing government funds to governmental
entities who were not provided such authority by NRS 355.170. We agree.
Pursuant to NRS 355.175(1), a local government or agency may direct its treasurer or
appropriate officer to invest funds as allowed by NRS 355.168 or NRS 355.170. Counties
already have that express authority in NRS 355.168 and NRS 355.170. See
__________

2
NRS 355.175 reads as follows:
1. The governing body of any local government or agency, whether or not it is included in the provisions
of chapter 354 of NRS, may:
(a) Direct its treasurer or other appropriate officer to invest its money or any part thereof in any
investment which is lawful for a county, a school district or incorporated city pursuant to NRS 355.170;
or
(b) Allow a county treasurer to make such investments through a pool as provided in NRS 355.168.
2. In case of conflict, any order made pursuant to paragraph (a) of subsection 1 takes precedence over
any other order concerning the same money or funds pursuant to subsection 5 of NRS 355.170.
3. Any interest earned from investments made pursuant to this section must be credited, at the discretion
of the local governing unit, to any fund under its control, but the designation of the fund must be made at
the time of investment of the principal.
(Emphasis added.)
NRS 355.168; NRS 355.170. Further, it is absurd to conclude that a county needs NRS
355.175(1)(b) to allow its own treasurer to make a pooled investment because NRS 355.168
expressly provides that the county treasurer of any county may pool, for the purposes of
investment, any money held by him. Therefore, we conclude that NRS 355.175 was enacted
so that districts like Golconda, not Humboldt County, could invest government funds.
Accordingly, the district court erroneously ruled that Humboldt County made a
discretionary decision in this case that was authorized by NRS 355.170(5) or NRS 355.175.
Further, we conclude that the district court erred by dismissing Golconda's complaint based
on the theory of governmental immunity.
Humboldt County's trustee duties
[Headnotes 2, 3]
The taxes collected by fire districts must be deposited into a county treasury and used only
for fire protection purposes.
3
NRS 474.200(3); Op. Att'y Gen. No. 92-22 (August 26, 1992).
We conclude that the use of interest earned on a fire district's tax proceeds is also encumbered
by the restrictions contained in NRS 474.200(3). See generally NRS 387.195(3) (requiring
interest earned on school tax funds to be credited to the school district fund). Further, we
conclude that a constructive trust was created by NRS 474.200, placing fiduciary duties on
Humboldt County to administer the taxes collected on behalf of Golconda. See John N.
Pomeroy, Equity Jurisprudence, 991-92, 1067 (5th ed. 1941) (hereinafter Pomeroy);
Village of Brookfield v. Pentis, 101 F.2d 516, 520 (7th. Cir. 1939).
Humboldt County implies that between 1954 and 1991 the interest earned on Golconda's
tax funds was used to reimburse Humboldt County for the auditing and accounting services
that were necessary to manage Golconda's account. As a trustee, Humboldt County was
entitled to reimbursement for the reasonable costs of managing the trust. Pomeroy at 1085.
However, to arbitrarily imply that the cost of Humboldt County's services between 1954 and
1991 is equal to the interest earned on Golconda's tax funds during those years is not
congruent with Humboldt County's fiduciary duties as a trustee. Accordingly, an accounting
is necessary to determine Humboldt County's actual trustee expenses and the actual
interest earned on Golconda's tax funds between 1954 and 1991.
__________

3
Pursuant to NRS 474.200(3):
3. When the [fire district assessment] is collected it must be placed in the treasury of the county in
which the greater portion of the district is located, to the credit of the current expense fund of the district,
and may be used only for the purpose for which it was raised.
(Emphasis added.)
trustee expenses and the actual interest earned on Golconda's tax funds between 1954 and
1991. See Prange v. City of Marion, 48 N.E.2d 980 (Ill. App. Ct. 1943).
CONCLUSION
We conclude that Humboldt County's decision to credit interest earned on Golconda's tax
proceeds to the county's general fund was not a discretionary act or immune from suit. Also,
we conclude that an accounting is necessary to determine Humboldt County's actual trustee
expenses and the actual interest earned on Golconda's tax funds between 1954 and 1991.
Accordingly, we reverse the district court's order dismissing Golconda's complaint and
remand this case for an accounting.
____________
112 Nev. 775, 775 (1996) Whiterock v. State
VICTOR WHITEROCK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24308
June 24, 1996 918 P.2d 1309
Appeal from a judgment of conviction, pursuant to a conditional plea of guilty, of one
count of killing or possessing animals without a valid tag. Fourth Judicial District Court, Elko
County; Jack B. Ames, Judge.
Defendant, an enrolled member of Western Shoshone Nation, entered conditional plea of
guilty in the district court to one count of killing or possessing animals without valid tag.
Defendant appealed. The supreme court held that: (1) aboriginal rights to hunt and fish in
national forest were extinguished, and (2) there was no federal basis to recognize individual
aboriginal hunting right and defendant therefore had to comply with reasonable
nondiscriminatory state regulation.
Affirmed.
Frederick B. Lee, Public Defender, Elko County, for Appellant.
Attorney, Sherburne M. MacFarlan, III, Deputy District Attorney, and Robert J. Lowe,
Deputy District Attorney, Elko County, for Respondent.
1. Indians.
Aboriginal title, under which Native Americans who occupied land before arrival of European settlers acquired legal rights in it,
is tantamount to fee simple except that it does not grant tribes or individual Indians the power to transfer
title, but basically guarantees right to occupy land and exercise attendant rights of hunting, fishing, and
gathering.
tantamount to fee simple except that it does not grant tribes or individual Indians the power to transfer title, but basically guarantees
right to occupy land and exercise attendant rights of hunting, fishing, and gathering.
2. Indians.
Defendant, a member of Western Shoshone Nation charged with killing or possessing animal without valid tag, did not have tribal
aboriginal right to hunt and fish in national forest as extinguishment of Nation's title to land, in consideration of compensation paid
under Indian Claims Commission Act, included conveyance of unreserved aboriginal and treaty-based hunting and fishing rights. 25
U.S.C. 70, 70u(a); NRS 501.376(1).
3. Indians.
Even when tribal fishing rights have been reserved under treaty, individual members of tribe are subject to jurisdiction of state
courts in connection with fishing activities occurring off reservation.
4. Indians.
Given long-standing federal policy of allowing states to regulate wildlife within their borders and absence of tribal rights to hunt
and fish, there was no basis in federal law to grant member of Western Shoshone Nation an individual aboriginal right to hunt in
national forest free from regulation by state, even if defendant could establish that he or his ancestors had continuously hunted in forest
for subsistence since date land was reserved from settlement, and, thus, state's interest in preserving and regulating wildlife within its
boundaries was overriding valid interest and defendant's right to hunt was restricted by reasonable nondiscriminatory state regulations.
NRS 501.376(1), 502.280(1).
5. Criminal Law.
Mistake or ignorance of the law is not a defense to criminal action.
OPINION
Per Curiam:
Victor Whiterock, an enrolled member of the Western Shoshone Nation, entered a conditional plea of guilty to one count of killing or
possessing animals without a valid tag. The conditional plea, entered pursuant to NRS 174.035(2), reserved his right to appeal certain
issues. Whiterock now appeals from the district court's rejection of (1) his claim of exemption from certain state hunting laws and
regulations by reason of his status as a Shoshone, and (2) his mistake of law defense.
On August 21, 1992, Officer Colin Perry of the Elko County Sheriff's Office received a telephone call informing him that Whiterock
had a dead deer in his possession. After locating Whiterock, Perry saw a rifle in the cab and the body of a deer in the bed of Whiterock's
truck. Upon questioning, Whiterock admitted that he did not have a valid tag for the deer, which he had killed and taken from the
Humboldt National Forest. Perry subsequently arrested Whiterock for unlawful possession of a deer without a valid
tag pursuant to NRS 501.376.
subsequently arrested Whiterock for unlawful possession of a deer without a valid tag
pursuant to NRS 501.376.
1

Whiterock moved to dismiss the charge on the ground that as a Western Shoshone Indian,
2
he possesses an individual aboriginal right to hunt in the Humboldt National Forest. The
district court denied Whiterock's motion on the ground that an individual aboriginal hunting
right does not exist in law. Thereafter, Whiterock entered his conditional guilty plea pursuant
to NRS 174.035(2), which allowed him to preserve for review by this court the defenses of
the existence of an individual aboriginal hunting right and mistake of law.
After careful review, we conclude that the asserted defenses are not legally recognizable
and therefore affirm the conviction.
[Headnote 1]
Native Americans who occupied the land in this country before the arrival of European
settlers acquired legal rights to the land under a theory of aboriginal title. Aboriginal title is
tantamount to fee simple except that it does not grant tribes or individual Indians the power to
transfer title. Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835); Johnson v. M'Intosh,
21 U.S. (8 Wheat.) 543, 547 (1823). Aboriginal title basically guarantees the right to occupy
the land and exercise the attendant rights of hunting, fishing and gathering on the land.
Over the course of this country's history, some tribes relinquished their rights or defined
their rights through treaties with the federal government; other tribes simply lost their lands
through the gradual encroachment of settlers. In 1946, Congress passed an act establishing the
Indian Claims Commission, which provided a forum for Native Americans to litigate the
taking of their lands and the amount of compensation due to the tribes. 25 U.S.C. 70 (1976).
Under the Indian Claims Commission Act, the Commission was empowered to hear and
decide land claims. The Act provides that payment of any claim . . . shall be a full discharge
of the United States of all claims and demands touching any of the matters involved in the
controversy. Id. at 70u(a) (omitted from the Code in 1978 upon termination of the
Commission).
__________

1
Any person who unlawfully kills or possesses a bighorn sheep, mountain goat, elk, deer, pronghorn
antelope, mountain lion or black bear without a valid tag is guilty of a gross misdemeanor.

2
In this opinion, the term Indian is used to refer to American Indians, or Native Americans, who are the
aboriginal peoples of North America.
[Headnote 2]
Pursuant to the Indian Claims Commission Act, the Western Shoshone's tribal rights to
lands in western Nevada and other states were declared extinguished and $26 million
compensation was ordered paid to the Shoshone for full title extinguishment. Temoak Band
of Western Shoshone Indians v. United States, 593 F.2d 994, 999 (Ct. Cl.), cert. denied, 444
U.S. 973 (1979); Shoshone Nation or Tribe of Indians v. United States, 11 Ind. Cl. Comm.
387 (1962).
In 1986, the Western Shoshone brought an action against the State of Nevada to enjoin the
enforcement of Nevada's fishing and hunting regulations against members of the tribe.
Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 201 (9th Cir. 1991), cert. denied,
506 U.S. 822, 113 S. Ct. 74 (1992). The Shoshone argued that Nevada's wildlife regulations
interfered with Shoshone aboriginal and treaty-reserved rights to hunt and fish. Id. The
federal district court granted summary judgment to the State of Nevada on the basis that the
result of the Shoshone Nation litigation was that the Shoshone no longer had title to the land
in question; therefore, the members of the tribe had no greater rights to use the land than any
other citizen. Id. at 203. The Ninth Circuit affirmed the district court order, rejecting the
Shoshone argument that tribal aboriginal and treaty-reserved hunting and fishing rights
survive the extinguishment of title. Id. The Molini court specifically rejected the argument
that the Treaty of Ruby Valley operates as an independent source of hunting and fishing
rights. Id. The court held that the rights to hunt and fish on the land are among the bundle of
rights which are inherent in holding title to the land. Id. (citing Oregon Department of Fish
and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985)). Therefore, the conveyance of
title included hunting and fishing rights, absent express reservation of those rights. Id.
Similarly, we conclude that where the Shoshone no longer hold title to the property which
encompasses the Humboldt National Forest, Whiterock cannot claim any tribal aboriginal
right to hunt and fish there.
In Molini, the Shoshone raised the issue presently before this court, namely, the survival of
individual as opposed to tribal aboriginal rights. The federal district court refused to consider
this issue because the tribe failed to raise it until two and one-half years after the action was
filed. Id. at 204. The concept of individual aboriginal rights is not well-defined. The only
cases recognizing individual aboriginal rights are Cramer v. United States, 261 U.S. 219, 229
(1923) and United States v. Dann, 470 U.S. 39, 50 {19S5), and, after remand, United States
v. Dann, S73 F.2d 11S9, 1199 {9th Cir.
U.S. 39, 50 (1985), and, after remand, United States v. Dann, 873 F.2d 1189, 1199 (9th Cir.
1989).
3

In Cramer, the United States brought suit on behalf of three Indians who sought to
invalidate a federal land patent issued to the Central Pacific Railroad Company in 1904.
Cramer, 261 U.S. at 224-25. The Indians argued that the congressional act in question, which
permitted issuance of the land patent, was invalid because they individually occupied and
used the land continuously since before the federal government removed the land from
settlement in 1859. Id. The United States Supreme Court agreed, reasoning that aboriginal
title creates an individual aboriginal right of occupancy. The Court concluded that the Indians'
right of occupancy was superior to the title vested through a later federal land patent. Id. at
225. The Supreme Court grounded its opinion on the contemporary government policy which
favored land settlement in general and Indian settlement in particular. The Court stated, [i]n
our opinion the possession of the property in question by these Indians was within the policy
and with the implied consent of the Government. Id. at 230.
In Dann, the United States brought a trespass action against the Danns, members of an
autonomous band of the Western Shoshone, alleging that they had trespassed on public
lands by grazing cattle there without a permit from the Bureau of Land Management. Dann,
470 U.S. at 43. The Danns defended on the ground that as Shoshones they had aboriginal title
to the land in question. Id. After a series of lower court opinions, the United States Supreme
Court determined that any tribal aboriginal rights were extinguished by the payment to the
tribe for the taking. Id. at 44. However, the Court also stated, [t]hough we have recognized
that individual aboriginal rights may exist in certain contexts, this contention has not been
addressed by the lower courts and, if open, should first be addressed below. We express no
opinion as to its merits. Id. at 50.
On remand, the district court and then the Ninth Circuit addressed the issues with respect
to the Danns' claim of individual aboriginal rights. The Ninth Circuit explained that the
individual aboriginal rights recognized in Cramer were much narrower than the traditional
tribal aboriginal rights.
__________

3
Other cases have discussed the concept of individual aboriginal rights, but none have recognized that the
litigant was entitled to such a right and none have clearly set forth the parameters of individual aboriginal rights.
United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 344-45 (1941); United States v. Kent, 945 F.2d 1441,
1443-44 (9th Cir. 1991); Pai 'Ohana v. United States, 875 F. Supp. 680, 697 (D. Hawaii 1995). In fact, various
courts have made contradictory statements regarding individual aboriginal rights. Compare Pai 'Ohana, 875 F.
Supp. at 697 (exclusive use and occupancy required to establish individual aboriginal title) with Dann, 873 F.2d
at 1199 (shared individual aboriginal grazing rights recognized).
vidual aboriginal rights recognized in Cramer were much narrower than the traditional tribal
aboriginal rights. Dann, 873 F.2d at 1196. The court noted that those traditional tribal rights
were based on occupation and use since time immemorial. Id. at 1197. In Cramer, the
Indians' rights were based on the fact that they had occupied the land since the time that
federal policy encouraged their occupation, and the policy was no longer in effect. Id. at
1197-98.
4
The Ninth Circuit concluded, however, that if the Danns could establish that they
or their lineal ancestors had actually exercised grazing rights prior to November 1934, when
the land was withdrawn from settlement, and had exercised them continuously since that
time, the Danns would have established grazing rights for the numbers and types of animals
they had grazed at the time the lands were incorporated into grazing districts. Id. at
1199-1200. Thus, the individual aboriginal right to graze recognized in Dann was narrowly
drawn. The Ninth Circuit went on to hold that individual aboriginal grazing rights were not
wholly exempt from regulation by the Bureau of Land Management stating that [e]ven
Indian treaty rights, when shared with others on the public lands or waters, are subject to
reasonable regulation that is shown to be essential to the conservation of the common
resources and does not discriminate against the Indians. Id. at 1200 (citing Puyallup Tribe v.
Department of Game, 391 U.S. 392, 398 (1968); Antoine v. Washington, 420 U.S. 194, 207
(1975)).
The question before this court is how the federal policy expressed in the foregoing cases
corresponds with Whiterock's claim that he holds an individual aboriginal right to hunt in the
Humboldt National Forest without any state interference. There are no cases directly on point
which would dictate this court's decision. Cramer is clearly distinguishable since it involved a
claim to land which the individual Indians had enclosed and occupied for years before the
federal grant to the railroad. Thus, Cramer is very similar to a case of adverse possession.
Moreover, in Cramer, no tribal lands or rights were involved. Accordingly, Cramer, did not
address the issue of whether an individual aboriginal right survives after tribal title to the
same land is extinguished. Because Whiterock is claiming an individual right to hunt on land
to which his tribe once had title, Cramer does not apply.
__________

4
In 1934, Congress departed from its earlier policy favoring entry and settlement of public lands by passing the
Taylor Grazing Act. Under the Taylor Act, President Franklin D. Roosevelt withdrew unappropriated public
lands from settlement in twelve states, including Nevada. Thus, where federal priorities had shifted since
Cramer, the Danns' occupancy of public land could not be viewed as undertaken with the implied consent of the
government as it was in Cramer. Dann, 873 F.2d at 1198.
apply. The individual aboriginal rights to graze on public land which Dann recognized are
much closer in character to the hunting rights asserted in this case. Both claims of rights are
based on prior usage and encompass the ability to use public lands free from government
regulation unless the government can prove that the regulation is necessary for the
conservation of the resource. However, Dann can be distinguished in that it involved federal
regulation and federal policy, as opposed to state regulation as in this case.
Federal courts have never recognized an individual hunting right; all the cases involving
hunting rights relate to tribal rights. Most cases dealing with hunting and fishing rights
involve the interpretation of treaties in which tribes specifically reserved these rights. See
Antoine v. Washington, 420 U.S. 194 (1975); Washington Game Dept. v. Puyallup Tribe,
414 U.S. 44 (1973); United States v. Oregon, 913 F.2d 576 (9th Cir. 1990).
[Headnote 3]
States have traditionally been accorded wide latitude in fashioning regulations appropriate
for protection of the wildlife within their borders, even on federal land, so long as those
regulations do not conflict with a federal statute or treaty. See Ward v. Race Horse, 163 U.S.
504 (1896). While a number of cases have dealt with the issue of state wildlife regulations
and have established limits on the degree to which states may regulate Indian rights, all of
these cases are based on the interpretation of treaties. See Tulee v. State, 315 U.S. 681 (1942)
(limiting state's right to charge fees for fishing licenses); Maison v. Confederated Tribes, 314
F.2d 169 (9th Cir.), cert. denied, 375 U.S. 829 (1963) (denying state right to restrict use by
Indians unless conservation could not be achieved by restricting use by non-Indians). In the
present case, no reserved treaty-based rights exist since the courts have already ruled that all
tribal Shoshone rights have been extinguished. Western Shoshone Nat. Council v. Molini,
951 F.2d 200 (9th Cir. 1991), cert. denied, 506 U.S. 822, 113 S. Ct. 74 (1992). Furthermore,
the Puyallup litigation established that even when rights have been reserved under treaty,
individual members of the tribe are subject to the jurisdiction of state courts in connection
with fishing activities occurring off the reservation. Puyallup Tribe v. Washington Game
Dept., 433 U.S. 165 (1977).
[Headnote 4]
In view of the long-standing federal policy of allowing states to regulate wildlife within
their borders, and in light of the absence of tribal rights to hunt and fish, we conclude that
there is no basis in federal law which would grant Whiterock an individual aboriginal right to
hunt in the Humboldt National Forest free from regulation by the State of Nevada.
inal right to hunt in the Humboldt National Forest free from regulation by the State of
Nevada. Dann is distinguishable on the ground that it involved grazing rights, which were
based on federal policies. In contrast, the federal policy with respect to wildlife is to defer to
the statethere is no overriding federal policy.
Even if Whiterock were able to establish that he or his ancestors had continuously hunted
in the forest for their subsistence since 1906
5
(the date that President Theodore Roosevelt
reserved the land which became the Humboldt National Forest from settlement), there is no
federal policy which would mandate recognition of special rights for individual tribal
members in the absence of any such tribal rights.
6
The State's interest in preserving and
regulating the wildlife within its boundaries is therefore the overriding valid interest.
Whiterock has a right to hunt in Nevada, but he must comply with the reasonable
nondiscriminatory regulations of the State.
Under state law, Whiterock has a right to hunt in the Humboldt National Forest and
elsewhere in Nevada, just as any Nevadan. The only restriction on this right is that hunters
must obtain a license or a big game tag. The State even exempts resident Indians, such as
Whiterock, from paying a fee to obtain a hunting or fishing license. NRS 502.280(1). This is
consistent with this State's recognition of Indian heritage and its respect for Indian culture and
tradition.
We also conclude that Whiterock's defense of mistake of law is without merit. It is well
established that mistake or ignorance of the law is not a defense to a criminal action. State v.
Patterson, 679 P.2d 416, 422 (Wash. Ct. App. 1984); see Dixon v. State, 103 Nev. 272, 274,
737 P.2d 1162, 1164 (1987).
Whiterock's conviction is affirmed.
__________

5
Whiterock pleaded guilty to hunting without a license. Thus, there was no trial in this case at which evidence
was presented or findings made regarding whether Whiterock and his family continuously hunted on the land.

6
Even if sympathetic federal policies have sought to redress the historical inequitable treatment of Indians in
this country, those policies do not create a right where one does not exist in law.
____________
112 Nev. 783, 783 (1996) Glenbrook Homeowners v. Pettitt
GLENBROOK HOMEOWNERS ASSOCIATION, INC., a Nevada Non-Profit Corporation,
Appellant, v. CHARLES PETTITT and DIANE PETTITT, Husband and Wife, Respondents.
No. 26699
June 24, 1996 919 P.2d 1061
Appeal from order granting summary judgment. Ninth Judicial District Court, Douglas
County; David R. Gamble, Judge.
Homeowners association filed eminent domain action to condemn land for expansion of
byway leading into community. The district court granted summary judgment for landowners,
concluding that association did not have authority to condemn property. Association
appealed. The supreme court held that eminent domain statute impliedly authorized
association to bring private eminent domain action to expand byroad.
Mark H. Gunderson, Reno, for Appellant.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Audrey P. Damonte, Carson
City, for Respondents.
1. Judgment.
Summary judgment is appropriate when no genuine issues of material fact remains for trial and moving party is entitled to
judgment as matter of law.
Appellate review of summary judgment is de novo.
3. Eminent Domain.
Private eminent domain action is authorized by statute, provided that planned use of property constitutes public use and entity
seeking property is in charge of public use for which property is sought; entity need not, however, be a specifically delegated
condemnation authority. NRS 37.010(7); 37.070(2).
4. Eminent Domain.
Homeowners association was impliedly authorized by statute to bring private eminent domain action to condemn property to
widen byroad leading into community; property was to be taken for public purpose and homeowners association was in charge of
maintaining byroad for which property was sought. NRS 37.010(7), 37.070(2).
OPINION
Per Curiam:
Appellant Glenbrook Homeowners Association (GHOA) filed an eminent domain action against respondents Charles and Diane
Pettitt {Pettitts) to condemn part of their land for construction of a roadway.
Pettitt (Pettitts) to condemn part of their land for construction of a roadway. The district court
granted summary judgment for the Pettitts, concluding that GHOA did not have standing to
condemn the property because traffic safety matters had been legislatively delegated to the
Nevada Department of Transportation (NDOT). GHOA contends that it has power to
condemn the land for construction of a roadway. We agree, and reverse the district court's
decision and remand with instructions to enter summary judgment for GHOA.
FACTS
GHOA is a non-profit corporation formed for the mutual benefit and protection of its
members and to enforce the Declaration of Covenants, Conditions and Restrictions (CC&Rs)
of the Glenbrook community. Under the CC&Rs, GHOA owns and is responsible for
maintenance of the common areas and roads within the community. On February 2, 1978, the
Pettitts purchased property from Glenbrook and constructed a home.
In 1991, responding to safety concerns, GHOA sought to widen the only byroad leading
into the community. The redesign required the acquisition of a small strip of the Pettitts'
property adjacent to the existing byroad. The Pettitts refused to sell the land, and on July 26,
1991, GHOA filed an eminent domain action against the Pettitts.
On September 22, 1994, the parties stipulated to the following facts:
(a) The property sought by GHOA in this action . . . is solely-owned by Pettitt.
(b) The existing entrance and roadway leading into the Glenbrook community is unsafe
and dangerous for several reasons which include: (1) poor visibility for vehicles
entering and exiting the community, (2) insufficient turning space for vehicles entering
and exiting the community, (3) insufficient space for vehicles to stand while waiting to
enter and exit the community, and (4) inadequate entrance and exit for fire safety.
(c) The aforementioned safety problems with the Glenbrook community's entrance and
roadway could cause or contribute to the following occurrences: (1) motor vehicle
accidents involving vehicles attempting to exit or enter the community, (2) motor
vehicle accidents involving vehicles which are unable to easily turn into or out of the
community, (3) motor vehicle accidents involving vehicles that are stopped while
waiting to enter or exit the community, (4) inability of fire and other public safety
vehicles to expeditiously enter or exit the community and {5) inability of residents to
expeditiously evacuate the community in the event of fire or other calamity.
the community and (5) inability of residents to expeditiously evacuate the community
in the event of fire or other calamity.
(d) The proposed redesign of the entrance and roadway into the community is the most
cost-effective way to attempt to cure and resolve the safety problems of the current
design.
(e) The proposed redesign of the entrance and roadway into the community is the plan
which is the least burdensome to the Pettitt property to cure and resolve the safety
problems of the current design.
(f) The use of the property owned by Pettitt which is to be taken in the proposed
redesign of the entrance and roadway commonly known as Glenbrook Road
constitutes a public use as is described in NRS 37.040.
(g) The proposed redesign of the entrance and roadway into the community which
involves a taking of the described property belonging to Pettitt is necessary to the
public use as is described above and is contemplated in NRS 37.040.
(h) The property of Pettitt sought in the present action is not currently being used for
any other public use as is described in NRS 37.040.
(i) GHOA shall file an affidavit of its appraiser, who is qualified, as to the value of the
property to be taken. GHOA shall deposit the sum representing the value of the
property within ten (10) days of the filing of the appraiser's affidavit. Should Pettitt not
accept the value of the property to be taken based upon the affidavit of the appraiser,
Pettitt may seek a hearing before the court on the sole issue of the value of the property
to be taken within ten (10) days of the posting of value of the property by GHOA. The
sole and only issue to be determined at any hearing will be the value of the property.
(j) Should the court determine the single legal issue of standing in favor of GHOA the
court shall enter judgment in favor of GHOA reposing title to the property to be taken
in GHOA and deliver the sum to be paid for the property taken to Pettitt.
On December 21, 1994, the district court granted the Pettitts' motion for summary
judgment, determining that:
traffic safety matters have been delegated to, and should be left to the Nevada
Department of Transportation (NDOT). Nothing in NRS chapter 37, or caselaw gives
GHOA standing to supplant the existing function of a public agency. The finding of a
necessary public use in traffic safety matters regarding public roads in the State of
Nevada should necessitate the involvement of NDOT.
safety matters regarding public roads in the State of Nevada should necessitate the
involvement of NDOT.
DISCUSSION
[Headnotes 1, 2]
Summary judgment is appropriate when no genuine issues of material fact remain for trial
and the moving party is entitled to judgment as a matter of law. Perez v. Las Vegas Medical
Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 (1991). Our review of a summary judgment is de novo.
Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
[Headnote 3]
In the instant action, the operative facts are not in dispute. The case presents a first
impression review of whether NRS 37.010(7) affords a private eminent domain action. NRS
37.010(7) provides: Subject to provisions of this chapter, the right of eminent domain may
be exercised in behalf of the following public purposes: . . . (7) Byroads. Byroads leading
from highways to residences and farms.
The Pettitts argue that to exercise eminent domain, an entity must be a specifically
delegated condemnation authority. We disagree. NRS 37.070(2)
1
outlines the required
contents of a condemnation complaint. The statute references the person in charge of the
public use for which the property is sought, thus contemplating that entities other than
government agencies are authorized to condemn property, as long as the planned use
constitutes a public use.
In the past, this court has addressed the public purpose for which the condemnation
power is to be exercised, rather than the identity of the party exercising the power. In Dayton
Gold & Silver Mining Co. v. Seawell, 11 Nev. 394 (1896), this court interpreted a former
eminent domain statute. The central inquiry was whether the property was taken for public
use. Once the public purpose was established, the power of the private company to condemn
the property for that purpose was recognized, even though the statute did not expressly state
that a private company was authorized to exercise such power.
In NL Industries v. Eisenman Chemical Co., 98 Nev. 253, 257, 645 P.2d 976, 979 (1982),
although this court did not authorize the condemnation under the specific facts of the
case,2 the central inquiry again was whether the property was taken for a public purpose.
__________

1
NRS 37.070 states in pertinent part:
The complaint must contain
1. The name of the court in which the action is commenced.
2. The name of the corporation, association, commission or person in charge of the public use for which
the property is sought, who must be styled plaintiff.
authorize the condemnation under the specific facts of the case,
2
the central inquiry again
was whether the property was taken for a public purpose. Nowhere did we suggest that
eminent domain was vested solely in the relevant government agency absent an authorizing
statute favoring private entities.
[Headnote 4]
If the legislature had intended to limit the power of eminent domain with respect to the
construction of byroads, it would have expressly done so. The legislature has used such
express language in NRS 37.035, which provides: Only a public agency may exercise the
power of eminent domain on behalf of a monorail or any other overhead or underground
system used for public transportation, whether the monorail or system is owned by a private
person or a public agency. Had the legislature intended the power of eminent domain to
remain only with a government agency unless otherwise specifically stated, the language in
NRS 37.035 would not be necessary. By expressly limiting the exercise of the power of
eminent domain with regard to monorails and subways, but not limiting such exercise with
regard to byroads, the legislature implicitly recognized the authority of private entities to
condemn property for the construction of byroads. The only limitations on the authority are
that the property must be taken for a public purpose, and the entity seeking the property must
be in charge of the public use for which the property is sought. See NRS 37.070(2).
In the present case, both parties concede that the use for which the property is sought is a
public use and is necessary for that public use. Additionally, under the CC&Rs and GHOA's
bylaws, GHOA owns the byroad and has been charged with maintaining and improving the
roadways within the community; thus, GHOA is in charge of the public use for which the
Pettitts' property is sought. Accordingly, we conclude that GHOA may condemn the property
necessary to correct the defective condition of the byroad.
CONCLUSION
For the reasons discussed above, the order granting summary judgment to the Pettitts is
reversed, and this matter is remanded to the district court with instructions to enter summary
judgment in favor of GHOA.
__________

2
In Eisenman, one mining company sought to condemn property for mining purposes when the property was
already devoted to legitimate mining purposes and the condemnor's proposed activities would extinguish or
seriously interfere with the condemnee's mining use.
____________
112 Nev. 788, 788 (1996) Gutierrez v. State
CARLOS GUTIERREZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27469
June 24, 1996 920 P.2d 987
Appeal from imposition of death penalty by three-judge panel upon a guilty plea to one
count of first-degree murder. Second Judicial District Court, Washoe County; Deborah A.
Agosti, David R. Gamble, Dan L. Papez, Judges.
After pleading guilty to first-degree murder, defendant was sentenced to death by
three-judge panel of the district court and he appealed. The supreme court held that: (1) death
sentence was not the result of passion or prejudice where incidents leading to three-year-old
child's death presented parade of horrors, and (2) there was sufficient evidentiary support for
three-judge panel's finding that murder of three-year-old child was product of torture and
depravity of mind.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender,
Attorney, and Gary Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Death sentence was not the result of passion or prejudice where incidents leading to three-year-old child's death presented parade
of horrors, which were neither isolated nor the product of sudden act of rage. Medical examiner testified that pain from the internal
injuries would have been protracted and excruciating, similar to the pain suffered from burst appendix, indications of serious internal
injuries, vomiting, and bruises on the abdomen were present for up to a week prior to death, repeated beatings and other acts of torture
suffered by the child, resulting in extensive injuries, reflected magnitude of ongoing violence totally beyond the realm of discipline
and, by the time child's life mercifully ended, her injuries were comparable to those received in a high velocity automobile accident.
NRS 177.055(2)(c), (d).
2. Homicide.
Defendant failed to present evidence that would indicate that his beliefs in the supernatural caused him to kill three-year-old child
as mitigating factor in penalty phase of capital murder trial. While there was some evidence that defendant believed that apartment was
cursed, murder occurred in another apartment a month after he and his family moved out of the cursed apartment and, although there
was also an indication that defendant at times saw child as fire-breathing monster, there was no evidence to connect that alleged
illusion to the beatings.
3. Homicide.
Three-judge panel that imposed death sentence did not err in rejecting defendant's proposed mitigator that he was a good child and
provided for his family in Mexico; although panel may have viewed such distant background as a positive factor in defendant's life,
panel was under no obligation to accord it substantial currency in the form of a mitigating circumstance to callous beatings and torture
inflicted on his stepdaughter.
4. Homicide.
There was sufficient evidentiary support for three-judge panel's finding that murder of three-year-old child was product of torture
and depravity of mind. Incidents leading to child's death were neither isolated nor the product of sudden acts of rage, and child was
allowed to suffer through vomiting and stomach pains during the last week of her life without resort to any treatment, she was forced to
eat her feces, and was further beaten by defendant during that week, such that she had sustained over 30 external bruises from head to
toe along with severe internal injuries.
OPINION
Per Curiam:
On April 21, 1995, appellant Carlos Gutierrez entered a plea of guilty to one count of first-degree murder, pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970) and Tiger v. State, 98 Nev. 555, 654 P.2d 1031 (1992). Following a sentencing hearing, the three-judge panel
found one aggravator (torture and depravity of mind) and one mitigator (no prior criminal history). The panel determined that the mitigator
did not outweigh the aggravator, and sentenced Gutierrez to death. Gutierrez appeals, contending that the death penalty was excessive and
imposed under the influence of passion or prejudice and, therefore, the case should be remanded for a new sentencing hearing. We disagree
and affirm the three-judge panel's decision.
FACTS
The victim in this case, three-year-old Mailin Stafford (Mailin), was born on January 29, 1991, and lived with her maternal
grandparents until about May of 1993. On December 4, 1992, Tara Gutierrez (Tara), Mailin's mother, married Carlos Gutierrez (Gutierrez)
and the two of them moved in with friends. In approximately May of 1993, Tara, Gutierrez and Mailin moved in with Gutierrez's brother,
Alfredo, and his family for one month. Whenever Gutierrez caught Mailin sucking her thumb he would spank her with a sandal. On three
occasions he required her to hold out her hands to be spanked. Other times he would spank her buttocks or upper legs. The spankings were
hard enough to knock Mailin back several steps and bruise her hands.
In June or July 1993, Tara, Gutierrez and Mailin moved in with friends, Carlos and Mindy
Lopez, for a week. During that week Gutierrez beat Mailin each day for sucking her thumb.
He also fed her hot chilies on at least three occasions in an attempt to get her to stop sucking
her thumb. Mailin began wetting the bed, which also prompted Gutierrez to spank her. Mailin
had bruises on the buttocks and hands as a result of these beatings.
Tara, Gutierrez and Mailin moved into an apartment on Bravo Street sometime in July or
August of l993.
1
During the same month in August, Tara's parents reported Mailin's injuries
to the police. Mailin had bruises on her face, back, lower buttocks, arms, and hands. She was
placed in foster care on August 19, 1993, but was returned home on October 13, 1993.
During the first six months in the Bravo Street apartment, Mailin continued to suck her
thumb and was beaten by Gutierrez approximately four times a week as a result.
2
Gutierrez
continued to force her to eat chili peppers and also forced her to drink Tabasco sauce. The
Tabasco sauce caused Mailin to vomit and gave her diarrhea. As punishment for vomiting,
Gutierrez compelled her to take cold showers until the child began to drown and turn blue.
The first time Gutierrez gave Mailin the shower treatment, Tara found him in the bathroom
with blood on his hands. Mailin had blood in her mouth.
The shower treatment became a general discipline method for thumb-sucking or vomiting,
and occurred weekly. On one occasion, Gutierrez also forced Mailin to eat her vomit.
Eventually, Mailin was able to withstand the cold showers, thus inducing Gutierrez to
commence giving the child hot showers. He would also beat Mailin in the bathroom. After
being beaten by Gutierrez, Mailin would apologize for being a bad girl and attempt to hug her
tormentor. Gutierrez would push her away. Gutierrez would also beat Mailin for not playing
with her toys perfectly.
Beatings included twice punching Mailin in the stomach, causing her to double over in
pain and fall to the ground. He also kicked her in the stomach, causing her to fly back several
feet.
In May or June 1994, Tara, Gutierrez, Mailin and Tatiana moved into an apartment on
Valley Road. During this time, Gutierrez continued the shower treatment. The month prior to
her death, Mailin had bruises on her face, arms, legs and hands.
__________

1
On September 23, 1993, Tatiana Gutierrez was born to Tara and Gutierrez.

2
Mailin stopped sucking her thumb some time in February 1994; nevertheless, the beatings continued.
Mailin died on Wednesday, June 15, 1994. The week prior to her death Mailin vomited
frequently, complained of her stomach hurting, and had a hard time keeping her food down.
The Friday prior to Mailin's death, Tara and Gutierrez argued. Gutierrez spanked Mailin
because he was angry with Tara. He then went to California, returning on Sunday. When he
returned, he gave Mailin a cold shower, during which she defecated. Gutierrez made her eat
part of her feces. On Monday, Mailin's babysitter noticed a bruise on Mailin's stomach.
On June 15, 1994, Gutierrez came home from work and showered; Mailin threw up and
Tara quickly changed her clothes before Gutierrez could notice. After Gutierrez finished his
shower, Mailin used the bathroom. Eventually Mailin called for her mother, but Gutierrez
responded instead. He ordered her to take off her clothes. Tara heard water running, then
heard a loud bang. When Gutierrez and Mailin came out of the bathroom, Tara was in the
room crying. Mailin walked out of the bathroom awkward and dizzy, a new bruise forming on
her stomach. Upon seeing the child hold her stomach, Gutierrez pushed it. Mailin cringed in
pain, and Gutierrez pushed it again. Mailin then quietly played with Tatiana for the next half
hour, moving slowly. She then crawled onto Gutierrez's lap and died.
3

Gutierrez and Tara eventually wrapped Mailin's body in a blanket, drove to a location near
Fillmore, California, threw the body into a ravine and returned to Reno, thereafter claiming
someone had kidnapped Mailin.
During the penalty hearing, Gutierrez presented testimony of his belief in the supernatural.
Two of his sisters testified about his upbringing in Mexico, particularly about the local
cultural belief in brujos or witches. Defense counsel noted that Tara and her parents also
believed in supernatural occurrences. A scholar in Mexican history, who resides where
Gutierrez grew up, testified of the region's widespread belief in witchcraft and supernatural
manifestations. However, he also testified that he had never known of children being killed as
a result of another's curse. All of his testimony dealt with the person cursed suffering
misfortune, illness, or death.
The three-judge panel found torture and depravity of mind as an aggravating circumstance,
and Gutierrez's lack of a significant criminal history as a mitigating circumstance. The panel
specifically found that the murder was not committed while Gutierrez was under the
influence of extreme mental or emotional disturbance. Finally, the panel found that the
mitigating circumstance did not outweigh the aggravating circumstance, and sentenced
Gutierrez to death.
__________

3
Either immediately before or after Mailin died, Gutierrez told Tara I can do this to you too, which Tara
understood to mean he could kill her too.
did not outweigh the aggravating circumstance, and sentenced Gutierrez to death.
DISCUSSION
[Headnote 1]
Gutierrez contends that the evidence does not support or warrant a sentence of death and
that his sentence was the result of passion or prejudice on the part of the panel. We disagree.
The incidents leading to Mailin's death present a parade of horrors, which were neither
isolated nor the product of a sudden act of rage. This court has upheld death sentences in
similar cases. See Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992); Robins v. State, 106
Nev. 611, 798 P.2d 558 (1990) cert. denied 499 U.S. 970 (1991); Lopez v. State, 105 Nev.
68, 769 P.2d 1276 (1989).
The medical examiner testified that the pain from the internal injuries would have been
protracted and excruciating, similar to the pain suffered from a burst appendix. Indications of
serious internal injuries, vomiting and bruises on the abdomen, were present for up to a week
prior to Mailin's death.
The repeated beatings and other acts of torture suffered by the child-victim, resulting in
extensive injuries, reflect a magnitude of ongoing violence totally beyond the realm of
discipline. By the time Mailin's life mercifully ended, her injuries were comparable to those
received in a high velocity automobile accident. There is no indication that Gutierrez sought
to temper his brutality by providing medical attention or love. Mailin's efforts to seek her
stepfather's love after the beatings were callously rebuffed. When Tara cried too loud over the
abuse on the day Mailin died, Gutierrez kicked her and hit her. Aside from the beatings,
Gutierrez's methods of administering what he euphemistically characterized as discipline
were clearly sadistic acts of torture: subjecting her to freezing cold and scalding hot showers,
forcing her to eat hot sauce and chili peppers, and forcing the child to eat her own vomit and
feces.
The overwhelming evidence revealed that Gutierrez personally inflicted the vast majority
of the punishment on the suffering child, and that he administered the deathblow. Any
ostensibly affectionate conduct by Mailin towards Gutierrez, such as her climbing onto his
lap to die after he had beaten her, more cogently reflected a poignant fear of future violence
and a pitiable attempt to ameliorate it, than respect for any virtue attributable to Gutierrez as a
parent figure.
Gutierrez next claims that the three-judge panel's finding that he was not under the
influence of extreme mental or emotional disturbance demonstrates that the panel acted under
the influence of passion or prejudice.
of passion or prejudice. Gutierrez thus impliedly suggests that because his beliefs were
foreign to the panel, the panel rejected the possibility that his beliefs were genuine.
4

[Headnote 2]
We conclude that the panel did not err in rejecting the emotional disturbance claim as a
source of mitigation. See Farmer v. State, 101 Nev. 419, 421-22, 705 P.2d 149, 151 (1985),
cert. denied, 476 U.S. 1130 (1986) (after considering the offered evidence, three-judge panel
may reasonably find that proposed mitigating circumstance does not exist). Gutierrez failed to
present evidence that would indicate his beliefs caused him to kill Mailin. There was some
evidence that Gutierrez believed the Bravo Street apartment was cursed, but the murder
occurred in the Valley Road apartment a month after he and his family moved out of the
Bravo Street apartment. Although there was also an indication that Gutierrez at times saw
Mailin as a fire-breathing monster, there was no evidence at all to connect that alleged
illusion to the beatings. Rather, the evidence indicated that the beatings were connected to
Mailin's thumb sucking, bed wetting and general inability to please her stepfather.
[Headnote 3]
We also conclude that the panel did not err in rejecting Gutierrez's other proposed
mitigatorthat he was a good child and provided for his family in Mexico. Although the
panel members may have viewed such distant background as a positive factor in Gutierrez's
life, the panel was under no obligation to accord it substantial currency in the form of a
mitigating circumstance to the callous beatings and torture inflicted on his stepdaughter.
Gutierrez also insists that since the panel found depravity in conjunction with its finding of
torture as an aggravating circumstance, his sentence cannot stand. In rendering the sentence,
the panel stated that the murder included torture and depravity of mind. The panel also
stated, the defendant's depravity of mind included torture and other serious and depraved
physical abuse beyond the act of killing itself. It further stated, we find and conclude that
the mitigating circumstance does not outweigh either the torture or the depravity of mind
aspect of the aggravating circumstances found."
__________

4
Gutierrez also briefly contends that since the panel only found one mitigating factor, then it must have found
only the one upon which they unanimously agreed. He insists that at least one of the judges must have found the
emotional disturbance mitigator to exist and, thus, the sentence cannot stand. However, nothing in the record
suggests that the members of the panel believed that unanimity was required for a mitigating circumstance to
exist or to be considered by any member of the panel. Moreover, nothing in the record indicates that any one of
the members of the panel considered Gutierrez's belief in the supernatural to be a mitigating factor.
conclude that the mitigating circumstance does not outweigh either the torture or the
depravity of mind aspect of the aggravating circumstances found.
5

This court has expressed concern with the use of the depravity of mind aggravator,
because it may not channel the sentencer's discretion appropriately. See Robins, 106 Nev. at
629, 798 P.2d at 570. In Robins, the court interpreted the depravity of mind aggravator to
mean torture, mutilation, or other serious and depraved physical abuse beyond the act of
killing itself. Id.
In the instant case, the panel clearly used the limiting construction of the depravity of mind
aggravator in imposing the death penalty. We therefore conclude that Gutierrez's argument
that the sentence was imposed under influence of passion or prejudice is without merit.
[Headnote 4]
Although unraised by Gutierrez as an issue, NRS 177.055(2)
6
requires this court to
examine the record and determine whether the evidence supports the finding of the
aggravating circumstance. We have examined the record, and conclude that there was
sufficient evidentiary support for the panel's finding. As noted above, the incidents leading to
Mailin's death were neither isolated, nor the product of sudden acts of rage. Not only was
Mailin allowed to suffer through vomiting and stomach pains during the last week of her life
without resort to any treatment, she was forced to eat her feces and was further beaten by
Gutierrez during that week, such that she had sustained over thirty external bruises from head
to toe along with severe internal injuries. This conduct, combined with the brutal beatings to
which Mailin had been repeatedly subjected over the last year of her life, support the panel's
finding of torture and other serious and depraved physical abuse beyond the act of killing
itself.
Finally, we are enjoined by NRS 177.055(2)(c) and (d) to determine [w]hether the
sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor; and "[w]hether the sentence of death is excessive, considering both the crime and
the defendant."
__________

5
The panel recognized that Senate Bill 374 repealed the depravity of mind aggravator, but noted that they were
not bound by the repeal because the new law would not take effect until October 1995.

6
Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is
taken:
. . . .
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances.
[w]hether the sentence of death is excessive, considering both the crime and the defendant.
After a careful review of the record, and consideration of both the crime and the appellant,
Gutierrez, we conclude that the sentence of death was not imposed under the influence of
passion, prejudice or any arbitrary factor, and that the death sentence was not excessive.
CONCLUSION
For the reasons discussed above, we affirm the three-judge panel's decision sentencing
Gutierrez to death.
____________
112 Nev. 795, 795 (1996) Blalark v. State
CHARLES CHRISTOPHER BLALARK, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 26550
June 24, 1996 918 P.2d 1314
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of
battery with intent to commit sexual assault and one count of sexual assault. Eighth Judicial
While appeal from prior conviction was pending, defendant pleaded guilty to subsequent
charge and waived right to appeal prior conviction as part of plea agreement that was
accepted by the district court. State moved to dismiss pending appeal. The supreme court,
Steffen, C. J., held that: (1) defendant may waive right to maintain pending appeal from
previous conviction, and (2) waiver was not rendered invalid by fact that defendant had
already filed notice of appeal when plea agreement was signed.
Motion to dismiss granted.
Lee Elizabeth McMahon, Las Vegas, for Appellant.
1. Criminal Law.
Defendant may, in subsequent case, waive right to maintain pending appeal from previous conviction, even though defendant may
not waive right to post-conviction remedies as part of plea bargain.
2. Criminal Law.
Defendant's waiver contained in plea bargain, waiving right to maintain pending appeal from previous conviction,
was not rendered invalid by fact that defendant had already filed notice of appeal when plea bargain was
signed; defendant could simply have filed voluntary motion to dismiss appeal.
maintain pending appeal from previous conviction, was not rendered invalid by fact that defendant had already filed notice of appeal
when plea bargain was signed; defendant could simply have filed voluntary motion to dismiss appeal.
OPINION
On August 27, 1993, in district court case no. C114703, appellant was charged by criminal information with one count of battery with
intent to commit sexual assault, one count of sexual assault, one count of aiming a firearm at a human being, and one count of first degree
kidnapping. A jury trial was held in June, 1994. On June 22, 1994, the jury found appellant guilty of one count each of battery with intent
to commit sexual assault and sexual assault. Appellant filed a notice of appeal on October 18, 1994, and a judgment of conviction was
entered on November 14, 1994. Appellant filed his opening brief on May 22, 1995.
In a subsequent case, appellant was charged again with one count of battery with intent to commit sexual assault which allegedly
occurred on September 30, 1993. In this subsequent case, appellant pleaded guilty and waived his right to appeal his conviction in both the
subsequent case and in case no. C114703, the case which is the subject of this appeal. Appellant signed the plea agreement on May 17,
1995, and it was filed on May 25, 1995.
On July 7, 1995, the state filed in this court a motion to dismiss this appeal from case no. C114703 on the ground that appellant
waived his right to appeal in the plea agreement. Appellant filed an opposition on July 24, 1995, asserting that the waiver in the plea
agreement cannot be enforced as to this case because he filed his notice of appeal prior to signing the plea agreement, and he filed his
opening brief in this court before the plea agreement was filed in the district court. Therefore, appellant contends that he could not have
waived his right to appeal because, by filing a notice of appeal, he had already exercised such right.
[Headnote 1]
This court has determined that a knowing and voluntary waiver of the right to appeal made pursuant to a plea bargain is valid and
enforceable. Cruzado v. State, 110 Nev. 745, 747, 879 P.2d 1195, 1195 (1994). We now conclude that a defendant can, in a subsequent
case, waive his right to maintain a pending appeal from a previous conviction. In Hood v. State, 111 Nev. 335, 890 P.2d 797 (1995), we
determined that a defendant cannot waive his or her rights to post-conviction remedies as part of a plea bargain. Hood has no application to
this matter. In this case appellant waived his right to a direct appeal, but did not waive his right to seek
post-conviction relief.
appellant waived his right to a direct appeal, but did not waive his right to seek
post-conviction relief. Accordingly, because appellant may still seek post-conviction relief,
we have not, as the dissent asserts, permitted the state to insulate appellant's conviction from
appellate review. Consequently, if appellant's waiver in the subsequent case was knowing and
voluntary, he has waived his right to appeal this conviction.
[Headnote 2]
Appellant's waiver states as follows: Further, the Defendant expressly waives and
permanently gives up any right he now has to appeal his conviction on these charges or any
portion thereof, as well as the charges in Case No. C114703. This waiver is consistent with
the law as expressed in Cruzado v. State, 110 Nev. 745, 879 P.2d 1195 (1994). The
agreement further states that no one has made any promises or threats to appellant to induce
him to enter the plea and that the plea is free and voluntary. Additionally, the plea agreement
states that appellant understands the elements of the charged crime (battery with intent to
commit a sexual assault), the possible punishment for such a charge, and that appellant is
satisfied with the services of his attorney.
We conclude that appellant's waiver was entered knowingly and voluntarily and is,
therefore, valid and enforceable. Further, the waiver is not rendered invalid by the fact that
appellant had already filed a notice of appeal when he signed the plea agreement waiving his
right to appeal. Appellant could have simply filed a voluntary motion to dismiss his appeal.
Accordingly, we grant the state's motion and we dismiss this appeal.
The State is being permitted to use its coercive power in a pending case to force a
defendant to waive his right of appeal in another, unrelated case. In Hood v. State, 111 Nev.
335, 890 P.2d 797 (1995), we held that a defendant cannot waive his or her rights to
post-conviction remedies as part of a plea agreement. We further stated in Hood that [i]t
would be unconscionable for the state to attempt to insulate a conviction from collateral
constitutional review by conditioning its willingness to enter into plea negotiations on a
defendant's waiver of the right to pursue post-conviction remedies. Id. at 337, 890 P.2d at
798. Although appellant only waived his right to appeal and not his right to post-conviction
remedies, the majority opinion essentially permits the State to insulate appellant's conviction
from appellate review. I do not think that this is fair or proper; therefore, I dissent.
____________
112 Nev. 798, 798 (1996) Snooks v. District Court
WAYNE SNOOKS, Petitioner, v. THE NINTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for The County of Douglas, and THE HONORABLE
MICHAEL P. GIBBONS, District Judge, Respondents, and JAMES J. BASSETTO,
TOMMY E. JOYNER, and WENDY JOYNER, Real Parties in Interest.
No. 27761
June 24, 1996 919 P.2d 1064
Original petition for a writ of prohibition precluding the district court from proceeding
with the underlying litigation. Ninth Judicial District Court, Douglas County; Michael P.
Gibbons, Judge.
Writ of prohibition was filed after tribe member's motion to dismiss civil suit, seeking
damages for personal injuries sustained while delivering propane on reservation, due to lack
of jurisdiction, was denied by the district court. The supreme court held that state court lacked
jurisdiction to entertain suit against tribe member who owned property on reservation where
propane was being delivered.
Petition granted.
Terzich & Jackson, Gardnerville, for Petitioner.
Kilpatrick, Johnson & Adler, Carson City; Erickson, Thorpe & Swainston, Reno; and Aebi
& McCarthy, Carson City, for Real Parties in Interest.
1. Indians.
State court has no jurisdiction to entertain civil action filed by non-Indian against Indian for events which occur on Indian land or
in Indian country, absent express act of Congress, federal treaty or tribe's express consent to jurisdiction.
2. Indians.
State court lacked jurisdiction over suit against tribe member for personal injuries sustained while delivering propane to mobile
home park on reservation given that no federal preemption of tribal law existed, tribe expressly reserved jurisdiction over civil actions
against its members arising on its land, and tribe's law explicitly recognized cause of action for claims asserted against tribe member.
NRS 34.320, 41.430.
3. Prohibition.
Writ of prohibition may issue to arrest proceedings of district court exercising its judicial functions when proceedings are in excess
of district court's jurisdiction. NRS 34.320.
OPINION
Per Curiam:
This is an original petition, properly verified, for a writ of prohibition to preclude the
Ninth Judicial District Court from proceeding with the underlying litigation filed in state
court against petitioner, Wayne Snooks. On December 21, 1995, this court ordered real
parties in interest, James J. Bassetto, Tommy E. Joyner and Wendy Joyner, to file an answer
to the petition. The real parties in interest filed their answer on January 9, 1996.
FACTS
Snooks is a defendant in the underlying action which is pending in the Ninth Judicial
District Court, Bassetto v. Joyner, Case No. 94-CV-0132. Bassetto is the plaintiff; the Joyners
are defendants and cross-plaintiffs against Snooks.
In June of 1992, Bassetto worked for Amerigas and was delivering an order of propane to
Unit #9 of the Bodie Flats Mobile Home Park. He fell through some boards covering up a
large hole on the property and sustained personal injuries. The Joyners lived in Unit #9 as
tenants of Snooks, the owner of the mobile home park situated on the reservation. Bassetto
sued both the Joyners and Snooks. The Joyners answered and cross-claimed against Snooks
for contribution, indemnity and breach of contract.
Snooks answered the complaint and the cross-complaint, and moved to dismiss, asserting
that pursuant to federal law, the state courts of Nevada lack jurisdiction over civil claims
arising on Indian land against Indians. The district court denied Snooks' motion to dismiss,
adopting the position asserted by Bassetto and the Joyners in opposition. The court held that it
was free to exercise jurisdiction over the action because the action was personal as against
a private individual and therefore would not infringe upon tribal rights of self-government.
DISCUSSION
I. Whether the state district court has jurisdiction over the underlying actions pending
against petitioner
[Headnote 1]
Pursuant to Nevada law and well-established principles of federal Indian law and the
doctrine of Indian sovereignty, the Nevada state court has no jurisdiction to entertain a civil
action filed by a non-Indian against an Indian for events which occurred on Indian land or
in Indian country.
filed by a non-Indian against an Indian for events which occurred on Indian land or in Indian
country.
1
Real parties in interest argue that the underlying action is personal to Snooks,
has no impact on tribal rights and operations, and consequently, the state court is free to
exercise jurisdiction over all the parties. We conclude that Snooks is correct and that the
petition should be granted.
[Headnote 2]
NRS 41.430 is the applicable Nevada rule of law in this case:
1. Pursuant to the provisions of section 7, chapter 505, Public Law 280 of the 83d
Congress, approved August 15, 1953, and being 67 Stat. 588, and sections 401 to 403,
inclusive, of Title IV, Public Law 284 of the 90th Congress, approved April 11, 1968,
and being 82 Stat. 78, et seq., the State of Nevada does hereby assume jurisdiction over
public offenses committed by or against Indians in the areas of Indian country in
Nevada, as well as jurisdiction over civil causes of action between Indians or to which
Indians are parties which arise in the areas of Indian country in Nevada, subject only to
the conditions of subsections 3 and 4 of this section.
. . . .
3. This section applies to all areas of Indian country within this state wherein the
Indian tribe occupying any such area has consented to the continuation of state
jurisdiction over such area in the manner provided in sections 6 to 14, inclusive, of
chapter 601, Statutes of Nevada 1973, or has consented to the assumption of state
jurisdiction over such area in the manner provided by section 406 of Title IV of Public
Law 284 of the 90th Congress, approved April 11, 1968, and being 82 Stat. 80.
4. This section does not apply to any area of Indian country within this state wherein
the Indian tribe occupying any such area has failed or refused to consent to the
continuation of state jurisdiction over such area in the manner provided in sections
6 to 14, inclusive, of chapter 601, Statutes of Nevada 1973; and the State of Nevada
hereby recedes from and relinquishes jurisdiction over any such area.
__________

1
The parties do not dispute that the land at issue is Indian land as defined by 18 U.S.C. 1151 (1994):
[T]he term Indian country, as used in this chapter, means (a) all land within the limits of any Indian
reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-of-way running through the same.
(While this definition is drafted for purposes of the criminal code, it is also used for civil jurisdiction. DeCoteau
v. District County Court, 420 U.S. 425, 427 n.2 (1975).)
ation of state jurisdiction over such area in the manner provided in sections 6 to 14,
inclusive, of chapter 601, Statutes of Nevada 1973; and the State of Nevada hereby
recedes from and relinquishes jurisdiction over any such area.
Snooks is a registered member of the Washoe Tribe of Nevada and California. The
Washoe Tribe of Nevada and California has not consented to Nevada state jurisdiction as
required by NRS 41.430.
2
Consequently, the state district court of Nevada has no
jurisdiction to hear the underlying civil action against petitioner.
Although this court has never specifically addressed the precise issue presented here, this
court has recognized limits of state court civil jurisdiction over Indians in several other
contexts. See,, e.g., Patterson v. Four Rent, Inc., 101 Nev. 651, 707 P.2d 1147 (1985)
(Nevada state courts have no subject matter jurisdiction over Indian claims to allotments);
Voorhees v. Spencer, 89 Nev. 1, 6, 504 P.2d 1321, 1323-24 (1973) (the state court may
exercise jurisdiction over Indian property which is located off the reservation).
In addition to Nevada statutory law, federal law has long recognized the rights of tribes to
exercise exclusive jurisdiction over civil actions against Indians arising on Indian land. See
Williams v. Lee, 358 U.S. 217, 220 (1959) (confirming that the States have no power to
regulate the affairs of Indians on a reservation). Thus, barring a specific act of Congress or
federal treaty, or a tribe's express consent to jurisdiction, a state may not assert jurisdiction
over a civil action by a non-Indian against an Indian arising out of events occurring in Indian
country.
3

__________

2
Sections 6 to 14 of chapter 601 of the Statutes of Nevada 1973 set forth the procedures for each tribe to vote
on its consent to state jurisdiction. Section 6 provides, in pertinent part, as follows:
[T]he Indian affairs commission shall cause a referendum election to be conducted in each such area of
Indian country in this state over which the State of Nevada has jurisdiction on a date designated by it,
which shall be no later than June 4, 1974.

3
See also Felix Cohen's Handbook of Federal Indian Law 349 (1982) (Federal protection of tribal
self-government precludes either criminal or civil jurisdiction of state courts over Indians or their property
absent the consent of Congress. Civil cases where a non-Indian plaintiff seeks to sue an Indian or to attach or
affect Indian property in Indian country are subject to this rule.). Cf. Margery H. Brown and Brenda C.
Desmond, Montana Tribal Courts: Influencing the Development of Contemporary Indian Law, 52 Mont. L.
Rev. 211, 265 (1991) (observing that [i]n contrast to the rule applicable to lawsuits brought by non-Indians
against Indians in reservation-based claims, the rules applicable to reservation-based claims brought by Indians
permit the filing of those claims in either state or tribal court' ), quoted in Wacondo v. Concha, 873 P.2d 276,
277 (N.M. Ct. App. 1994).
The [Indian nations] . . . [are] distinct communit[ies], occupying [their] own
territory . . . in which the laws of [the states] can have no force, and which the citizens
of [the states] have no right to enter, but with the assent of the [Indian nations]
themselves, or in conformity with treaties, and with the acts of Congress.
Williams, 358 U.S. at 219 (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560 (1832);
see also Kennerly v. District Court of Montana, 400 U.S. 423, 429 (1971) (holding that
pursuant to amended Public Law 280, a tribe must consent to state court civil jurisdiction
over actions arising against member Indians in Indian country).
As noted by real parties in interest, where there is no express federal preemption, the state
court must inquire into whether its exercise of jurisdiction will infringe upon tribal
sovereignty before it may proceed to entertain an action. However, as established in Williams,
the exercise of jurisdiction in the context of civil actions against Indians arising on Indian
land is an impermissible intrusion onto tribal rights. Williams, 358 U.S. at 223; see also
American Indian Law Deskbook, 118, 138-39 (Nicholas J. Spaeth et al. eds. 1993).
Furthermore, it is undisputed that the Washoe Tribe has enacted a broad regulatory scheme
in which the Tribe has expressly reserved jurisdiction over civil actions against its members
arising on its lands. Washoe Tribe of Nevada and California Law and Order Code. Tribal
jurisdiction extends to all tribally held lands as defined in the Tribe's Constitution. In
addition, the Tribal Court has reserved to itself subject matter jurisdiction over all civil causes
of action, and personal jurisdiction over any person served within the territorial jurisdiction of
the Tribe.
Furthermore, it is undisputed that the Law and Order Code also explicitly recognizes
causes of action for the types of claims asserted against Snooks. Thus, Bassetto's causes of
action are recognized and anticipated by the Washoe Tribe and by the Washoe Tribal Court.
It is clear that the existence of tribal legislation in an area will exclude the state even if
the tribal legislation differs greatly from the state's, or offers no remedy. . . . A tribe's
legislative jurisdiction over its own people and within its own territory must include the
right not to legislate at all in an area, if self-government is to be meaningful.
Felix Cohen's Handbook of Federal Indian Law 351 (1982) (citing Littell v. Nakai, 344 F.2d
486 (9th Cir. 1965), cert. denied, 382 U.S. 986 (1966), Schantz v. White Lightning, 502 F.2d
67 (8th Cir. 1974) (holding that federal court has neither federal question nor diversity
jurisdiction over civil action by non-Indian against Indian for events occurring on the
reservation) and Enriquez v. Superior Court, 565 P.2d 522, 523 {Ariz. Ct. App.
against Indian for events occurring on the reservation) and Enriquez v. Superior Court, 565
P.2d 522, 523 (Ariz. Ct. App. 1977) (holding that assumption of jurisdiction by the state
court would infringe upon the right of reservation Indians to make their own laws and be
governed by them)).
For the state court to assert its jurisdiction to resolve a dispute over which the Washoe
Tribe has clearly reserved jurisdiction to itself would impermissibly interfere with tribal
rights of self-government. Williams 358 U.S. at 223; see also R.J. Williams Co. v. Fort
Belknap Housing Auth., 719 F.2d 979, 983-84 (9th Cir. 1983), cert. denied, 472 U.S. 1016
(1985); Milbank Mut. Ins. Co. v. Eagleman, 705 P.2d 1117, 1119-20 (Mont. 1985). The
Ninth Judicial District Court lacks jurisdiction to entertain the actions by Bassetto and the
Joyners against Snooks.
[Headnote 3]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its
judicial functions when such proceedings are in excess of the jurisdiction of the court. NRS
34.320. Accordingly, we grant Snooks' petition. The clerk of this court shall issue a writ of
prohibition prohibiting the district court from exercising jurisdiction over the civil
proceedings pending against Snooks.
____________
112 Nev. 803, 803 (1996) State of Nevada v. Justice Court
THE STATE OF NEVADA, Petitioner, v. THE JUSTICE COURT OF THE LAS VEGAS
TOWNSHIP, CLARK COUNTY, STATE OF NEVADA, and THE HONORABLE
WILLIAM P. JANSEN, Justice of the Peace, Respondents, and BASIL WAYNE
RICHMOND, Real Party in Interest.
No. 27476
June 24, 1996 919 P.2d 401
Original petition for writ of prohibition. Justice Court of the Las Vegas Township, Clark
County; William P. Jansen, Justice of the Peace.
State petitioned for writ of prohibition, seeking to vacate discovery order entered by the
Justice Court granting request for physical examination of alleged child sexual assault victim.
The supreme court held that: (1) writ relief must generally be sought first in district court; (2)
Justice Court had neither express nor inherent authority to order criminal discovery prior to
preliminary hearing; (3) alleged stipulation could not confer jurisdiction; and (4) writ of
prohibition was appropriate remedy.
Petition granted.
and John P. Lukens, Deputy District Attorney, Clark County, for Petitioner.
Carmine Colucci, Las Vegas, for Real Party in Interest.
1. Prohibition.
Writ of prohibition must generally first be sought in district court before petitioning to the supreme court. Const. art. 6, 6(1);
NRS 34.330.
2. Criminal Law.
Justice Courts have neither express nor inherent authority to order criminal discovery prior to preliminary hearing. NRS 4.370(1).
3. Justices of the Peace.
Justice Courts are courts of limited jurisdiction and have only authority granted by statute.
4. Criminal Law.
Preliminary hearing is not a trial and issue of defendant's guilt or innocence is not matter before trial court. Justice Court's role at
preliminary hearing is to determine whether there is probable cause to find that offense has been committed and that defendant
committed it. NRS 171.206.
5. Criminal Law.
State's alleged stipulation to criminal discovery order entered prior to preliminary hearing could not confer jurisdiction upon
Justice Court to make disputed order. Lack of jurisdiction may not be cured by means of stipulation.
6. Prohibition.
Writ of prohibition arrests proceedings of tribunal when such proceedings are without or in excess of tribunal's jurisdiction; writ
will not issue, however, if petitioner has plain, speedy and adequate remedy at law. NRS 34.320.
7. Prohibition.
Writ of prohibition was appropriate remedy to correct criminal discovery order entered by Justice Court before preliminary
hearing, given that court did not have authority to order prehearing discovery and state did not have plain, speedy, and adequate
remedy in ordinary course of law. NRS 4.370(1), 34.320.
OPINION
1

Per Curiam:
This petition for a writ of prohibition challenges the justice court's jurisdiction to grant a
motion by the real party in interest requiring an alleged child-victim of sexual assault to
submit to a physical examination prior to the preliminary hearing.
__________

1
We originally granted this petition in an unpublished order on January 31, 1996. On February 29, 1996, the
State filed a motion in this court to publish our order. Cause appearing, we grant the State's motion and publish
this Opinion in place of our prior unpublished order. We deny Richmond's motion to extend the time to file an
opposition to the motion for publication.
The clerk of this court shall correct the caption of this court's docket sheet to correspond to the caption on this
Opinion.
requiring an alleged child-victim of sexual assault to submit to a physical examination prior
to the preliminary hearing.
On December 13, 1994, real party in interest Basil Wayne Richmond was arraigned in
justice court on one charge of Sexual Assault of a Minor, a felony under NRS 200.364, and
one charge of Lewdness with a Minor, a felony under NRS 201.230. Richmond posted bail
and a preliminary hearing was set for October 18, 1995. On May 17, 1995, Richmond filed a
motion requesting the justice court to order a psychological and physical examination of the
alleged victim. The State opposed the motion; however, on July 13, 1995, the justice court
concluded that during a conference in chambers, the State had agreed to the physical
examination and, consequently, the court granted the request for a physical examination of
the alleged victim.
2

[Headnote 1]
On September 14, 1995, the State filed this petition for a writ of prohibition seeking an
order of this court vacating the justice court's order and prohibiting the justice court from
granting requests for discovery prior to a preliminary hearing.
3

[Headnotes 2, 3]
The State contends that justice courts have neither express nor inherent authority to order
criminal discovery prior to a preliminary hearing. We agree. The justice courts are courts of
limited jurisdiction and have only the authority granted by statute. Parsons v. District Court,
110 Nev. 1239, 1243, 885 P.2d 1316, 1319 (1994); see NRS 4.370(1). There is nothing in the
criminal discovery provisions of the Nevada Revised Statutes
4
giving justice courts express
authority to order criminal discovery prior to a preliminary hearing.
__________

2
In a subsequent hearing, on August 22, 1995, the justice court denied the request for the psychological
examination. At this hearing, the State informed the justice court that it had decided to challenge the court's
authority to order discovery prior to a preliminary hearing with respect to the order for a physical examination.

3
Generally, writ relief must first be sought in the district court. Although NRS 34.330 provides that a writ of
prohibition may only be issued by the supreme court, Article 6, 6(1) of the Nevada Constitution was amended
in 1992 to provide district courts the power to issue writs of prohibition. NRS 34.330 is therefore
unconstitutional to the extent that it purports to limit the district courts' power to issue a writ of prohibition. See
MPC Contractors v. Appeals Officer, 111 Nev. 606, 894 P.2d 384 (1995). Nevertheless, we elected to entertain
this petition in the first instance due to the exigent circumstances presented and because this case presented an
unsettled issue of statewide importance. Further, the State filed its petition before MPC Contractors was
decided. Accordingly, the State had a reasonable belief, based on the statute, that the district court could not
issue a writ of prohibition and that relief could only be sought in this court. We caution, however, that generally,
a writ of prohibition must first be sought in the district court.

4
NRS 174.235 to 174.295.
tice courts express authority to order criminal discovery prior to a preliminary hearing.
[Headnote 4]
Moreover, we conclude that the authority to order discovery is not inherent in a justice
court's authority to conduct preliminary hearings. The justice court's role at the preliminary
hearing is to determine whether there is probable cause to find that an offense has been
committed and that the defendant has committed it. NRS 171.206. If the justice court finds
probable cause, the court must order the defendant bound over for trial in the district court.
Id. The preliminary hearing is not a trial and the issue of the defendant's guilt or innocence is
not a matter before the court. Thedford v. Sheriff, 86 Nev. 741, 743-44, 476 P.2d 25, 27
(1970); Marcum v. Sheriff, 85 Nev. 175, 178-79, 451 P.2d 845, 846-47 (1969). Based on the
limited nature and scope of a preliminary hearing, we conclude that the justice court does not
have the authority to order criminal discovery prior to a preliminary hearing. State v. Benson,
661 P.2d 908, 909 (Okla. Crim. App. 1983); cf. Harris v. District Court, 843 P.2d 1316, 1319
(Colo. 1993) (felony defendant is not entitled to discovery prior to a preliminary hearing). To
conclude otherwise would turn the preliminary hearing into a trial, resulting in significant
delays and an increased burden on the judicial system.
[Headnote 5]
Finally, the State's alleged stipulation to the order could not confer jurisdiction. See, e.g.,
State v. Rhoades, 820 P.2d 665, 672 (Idaho 1991) (It is axiomatic that a lack of jurisdiction
may not be cured by means of stipulation or waiver by the parties.), cert. denied, 504 U.S.
987 (1992).
[Headnotes 6, 7]
A writ of prohibition arrests the proceedings of a tribunal when such proceedings are
without or in excess of the tribunal's jurisdiction. NRS 34.320; see also Smith v. District
Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). A writ of prohibition will not issue,
however, if the petitioner has a plain, speedy and adequate remedy at law. Parsons, 110 Nev.
at 1242, 885 P.2d at 1318. As explained above, the justice court did not have authority to
order criminal discovery prior to a preliminary hearing. Further, the State does not have a
plain, speedy and adequate remedy in the ordinary course of law.
Accordingly, we grant this petition for a writ of prohibition.
5

__________

5
We note that the clerk of this court issued the requested writ, pursuant to our order of January 31, 1996, on
that same date.
____________
112 Nev. 807, 807 (1996) Colwell v. State
LAWRENCE COLWELL, aka CHARLES DURRANT, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 27570
June 24, 1996 919 P.2d 403
Appeal from a sentence of death following a plea of guilty to one count of murder in the
first degree. Eighth Judicial District Court, Clark County; Gene T. Porter, Michael R. Griffin,
Jerry Carr Whitehead, Judges.
A pro se defendant pleaded guilty to murder, burglary, and robbery charges, and requested
that death penalty hearing be conducted as soon as possible. The district court sentenced
defendant to death. Defendant's appointed appellate counsel appealed. The supreme court
held that: (1) narrowing of death-eligible defendants occurred, even though defendant failed
to present mitigating evidence and assisted State in presentation of its case; (2) meaningful
appellate review of death sentence could be conducted; (3) statute limiting power of
commutation did not deny defendant chance for clemency; (4) three-judge panel used during
penalty hearing did not unconstitutionally encroach on judicial power or violate defendant's
right to impartial tribunal; (5) death penalty statute sufficiently narrowed categories of
death-eligible defendants; (6) death penalty was not cruel and unusual punishment; and (7)
death sentence was not imposed under influence of passion, prejudice, or arbitrary factor, nor
was sentence excessive.
Affirmed.
[Rehearing denied February 27, 1998]
State Public Defender and James P. Logan, Appellate Deputy Public Defender, Carson
Frankie Sue Del Papa, Attorney General, Carson City; Stewart Bell, District Attorney and
James Tufteland, Chief Deputy, Clark County, for Respondent.
1. Criminal Law.
Fact that pro se defendant intentionally chose not to present mitigating evidence and in fact affirmatively tried to skew evidence to
aid State in presentation of its case at penalty hearing did not prevent implementation of constitutionally-mandated procedure for
narrowing class of death-eligible defendants so as to render death sentence unconstitutional. Defendant was given opportunity to
present mitigating evidence. NRS 200.010, 200.020, 200.030.
2. Criminal Law.
Meaningful appellate review to determine whether death sentence was imposed arbitrarily, under influence of passion
or prejudice, or was excessive, could be conducted, even though defendant intentionally failed to challenge
evidence, failed to present mitigating evidence, and aided State in presenting its case at penalty hearing.
was imposed arbitrarily, under influence of passion or prejudice, or was excessive, could be conducted, even though defendant
intentionally failed to challenge evidence, failed to present mitigating evidence, and aided State in presenting its case at penalty
hearing. NRS 177.055(2).
3. Pardon and Parole.
Statute prohibiting commutation of death sentence to one that would allow for parole did not completely or unconstitutionally
deny defendant who was sentenced to death opportunity for clemency; statute merely modified and limited power of commutation.
NRS 213.085(1).
Commutation is changing of one sentence to another while pardon absolves defendant of crime altogether.
Use of three-judge panel during death penalty hearing did not unconstitutionally encroach on judicial power or jurisdiction of
district courts. State Constitution did not prohibit legislature from providing that district judges must act as collegial body, legislature
has power to regulate procedure in criminal cases, and three-judge panel procedure creates no new power. NRS 176.033(1)(a),
176.035, 176.045.
Legislature has power to regulate procedure in criminal cases.
7. Constitutional Law; Homicide.
Use of three-judge panel procedure during penalty hearing following conviction of first-degree murder and other crimes did not
violate defendant's constitutional right to impartial tribunal, due process, or reliable sentence, even if defendant was not allowed to
challenge qualifications and selection of panel members. U.S. Const. amends. 5, 14.
8. Homicide.
Aggravating circumstances found by three-judge panel when imposing death sentence for first-degree murder sufficiently
narrowed determination of defendant's death eligibility.
9. Criminal Law.
Fact that sentencing panel considered only statutory aggravating circumstances when determining death eligibility precluded
appellate claim that decision permitting consideration of any matter relevant to sentence rendered State's death penalty scheme
unconstitutional. NRS 200.033.
10. Criminal Law.
Death penalty is not cruel and unusual punishment and does not violate either Eighth Amendment or State Constitution. U.S.
Const. amend. 8.
11. Homicide.
Death penalty for first-degree murder conviction was not imposed under influence of passion, prejudice or arbitrary factor given
that sentence was based on aggravating circumstances of murder. NRS 177.055(2).
12. Homicide.
Death penalty imposed upon defendant who pleaded guilty to first-degree murder, burglary and robbery, was not excessive in light
of aggravating circumstances and senseless nature of killing. NRS 177.055(2).
OPINION
Per Curiam:
On March 10, 1994, appellant Lawrence Colwell, aka Charles Durrant, and his girlfriend,
Merillee Paul, were at the Tropicana Hotel in Las Vegas. They devised a plan whereby Paul
would pretend she was a prostitute, find a male victim, go with him back to his room and rob
him. Seventy-six-year-old Frank Rosenstock was the unsuspecting victim of their nefarious
plan. Paul went with Rosenstock back to his room and persuaded him to get into the bathtub.
While he was in the bathtub, Paul searched through his belongings for money and valuables.
Without success in locating anything of value, she telephoned Colwell in the hotel lobby.
Colwell told her to wait there and he proceeded up to the room.
Colwell knocked on the door, posing as a security guard, and Paul opened the door to let
him enter. Colwell showed a fake badge and told Rosenstock he was being arrested for
solicitation. Colwell handcuffed Rosenstock. Colwell found Rosenstock's wallet and took it
from him. The wallet contained credit cards and cash.
While Rosenstock was handcuffed, Colwell proceeded to take his belt and wrap it around
Rosenstock's throat. Colwell looped the belt through the buckle and strangled Rosenstock. In
the course of the strangulation, Colwell slid Rosenstock off the bed down to the floor. He had
his foot on Rosenstock's shoulders as he pulled on the belt; as he did so, Colwell told Paul
that it took a person six to eight minutes to die from strangulation. Colwell strangled
Rosenstock for at least five minutes. Finally, when Rosenstock's face was purple and Colwell
could tell he was no longer breathing, he removed the belt.
Colwell and Paul then wiped areas of the room down with wet rags to remove fingerprints.
They took a number of items from the room and placed them in Rosenstock's suitcase,
including the belt Colwell used to strangle Rosenstock and many other items, including
glasses and ashtrays, which they might have touched. Colwell kept the buckle from the belt.
When finished, they exited the room, leaving Rosenstock lying face-down and dead on the
floor. The two then went to a room at the Royal Oasis Motel.
The two left Las Vegas and went to Palm Springs where they met Kenneth Abell. Colwell
told Abell about killing Rosenstock. Using Abell's car, Colwell and Paul drove to Oregon. In
Oregon, Paul turned herself in to the authorities. Paul eventually entered into a plea
agreement with the State whereby she agreed to plead guilty to first degree murder and
testify against Colwell; in exchange for this agreement, the State would recommend a
sentence of life with the possibility of parole.
guilty to first degree murder and testify against Colwell; in exchange for this agreement, the
State would recommend a sentence of life with the possibility of parole.
Colwell was arrested and arraigned; the State informed the court it would not be seeking
the death penalty. Colwell desired to represent himself and so a hearing was held for the
purpose of canvassing Colwell pursuant to Faretta v. California, 422 U.S. 806 (1975). Prior to
this hearing, Colwell had agreed with the State to plead guilty to all charges on the condition
that the State change its position and diligently seek the death penalty. The district court filed
the Notice of Intent to Seek Death Penalty.
Colwell was canvassed and allowed to represent himself. However, the court appointed
standby counsel for him. Colwell was allowed to plead guilty to one count of murder in the
first degree pursuant to NRS 200.010, NRS 200.020 and NRS 200.030, one count of burglary
pursuant to NRS 205.060, and one count of robbery of a victim 65 years of age or older
pursuant to NRS 193.167 and NRS 200.380. Colwell requested that the penalty hearing be
conducted as soon as possible.
During the two-day penalty hearing before a three-judge panel, Colwell failed to conduct
meaningful cross-examination and in fact attempted to bring out damaging evidence that the
prosecution had failed to address. In addition, Colwell made no objections to the State's
evidence. In fact, Colwell's failure to make any objections was so obvious that members of
the three-judge panel felt compelled to comment. Further, Colwell refused to introduce any
mitigating evidence. Prior to closing arguments, the State as well as the panel explained to
Colwell his right of allocution and his opportunity to present evidence. During closing
argument, the State argued both the existence of seven aggravating factors and the
non-existence of any mitigating evidence. Colwell's closing argument was a plea that he be
put to death. Prior to sentencing, Colwell was given one final chance to introduce mitigating
evidence; he declined. The panel found the existence of four of the seven alleged aggravating
circumstances and found that no mitigating circumstances existed. By unanimous vote, the
panel sentenced Colwell to death.
Colwell's appointed appellate counsel appeals Colwell's death sentence on the following
grounds: (1) the death penalty was unconstitutionally imposed in this case because the
constitutionally-mandated narrowing function could not be implemented; (2) this court
cannot conduct meaningful review of the death sentence in this case; (3) NRS 213.085
renders Nevada's death penalty scheme unconstitutional; (4) Nevada's three-judge panel
procedure is unconstitutional; (5) Nevada's death penalty scheme does not sufficiently narrow
the categories of eligible defendants and is thus unconstitutional; (6) only those aggravating
circumstances set forth in NRS 200.033 may constitutionally be used as aggravating
circumstances; and {7) the death penalty is cruel and unusual punishment in all
circumstances in violation of the Eighth Amendment and the Nevada Constitution.
aggravating circumstances set forth in NRS 200.033 may constitutionally be used as
aggravating circumstances; and (7) the death penalty is cruel and unusual punishment in all
circumstances in violation of the Eighth Amendment and the Nevada Constitution. For the
following reasons, we conclude that Colwell's counsel's claims are meritless.
[Headnote 1]
Colwell's counsel first claims that the death penalty was unconstitutionally imposed in this
case because the constitutionally-mandated procedure for narrowing the class of
death-eligible defendants could not be implemented given that Colwell not only intentionally
chose not to present mitigating evidence but affirmatively tried to skew the evidence
presented to aid the State in the presentation of its case at the penalty hearing. We conclude
that a criminal defendant is entitled to represent himself in whatever manner he wishes,
whether that be by introducing mitigating evidence, by not introducing mitigating evidence or
even by actively seeking the death penalty. See Bishop v. State, 95 Nev. 511, 516-17, 597
P.2d 273, 276 (1979) (holding that when a defendant knowingly and voluntarily waives his
right to counsel, his refusal to present a defense does not negate his pro per election and the
sentencing tribunal has no duty to delve into mitigating evidence referred to by standby
counsels); State v. Felde, 422 So. 2d 370, 394-95 (La. 1982), cert. denied, 461 U.S. 918
(1983) (holding, in effect, that Faretta allows a defendant to affirmatively present evidence
that he deserves the death penalty and to, in closing argument, urge the imposition of the
death penalty).
1
Therefore, we hold that Colwell's actions did not render his resulting
sentence unconstitutional.
[Headnote 2]
Second, Colwell's counsel contends that this court cannot conduct meaningful appellate
review of Colwell's death sentence pursuant to NRS 177.055(2) because Colwell intentionally
failed to challenge evidence, intentionally failed to present mitigating evidence and aided the
State in presenting its case.
2
Given that there is no requirement that a defendant present
mitigating evidence or put on a defense in a death penalty hearing, we conclude that
there can be no infirmity in the record on review if the record does not contain mitigating
evidence, and therefore this court can meaningfully review Colwell's death sentence.
__________

1
The various authority Colwell's counsel cites is either distinguishable or wholly inapplicable. All of the cases
cited by Colwell's counsel stand for the proposition that a defendant must be given the opportunity to present
mitigating evidence and the sentencer must consider that evidence once it is presented. Colwell was given that
opportunity. Nothing in any of the cases cited by Colwell's counsel directs that a court must discover mitigating
evidence which a defendant has decided not to present.

2
NRS 177.055(2) requires any sentence of death to be reviewed to determine if that sentence was imposed
arbitrarily or under the influence of passion or prejudice or is excessive considering both the crime and the
defendant.
there is no requirement that a defendant present mitigating evidence or put on a defense in a
death penalty hearing, we conclude that there can be no infirmity in the record on review if
the record does not contain mitigating evidence, and therefore this court can meaningfully
review Colwell's death sentence.
[Headnotes 3, 4]
Third, Colwell's counsel claims that NRS 213.085 renders Nevada's death penalty scheme
unconstitutional by completely denying him a chance for clemency.
3
Colwell's counsel is
imprecise in his argument. Clemency encompasses the power to commute a sentence or to
pardon. Cf. NRS 213.095 (equating the granting of clemency with remitting a fine or
forfeiture, commuting a sentence or granting a pardon). Commutation is the changing of one
sentence to another while a pardon absolves a defendant of the crime altogether. See Pinana
v. State, 76 Nev. 274, 281-83, 352 P.2d 824, 829 (1960) (parole, pardon and commutation are
each distinguishable). NRS 213.085 addresses only an aspect of commutation and does not
address other forms of clemency, including the pardon power. Thus, NRS 213.085 does not
completely deny the opportunity for clemency, as Colwell's counsel contends, but rather
modifies and limits the power of commutation. Accordingly, Colwell's counsel's claim lacks
merit.
[Headnote 5]
Fourth, Colwell's counsel contends that the three-judge panel utilized in this case is
unconstitutional for two reasons. His first argument is that the three-judge panel procedure
creates a special court unconstitutionally encroaching on the judicial power and inconsistent
with the constitutional jurisdiction of the district courts
4
or an improper hybrid court
composed of one judge exercising judicial power and two judges functioning in a non-judicial
role.
__________

3
NRS 213.085(1) provides as follows:
If a person is convicted of murder of the first degree before, on or after July 1, 1995, the board shall not
commute:
(a) A sentence of death; or
(b) A sentence of imprisonment in the state prison for life without the possibility of parole,
to a sentence that would allow parole.
(Emphasis added.)

4
Colwell's counsel cites, inter alia, People ex rel. Rice v. Cunningham, 336 N.E.2d 1 (1975) (striking down
Illinois' three-judge panel procedure in death penalty cases as an unconstitutional encroachment by the
legislature onto the jurisdiction of Illinois' trial courts). Rice was decided based on an interpretation of Illinois
law and we do not determine it to be persuasive here.
[Headnote 6]
We hold that this argument lacks merit because (1) the Nevada Constitution contains no
language prohibiting the legislature from providing that district judges must act as a collegial
body in the exercise of certain proper judicial functions, such as sentencing, and (2) the
legislature clearly has the power to regulate procedure in criminal cases. The three-judge
panel procedure does not interfere with judicial power or district court jurisdiction as those
concepts are understood. See Bergman v. Kearney, 241 F. 884, 898 (D. Nev. 1917) (defining
the judicial power as the power to decide finally and conclusively, and also the power to
carry its determination into effect); Rohlfing v. District Court, 106 Nev. 902, 906-07, 803
P.2d 659, 662-63 (1990) (illustrating that a true example of conflicting jurisdiction arises
when one district court judge, equal in jurisdiction to another, attempts to overrule another
district judge's prior determination purporting to nullify the force and effect of the prior
judge's decision); see also Johnson v. Goldman, 94 Nev. 6, 575 P.2d 929 (1978); State ex rel.
Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922 (1954); Pacific L.S. Co. v. Ellison R. Co., 46
Nev. 351, 213 P. 700 (1923); State v. Wildes, 34 Nev. 94, 116 P. 595 (1911). The three-judge
panel procedure creates no new power which did not already lie within the power of the
district courts, namely, the sentencing of criminal defendants. See Cabana v. Bullock, 474
U.S. 376, 385-86 (1986) (a capital defendant does not have a constitutional right to a jury
determination of punishment, thus, it is constitutional for a defendant to be sentenced by a
judge); Spaziano v. Florida, 468 U.S. 447, 457-65 (1984); Redmen v. State, 108 Nev. 227,
235, 828 P.2d 395, 400-01, cert. denied 506 U.S. 880 (1992); Baal v. State, 106 Nev. 69,
74-75, 787 P.2d 391, 395 (1990); NRS 176.033(1)(a); NRS 176.035; NRS 176.045.
[Headnote 7]
Colwell's counsel's second argument challenging the constitutionality of the three-judge
panel procedure is that the three-judge panel procedure violates a defendant's right to an
impartial tribunal, due process and a reliable sentence by disallowing challenges to the
qualifications and selection of panel members and by returning death sentences more often
than juries.
As to this argument, we note that this court has addressed this exact issue on numerous
other occasions and found it to be meritless. See, e.g., Paine v. State, 110 Nev. 609, 617-18,
877 P.2d 1025, 1030-31 (1994), cert. denied,
------
U.S.
------
, 115 S. Ct. 1405 (1995).
Colwell's counsel has not provided additional and more persuasive arguments than those
already considered by this court to persuade us to overrule our decision in Paine."
this court to persuade us to overrule our decision in Paine. Riker v. State, 111 Nev. 1316,
1326, 905 P.2d 706, 712 (1995), cert. denied,
------
U.S.
------
, 64 U.S.L.W. 3763 (May 13,
1996). Accordingly, Colwell's counsel's second argument lacks merit as well.
[Headnote 8]
Fifth, Colwell's counsel claims that Nevada's death penalty scheme, enumerating the
death-eligible aggravating circumstances, insufficiently narrows the categories of
death-eligible defendants and is therefore unconstitutional. Nevada's death penalty statute is
essentially identical to the Georgia and Florida death penalty statutes upheld as facially
constitutional by the United States Supreme Court. See Deutscher v. State, 95 Nev. 669, 676,
601 P.2d 407, 412 (1979). We conclude from the record that the aggravating circumstances
used by the panel in this case to impose the death sentence sufficiently narrowed the
determination of Colwell's death eligibility and, therefore, we hold that Colwell's counsel's
appeal on this issue lacks merit.
[Headnote 9]
Sixth, Colwell's counsel contends that only those aggravating circumstances set forth in
NRS 200.033 may be constitutionally used as aggravating circumstances in determining death
eligibility. He asserts that this court's ruling in Allen v. State, 99 Nev. 485, 488, 665 P.2d
238, 240 (1983), that any other matter which the court deems relevant to sentence may be
admitted in a capital sentencing hearing, makes Nevada's death penalty scheme
unconstitutional as it creates a vague and standardless standard, giving open-ended discretion
to the trial court. However, we conclude from the record that the sentencing panel did not rely
on anything other than the four aggravating circumstances it found in imposing the death
penalty and, thus, Colwell's counsel's argument is irrelevant.
[Headnote 10]
Finally, Colwell's counsel claims that the death penalty is cruel and unusual punishment in
all circumstances in violation of the Eighth Amendment and the Nevada Constitution.
Colwell's counsel concedes that the United States Supreme Court and this court have
repeatedly upheld the general constitutionality of the death penalty under the Eighth
Amendment. See e.g., Bishop, 95 Nev. at 517-18, 597 P.2d at 276-77. Colwell's counsel
merely desires to preserve his argument should this court change its mind. We are not so
inclined. We note that this court has also held that the death penalty is not unconstitutional
under the Nevada Constitution.
Nevada Constitution. Id. Accordingly, we conclude that Colwell's counsel's claim on this
issue lacks merit.
[Headnotes 11, 12]
In cases in which the death penalty is imposed, this court is statutorily required to consider
whether the death sentence was imposed under the influence of passion, prejudice or any
arbitrary factor and whether the sentence of death is excessive considering both the crime and
the defendant. NRS 177.055(2). We conclude that the death sentence was not imposed under
the influence of passion, prejudice or any arbitrary factor, nor was it excessive in this case.
The sentencing panel sentenced Colwell to death based upon the aggravating circumstances
of the murder. The evidence supports the finding of the aggravating circumstances.
Considering these circumstances and the senseless nature of the killing, the sentencing panel's
decision that Colwell should be put to death was not excessive.
We affirm Colwell's death sentence.
____________
NEVADA ATTORNEY GENERAL FRANKIE SUE DEL PAPA, Petitioner, v. THE
HONORABLE THOMAS L. STEFFEN, Chief Justice of the Nevada Supreme Court;
THE HONORABLE CHARLES E. SPRINGER, Justice of the Nevada Supreme
Court; THE HONORABLE DAVID ZENOFF, Senior Justice of the Nevada Supreme
Court, in Their Official Capacities, and HERBERT J. AHLSWEDE, in His Official
Capacity as Special Investigator, Respondents.
No. 27847
Petition for An ORDER RESCINDING APPOINTMENT OF SPECIAL MASTER Entered
September 1, 1995, and Voiding Associated Expenses.
ADKT 221
July 12, 1996 920 P.2d 489
Response to Supplemental Opinion filed July 5, 1996, under case number 24598.
Frankie Sue Del Papa, Attorney General, Carson City, for Petitioner.
Chuck R. Gardner, Las Vegas, for Respondents.
OPINION
Per Curiam:
It can hardly be gainsaid that the Whitehead matter has made a lasting, albeit hardly noble,
imprint upon Nevada's judicial history with nearly 700 pages of opinions and apparently the
court's longest oral argumentapproximately five hours. Moreover, the recent Supplemental
Opinion filed under case number 24598 seems to lay the foundation for its continuing
existence with the invocation by Justices Steffen and Springer of the rule of necessity and the
inherent powers of the court. They argue these principles permit them (although two in
number) to (1) write a Per Curiam Opinion overriding a majority order of the duly elected
justices in a case where Justices Steffen and Springer were parties; and (2) act to bind the
Whitehead panel, a panel consisting of five positions.
1

Having reviewed the two-justice Per Curiam Opinion, the records, and files in this
matter, we conclude:
(1) That a number of new factual allegations are included in the two-justice Per
Curiam Opinion based on facts not in the record and that other allegations are of doubtful
probity. However, in view of our disposition here, we perceive no need to address these and
thereby add further to the enormous number of pages now on file.
(2) That the Whitehead panel gave to petitioner Whitehead the original relief sought in his
petition for extraordinary relief and that the undersigned majority have in no way attempted to
amend, restrict or change that relief.
(3) That any action of the Whitehead panel after granting petitioner the original relief
sought in his petition was extra-jurisdictional in nature.
(4) That after granting the relief sought as stated above and after motions by Judge
Whitehead, the Whitehead panel then sought to launch an unprecedented investigation into
the source of certain alleged leaks and to determine the reasons for the loss of confidence in
the court and a decline in public support of the court. According to the order, the special
master would report only to the Whitehead panel.
(5) That the appointment of the special master was an exercise of extra-constitutional
power that was void upon its inception.
__________

1
When Chief Justice Steffen's term expires at the end of 1996, Justice Springer will be the last of the four
members of the Whitehead panel who once comprised the majority (Steffen, Springer, Guy and Zenoff). Under
the rule of necessity, Justice Springer as sole remaining functional member could presumably supervise the
work of the special master, Herbert J. Ahlswede, and file additional Per Curiam Opinions signed only by
himself.
cise of extra-constitutional power that was void upon its inception.
(6) That the above broad investigation would make possible a judicial witchhunt with the
special master authorized to search for reasons why the Nevada Supreme Court has lost
respect and prestige. According to the order creating the position, the special master is
cloaked with judicial immunity and his activities are to be supervised only by the panel. Such
a situation would place investigatory (i.e., executive) power and adjudicative power into the
hands of a panel of this court, thereby presenting a situation which this court has previously
disallowed because it would permit the panel to act oppressively. See Attorney General v.
Steffen, 112 Nev. 369, 380, 915 P.2d 245, 252 (1996). Furthermore, the special master's fees
were paid from the personal funds of Justices Steffen and Springer, thereby removing from
the investigation any possible vestige of impartiality.
(7) That the purpose of the special master is to look for the person or persons allegedly
responsible for violating orders of the panel based on the false premise that certain aspects of
judicial discipline were confidential and that the Supreme Court could act in secret with
regard thereto. It has been established that the Nevada Supreme Court has no authority to
impose a veil of secrecy over judicial disciplinary proceedings in the manner employed. Id. at
374-75, 915 P.2d at 248-49.
(8) That the Whitehead panel had been informed before the special master was selected
that there was no money in the Supreme Court budget for such activity. The panel was
advised that it should seek money from the legislature in 1995 or go to the Interim Finance
Committee for needed funds. Apparently no such requests were submitted or efforts made.
(9) That the actions of the Whitehead panel, although perhaps sincerely taken, have
unfortunately resulted in a serious loss of prestige and respect for the judicial system and
invited strong criticism from observers both in and out of the state. The continued efforts of
the two remaining members of the majority of the Whitehead panel to recklessly pursue the
suspect goals set forth in the order appointing the special master will do further irreparable
damage to the prestige of the Nevada Supreme Court, both in and out of the state.
(10) That while there is a rule of necessity recognized by some courts and this court has
certain inherent powers, this rule and these powers do not serve in this case to override NRS
2.140, which disallows fewer than three justices to pronounce judgment in a case. Moreover,
there is a stronger countervailing Rule of Necessity that the court must get on with its
regular business and not conduct unconstitutional investigations as pursued by the Whitehead
panel. The court now has a backlog of nearly 1,800 cases; and although the members are
working with diligence, the backlog is growing by almost two cases a day.
cases; and although the members are working with diligence, the backlog is growing by
almost two cases a day. Simply put, the court and State of Nevada cannot enjoy the luxury or
folly of pursuing the phantom leaker, if one exists. In line with public sentiment, we find that
the Whitehead matter should be forever closed and relegated to the history books, rather than
be further added to the already overburdened annals of Nevada's judicial records. We can best
discharge our judicial responsibilities and at the same time enhance the respect for the court
by single-mindedly devoting our energy and resources to promptly rendering decisions and
improving judicial processes.
2

Accordingly, It Is Hereby Ordered as Follows:
(1) We incorporate by reference our former order of September 15, 1995, declaring void
each and every provision of the Order Appointing Special Master which was filed by the
Whitehead panel on September 1, 1995, and direct the Clerk of this court to strike as void the
Supplemental Opinion filed July 5, 1996, under case number 24598 and further not to publish
said Supplemental Opinion;
(2) We direct the Clerk of this court to accept no filings in case number 24598 or case
number 27847 unless approved by a majority of the elected members of the court.
(3) We direct that Special Master Herbert J. Ahlswede is discharged and shall
immediately return to the Clerk of the court (1) any subpoenas or subpoenas duces tecum
issued by the Clerk of this court on September 1, 1995, and not served, and (2) inform the
court immediately of the names, addresses, and dates of service of those upon whom service
of subpoena has been made.
Young, V. C. J., and Shearing and Rose, JJ., concur.
__________

2
For over twenty years a priority goal of the Nevada Supreme Court has been to create an intermediate
appellate court system to provide relief from the crushing burden of ever increasing appeals. To create an
intermediate appellate court, the Nevada Constitution must be amended. The procedure to accomplish this is to
have approval of the legislature in two successive sessions after which the proposal is submitted to a vote of the
people.
On seven occasions, the Nevada Legislature has approved such a constitutional amendment, the last time in
1993. If the 1995 legislature had given its approval, the proposal to amend the Constitution would have been
submitted to the voters in 1996. However, the 1995 legislature was apparently so disenchanted with the actions
of the Whitehead panel that it refused to process for the requisite second time the joint resolution for the
intermediate appellate court. As a result of the failure of the Nevada Assembly to bring the joint resolution out of
committee, the court will have to go to the Nevada Legislature again in 1997 and in 1999. If approved by the
voters in the year 2000, the court must go to the legislature in 2001 for funding. Thus, it will be the year 2002 at
the earliest before such an intermediate court will be functional.
____________
112 Nev. 819, 819 (1996) Walker v. State
ROY LEE WALKER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24381
July 22, 1996 921 P.2d 923
Appeal from a judgment of conviction of one count each of conspiracy to commit
burglary, burglary, and robbery with the use of a deadly weapon. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
The supreme court held that: (1) trial court's failure to conduct hearing prior to admitting
evidence of prior bad act evidence contained in defendant's confession or to properly redact
defendant's confession to excise any reference to the other crimes constituted reversible error,
and (2) even if prior bad act evidence had been properly admitted into evidence after a
hearing, trial court erred when it precluded defendant from informing jury that he had been
acquitted of the other crimes mentioned in his confession.
Reversed and remanded for new trial.
1. Criminal Law.
Evidence of other crimes disclosed in defendant's confession would be determined to be admissible or inadmissible pursuant to
statute providing that evidence of other crimes is not admissible to prove character of a person in order to show that he acted in
conformity therewith, but may be admissible for other purposes such as proof of motive. NRS 48.045(2).
2. Criminal Law.
Before admitting evidence of prior bad acts, trial court must conduct hearing on the record to allow appellate court meaningful
opportunity to review trial court's exercise of discretion.
3. Criminal Law.
Trial court's failure to conduct hearing prior to admission of prior bad act evidence contained in defendant's confession or to
properly redact defendant's confession to excise any reference to the other crimes constituted reversible error.
4. Criminal Law.
Even if prior bad act evidence contained in defendant's confession had been properly admitted into evidence after a hearing, trial
court erred when it precluded defendant from informing jury that he had been acquitted of the other crimes mentioned in his
confession. Although trial court permitted defendant's counsel to ask officers if they knew whether charges were presently pending
against defendant regarding the other crimes which he had confessed to and officers replied that charges were not pending, such
questioning was insufficient to inform jury that defendant had been acquitted of the other crimes.
not pending, such questioning was insufficient to inform jury that defendant had been acquitted of the other crimes.
OPINION
Per Curiam:
Appellant Roy Walker was tried and convicted on charges of conspiracy to commit burglary, burglary, and robbery with the use of a
deadly weapon. Walker's confession, which contained statements regarding his involvement in other crimes for which he had already been
acquitted, was entered into evidence. Walker filed a motion in limine requesting that he be permitted to inform the jury that he had been
acquitted of these other crimes, and that motion was denied.
We conclude that the district court erred by admitting evidence of Walker's prior bad acts without first conducting a Petrocelli hearing
and that even if the evidence had been properly admitted after such a hearing, the district court erred in denying Walker's motion in limine
to permit him to inform the jury that he had been acquitted of the other crimes.
FACTS
In late 1991 and early 1992, the Las Vegas Metropolitan Police Department (LVMPD) was investigating several apparently related
residential robberies and/or burglaries. The crimes occurred at three different properties owned by Arthur and Mabel Kistler (Kistler), State
Farm Insurance (State Farm), and George Kaufmann (Kaufmann), respectively. The crime at issue in this appeal is the one which occurred
at Kaufmann's residence on January 2, 1992. Kaufmann testified that he was sitting at home watching television when several men broke
down his door, held a gun to his head, and ransacked his house looking for valuables. Kaufmann testified that he could not identify any of
the thieves because the activity happened very quickly and the perpetrators covered his head with a blanket so that he could not see
anything.
On or about January 17, 1992, LVMPD obtained information from people they had arrested in connection with the three
robberies/burglaries describing Walker's complicity in those crimes. Based on that information, LVMPD officers Lewis Roberts, Vinton
Hartung, and Michael Karstedt, along with about ten other LVMPD officers, executed a search warrant at the house where Walker lived.
Officers Roberts and Hartung arrested Walker and took him into the kitchen while the remaining officers searched the house. The
search, which lasted approximately two and one-half hours, uncovered no evidence of criminal activity and none of the
items that the informant suspects claimed would be found in the house.
uncovered no evidence of criminal activity and none of the items that the informant suspects
claimed would be found in the house. During the search, Hartung and Roberts talked to
Walker in the kitchen, Hartung eventually began to discuss with specificity the three
robberies/burglaries that they were investigating, and Hartung told Walker that they had taped
confessions from the other suspects which implicated him in those crimes. Walker repeatedly
denied involvement in those crimes.
After approximately two and one-half hours of questioning at Walker's home, Hartung and
Roberts took Walker to the Clark County Detention Center (CCDC) for further questioning.
At CCDC, Walker was placed briefly in a holding cell and was then taken to an interview
room. Hartung and Roberts reinitiated the interview and told Walker that the police believed
that he had participated in the crimes, and Walker asked them how they knew that. Hartung
then showed Walker copies of transcripts and tape recorded statements from the other
suspects which implicated Walker in the crimes. Hartung stated that after reading the
statements, Walker agreed to make a taped confession describing his participation in the
crimes.
Hartung and Roberts taped the confession and read Walker his Miranda rights on tape at
the beginning of the confession. The transcript of the taped confession listed the starting time
of the tape at 11:30 p.m. on January 17, 1992, and listed an ending time of 12:03 a.m. on
January 18, 1992, a total of thirty-three minutes. The confession tape, however, has a running
time of just over twenty-six minutes, a difference of six minutes and forty-two seconds.
Hartung testified that the recorder was turned off several times during the confession because
the officers had to explain questions that Walker did not understand and furthermore that
Officer Roberts was still learning how to conduct taped interviews. Walker, however,
testified that the officers turned off the tape recorder in order to tell him what question they
were going to ask next and to tell him how to answer the question, allegedly because the
police were interested in obtaining incriminating information from him regarding the other
suspects.
1
During the taped confession, Walker explained the details of the crime
committed at the Kaufmann residence and his participation in that crime.
__________

1
We note that the confession tape does not appear to support the police officers' version of why they stopped
the tape. The tape was discernibly shut off eight different times, and the only time where the tape could have
been shut off to explain a question to Walker was when it was shut off during the reading of his Miranda rights.
The other seven times when the tape was shut off were at points where there was no question asked of Walker or
just before the officers began a new line of questioning on a new topic. In each of those seven instances, the tape
was always stopped after Walker was finished answering the previous question and just before the officers asked
the next question. Furthermore, throughout the confession Walker showed no signs that he was confused or
needed assistance to understand the questions.
During the taped confession, Walker explained the details of the crime committed at the
Kaufmann residence and his participation in that crime. After Walker had confessed his
involvement in the Kaufmann crime (basically stating that he did not steal anything and that
he was only a lookout), the discussion turned to the Kistler and State Farm crimes. The
transcript of the confession reads as follows:
Q. [police officer]. Okay, Roy, I need clarify [sic] one point. How many residential
burglaries have you participated in wheremeaning that you actually drove to various
locations with the other three suspectsto how many of those have you participated in?
A. [Walker]. [Unintelligible] least four, four andthat's, that's it, cause it's like
two, two that I really went in to and like the other two I like stood as a watch out, you
know, by the front door and watched out and all this, you know told em whatwhat,
how many minutes they got or whatever. You know it was like I was a punch man.
. . . .
Q. Okay, Roy, in order to help us identify these locations, are you able to give us
addressaddresses or particular locations where these houses were burglarized that
you've done or what part of town they may have been in?
A. [Unintelligible] my knowledge, I probably can show you better than I tell, but
[unintelligible] my knowledge that there was one by the Meadows Mall. I don't know
what street or address it was and Ithe one by the Meadows Mall it's the old man
[Kaufmann]. Okay, and then there was one that we did . . . I don't really know the exact
place and address, but I can probably show you better than I can [unintelligible].
Q. Okay.
A. Okay, and then there was onethere was one by somewhere like past the Santa
Fe Hotel [unintelligible] one out in a desert and there wasn't nobody at home, and
[unintelligible] like other places [unintelligible] like in alike a desert. I don't know
exactlyI don't remember because its been a while.
On May 11, 1992, Walker was charged by way of information with six counts related to
the burglary/robbery at the Kistler residence, two counts related to the burglary/robbery at the
State Farm location, and four counts related to the Kaufmann burglary/robbery. Following a
jury trial on July 1, 1992, Walker was acquitted of all of the Kistler and State Farm counts,
and the jury deadlocked on all of the Kaufmann counts. The Kaufmann counts were tried to a
new jury beginning November 30, 1992.
Prior to the second trial, Walker filed a motion in limine to admit evidence of his prior
acquittal of the Kistler and State Farm crimes. Walker's counsel argued that the prosecution's
anticipated case in chief would include reference to those events via Walker's confession and
that Walker should be able to present evidence of his acquittal on those charges. The
prosecution argued that it would not elicit testimony from the victims involved in the Kistler
and State Farm crimes and that the only references to those crimes were what Walker
admitted were only minor references in his confession. The prosecution concluded by
arguing that acquittal evidence would be irrelevant and prejudicial. The district judge denied
Walker's motion in limine, stating that the prior verdict was the opinion of twelve people
based upon what was presented to them or was not presented to them by the district attorney
at that time and that the verdict was not relevant in the retrial.
At the conclusion of the second trial, Walker was found guilty of the three counts at issue
in this appeal, and the jury deadlocked on the fourth count, conspiracy to commit robbery,
which the prosecution later dropped. Walker now argues that the district judge erred by
admitting evidence of the Kistler and State Farm crimes without permitting him to admit
evidence of his acquittal of those crimes.
DISCUSSION
[Headnote 1]
Evidence of other crimes committed by a defendant must be determined to be admissible
pursuant to NRS 48.045(2).
2
While such evidence usually does not come in the form of
statements or confessions made by the defendant, we see no reason to make an exception to
this statutory requirement for prior bad act evidence disclosed in a defendant's confession.
[Headnote 2]
Walker objected to the admission of the confession with its references to the Kistler and
State Farm crimes, but his objection was overruled. Additionally, the district attorney did not
request and the district judge did not require a hearing in the absence of the jury to determine
whether the evidence of Walker's prior bad actsthe other crimes mentioned in the
confessionwas admissible. In Armstrong v. State, 110 Nev. 1322, 1323, 885 P.2d 600,
600-01{1994) {citing Petrocelli v. State, 101 Nev. 46
__________

2
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.
600-01(1994) (citing Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985)), this court has
stated:
[B]efore admitting evidence of a prior bad act or collateral offense, the district court
must conduct a hearing outside the presence of the jury. During the hearing, the state
must present its justification for admission of the evidence, . . . [and] prove by clear and
convincing evidence that the defendant committed the collateral offense, and the
district court must weigh the probative value of the proffered evidence against its
prejudicial effect.
The Petrocelli hearing must be conducted on the record to allow this court a meaningful
opportunity to review the district court's exercise of discretion. Armstrong, 110 Nev. at
1323-24, 885 P.2d at 601.
[Headnote 3]
No Petrocelli hearing was held in this case to determine the admissibility of the prior
criminal acts and whether their probative value was substantially outweighed by their
potential prejudicial effect. Even if such a hearing had been held, it may well have been
difficult to find the prior crimes proven by clear and convincing evidence when Walker had
been acquitted of the Kistler and State Farm crimes prior to trial. Since no Petrocelli hearing
was conducted, the district court should have excised reference to the other crimes from
Walker's confession, which from our reading of the transcribed statement made by Walker
could have been done without much difficulty. This failure to conduct a Petrocelli hearing or
to properly redact Walker's confession to excise any reference to the other crimes constituted
reversible error.
[Headnote 4]
We also conclude that even if the prior bad act evidence had been properly admitted into
evidence after a Petrocelli hearing, the district judge should have granted Walker's motion in
limine and permitted him to inform the jury that he had been acquitted of the other two
crimes mentioned in his confession.
Reference was made to the Kistler and State Farm crimes by both parties. Once Walker's
confession was admitted into evidence
3
and Walker was not permitted to inform the jury that
he had been acquitted of the Kistler and State Farm crimes, Walker's counsel's strategy
apparently was to attack the investigating police officers' testimony regarding Walker's
confession in order to convince the jury that the confession was coerced.
__________

3
Prior to trial, Walker filed a motion to suppress the confession alleging that his confession was coerced. The
district judge denied the motion and admitted the confession in full. Walker challenged the denial of his motion
to suppress in this court, and we conclude that the district judge did not err in finding that the confession was not
coerced.
counsel's strategy apparently was to attack the investigating police officers' testimony
regarding Walker's confession in order to convince the jury that the confession was coerced.
In so doing, Walker's counsel questioned the police officers regarding how they obtained
information regarding Walker's involvement in the Kistler and State Farm crimes and what
they did with that information after they received it. The prosecution also made references to
the Kistler and State Farm crimes in its redirect examination of Officer Hartung and more
importantly in its rebuttal closing argument. The prosecutor implied that Walker was
involved in the other crimes because Walker stated that while he was not able to remember
the addresses where the Kistler and State Farm crimes occurred, he could direct the police
officers to those locations.
We conclude that once the facts of the Kistler and State Farm crimes were received into
evidence, Walker should have been given the opportunity to inform the jury that he had been
acquitted of those crimes. See People v. Griffin, 426 P.2d 507, 510-11 (Cal. 1967) (stating
that evidence of another crime is not made inadmissible by reason of the defendant's acquittal
of that crime but that a properly authenticated acquittal is admissible to rebut prosecution
evidence of guilt of another crime), abrogated on other grounds by People v. Chaney, 249
Cal. Rptr. 251 (Ct. App. 1988); State v. Smith, 532 P.2d 9, 11-12 (Or. 1975) (concluding that
when the state attempts to prove a defendant's guilt by showing other offenses of which he
was charged, the defendant should be permitted to show that he was acquitted of the offenses
because the admission of evidence of other offenses in which the defendant has been
involved without disclosing that he was acquitted tends to brand him as a criminal' and
exposes him to the danger that the jury might lose sight of the presumption of innocence and
the high level of proof required to rebut it).
The district court permitted Walker's counsel to ask the officers if they knew whether any
charges were presently pending against Walker regarding the Kistler and State Farm crimes
which he had confessed to, and the officers either replied that they were unaware if charges
were pending or that they knew that charges were not pending. We conclude that such
questioning was insufficient to inform the jury that Walker had been acquitted of the other
crimes because the jury could have thought that charges were not presently pending because
they were disposed of by a conviction or a plea bargain arrangement or that law enforcement
had elected to proceed against him only on the charged offense. The introduction into
evidence of the Kistler and State Farm crimes in which Walker had allegedly participated
clearly left the jury with the impression that Walker had been part of a burglary ring and was
probably guilty of committing all of the crimes mentioned in his statement but was being
tried for only one of them.
mentioned in his statement but was being tried for only one of them. This clearly was error
that was prejudicial to the appellant.
CONCLUSION
The district court erred in not conducting a Petrocelli hearing prior to admitting evidence
of Walker's prior bad acts. Additionally, even if the evidence of the other burglaries had been
properly admitted after a Petrocelli hearing, it was error for the district judge to prevent
Walker from informing the jury that he had been acquitted of the other burglaries. Therefore,
Walker's conviction must be reversed and remanded for a new trial consistent with this
opinion.
____________
112 Nev. 826, 826 (1996) Riley v. OPP IX L.P.
HASKELL RILEY, Appellant, v. OPP IX L.P., a Missouri Limited Partnership, Respondent.
No. 26193
July 22, 1996 919 P.2d 1071
Appeal from an order of the district court granting respondent's motion for summary
judgment. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Employee and part-owner of battery repair shop which leased space from storage facility
brought action against owner of facility to recover for injuries suffered by employee when he
attempted to lift sliding metal gate which surrounded facility back into its track and gate fell
on him. Owner of facility moved for summary judgment, and the district court granted
motion. Employee appealed, and the supreme court held that fact issue as to whether facility
was negligent in its maintenance of sliding gate precluded summary judgment.
Robert W. Lueck, Las Vegas, for Appellant.
Beckley, Singleton, Jemison & List, and Daniel F. Polsenberg, Las Vegas, for Respondent.
On appeal, review of summary judgment orders is de novo.
2. Judgment.
Entry of summary judgment is proper only when there are no issues of fact and moving party is entitled to expedited judgment as
matter of law.
3. Judgment.
Genuine issue of material fact, which will preclude summary judgment, is one where evidence is such that reasonable jury could
return verdict for nonmoving party.
4. Judgment.
On motion for summary judgment, pleadings and proof offered at district court are construed in light most favorable to nonmoving
party.
5. Judgment.
In order to survive summary judgment motion in negligence action, there must be factual disputes as to duty, breach, actual
causation, legal causation, and damages.
Reviewing courts are hesitant to affirm grant of summary judgment in negligence cases, because such claims generally present jury
issues.
7. Judgment.
Party opposing motion for summary judgment must set forth specific facts showing that there is genuine issue for trial.
8. Judgment.
Party opposing motion for summary judgment must show that he can produce evidence at trial to support his allegations, and may
not rest upon mere allegations contained in his pleading to satisfy this burden.
9. Landlord and Tenant.
Landlords, as other persons, must exercise reasonable care not to subject others to unreasonable risk of harm, and must act as
reasonable person under all of the circumstances, including likelihood of injury to others, probable seriousness of such injuries, and
burden of reducing or avoiding risk.
10. Negligence.
Owner of land must exercise ordinary care and prudence to render premises reasonably safe for visit of person invited on premises
for business purposes.
11. Judgment.
Fact issue as to whether property owner who leased space in facility to battery rebuilding shop was negligent with respect to
maintenance of sliding metal gate surrounding property, precluding summary judgment in action brought by shop employee who was
injured when gate fell on him as he tried to lift it back on to track from which it had slipped, was presented by expert testimony that
among contributing causes to accident was owner's failure to repair crumpled ground track for gate and to maintain upper rear wheel
gate, and by lack of evidence that owner had installed new track when new gate was installed prior to accident.
OPINION
Per Curiam:
Appellant Haskell Riley (Riley) was the co-owner of a battery rebuilding shop which rented commercial space in Secure Care, a
storage facility owned and operated by respondent OPP IX, L.P. (OPP IX), a Missouri limited partnership. On April 9, 1990, Riley
attempted to open the gate next to his place of employment.
employment. Riley was unable to completely open the gate because the bottom roller of the
gate had come off its track. The gate fell over onto Riley as he attempted to lift the gate back
into place.
Riley filed a complaint against OPP IX. After answering the complaint, OPP IX repeatedly
filed motions for summary judgment. The district court denied those motions in order to give
Riley more time for discovery. However, on May 31, 1994, after Riley had been given the
opportunity to conduct further discovery, the district court granted summary judgment in
favor of OPP IX.
Riley appeals, arguing that the district court erred in granting OPP IX's summary judgment
motion because genuine issues of fact remained for a jury. We conclude that Riley's argument
has merit. Accordingly, we reverse the district court's order and remand this case to the
district court for a trial on the merits.
FACTS
Riley was the co-owner of a battery rebuilding shop that was located in Secure Care, a
storage facility owned and operated by OPP IX. Riley had been a tenant at the storage and
business park since 1988. A security fence surrounds the OPP IX property, and ingress to and
egress from the property is gained through two security gates less than thirty feet apart from
one another. Each gate is a five foot high by twenty-four foot long wrought iron gate with
rollers connected to tracks.
On March 29, 1990, R.F.C. Corporation (R.F.C.) installed a new gate on the premises of
Secure Care that was next to the commercial unit which Riley rented. Representatives from
OPP IX and R.F.C. purportedly inspected the gate after it was installed and found the gate to
be in proper working condition.
On April 9, 1990, Riley went to work and noticed that the gate next to his shop was
closed. Riley needed to pull his truck into the complex in order to go to work and attempted
to open the gate. The gate opened only about one foot to eighteen inches and then stopped.
Riley noticed that the roller of the gate had fallen off its track, causing the gate not to open
any further. Riley attempted to pick up the gate and set it back in place. As Riley was
attempting to adjust the gate, the top of the gate became dislodged and the gate fell on top of
Riley.
Riley admitted that he had not experienced any problems with the new gate from the day it
was installed until the day it fell on him. However, Riley contended that he had reported
several problems with the old gate before it had been replaced. Additionally, OPP IX reported
that it had not received any complaints regarding the new gate from any of its tenants at
Secure Care.
Further, a security officer employed by OPP IX reported that he unlocked and opened the gate
at issue on the morning of April 9, 1990, and that he never had any problems opening the
gate.
On April 12, 1991, Riley filed a complaint against OPP IX, R.F.C. and Colt Protective
Security, Inc., the security service employed by OPP IX at Secure Care, alleging that he
sustained injuries and incurred damages as a result of the incident.
1
In his first cause of
action, Riley alleged that OPP IX was aware of the defective gate but did not make adequate
efforts to repair the gate to make it reasonably safe for the tenants of the property. In his
third cause of action, Riley alleged that OPP IX, L.P., as the owner of the premises[,] had a
duty to inspect the premises for defects and to make the premises reasonably safe for [Riley]
and [Riley's] business invitees. Riley's third cause of action further contended that
OPP, IX, L.P., breached its duty to make the premises reasonably safe by permitting the
gate to be negligently installed and/or negligently repaired so as to allow an unsafe
physical hazard to remain on the premises, and further, [OPP IX] knew of the unsafe
condition of the gate and its propensity to fall off its rails and took inadequate steps to
repair this defect.
On June 28, 1991, OPP IX filed its answer to the complaint. The answer denied the
allegations contained in Riley's complaint. On October 15, 1993, OPP IX filed its first motion
for summary judgment. The summary judgment motion alleged that [a]s of the date of this
Motion, [Riley] has not produced any evidence or propounded any answer to support his
claims against [OPP IX]. Additionally, because OPP IX allegedly exercised ordinary care as
to Riley, its business invitee, OPP IX was entitled to judgment as a matter of law.
On November 18, 1993, the district court held a hearing at which OPP IX's motion for
summary judgment was denied without prejudice in order to allow Riley more time for
discovery pursuant to NRCP 56(f). The district court continued the hearing until December 9,
1993, and warned Riley that if he does not have something concrete at that time the Court
will grant [OPP IX's summary judgment] motion. On December 9, 1993, the district court
denied OPP IX's summary judgment motion at this time because there are factual issues to
be resolved.
A second motion for summary judgment was filed and subsequently denied by the district
court because Riley had not completed discovery.
__________

1
The record indicates that Colt Security was voluntarily dismissed from the lawsuit pursuant to a stipulation
and that R.F.C. is no longer in business.
pleted discovery. However, the district court stated that when discovery is complete[d,] this
motion may be brought again.
On May 31, 1994, after Riley's counsel was granted two continuances to answer OPP IX's
third summary judgment motion, a hearing was held to discuss the motion. During the May
31, 1994 hearing, counsel for OPP IX indicated that Riley had conducted no additional
discovery since the previous summary judgment motion was denied. Additionally, counsel for
OPP IX argued that Riley was arguing theories of negligence which had not been pleaded in
its complaint. Riley's counsel argued that factual issues remained for a jury. Accordingly,
Riley's counsel contended that this case should proceed to trial. The district court granted
OPP IX's summary judgment motion.
DISCUSSION
[Headnotes 1-4]
On appeal, our review of summary judgment orders is de novo. Joynt v. California Hotel
& Casino, 108 Nev. 539, 541, 835 P.2d 799, 800 (1992). We have indicated that [a]n entry
of summary judgment is proper only when there are no issues of fact and the moving party is
entitled to an expedited judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449,
451, 705 P.2d 662, 665 (1985). A genuine issue of material fact is one where the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Valley Bank v.
Marble, 105 Nev. 366, 367, 775 P.2d 1278, 1282 (1989). The pleadings and proof offered at
the district court are construed in the light most favorable to the non-moving party. See
Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986).
[Headnotes 5, 6]
We have indicated that in order to survive a summary judgment motion in a negligence
claim, there must be factual disputes as to: (1) duty; (2) breach; (3) actual causation; (4) legal
causation; and (5) damages. Sims v. General Telephone & Electric, 107 Nev. 516, 521, 815
P.2d 151, 154 (1991). The Sims court further stated that [w]e have, in the past, indicated our
hesitance to affirm the granting of summary judgment in negligence cases, because such
claims generally present jury issues. Id. (citing Van Cleave v. Kietz-Mill Minit Mart, 97
Nev. 414, 417, 633 P.2d 1220, 1222 (1981)); see also 73 Am. Jur. 2D Summary Judgment 6
(1974).
[Headnotes 7, 8]
The Van Cleave court stated that [a] party opposing such a motion for summary judgment
must set forth specific facts showing that there is a genuine issue for trial."
ing that there is a genuine issue for trial. Van Cleave, 97 Nev. at 415, 633 P.2d at 1221. The
Van Cleave court, recognizing that inferences will be drawn in favor of the party opposing
summary judgment, indicated that the party opposing the summary judgment motion must
show that he can produce evidence at trial to support his allegations. Id. at 417, 633 P.2d at
1222. The party opposing summary judgment may not rest upon the mere allegations
contained in his pleading to satisfy this burden. See Bird v. Casa Royale West, 97 Nev. 67,
70, 624 P.2d 17, 19 (1981).
[Headnotes 9, 10]
In Turpel v. Sayles, 101 Nev. 35, 39, 692 P.2d 1290, 1293 (1985), we adopted a doctrine
of landowner liability independent of the status of the person injured upon the land and free
from the antiquated categorization which had been a remnant of the common law. The Turpel
court stated that
landlords as other persons must exercise reasonable care not to subject others to an
unreasonable risk of harm. A landlord must act as a reasonable person under all of the
circumstances including the likelihood of injury to others, the probable seriousness of
such injuries, and the burden of reducing or avoiding the risk. We think this basic
principle of responsibility for landlords as for others best expresses the principles of
justice and reasonableness upon which our law of torts is founded.'
Id. at 38, 692 P.2d at 1292 (quoting Sargent v. Ross, 308 A.2d 528, 534 (N.H. 1973)); see
also Moody v. Manny's Auto Repair, 110 Nev. 320, 331, 871 P.2d 935, 942 (1994) (finding
the approach set forth in Turpel the more enlightened and equitable method for ascertaining
liability). In Galloway v. McDonalds Restaurants, 102 Nev. 534, 537, 728 P.2d 826, 828
(1986), we stated that [a]n owner . . . of land must exercise ordinary care and prudence to
render the premises reasonably safe for the visit of a person invited on the premises for
business purposes.'
2
Id.
[Headnote 11]
In the present case, we conclude that a genuine issue of material fact remained as to
whether OPP IX breached its duty of ordinary care to Riley. Therefore, instead of granting
OPP IX's summary judgment motion, we conclude that the district court should have allowed
this case to proceed to trial.
__________

2
While the Galloway court used the term person invited in its explanation of the duty owed by an owner of
land, we conclude that this should not be interpreted to mean that this court adheres to the artificial classification
of plaintiffs based upon their status. See Moody, 110 Nev. at 333, 871 P.2d at 943.
In his opposition to OPP IX's first summary judgment motion, Riley presented a report
from a forensic engineer, Dan Cashdan, which stated that
[i]n my professional opinion, the contributing causes to this accident were:
a. Improper design and/or installation of the gate assembly such that the unprotected
ground-mounted track was installed above pavement level thereby subjecting the track
to distortion from motor vehicles. The position of the gate, across a vehicular driveway,
should have obviated the use of this type of track.
b. Improper design and/or installation of the gate assembly such that no safety
guards or brackets were installed prior to the accident to prevent a mishap caused by
rotation of the gate in a wester[n]ly direction.
c. A lack of proper diligence on the part of the property owner which permitted the
crumpled ground track to remain unrepaired and which neglected to maintain the
upper rear gate wheel in a safe condition.
(Emphasis added.)
In accepting this evidence as true, we conclude that OPP IX, in the exercise of reasonable
care, should have known of the crumpled ground track which was installed above the
pavement and was frequently driven over by vehicles entering and exiting the gate at issue.
The record is devoid of any information which demonstrates that OPP IX had a new ground
track installed at the time R.F.C. installed the new gate. Furthermore, the report indicates that
OPP IX failed to properly maintain the upper rear wheel of the gate in a safe condition. Thus,
genuine issues of fact remain as to whether OPP IX breached its duty of reasonable care in
repairing and maintaining the gate and ground track at issue.
Accordingly, because genuine issues of material fact remained for the jury, we reverse the
district court's order granting OPP IX summary judgment and remand this case to the district
court for a trial on the merits. This conclusion is consistent with our reluctance to affirm
summary judgment in negligence cases and our policy of deciding cases on their merits. See,
e.g., Sims, 107 Nev. at 521, 815 P.2d at 154; Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d
258, 260 (1981).
____________
112 Nev. 833, 833 (1996) Gama v. State
ALFREDO BAUTISTA GAMA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26804
July 22, 1996 920 P.2d 1010
Appeal from a judgment of conviction, pursuant to a conditional guilty plea, of one count
of possession of a controlled substance for the purpose of sale. Fourth Judicial District Court,
Elko County; Jack B. Ames, Judge.
The supreme court held that: (1) could have test applied in determining whether traffic
stop was reasonable, overruling Alejandre v. State, 111 Nev. 1235, 903 P.2d 794 (1995) and
Taylor v. State, 111 Nev. 1253, 903 P.2d 805 (1995); (2) defendant was not subjected to
pretextual traffic stop; and (3) search and seizure were reasonable in scope.
Affirmed.
Nancy Porter, Elko; Lockie and Macfarlan, Elko, for Appellant.
Attorney, Robert J. Lowe, Deputy District Attorney, Elko County, for Respondent.
1. Automobiles.
Traffic stop supported by probable cause based on speeding and other traffic-related infractions was reasonable, despite claim that
stop was pretext for search for drugs. Const. art. 1, 18; U.S. Const. amend. 4.
2. Automobiles.
In resolving claims that traffic stop was merely pretext to search car, could have test applies, that is vehicle stop that is supported
by probable cause to believe that driver has committed traffic infraction is reasonable under Federal or State Constitutions, even if
reasonable officer would not have made stop absent some purpose unrelated to traffic enforcement; overruling Alejandre v. State, 111
Nev. 1235, 903 P.2d 794 (1995) and Taylor v. State, 111 Nev. 1253, 903 P.2d 805 (1995). Const. art. 1, 18; U.S. Const. amend. 4.
3. Automobiles.
In area of pretextual traffic stops, Nevada Constitution's search and seizure clause provides no greater protection than that afforded
under its federal analogue. Const. art. 1, 18; U.S. Const. amend. 4.
In determining whether seizure and search were unreasonable, court asks whether officer's action was justified at its inception, and
whether it was reasonably related in scope to circumstances which justified interference in first place. Const. art. 1, 18; U.S. Const.
amend. 4.
5. Automobiles.
Detention following traffic stop, and ensuing canine sniff, were reasonable in scope, where narcotics unit arrived on scene prior to
time that traffic citation was completed and stop was not unreasonably lengthy or unreasonably intrusive.
112 Nev. 833, 834 (1996) Gama v. State
that traffic citation was completed and stop was not unreasonably lengthy or unreasonably intrusive. Const. art. 1, 18; U.S. Const.
amend. 4.
Use of dog to sniff exterior of vehicle did not require consent, since sniff was not search. Const. art. 1, 18; U.S. Const.
amend. 4.
When dog alerted officers to presence of drugs in defendant's vehicle, officers had independent legal justification for searching
defendant's car, thereby obviating defendant's consent. Const. art. 1, 18; U.S. Const. amend. 4.
OPINION
Per Curiam:
Appellant Alfredo Bautista Gama (Gama) appeals the denial of his motion to suppress evidence of illegal drugs found in his car after a
search by Elko County, Nevada, law enforcement officers. Gama contends that the drug evidence is the tainted fruit of a pretextual traffic
stop and must, therefore, be excluded from his trial on drug possession charges. Alternatively, Gama contends that the drugs must be
suppressed because the seizure and search exceeded the scope of a traffic stop. Because the police had probable cause to stop Gama for
speeding, as well as other traffic-related infractions, we conclude that the district court correctly denied Gama's motion to suppress. We
reach this conclusion regardless of whether a reasonable officer would have stopped Gama's car in the absence of a motive to search the car
for drugs, noting that we overrule prior Nevada precedent in so holding.
FACTS
The underlying facts of this case are largely undisputed. On May 24, 1994, at 1:30 p.m., the Elko Combined Narcotics Unit notified
the Nevada Highway Patrol (NHP) that officers of the anti-drug unit were attempting to locate Gama's car. The anti-drug officers suspected
that Gama's car might contain illegal drugs, although there is no evidence in the record that the officers had probable cause for a stop.
During pre-shift briefing at NHP headquarters, NHP Trooper Michael Gyll was advised to watch for Gama's car.
At approximately 2:13 p.m., Trooper Gyll, who was traveling west on Interstate Highway 80, spotted Gama's red Chevrolet Camaro
heading east. According to Trooper Gyll, Gama's rate of speed was seventy-three miles-per-hour, eight miles-per-hour over the posted speed
limit of sixty-five miles-per-hour. Trooper Gyll testified that it is not common practice to stop a vehicle for driving
seventy-three miles-per-hour in a sixty-five miles-per-hour zone; therefore, he did not stop Gama at that time.
112 Nev. 833, 835 (1996) Gama v. State
Gyll testified that it is not common practice to stop a vehicle for driving seventy-three
miles-per-hour in a sixty-five miles-per-hour zone; therefore, he did not stop Gama at that
time. Nevertheless, because Gama's car had been described to Trooper Gyll as possibly
carrying illegal drugs, he turned and began following Gama's car in order to try to gain
probable cause for a stop. Trooper Gyll also immediately notified Elko dispatch that he had
spotted Gama's car and requested that the Elko Combined Narcotics Unit be notified.
Trooper Gyll closely followed Gama's car for some time before observing Gama,
distracted by the presence of the patrol car in his rear-view mirror, nearly rear-end another
vehicle. Trooper Gyll then observed Gama speeding through a forty-five miles-per-hour
construction zone at fifty-six miles-per-hour. Although other drivers travelled through the
forty-five miles-per-hour construction zone at fifty-six miles-per-hour, they were neither
stopped nor cited. Finally, fifteen miles after first spotting Gama, Trooper Gyll stopped
Gama.
Trooper Gyll was soon joined by several anti-drug officers, including officers of the Elko
Combined Narcotics Unit. Trooper Gyll had the four occupants of Gama's car exit the vehicle
and cited Gama for speeding in a construction zone, following too closely, and not wearing a
seat belt. While Trooper Gyll was writing the citation, Elko County Deputy Sheriff Richeson
walked Cleo, a narcotics-trained dog, around the outside of Gama's car to sniff for drugs.
Deputy Richeson testified that Cleo alerted, indicating the presence of drugs in Gama's car.
Gama's car was then searched, and a nylon bag containing illegal drugs and paperwork was
discovered in the right-side speaker compartment in the luggage area behind the rear
passenger seat. Gama and the other occupants of the vehicle were taken into custody and
transported to the Elko County jail.
Gama was charged with possession of a controlled substance for sale, a felony under NRS
453.337.
1
Following a preliminary hearing, Gama moved to suppress the evidence found
during the search of his car. Following a hearing on the motion to suppress in which both
sides were given the opportunity to present additional evidence, the district court denied
Gama's motion. Gama then entered a guilty plea in which he reserved the right to bring the
present appeal challenging the denial of his motion to suppress. On January 24, 1995, Gama
was sentenced to serve five years in the Nevada State Prison.
__________

1
Gama was charged with possession of 507 gramsapproximately one poundof marijuana.
112 Nev. 833, 836 (1996) Gama v. State
DISCUSSION
Whether the evidence is the fruit of a pretextual stop
[Headnote 1]
Gama contends that the traffic stop was merely a pretext to search his car for drugs and,
therefore, violated the Fourth Amendment of the United States Constitution and article I,
section 18, of the Nevada Constitution, each of which protects against unreasonable searches
and seizures.
This court, recognizing a split of authority among the United States Circuit Courts of
Appeals, recently announced that it would follow the Ninth, Tenth, and Eleventh Circuits in
applying the so-called would have test to cases involving alleged pretextual traffic stops.
See Alejandre v. State, 111 Nev. 1235, 1239, 903 P.2d 794, 796 (1995); see also Taylor v.
State, 111 Nev. 1253, 903 P.2d 805 (1995) (applying Alejandre). In Alejandre, this court,
applying the would have test, reversed and vacated the defendant's drug conviction. We
reasoned that, but for the improper purpose of searching defendant's truck for drugs, a
reasonable officer would not have made the stop.
2
Alejandre, 111 Nev. at 1240-41, 903 P.2d
at 797.
[Headnotes 2, 3]
However, in the time since this appeal was submitted, the United States Supreme Court
has held that a vehicle stop that is supported by probable cause to believe that the driver has
committed a traffic infraction is reasonable under the Fourth Amendment, even if a
reasonable officer would not have made the stop absent some purpose unrelated to traffic
enforcement. See Whren v. United States,
------
U.S.
------
, 116 S. Ct. 1769 (1996). The
bottom line, therefore, is that the could have test prevailed over the would have test. We
are thus constrained to overrule Alejandre and Taylor to the extent they require application of
the now-discredited would have test in resolving pretext claims under the Fourth
Amendment. Moreover, because we now conclude that the Nevada Constitution's search and
seizure clause provides no greater protection than that afforded under its federal
analogue, at least in the area of pretextual traffic stops, we now recognize the "could
have" test announced in Whren as the proper test under the Nevada Constitution as well.
__________

2
In Alejandre, a NHP trooper, after being told to develop probable cause to stop Alejandre's truck, stopped
Alejandre for twice crossing over the fog line (the white line on the right-hand side of the road) by about a tire
width. Alejandre, 111 Nev. at 1238, 903 P.2d at 795. In Taylor, NHP troopers, on their own initiative, stopped
Taylor with the intention of issuing a repair order for a burned-out brake light and also because Taylor's slow
rate of speed triggered the troopers' suspicion that Taylor might be intoxicated. After determining that Taylor
was driving on a suspended license, the troopers arrested him. An inventory search of Taylor's vehicle uncovered
illicit drugs. This court affirmed a drug conviction, concluding that any reasonable officer, absent suspicion of
an unrelated serious crime, would have pulled over Taylor's vehicle. Taylor, 111 Nev. at 1257, 903 P.2d at 808.
112 Nev. 833, 837 (1996) Gama v. State
clause provides no greater protection than that afforded under its federal analogue, at least in
the area of pretextual traffic stops, we now recognize the could have test announced in
Whren as the proper test under the Nevada Constitution as well.
3

In the present case, the district court ruled on Gama's motion to suppress prior to the filing
of this court's decision in Alejandre. Not having the benefit of our holding in Alejandre, the
district court applied the less-stringent could have formulation of the pretext rule. The
district court, therefore, applied the proper rule of law. Accordingly, as there is clearly
substantial evidence in the record to establish probable cause for a traffic stop, we conclude
that Gama's contention that he was subjected to a pretextual traffic stop is without merit.
Whether the seizure and search were unreasonable in scope.
[Headnotes 4, 5]
[I]n determining whether the seizure and search were unreasonable' our inquiry is a dual
onewhether the officer's action was justified at its inception, and whether it was reasonably
related in scope to the circumstances which justified the interference in the first place. Terry
v. State of Ohio, 392 U.S. 1, 19-20 (1968). Gama contends that the police had no legal
justification to detain him or to search his vehicle and that he should have been allowed to
proceed after the citation was written. We have already concluded that the seizure and search
were reasonable at their inception. We now address the issue of whether the conduct of the
officers was unreasonable in scope.
The district court found that the narcotics unit, including the drug dog, Cleo, arrived on the
scene prior to the time that the citation was completed. The district court also found no
evidence in the record to indicate that Trooper Gyll was dilatory in issuing the citation.
__________

3
We note that the United States Supreme Court did not directly refute the defendant's argument in Whren that
the use of vehicles is so heavily regulated as to create the opportunity, and thus the temptation, for police to use
traffic stops as a means of investigating other violations for which they lack grounds for a seizure. Instead, the
court reasoned that prior cases foreclose any argument that the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers involved and that the would have formulation is
plainly and indisputably driven by subjective determinations.
------
U.S. at
------
, 116 S. Ct. at 1774. We
therefore continue to have the same concerns we expressed in Alejandre regarding the use of minor traffic
infractions as a general law enforcement tool for investigating serious crimes. We fear that the practice may
result in substantial inconvenience and annoyance for many otherwise law-abiding Nevadans. Nevertheless, in
light of Whren, we conclude that Nevada motorists must look either to constitutional provisions other than those
prohibiting unreasonable searches and seizures or to the Nevada Legislature if they desire to afford themselves
greater protection against pretextual traffic stops.
112 Nev. 833, 838 (1996) Gama v. State
the citation. Finally, the district court found that the sniff of the vehicle was not a search
for Fourth Amendment purposes and, because the sniff was conducted while Gama was
lawfully detained for the traffic violations, did not constitute a seizure. See State v. Barker,
850 P.2d 885, 891 (Kan. 1993) (use of a dog to sniff the exterior of a vehicle is not a search
for the purposes of the Fourth Amendment); see also United States v. Place, 462 U.S. 696
(1983) (use of drug dog to sniff defendant's luggage at airport not search).
[Headnotes 6, 7]
The district court's order makes it clear that the stop was neither unreasonably lengthy nor
unreasonably intrusive for a traffic stop. We have reviewed the record and conclude that the
district court's findings are supported by substantial evidence. Accordingly, Gama's
contention that the scope of his detention was unreasonable in light of the legal justification
for the stop is without merit.
4

CONCLUSION
We conclude that the stop was supported by probable cause to believe that Gama had
violated various Nevada traffic laws. We further conclude that the stop was reasonably
related in scope to the circumstances which justified the interference in the first place.
Finding no error in the order denying Gama's motion to suppress, we affirm the district court's
judgment of conviction.
____________
112 Nev. 838, 838 (1996) Mazzan v. Warden
JOHN F. MAZZAN, Appellant, v. WARDEN, Nevada State Prison, HAROL WHITLEY,
Respondent.
No. 26985
July 22, 1996 921 P.2d 920
Appeal from an order dismissing a post-conviction petition for writ of habeas corpus. First
Judicial District Court, Carson City; Michael E. Fondi, Judge.
Following affirmance of his murder conviction, petitioner sought post-conviction habeas
relief.
__________

4
Gama further argues that the court erred in finding that he consented to allow the dog to sniff the exterior of
the Camaro. We conclude that this contention is also without merit. As noted in the statement of facts, above,
two officers testified that Gama consented to the search. In any case, the sniff of the exterior of Gama's car
was not a search and thus required no consent. Furthermore, once the dog alerted to the presence of drugs in
Gama's car, the officers had an independent legal justification for searching Gama's car, thereby obviating
Gama's consent.
sought post-conviction habeas relief. Mazzan v. State, 103 Nev. 69, 733 P.2d 850 (1987). The
district court dismissed the petition. Petitioner appealed. The supreme court held that: (1)
petitioner failed to demonstrate cause for failure to raise new claims earlier, and (2) petitioner
failed to demonstrate cause for presenting old claims again.
Affirmed.
James J. Jackson, State Public Defender, Timothy P. O'Toole, Appellate Deputy Public
Frankie Sue Del Papa, Attorney General, Robert E. Wieland, Deputy Attorney General,
1. Habeas Corpus.
In proceeding for post-conviction habeas relief, state must raise waiver of claims or abuse of writ as affirmative defenses before
petitioner is required to show cause for failure to present grounds in earlier proceeding and actual prejudice. NRS 34.810(1)(b).
2. Habeas Corpus.
Since petitioner has no constitutional or statutory right to counsel in post-conviction proceedings, ineffective assistance of counsel
cannot constitute cause for successive post-conviction petition. U.S. Const. amend. 6; NRS 34.810(1)(b).
3. Habeas Corpus.
To establish good cause to excuse procedural default, defendant must demonstrate that some impediment external to defense
prevented him from complying with procedural rule that has been violated. NRS 34.810(1)(b).
4. Habeas Corpus.
Despite procedural default, judicial review of habeas petitioner's claims for relief is required if petitioner demonstrates that failure
to consider them would result in fundamental miscarriage of justice.
5. Courts.
Doctrine of law of the case precluded reconsideration of claims that had already been decided on the merits in earlier habeas
corpus proceedings.
6. Habeas Corpus.
Claims that had already been decided on the merits in earlier habeas corpus proceedings were barred, absent showing of good
cause for presenting claims again. NRS 34.810(2), (3).
OPINION
Per Curiam:
Appellant John F. Mazzan filed a petition for post-conviction habeas relief with the district court. The district court dismissed the
habeas petition, concluding that Mazzan had failed to show cause for not presenting his grounds for habeas relief in earlier
proceedings.
cause for not presenting his grounds for habeas relief in earlier proceedings. We affirm the
dismissal.
FACTS
Mazzan was convicted of murder in 1979 in the Second Judicial District Court and
sentenced to death. The facts relating to the crime are set forth in Mazzan v. State, 100 Nev.
74, 675 P.2d 409 (1984) (Mazzan I) and need not be repeated here. In 1984, this court
affirmed Mazzan's conviction on appeal, but reversed his sentence. After a second penalty
hearing, Mazzan again received the death penalty, he again appealed, and in 1987 this court
affirmed the sentence. Mazzan v. State, 103 Nev. 69, 733 P.2d 850 (1987) (Mazzan II).
Mazzan next petitioned for post-conviction relief in May 1987, alleging ineffective assistance
of counsel at trial, on appeal, and during the second penalty phase. The district court held an
evidentiary hearing before denying the petition, and in 1989 this court affirmed the denial.
Mazzan v. State, 105 Nev. 745, 783 P.2d 430 (1989) (Mazzan III).
Prior to our third opinion in this case, Mazzan had filed for post-conviction habeas relief
with the First Judicial District Court in June 1988. That court summarily denied the petition,
concluding that no justification for a successive petition was shown and that Mazzan had no
right to effective assistance of post-conviction counsel. Mazzan appealed. This court
remanded the matter to the district court for reconsideration in light of Phelps v. Director,
Prisons, 104 Nev. 656, 764 P.2d 1303 (1988). Phelps held that the State must raise waiver or
abuse of the writ as affirmative defenses before a petitioner is required to show cause for
failure to raise claims earlier. Id. at 659, 764 P.2d at 1305.
Mazzan was sent to Ely State Prison, and he moved in March 1992 to change venue to the
Seventh Judicial District Court. In July 1992, the district court denied the motion, and
Mazzan appealed. This court dismissed the appeal for lack of jurisdiction, concluding that
NRS 34.575 evinces the legislature's intent to exclude interlocutory appeals during
post-conviction habeas proceedings. Mazzan v. State, 109 Nev. 1067, 1074, 863 P.2d 1035,
1039 (1993) (Mazzan IV). This court expressed no opinion on the propriety of the denial of
Mazzan's motion to change venue. Id. at 1075 n.4, 863 P.2d at 1040 n.4.
Mazzan filed a supplement to his habeas petition in June 1994. The State moved to
dismiss, arguing that claims of ineffective assistance of post-conviction counsel are not
cognizable. In February 1995, the district court dismissed the petition without an evidentiary
hearing. It concluded that ineffective assistance of post-conviction counsel cannot constitute
cause for failure to present grounds for relief in an earlier proceeding, as required by NRS
34.S10.
present grounds for relief in an earlier proceeding, as required by NRS 34.810.
DISCUSSION
[Headnote 1]
A court must dismiss a petition for post-conviction habeas relief if the grounds for the
petition could have been raised in an earlier proceeding unless the court finds both cause for
the failure to present the grounds and actual prejudice to the petitioner. NRS 34.810(1)(b).
The State must raise waiver of claims or abuse of the writ as affirmative defenses before the
petitioner is required to show this cause and prejudice. Phelps, 104 Nev. at 659, 764 P.2d at
1305.
[Headnotes 2, 3]
Mazzan alleges as cause for the failure to raise his present grounds for relief earlier that his
post-conviction counsel refused to raise claims of ineffective assistance by trial and appellate
counsel. The district court dismissed Mazzan's petition for post-conviction habeas relief,
concluding that ineffective assistance of post-conviction counsel cannot constitute cause for a
successive post-conviction petition. This court has reached the same conclusion. McKague v.
Warden, 112 Nev. 159, 912 P.2d 255 (1996).
In McKague, we determined that a petitioner has no constitutional or statutory right to
counsel in post-conviction proceedings
1
and therefore a claim of ineffective assistance of
post-conviction counsel cannot constitute cause for filing a successive petition. Id. at 164,
912 P.2d at 258. To establish good cause to excuse a procedural default, a defendant must
demonstrate that some impediment external to the defense prevented him from complying
with the procedural rule that has been violated. Lozada v. State, 110 Nev. 349, 353, 871 P.2d
944, 946 (1994). In McKague, we implicitly adopted the reasoning which the United States
Supreme Court has applied to federal habeas proceedings. The Supreme Court has concluded:
if the procedural default is the result of ineffective assistance of counsel, the Sixth
Amendment itself requires that responsibility for the default be imputed to the State.
477 U.S., at 4SS.
__________

1
NRS 34.820(1)(a) now provides such a statutory right in certain cases: If a petitioner has been sentenced to
death and the petition is the first one challenging the validity of the petitioner's conviction or sentence, the court
shall: (a) Appoint counsel to represent the petitioner. However, this provision does not apply to post-conviction
proceedings commenced before January 1, 1993. 1991 Nev. Stat., ch. 44, 20 at 87, 32 at 92. Mazzan first
filed for post-conviction relief in May 1987.
U.S., at 488. In other words, it is not the gravity of the attorney's error that matters, but
that it constitutes a violation of petitioner's right to counsel, so that the error must be
seen as an external factor, i.e., imputed to the State. . . .
Where a petitioner defaults a claim as a result of the denial of the right to effective
assistance of counsel, the State, which is responsible for the denial as a constitutional
matter, must bear the cost of any resulting default and the harm to state interests that
federal habeas review entails. A different allocation of costs is appropriate in those
circumstances where the State has no responsibility to ensure that the petitioner was
represented by competent counsel. As between the State and the petitioner, it is the
petitioner who must bear the burden of a failure to follow state procedural rules.
Coleman v. Thompson, 501 U.S. 722, 754 (1991).
[Headnote 4]
Thus, by alleging that his post-conviction counsel was ineffective, Mazzan has failed to
demonstrate cause for his failure to raise his present claims for post-conviction relief earlier.
Judicial review of Mazzan's claims for relief would nevertheless be required if Mazzan
demonstrated that failure to consider them would result in a fundamental miscarriage of
justice. See id. at 750 (holding that where a state prisoner defaults federal claims in state
court, federal habeas review is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of justice);
Murray v. Carrier, 477 U.S. 478, 496 (1986) (where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may grant
the writ even in the absence of a showing of cause for the procedural default); see also Engle
v. Isaac, 456 U.S. 107, 135 (1982); Harris v. Reed, 489 U.S. 255, 262 (1989). However, after
scrutiny of the appellate briefs and the record in this case, we conclude that Mazzan has not
demonstrated that a fundamental miscarriage of justice will result from failure to consider his
claims.
[Headnotes 5, 6]
A few of the grounds for relief raised in Mazzan's instant petition were already decided on
the merits in earlier proceedings. A court must dismiss a successive habeas petition in regard
to such grounds, unless the petitioner proves specific facts that demonstrate good cause for
presenting the claims again and actual prejudice. NRS 34.810(2) and (3). The doctrine of the
law of the case also precludes reconsideration of these claims.
of the case also precludes reconsideration of these claims. Hall v. State, 91 Nev. 314, 315-16,
535 P.2d 797, 799 (1975). Mazzan has not shown good cause for presenting these claims
again; therefore, they are also barred.
2

CONCLUSION
Mazzan has failed to demonstrate cause for his failure to raise his new claims for
post-conviction relief earlier or for his presentation of old claims again. Mazzan has not
demonstrated that a fundamental miscarriage of justice will result from failure to consider his
claims. Therefore, we affirm the district court's order dismissing Mazzan's petition for
post-conviction habeas relief.
____________
112 Nev. 843, 843 (1996) Doleman v. State
MARVIN LEWIS DOLEMAN, aka MARVIN LOUIS DOLEMAN, Appellant, v. THE
No. 27117
July 22, 1996 921 P.2d 278
Appeal from an order of the district court denying a petition for post-conviction relief.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
After his convictions for murder and sentence of death were affirmed, 107 Nev. 409
__________

2
Given our determination that Mazzan's petition for habeas relief is procedurally barred, we need not decide
whether the district court erred in denying Mazzan's motion for a change of venue. We note, however, that the
State incorrectly argued that this court already determined that this issue is not appealable in Mazzan v. State,
109 Nev. 1067, 863 P.2d 1035 (1993) (Mazzan IV). Rather, we concluded that NRS 34.575 evinces the
legislature's intent to exclude interlocutory appeals during post-conviction habeas proceedings. Id. at 1074, 863
P.2d at 1039 (emphasis added). We did not hold that the denial of a change of venue motion is not cognizable on
appeal from an order dismissing a petition for post-conviction habeas relief. Cf. NRS 177.045 (upon appeal from
a conviction, decisions in intermediate orders or proceedings may be reviewed). We also expressed no opinion
on the propriety of the denial of Mazzan's motion to change venue. Mazzan IV, 109 Nev. at 1075 n.4, 863 P.2d
at 1040 n.4. However, we note the following law for the future benefit of the district courts in deciding such
motions. Article 6, Section 6 of the Nevada State Constitution provides, in relevant part, that district courts
have power to issue writs of Habeas Corpus on petition by, or on behalf of any person who is held in actual
custody in their respective districts, or who has suffered a criminal conviction in their respective districts and has
not completed the sentence imposed pursuant to the judgment of conviction. NRS 34.738(1) provides: A
petition that challenges the validity of a conviction or sentence must be filed with the clerk of the district court
for the county in which the conviction occurred.
affirmed, 107 Nev. 409, 812 P.2d 1287 (1991), defendant sought post-conviction relief. The
district court denied relief, and defendant appealed. The supreme court held that counsel's
failure to contact and present witnesses, including family members and employees of juvenile
home, at penalty hearing constituted ineffective assistance of counsel.
Theodore J. Manos & Associates and Laura L. Melia, Las Vegas, for Appellant.
James Tufteland, Chief Deputy, and Darin Savage, Deputy, Clark County, for Respondent.
1. Criminal Law.
In order to satisfy objective standard of reasonableness, trial counsel must make sufficient inquiry into the information that is
pertinent to his client's case; once reasonable inquiry is made, counsel should make reasonable strategy decision on how to proceed
with his client's defense. U.S. Const. amend. 6.
2. Criminal Law.
Strategy decision, such as who should be called as a witness, is tactical decision that is virtually unchallengeable absent
extraordinary circumstances. U.S. Const. amend. 6.
3. Criminal Law.
Counsel's failure to contact and present defendant's mother and sister as witnesses at penalty hearing constituted ineffective
assistance of counsel, even though mother did not have a telephone and defendant did not know where she or his sister were before his
trial. Sister had a telephone and knew how to locate the mother. Reasonable investigation by counsel could have located the sister and
mother. U.S. Const. amend. 6.
4. Criminal Law.
Without taking reasonable steps to investigate defendant's family, counsel could not discover whether their testimony would
benefit defendant at penalty hearing and, without that knowledge, counsel could not make reasonable tactical decision whether family
members should testify at the hearing. U.S. Const. amend. 6.
5. Criminal Law.
Failure of counsel to introduce defendant's family members as witnesses at penalty hearing prejudiced defendant, even though
evidence of his turbulent childhood was presented through school records, in view of impact that live testimony from family members
could have had on jury. Knowledge that defendant's family had regarding his difficult childhood and multiple foster homes could have
effectively humanized him in the eyes of the jury and, considering his role as aider and abetter in the murders, testimony from family
could have influenced jury's death eligibility decision. U.S. Const. amend. 6.
6. Criminal Law.
Although individuals with whom defense counsel spoke were familiar with other crimes that defendant committed and could
testify at penalty hearing only with the permission of juvenile home and counsel concluded that any employee of home would be
difficult to procure as a witness or would be potentially dangerous as a witness, counsel did not reasonably investigate potential
testimony from witnesses where counsel could not remember with whom he talked at the home and apparently failed to locate
witnesses who were located in preparation for post-conviction hearing. Without locating many of the people at the home who knew
defendant, counsel could not make reasonable decision about whether their testimony would be beneficial and, if employees would
have been difficult to procure as witnesses for the penalty hearing, counsel could have required their presence through subpoenas. U.S.
Const. amend. 6.
7. Criminal Law.
Counsel's failure to introduce testimony from witnesses from juvenile home at penalty hearing prejudiced defendant where
testimony would have illustrated that defendant flourished in structured environments and was able to adhere to institutional rules and
may have shown that he could be easily influenced by others, thereby explaining his role as aider and abetter in shooting. Introduction
of records from the home did not sufficiently convey to the jury what live witnesses who knew defendant could have conveyed.
8. Criminal Law.
Jury's finding of mitigating circumstances in capital penalty hearing does not have to be unanimous.
OPINION
Per Curiam:
The crime underlying this appeal was previously considered by this court in Doleman v. State, 107 Nev. 409, 812 P.2d 1287 (1991).
Appellant Marvin Lewis Doleman, aka Marvin Louis Doleman, (Doleman) was charged with murder with the use of a deadly weapon,
attempted murder with the use of a deadly weapon, and two counts of robbery with the use of a deadly weapon. A jury found Doleman
guilty of each charge. Doleman was sentenced to death for the murder conviction and 100 years in prison for the other charges. After this
court upheld Doleman's conviction and sentence, Doleman filed a petition for post-conviction relief. After an evidentiary hearing, the
district court denied Doleman's petition, ruling that Doleman received effective assistance of counsel during his trial and his direct appeal.
In this appeal, Doleman claims that the district court's ruling was erroneous because his trial counsel failed to (1) call certain witnesses
during the penalty phase of the trial, (2) object to the malice instruction given to the jury, and (3) object to instructions regarding the jury's
consideration of mitigating circumstances in its death eligibility decision.
Based on the reasoning in this opinion, we conclude that the failure of Doleman's trial
counsel to reasonably investigate the potential testimony of certain witnesses at Doleman's
penalty hearing constituted ineffective assistance of counsel. Therefore, it is not necessary to
review Doleman's other contentions in this opinion. Accordingly, we reverse Doleman's death
sentence and remand this case for a second penalty hearing.
FACTS
In early 1990, two cab drivers were shot in the head by two young men in Las Vegas. On
January 9, 1990, the first cab driver was shot three times but survived. On January 19, 1990,
the second cab driver was shot twice and died the following day. Based on information
received from an informant and obtained during a search, the police arrested Doleman and
Frederick Payne (Payne) for the shootings.
The trial testimony of the first cab driver and an eye-witness to that shooting revealed that
when the shooting occurred, Payne and another man were seated in the back seat of the cab.
No definitive evidence was introduced to show which individual actually shot the first cab
driver. As to the second shooting, trial testimony showed that when the shooting occurred,
Doleman was knocking on a second floor motel room door. The woman in the motel room
did not answer Doleman's knocks because she did not recognize him. She later saw another
young man, presumably Payne, standing next to a cab and yelling to Doleman. Doleman and
the other man ran from the scene. The second cab driver was later found wounded in his cab
at that motel.
Based on these facts, the prosecution's theory at trial was that Doleman aided and abetted
Payne in the perpetration of the two shootings. Doleman's defense theory was that he was not
involved in either shooting, but was a mere spectator. The jury found Doleman guilty of all
counts for which he was charged. On May 10, 1990, a penalty hearing was conducted to
sentence Doleman. During the hearing, the State called five witnesses and Doleman called
one witness, his former girlfriend. Following the hearing, the jury returned a verdict of death.
This court upheld Doleman's conviction and sentence. Doleman then filed a petition for
post-conviction relief. Doleman argued that he received ineffective assistance from counsel
during his trial. Doleman alleged that trial counsel failed to call witnesses during the penalty
phase of the trial who would have provided mitigating circumstances that the jury should
have considered in its death eligibility decision. Also, Doleman argued that trial counsel
failed to object to the malice instruction during the guilt phase of the trial. Further, Doleman
argued that trial counsel failed to object to the jury instruction regarding the consideration
of mitigating circumstances during the penalty phase of the trial.
counsel failed to object to the jury instruction regarding the consideration of mitigating
circumstances during the penalty phase of the trial.
In July 1994, the district court conducted a post-conviction evidentiary hearing. Doleman
called six witnesses: his trial counsel, his appellate counsel on direct appeal, two teachers
from a school which he attended, his mother, and his oldest sister. The State called the
investigator who was hired by Doleman's trial counsel to locate evidence for Doleman's
defense.
The district court concluded that trial counsel's trial preparation did not fall below the
objective standard of reasonableness. The district court classified the decisions made by
Doleman's trial counsel during Doleman's penalty hearing as tactical decisions that are
virtually unassailable. Specifically, the district court concluded that trial counsel's decision
not to present witness testimony from Doleman's teachers or Doleman's family members was
reasonable. According to the district court, the teachers could not contradict testimony from
the murder victim's girlfriend that the wristwatch found in Doleman's possessions belonged to
that victim. As to the family members, the district court noted that Doleman was unaware of
the location of those family members at the time of trial and those family members had
minimal contact with Doleman during his formative years.
Also, the district court ruled that trial counsel's failure to raise an objection to the malice
instruction was a reasonable tactical decision. Further, the district court concluded that
nothing in the trial record indicated that the jury was confused about how mitigating
circumstances should be considered.
DISCUSSION
This court has adopted the reasonably effective assistance standard to govern ineffective
assistance of counsel cases. Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505
(1984). The reasonably effective assistance standard was articulated in Strickland v.
Washington, 466 U.S. 668 (1984), and described by this court in State v. Love, 109 Nev.
1136, 865 P.2d 322 (1993). In Love, this court stated:
Under this two-prong test, a defendant who challenges the adequacy of his or her
counsel's representation must show (1) that counsel's performance was deficient and (2)
that the defendant was prejudiced by this deficiency.
Deficient assistance requires a showing that trial counsel's representation of the
defendant fell below an objective standard of reasonableness. If the defendant
establishes that counsel's performance was deficient, the defendant must next show
that, but for counsel's errors, the result of the trial probably would have been
different.
next show that, but for counsel's errors, the result of the trial probably would have been
different.
Id. at 1138, 865 P.2d at 323 (citing Strickland, 466 U.S. at 687-94).
[Headnotes 1, 2]
In order to satisfy the objective standard of reasonableness, trial counsel must make a
sufficient inquiry into the information that is pertinent to his client's case. Strickland, 466
U.S. at 690-91. Once a reasonable inquiry is made, counsel should make a reasonable strategy
decision on how to proceed with his client's defense. Id. A strategy decision, such as who
should be called as a witness, is a tactical decision that is virtually unchallengeable absent
extraordinary circumstances. Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180 (1990)
(citing Strickland, 466 U.S. at 691); State v. Meeker, 693 P.2d 911, 917 (Ariz. 1984).
Testimony of Doleman's family members
[Headnotes 3, 4]
At the post-conviction evidentiary hearing, Doleman's mother and sister stated that they
could have testified during Doleman's penalty hearing, but that they were never contacted by
trial counsel. Doleman's mother would have told the jury that during Doleman's childhood,
she was a prostitute and drug addict, Doleman was physically abused, and Doleman was often
abandoned. Also, Doleman's mother would have described the series of foster homes and
reform schools that Doleman attended from the age of four. Doleman's sister was prepared to
give similar testimony.
We conclude that trial counsel's failure to contact and present Doleman's mother and sister
as witnesses at Doleman's penalty hearing constituted ineffective assistance of counsel.
According to Doleman's mother, she did not have a phone, and Doleman did not know where
she or his sister were before his trial. However, Doleman's sister had a telephone and knew
how to locate Doleman's mother. We conclude that a reasonable investigation by Doleman's
trial counsel could have located Doleman's sister and mother. Without taking reasonable steps
to investigate Doleman's family, Doleman's trial counsel could not discover whether their
testimony would benefit his client. Without that knowledge, we conclude that trial counsel
could not make a reasonable tactical decision whether Doleman's family members should
testify at the penalty hearing. See Strickland, 466 U.S. at 691-92.
[Headnote 5]
Further, we conclude that the failure of trial counsel to introduce Doleman's family
members as witnesses at the penalty hearing prejudiced Doleman.
duce Doleman's family members as witnesses at the penalty hearing prejudiced Doleman.
While evidence of Doleman's turbulent childhood was presented through his Boy's Town
records, we cannot underestimate the impact that live testimony from Doleman's family
members could have had on the jury. The knowledge that Doleman's family had regarding
Doleman's difficult childhood and multiple foster homes could have effectively humanized
Doleman in the eyes of the jury. Further, considering Doleman's role as an aider and abetter in
the murders underlying this case, testimony from Doleman's family could have influenced the
jury's death eligibility decision. See Love, 109 Nev. at 1140, 865 P.2d at 324.
Testimony of Boy's Town employees
[Headnote 6]
According to trial counsel, Boy's Town, the high school attended by Doleman, was
contacted in preparation for Doleman's trial to locate witnesses who could verify whether a
Seiko watch found in Doleman's possessions was a gift from Boy's Town. The Seiko watch
had been identified by the second victim's girlfriend as the watch she gave to that victim as a
gift. Trial counsel also attempted to contact individuals who could give positive testimony
regarding Doleman. However, trial counsel testified at the post-conviction evidentiary
hearing that the individuals he spoke with were familiar with other crimes that Doleman
committed with Payne and could testify at Doleman's penalty hearing only with the
permission of Boy's Town. Based on these conversations, Doleman's trial counsel concluded
that any Boy's Town employee would be difficult to procure as a witness or would be
potentially dangerous as a witness.
At the post-conviction evidentiary hearing, Doleman elicited testimony from teachers at
Boy's Town. Janet Horan, Doleman's instructor at Boy's Town, testified that she remembered
that Doleman excelled at athletics, was an extremely good role model, and received the
highest award given to students at Boy's Town. Eugene Horan, Doleman's coach at Boy's
Town, testified that Doleman was a leader and could have been the mayor of Boy's Town
had he been encouraged to do so. Both of the Horans testified that they would have testified
at the penalty phase of Doleman's trial if Boy's Town allowed them to, but they were never
contacted by trial counsel. Also, Doleman presented evidence that four other teachers at Boy's
Town would have testified that Doleman displayed good character while enrolled at Boy's
Town.
We conclude that trial counsel did not reasonably investigate the potential testimony from
witnesses at Boy's Town. At the post-conviction hearing, trial counsel could not remember
with whom he talked at Boy's Town.
post-conviction hearing, trial counsel could not remember with whom he talked at Boy's
Town. He apparently failed to locate the Horans or the other four witnesses who were located
in preparation for the post-conviction hearing. Without locating many of the people at Boy's
Town who knew Doleman, trial counsel could not make a reasonable decision about whether
their testimony would be beneficial. Further, if the Boy's Town employees would have been
difficult to procure as witnesses for the penalty hearing, trial counsel could have required
their presence through subpoenas. See Strickland, 466 U.S. at 691-92.
[Headnote 7]
Further, we conclude that the failure to introduce the testimony from the Horans and other
Boy's Town employees prejudiced Doleman. The testimony would have illustrated that
Doleman flourished in structured environments and was able to adhere to institutional rules.
Also, the testimony may have displayed that Doleman can be easily influenced by others,
thereby explaining his role as an aider and abetter in the cab driver shooting. Further, the
introduction of the records from Boy's Town did not sufficiently convey to the jury what live
witnesses who knew Doleman could have conveyed. See Love, 109 Nev. at 1140, 865 P.2d at
324.
Jury's consideration of mitigating circumstances
[Headnote 8]
Based upon our conclusion that a second penalty hearing is merited in this case, we need
not address this issue in this opinion. However, it is clear from the precedent of the United
States Supreme Court that a jury's finding of mitigating circumstances in a capital penalty
hearing does not have to be unanimous. See Mills v. Maryland, 486 U.S. 367, 374-82 (1988).
Further, this issue was recently raised and considered in Jimenez v. State, 112 Nev. 610, 918
P.2d 687 (1996). Accordingly, we conclude that Doleman's contention is without merit.
CONCLUSION
We conclude that trial counsel's failure to present certain witnesses during Doleman's
penalty hearing constituted ineffective assistance of counsel. Accordingly, Doleman's death
sentence is reversed, and this case is remanded to the district court for a second penalty
hearing.
____________
112 Nev. 851, 851 (1996) State, Dep't Indus. Rel. v. Albanese
THE STATE OF NEVADA, DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION
OF INDUSTRIAL INSURANCE REGULATION, JAMES JEPPSON, in His
Capacity as Administrator of the DIVISION OF INDUSTRIAL INSURANCE
REGULATION, Appellants, v. VICTOR ALBANESE AND MARY ALBANESE,
dba MARVAL BUSINESS SERVICES, Respondents.
No. 27155
July 22, 1996 919 P.2d 1067
Appeal from decision, order and amended judgment on a complaint for declaratory relief
and issuance of an injunction, awarding attorney's fees and imposing contempt sanctions.
Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Business which processed subsequent injury fund claims for self-insured employers
brought motion for order for Department of Industrial Relations and others to show cause
why they should not be held in contempt for failing to comply with preliminary injunction
enjoining Department from refusing to process or accept for submission subsequent injury
fund claims filed by business. The district court imposed sanctions on Department for
deliberately misrepresenting its records availability and deliberately denying . . . claims.
Department appealed. The supreme court held that district court abused its discretion in
imposing those sanctions.
Reversed.
Aebi & McCarthy, Carson City, for Appellants.
Vargas & Bartlett and Michael P. Lindell, Reno, for Respondents.
Issue presented on appeal from imposition of sanctions is whether district court abused its discretion.
2. Contempt.
Sanction for civil contempt is characterized by court's desire to compensate contemnor's adversary for injuries which result from
noncompliance; however, award to opposing party is limited to that party's actual loss.
3. Injunction.
Imposing sanctions on Department of Industrial Relations for deliberately misrepresenting its records availability and
deliberately denying . . . claims was not within purview of district court's preliminary injunction enjoining Department from refusing
to process or accept for submission claims submitted by business which processed subsequent injury fund claims for
self-insured employers, and thus district court abused its discretion in imposing those sanctions.
quent injury fund claims for self-insured employers, and thus district court abused its discretion in imposing those sanctions.
OPINION
Per Curiam:
On August 11, 1993, respondents Victor Albanese and Mary Albanese (the Albaneses), doing business as Marval Business Services
(Marval), filed a complaint in the district court for declaratory relief against appellants State of Nevada, Department of Industrial
Relations (the Department), Division of Industrial Insurance Regulation (DIIR), and James Jeppson, in his capacity as Administrator of
DIIR. The complaint sought a declaratory judgment that Marval was discharged from securing a third-party administrator's license pursuant
to NRS 683A.385 to process subsequent injury fund claims on behalf of self-insured employers. In addition to attorney's fees and costs,
Marval's complaint also sought a declaratory judgment requiring DIIR to comply with certain statutes and regulations set forth in NRS and
NAC.
On August 13, 1993, the district court entered a temporary restraining order (TRO) directing appellants to refrain from refusing to
accept subsequent injury fund claims submitted by Marval on behalf of its clients. On January 3, 1994, the district court issued a
preliminary injunction which essentially incorporated the terms of the TRO.
On August 5, 1994, the Albaneses filed a motion for order to show cause requesting that appellants be required to appear before the
district court and show cause why they should not be held in contempt of court for failing to comply with the preliminary injunction. On
March 29, 1995, several months after a hearing was held on the motion, the district court entered its order holding appellants in contempt
and awarded the Albaneses their attorney's fees and costs.
After their motion for reconsideration was denied, appellants appealed, arguing that (1) the district court erred in determining that
appellants violated the preliminary injunction; and (2) the district court erred by awarding the Albaneses their attorney's fees and costs as
sanctions. We conclude that appellants' first argument has merit, and we reverse the district court's order which held that appellants had
violated the terms of the preliminary injunction. Accordingly, we also reverse the district court's sanction award. Because we have
concluded that appellants' first argument on appeal has merit, it is unnecessary for us to consider appellants' second argument in this
opinion.
FACTS
Marval operated a specialized business in the field of workers' compensation devoted
solely to the processing of subsequent injury fund claims for self-insured employers under
Chapter 616 of NRS and NAC. According to the Albaneses, before they formed Marval, they
met with several employees at DIIR regarding their intent to form a business which processed
subsequent injury fund claims for self-insured employers. The Albaneses allege that they
were assured by DIIR's employees that DIIR would not require Marval to obtain a third-party
administrator's license or object to Marval's plan to process subsequent injury fund claims on
behalf of self-insured employers.
1

On July 7, 1993, Jeppson wrote the Albaneses a letter explaining that Marval's requests for
reimbursement from the subsequent injury fund which had been submitted on behalf of
self-insured employers were being denied because Marval was not a licensed third-party
administrator. Specifically, relying upon NRS 616.299(2) (now NRS 616B.500), Jeppson
wrote that [a]cting on behalf of a self-insured employer concerning the preparation and
submission of subsequent injury claim files is beyond the scope of your current license. Only
the insurer or a properly licensed third-party administrator may perform any of the functions
required pursuant to NRS 616.427 or NRS 616.428.
On August 11, 1993, the Albaneses filed a complaint for declaratory relief against
appellants. On this same day, the Albaneses also filed an application for a TRO with the
district court. On August 13, 1993, after hearing oral arguments, the district court granted the
Albaneses' application for a TRO.
On September 16, 1993, after a lengthy hearing, the district court granted the Albaneses'
request for a preliminary injunction and denied appellants' motion to dismiss.
2
The
preliminary
__________

1
Pursuant to NRS 616A.335, Third-party administrator' means a person who is hired by an insurer to provide
administrative services for the insurer and manage claims. In order to operate as a third-party administrator, a
person must maintain an office in this state and obtain a valid certificate. See NRS 616B.503.

2
Although not essential for our resolution of the issues on appeal, the crux of the district court's reasoning for
granting Marval injunctive relief was that Marval was not a third-party administrator of claims as defined in
NRS 616.1165 (now NRS 616A.335). Specifically, the district court noted that Marval provided administrative
services to self-insured employers, but did not manage claims. Accordingly, because the definition of third-party
administrator required a person to administer and manage claims, the district court held that Marval was not
required to obtain a third-party administrator's license.
injunction provided that appellants were enjoined and restrained from the following:
(a) Refusing to accept notification from Marval of possible claims against the
subsequent injury fund without Marval having first obtained a third-party
administrator's license;
(b) Refusing to accept subsequent injury fund claims submitted by Marval on behalf of
self-insured employers without Marval having first obtained a third-party
administrator's license pursuant to NRS 683A.085;
(c) Refusing to timely process subsequent injury fund claims submitted by Marval on
behalf of self-insured employers without Marval having first obtained a third-party
administrator's license pursuant to NRS 683A.085;
(d) Refusing to forward to Marval, in a timely manner, checks made payable to
self-insured employers for accepted subsequent injury fund claims submitted by Marval
on behalf of its clients; and
(e) Interfering with contracts between Marval and its clients in the processing of subsequent
injury fund claims with the DIIR.
The preliminary injunction further provided that [d]isobedience of this Injunction is
punishable by contempt.
On August 5, 1994, after several of the Albaneses' claims for reimbursement had been
denied by appellants, the Albaneses filed a motion for an order to show cause. The motion
requested that appellants be ordered to appear before the district court to show cause why
they should not be held in contempt for failing to comply with the terms of the preliminary
injunction. The district court issued an order to show cause, and a hearing was held before the
district court on December 15, 1994.
On March 29, 1995, the district court issued its decision and order regarding the
Albaneses' motion to show cause. In its decision and order, the district court stated that [t]he
Department deliberately stalled, stonewalled and misrepresented its internal records and its
capacity to machine generate printouts of those records to both [the Albaneses'] counsel and
to the Court. Additionally, the district court found that the Department deliberately delayed
notifying Marval that it was denying all of its claims. Furthermore, the decision and order
stated that [t]he Court is further under the impression that somehow after the Temporary
Restraining Order went into effect that Marval claims which had initially been approved for
acceptance and payment were disallowed by supervisors which ultimately resulted in a denial
of all seven claims submitted by Marval for the Showboat Hotel."
Hotel. Also, the district court found that the Department set its course on deliberately
making all Marval claims jump through all the hoops, including requiring Marval to go
through administrative hearing and appeals processes.
Accordingly, the district court found
[t]he Department, through its prior Administrator [Jeppson], in contempt of Court for
deliberately misrepresenting its records availability, for deliberately denying all Marval
claims which required Marval to appeal the same and therefore ran up not only Marval's
costs and decreased its profits, but also ran up significant costs to the self-insured
employer. The Department has achieved its original goal of putting Marval out of the
business of reviewing claims for submission to the subsequent injury fund.
As a consequence of its contempt finding, by way of sanctions, the Court assesse[d] the
Department the sum of $9,252.67 as and for Marval's share of attorney's fees incurred in its
six successful appeals of [appellant's] denial of claims. The Court further award[ed] Marval
all of its attorney fees involved in its litigation . . . .
The district court subsequently denied appellants' motion for reconsideration and clarified
and amended its earlier judgment. In clarifying its earlier judgment, the district court stated:
It is hereby Ordered that [the Albaneses'] counsel prepare an Amended Judgment for
Sanctions which specifically and more clearly provides, in conformance with the
Court's original intent, that the sanctions amount in this contempt proceeding shall
include Marval's costs relative to both this action as well as its share of the six (6) IIRS
appeals, and that the sanctions imposed upon the [appellants] by the Court are
measured by reference to the amount of attorney's fees and costs expended by Marval
and that such judgment for sanctions is not therefore an award of attorney fees and
costs . . . .
The district court's amended judgment for sanctions awarded the Albaneses $63,314.49.
3

__________

3
This amount was based upon the sum of (a) $9,252.67 expended by Marval for Marval's share of costs and
attorney's fees incurred in its six appeals of the appellants' denial of the claims, plus (b) $48,299.50 expended by
Marval for Marval's attorney's fees in the prosecution of this case against the appellants, plus (c) $5,762.32
expended by Marval for its costs incurred in the prosecution of this case against appellants.
DISCUSSION
Standard of review
[Headnote 1]
In Young v. Johnny Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779 (1990), we
indicated that district judges are afforded broad discretion in imposing sanctions. The Young
court stated that this court will not reverse the particular sanctions imposed absent a showing
of abuse of discretion. Id. Accordingly, the issue presented in the instant case is whether the
district court abused its discretion by imposing the particular sanctions at issue on appellants.
Contempt sanctions in the case at bar
We have previously stated that [g]enerally, an order for civil contempt must be grounded
upon one's disobedience of an order that spells out the details of compliance in clear, specific
and unambiguous terms so that such person will readily know exactly what duties or
obligations are imposed on him.' Southwest Gas Corp. v. Flintkote Co., 99 Nev. 127, 131,
659 P.2d 861, 864 (1983) (quoting Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967)).
The United States Court of Appeals for the Ninth Circuit has succinctly stated the rationale
and scope of civil contempt sanctions. See In re Crystal Palace Gambling Hall, Inc., 817 F.2d
1361 (9th Cir. 1987). In In re Crystal Palace Gambling Hall, the court stated that
a sanction for [c]ivil contempt is characterized by the court's desire to . . . compensate
the contemnor's adversary for the injuries which result from the noncompliance.
Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983).
However, an award to an opposing party is limited to that party's actual loss. United
States v. United Mine Workers of America, 330 U.S. 258, 304 (1947); Shuffler v.
Heritage Bank, 702 F.2d 1141 (9th Cir. 1983); Falstaff, 702 F.2d at 779.
In re Crystal Palace Gambling Hall, 817 F.2d at 1366.
[Headnote 2]
In the present case, the district court imposed sanctions on appellants totalling $63,314.49.
According to the district court, these sanctions were imposed for appellants' contempt of the
district court's preliminary injunction order. Specifically, the district court found appellants
in contempt of Court for deliberately misrepresenting its records availability, [and] for
deliberately denying all Marval claims which required Marval to appeal the same and
therefore ran up not only Marval's costs and decreased its profits, but also ran up
significant costs to the self-insured employer."
the same and therefore ran up not only Marval's costs and decreased its profits, but also ran
up significant costs to the self-insured employer.
[Headnote 3]
The terms of the preliminary injunction at issue essentially provided that appellants could
not refuse to process or accept for submission subsequent injury claims submitted by Marval
on behalf of its clients. Imposing sanctions on appellants for deliberately misrepresenting its
records availability and deliberately denying Marval claims was not within the purview of
the district court's preliminary injunction. While we refrain from considering whether
appellants actually misrepresented their records availability or deliberately denied Marval's
claims, we conclude that appellants were sanctioned for actions which did not constitute
disobedience of the clear, specific and unambiguous terms of the preliminary injunction. See
Southwest Gas Corp., 99 Nev. at 131, 659 P.2d at 864. Therefore, we conclude that the
district court abused its discretion in imposing the sanctions at issue.
CONCLUSION
Having concluded that appellants' behavior did not violate the specific terms of the
preliminary injunction at issue, we need not consider appellants' remaining issue on appeal.
Accordingly, we reverse the $63,314.49 in sanctions levied by the district court in favor of
Marval pursuant to appellants' purported misrepresentation of their records availability and
deliberate denial of Marval's claims.
____________
112 Nev. 857, 857 (1996) Stahl v. State
MARK STAHL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24338
July 22, 1996 920 P.2d 1006
Appeals from an order of the district court denying a petition for post-conviction relief and
from an order denying a post-conviction motion to amend the judgment, enforce a sentencing
agreement, or allow appellant to withdraw his plea of guilty. Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
The supreme court, Shearing, J., held that where court initially agreed to impose three-year
sentence if defendant successfully completed treatment but, after defendant did well in
treatment program, defendant requested court to reconsider the three-year prison term
and to grant probation, and where court agreed to probation and imposed probation but
with an underlying sentence of ten years, neither state nor court violated terms of plea
agreement.
112 Nev. 857, 858 (1996) Stahl v. State
treatment program, defendant requested court to reconsider the three-year prison term and to
grant probation, and where court agreed to probation and imposed probation but with an
underlying sentence of ten years, neither state nor court violated terms of plea agreement.
Affirmed.
Richard J. Legarza, Reno, for Appellant.
Attorney, Washoe County, for Respondent.
1. Criminal Law.
Petitioners for post-conviction relief are not entitled to evidentiary hearings on allegations belied or repelled by the record.
2. Criminal Law.
When counsel effectively argued that, instead of serving term of three years in prison as court had initially agreed, defendant
wanted to try for probation and, after consulting with defendant numerous times, counsel sought and obtained probation rather than
prison time, counsel was not ineffective for thereafter failing to challenge the district court's decision to impose ten-year sentence but
grant probation.
3. Criminal Law.
Where court initially agreed to impose three-year sentence if defendant successfully completed treatment but, after defendant did
well in treatment program, defendant requested court to reconsider the three-year prison term and to grant probation, where state
interposed no objection to probation and expressly honored the terms of the initial plea bargain by arguing for underlying sentence of
five years, and where court agreed to probation and imposed probation but with an underlying sentence of ten years, neither state nor
court violated terms of plea agreement. When defendant requested a new deal and court granted that request, all prior deals were off
and court's initial promise of three-year term was superseded at defendant's request by court's subsequent agreement to grant probation.
OPINION
This is an appeal from an order of the district court denying a motion to amend a judgment of conviction, enforce a sentencing
agreement, or permit appellant to withdraw a guilty plea. This is also an appeal from an order of the district court denying appellant's
petition for post-conviction relief.
1

__________

1
Both appeals were docketed in this court within the same record on appeal. This court has considered and
resolved both appeals in this single proceeding.
112 Nev. 857, 859 (1996) Stahl v. State
On June 20, 1990, the state filed an information charging appellant Mark Stahl with one
count of grand larceny and one count of possession of stolen property. Pursuant to plea
negotiations with the state, appellant entered a plea of guilty to the charge of possession of
stolen property; the state agreed to dismiss the grand larceny charge and to argue at
sentencing that appellant should serve no more than five years in prison.
At sentencing, the district court continued the matter for three months until appellant had
an opportunity to complete a drug treatment program. The district court told appellant that if
he successfully completed the treatment program, the court would sentence him to serve a
maximum of three years in the Nevada State Prison. The district court warned, however, that
if appellant did not complete the treatment program, he would be sentenced to the maximum
ten-year term.
At the subsequent sentencing hearing, appellant's counsel presented evidence that
appellant had successfully completed a fourteen-day, in-patient drug treatment program and
had enrolled in another ninety-day treatment program. Appellant's counsel also requested the
district court to consider granting appellant probation, rather than the previously agreed upon
three-year term of incarceration.
Counsel argued:
When I first read about the sentencing this court imposed, that being that you would
defer it for treatment and then he would come back to three years, that is what Mr. Stahl
and I discussed and I said you know, Mark, this is, the Court has really sentenced you.
And he said, well, I want to try for probation. And I said let's do it. Let's try. And quite
frankly, I didn't do a thing. I didn't guide him. I did nothing. . . . In fact, you know, I
have had numerous conversations with him both in my office and on the phone. . . . It is
easy for him to do the time. He is familiar with that . . . . And I think that he has a
desire. It is sincere. He knows that supervision is not easy . . . . And I think he realizes
that probation is not easy and that it is a tougher row to hoe. But we are asking you to
think about that for Mr. Stahl.
(Emphasis added.)
The deputy district attorney indicated in response that although the State would have no
objection to the court granting appellant the privilege of probation, the State would request
that it be an extremely tight probation with an underlying sentence of five years . . . .
In view of appellant's apparent success in treatment, the district court granted appellant's
request for probation. Although the district court sentenced appellant to serve an
underlying term of ten years in the Nevada State Prison, the court suspended that
sentence, and placed appellant on probation for a period of five years.
112 Nev. 857, 860 (1996) Stahl v. State
district court sentenced appellant to serve an underlying term of ten years in the Nevada State
Prison, the court suspended that sentence, and placed appellant on probation for a period of
five years. The district court further ordered appellant to complete the ninety-day drug
treatment program and to pay restitution in the amount of $7,500.00.
The Department of Parole and Probation subsequently moved the district court to revoke
appellant's probation after appellant was arrested for being under the influence of a controlled
substance, driving under the influence, and hit and run. On February 13, 1992, the district
court entered an order formally revoking appellant's probation, and appellant began serving
the underlying ten-year prison sentence.
On March 23, 1992, appellant filed in the district court a proper person petition for
post-conviction relief. On May 27, 1992, counsel who had been appointed to represent
appellant in an appeal from the order revoking appellant's probation,
2
filed in the district
court a motion to amend the judgment or, in the alternative, to enforce the sentencing
agreement or, in the alternative, to withdraw the guilty plea. The motion requested the court
to correct the clerical error in the judgment of conviction entered on November 21, 1990, to
reflect a three (3) year sentence. Appellant suggested that, although the district judge had
originally intended to impose a three-year maximum sentence, the judge forgot about the
three-year sentence, and instead, imposed a ten-year term. Alternatively, the motion requested
that, if the district court had fully intended to impose a ten-year sentence, then the court
should nonetheless correct the judgment to reflect the lesser three-year term that the court
initially indicated would be imposed or permit appellant to withdraw his plea.
On June 30, 1992, the district court conducted a hearing at which appellant testified
regarding his understanding of the sentencing proceedings. On July 29, 1992, the district
court entered an order denying appellant's motion. Appellant filed a timely notice of appeal
from that order.
Thereafter, appellant filed in the district court an amended proper person petition for
post-conviction relief. Appellant also requested the district court to appoint new counsel to
represent him in that matter. On January 12, 1993, the district court entered an order directing
attorney Bruce Voorhees to examine the file, to interview appellant, and to render an honest
opinion to the court, as an officer of the court, as to whether there was any "material
substance" to appellant's petition.
__________

2
On July 28, 1992, this court entered an order granting appellant's motion for the voluntary dismissal of his
appeal from the order of the district court revoking probation. See Stahl v. State, Docket No. 23114 (Order
Dismissing Appeal, July 28, 1992).
112 Nev. 857, 861 (1996) Stahl v. State
was any material substance to appellant's petition.
3
Subsequently, after attorney Voorhees
filed his opinion, and without conducting an evidentiary hearing, the district court entered
an order denying appellant's petition. Appellant filed a timely notice of appeal from that order
as well. On May 5, 1993, the district court appointed new and different counsel to represent
appellant in this appeal.
Appellant first contends that the district court erred in denying his petition for
post-conviction relief without an evidentiary hearing. Appellant argues that his claim of
ineffective assistance of counsel at sentencing, based on his counsel's failure to challenge the
ten-year sentence pronounced by the district court, was sufficient to entitle him to an
evidentiary hearing. We disagree.
[Headnotes 1, 2]
Petitioners for post-conviction relief are not entitled to evidentiary hearings on allegations
belied or repelled by the record. In this case, the record reveals that, at the continued
sentencing hearing of November 21, 1990, appellant's counsel effectively argued that instead
of serving a term of three years in the Nevada State Prisonthe term that the district court
had initially agreed to imposeappellant wanted to try for probation. Thus, the record
reveals that, after consulting with appellant numerous times, and at appellant's direction,
counsel sought and obtained probation rather than prison time. The allegation that counsel
was ineffective for thereafter failing to challenge the district court's decision to grant
appellant probation is directly repelled by the record. Appellant was not entitled to an
evidentiary hearing on this or any other claim for relief raised in his petition. See Hargrove v.
State, 100 Nev. 498, 686 P.2d 222 (1984).
In the appeal from the order of the district court denying the motion to amend the
judgment, enforce the sentence, or withdraw the plea, appellant argues that the district court
promised him a three-year sentence if he successfully completed a drug treatment program.
Appellant maintains that, because there is no dispute regarding his successful completion of
the program, he is now entitled to specific enforcement of the district court's promise.4
Again, we disagree.
__________

3
Although neither appellant nor the state has specifically challenged the district court's appointment of attorney
Voorhees to render an advisory opinion, we wish to express our disapproval of this practice. Where a district
court entertains doubt regarding the material substance of a proper person petition for post-conviction relief
sufficient to warrant appointment of an attorney at state expense to examine the file, interview the petitioner, and
render an advisory opinion, the district court in our view would be better advised to appoint counsel to represent
the indigent petitioner and then proceed to adjudicate the matter in accordance with the traditional adversarial
processes of the court.
112 Nev. 857, 862 (1996) Stahl v. State
entitled to specific enforcement of the district court's promise.
4
Again, we disagree.
[Headnote 3]
It is true that the district court initially agreed to impose a three-year sentence if appellant
successfully completed treatment. The record discloses, however, that after appellant did well
in the treatment program, appellant requested the district court to reconsider the three-year
prison term, and to grant appellant probation, instead of imposing a three-year term of
incarceration. The state interposed no objection to probation and expressly honored the terms
of the initial plea bargain by arguing for an underlying sentence of five years. The district
court agreed to appellant's new request for probation, and imposed probation but with an
underlying sentence of ten years.
Under these circumstances, neither the state nor the district court violated the terms of the
plea agreement. Moreover, the district court did not breach its initial promise to sentence
appellant to a three-year prison term. Appellant requested a new deal when he requested
probation. When the district court granted that request, all prior deals were off.
In effect, appellant renegotiated the terms of the bargains he made with the prosecution
and the district court, and the district court's initial promise of a three-year term was
superceded at appellant's request by the district court's subsequent agreement to grant
appellant probation. The district court did not err in denying appellant's motion.
Accordingly, we affirm the orders of the district court.
Rose, J. with whom Springer, J., agrees, dissenting:
The majority concludes that when the district court granted appellant's request for
probation, all prior deals were off. In my view, however, a deal is a deal; appellant should
be entitled to specific enforcement of the district court's promise or he should be permitted to
withdraw his plea.
This court has consistently required the state's meticulous adherence to plea bargains, and
has not hesitated to reverse where the terms or the spirit of such agreements have been
disregarded. See Kluttz v. Warden, 99 Nev. 681, 683-84, 669 P.2d 244, 245-46 (1983) (the
state is held to the most meticulous standards of both promise and performance; violation
of the terms or the spirit of plea bargain requires reversal); see also Citti v. State, 107 Nev.
89, 807 P.2d 724 (1991); State v. Smith, 105 Nev. 293, 774 P.2d 1037 {19S9); Van Buskirk
v. State, 102 Nev. 241
__________

4
Of course, it appears from the record that appellant's success was not lasting but was merely temporary at best.
112 Nev. 857, 863 (1996) Stahl v. State
774 P.2d 1037 (1989); Van Buskirk v. State, 102 Nev. 241, 720 P.2d 1215 (1986).
Here, the district court did not meticulously honor its own promise to appellant. Nothing in
this record indicates that appellant was advised or understood that his request for probation
would supersede the district court's prior promise of a three-year sentence, or subject him to a
substantially longer underlying ten-year term of imprisonment. See, e.g., State v. Smith, 105
Nev. at 298-99, 774 P.2d at 1041 (where nothing in record indicated defendant was advised
that her guilty plea to first offense DUI might later be treated as second offense, original plea
agreement was properly enforced to require the conviction to be treated as first-offense in all
respects).
Therefore, this court should specifically enforce the spirit of the district court's bargain
with appellant, or remand this matter to the district court with instructions to permit appellant
to withdraw his renegotiated plea. See Citti v. State, 107 Nev. at 92, 807 P.2d at 726-27. At
the very least, this matter should be remanded for an evidentiary hearing on appellant's
amended post-conviction petition to ascertain whether appellant understood that he would
receive a substantially longer underlying sentence of ten years if his request for probation was
granted.
Accordingly, I respectfully dissent.
____________
112 Nev. 863, 863 (1996) Yllas v. State
MARCOS ANTONIO YLLAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24352
July 22, 1996 920 P.2d 1003
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
trafficking in a controlled substance. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
The supreme court held that defendant was denied a fair trial because the district court
permitted the state to impeach defense witness with evidence of sealed conviction.
Morgan D. Harris, Public Defender and Robert L. Miller, Deputy, Las Vegas, for
Appellant.
112 Nev. 863, 864 (1996) Yllas v. State
1. Witnesses.
Impeachment of defense witness with evidence of sealed conviction was unauthorized. NRS 179.285, 179.295(1), 453.3365.
2. Criminal Law.
Where records of criminal conviction are sealed by district court pursuant to specific statutory authority, that conviction may not
be disclosed in public proceeding such as criminal trial absent specific statutory authority providing for such disclosure. NRS 179.285,
179.295(1), 453.3365.
3. Witnesses.
Existence of independent record of sealed conviction does not legitimate use of that conviction to impeach witness in court of law.
NRS 179.285, 453.3365.
4. Criminal Law.
State's improper impeachment of defense witness with evidence of sealed conviction was not harmless, where, aside from
undercover police officer, witness was only witness that defendant called at trial, witness's testimony and credibility were crucial to
defendant's defenses, revelation of witness's sealed conviction for drug offense was devastating to her credibility, and witness was
unable to adequately explain her conviction due to her poor English language skills. NRS 179.285, 453.3365.
5. Criminal Law.
Defendant was not denied his right to trial within sixty days of arraignment, where defendant himself requested two continuances
and, being incarcerated on other charges, he was not prejudiced by delay in going to trial.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of trafficking in a controlled substance. The
district court sentenced appellant Marcos Antonio Yllas to serve ten years in the Nevada State Prison on each count, to be served
concurrently, and to pay $500 in restitution and a $50,000 fine for each count. Appellant contends that he was denied a fair trial because
the district court permitted the state to impeach a defense witness with evidence of a prior conviction that had been sealed. We agree.
During October and November of 1990, after a confidential informant introduced appellant to an undercover police officer, appellant
sold a little more than twelve grams of cocaine to the officer on each of two separate occasions. In addition, appellant and the officer
discussed the sale of a kilogram of cocaine for $28,000, with another kilogram to follow, but could not agree on a location for the
transaction. On December 4, 1990, police officers forcibly entered appellant's apartment. No one was home, but while they were waiting for
a search warrant to be drafted, Maria Rodriguez, appellant's live-in girlfriend, arrived. Rodriguez told the officers that she lived
there and gave them permission to search the apartment.
112 Nev. 863, 865 (1996) Yllas v. State
Rodriguez told the officers that she lived there and gave them permission to search the
apartment. Appellant's son translated the officers' request into Spanish for Rodriguez, and
Rodriguez signed a standard, English consent form. The search revealed a small scale, plastic
bags, a white powdery material, and other items, but no controlled substances.
Appellant was tried on two counts of trafficking in a controlled substance based on
appellant's sale of cocaine to the officer. Defense counsel called Rodriguez as a witness at
appellant's trial. Rodriguez testified that she and appellant had lived together for over twenty
years, and that she had never seen drugs in the apartment, nor the scale, the plastic bags, or
the other seized items.
At appellant's trial, the prosecutor, outside the presence of the jury, requested permission
from the district court to impeach Rodriguez with a prior felony conviction. Defense counsel
objected on the ground that the conviction had been sealed. See NRS 453.3365.
1
The district
court overruled the objection and permitted impeachment. When the jury returned,
Rodriguez, upon questioning by the prosecutor, admitted to entering a guilty plea in 1980 to
one count of possession of marijuana. The sentence for this offense was suspended and the
records of the conviction were sealed pursuant to NRS 453.3365 upon her successful
completion of probation.
[Headnote 1]
The state argues that it was entitled to impeach the witness because NRS 50.095, the
statute addressing impeachment of witnesses with prior convictions, does not prohibit
impeachment with sealed convictions. NRS 50.095 does not, however, authorize such
impeachment. NRS 179.285, on the other hand, provides that save certain exceptions not
applicable here, if a record is sealed under NRS 453.3365 all proceedings recounted in the
record are deemed never to have occurred, and the person to whom it pertains may properly
answer accordingly to any inquiry concerning the arrest, conviction or acquittal and the
events and proceedings relating to the arrest, conviction or acquittal. Moreover, "the court
may
__________

1
1. Three years after a person is convicted and sentenced pursuant to subsection 3 of
NRS 453.336, the court may order sealed all documents, papers and exhibits in that person's
record, minute book entries and entries on dockets, and other documents relating to the case
in the custody of such other agencies and officers as are named in the court's order, if the:
(a) Person fulfills the terms and conditions imposed by the court and the parole and probation officer; and
(b) Court, after a hearing, is satisfied that the person is rehabilitated.
112 Nev. 863, 866 (1996) Yllas v. State
over, the court may not order the inspection of the records under any other circumstances
than upon the petition of the person who is the subject of the record and certain narrow
exceptions. NRS 179.295(1).
2

[Headnote 2]
The state argues that impeachment of Rodriguez was proper because the state did not
thereby violate her civil rights, citing State v. Bock, 328 P.2d 1065 (Idaho 1958). Bock is not
on point, because the records of the prior conviction in Bock were not sealed. We conclude
that where the records of a criminal conviction are sealed by a district court pursuant to
specific statutory authority, that conviction may not be disclosed in a public proceeding such
as a criminal trial absent specific statutory authority providing for such disclosure. The state
has not cited any statutory provision authorizing unsealing, admission into evidence, or other
disclosure or use of Rodriguez's sealed conviction in the proceeding below, and our research
has disclosed no such provision.
The state points out that it could have discovered the prior conviction under NRS
179.295(3), which provides that [t]he court may, upon the application of a district attorney
or an attorney representing a defendant in a criminal action, order an inspection of such
records for the purpose of obtaining information relating to persons who were involved in the
incident recorded. No such request was made, and this section does not relate to
impeachment of witnesses with prior convictions.
The state also argues that impeachment with the sealed conviction was proper under
Baliotis v. Clark County, 102 Nev. 568, 729 P.2d 1338 (1986), because the state possessed
independent records of the witness's conviction. In Baliotis, this court stated that the Las
Vegas Metropolitan Police Department could withhold its approval of an application for a
private detective's license based on a felony conviction, even though the records of that
conviction had been sealed under NRS 179.245. Baliotis, 102 Nev. at 570, 729 P.2d at 1340.
This court explained that [t]here is no indication that the statute was intended to require
prospective employers or licensing authorities to disregard information concerning an
applicant that is known independently of the sealed records. Id.
3

__________

2
The exceptions involve newly discovered evidence, gaming control board investigations, and sexual offenses.
NRS 179.295(2), NRS 179.301.

3
Where conviction records have been sealed under NRS 453.3365, professional licensing authorities are
entitled to consider sealed convictions for the purpose of determining suitability for a license or liability to
discipline. NRS 453.3365(4).
112 Nev. 863, 867 (1996) Yllas v. State
[Headnote 3]
This court specifically has held, however, that the state may not ask the defendant or a
defense witness a question about a prior felony conviction if the state is unprepared to prove
the prior conviction with a copy of the judgment of conviction if the conviction is denied. See
Tomarchio v. State, 99 Nev. 572, 577-78, 665 P.2d 804, 808 (1983). This court recently
affirmed that rule, holding that while the defense may question a prosecution witness
regarding a prior felony conviction if the defense has a reasonable belief that the conviction
exists, the prosecution must have a copy of the judgment of conviction to impeach a defense
witness. Corbin v. State, 111 Nev. 378, 892 P.2d 580 (1995). Such a conviction is best
proved by a certified copy of the judgment. See NRS 50.095(6) (a certified copy of a
judgment of conviction is prima facie evidence of the conviction). A sealed judgment of
conviction cannot support impeachment of a witness, because the witness is entitled to deny
that conviction, and the proceedings leading to it are deemed never to have occurred. NRS
179.285. The existence of an independent record of a sealed conviction does not legitimate
use of that conviction to impeach a witness in a court of law. We conclude that the district
court erred in allowing the state to question Rodriguez concerning her prior conviction.
[Headnote 4]
The state further argues that even if questioning Rodriguez concerning the sealed
conviction was improper, it was harmless error. In Jones v. State, 93 Nev. 287, 289, 564 P.2d
605, 607 (1977), this court concluded that the state's questioning of a defense witness about a
prior felony conviction while unprepared to prove that conviction was harmless error because
the state had justification for believing that the witness had been convicted of the crime, the
witness was able to explain the circumstances of the conviction, and the witness admitted to
having two other felony convictions.
[Headnote 5]
Jones was decided, however, prior to this court's bright line holding in Tomarchio that the
state must be prepared to prove a defense witness's prior felony conviction with a copy of the
judgment of conviction. Further, the witness in Jones had two other felony convictions, so
there was little likelihood of prejudice from the third. In this case, aside from an undercover
police officer, Rodriguez was the only witness appellant called at trial. As appellant's
companion of twenty years and the only real defense witness, Rodriguez's testimony and
credibility were crucial to appellant's defense. Revelation of her sealed conviction for a drug
offense was devastating to her credibility regarding appellant's involvement with drugs.
112 Nev. 863, 868 (1996) Yllas v. State
for a drug offense was devastating to her credibility regarding appellant's involvement with
drugs. See Tomarchio, 99 Nev. at 578, 665 P.2d at 808. Further, due to her poor command of
the English language, Rodriguez was unable to adequately explain the circumstances of her
conviction. Under these circumstances, improper impeachment of the only real defense
witness at appellant's trial cannot be considered harmless beyond a reasonable doubt. See
Smith v. State, 111 Nev. 499, 503-04, 894 P.2d 974, 976-77 (1995); Big Pond v. State, 101
Nev. 1, 3, 692 P.2d 1288, 1289 (1985). Accordingly, we reverse the judgment of conviction,
and we remand this matter to the district court for a new trial.
4

____________
112 Nev. 868, 868 (1996) State, Dep't Mtr. Vehicles v. Hiatt
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES,
ADMINISTRATOR, Appellant, v. SCOTT RAY HIATT, Respondent.
No. 24820
July 22, 1996 920 P.2d 116
Appeal from an order of the district court reversing an administrative decision revoking
respondent's driving privileges. Third Judicial District Court, Churchill County; Mario G.
Recanzone, Judge.
Motorist sought review of administrative revocation of driving privilege for having more
than .10 percent of alcohol in blood at time of test. The district court granted relief. State
appealed. The supreme court held that implied consent statute does not violate due process.
Frankie Sue Del Papa, Attorney General and M. Greg Mullanax, Deputy Attorney
General, Carson City, for Appellant.
James F. Sloan, Fallon, for Respondent.
__________

4
Appellant's remaining contention, that he was denied his right to trial within sixty days of arraignment, lacks
merit because appellant himself requested two continuances and, being incarcerated on other charges, could not
show any prejudice by the delay in going to trial. See Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988);
Berry v. Sheriff, 93 Nev. 557, 571 P.2d 109 (1977). Although we have not granted appellant permission to file
documents in proper person in this matter, we have reviewed appellant's proper person motions to amend
judgment of conviction to correct clerical mistake and to expedite resolution of this appeal. In view of our
decision herein, we deny as moot appellant's proper person motions.
Automobiles; Constitutional Law.
Implied consent statute requiring revocation of driving privileges if motorist fails to submit to preliminary breath test or if motorist
had .10 percent or more blood alcohol content (BAC) at time of blood test does not violate due process, despite claim that statute
created irrebuttable presumption that motorist's BAC at time of driving was same as BAC at time of test. Legislative choice to apply
different standard for revocation of driving privileges than for criminal convictions for driving under the influence (DUI) was
reasonably related to legitimate, compelling state interest of reducing alcohol-related accidents and created no presumption concerning
driver's BAC while driving, let alone an irrebuttable presumption. NRS 484.379, 484.384.
OPINION
Per Curiam:
On September 27, 1992, respondent was pulled over after a police officer noticed respondent's car weaving and crossing over the center
line. Respondent failed both a field sobriety test and a preliminary breath test, was placed under arrest for DUI, and agreed to submit to an
evidentiary blood test. Respondent's breath test, performed at 2:05 a.m., showed a blood alcohol content (BAC) of .138 percent; his blood
test, performed at 2:37 a.m., showed a BAC of .171 percent.
The Department of Motor Vehicles (DMV) sent respondent a notice of revocation on October 9, 1992, informing respondent that his
license would be suspended from October 17, 1992, through January 17, 1993, pursuant to NRS 484.384.
1
Upon respondent's
petition, an evidentiary hearing was held on December 1, 1992. Counsel for respondent
argued that there was not substantial evidence to show that respondent's BAC had been over
0.10 percent at the time of his arrest; instead, the evidence showed that respondent's BAC was
rising at a steady rate between the time of his arrest and the time of the blood test, and had
actually been below 0.10 percent at the time of his arrest. The hearing officer found that NRS
484.384 requires a BAC of 0.10 percent at the time of the blood test, not at the time of arrest.
The hearing officer concluded that all elements of proof necessary to support a violation of
the Illegal Per Se Law under NRS Chapter 4S4 were supported by substantial evidence,
and affirmed the revocation of respondent's driving privileges.
__________

1
At the time of the revocation of respondent's license, NRS 484.384 read in pertinent part:
3. If a person fails to submit to a preliminary test of his breath as directed by a police officer under NRS
484.383 or the result of a test given under NRS 484.382 or NRS 484.383 shows that he had 0.10 percent
or more by weight of alcohol in his blood at the time of the test, his license, permit or privilege to drive
must be revoked as provided in NRS 484.385 and he is not eligible for a license, permit or privilege for a
period of 90 days.
support a violation of the Illegal Per Se Law under NRS Chapter 484 were supported by
substantial evidence, and affirmed the revocation of respondent's driving privileges.
Respondent petitioned for judicial review. The district court reversed the hearing officer's
decision on August 17, 1993. The district court held that NRS 484.384 is unconstitutional as
applied, because it creates an irrebuttable presumption that the BAC at the time of the blood
test is the same as the BAC at the time of driving. The district court further concluded that the
presumption violates due process, and NRS 484.384 can only reconcile the state's interest in
preventing drunk driving with drivers' substantial interests in their driving privileges by
allowing drivers to rebut the presumption with evidence of their BAC levels at the time of
driving. This appeal followed.
DISCUSSION
DMV contends that the district court erred in finding that NRS 484.384 is unconstitutional
as applied. DMV contends that revocation of driving privileges under NRS 484.384 only
requires a showing that the driver's BAC was over 0.10 percent at the time of the blood test,
and does not require a driver's BAC at the time of the test to be the same as the BAC at the
time of driving. DMV contends that criminal DUI proceedings are wholly separate from
administrative driver's license revocation proceedings, and that applying a different standard
for revocation of a license under NRS 484.384 neither creates an irrebuttable presumption nor
violates due process.
We conclude that NRS 484.384 does not create an irrebuttable presumption that a driver's
BAC at the time of driving is the same as his BAC at the time of the blood test. To the
contrary, the scope of review of an order of revocation of driving privileges is limited to the
issues of whether the person failed to submit to an evidentiary test or had 0.10 percent or
more by weight of alcohol in his blood at the time of the test. See Beavers v. State, Dep't of
Mtr. Vehicles, 109 Nev. 435, 438-39, 851 P.2d 432, 434 (1993). Because no proof of a
driver's BAC at the time of driving is required for revocation of driving privileges, NRS
484.384 creates no presumption, let alone an irrebuttable presumption, concerning a driver's
BAC at the time of driving.
Further, the standards set by the legislature for revoking driving privileges in a civil
proceeding under NRS 484.384 are different from those required for a conviction for DUI
under NRS 484.379. Implied consent statutes provide for administrative, civil proceedings
entirely separate and distinct from criminal statutes prohibiting drunk driving. State, Dep't of
Mtr. Vehicles v. Frangul, 110 Nev. 46, 49, 867 P.2d 397, 399 (1994). Under NRS 4S4.379, a
driver may be convicted for DUI if he is "under the influence of alcohol," "has 0.10
percent or more by weight of alcohol in his blood," or is found to have a BAC level of 0.10
percent or higher within two hours after driving.
NRS 484.379, a driver may be convicted for DUI if he is under the influence of alcohol,
has 0.10 percent or more by weight of alcohol in his blood, or is found to have a BAC level
of 0.10 percent or higher within two hours after driving. NRS 484.379(1)(a)-(c). A BAC level
of 0.10 percent while driving is thus not a prerequisite for a revocation of a driver's license.
Respondent's contention that the legislature intended to revoke only the licenses of persons
with BAC levels of 0.10 percent while driving lacks merit.
Although this court has not previously addressed the precise issue of whether NRS
484.384 violates due process, other states have held that similar statutes allowing revocation
of driving privileges based upon a driver's BAC at the time of a test are constitutional. See
Bierner v. State Taxation & Rev. Dept, 831 P.2d 995, 1000 (N.M. App. 1992) (in light of its
purposes and justifications, the New Mexico statute did not violate due process); Knapp v.
Miller, 799 P.2d 868, 872 (Ariz. Ct. App. 1990) (revocation statute was reasonably related to
legitimate, compelling state interest in removing alcohol-impaired drivers from the roads
because of the clear threat they pose to public safety).
We find the constitutional analysis of Bierner and Knapp persuasive. The Nevada
legislature chose to apply a different standard for revocation of driving privileges than for
criminal convictions for DUI. That legislative choice is reasonably related to the legitimate,
compelling state interest of reducing alcohol-related accidents and creates no presumption
concerning a driver's BAC while driving, let alone an irrebuttable presumption. Accordingly,
we reverse the order of the district court, and we remand this case to the district court with
instruction to reinstate the administrative revocation of respondent's driving privileges.
____________
112 Nev. 871, 871 (1996) Smith v. State
JOHN FRANKLIN SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26540
July 22, 1996 920 P.2d 1002
Appeal from a judgment of conviction entered pursuant to a guilty plea of one count of
sexual assault and one count of false imprisonment. Second Judicial District Court, Washoe
County; James Stone, Judge.
The supreme court held that: (1) victim could request that district court impose specific
sentence; (2) trial court had not relied upon alleged improper characterization of prior
third-degree rape arrest in another state; and {3) trial court was required to indicate
amount of restitution at time that restitution order was made.
112 Nev. 871, 872 (1996) Smith v. State
degree rape arrest in another state; and (3) trial court was required to indicate amount of
restitution at time that restitution order was made.
Conviction and sentence affirmed in part, reversed in part and case remanded with
instructions.
Michael R. Specchio, Public Defender and John Reese Petty, Deputy Public Defender,
Attorney, Washoe County, for Respondent.
1. Criminal Law.
Victim of crime may request that trial court impose specific sentence on defendant.
2. Criminal Law.
Supreme court will not disturb sentence that is within statutory limits unless district court relies on highly suspect or impalpable
information.
3. Rape.
Trial court could sentence defendant to life imprisonment with possibility of parole, following conviction for sexual assault, even
though defendant claimed that state had mischaracterized prior arrest for third-degree rape in another state by claiming that it showed a
pattern of sexual assault upon women. Court had been fully apprised by defendant that prior arrest involved statutory rape rather than
actual assault.
4. Criminal Law.
Trial court could not impose requirement on defendant, convicted of false imprisonment and sexual assault, that he provide
restitution in amount to be determined later; amount of restitution was required to be stated at sentencing.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction entered pursuant to a guilty plea of one count of false imprisonment and one count of
sexual assault. The district court sentenced appellant to serve a term of life with the possibility of parole in the Nevada State Prison for
sexual assault and a concurrent term of one year in the county jail for false imprisonment. Appellant does not challenge on appeal his
convictions, but rather contends that the district court erred in sentencing him.
1

[Headnote 1]
Appellant contends in particular that the district court denied him a fair sentencing
hearing because it allowed the victim and the victim's mother to request that the district
court impose the maximum possible sentence.
__________

1
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.
112 Nev. 871, 873 (1996) Smith v. State
him a fair sentencing hearing because it allowed the victim and the victim's mother to request
that the district court impose the maximum possible sentence. Appellant waived this
contention by failing to object below. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723
(1991). Further, we have held that a victim may request that the district court impose a
specific sentence. Randell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993). Appellant's
contention lacks merit.
[Headnotes 2, 3]
Appellant also contends that in sentencing him the district court relied on the state's
inaccurate characterization of a prior arrest in Oregon for third degree rape. The state
contended that the prior arrest and the facts surrounding this case indicated appellant may
have sexually assaulted other women. This court will not disturb a sentence that is within
statutory limits unless the district court relies on highly suspect or impalpable information.
Silks v. State, 92 Nev. 91, 545 P.2d 1159 (1976). Appellant has not demonstrated that the
district court relied on the state's allegedly misleading characterization of him. At sentencing,
appellant discounted the state's characterizations and explained that the prior arrest was for
statutory rape and not for sexual assault. The district court was fully informed when it
sentenced appellant. The district court acted well within its discretion in sentencing appellant
to life imprisonment with the possibility of parole. See Randell, 109 Nev. at 7-8, 846 P.2d at
280.
[Headnote 4]
Appellant contends finally that the district court erred in imposing restitution in an amount
to be determined later. The state concedes that the district court erred. We agree. Accordingly,
we remand this matter to the district court with instructions to amend the judgment of
conviction to impose restitution in a specific amount in accordance with Botts v. State, 109
Nev. 567, 854 P.2d 856 (1993). We affirm appellant's conviction in all other respects.
____________
112 Nev. 873, 873 (1996) Herndon v. Grilz
DONALD HERNDON dba HERNDON CONSTRUCTION, Appellant, v. RICHARD J.
GRILZ, Sr., and SANDRA K. GRILZ, Respondents.
No. 27052
July 22, 1996 920 P.2d 998
Appeal from a post-judgment order of the district court disallowing a homestead
exemption. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Holders of judgment lien moved to determine whether judgment debtor's homestead
exemption would defeat their lien on property. The district court refused to recognize
homestead exemption, and judgment debtor appealed. The supreme court held, as a matter of
first impression, that when the right to claim a homestead and judgment lien attach
simultaneously to a piece of property, the homestead right prevails.
Order vacated.
Hale, Lane, Peek, Dennison & Howard and Lenard E. Schwartzer, Las Vegas, for
Appellant.
Schofield & Grant, Las Vegas, for Respondents.
Lease agreement in which tenants were required to make $26,000 nonrefundable down payment and monthly payments over next
thirty years, and then given option to purchase property for $1, was actually purchase agreement.
2. Homestead; Judgment.
Under doctrine of equitable conversion, upon sale of property, judgment debtor held only legal interest in property and therefore
lacked interest to which homestead exemption or judgment lien could attach. When he repurchased property, he became vested with
equitable interest to which both lien and homestead exemption could attach. Const. art. 4, 30; NRS 115.010.
3. Homestead.
When right to claim homestead and judgment lien attach simultaneously to piece of property, homestead right prevails. Const. art.
4, 30; NRS 115.010.
OPINION
Per Curiam:
This is an appeal from a post-judgment order of the district court in which the court refused to recognize appellant Donald Herndon's
(Herndon) homestead exemption. On appeal, Herndon contends that the district court erred in failing to recognize his homestead
exemption, because he is in compliance with Nevada's constitutional and statutory requirements. We agree and vacate the district court's
order.
FACTS
On December 14, 1990, Richard and Sandra Grilz (the Grilzes) filed a complaint against Herndon dba Herndon Construction, alleging
breach of contract and breach of express warranties in connection with a house that the Grilzes purchased from Herndon.
from Herndon. Several years later, on September 8, 1993, the Grilzes received a judgment
awarding them $25,000.00 in damages plus interest and $12,000.00 in attorney's fees.
Faced with this judgment, on December 7, 1993, Herndon created a new corporation,
Quality Homes of Nevada (Quality Homes), and transferred title to the three homes owned by
Herndon Construction to Quality Homes. In an attempt to collect on their judgment, the
Grilzes filed writs of garnishment on Quality Homes, but those efforts proved to be
unsuccessful. However, a search of the Clark County title records showed that Herndon
owned a property located at 8870 Redwood Lane, Las Vegas, Nevada. Further research
showed that Herndon had leased the property to Joseph and Donna Brammer (the Brammers).
Under the lease, the Brammers paid a non-refundable $26,000.00 down payment, paid
$1,472.50 a month for the next twelve months, and were to pay $1,610.25 a month for the
remainder of the lease. The lease had a thirty-year term, after which the Brammers were
allowed to purchase the property for $1.00. The lease was recorded on March 31, 1993.
The Grilzes executed a levy on the Redwood Lane property, and a sheriff's sale was
scheduled for May 5, 1994. During the two weeks preceding the scheduled sale, counsel for
the Grilzes received numerous phone calls from both Joseph Brammer and his counsel
requesting that the sale be postponed so that the Brammers could obtain financing to pay off
Herndon under the terms of their purchase agreement (lease). In order to accommodate the
Brammers, the Grilzes agreed to postpone the sale. Thereafter, on April 29, 1994, the
Brammers entered into an agreement with Herndon in which they agreed to accept a
promissory note in the amount of $48,300.00 (reducible to $34,000.00 if paid before
November 1, 1994), secured by a first deed of trust on the Redwood Lane property, in
exchange for a quitclaim deed to any interest the Brammers had in the property. On the same
day, Herndon filed a declaration of homestead.
On May 31, 1994, the Grilzes filed a motion to determine the issue of exemption in an
attempt to decide whether Herndon's homestead declaration would defeat their lien on the
Redwood Lane property. On June 8, 1994, Herndon filed a petition for relief in bankruptcy
under Chapter 7 of Title 11 of the United States Code. The Grilzes filed a motion to lift the
automatic stay and allow the District Court of Nevada to determine whether Herndon
possessed a valid homestead on the Redwood Lane property. On October 25, 1994, the
United States Bankruptcy Court granted the Grilzes' motion and remanded the case to the
district court.
The district court heard arguments on February 28, 1995. In an order dated March 13,
1995, the court found Herndon's homestead exemption would not preclude the Grilzes
from executing a levy on the Redwood Lane property.
an order dated March 13, 1995, the court found Herndon's homestead exemption would not
preclude the Grilzes from executing a levy on the Redwood Lane property. Herndon now
appeals.
DISCUSSION
Nevada Constitution, article 4, section 30, recognized the Nevada homestead exemption,
and states:
A homestead as provided by law, shall be exempt from forced sale under any process of
law, and shall not be alienated without the joint consent of husband and wife when that
relationship exists; but no property shall be exempt from sale for taxes or for the
payment of obligations contracted for the purchase of said premises, or for the erection
of improvements thereon; Provided, the provisions of this Section shall not apply to any
process of law obtained by virtue of a lien given by the consent of both husband and
wife, and laws shall be enacted providing for the recording of such homestead within
the County in which the same shall be situated[.]
NRS 115.010 (1993) provides the following statutory limitation to the homestead exemption:
1. The homestead is not subject to forced sale on execution or any final process
from any court, except as provided in subsections 2 and 3.
2. The exemption provided in subsection 1 extends only to the amount of equity in
the property held by the claimant which does not exceed $95,000.00 in value.
3. The exemption provided in subsection 1 does not extend to process to enforce the
payment of obligations contracted for the purchase of the property, or for improvements
made thereon, including any mechanic's lien lawfully obtained, or for legal taxes, or
for:
(a) Any mortgage or deed of trust thereon executed and given; or
(b) Any lien to which prior consent had been given through the acceptance of
property subject to any recorded declaration of restrictions, deed restrictions, restrictive
covenant or equitable servitude, specifically including any lien in favor of an
association pursuant to NRS 116.3116 or 117.070, by both husband and wife, when that
relation exists.
Herndon contends that he purchased the Redwood Lane property from the Brammers with
the intention of making the property a home for himself and his daughter. Since the time of
the purchase, Herndon and his daughter have continuously lived on the property and
treated it as their home.
purchase, Herndon and his daughter have continuously lived on the property and treated it as
their home. Herndon argues that because none of the exceptions to the homestead exemption
listed in NRS 115.010 are applicable, the district court improperly refused to recognize his
homestead exemption.
At the conclusion of the hearing before the district court, the court found that the lease
agreement between Herndon and the Brammers was, in fact, a purchase agreement, and that
Herndon did not have an interest in the property to which a homestead exemption could
attach. The court also found that the Grilzes' judgment lien attached to the property before
Herndon exchanged the promissory note for the quitclaim deed, and that Herndon took the
property subject to the lien. Accordingly, the district court found that Herndon's homestead
exemption could not defeat the lien.
[Headnote 1]
We have reviewed the record and conclude that the district court properly found that the
agreement between Herndon and the Brammers was a purchase agreement and not a lease.
Most persuasive are the terms of the agreement. The Brammers were required to make a
$26,000.00 non-refundable down payment, then they were required to make monthly
payments over the next thirty years, after which, they were given the option to purchase the
property for $1.00. These terms are consistent with terms normally encountered when real
estate is sold, not when it is leased.
[Headnote 2]
In Harrison v. Rice, 89 Nev. 180, 183, 510 P.2d 633, 635 (1973) (citations omitted), this
court stated:
An equitable conversion occurs when a contract for the sale of real property becomes
binding upon the parties. The purchaser is deemed to be the equitable owner of the land
and the seller is considered to be the owner of the purchase price. This, because the
maxim that equity considers as done that which was agreed to be done.
Since Herndon sold the property to the Brammers, under the doctrine of equitable conversion,
Herndon held only a legal interest in the property and therefore lacked an interest to which a
homestead exemption could attach. However, for the same reason, Herndon did not possess
an interest to which the Grilzes' lien could attach. But, when Herndon re-purchased the
property from the Brammers, Herndon became vested with an equitable interest to which both
the lien and the homestead exemption could attach. Therefore, both Herndon's right to claim a
homestead exemption and the Grilzes' lien attached to the property simultaneously at the
moment that Herndon acquired an equitable interest in the property.
neously at the moment that Herndon acquired an equitable interest in the property. The
district court therefore erred in finding that the Grilzes' lien attached before Herndon's right to
claim a homestead exemption.
[Headnote 3]
Nevada has consistently given great deference to homesteads. In Jackman v. Nance, 109
Nev. 716, 718, 857 P.2d 7, 8 (1993), this court stated:
The purpose of the homestead exemption is to preserve the family home despite
financial distress, insolvency or calamitous circumstances, and to strengthen family
security and stability for the benefit of the family, its individual members, and the
community and state in which the family resides. These values are of greater
importance to the polity than the just demands of those who may be financially
disadvantaged as a result of the homestead exemption.
Early Nevada decisions have held that a subsequent declaration of homestead will defeat a
prior existing lien perfected against the property when the lien attaches at a time when the
property has the character of a homestead. See Estate of David Walley, 11 Nev. 260 (1876);
Hawthorne v. Smith, 3 Nev. 164 (1867). The Federal courts have interpreted Nevada law in a
similar fashion. See Myers v. Matley, 318 U.S. 622 (1943); Nevada Bank of San Francisco v.
Treadway, 17 F. 887 (D. Nev. 1883). However, whether a homestead exemption will defeat a
judgment lien when both the right to claim a homestead and the lien attach simultaneously to
a piece of property is an issue of first impression for this court. While we note that there is a
split of authority among the states, we now recognize as a general rule that when the right to
claim a homestead and a judgment lien attach simultaneously to a piece of property, the
homestead right prevails. See 40 Am. Jur. 2d Homestead 94 (1968); 40 C.J.S. Homesteads
53 (1991). This holding favors the establishment of homesteads and promotes Nevada's
long-standing policy of interpreting the homestead exemption liberally in favor of families.
Since Herndon filed a declaration of homestead at a time when he had the right to claim a
homestead exemption, unless one of the exceptions to the homestead exemption listed in
NRS 115.010 (1993) is applicable, Herndon is entitled to have his homestead exemption
recognized. We have reviewed the record and conclude that none of the exceptions listed in
NRS 115.010 (1993) are applicable to Herndon. Accordingly, we conclude that the district
court erred when it failed to recognize Herndon's homestead exemption.
CONCLUSION
We conclude that because Herndon's right to claim a homestead exemption and the
Grilzes' lien attached to the Redwood Lane property simultaneously; and because none of the
exceptions to the homestead exemption listed in NRS 115.010 (1993) are applicable to
Herndon, Herndon is entitled to claim a homestead and is entitled to all of the protections that
that exemption provides. We have considered the remaining issues on appeal and conclude
that they lack merit. In accordance with these holdings, the district court's order refusing to
recognize Herndon's homestead exemption is hereby vacated.
____________
112 Nev. 879, 879 (1996) Doyle v. State
ANTHONY DOYLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27146
July 22, 1996 921 P.2d 901
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of
first-degree murder, conspiracy to commit murder, first-degree kidnaping, and sexual assault.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendant was convicted in the district court of first-degree murder, conspiracy to commit
murder, kidnapping, and sexual assault, and was sentenced to death. Defendant appealed, and
the supreme court, Springer, J., held that: (1) valid race-neutral basis was given under Batson
for use of peremptory strikes; (2) fact that use of strikes against jurors with relatives involved
in criminal justice system may have disproportionate effect on black jurors does not establish
Batson violation; (3) sexual assault statute requires that victim be alive; and (4) evidence
failed to establish that victim was alive at time of sexual assault; but (5) convictions for
murder, kidnapping and conspiracy were supported by evidence; (6) implied malice
instruction was properly given; and (7) death sentence was not excessive.
[Rehearing denied June 23, 1997]
Steffen, C. J., dissented in part.
David M. Schieck, Las Vegas; Scott L. Bindrup, Las Vegas, for Appellant.
112 Nev. 879, 880 (1996) Doyle v. State
Chris Owens, Deputy District Attorney, Clark County, for Respondent.
1. Jury.
Three-step process is applied in evaluating race-based objections to peremptory challenges of jurors under Batson. Opponent of
peremptory challenge must first make prima facie showing of racial discrimination, which shifts burden of production to proponent of
strike to come forward with race-neutral explanation, and if race-neutral explanation is tendered, trial court must decide whether
opponent of strike has proved that proffered race-neutral explanation is merely pretext for purposeful racial discrimination. U.S. Const.
amend. 14.
2. Jury.
To establish prima facie case of impermissible race-based peremptory strike under Batson, defendant first must show that he is
member of cognizable racial group and that prosecutor has exercised peremptory challenges to remove from venire members of
defendant's race. Trial court must then determine if examination of all relevant circumstances raises inference that prosecutor excluded
venirepersons from petit jury on account of their race. Pattern of strikes against black jurors and prosecutor's statements are factors
which may be considered in making determination. U.S. Const. amend. 14.
3. Jury.
Once prosecutor has offered race-neutral explanation for peremptory challenges under Batson and trial court has ruled on ultimate
question of intentional discrimination, preliminary issue of whether defendant had made prima facie showing becomes moot. U.S.
Const. amend. 14.
4. Jury.
Under Batson analysis, once defendant makes prima facie showing of racial discrimination in use of peremptory strikes by
prosecutor in violation of Batson, next step is to determine whether State has presented race-neutral explanation in support of its use of
peremptory challenges, and unless discriminatory intent is inherent in prosecutor's explanation, reason offered will be deemed
race-neutral. U.S. Const. amend. 14.
5. Jury.
Explanation by prosecutor that peremptory strike was used against black prospective jurors, one of whom had brother serving
prison sentence for murder in Louisiana and the other of whom had brother who had served unknown amount of time in prison for
robbery, had mother who had been arrested, and stated that she believed police officers could be rough and rude, because it had to
assume that jurors would harbor biases against prosecution constituted valid race-neutral justification for use of strike under Batson.
6. Jury.
Association with criminal justice system is facially neutral reason to challenge prospective jurors under Batson. U.S. Const.
amend. 14.
7. Jury.
Refusal of trial court to require prosecution to offer race-neutral justification under Batson for use of peremptory strike against
first black prospective juror who was stricken following defendant's Batson challenge, which was made after two more black
prospective jurors were stricken, was proper.
112 Nev. 879, 881 (1996) Doyle v. State
stricken, was proper. No pattern of discrimination could be said to be evident with respect to first strike, and valid race-neutral
explanations were given with respect to second and third jurors stricken. U.S. Const. amend. 14.
8. Jury.
Ultimate burden of persuasion regarding racial motivation for use of peremptory strike which is challenged under Batson rests
with, and never shifts from, opponent of strike. U.S. Const. amend. 14.
9. Jury.
If prosecutor offers explanations for use of peremptory strike which is challenged as racially discriminatory that are facially
neutral, defendant may nevertheless show purposeful discrimination in violation of Batson, by proving that explanations are pretextual.
10. Jury.
If prosecutor articulates basis for peremptory challenge that results in disproportionate exclusion of members of certain race, trial
judge may consider that fact as evidence that prosecutor's stated reason constitutes pretext for racial discrimination and will not justify
strikes under Batson. U.S. Const. amend. 14.
11. Jury.
Determination by trial court that prosecutor's explanation for exercise of peremptory strikes against black prospective jurors, which
were challenged under Batson, on basis that jurors had family members who had been involved in criminal justice system and would
naturally harbor biases against prosecution was not pretextual was not abuse of discretion; of 27 non-black jurors that were cleared for
cause, none had family member that had been in prison. U.S. Const. amend. 14.
12. Criminal Law.
District court's decision as to whether prosecutor's explanation for use of peremptory strike which is challenged as racially
discriminatory under Batson is pretextual is discretionary and should ordinarily be accorded great deference by reviewing court. U.S.
Const. amend. 14.
13. Jury.
Contention by defendant that prosecutor's race-neutral justification for use of peremptory strikes against prospective black jurors
who had family members who had been involved in criminal justice system, on basis that State had to assume that jurors would harbor
biases against prosecution, would result in disproportionate impact on black prospective jurors because high percentage of persons
incarcerated where black was insufficient to establish that justification was pretextual under Batson. Striking potential jurors with
relatives in criminal justice system served legitimate purpose of assuring fair and impartial jury. U.S. Const. amend. 14.
14. Criminal Law.
Standard of review for sufficiency of evidence in criminal cases is whether jury, acting reasonably, could have been convinced of
defendant's guilt beyond a reasonable doubt. It is jury's function, and not that of reviewing court, to assess weight of evidence and
determine credibility of witnesses.
15. Criminal Law.
Corpus delicti of crime must be proven independently of defendant's extrajudicial admissions.
16. Criminal Law.
Independent proof of corpus delicti of crime, showing of which must be made independent of defendant's
extrajudicial admissions, may be circumstantial evidence, and need not be beyond a reasonable doubt.
112 Nev. 879, 882 (1996) Doyle v. State
must be made independent of defendant's extrajudicial admissions, may be circumstantial evidence, and need not be beyond a
reasonable doubt. Slight or prima facie showing, which permits reasonable inference that crime was committed, is sufficient, and if
independent proof meets this threshold requirement, accused's admissions may then be considered to strengthen case on all issues.
17. Criminal Law.
There need not be independent support for each fact testified to by suspect witness in order for corpus delicti of crime to be proven
independently of defendant's extrajudicial admissions. Corroboration is significant if it tends to connect defendant with commission of
offense charged in such a way as reasonably may satisfy jury that witness is telling the truth.
18. Criminal Law.
Circumstantial evidence is sufficient to provide proof of corpus delicti of crime independent of defendant's judicial admissions,
although such evidence is slight and entitled, when standing by itself, to but little consideration.
19. Kidnapping.
Proof of asportation is required to establish offense of kidnapping when kidnapping is incidental to another offense and restraint is
inherent in primary offense, but is not required where victim is physically restrained.
20. Kidnapping.
Kidnapping is not incidental to underlying offense, and proof of asportation is not required to support kidnapping conviction, if
restraint used increased risk of harm to victim or had independent purpose and significance.
21. Criminal Law; Kidnapping.
Evidence was sufficient to corroborate defendant's extrajudicial statements and to support defendant's conviction for kidnapping in
connection with abduction of victim who was ultimately murdered. Accomplice testified that he had seen defendant voluntarily leave
with victim and others upon offer to give victim ride home, and evidence that struggle had occurred and that victim was savagely
beaten before she was killed was found at secluded desert location nowhere near victim's home.
22. Conspiracy.
Conspiracy is an agreement between two or more persons for unlawful purpose.
23. Conspiracy.
Person who knowingly does any act to further object of conspiracy, or otherwise participates therein, is liable as conspirator. Mere
knowledge or approval of, or acquiescence in, object and purpose of conspiracy without agreement to cooperate in achieving such
object or purpose does not make one party to conspiracy.
24. Conspiracy.
Conspiracy is seldom susceptible of direct proof, and is usually established by inference from conduct of parties.
25. Conspiracy.
Conspiracy conviction may be supported by coordinated series of acts in furtherance of underlying offense which are sufficient to
infer existence of agreement.
112 Nev. 879, 883 (1996) Doyle v. State
26. Criminal Law.
To sustain conviction for conspiracy, prosecution is required to present proof, independent of defendant's own admissions, that
defendant entered into agreement with at least one other person. Corroborative evidence need not be sufficient, independent of
statements, to establish corpus delicti of crime, but must tend to establish trustworthiness of statement and provide substantial
independent evidence that offense has been committed.
27. Conspiracy; Criminal Law.
Proof of even single overt act may be sufficient to corroborate defendant's statement and support conspiracy conviction.
28. Conspiracy.
Defendant's conviction for conspiracy to commit murder was supported by defendant's statements that he had been at site of
murder but did not participate in killing, and corroborative evidence that murder victim left residence of defendant's two accomplices
along with defendant and accomplices, that area where victim's body was eventually found, and nearby area where struggle likely
occurred, contained three distinct types of footwear impressions, one of which matched pair of shoes retrieved from defendant's
residence, and that victim's body bore distinctly patterned contusion which matched pattern of defendant's shoes.
29. Rape.
Evidence was insufficient to establish that sexual assault of murder victim, whose body was found with four-inch twig protruding
from her rectum, was committed while she was alive, as would support conviction for sexual assault. No testimony was adduced as to
time twig was inserted, twig matched foliage in area where struggle occurred, medical expert testified that death was likely to have
occurred within two to four minutes after struggle, and autopsy revealed no evidence of contusion, laceration, or other trauma
indicating that penetration occurred while victim was alive. NRS 200.366(1).
30. Rape.
Live victim is necessary element of crime of sexual assault, and sexual assault statute does not allow conviction in instances where
evidence is sufficient to show only peri-mortem sexual penetration, or penetration occurring at or around time of death. Intent of
Legislature was that term person, as used in rape statute, would mean living human being, and enactment of necrophilia statute,
which has more flexible sentencing guideline, indicates legislative recognition that indignities inflicted upon corpse are distinguishable
from those inflicted upon the living. NRS 200.364(2), 200.366(1), 201.450.
31. Dead Bodies.
Necrophilia statute is not intended to apply only to medically classifiable necrophiles, and plain meaning of statute is to
punish act of sexual penetration of dead human body, regardless of motive. NRS 201.450.
32. Rape.
Instruction in prosecution for sexual assault which required jury to find that sexual penetration occurred against victim's will and
without her consent was proper, as it was implicit in instruction that victim be alive. NRS 200.364(2), 200.366(1).
33. Criminal Law.
Use of implied malice instruction in murder prosecution which provided that malice may be implied when no
considerable provocation appears, or when all circumstances of killing show abandoned or malignant heart,
did not impermissibly shift burden to defendant and was proper.
112 Nev. 879, 884 (1996) Doyle v. State
provided that malice may be implied when no considerable provocation appears, or when all circumstances of killing show abandoned
or malignant heart, did not impermissibly shift burden to defendant and was proper. Instructions taken as whole, which included
instruction that defendant is presumed innocent until contrary is proved, adequately instructed jury. NRS 200.020.
34. Homicide.
Error, if any, by trial court in giving implied malice instruction in murder prosecution which provided that malice may be implied
when no considerable provocation appears was harmless where it was clear that guilty verdict actually rested on ample evidence of
express malice. NRS 200.020.
35. Homicide.
Sentence of death following defendant's conviction for murder of victim who was taken to remote area by defendant and
accomplices, brutally kicked and beaten, and hit in head repeatedly with brick was not imposed under influence of passion, prejudice,
or any arbitrary factor and was not excessive. NRS 177.055.
OPINION
On June 1, 1994, Anthony Doyle, in association with two co-defendants, was charged with one count each of murder, conspiracy to
commit murder, kidnaping, and sexual assault. Doyle pleaded not guilty to all charges. The State filed notice of intent to seek the death
penalty. Doyle was bound over for trial on all counts, and, commencing January 3, 1995, the matter proceeded to jury trial. The jury found
Doyle guilty of one count each of first-degree murder, conspiracy to commit murder, first-degree kidnaping, and sexual assault. The jury
found several aggravating circumstances and imposed a sentence of death. In addition, the district court sentenced Doyle to consecutive life
terms for first-degree kidnaping and sexual assault, respectively, and a concurrent six-year term of imprisonment for conspiracy to commit
murder.
Doyle appealed, arguing that (1) the State violated his right to equal protection of the laws by using its peremptory challenges to
eliminate black venirepersons from the jury pool; (2) there was insufficient evidence adduced at trial to support his convictions for
first-degree kidnaping, conspiracy to commit murder and sexual assault; (3) the district court erred in failing to define deliberate as a
separate, distinct element of first-degree murder; and (4) the district court erred in its instruction to the jury regarding implied malice.
FACTS
On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered some twenty-five feet off the roadway in an
unimproved desert area of Clark County, Nevada.
112 Nev. 879, 885 (1996) Doyle v. State
an unimproved desert area of Clark County, Nevada. The woman's body was found lying face
down with hands extended overhead to a point on the ground where it appeared some digging
had occurred. A four-inch twig protruded from the victim's rectum. Three distinct types of
footwear impressions were observed in the area, none of which matched the tread design of a
pair of women's athletic shoes located on the nearby dirt road. Also observed in the area was
a hole containing a broken condom, a condom tip, an open but empty condom package, and
two small packages of taco sauce.
In the opinion of the medical examiner, Mason died from asphyxia due to strangulation or
blunt trauma to the head. The autopsy revealed nine broken ribs, multiple areas of external
bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior surface of the
neck. Approximately 200 milliliters of fluid blood was found in Mason's chest cavity.
Mason's back and chest bore a number of patterned contusions consistent with footwear
impressions found at the crime scene. Finally, the autopsy revealed severe laceration of the
head and subarachnoid hemorrhage (a thin layer of blood surrounding the brain) indicating
blunt force trauma to the skull. Laboratory analysis revealed traces of the drug PCP in
Mason's system.
Michael Smith, who had been arrested in an unrelated matter, provided the police with the
names of those he believed were responsible for the murder. Smith recounted statements
made by Doyle regarding a killing to which Doyle claimed to have been a party. According to
Smith, he and Doyle had overheard a girl tell some other people about her friend having been
killed. At that time, Doyle commented to Smith that we had to take someone out. Doyle
further stated that he, Darrin Anderson, Shawn Atkins, and Bubba Atkins were at
Anderson's house with a girl and that each had sex with the girl. While they were taking the
girl home, she told the men that she was going to report them for rape and jumped from the
truck in which they were riding. They were eventually able to coax the girl back into the truck
and decided to kill her rather than face possible rape charges. The girl was apparently so
inebriated or under the influence of drugs that she was oblivious to the direction the men
were travelling. When they arrived at a remote area, the girl was pulled from the truck and
choked. Unsuccessful in their attempt to choke her to death, the men then beat the girl.
Finally, Doyle told Smith, two of the men held the girl down while the other repeatedly
dropped a brick on her face until she died.
With information obtained from Smith, the police contacted Darrin Anderson, the owner
of a small, yellow pickup truck. According to Anderson, on the night of January 15, 1994, he
was present with Doyle at the home of Shawn and "Bubba" Atkins.
112 Nev. 879, 886 (1996) Doyle v. State
present with Doyle at the home of Shawn and Bubba Atkins. After arriving, the four left the
Atkins residence to attend a nearby party. Anderson returned alone to the Atkins residence a
short time later, and the other three returned thereafter in the company of Ebony Mason, who
appeared inebriated or under the influence of drugs. Later, Mason asked for a ride home, and
Anderson suggested that Doyle use Anderson's truck. At approximately 10:30 p.m., Doyle left
with Mason and the Atkins brothers in Anderson's truck. Anderson awoke the next morning
to find Doyle and the Atkins brothers asleep at the Atkins residence. When police later
searched Anderson's truck, they found a pair of blood-stained white socks between the seats.
Further information led investigators to contact Mark Wattley, another of Doyle's friends.
Wattley was present during a conversation where Doyle made statements describing how
Shawn Atkins was unable to subdue Mason and how Bubba Atkins intervened and hit her
with a head punch and dropped her. Thereafter, Doyle told Wattley that he (Doyle) began
kicking Mason in the head. Eventually, one of the men grabbed a brick or rock and hit the girl
in the head. At one point in the conversation, Doyle demonstrated how he (Doyle) jumped in
the air and caused both of his feet to come down on Mason during the beating.
The police investigation eventually led to the execution of a search warrant at Doyle's
residence. During the search, the police impounded a pair of Adidas athletic shoes with soles
that apparently matched treadwear impressions found at the crime scene and on Mason's
body. Doyle was then placed under arrest. After being advised of his Miranda rights, Doyle
provided a statement to police explaining that he had been present when Mason was killed
but that he did not participate in the killing. Later analysis of the impounded shoes confirmed
that the treadwear impressions were consistent with the footwear impressions retrieved from
the scene of the crime and observed upon Mason's body.
At trial, Doyle testified that on the night of January 15, 1994, Bubba Atkins brought
Mason to the Atkins residence. Some time after her arrival, Mason asked for a ride downtown
or home. Anderson then instructed Doyle to take Anderson's truck and take Mason home.
Doyle testified that Mason wanted to engage in sex with him and the Atkins brothers, so all
four drove to Doyle's apartment where each of the men had sex with Mason. Thereafter, the
four left Doyle's apartment in Anderson's truck. Mason was riding in the back of the truck,
and at some point, the truck stopped at a red light, and Mason jumped out of the truck. The
Atkins brothers were eventually able to get Mason back in the truck, and the four proceeded
to a deserted area outside Las Vegas.
112 Nev. 879, 887 (1996) Doyle v. State
Doyle further testified that, once stopped, Shawn Atkins hit Mason in the face and a fight
ensued. When it appeared that Shawn Atkins was unable to subdue Mason, Bubba Atkins
came to his aid. Doyle denied any participation in the beating or killing, stating that he had
watched from the back of the truck as Shawn and Bubba Atkins beat and kicked the girl.
Later, while he and Shawn Atkins attempted to push start the truck, Doyle testified that he
saw Bubba Atkins standing over Mason with a brick raised overhead. Bubba Atkins later
discarded the brick in a garbage can. According to Doyle, Bubba Atkins was wearing the
athletic shoes impounded by the police from Doyle's apartment.
DISCUSSION
The Batson challenge.
Doyle, citing Batson v. Kentucky, 476 U.S. 79 (1986), claims that the State improperly
used its peremptory challenges to remove black venirepersons from the jury pool in violation
of his Fourteenth Amendment right to equal protection of the laws. The State contends that
the reasons given for excluding the jurors were race neutral and did not constitute purposeful
discrimination.
[Headnote 1]
Batson and its progeny set forth a three-step process for evaluating race-based objections
to peremptory challenges: First, the opponent of a peremptory challenge must make a prima
facie showing of racial discrimination; second, the burden of production then shifts to the
proponent of the strike to come forward with a race-neutral explanation; third, if a
race-neutral explanation is tendered, the trial court must decide whether the opponent of the
strike has proved that the proffered race-neutral explanation is merely a pretext for purposeful
racial discrimination. Purkett v. Elem,
------
U.S.
------
,
------
, 115 S. Ct. 1769, 1770-71
(1995); see also Batson, 476 U.S. at 91-99.
1. Prima facie showing
[Headnote 2]
To establish a prima facie case, the defendant first must show that he is a member of a
cognizable racial group and that the prosecutor has exercised peremptory challenges to
remove from the venire members of the defendant's race. Batson, 476 U.S. at 96. The trial
court must then determine if an examination of all the relevant circumstances raises an
inference that the prosecutor excluded venirepersons from the petit jury on account of their
race. Id. For example, a pattern' of strikes against black jurors included in the particular
venire might give rise to an inference of discrimination." Id. at 97.
112 Nev. 879, 888 (1996) Doyle v. State
included in the particular venire might give rise to an inference of discrimination. Id. at 97.
The prosecutor's statements may also be a relevant factor. Id.
[Headnote 3]
In the present case, the State exercised two of its peremptory challenges to strike black
venirepersons (Ms. Velasquez
1
and Ms. Samuels, respectively) from the panel and exercised
its remaining six peremptory challenges to strike non-black venirepersons. A third black
venireperson, Ms. Brown, was not stricken and remained on the panel. In the selection of
alternate jurors, the State exercised its first peremptory challenge to remove the only black
venireperson (Ms. Smith) from the alternate panel and waived its second challenge.
Presumably the exclusion of three-out-of-four black prospective jurors is sufficient to make
out a prima facie Batson violation; we need not decide this issue, however, because [o]nce a
prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial
court has ruled on the ultimate question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing becomes moot. Hernandez v. New
York, 500 U.S. 352, 359 (1991).
2. Race-neutral explanation
[Headnote 4]
The next step under the Batson analysis is to determine whether the State has presented a
race-neutral explanation in support of its exercise of the peremptory challenges against the
black venirepersons. Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral. Purkett,
------
U.S. at
------
,
115 S. Ct. at 1771 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)).
[Headnote 5]
In the present case, the stated explanation for the exclusion of Ms. Samuels was that she
currently had a brother serving a sentence for murder in the Louisiana State Prison. The stated
explanation for the exclusion of Ms. Smith was that she had a brother who had served an
unknown amount of time in the Nevada State Prison for robbery and probation violation, that
her mother had been arrested, and that she believed police officers could be rough and rude.
The State set forth its reasoning as follows:
__________

1
The district court noted that Ms. Velasquez may or may not be black. Because resolving this issue
dispositively would not change the conclusion reached herein, we assume arguendo that Ms. Velasquez is black.
112 Nev. 879, 889 (1996) Doyle v. State
The State has to assume in reading this type of response that this person is going to
harbor biases against the State; or if they don't even feel that they are at the time, they
certainly might be provoked by certain things that occur in the court proceedings, such
as a police officer testifying, or having to address the sentencing of another individual
for a violent crime which is something likely to occur in this case.
[Headnotes 6, 7]
This court has previously held that [a]ssociation with the criminal justice system is a
facially neutral reason to challenge veniremen. Clem v. State, 104 Nev. 351, 355, 760 P.2d
103, 106 (1988), overruled on other grounds, Zgombic v. State, 106 Nev. 571, 798 P.2d 548
(1990). Accordingly, we conclude that the State has met its burden in presenting a
non-discriminatory basis for striking Ms. Samuels and Ms. Smith.
2

3. Pretext
[Headnotes 8-10]
[T]he ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike. Purkett,
------
U.S. at
------
, 115 S. Ct. at 1771
(citations omitted). If the prosecutor offers explanations that are facially neutral, a defendant
may nevertheless show purposeful discrimination by proving the explanations pretextual.
United States v. Joe, 938 F.2d 99, 102 (4th Cir. 1991). If a prosecutor articulates a basis for
a peremptory challenge that results in the disproportionate exclusion of members of a certain
race, the trial judge may consider that fact as evidence that the prosecutor's stated reason
constitutes a pretext for racial discrimination. Hernandez v. New York, 500 U.S. at 363.
[Headnotes 11, 12]
Doyle argues that the State's explanations were pretextual because the State left several
non-black venirepersons on the jury who shared the same characteristics as the preempted
black venirepersons. Doyle concedes, however, that [o]f the 27 non African/Americans that
were cleared for cause, none of them had a family member that had been in prison.
Moreover, the district court's decision in this regard is discretionary and should ordinarily be
accorded great deference by the reviewing court.
__________

2
The district court declined to order the State to provide an explanation for striking Ms. Velasquez, stating that
an explanation of the State's reasons was unnecessary in light of the fact that it was the State's first peremptory
challenge, and no pattern of racial exclusion was evident. We conclude that, after accepting the State's
explanation for the exclusion of Ms. Samuels and Ms. Smith, it was not error for the district court to refuse to
require an explanation for the exclusion of Ms. Velasquez.
112 Nev. 879, 890 (1996) Doyle v. State
narily be accorded great deference by the reviewing court. See Clem, 104 Nev. at 356 (citing
Batson, 476 U.S. at 98 n.21). Accordingly, we conclude that the district court did not abuse
its discretion in rejecting Doyle's challenge on this basis.
[Headnote 13]
Doyle also argues that the State's explanations were pretextual because the criteria of
having a family member that has been imprisoned disproportionately excludes blacks. Doyle
points to the fact that at least fifty percent of the inmates incarcerated in Clark County are
black.
3
As Doyle argued, unsuccessfully, to the district court: [T]he fact that [one has] a
family member who has been incarcerated in a prison is really a discriminatory criteria,
because a much larger percentage of African/American individuals in Clark County, based on
the percentage, have family members that are incarcerated in our prison system. Doyle
contends that [a]n offered justification that has a significant disproportionate impact will
rarely qualify as a legitimate, race neutral reason . . . because disparate impact is itself
evidence of discriminatory purpose. Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265-266 (1977); Washington v. Davis, 426 U.S. 229, 242
(1976).
We believe that Doyle's argument is not consistent with the Supreme Court's equal
protection jurisprudence. As recently reiterated by the Supreme Court:
A court addressing this issue must keep in mind the fundamental principle that official
action will not be held unconstitutional solely because it results in a racially
disproportionate impact . . . . Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause. Arlington Heights v
Metropolitan Housing Development Corp. 429 U.S. 252, 264-265 (1977); see also
Washington v. Davis, 426 U.S. 229, 239 (1976).
Hernandez, 500 U.S. at 359-360. For example, Washington v. Davis, cited by Doyle, involved
an unsuccessful disproportionate impact challenge to a qualifying test administered to
applicants for positions as police officers. The Court held that use of the test did not violate
the equal protection rights of blacks even though proportionately more blacks than whites
tended to be disqualified by the test because (1) the fact of disproportionate impact alone did
not demonstrate that blacks individually were being denied equal protection of the laws by
application of the test and (2) the test was neutral on its face and could rationally be said to
serve a purpose that the government was constitutionally empowered to pursue.
__________

3
The district court apparently took judicial notice of this fact, although it rejected the merits of Doyle's
argument.
112 Nev. 879, 891 (1996) Doyle v. State
purpose that the government was constitutionally empowered to pursue. The Supreme Court
explained the distinction between purposeful discrimination and disparate impact as follows:
Necessarily, an invidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the law bears more
heavily on one race than another. It is also not infrequently true that the discriminatory
impactin the jury cases for example, the total or seriously disproportionate exclusion
of Negroes from jury veniresmay for all practical purposes demonstrate
unconstitutionality because in various circumstances the discrimination is very difficult
to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on
its face and serving ends otherwise within the power of government to pursue, is
invalid under the Equal Protection Clause simply because it may affect a greater
proportion of one race than of another. Disproportionate impact is not irrelevant, but it
is not the sole touchstone of an invidious racial discrimination forbidden by the
Constitution. Standing alone, it does not trigger the rule that racial classifications are to
be subjected to the strictest scrutiny and are justifiable only by the weightiest of
considerations.
426 U.S. at 242 (citations omitted) (emphasis added).
In short, the Supreme Court upheld the test in Washington v. Davis, in spite of its
disproportionate impact, because it established a valid and racially neutral qualification for
employment. Id. at 245. Similarly, striking potential jurors who have relatives in the criminal
justice system rationally serves the legitimate purpose of assuring a fair and impartial jury in
criminal cases. As Doyle has offered no challenge to the legitimacy of this criteria other than
that it has a disproportionate impact on blacks, we conclude that Doyle has not met his
burden of proving that the State's use of the above-mentioned criteria constitutes purposeful
racial discrimination.
Sufficiency of the evidence
[Headnote 14]
Doyle contends that the evidence presented at trial was insufficient to establish his guilt of
the charges of first-degree kidnaping, conspiracy to commit murder, and sexual assault. The
standard of review for sufficiency of evidence upon appeal, in a criminal case, is whether the
jury, acting reasonably, could have been convinced of the defendant's guilt beyond a
reasonable doubt. Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). It is the
jury's function, not that of the reviewing court, to assess the weight of the evidence and
determine the credibility of witnesses.
112 Nev. 879, 892 (1996) Doyle v. State
assess the weight of the evidence and determine the credibility of witnesses. Walker v. State,
91 Nev. 724, 726, 542 P.2d 438, 438-39 (1975).
1. First-degree kidnaping
Doyle contends that the evidence adduced at trial does not support his conviction for
first-degree kidnaping, arguing that sufficient evidence corroborating his admissions relative
to the offense was lacking.
[Headnotes 15-18]
The corpus delicti of a crime must be proven independently of the defendant's extrajudicial
admissions. Hooker v. Sheriff, 89 Nev. 89, 506 P.2d 1262 (1973). Thus, before the jury could
find that Doyle kidnapped Ebony Mason, a case of willful detention for the purpose of
committing sexual assault or murder must have appeared from evidence other than Doyle's
conversations with others. In People v. Alcala, 685 P.2d 1126 (Cal. 1984), cited by the State,
the court described the nature and degree of independent proof required to corroborate a
defendant's admissions:
The independent proof may be circumstantial evidence . . ., and it need not be beyond a
reasonable doubt. A slight or prima facie showing, permitting the reasonable inference
that a crime was committed, is sufficient. If the independent proof meets this threshold
requirement, the accused's admissions may then be considered to strengthen the case on
all issues.
Id. at 1136 (citations omitted). The court further stated:
There need not be independent support for each fact testified to by the suspect witness;
corroboration is sufficient for this purpose if it tends to connect the defendant with the
commission of the offense [charged] in such a way as reasonably may satisfy a jury that
the [witness] is telling the truth. (E.g., People v. Holford (1965) 63 Cal. 2d 74, 82, 45
Cal. Rptr. 167, 403 P.2d 423, quoting People v. Lyons (1958) 50 Cal. 2d 245, 257, 324
P.2d 556 (overruled on other grounds, People v. Green, [], 27 Cal. 3d 1, 32-34, 164
Cal. Rptr. 1, 609 P.2d 468).) Circumstantial evidence is sufficient, although such
evidence is slight and entitled, when standing by itself, to but little consideration.'
(Holford, [], quoting People v. McLean, (1890) 84 Cal. 480, 482, 24 P. 32).
Id. at 1136 n.10 (citations omitted). We conclude that sufficient circumstantial evidence of
the offense of first-degree kidnaping exists to satisfy the corpus delicti doctrine.
112 Nev. 879, 893 (1996) Doyle v. State
[Headnotes 19, 20]
The offense of first-degree kidnaping is defined in pertinent part, as follows:
Every person who willfully seizes, confines, inveigles, entices, decoys, abducts,
conceals, kidnaps or carries away any person by any means whatsoever with the intent
to hold or detain, or who holds or detains, the person for ransom, or reward, or for the
purpose of committing sexual assault, extortion or robbery upon or from the person, or
for the purpose of killing the person or inflicting substantial bodily harm upon him, or
to exact from relatives, friends, or any other person any money or valuable thing for the
return or disposition of the kidnaped person, . . . is guilty of kidnaping in the first
degree.
NRS 200.310(1). In addition, this court requires proof of asportation when the kidnaping is
incidental to another offense where restraint of the victim is inherent with the primary
offense. Hutchins v. State, 110 Nev 103, 108, 867 P.2d 1136, 1139-40 (1994); Clem v. State,
104 Nev. 351, 354, 760 P.2d 103, 105 (1988), overruled on other grounds, Zgombic v. State,
106 Nev. 571, 798 P.2d 548 (1990). Asportation is not required, however, where the victim is
physically restrained. Clem, 104 Nev. at 354, 760 P.2d at 105. Also, the kidnaping is not
incidental to the underlying offense if the restraint increased the risk of harm to the victim or
had an independent purpose and significance. Id.
[Headnote 21]
In the present case, Anderson testified at trial that he witnessed the victim voluntarily
leave with Doyle and the others upon an offer to give her a ride home. Evidence of a struggle
and the victim's savagely beaten body were eventually discovered at a secluded desert
location nowhere near the victim's home. We believe that the evidence presented made it
highly unlikely that Mason accompanied Doyle willingly to the death scene, and that, based
on this evidence, the jury could reasonably have surmised that Doyle was telling the truth
when he admitted to participation in the kidnaping. Moreover, the confinement and
movement of the victim to a secluded, untravelled desert area was not merely incidental to the
sexual assault and murder; it had the independent purpose and significance of substantially
lessening the risk of detection.
Accordingly, we conclude that sufficient evidence was adduced at trial to establish the
corpus delicti of first-degree kidnaping and, based on Doyle's admissions, Doyle's guilt
112 Nev. 879, 894 (1996) Doyle v. State
2. Conspiracy to commit Murder
Doyle contends that the evidence adduced at trial does not support his conviction for
conspiracy to commit murder, arguing that sufficient evidence corroborating his admissions
relative to the offense was lacking.
[Headnotes 22-25]
A conspiracy is an agreement between two or more persons for an unlawful purpose.
Peterson v. Sheriff, 95 Nev. 522, 598 P.2d 623 (1979). A person who knowingly does any act
to further the object of a conspiracy, or otherwise participates therein, is criminally liable as a
conspirator; however, [m]ere knowledge or approval of, or acquiescence in, the object and
purpose of a conspiracy without an agreement to cooperate in achieving such object or
purpose does not make one a party to conspiracy. State v. Arredondo, 746 P.2d 484, 487
(Ariz. 1987). [C]onspiracy is seldom susceptible of direct proof and is usually established by
inference from the conduct of the parties. Gaitor v. State, 106 Nev. 785, 790 n.1, 801 P.2d
1372, 1376 n.1 (1990) (quoting State v. Dressel, 513 P.2d 187, 188 (N.M. 1973)). In
particular, a conspiracy conviction may be supported by a coordinated series of acts, in
furtherance of the underlying offense, sufficient to infer the existence of an agreement. Id.
[Headnotes 26, 27]
In addition, this court has held that to sustain a conviction of conspiracy, the prosecution is
required to present proof, independent of the defendant's own admissions, that the defendant
entered into an agreement with at least one other person; however:
[t]he corroborative evidence need not be sufficient, independent of the statements to
establish the corpus delicti [but must] tend to establish the trustworthiness of the
statement . . . and provide substantial independent evidence that the offense has been
committed. United States v. Todd, 657 F.2d 212, 216 (8th Cir. 1981), quoting Opper
v. United States, 348 U.S. 84 (1954) and Smith v. United States, 348 U.S. 147 (1954).
Myatt v. State, 101 Nev. 761, 763, 710 P.2d 720, 722 (1985). In fact, proof of even a single
overt act may be sufficient to corroborate a defendant's statement and support a conspiracy
conviction. United States v. Todd, 657 F.2d 212, 216 (8th Cir. 1981) (citing United States v.
McCarty, 611 F.2d 220, 223 (8th Cir. 1979), cert. denied, 445 U.S. 930 (1980)).
[Headnote 28]
In the present case, the State presented competent evidence that Doyle left the Atkins
residence together with the victim and the Atkins brothers.
112 Nev. 879, 895 (1996) Doyle v. State
Doyle left the Atkins residence together with the victim and the Atkins brothers. The area
where the victim's body was eventually found, and the nearby area where a struggle likely
occurred, contained three distinct types of footwear impressions, one of which matched a pair
of shoes retrieved from Doyle's residence. The victim's body also bore at least two, distinctly
patterned contusions, one of which matched the pattern linked to the shoes found at Doyle's
apartment and a second design. None of the treadwear impressions or contusions matched the
pair of women's athletic shoes also found at the murder scene. This evidence, although
perhaps insufficient in itself to establish the corpus delicti of conspiracy, provides substantial
independent evidence of a conspiracy and tends to establish the trustworthiness of Doyle's
inculpatory statements regarding the alleged conspiracy. Accordingly, we conclude that
Doyle's conviction for conspiracy to commit murder was supported by sufficient evidence.
3. Sexual assault
Testimony adduced at trial indicated that a twig measuring four inches in length was found
protruding from Mason's rectum. This penetration is the sole basis of the instant sexual
assault charge.
4
Doyle challenges the sexual assault conviction on the ground that there is
not substantial evidence that the penetration preceded Mason's death. The State contends (1)
that substantial evidence was adduced at trial to establish that penetration occurred prior to
death and (2) that pre-mortem sexual penetration is not a necessary element of sexual assault.
This second question is one of first impression in Nevada.
a. Evidence of time of death
[Headnote 29]
No testimony was adduced at trial fixing the time of death in relation to when the twig was
inserted into the victim's rectum. Smith testified that Doyle said that the brick was dropped
repeatedly on Mason's face until she died. Mason's body was discovered some distance
from the road, where the struggle apparently took place.
__________

4
Sexual assault is defined in NRS 200.366(1) as follows:
A person who subjects another person to sexual penetration, or who forces another person to make a
sexual penetration on himself or another, or on a beast, against the victim's will or under conditions in
which the perpetrator knows or should know that the victim is mentally or physically incapable of
resisting or understanding the nature of his conduct, is guilty of sexual assault.
Sexual penetration includes: any intrusion, however slight, of . . . any object manipulated or inserted by a
person into the . . . anal opening of the body of another. NRS 200.364(2).
112 Nev. 879, 896 (1996) Doyle v. State
apparently took place. The twig matched the foliage in the area immediately surrounding the
body. The medical expert estimated that Mason's injuries, which were apparently inflicted
during the struggle, were likely to have produced death within two-to-four minutes. The
autopsy revealed no evidence of contusion, laceration, or other trauma associated with
Mason's rectum, evidence which would have supported the argument that she had been alive
at the time of the penetration. Possible indications of digging located near Mason's hands
suggest that she may have still been alive after being dragged into the bushes. We conclude,
however, that this evidence, by itself, is not sufficient to establish beyond a reasonable doubt
that sexual penetration occurred while Mason was alive. In fact, the only reasonable
conclusion, based on the available evidence, is that Mason was killed and her body then
carried or dragged into the bushes and discarded face down on the pile of dead twigs and
branches. Then, in a final act of depravity, the twig was inserted into her rectum.
b. Effect of peri-mortem sexual penetration on murder-rape conviction
Because the evidence adduced by the State is insufficient to discount the possibility that
Mason was dead when the twig was placed in her rectum, we must now decide whether
Nevada's rape statute allows a conviction in instances where the evidence is sufficient to
show only peri-mortem sexual penetration, that is that the sexual penetration occurred at or
around the time of death.
5
Doyle urges this court to recognize that a live victim is a
necessary element of sexual assault. In response, the State argues that it should be irrelevant
whether sexual penetration occurred before, at, or soon after death.
Other jurisdictions are split on this issue.
6
According to the California Supreme Court:
__________

5
At least one court has held that a defendant's claim that the state failed to establish whether sexual penetration
occurred prior to or after the death of the victim was not preserved for appellate review where defendant's
objection at trial was, like Doyle's objection in this case, based on insufficiency of evidence of the rape and not
on the rape of a dead body. See Smith v. Commonwealth, 722 S.W.2d 892, 893-94 (Ky. 1987). We can discern
no means of determining the sufficiency of the evidence without first determining what precisely the jury was
required to find; we are therefore not persuaded by the reasoning in Smith. Neither do we perceive any strategic
advantage gained by Doyle in objecting to the sufficiency of the evidence rather than the instruction itself, as this
court is now confined to reviewing the evidence in the light most favorable to the verdict. Hern v. State, 97 Nev.
529, 531, 635 P.2d 278, 278 (1981).

6
For examples of jurisdictions requiring a live victim for a rape conviction, see People v. Davis, 896 P.2d 119,
151 n.20 (Cal. 1995); People v. Kelly, 822 P.2d 385, 399 (Cal. 1992); State v. Perkins, 811 P.2d 1142, 1150-
112 Nev. 879, 897 (1996) Doyle v. State
Rape requires a live victim. Rape must be accomplished with a person, not a dead
body. It must be accomplished against a person's will. A dead body cannot consent to or
protest a rape, nor can it be in fear of immediate and unlawful bodily injury [as required
by section 261, subdivision (2)]. Penal Code section 263 provides, [t]he essential guilt
of rape consists in the outrage to the person and feelings of the victim of the rape . . . .'
A dead body has no feelings of outrage.
People v. Kelly, 822 P.2d at 399 (quoting People v. Sellers, 250 Cal. Rptr. 345, 350 (Cal. Ct.
App. 1974)) (additional citations omitted). The Kansas Supreme Court reached the same
result after reviewing the language of Kansas' rape statute:
K.S.A. 21-3502(1) begins, Rape is sexual intercourse with a person. Person
implies a living person. The statute goes on to define the circumstances when sexual
intercourse is rape (a) when the victim is overcome by force or fear; (b) when the
victim is unconscious or physically powerless; (c) when the victim is incapable of
giving consent because of mental deficiency or disease. All these circumstances require
that the victim be living when the act of intercourse takes place.
State v. Perkins, 811 P.2d at 1150-51. The Georgia Supreme Court reached the opposite
conclusion under its rape statute:
There is nothing in [the applicable code section] which precludes a finding of rape if
the victim is not alive at the moment of penetration. What the jury must find is that the
defendant had carnal knowledge of the victim forcibly and against her will.
. . . .
[A]gainst her will has been interpreted to mean without her consent, and has been
satisfied in cases in which the victim was drugged, asleep, unconscious, or in a coma.
We see no reason why it should be any less applicable in a case in which the defendant
has rendered the victim permanently unconscious by killing her.
__________
1151 (Kan. 1991); Hines v. State, 473 A.2d 1335 (Md. Ct. Spec. App.), cert. denied 481 A.2d 239 (Md. 1984);
People v. Hutner, 530 N.W.2d 174 (Mich. Ct. App. 1995); Rogers v. State, 890 P.2d 959 (Okla. Crim. App.
1995). For examples of jurisdictions not requiring a live victim for a rape conviction, see Lipham v. State, 364
S.E.2d 840 (Ga. 1988); Smith v. Commonwealth, 722 S.W.2d 892, 893-94 (Ky. 1987); Commonwealth v.
Waters, 649 N.E.2d 724 (Mass. 1995); State v. Brobeck, 751 S.W.2d 828 (Tenn. 1988); State v. Whitsell, 591
N.E.2d 265, 278 (Ohio Ct. App. 1990); State v. Collins, 585 N.E.2d 532, 536 (Ohio Ct. App. 1990). See
generally Annotation, Fact that Murder-Rape Victim was Dead at Time of Penetration as Affecting Conviction
for Rape, 76 A.L.R.4th 1147 (1990).
112 Nev. 879, 898 (1996) Doyle v. State
in which the defendant has rendered the victim permanently unconscious by killing her.
Lipham v. State, 364 S.E.2d at 842-43 (citations omitted). Tennessee expressly followed
Georgia's holding in Lipham, adding the following policy observation:
We are likewise unable to embrace the notion that the fortuitous circumstances, for the
rapist, that death may have preceded penetration by an instant, negates commission of
the crime of aggravated rape . . . . Reading the live only requirement into the statute
encourages rapists to kill their victims, in our opinion.
Brobeck, 751 S.W.2d at 832. In a slightly different approach, the Massachusetts Supreme
Court has recently held that [i]n the circumstances of one continuous event, it does not
matter whether the victim's death preceded or followed the sexual attack. Commonwealth v.
Waters, 724 N.E.2d at 726; see also State v. Whitsell, 591 N.E.2d at 278 ([T]he state was
required to show that the victim was alive when the series of assaults began which ultimately
resulted in the act of sexual penetration charged. It was not required to show that she was still
alive at the completion of the sequence of events.).
7

__________

7
Several of the courts that do not require that a rape victim be alive at the instant penetration occurred
nevertheless distinguish rape from sexual penetrations that implicate only the abuse of a corpse or necrophilia
statutes. As the Georgia court noted in Lipham:
The facts here differ fundamentally from a case in which one happens upon the corpse of a female and
engages in sexual intercourse with it. The use of force in the former and the absence of force in the latter
is the difference. One is rape and the other necrophilia.
364 S.E.2d at 842-43. Whitsell also distinguishes rape and necrophilia by the absence of the use of force in the
latter, adding further that had the sexual penetration taken place substantially after the victim had died,
appellant could legitimately argue that the assault constituted only an abuse of a corpse. 591 N.E.2d at 278.
In Nevada, necrophilia is a crime under NRS 201.450, which provides:
1. A person who commits a sexual penetration on the dead body of a human being shall be punished by
imprisonment in the state prison for life, with possibility of parole, beginning when a minimum of 5 years
has been served, or by a fine of not more than $20,000, or by both fine and imprisonment.
2. A person convicted of a violation of subsection 1 shall not be granted probation or
parole unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to
practice medicine in Nevada certifies that the person is not a menace to the health, safety or
morals of others.
3. For the purposes of this section, sexual penetration means cunnilingus, fellatio or any intrusion,
however slight, of any part of a person's body or any object manipulated or inserted by a person into
112 Nev. 879, 899 (1996) Doyle v. State
[Headnote 30]
Although Nevada's sexual assault statute provides little guidance in this regard, we
conclude that the better reasoned interpretation is that the legislature intended person in the
rape statute to mean a living human being. We believe that the indignities inflicted upon a
corpse, although contemptible in their own right, are distinguishable from those inflicted
upon the living, and we further believe that the legislature intended to recognize this
distinction when it enacted Nevada's necrophilia statute with its more flexible sentencing
guidelines.
[Headnote 31]
Moreover, we do not believe that recognizing a live only requirement for a rape
conviction will encourage rapists to kill their victims or, as our dissenting colleague asserts,
provides a sentencing windfall to a defendant who violently assaults his victim with the
intent of committing sexual assault, but kills his victim before the act of sexual penetration is
accomplished. In Parker v. State, 109 Nev. 383, 394, 849 P.2d 1062, 1069 (1993), this court
affirmed a sentence of death after concluding that whether sexual penetration occurred
post-mortem was irrelevant to the applicability of the murder-rape aggravating factor in that
case. This court pointed out that NRS 200.033(4) only requires a showing of an attempted
sexual assault, not that the penetration must be completed in the victim's lifetime. Id. This
court also concluded that [t]he fact that the sexual intercourse occurred provides ample
evidence that the assault against [the victim] was sexual in nature. Id. A defendant who
receives a death sentence plus a sentence for attempted rape plus a sentence for sexual
penetration of a dead human body has certainly received no sentencing windfall. We also
recognize that, under the same reasoning applied by this court in Parker, other states have
held that a live only requirement need have no effect on the applicability of the
felony-murder rule. See, e.g., People v. Kelly, 822 P.2d at 399-40 (Felony murder includes a
killing committed in the perpetration of, or attempt to perpetrate, rape.). Although not raised
in this appeal, presumably a similar result would be reached under Nevada law. See NRS
200.030(1)(b) (Murder of the first degree is murder which is . . . committed in the
perpetration or attempted perpetration of sexual assault.).
8

__________
the genital or anal openings of the body of another, including sexual intercourse in what would be its
ordinary meaning if practiced upon the living.

8
We also do not agree with our dissenting colleague's assertion that adoption of a live only requirement
means that victims of imminent sexual assault, fighting and resisting to the end, are thought to suffer no indignity
or outrage because they were killed by their attackers prior to being sexually
112 Nev. 879, 900 (1996) Doyle v. State
[Headnote 32]
Finally, had Doyle made a request for an instruction or a specific objection to the
instruction given, the trial court should have instructed the jury that rape cannot take place
after the victim is dead. We cannot say, however, that the instruction given was plain error.
The instruction that was given required the jury to find that the sexual penetration occurred
against the victim's will and without her consent. We conclude that it was implicit in the
instruction given that the victim be alive and that the instruction was therefore not improper.
For the reasons stated above, we conclude that Doyle's conviction for sexual assault was
not supported by substantial evidence.
The premeditation jury instruction
Doyle requests that this court overrule the holding in Powell v. State, 108 Nev. 700, 838
P.2d 921 (1992), as it relates to premeditation as an element of first-degree murder. In
Powell, this court held that, as long as the jury instruction comports with the standard
announced in Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978), there is no need to define
separately deliberateness. We conclude that this court's reasoning in Powell remains sound
and that there is, therefore, no need for this court to revisit the meaning of the phrase
deliberate, premeditated, and willful at this time.
The implied malice jury instruction
The jury was instructed regarding implied malice according to the statutory definition
provided in NRS 200.020(1) and (2).
9

__________
violated. The indignities suffered by such a victim are attempted rape, murder, and post-mortem sexual
penetration. Moreover, our dissenting colleague's assertion that, under the rule set forth in this decision, the cries
of resistance, outrage, and fear of an intended victim of sexual assault who dies before the moment of sexual
penetration no longer count makes no sense. Under this reasoning, the cries of an intended sexual assault
victim who manages to escape her attacker before sexual penetration can occur, or whose attacker is unable or
unwilling to commit the act of sexual penetration, also no longer count.
We also do not believe that NRS 201.450 which is popularly known as the necrophilia statute, although
that term appears nowhere in the text of the statute is intended only to apply to medically classifiable
necrophiles. The plain meaning of the statute is to punish the act of sexual penetration of a dead human body,
regardless of motive.

9
1. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which
is manifested by external circumstances capable of proof.
2. Malice shall be implied when no considerable provocation
112 Nev. 879, 901 (1996) Doyle v. State
Doyle contends that the instruction created a mandatory presumption in favor of the State and
improperly shifted the burden of proof to the defendant.
[Headnote 33]
In Ruland v. State, 102 Nev. 529, 728 P.2d 818 (1986), this court expressly held that the
above-mentioned jury instruction does not constitute an impermissible mandatory
presumption. See also Guy v. State, 108 Nev. 770, 839 P.2d 578 (1992) (identical instruction
held proper, although mandatory presumption issue not discussed). This court concluded that
the instruction was constitutionally permissible because the instruction merely defines
implied malice rather than directing the jury to find any presumed fact against the accused.
Ruland, 102 Nev. at 533, 728 P.2d at 820-21.
Doyle notes that the opposite conclusion was reached in Fulghum v. Ford, 850 F.2d 1529
(11th Cir. 1988), cert. denied, 488 U.S. 1013 (1989), a case that involved statutory language
identical to that contained in NRS 200.020. In Fulghum, the Eleventh Circuit Court of Appeal
found that the implied malice instruction, standing alone, would have been constitutionally
infirm. 850 F.2d at 1534 (citing Lamb v. Jernigan, 638 F.2d 1332 (11th Cir. 1982), cert.
denied, 460 U.S. 1024 (1983)). However, the court concluded that any ambiguity regarding
the State's burden of proving malice beyond a reasonable doubt was cured by the presence of
a strong circumstantial evidence instruction. Fulghum, 850 F.2d at 1535 (citing Lamb); see
also Francis v. Franklin, 471 U.S. 307, 318-19 (1985) ([T]he jury charge taken as a whole . .
. explained the proper allocation of burdens with sufficient clarity that any ambiguity in the
particular language challenged could not have been understood by a reasonable juror as
shifting the burden of persuasion.).
In Fulghum, the jury instructions provided: To warrant a conviction upon circumstantial
evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of the accused. 850 F.2d at
1535. The jury instructions in the present case contained no such language. Jury Instruction
No. 32, however, provided that [t]he defendant is presumed innocent until the contrary is
proved. This presumption places upon the State the burden of proving beyond a reasonable
doubt every material element of the crime charged. We believe that this court's reasoning in
Ruland remains sound. We also believe that, taken as a whole, the jury instructions in this
case were sufficient to cure any ambiguity that may have existed in the challenged jury
instruction regarding the State's ultimate burden of proving malice beyond a reasonable
doubt.
__________
appears, or when all the circumstances of the killing show an abandoned or malignant heart.
112 Nev. 879, 902 (1996) Doyle v. State
to cure any ambiguity that may have existed in the challenged jury instruction regarding the
State's ultimate burden of proving malice beyond a reasonable doubt. Accordingly, we
conclude that under either Ruland or Fulghum, the challenged instruction was not improper.
[Headnote 34]
Finally, we agree with the State that, even if this court finds that the instruction regarding
implied malice impermissibly shifted the State's burden of proving implied malice, the error
was harmless because it is clear in this case that the jury actually rested its verdict on the
ample evidence of express malice. See Scott v. State, 92 Nev. 552, 556, 554 P.2d 735, 738
(1976) (The jury returned a verdict of murder in the first degree. They must have found
beyond a reasonable doubt that [the defendant] murdered [the victim] deliberately, willfully,
and with premeditation. These elements of the crime conclusively established express malice.
. . . Thus, implied malice played no part in this case.); Chapman v. California, 385 U.S. 18,
24 (1967); see generally Yates v. Evatt, 500 U.S. 391, 404 (1991) ([T]he issue under
Chapman is whether the jury actually rested its verdict on evidence establishing the presumed
fact beyond a reasonable doubt, independently of the presumption.).
10

Mandatory statutory review
[Headnote 35]
Finally, although Doyle has made no assignments of error regarding the penalty phase of
his trial, pursuant to NRS 177.055, we conclude: (1) that the evidence fully supports the three
aggravating circumstances found by the jury, namely, murder committed by a person under a
sentence of imprisonment, murder committed by a person engaged in the commission of or an
attempt to commit kidnaping, and murder committed to avoid or prevent a lawful arrest; (2)
that the sentence of death was not imposed under the influence of passion, prejudice or any
arbitrary factor; and (3) that the sentence is not excessive, considering both the crime and the
defendant.
CONCLUSION
We conclude: (1) the State's peremptory challenge of three out of four black venirepersons
did not violate Doyle's Fourteenth Amendment right to equal protection of the laws; (2)
sufficient evidence was adduced at trial to support Doyle's convictions of first-degree
kidnaping and conspiracy to commit murder, but insufficient evidence was adduced at
trial to support his conviction of sexual assault; {3) the district court did not err in failing
to define the term "deliberate" as a separate, distinct element of first-degree murder; and
{4) the district court did not err in instructing the jury according to the statutory
definition of "implied malice."
__________

10
Yates sets out in detail the methodology for determining harmless error, consistent with the Due Process
Clause, with respect to unlawful presumptions.
112 Nev. 879, 903 (1996) Doyle v. State
first-degree kidnaping and conspiracy to commit murder, but insufficient evidence was
adduced at trial to support his conviction of sexual assault; (3) the district court did not err in
failing to define the term deliberate as a separate, distinct element of first-degree murder;
and (4) the district court did not err in instructing the jury according to the statutory definition
of implied malice.
For the foregoing reasons, we reverse Doyle's conviction of sexual assault and vacate the
related life sentence. Doyle's remaining convictions and his sentence of death are affirmed.
Young, Shearing and Rose, JJ., concur.
Steffen, C. J., concurring in part and dissenting in part:
I concur in all aspects of the majority's opinion with the exception of that part of the
opinion that reverses Doyle's conviction for sexual assault.
The victim in this case was penetrated by a twig inserted in her rectum. It is unknown
whether the penetration occurred prior to or after the victim's death. What is known, however,
is that the penetration occurred as part of the ongoing brutalization of the victim that resulted
in her death and the abandonment of her lifeless body.
The majority concludes that a sexual assault may occur only if the victim is alive at the
time of penetration. I would agree under circumstances where the penetration of a dead victim
does not occur as part of the ongoing criminal violence that resulted in the victim's death and
imminent penetration. In my view, the relevant issue should thus be whether the penetration
was accomplished by the perpetrator or perpetrators either during or shortly after the death of
the victim. If a stranger happens upon a dead body and subjects the body to sexual
penetration, the offense is clearly necrophila. Moreover, if the victim's killer preserves the
body and later has intercourse with it substantially after the act of killing occurred, such
intercourse would also constitute an act of necrophilia.
It makes no sense to me that a perpetrator, bent on sexually assaulting his victim, manages
to kill her prior to achieving penetration, thereby avoiding prosecution for sexual assault. He
has still committed the intended act of penetration against the will and without the consent of
the victim. The fact of the victim's intervening death does not negate the fact that she was
taken by force and against her will.
The necrophilia statute, NRS 201.450, was enacted in Nevada as a result of the body of a
dead child being stolen from a mortuary and sexually assaulted by the perpetrator, who
thereafter deposited the body in a garbage can. See minutes of testimony and discussion
before the Assembly Committee on the Judiciary and the Senate Judiciary Committee of
the Sixty-Second Session of the Legislature, dated March 16, 19S3 and April 5, 19S3,
respectively.
112 Nev. 879, 904 (1996) Doyle v. State
and discussion before the Assembly Committee on the Judiciary and the Senate Judiciary
Committee of the Sixty-Second Session of the Legislature, dated March 16, 1983 and April 5,
1983, respectively. The outrage prompting enactment of the statute was specifically designed
to secure the conviction of individuals who seek out dead bodies for their sexual pleasure.
The necrophilia statute simply has no place in a situation where, as here, the perpetrator
commits the sexual assault shortly after killing the victim. I am especially concerned over the
breadth of today's ruling, because violent offenders who attack their victims with intent of
committing sexual assault, but who kill their victims in order to accomplish their objectives,
will be entitled to a substantially lesser penalty because of having killed their victims prior to
sexually assaulting them.
I fully agree with the supreme courts of the states of Georgia and Tennessee on this
subject. In the case of State v. Brobeck, 751 S.W.2d 828 (Tenn. 1988), the court declared:
But assuming that the fact was established that Mrs. Fair was legally dead when
penetration occurred, we hold that the Court of Criminal Appeals erred in reversing and
dismissing the conviction of aggravated rape.
That Court failed to articulate the basis for its conclusion that the legislature
intended that the statute apply only to the living. There is not a single word or
phrase in the statute from which such intent can be derived and there is no ambiguity in
the statute that would permit a search beyond its express terms for such intent.
Lipham v. State, 257 Ga. 808, 364 S.E.2d 840 (1988) [,] is one of the few cases from
the courts of our sister states that has directly addressed the issue of whether the victim
must be alive at the very moment of penetration to commit the crime of rape. In
Lipham, the victim's body was found lying on her bed, nude from the chest down with
her legs spread apart. She had a contact gunshot wound on the left side of her head. The
court found that there was sufficient evidence to support a finding that defendant had
had sexual intercourse with the victim and then addressed the issue raised by defendant
that he could not be guilty of rape because the State did not prove that the victim was
alive when the rape occurred.
We quote from the opinion of the Supreme Court of Georgia as follows:
The offense of rape is defined in our Code as follows: A person commits the
offense of rape when he has carnal knowledge of a female forcibly and against her
will. Carnal knowledge is rape occurs when there is any penetration of the female
sex organ by the male sex organ."
112 Nev. 879, 905 (1996) Doyle v. State
is any penetration of the female sex organ by the male sex organ. [Citation
omitted.]
There is nothing in this code section which precludes a finding of rape if the
victim is not alive at the moment of penetration. What the jury must find is that the
defendant had carnal knowledge of the victim forcibly and against her will.
[Citation omitted.]
We have not heretofore addressed the effect of the use of deadly force to
overcome the victim's resistance in a rape case. . . .
If the element of force is satisfied where the defendant has used less than deadly
force to overcome the victim's resistance so as to allow him to have carnal
knowledge of the victim, the element of force is surely no less satisfied when the
defendant has used deadly force to accomplish his aim.
As for the remaining element, against her will has been interpreted to mean
without her consent, and has been satisfied in cases in which the victim was
drugged, asleep, unconscious, or in a coma. [Citations omitted.] We see no reason
why it should be any less applicable in a case in which the defendant has rendered
the victim permanently unconscious by killing her.
The facts here differ fundamentally from a case in which one happens upon a
corpse of a female and engages in sexual intercourse with it. The use of force in the
former and the absence of force in the latter is the difference. One is rape and the
other necrophilia . . . . [Citation omitted.]
The evidence in this case supports the jury's finding that the defendant had carnal
knowledge of Kate Furlow forcibly and against her will notwithstanding that it is
unclear whether the defendant first raped the victim and then killed her or first killed
the victim and then raped her.
Id. at 842-43.
Id. at 831-32.
Continuing, the Brobeck court also held that:
We are likewise unable to embrace the notion that the fortuitous circumstance, for the
rapist, that death may have preceded penetration by an instant, negates commission of
the crime of aggravated rape and reduces it to a relatively minor offense associated with
erotic attraction to dead bodies. Reading the live only requirement into the statute
encourages rapists to kill their victims, in our opinion.
112 Nev. 879, 906 (1996) Doyle v. State
Id. at 832. See also Commonwealth v. Waters, 649 N.E.2d 724, 726 (Mass. 1995) (In the
circumstances of one continuous event, it does not matter whether the victim's death preceded
or followed the sexual attack); State v. Gallegos, 870 P.2d 1097, 1105 (Ariz. 1994), cert.
denied, 513 U.S. 934, 115 S. Ct. 330 (1994) (against public policy to allow statute to be
construed to allow defendant's claim that he thought victim was dead before sexually
assaulting her, as such a concept would encourage sex offenders to kill their victims before
committing sexual offense); State v. Whitsell, 591 N.E.2d 265, 278 (Ohio Ct. App. 1990)
(state required to show that victim was alive when series of assaults began, but not required to
show victim was alive when sexual assault concluded sequence of events).
I am persuaded that the above reasoning is sound, and that there is no justifiable reason for
concluding that when, in the course of assaulting a victim, death ensues prior to penetration,
the crime of sexual assault cannot apply.
In the instant case, the victim suffered a twig inserted in her rectum either immediately
before or after her death. It was clearly a sexual assault that occurred either during a series of
assaults or immediately thereafter. If Doyle were convicted under the inapplicable statute
(NRS 201.450Sexual Penetration of Dead Human Bodythe necrophilia statute), his
sentence would allow parole after a minimum of 5 years. On the other hand, Doyle was
convicted under the sexual assault statute (NRS 200.366) involving substantial bodily harm.
Sentencing options under the latter statute include: (1) life without the possibility of parole;
(2) life with possibility of parole, with parole eligibility commencing after minimum of 15
years have been served; and (3) a definite term of 40 years, with eligibility for parole
commencing after minimum of 15 years has been served.
As noted, the sentences meted out for sexual assault with substantial bodily harm are all
much more severe than the sentencing options under the necrophilia statute. I am at a loss as
to why this court, or any court having the option, would provide a defendant who has
violently assaulted his victim with the intent of committing sexual assault, with a sentencing
windfall under clearly inapplicable necrophilia statute. A necrophile, who commits
necrophilia, is defined as [o]ne who has a morbid interest in dead bodies or who has
intercourse with corpses. Taber's Cyclopedic Medical Dictionary 1102 (15th ed. 1985). The
perpetrators in this case, including Doyle, were not necrophiles who had perverted interests in
having sexual intercourse with corpses. But the majority, concluding that it could not be
demonstrated beyond a reasonable doubt that the victim was still alive when penetration
occurred, reverses Doyle's conviction for sexual assault.
112 Nev. 879, 907 (1996) Doyle v. State
alive when penetration occurred, reverses Doyle's conviction for sexual assault.
We are thus faced with another judicial ruling that makes no sense. Victims of imminent
sexual assault, fighting and resisting to the end, are thus thought to suffer no indignity or
outrage because they have succumbed to their attackers' violence prior to being sexually
violated. Because they are dead, their efforts to resist sexual assault, thereby making it clear
that it would be accomplished without their consent, do not carry over after death. Having
suffered death before the final insult, their cries of resistance, outrage, and fear no longer
count. They are no longer persons under the majority's ruling.
I strongly suggest that just as a person's will speaks in law after death, the cries of a
resisting victim of intended sexual assault should also be heard after death. To do otherwise is
to deny dignity to the victim while encouraging the perpetrator, who will know that as far as
sexual assault is concerned, he should kill his intended victim prior to completing the
intended act. And, if the evidence is insufficient to establish beyond a reasonable doubt that
the victim was still alive at the time of the sexual assault, the benefit of the doubt is
unnecessarily given to the perpetrator by the majority.
Nevada's sexual assault statute provides that [a] person who subjects another person to
sexual penetration . . . against the victim's will or under conditions in which the perpetrator
knows or should know that the victim is mentally or physically incapable of resisting or
understanding the nature of his conduct, is guilty of sexual assault. NRS 200.366(1)
(emphasis added). Moreover, NRS 200.366(2)(a) makes it a category A felony if the
perpetrator, in connection with or as a part of the sexual assault inflicts substantial bodily
harm upon the victim. A brutalized person who is killed immediately preceding the sexual
assault remains a victim of substantial bodily harm even more so than many whose lives are
not forfeited to the rapist. Under NRS 200.366(3)(a), a person who commits a sexual assault
against a child, resulting in substantial bodily harm to a child, is also guilty of a category A
felony with heavy penalties. In both cases, the persons who have been killed in the process of
accomplishing a sexual assault are still victims, and a lifeless child is still a child. In my
judgment, the statute simply does not contemplate that victims who are killed just prior to
being sexually assaulted are no longer persons or victims or children within the meaning of
the statute, but are transmuted immediately into corpses whose defilement invokes only a
penalty for necrophiliaa crime that clearly does not apply.
112 Nev. 879, 908 (1996) Doyle v. State
For the reasons noted above, I concur in all aspects of the majority's affirmance of Doyle's
convictions, but dissent from both the result and the reasoning of the majority's reversal of
Doyle's conviction for sexual assault.
____________
112 Nev. 908, 908 (1996) Witter v. State
WILLIAM LESTER WITTER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27539
July 22, 1996 921 P.2d 886
Appeal from a judgment of conviction pursuant to a jury verdict on one count of
first-degree murder with use of a deadly weapon and from sentence of death, attempted
murder with use of a deadly weapon, attempted sexual assault with use of a deadly weapon,
and burglary. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
The supreme court held that: (1) defendant's question to prospective jurors regarding prior
felony conviction violated rule prohibiting voir dire questions touching on anticipated
instructions on the law and questions touching on verdict that juror would return when based
upon hypothetical facts; (2) trial court did not abuse its discretion in refusing to allow
defendant to question prospective jurors regarding letter to editor published in newspaper; (3)
trial court did not abuse its discretion in denying defendant's motion to invoke witness
exclusion rule with respect to penalty phase; (4) jury instruction defining premeditation was
proper; (5) jury instruction defining express malice was proper; (6) defendant was not
entitled to his proffered jury instruction defining deliberation; (7) trial court complied with
rule requiring court to confer with attorneys after close of evidence concerning jury
instructions and other matters, and requiring that conference be reported; (8) trial court did
not abuse its discretion in denying defendant continuance of penalty phase; (9) evidence that
defendant possessed knife in jail while awaiting trial was admissible during penalty phase;
(10) evidence that defendant was member of street gang was admissible during penalty phase;
(11) statement to jury that it should show no mercy, made by wife of murder victim, was
admissible victim-impact statement; (12) statute providing for punishment by death in certain
circumstances did not shift to defendant burden to prove that mitigating circumstances
outweighed aggravating circumstances; (13) trial court properly denied defendant's request to
argue last during closing arguments; (14) prosecutor's statements during closing argument
did not constitute misconduct; and {15) although trial court's failure to strike prevention
of lawful arrest aggravator was error, such error was harmless.
ments during closing argument did not constitute misconduct; and (15) although trial court's
failure to strike prevention of lawful arrest aggravator was error, such error was harmless.
Affirmed.
Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Philip
Kohn, Deputy Public Defender, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, Gary Guymon, Deputy District Attorney,
1. Criminal Law; Jury.
Scope of jury voir dire is within sound discretion of trial court and will be given considerable deference by supreme court.
2. Jury.
The critical concern of jury voir dire is to discover whether juror will consider and decide facts impartially and conscientiously
apply law as charged by court.
3. Jury.
Defendant's question to prospective jurors in capital case, as to whether they would still consider all three sentencing alternatives
in their deliberations if there was evidence that defendant had prior felony conviction involving use or threat of violence, violated rule
prohibiting voir dire questions touching on anticipated instructions on the law and questions touching on verdict that juror would
return when based upon hypothetical facts. EJDCR 7.70.
Due process concerns are not offended by rule prohibiting voir dire questions touching on anticipated instructions on the law and
questions touching on verdict that juror would return when based upon hypothetical facts. U.S. Const. amends. 5, 14; EJDCR 7.70.
5. Jury.
Trial court did not abuse its discretion in refusing to allow defendant to question prospective jurors regarding letter to editor,
which was published in newspaper during voir dire, and in which deputy attorney general stated that criminals should take
responsibility for their crimes; letter did not specifically mention defendant, and trial court would have run a greater risk of
contamination if it were to have allowed questions concerning article.
6. Jury.
Trial judge has large discretion in ruling on issue of possible prejudice resulting from news articles concerning defendant on trial,
and each case must turn on its special facts.
7. Criminal Law.
Trial court did not abuse its discretion in denying defendant's motion to invoke witness exclusion rule with respect to penalty
phase of capital murder trial. Legislature did not intend to exclude capital cases when enacting rule stating that certain
rules of evidence were not to apply to sentencing proceedings, and witness exclusion rule did not need to
be invoked in defendant's case, since only one witness testified at both guilty and penalty phases, and her
presence at both proceedings was specifically provided for by statute.
when enacting rule stating that certain rules of evidence were not to apply to sentencing proceedings, and witness exclusion rule did
not need to be invoked in defendant's case, since only one witness testified at both guilty and penalty phases, and her presence at both
proceedings was specifically provided for by statute. NRS 47.020, 50.155(1), (2)(d).
8. Criminal Law.
Purpose of sequestration of witnesses is to prevent particular witnesses from shaping their testimony, and to detect falsehood by
exposing inconsistencies.
9. Homicide.
Jury instruction defining premeditation was proper in first-degree murder trial; instruction stated, inter alia, that premeditation
was a design, a determination to kill, distinctly formed in the mind at any moment before or at time of killing.
10. Homicide.
Jury instruction defining express malice was proper in first-degree murder trial; instruction stated, inter alia, that express malice
is that deliberate intention unlawfully to take away life of fellow creature, which is manifested by external circumstances capable of
proof. NRS 200.020.
11. Homicide.
First-degree murder defendant was not entitled to jury instruction defining deliberation as deliberate means formed or arrived at
or determined upon as result of careful thought and weighing of consideration for and against proposed cause of action.
12. Criminal Law.
Procedures followed by trial court were sufficient to comply with rule requiring court to confer with attorneys after close of
evidence concerning jury instructions and other matters, and requiring that conference be reported, where trial judge met with counsel
in chambers, and, following each meeting, when proceedings were back on record, asked defendant's counsel if he had objections.
Procedures were sufficient to guarantee that any legitimate objections of defendant to jury instructions were considered and preserved
in record. SCR 250.
13. Homicide.
Trial court did not abuse its discretion in denying defendant continuance of penalty phase of murder trial, based on arguments of
defendant's counsel that he needed more time to secure expert to testify about gang violence in prisons, and that he was not informed of
prosecution's intention to use evidence of knife found in defendant's jail cell until eleven months after knife was found. Defendant's
counsel had or should have had actual notice of defendant's possession of knife based on notification from State that it was
investigating knife possession, and of defendant's involvement with street gangs based on his tattoos.
14. Criminal Law.
Granting of motion to continue is within sound discretion of trial court.
15. Homicide.
Evidence that defendant possessed knife in jail while awaiting trial was properly admitted during penalty phase of murder trial;
although such possession was unadjudicated offense, it was admissible since prosecution had proven beyond reasonable doubt that
aggravating circumstances existed.
16. Criminal Law.
Trial court is given broad discretion on questions concerning admissibility of evidence at penalty hearing. NRS 175.552(3).
17. Prisons.
Jail inmate did not have Sixth Amendment right to counsel at disciplinary hearing arising from charge that inmate possessed knife;
possession of knife was not punishable offense under laws of Nevada. U.S. Const. amend. 6.
18. Prisons.
Prisoner may have Sixth Amendment right to counsel at disciplinary hearing when charge involves conduct that is punishable
under state law. U.S. Const. amend. 6.
19. Homicide.
Evidence that defendant was member of street gang was admissible during penalty phase of murder trial. Evidence that defendant
told police officers that he could heighten his reputation by killing police officers, and that his clothing and tattoos indicated that was
member of violent street gang, tended to show that defendant posed threat of future violence to community. NRS 48.035(1).
20. Homicide.
Statement to jury that it should show no mercy, made by wife of murder victim in capital case, was admissible at penalty hearing
as victim-impact statement; statement was not expression of opinion as to what sentence defendant should receive, but rather was
request that jury return the most severe verdict that it deemed appropriate. NRS 175.552(3).
21. Criminal Law.
While victim may address impact that crime has had on victim and victim's family, victim can express opinion regarding
defendant's sentence only in non capital cases. NRS 175.552(3).
22. Criminal Law.
Statute providing for punishment by death in certain circumstances did not shift to defendant burden to prove that mitigating
circumstances outweighed aggravating circumstances; statute would be read as stating that death penalty was available punishment
only if state could prove beyond reasonable doubt that at least one aggravating circumstance existed, and that aggravating
circumstance or circumstances outweighed mitigating evidence. NRS 200.030(4).
23. Criminal Law.
Trial court properly denied capital murder defendant's request to argue last during closing arguments, since court lacked authority
to grant request. Statute mandated that district attorney or other counsel for state open and conclude argument unless case was
submitted without argument. NRS 175.141.
24. Criminal Law.
Trial court has duty to ensure that accused receives fair trial and to this end, court must exercise its discretionary power to control
obvious prosecutorial misconduct sua sponte.
25. Criminal Law.
In review of prosecutor's comments for misconduct, the relevant inquiry is whether comments were so unfair that they deprived
defendant of due process. U.S. Const. amends. 5, 14.
26. Criminal Law.
Comments by prosecutor that constitute misconduct but are harmless beyond a reasonable doubt do not warrant reversal.
27. Criminal Law.
Prosecutor did not make impermissible comment on community standards when, during closing argument in penalty phase of
capital case, prosecutor discussed existence of two schools of thought that death penalty exists for deterrence and for punishment,
and stated that anything less than death penalty would be disrespectful for the dead and irresponsible for the living; comments were
attempt to educate jury about some of the theories supporting criminal justice system, and why death penalty is available option.
28. Criminal Law.
Prosecutor may go beyond the evidence to discuss general theories of penology such as merits of punishment, deterrence, and
death penalty.
29. Criminal Law.
Prosecutor did not make improper plea to duty to society at large when, during closing argument in penalty phase of capital case,
prosecutor asked what message would be sent if defendant were allowed to live after thrusting knife into victim's skull and perpetrating
unspeakable deeds on victim's wife. Statements properly focused on appropriate punishment under facts of case, as well as what would
be necessary to deter others from committing such a brutal act.
30. Criminal Law.
Prosecutor did not improperly refer to matters outside record, or improperly disparage legitimate defense tactic, when, during
closing argument in penalty phase of capital case, prosecutor stated that in any penalty hearing the defense wants the jury to forget
about the victims; following objection, prosecutor modified his statement to conform to facts of case, and statement merely attempted
to keep jury's focus on actual victims.
31. Criminal Law.
Prosecutor did not engage in misconduct when, during closing argument in penalty phase of capital case, prosecutor discussed
possibility that defendant would kill prison guard if not subjected to death penalty; knife had been found in defendant's cell while he
was awaiting trial, and prosecutor's statements emphasized potential future threat that defendant posed to society.
32. Criminal Law.
Prosecutor did not make improper Golden Rule argument, or improper plea to return death penalty on behalf of victims, when he
asked how aggravating it was for defendant to get in your car and perpetrate these crimes on you, and when he stated that it would
be disrespectful to the dead and irresponsible to the living to return anything less than death penalty; latter statement was merely
pointing out that society values human life and that one who takes human life should have to pay with his own life, and any reference
to you in former statement appeared to be merely rhetorical.
33. Criminal Law.
It is improper for prosecutor to make plea to return death penalty verdict on behalf of victims.
34. Criminal Law.
It is unacceptable for prosecutor to make Golden Rule argument, in which prosecutor asks jury to stand in shoes of victim.
35. Homicide.
Prevention of lawful arrest aggravator did not apply to murder, since defendant killed victim not to avoid arrest but to continue
sexual assault on victim's wife. NRS 200.033(5).
36. Homicide.
Trial court's failure to strike prevention of lawful arrest aggravator in capital murder trial was harmless error, since remaining
four aggravators outweighed mitigating evidence presented by defendant. NRS 200.033(5).
OPINION
Per Curiam:
On June 28, 1995, a jury found William Witter guilty of murder with use of a deadly weapon, attempted sexual assault with use of a
deadly weapon, and burglary. A penalty hearing was held on July 10, 1995, through July 13, 1995, after which, by way of special verdict,
the jury sentenced Witter to death by lethal injection. The district court entered an amended judgment of conviction on August 2, 1995,
based on the jury's sentence of death for the first-degree murder charge and imposing a twenty-year sentence for attempted murder (plus a
twenty-year sentence enhancement for use of a deadly weapon), a twenty-year sentence for attempted sexual assault (plus a twenty-year
sentence enhancement for use of a deadly weapon), and a ten-year sentence for burglary. All sentences are to run consecutively. Witter
raises numerous issues on appeal. Although we conclude that the State has failed to prove the prevention of lawful arrest statutory
aggravator beyond a reasonable doubt, we conclude that the remaining aggravators outweigh the mitigating evidence presented by Witter.
Since Witter's remaining arguments are without merit, we affirm the district court's judgment of conviction and sentence of death.
FACTS
On November 14, 1993, Kathryn Cox (Kathryn) was working as a retail clerk for the Park Avenue Gift Shop located in the Luxor Hotel
in Las Vegas, Nevada. James Cox (James), Kathryn's husband, drove a taxicab in the Las Vegas area. At about 10:25 p.m., Kathryn called
James and informed him that she was having trouble with her car and needed assistance. James told her that he would be over to pick her
up in about twenty-five to thirty minutes. Kathryn returned to her car, got in, locked her door, and began to read a book.
About five to ten minutes later, the passenger side door opened, and William Witter got into the car. Witter demanded that Kathryn
drive him out of the lot.
that Kathryn drive him out of the lot. When Kathryn informed him that she could not, Witter
stabbed her just above her left breast. Witter pulled Kathryn closer to him and told her that he
was going to kill her. After stabbing Kathryn several more times, Witter became quiet,
unzipped his pants and ordered Kathryn to perform oral sex. Kathryn attempted to comply
with his demands, but because she had a punctured lung, she kept passing out. Witter pulled
Kathryn into a sitting position and told her, You're probably already dead. Kathryn
managed to open her door and attempted to run away, but was only able to get about ten or
fifteen feet before Witter caught her. Witter forced Kathryn back into the car and forced her
to kiss him. He then used his knife to cut away Kathryn's pants and began to fondle her
vaginal area with his finger.
Kathryn observed her husband's cab pull up next to the driver's side of her car. Witter, not
knowing that James was Kathryn's husband, held Kathryn close and stated, Don't say
anything. I'm going to tell him that you're having a bad cocaine trip. James opened the
driver's side door of Kathryn's car and told Witter to get out. Witter got out of the car, walked
over to James, and stabbed him numerous times. James fell backwards and into Kathryn, who
had gotten out of the car, knocking her to the ground. Kathryn got up and ran for a bus stop.
Once again, Witter caught Kathryn and carried her back to her car. After pulling the rest of
Kathryn's clothes off, Witter attempted to stuff James' body underneath James' cab. Kathryn
then heard hotel security approaching her vehicle.
A security officer in charge of patrolling the Excalibur Hotel's employee parking lot
approached Kathryn's car and confronted Witter. After a short standoff, the security officer's
backup arrived, and Witter was subdued. Paramedics arrived a short time later, and Kathryn
was taken to the hospital where she eventually recovered from her injuries. James was already
dead when the paramedics arrived.
DISCUSSION
Guilt Phase
Jury voir dire
[Headnotes 1, 2]
The scope of jury voir dire is within the sound discretion of the trial court and will be
given considerable deference by this court. Cunningham v. State, 94 Nev. 128, 575 P.2d 936
(1978). The critical concern of jury voir dire is to discover whether a juror will consider and
decide the facts impartially and conscientiously apply the law as charged by the court.
Adams v. Texas, 448 U.S. 38, 45 (1980).
1. Question regarding impact of prior violent felony conviction
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held that
the prosecution could properly ask a potential juror whether the juror would automatically
vote against the death penalty regardless of the facts of the case. Likewise, in Morgan v.
Illinois, 504 U.S. 719 (1992), the Court held that the defense was entitled to ask a potential
juror whether the juror would automatically vote for death regardless of the facts of the case.
[Headnote 3]
At trial, the district court denied Witter's request to ask potential jurors the following: If
there was evidence that Defendant had a prior felony conviction involving the use or threat of
violence, would you still consider all three sentencing alternatives in your deliberations? The
district court found that the question violated EJDCR 7.70.
1
Witter contends that the
question merely attempts to death qualify the jury through the use of a Morgan type question,
and if the question violates EJDCR 7.70, then EJDCR 7.70 violates due process concerns.
[Headnote 4]
Incorporated within Witter's question is the statutory aggravator listed in NRS 200.033(2)
(prior felony conviction involving the use or threat of violence). If Witter were allowed to ask
such a question, he would be able to read how a potential juror would vote during the penalty
phase of the trial. This goes well beyond determining whether a potential juror would be able
to apply the law to the facts of the case. We do not read either the Morgan or the Witherspoon
decisions to allow for one side to gain such an unfair advantage. Moreover, the record shows
that other questions asked during voir dire properly death qualified the jury. Since the
question touches on an anticipated instruction of law during the penalty phase, and inquires
into the verdict a juror would return based on hypothetical facts, we conclude that the district
court properly found that the questions violated EJDCR 7.70. We also conclude that the
restrictions of EJDCR 7.70 are consistent with the holdings in Morgan and Witherspoon and
that the rule does not offend due process concerns. For these reasons, we conclude that the
district court did not abuse its discretion when it precluded Witter's counsel from asking
his proposed question of prospective jurors.
__________

1
EJDCR 7.70 states, in pertinent part:
The following areas of inquiry are not properly within the scope of voir dire examination by counsel:
. . . .
(b) Questions touching on anticipated instructions on the law.
(c) Questions touching on the verdict a juror would return when based upon hypothetical facts.
we conclude that the district court did not abuse its discretion when it precluded Witter's
counsel from asking his proposed question of prospective jurors.
2. Newspaper article
[Headnote 5]
On one of the days during jury voir dire, a Las Vegas newspaper published a letter to the
editor authored by Deputy Attorney General Victor H. Schulze, II. The article stated, among
other things, that criminals should take responsibility for their crimes. The article did not
mention, nor did it allude to, Witter's case. The district court refused to allow Witter to
question the jury about the article. Witter now argues that the district court abused its
discretion. We disagree.
[Headnote 6]
We have recognized that, in an effort to protect the defendant's right to a fair trial,
procedural safeguards should be employed by the trial judge to insure that potentially
prejudicial news accounts of the proceedings do not prejudice the defendant. Crowe v. State,
84 Nev. 358, 441 P.2d 90 (1968). The trial judge has large discretion in ruling on the issue
of possible prejudice resulting from news articles concerning a defendant on trial and each
case must turn on its special facts. Id. at 363, 441 P.2d at 93 (citation omitted).
While we recognize that the trial court failed to utilize any procedural protections to insure
that the jury was not tainted by Schulze's article, we also recognize that the article did not
specifically refer to Witter's case. We believe that the district court would have run a greater
risk of contamination if it were to have allowed Witter's counsel to question the jurors about
the article. Under the circumstances, we conclude that Witter was not prejudiced by the
district court's refusal to allow his counsel to question the jury about Schulze's article.
Exclusion of witnesses
[Headnote 7]
At the beginning of trial, Witter made a motion to exclude all witnesses pursuant to NRS
50.155(1),
2
the witness exclusion rule, including those who would be testifying at a penalty
hearing. The district court invoked the rule as to the guilt phase of the trial, but refused to
invoke it with regard to the penalty phase. Witter now argues that the district court abused
its discretion.
__________

2
NRS 50.155(1) states that [e]xcept as otherwise provided in subsections 2 and 3, at the request of a party the
judge shall order witnesses excluded so they cannot hear the testimony of other witnesses, and he may make the
order of his own motion.
Witter now argues that the district court abused its discretion. We disagree.
[Headnote 8]
NRS 47.020 states that the rules of evidence under NRS Title 4 are to govern the
proceedings of the courts of the State of Nevada, but are not to apply to sentencing
proceedings. Witter argues that NRS 47.020 should be disregarded in capital cases because of
the severity of the punishment. See Griffin v. Illinois, 351 U.S. 12 (1956) (those charged with
capital offenses are to be granted special considerations). We conclude that this argument is
without merit. Had the legislature intended to exempt death cases from the exclusion of NRS
47.020, we believe it would have expressly provided for such an exemption. Moreover, we
conclude that the district court properly found that the witness exclusion rule did not need to
be invoked against penalty phase witnesses in this case. The purpose of sequestration of
witnesses is to prevent particular witnesses from shaping their testimony, and to detect
falsehood by exposing inconsistencies. Givens v. State, 99 Nev. 50, 55, 657 P.2d 97, 100
(1983) (citations omitted), overruled on other grounds, Talancon v. State, 102 Nev. 294, 721
P.2d 764 (1986). Kathryn Cox was the only witness to testify at both the guilt phase and the
penalty phase, and her presence at both proceedings is specifically provided for in NRS
50.155(2)(d). For these reasons, we conclude that the district court did not err when it refused
to invoke the witness exclusion rule against penalty-phase witnesses.
Jury instructions
With regard to his first-degree murder conviction, Witter argues that the instructions given
to the jury failed to distinguish adequately the elements of malice and premeditation, and that
the district court erred when it refused his proposed jury instruction which attempted to define
deliberation.
3

__________

3
Jury Instruction No. 7 stated:
Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is
manifested by external circumstances capable of proof.
Malice may be implied when no considerable provocation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.
Jury Instruction No. 9 stated:
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or
at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive
thoughts of the mind. For the killing has been preceded by and has been the result of premeditation, no
[Headnotes 9-11]
We have previously held that the premeditation instruction challenged here provides the
jury with an accurate definition of premeditation and deliberation. See Powell v. State, 108
Nev. 700, 708, 838 P.2d 921, 926 (1992), vacated on other grounds, 511 U.S. 79 (1994). We
conclude that this court's reasoning in Powell remains sound. Furthermore, in Guy v. State,
108 Nev. 770, 839 P.2d 578 (1992), cert. denied, 507 U.S. 1009 (1993), this court held that
the very same malice jury instruction accurately informed the jury of the distinction between
express malice and implied malice. See NRS 200.020. We conclude that the jury instructions
actually submitted to the jury were proper, and that the district court did not err when it
refused Witter's instruction defining deliberation.
Supreme Court Rule 250
[Headnote 12]
Part III, section B of SCR 250 states, in relevant part:
After close of the evidence, the court shall confer with the prosecuting attorney and
defense counsel. The conference shall be reported.
The following matters shall be concluded during the conference after close of the
evidence:
1. Proposed written instructions shall be presented to the court for rulings. The
defendant need not be present when the instructions are settled.
2. The court shall make a final ruling on any issue properly raised as to which a
tentative ruling or no ruling was made during presentation of the evidence.
Toward the end of both the guilt and penalty phases of the trial, counsel for both the
prosecution and defense met with the district court judge in chambers to discuss jury
instructions. After each meeting, when the proceedings were back on the record, the court
asked Witter's counsel if he had any objections. Witter's counsel objected to the procedure
used by the court, arguing that under SCR 250 the entire discussion should have been on the
record. The court found the procedure to be proper. Witter now argues that he was deprived
of a fair trial.
We conclude that the procedures followed by the district court were sufficient to guarantee
that any legitimate objections Witter may have had about the jury instructions were
considered by the district court and were preserved in the record.
__________
matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate
and premeditated murder.
Witter's proposed instruction stated: Deliberate means formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed cause of action.
district court and were preserved in the record. Accordingly, we conclude that the procedures
used by the district court satisfy the provisions of SCR 250.
Penalty phase
Motion for continuance
[Headnote 13]
On June 28, 1995, the jury returned a verdict of guilty on all counts, and the district court
scheduled the penalty hearing to begin on July 10, 1995, with discovery to occur on July 6,
1995. In the course of the penalty hearing, the State introduced evidence of Witter's gang
affiliation, and evidence that a shank (knife) was found in his jail cell while he was awaiting
trial. At the penalty hearing, Witter made a motion for continuance, arguing that he planned
to have an expert testify about gang violence and that he needed more time to secure such an
expert. The district court concluded that Witter had adequate time to prepare for the penalty
hearing and, accordingly, denied Witter's motion. Witter now argues that the district court
abused its discretion for the following reasons: (1) a shank was found in Witter's jail cell on
August 5, 1994, yet the State did not inform him of its intention to use the evidence at the
penalty hearing until July 5, 1995; (2) he only had four days from the date of discovery until
the date of the penalty hearing in which to secure expert testimony regarding gang violence;
and (3) the district court unfairly denied his motion to continue the penalty phase because he
was unable to secure expert witness testimony during the guilt phase.
[Headnote 14]
The granting of a motion to continue is within the sound discretion of the trial court.
Doleman v. State, 107 Nev. 409, 812 P.2d 1287 (1991). In Rogers v. State, 101 Nev. 457, 705
P.2d 664 (1985), cert. denied, 476 U.S. 1130 (1986), we held that one week's notice of the
prosecution's intent to present evidence of prior convictions involving violence was
sufficient. In that case, we concluded that the defendant was not prejudiced because he had
actual knowledge of the aggravating circumstance and had sufficient time to prepare a
challenge. See also Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988) (six-day notice of
the State's intent to use an aggravating circumstance found to be sufficient).
In the present case, on June 20, 1995, almost a full year before the penalty hearing, the
State notified Witter's counsel that it was investigating an alleged discipline problem
(possession of a shank) involving Witter. In addition, Witter's body displays a number of
tatoos that are consistent with those worn by members of street gangs in San Jose, California,
Witter's hometown. From these facts, we conclude that Witter's counsel had, or should
have had, actual notice of Witter's possession of a shank while incarcerated, and his
involvement with street gangs.
these facts, we conclude that Witter's counsel had, or should have had, actual notice of
Witter's possession of a shank while incarcerated, and his involvement with street gangs. We
also conclude that even if Witter were able to secure expert testimony regarding gang
violence in prisons, such testimony would have done little to mitigate his involvement. We
therefore conclude that Witter was not prejudiced by the district court's decision to allow only
four days between discovery and the penalty hearing. Accordingly, we conclude that the
district court did not abuse its discretion when it refused to grant Witter's motion for
continuance.
Penalty phase evidence
[Headnote 15]
Witter argues that the district court erred in admitting evidence of his possession of a
shank, since his possession was an unadjudicated offense and he was not allowed
representation at the disciplinary hearing which he contends was a violation of the Sixth
Amendment to the United States Constitution.
[Headnote 16]
Under NRS 175.552,
4
the trial court is given broad discretion on questions concerning the
admissibility of evidence at a penalty hearing. Guy, 108 Nev. 770, 839 P.2d 578. In Robins v.
State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 499 U.S. 970 (1991), this court held
that evidence of uncharged crimes is admissible at a penalty hearing once any aggravating
circumstance has been proven beyond a reasonable doubt.
In this case, the State proved beyond a reasonable doubt that Witter had a previous felony
conviction involving violence to the person of another, that Witter murdered James in the
commission of or an attempt to commit a burglary, and that Witter murdered James while
engaged in the commission of or attempt to commit a sexual assault. We therefore conclude
that the district court properly admitted evidence of his possession of a shank while he was
incarcerated.
[Headnotes 17, 18]
Furthermore, we conclude that Witter did not have a Sixth Amendment right to counsel at
his disciplinary hearing. While a prisoner may have a Sixth Amendment right to counsel at
a disciplinary hearing when the charge involves conduct that is punishable under state
law, see Wolff v. McDonnell, 41S U.S. 539 {1974);
__________

4
NRS 175.552(3) states, in part:
3. In the [penalty] hearing, evidence may be presented concerning aggravating and mitigating
circumstances relative to the offense, defendant or victim and on any other matter which the court deems
relevant to sentence, whether or not the evidence is ordinarily admissible. . . . No evidence which was
secured in violation of the Constitution of the United States or the constitution of the State of Nevada
may be introduced. . . .
prisoner may have a Sixth Amendment right to counsel at a disciplinary hearing when the
charge involves conduct that is punishable under state law, see Wolff v. McDonnell, 418 U.S.
539 (1974); Gagnon v. Scarpelli, 411 U.S. 778 (1973), Witter's possession of the shank is not
a punishable offense under the laws of Nevada.
[Headnote 19]
Witter also contends that the district court erred in admitting evidence showing that he is a
member of a street gang. According to Witter, the evidence lacked any probative value and
was offered only to inflame the passions of the jury.
NRS 48.035(1) states that [a]lthough relevant, evidence is not admissible if its probative
value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues
or of misleading the jury. While this court has cautioned that the introduction of gang
membership during a penalty hearing may be unfairly prejudicial, see Young v. State, 103
Nev. 233, 737 P.2d 512 (1987); Lay v. State, 110 Nev. 1189, 886 P.2d 448 (1994); see also
Dawson v. Delaware, 503 U.S. 159 (1992), this court has held that [f]rom Dawson, we
derive the following rule: Evidence of a constitutionally protected activity is admissible only
if it is used for something more than general character evidence. Flanagan v. State, 109 Nev.
50, 53, 846 P.2d 1053, 1056 (1993). In Dawson, the United States Supreme Court reasoned
that [a] defendant's membership in an organization that endorses the killing of any
identifiable group, for example, might be relevant to a jury's inquiry into whether the
defendant will be dangerous in the future. 503 U.S. at 166.
In this case, the State presented testimony from the arresting officers indicating that Witter
told them that he could heighten his reputation if he were to kill police officers, and from a
second officer who stated that from the clothing Witter was wearing and from the tatoos on
his arm, he believed that Witter was a member of a violent California gang known as the
Nortenos. We conclude that this evidence tends to show that Witter posed a threat of future
violence to the community. Moreover, we conclude that the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice, or confusion of the issues
or of misleading the jury. Accordingly, we conclude that the district court properly admitted
evidence of Witter's affiliation with a street gang.
Motion for mistrial
[Headnote 20]
At the penalty hearing, Kathryn Cox read a prepared statement to the jury in which she
demanded that the jury show no mercy to the defendant, and in which she informed the
jury that she intended to do everything in her power to see that Witter received no mercy.
the defendant, and in which she informed the jury that she intended to do everything in her
power to see that Witter received no mercy. Witter made a motion for mistrial, arguing that
Kathryn's statements went beyond the scope of what is acceptable as a victim-impact
statement since the statements unduly inflamed the passions of the jury and that they
amounted to a plea for the return of a death penalty sentence. The district court denied
Witter's motion. Witter now argues that he was deprived of a fair trial and that the district
court abused its discretion when it denied his motion for mistrial.
[Headnote 21]
In Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Supreme Court overruled prior
precedent and held that if a State chooses to permit the admission of victim impact evidence
and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. In
Homick v. State, 108 Nev. 127, 825 P.2d 600 (1992), we applauded the decision reached in
Payne and concluded that the decision comports with the principles of the Nevada
Constitution. NRS 175.552(3) states, in part, that [i]n the [penalty] hearing, evidence may be
presented concerning aggravating and mitigating circumstances relative to the offense,
defendant or victim and on any other matter which the court deems relevant to sentence,
whether or not the evidence is ordinarily admissible. However, while a victim may address
the impact that the crime has had on the victim and the victim's family, a victim can only
express an opinion regarding the defendant's sentence in non capital cases. Randell v. State,
109 Nev. 5, 846 P.2d 278 (1993).
We conclude that in asking the jury to show no mercy, Kathryn was not expressing her
opinion as to what sentence Witter should receive. Rather, we believe that Kathryn was only
asking that the jury return the most severe verdict that it deemed appropriate under the facts
and circumstances of this case. Kathryn's statements also emphasize the devastating effect
this crime has had on her and her family's life. Such sentiments are admissible victim-impact
statements. NRS 175.552(3). We therefore conclude that Witter was not deprived of a fair
trial and that the district court properly denied Witter's motion for mistrial.
Witter's motion to argue last
Witter contends that NRS 200.030(4)
5
shifts the burden of proof to the defendant to prove
that mitigating circumstances outweigh aggravating circumstances.
__________

5
NRS 200.030(4) states, in part, that [a] person convicted of murder of the first degree is guilty of a category
A felony and shall be punished: (a) By death, only if one or more aggravating circumstances are found and any
mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or
circumstances.
outweigh aggravating circumstances. Witter cites Griffin v. Illinois, 351 U.S. 12 (1956), and
argues that the district court should have allowed him to argue last during closing arguments.
We disagree.
[Headnotes 22, 23]
First, we read NRS 200.030(4) as stating that the death penalty is an available punishment
only if the state can prove beyond a reasonable doubt at least one aggravating circumstance
exists, and that the aggravating circumstance or circumstances outweigh the mitigating
evidence offered by the defendant. The statute does not shift the burden of proof to the
defendant. Second, unless the case is submitted to the jury by one or both sides without
argument, NRS 175.141
6
mandates that the district attorney, or other counsel for the state,
open and conclude argument. Under NRS 175.141, the district court does not have the
authority to grant Witter's request. Moreover, such a concession would unfairly disadvantage
the prosecution. Accordingly, we conclude that the district court did not err when it denied
Witter's request to argue last during the penalty phase.
Prosecutorial misconduct
[Headnotes 24-26]
The trial court has a duty to ensure that an accused receives a fair trial, and to this end the
court must exercise its discretionary power to control obvious prosecutorial misconduct sua
sponte. Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985), cert. denied, 486 U.S. 1036
(1988). In reviewing a prosecutor's comments, the relevant inquiry is whether the comments
were so unfair that they deprived the defendant of due process. Darden v. Wainwright, 477
U.S. 168 (1986). However, comments that are harmless beyond a reasonable doubt do not
warrant reversal. Witherow v. State, 104 Nev. 721, 765 P.2d 1153 (1988).
1. Community standards
[Headnote 27]
During the penalty phase closing argument, the prosecutor commented: When we talk
about the death penalty, there are two schools of thought as to why society might have it.
__________

6
NRS 175.141 states, in pertinent part:
The jury having been impaneled and sworn, the trial shall proceed in the following order:
. . . .
5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both
sides, without argument, the district attorney, or other counsel for the state, must open and must conclude
the argument.
When we talk about the death penalty, there are two schools of thought as to why
society might have it. One school of thought is that of deterrence. Deterrence is
achieved through severity of punishment. It is important for the image of the criminal
justice system to have the death penalty. It is important to send a message to people in
the community and to would[-]be murderers that there are lines that you do not cross in
Nevada; that there is some conduct that simply will not be tolerated and will be met
with a very, very severe penalty.
The other school of thought is one of punishment. It is an expression of society's
sense of moral outrage. Society has a right to feel that outrage when confronted with
these crimes and to respond to it. It flows from the concept that consequences follow
actions; that there are penalties for crimes; that punishment should fit the crime; the
worse the act, the worse the penalty.
The prosecutor also commented that anything less than the death penalty would be
disrespectful to the dead and irresponsible to the living. Witter argues that these statements
amount to an impermissible comment on community standards. We disagree.
[Headnote 28]
In Collier, we held that a prosecutor's statement that if the jury was not angry with the
defendant then we are not a moral community, improperly inflamed the jury and amounted
to prosecutorial misconduct. 101 Nev. at 479, 705 P.2d at 1129. Nevertheless, the prosecutor
may go beyond the evidence to discuss general theories of penology such as the merits of
punishment, deterrence and the death penalty. Id. at 478, 705 P.2d at 1129.
We conclude that the comments cited above were an attempt to educate the jury about
some of the theories supporting our criminal justice system, and why the death penalty is an
available option. Since these are proper areas for prosecutorial comment, we conclude that
the prosecutor did not engage in misconduct.
2. Duty to society at large
[Headnote 29]
During the penalty phase closing argument, the prosecutor commented:
What message does this punishment send today? Will we tell would[-]be murders,
will we tell this community, that you can kill a man, thrust a knife into his skull 16
times, one time through his skull, 16 times into his body, that you can perpetrate
unspeakable, despicable deeds upon his wife in her own car and that you, the
husband, can drive upon that crime scene and witness your wife bleeding to death,
struggling for your life, what message does it send to say the man that perpetrates
those crimes can live his life in prison, can write his family, see his family, speak to
his family?
her own car and that you, the husband, can drive upon that crime scene and witness
your wife bleeding to death, struggling for your life, what message does it send to say
the man that perpetrates those crimes can live his life in prison, can write his family,
see his family, speak to his family?
Witter argues that these statements amount to an improper plea to a duty to society at large.
See Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989) (prosecutor committed
misconduct by referring to the jury as the conscience of the community); Collier, 101 Nev.
473, 705 P.2d 1126; Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988), vacated on other
grounds sub nom., Flanagan v. Nevada, 503 U.S. 931 (1992) (prosecutor's remark, [i]f we
don't punish, then society is going to laugh at us found to be improper). We disagree.
We conclude that these statements properly focus on what would be an appropriate
punishment under the facts and circumstances of this case, as well as what would be
necessary to deter others from committing such a brutal act. These are entirely proper areas
for comment. Accordingly, we conclude that these statements did not constitute an improper
plea to a duty to society at large.
3. Reference to matters outside the record
[Headnote 30]
The following exchange took place during the prosecution's closing argument during the
penalty phase:
MR. OWENS: And it's very subtle, and you may not have noticed it, but in any
penalty hearing what the defense and every witness that the defense calls wants you to
do is forget about
MR. KOHN: I object, Your Honor.
THE COURT: Overruled.
MR. OWENS: What the defense has done in this case, ladies and gentlemen, is to
try to make you forget about Kathryn Cox and James Cox. The whole case gets turned
upside down and they twist things around until they can portray the vic the
defendant, William Witter, as if he is the victim.
Witter argues that in stating in any penalty hearing what the defense and every witness that
the defense calls wants you [the jury] to do is to forget about [the victims], the prosecution
improperly referred to matters outside the record on appeal. See State v. Kassabian, 69 Nev.
146, 243 P.2d 264 (1952). Witter also argues that these statements improperly disparage a
legitimate defense tactic.
mate defense tactic. See Williams v. State, 103 Nev. 106, 734 P.2d 700 (1987); Pickworth v.
State, 95 Nev. 547, 598 P.2d 626 (1979).
We conclude that both of Witter's arguments lack merit. After the objection, the prosecutor
modified his statement to conform to the facts of this case. As such, the statement did not
refer to matters outside of the record. Moreover, the statement did not disparage a legitimate
defense tactic. Rather, the statement merely attempted to keep the jury's focus on the actual
victims of Witter's crime. We therefore conclude that the prosecutor's statements were proper.
4. Comments about possible future crimes
[Headnote 31]
The prosecutor made the following comments during the penalty phase closing argument:
Don't let him go back where he can murder again, and perhaps this time a
corrections officer, because that is exactly what he has threatened to do. He told the
police officers that [t]ake these handcuffs off of me so I can kill a police officer. That's
all I need to do to raise my reputation higher.
Don't give him the chance. Don't let it happen because it wouldn't be fair; it wouldn't
be justice.
. . . .
But we are going to place William Witterat least if we do what the defense wants
you to do, we are going to place him in prison, where he can heighten his reputation
and perpetrate unspeakable crimes on perhaps unsuspecting guards.
And certainly guards are trained individuals; they are trained to protect themselves,
but they don't have eyes in the back of their heads, and they don't know when a William
Witter will wrap a shank that he made in a towel and become angry and thrust that into
the life of a corrections officer and bring about another tragedy.
. . . .
History repeats itself.
What unsuspecting prisoner might William Witter's life cross and what might
happen to that prisoner? Oh, certainly, that's just a prisoner and he's a wrongdoer and
maybe he gets what he deserves.
. . . .
Interestingly enough, the defense didn't ask their witness perhaps the most important
question for you people:
Doctor, let's talk about the future dangerousness of this man. Can anybody in your
profession predict future dangerousness?
. . . .
So I took the doctor through a history of violence and asked: Does history repeat
itself? Are the acts of the defendant indicators of his future dangerousness?
Because you people need to know what kind of danger rests in the future of lives of
other individuals that come in contact with Dr. Etcoff.
Now that's a question that they didn't ask. It's a question I wanted you to know; and
the answer was clear: History repeats itself.
. . . .
Knowing the future dangerousness, it would be disrespectful to the dead and
irresponsible to the living to let this man have his life of prison, to let him create
another personal jungle for himself like the jungle that he created in the parking lot on
November 14, 1993.
In Collier, we held that a prosecutor's remarks which sought to promote a conclusion that a
defendant's rehabilitation was improbable, that he might well kill again while in prison, and
that he should therefore be put to death were highly inappropriate. 101 Nev. at 478, 705 P.2d
at 1129. In Riley v. State, 107 Nev. 205, 219, 808 P.2d 551, 560 (1991), cert. denied,
------
U.S.
------
, 115 S. Ct. 1431 (1995), we modified our holding in Collier to allow a prosecutor
to ask a jury to draw an inference of future dangerousness when there is evidence of a
defendant's past conduct that would support a reasonable inference that even incarceration
would not deter the defendant from endangering others' lives. Finally, in Redmen v. State,
108 Nev. 227, 828 P.2d 395 (1992), cert. denied, 506 U.S. 880 (1992), overruled on other
grounds, Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995), we expanded our holding in
Riley to allow prosecutors to argue the future dangerousness of a defendant even when there
is no evidence of violence independent of the murder in question.
Witter contends that the prosecutor's statements were improper under Collier. We
disagree. In accordance with our holding in Redmen, the prosecutor was allowed to argue that
Witter posed a threat of future dangerousness based solely on his murder of James. Moreover,
in Haberstroh, 105 Nev. 739, 782 P.2d 1343, we held that a defendant's past conduct in jail
justifies a prosecutor's comment that defendant could pose a continuing threat to others. In
this case, the record clearly shows that a shank was found in Witter's cell while he was
awaiting trial. We therefore conclude that the prosecutor's statements emphasized the
potential future threat Witter posed to society.
conclude that the prosecutor's statements emphasized the potential future threat Witter posed
to society. As such, we conclude that those statements were proper.
5. Golden Rule plea
[Headnote 32]
During the penalty phase closing argument, the prosecutor commented:
Do I make these statements to excite you or to remind you of the violence that
encompasses the defendant? For a moment, we recreate that crime because this
punishment has to fit that crime.
But how aggravating is it to sit there and this man get in your car, the vehicle that
you own, and begin to perpetrate these crimes on you?
[Headnotes 33, 34]
It is improper for a prosecutor to make a plea to return a death penalty verdict on behalf of
victims. Howard v. State, 106 Nev. 713, 800 P.2d 175 (1990). It is equally unacceptable for a
prosecutor to ask the jury to stand in the shoes of the victim (the Golden Rule argument). Id.;
McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). Witter argues that the language cited
above, along with the prosecutor's comment that anything less than the death penalty would
be disrespectful to the dead and irresponsible to the living, amounts to an improper Golden
Rule plea as well as a plea to the jury to return a death penalty verdict on behalf of the
victim in this case. We disagree.
In commenting that anything less than the death sentence would be disrespectful to the
dead, we conclude that the prosecutor was merely pointing out to the jury that our society
values human life, and in order to respect the value of human life, one who takes a human life
in the manner that Witter did should have to pay for his crime with his own life. Furthermore,
the prosecutor's statements painted a vivid picture for the jury, and any reference to you
appears to be merely rhetorical. For these reasons, we conclude that the prosecutor's
statements were proper.
Preventing lawful arrest statutory aggravator
[Headnote 35]
The State included the prevention of lawful arrest statutory aggravator listed in NRS
200.033(5)
7
as one of the aggravating circumstances in its notice of intent to seek the death
penalty. Witter made a motion to strike that aggravator, arguing that the evidence adduced at
trial shows that he killed James in an attempt to continue his sexual assault on Kathryn,
not to avoid arrest.
__________

7
NRS 200.033(5) states that [t]he murder was committed to avoid or prevent a lawful arrest or to effect an
escape from custody.
evidence adduced at trial shows that he killed James in an attempt to continue his sexual
assault on Kathryn, not to avoid arrest. The district court denied Witter's motion. Witter now
contends that the district court abused its discretion.
In Cavanaugh v. State, 102 Nev. 478, 729 P.2d 481 (1986), this court held that for
purposes of NRS 200.033(5), the arrest does not need to be imminent, and the victim does not
have to be involved in some way with effectuating the arrest. More recently, in Canape v.
State, 109 Nev. 864, 859 P.2d 1023 (1993), cert. denied, 513 U.S. 862, 115 S. Ct. 176 (1994),
the evidence adduced at trial showed that Canape robbed his victim then walked him away
from the freeway before shooting him in the back. We held that based on the evidence of the
case, a jury could reasonably infer that the murder was committed to avoid lawful arrest. Id.
at 874-75, 859 P.2d at 1030.
In this case, Witter attacked James only after James told Witter that Kathryn was his wife
and ordered Witter to exit the vehicle. Once Witter killed James, Witter grabbed Kathryn and
forced her back into the vehicle. Rather than fleeing, or killing Kathryn to make sure no one
could identify him, Witter hid James' body under his cab and resumed his sexual assault on
Kathryn. The natural inference drawn from these facts is that Witter killed James so that he
could continue his assault on Kathryn, not to avoid arrest. Clearly, the prosecution has not
met its burden of proving this aggravator beyond a reasonable doubt. We therefore conclude
that the jury could not have reasonably found that the murder was committed to avoid lawful
arrest and that the district court erred when it denied Witter's motion to strike the aggravator.
[Headnote 36]
In McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995), the Ninth Circuit Court of
Appeals was faced with a situation similar to the case at bar in which one of the aggravating
circumstances used to sentence McKenna to death was found invalid. In commenting on
Nevada's death penalty statute, the court stated:
Even in a weighing state, however, invalidation of one of several aggravating factors
may make no difference if there were no mitigating circumstances against which the
state court could balance the remaining aggravating factors. See Neuschafer v. Whitley,
816 F.2d 1390, 1393 (9th Cir. 1987). But where some mitigating factors exist, there
must either be a new sentencing hearing before a jury or the state appellate court must
reweigh or conduct harmless error review in order to give the defendant the
individualized considerations required by the Constitution. Clemons [v. Mississippi],
494 U.S. [738] at 746, 752, 110 S. Ct. [1441] at 1447, 1450.
Id. at 1489-90. Even though we conclude that the prevention of lawful arrest aggravator
should have been stricken, there remain four aggravators that the State has proven beyond a
reasonable doubt. In mitigation, Witter offered the testimony of several members of his
family and the testimony of a clinical psychologist, all of whom testified that Witter grew up
in a very abusive and dysfunctional family. We conclude that the remaining four aggravators
clearly outweigh the mitigating evidence presented by Witter. Moreover, for the same reason,
we conclude that the district court's failure to strike the prevention of lawful arrest aggravator
amounts to harmless error. See Chapman v. California, 386 U.S. 18 (1966). We therefore
conclude that even though the district court erred in allowing the prevention of lawful arrest
aggravator to be considered by the jury, Witter's sentence of death is still proper.
Mandatory statutory review
Finally, we conclude, pursuant to NRS 177.055, that (1) the evidence fully supports the
finding of four valid aggravating circumstances, (2) the sentence of death was not imposed
under the influence of passion, prejudice or any arbitrary factor, and (3) the sentence is not
excessive, considering both the crime and the defendant.
CONCLUSION
For the reasons stated above, we conclude that except for Witter's challenge to the
prevention of lawful arrest statutory aggravator, all of Witter's arguments are without merit.
Accordingly, we affirm Witter's judgment of conviction. With regard to the prevention of
lawful arrest statutory aggravator, we conclude that the State has failed to prove the
aggravator beyond a reasonable doubt. Nevertheless, because we conclude that the remaining
four aggravators clearly outweigh the mitigating evidence presented by Witter, we affirm
Witter's sentence of death.
____________
112 Nev. 930, 930 (1996) Miller v. Warden
IVAN MILLER, Petitioner, v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO,
Respondent.
No. 27566
July 22, 1996 921 P.2d 882
Original petition for writ of habeas corpus.
Prisoner, who had been convicted of first-degree murder, filed petition for writ of habeas
corpus ordering pardons board to consider his application for commutation without regard
to newly enacted statute.
consider his application for commutation without regard to newly enacted statute. The
supreme court held that retroactivity provision of statute revoking powers of pardons board to
commute sentence of life without parole for first-degree murders to sentence with possibility
of parole was unconstitutional.
Petition granted.
James J. Jackson, State Public Defender, Timothy P. O'Toole, State Deputy Public
Defender, Carson City, for Petitioner.
Frankie Sue Del Papa, Attorney General, John E. Simmons, Senior Deputy Attorney
Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, for
Amicus Curiae Clark County District Attorney's Office.
1. Constitutional Law; Pardon and Parole.
Retroactivity provision of statute that revoked powers of Pardons Board to commute sentence of life without parole for first-degree
murderers to sentence with possibility of parole violated ex post facto clause; provision increased measure of punishment for
first-degree murder. U.S. Const. art. 1, 10, cl. 1; NRS 213.085.
2. Evidence.
Supreme court would take judicial notice that, since 1974, Pardons Board had on 27 occasions commuted sentence of life
without parole to sentence of life with parole.
Inquiry as to whether statute is unconstitutional on ex post facto grounds looks to challenged provision, and not to any special
circumstances that may mitigate its effect on particular individual. U.S. Const. art. 1, 10, cl. 1.
4. Habeas Corpus.
Prisoner's challenge to statute that revoked powers of Pardons Board to commute sentence of life without parole for first-degree
murderers to sentence with possibility of parole was ripe for review, where Pardons Board had heard and denied prisoner's application
for parole after statute became effective. NRS 213.085.
5. Habeas Corpus.
Supreme court presumes that Pardons Board knew law and applied it in making their decision.
OPINION
Per Curiam:
Petitioner Ivan Miller challenges newly enacted NRS 213.085,
1
which applies retroactively to first-degree
murderers already sentenced to life imprisonment without the possibility of parole, on the
ground that it constitutes an unconstitutional ex post facto law.
__________

1
NRS 213.085, which became effective July 1, 1995, provides:
1. If a person is convicted of murder of the first degree before, on or after July 1, 1995, the board shall
not commute:
which applies retroactively to first-degree murderers already sentenced to life imprisonment
without the possibility of parole, on the ground that it constitutes an unconstitutional ex post
facto law. We agree that the retroactivity provision is unconstitutional. We therefore issue the
writ declaring NRS 213.085(1) invalid to the extent that it applies retroactively.
FACTS
In 1983, petitioner Ivan Miller pleaded guilty to first-degree murder. He was sentenced in
Nevada district court to life in the Nevada State Prison without the possibility of parole. In
1995, the Nevada Legislature passed NRS 213.085, which revoked the power of the Pardons
Board to commute a sentence of life without the possibility of parole to a sentence that would
allow parole. The new law took effect July 1, 1995, and applies retroactively to anyone
presently serving a life without sentence for first-degree murder. In August of 1995, the
Pardons Board heard and denied Miller's application for commutation of his sentence to life
with the possibility of parole. Miller now petitions this court for a writ ordering the Pardons
Board to consider his application for commutation without regard to newly enacted NRS
213.085. Miller contends that NRS 213.085, to the extent it applies retroactively, violates the
Ex Post Facto Clause of the federal and state constitutions. Miller also contends that,
irrespective of the statute's retroactive aspect, NRS 213.085 violates the Cruel and Unusual
Punishment, Due Process, and Equal Protection clauses of the federal constitution.
DISCUSSION
Ex Post Facto Clause
Article I, section 10, clause 1 of the United States Constitution forbids the states from
passing any ex post facto Law. The Framers of the Constitution viewed the prohibition on
ex post facto legislation as one of the fundamental protections against arbitrary and
oppressive government. Cal. Dept. of Corrections v. Morales, 514 U.S.
------
, 115 S. Ct.
1597, 1606 (1995)
__________
(b) A sentence of imprisonment in the state prison for life without the possibility of parole, to a sentence
that would allow parole.
2. If a person is convicted of any crime other than murder of the first degree on or after July 1, 1995, the
board shall not commute:
(b) A sentence of imprisonment in the state prison for life without the possibility of parole, to a sentence
that would allow parole.
(Stevens, J., dissenting) (quoting The Federalist No. 44, p. 282 (C. Rossiter, ed. 1961)). The
United States Supreme Court has held that the clause is aimed at laws that retroactively alter
the definition of crimes or increase the punishment for criminal acts. Collins v. Youngblood,
497 U.S. 37, 41 (1990) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 391-392 (1798) (opinion
of Chase, J.)), quoted in Cal. Dept. of Corrections v. Morales, 514 U.S.
------
, 115 S. Ct.
1597, 1601 (1995).
2
At issue in this case is whether NRS 213.085(1), which applies
retroactively to those convicted of first-degree murder, implicates this latter aspect of the Ex
Post Facto Clause, the prohibition against laws that retroactively increase the punishment for
criminal acts.
Both parties rely extensively on California Dept. of Corrections v. Morales, 514 U.S.
------
, 115 S. Ct. 1597 (1995), in which the United States Supreme Court recently sustained an
amended California statute against an Ex Post Facto Clause challenge. Under the law in place
at the time Morales committed his crimes, he would have been entitled, after his first parole
suitability hearing, to subsequent suitability hearings on an annual basis. Id. at
------
, 115 S.
Ct. at 1600. Under the amended statute, however, the Board of Prison Terms is authorized to
defer subsequent suitability hearings for up to three years if the Board finds that it is not
reasonable to expect that parole would be granted at a hearing during the years for which
suitability hearings are deferred. Id. at
------
, 115 S. Ct. at 1600.
In Morales, the Court noted that there is no clear formula for determining whether a statute
stiffens the standard of punishment applicable to a particular crime. Id. at
------
, 115 S. Ct.
at 1603. Rather, the Court noted, the question is a matter of degree.' Id. at
------
, 115 S.
Ct. at 1603 (quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)). The Court concluded that
the California legislation at issue creates only the most speculative and attenuated risk of
increasing the measure of punishment attached to the covered crimes. Id. at
------
, 115 S. Ct.
at 1605. According to the Court, such conjectural effects are insufficient under any
threshold we might establish under the Ex Post Facto Clause." Id. at ___, 115 S. Ct. at
1603.
__________

2
See generally Miller v. Florida, 482 U.S. 423 (1987) (holding invalid statute that retroactively changed
presumptive sentencing range, which court was required to follow in the absence of clear and convincing
reasons, to allow for longer sentence); Weaver v. Graham, 450 U.S. 24 (1981) (holding invalid statute that
retroactively reduced the amount of gain time credits available to prisoner under formula for mandatory
reductions to the terms of all prisoners who complied with certain prison regulations and state laws); Lindsey v.
Washington, 301 U.S. 397 (1937) (holding invalid sentencing guidelines providing for indeterminate sentence of
not more than fifteen years retroactively changed to mandatory fifteen-year sentence with possibility of
parole).
under any threshold we might establish under the Ex Post Facto Clause. Id. at
------
, 115 S.
Ct. at 1603.
First, the Court reasoned that the amendment applies only to a class of prisoners for whom
the likelihood of release on parole is quite remote and that the amendment was seen by the
legislature as a way to relieve the [Board] of the costly and time-consuming responsibility
of scheduling parole hearings for prisoners who have no chance of being released.' Id. at
------
, 115 S. Ct. at 1603-04 (quoting In re Jackson, 703 P.2d 100, 105 (Cal. 1985) (quoting
legislative history)). Second, the Court reasoned that the amendment was carefully tailored
to that purpose. Id. at
------
, 115 S. Ct. at 1604. As the Court noted:
In light of the particularized findings required under the amendment and the broad
discretion given to the Board, the narrow class of prisoners covered by the amendment
cannot reasonably expect that their prospects for early release on parole would be
enhanced by the opportunity of annual hearings. For these prisoners, the amendment
simply allows the Board to avoid the futility of going through the motions of
reannouncing its denial of parole suitability on a yearly basis.
Id. at
------
, 115 S. Ct. at 1604 (emphasis added). Finally, the Court rejected the argument
that there was some chance that the amendment might nevertheless produce an increased term
of confinement for some prisoners who might experience a change of circumstances that
could render them suitable for parole during the period between their hearings. Id. at
------
,
115 S. Ct. at 1604. The Court noted that, because of the continuing possibility of an expedited
suitability hearing and the normal delay between a suitability determination and actual parole,
[s]uch a prisoner's ultimate date of release would be entirely unaffected by the change in
the timing of suitability hearings. Id. at
------
, 115 S. Ct. at 1605 (emphasis added). The
bottom line in Morales is that the challenged provision was unlikely to affect the actual term
of confinement for any prisoner to whom it was applicable.
[Headnote 1]
Miller contends that eliminating the possibility of commutation to life with increases the
measure of punishment for first-degree murder. We agree. Absolutely foreclosing a real,
albeit rare, avenue of release to all prisoners serving sentences of life without for the crime
of first-degree murder creates more than a speculative or attenuated risk of increasing the
penalty for this covered crime.
The State misinterprets Morales by arguing that NRS 213.085(1) is valid because the
limitation on the commutation of the Pardons Board "applies only to a class of prisoners for
whom the chance of release . . . is quite remote."
the Pardons Board applies only to a class of prisoners for whom the chance of release . . . is
quite remote. Although the United States Supreme Court made a similar observation
regarding the challenged amendment in Morales, more importantly, the Court reasoned that
the amendment also gave the Board the authority to tailor the frequency of subsequent
suitability hearings to the particular circumstances of the individual prisoner. Morales,
------
U.S. at
------
, 115 S. Ct. at 1604. Thus, from among the already-narrow class of prisoners
covered by the amendment, the Board was only allowed to eliminate annual parole hearings
for those prisoners for whom there was no reasonable chance of being released so as to
avoid the futility of going through the motions of reannouncing its denial of parole
suitability on a yearly basis. Id. at
------
, 115 S. Ct. at 1604. In the present case, there is no
such further winnowing of the narrow class of first-degree murderers serving sentences of life
without the possibility of parole. NRS 213.085(1) denies these prisoners the right to seek
commutation without regard to whether or not their applications may have been futile.
[Headnote 2]
Furthermore, as Miller points out, the Nevada Board of Pardons has commuted life
sentences to include the possibility of parole on a fairly regular basis. See Sumner v. Shuman,
483 U.S. 66, 83-84 n.11 (1987) (life without the possibility of parole may not ultimately
mean in Nevada what it seems to say because, since 1975, more than twenty persons
sentenced to life without have been granted the possibility of parole). In fact, we take judicial
notice that, since 1974, the Pardons Board has on twenty-seven occasions commuted a
sentence of life without to a sentence of life with. Of these twenty-seven commuted
sentences, twenty-six were for the crime of first-degree murder. We conclude that the
statistics cited above demonstrate that the possibility of commutationfor at least some
first-degree murderersis real rather than merely theoretical or speculative or attenuated.
[Headnote 3]
Moreover, Miller is not required to prove that he personally would have had his sentence
commuted but for the operation of NRS 213.085(1). As the Court stated in Weaver v.
Graham, 450 U.S. 24 (1981), [t]he inquiry looks to the challenged provision, and not to any
special circumstances that may mitigate its effect on the particular individual. 450 U.S. at
33. This approach is also implicit in Morales, which focused not on whether the California
amendment affected Morales' measure of punishment personally, but whether it affected the
measure of punishment of anyone at whom the amendment was directed.
anyone at whom the amendment was directed.
3
Thus, although the possibility of
commutation may be speculative as to Miller, as Amicus Clark County argues, emphasis of
this fact misses the proper focus of this inquirythe more-than-speculative effect of the
challenged provision on the covered crime of first-degree murder.
4

Finally, we reject the State's contention that NRS 213.085(1) is valid because the Pardons
Board retains the power to grant clemency through pardon. The State's argument assumes that
the power to pardon and the power to commute are functionally equivalent in terms of their
likely impact on a first-degree murderer's sentence. We note that, although the Pardons Board
has, since 1974, commuted twenty-seven life without sentences for first-degree murder to
sentences that would allow parole, not once during this period has it granted a pardon to
someone serving a sentence of life without the possibility of parole. Moreover, we cannot
accept, as suggested by the State during oral argument, that the Pardons Board can mitigate
the punitive effects of NRS 213.0S5 by simply shifting their modus operandi to the
granting of "conditional pardons" allowing for deferred release dates and supervision by
parole authorities.
__________

3
See also Miller v. Florida, 482 U.S. 423 (1987), in which the Supreme Court reaffirmed the holding in
Lindsey v. Washington, 301 U.S. 397 (1937), that one is not barred from challenging a change in the penal
code on ex post facto grounds simply because the sentence he received under the new law was not more onerous
than that which he might have received under the old. Miller, 482 U.S. at 432 (citations omitted).

4
According to Amicus Clark County, NRS 213.085(1) takes away only Miller's unsubstantiated hope that one
day his sentence might be commuted to a sentence allowing parole and his further speculative hope that, if his
sentence is commuted, the parole board might some day grant him parole. Amicus appears to confuse the
inquiry under the Ex Post Facto Clause with the concept of standing under Article III. The Supreme Court has
established that the irreducible constitutional minimum of standing requires that a plaintiff have suffered an
injury in fact that is not merely conjectural or hypothetical, that there be a causal connection between the
injury and the conduct complained of, and that it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
Standing is not properly in issue in this case, however, because Millerregardless of what may be his own slim
chance of having his sentence commutedhas been denied the opportunity to even have his petition considered
on its merits. As the United States Supreme Court noted in Lujan:
The person who has been accorded a procedural right to protect his concrete interests can assert that right
without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one
living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge
the licensing agency's failure to prepare an environmental impact statement, even though he cannot
establish with any certainty that the statement will cause the license to be withheld or altered, and even
though the dam will not be completed for many years.
504 U.S. at 572 n.7.
of NRS 213.085 by simply shifting their modus operandi to the granting of conditional
pardons allowing for deferred release dates and supervision by parole authorities. We
believe that the legislature intended more than simply to remove the parole boards from the
clemency process. We conclude that the State's interpretation of NRS 213.085(1) would
render the statute a nullity, a result that could not have been the intent of the legislature in
adopting NRS 213.085.
5

Justiciability
[Headnotes 4, 5]
Amicus contends that Miller's challenge to NRS 213.085(1) is not ripe for review because
there is no indication that the Pardons Board denied Miller's application for commutation
based upon the newly adopted statute. We disagree. The Board heard and denied Miller's
application after NRS 213.085(1) became effective. We presume that the Pardons Board
knew the law and applied it in making their decision. Cf. Jones v. State, 107 Nev. 632, 636,
817 P.2d 1179, 1181 (1991) (trial judges are presumed to know the law and to apply it in
making their decisions) (citing Walton v. Arizona, 494 U.S. 639 (1990)).
CONCLUSION
For the reasons set forth above, we conclude that NRS 213.085(1) increases the measure
of punishment for the covered crime of first-degree murder; therefore, to the extent that it
applies retroactively, the statute violates the Ex Post Facto Clause of the United States
Constitution. Accordingly, we issue the writ declaring the retroactivity provision of NRS
213.085(1) inoperative; however, because the Nevada Board of Pardons is not a party to
this action, we decline to order the Nevada Board of Pardons to reconsider Miller's 1995
application for commutation.
__________

5
In fact, the legislative history reflects a belief that NRS 213.085 was necessary to send a message to potential
criminals that life without the possibility of parole means just that. For example, the Minutes of the Assembly
Committee on Judiciary, May 18, 1995, at page 4, record the following discussion:
Mr. Carpenter asked if life without the possibility of parole will mean life without the possibility of
parole. Senator James answered affirmatively. Senator James elaborated further that when someone
commits a murder now they do not believe they will truly be incarcerated for life. . . . The power of
setting forth that life without the possibility of parole means just that is the deterrent needed throughout
the system. Under S.B. 416 that sentence could not be commuted by the pardon's board.
See Hotel Employees v. State Gaming Control Board, 103 Nev. 588, 592, 747 P.2d 878, 880 (1987) (public
records on file in the research library of the Legislative Counsel Bureau may properly be examined in
determining legislative intent). Obviously, if the powers of commutation and pardon were interchangeable the
intended deterrent effect of the statutory amendment would be substantially vitiated.
tive; however, because the Nevada Board of Pardons is not a party to this action, we decline
to order the Nevada Board of Pardons to reconsider Miller's 1995 application for
commutation.
6

____________
112 Nev. 938, 938 (1996) Geiger v. State
MICHAEL JOSEPH GEIGER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24163
July 22, 1996 920 P.2d 993
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of burglary.
Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
The supreme court, Steffen, C. J., held that: (1) evidence was sufficient to support verdict,
and (2) inadvertent reference to defendant's prior conviction was not so prejudiced that it
could not be neutralized by admonition to jury.
Affirmed.
Shearing, J., dissented in part. Rose, J., dissented.
Michael R. Specchio, Public Defender and Jane McKenna, Deputy Public Defender,
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
When fingerprints of defendant are found where crime was committed, and circumstances rule out possibility that they might have
been imprinted at different time than when crime occurred, conviction is warranted, and corroborating evidence is not required.
2. Burglary.
Burglary conviction was supported by defendant's fingerprint found on pried-off window frame and victim's testimony that she did
not know or recognize defendant and that he had never been to her home for any purpose.
3. Criminal Law.
Inadvertent reference, in reading of information, to defendant's prior conviction was not so prejudicial that it could not be
neutralized by admonition to jury, and thus defendant was not entitled to mistrial, where reference was not solicited by prosecution,
court thoroughly admonished jury almost immediately after reference was made and prior to presentation of
evidence, reference was not clearly and enduringly prejudicial, and evidence of guilt was convincing.
__________

6
Because our discussion of the Ex Post Facto Clause issue disposes of this case, we need not consider Miller's
additional contentions.
admonished jury almost immediately after reference was made and prior to presentation of evidence, reference was not clearly and
enduringly prejudicial, and evidence of guilt was convincing. NRS 207.010(5).
4. Criminal Law.
It is within sound discretion of trial court to determine whether mistrial is warranted.
5. Criminal Law.
Absent clear showing of abuse of discretion, trial court's determination of whether mistrial is warranted will not be disturbed on
appeal.
6. Criminal Law.
In determining whether inadvertent reference to prior criminal activity is so prejudicial that it cannot be cured by admonition to
jury, court considers: whether remark was solicited by prosecution; whether district court immediately admonished jury; whether
statement was clearly and enduringly prejudicial; and whether evidence of guilt was convincing. NRS 207.010(5).
OPINION
On the evening of September 15, 1991, Valerie Ellis and her family returned to their home in Reno, Nevada. Before Ellis retired to bed,
she closed the windows and doors in her house. In the morning, Ellis discovered an open window in the family room. Her purse and her
husband's wallet were located on the ground beneath the window. Although the amount of money taken was unclear, between one hundred
and fifty and three hundred dollars were missing from the purse and wallet. The previous night, Ellis placed these items on the kitchen
counter.
Ellis also discovered that her locked file box had been removed from the house and was located on the ground. The lid had been pried
off but nothing was missing from the file box. The police discovered a screen leaning against the house that had been pried off the family
room window. After examining the area, the police determined that someone had broken into Ellis' house.
The police obtained a partial thumbprint from the screen and three fingerprints from the file box. An experienced latent-fingerprint
examiner determined that the fingerprint obtained from the screen belonged to Michael Joseph Geiger. The state charged Geiger with one
count of burglary. The information also charged Geiger with being a habitual criminal and listed Geiger's eight prior convictions.
At the jury trial, the district court clerk read a portion of the charge from the information in the presence of the jury as follows:
Michael Joseph Geiger, the defendant above named, has committed the crime of: Count I. BURGLARY, a violation of NRS
205.060, a felony, in the manner following:
of NRS 205.060, a felony, in the manner following: That the said defendant on or
between the 15th day of September A.D. 1991, and the 16th day of September A.D.
1991, or thereabout, and before the filing of this Information, at and within the County
of Washoe, State of Nevada, did willfully and unlawfully enter a certain house located
at 1675 Majestic, Reno, Washoe County, Nevada, and being the house of VALERIE
ELLIS with the intent then and there to commit larceny therein, after having been
previously convicted of Burglary in 1989.
1

The district court then held a bench conference. After the state presented its opening
statement, the district court judge gave the following admonition to the jury:
I want to correct a possible apprehension that you might have received when my
clerk read the Information to you.
As she indicated to you, this thing is called an Amended Second Information. In
other words, it's very recently been changed. And there was a mistake made by the
typist, [who] inserted some language that didn't belong there.
She read something about after having been previously convicted of something.
There is no previous conviction. He is not charged with any prior offenses of any kind.
The State is not obligated to prove that. It is a matter which is not before you.
And all of you agreed as we went through the process of selecting you, that you
would follow my instructions, and I ask you and I order you and I expect from you to
follow my instructions now to disregard any of that mistakenly-written language.
The district court judge then read to the jury the information without the language after
having been previously convicted of Burglary in 1989. The district court acknowledged
Geiger's objection for the record and subsequently denied Geiger's motion for a mistrial. The
district court concluded that its admonition was sufficient to eliminate any prejudice to
Geiger, provided that no further mention was made of Geiger's prior conviction.
At trial, the evidence presented by the state linking Geiger to the crime was Geiger's
fingerprint found on the pried-off window frame and the testimony of Ellis that she did not
know or recognize Geiger and that Geiger had never been to her home for any purpose. The
jury returned a verdict of guilty on the charge of burglary.
__________

1
The record is unclear as to when the district court clerk stopped reading the information, because the court
reporter did not transcribe the exact words read by the district court clerk. In their appellate briefs, the parties
dispute whether the district court clerk read after having been previously convicted of Burglary in 1989, or
after having been previously convicted of. . . .
of burglary. The district court adjudicated Geiger to be a habitual criminal and sentenced him
to serve fourteen years in the Nevada State Prison. This appeal followed.
[Headnotes 1, 2]
Geiger first contends that the evidence presented at trial was insufficient to support the
jury's finding of guilt on the burglary charge.
2
Geiger's contention lacks merit. We have held
that [w]hen fingerprints of the defendant are found where the crime was committed, and
circumstances rule out the possibility that they might have been imprinted at a different time
than when the crime occurred, a conviction is warranted. Carr v. State, 96 Nev. 936, 939,
620 P.2d 869, 871 (1980) (citing Hervey v. People, 495 P.2d 204 (Colo. 1972)).
Corroborating evidence is not required. Id.
Geiger's fingerprint was located at the point of entry. The police lifted Geiger's fingerprint
from a window screen pried off of a window which had been opened. Further, Ellis testified
that she did not know or recognize Geiger and that he had never been to her home for any
purpose. We conclude that this was sufficient evidence to establish guilt beyond a reasonable
doubt as determined by a rational trier of fact. See Wilkins v. State, 96 Nev. 367, 609 P.2d
309 (1980). Accordingly, we affirm the judgment of conviction.
[Headnote 3]
Geiger next contends that the district court clerk's statement to the jury alluding to Geiger's
prior conviction was contrary to the mandate of NRS 207.010(5).
3
Further, Geiger contends
that the district court's limiting instruction was insufficient to eliminate the prejudice to
Geiger and the district court erred in denying Geiger's motion for a mistrial. In response, the
state contends that the district court did not err in denying Geiger's motion for a mistrial.
Further, even if the district court erred, the state contends that the reference to Geiger's prior
conviction was harmless.
[Headnotes 4, 5]
The district court clerk's statement in the presence of the jury regarding Geiger's prior
conviction was contrary to the mandate of NRS 207.010{5).
__________

2
Although Geiger is represented by counsel in this appeal, he submitted a supplemental opening brief in proper
person contending that there was insufficient evidence to support the jury verdict.

3
NRS 207.010(5) applies to habitual criminals and provided, in relevant part, at the time of Geiger's conviction
in 1992:
If a count under this section is included in an information charging the primary offense, each previous
conviction must be alleged in the accusatory pleading, but no such conviction may be alluded to on trial
of the primary offense, nor may any allegation of the conviction be read in the presence of a jury trying
the offense or a grand jury considering an indictment for the offense.
regarding Geiger's prior conviction was contrary to the mandate of NRS 207.010(5).
However, it is within the sound discretion of the trial court to determine whether a mistrial is
warranted. Owens v. State, 96 Nev. 880, 620 P.2d 1236 (1980); Sparks v. State, 96 Nev. 26,
604 P.2d 802 (1980). Absent a clear showing of abuse of discretion, the trial court's
determination will not be disturbed on appeal. Id. Accordingly, Geiger must demonstrate that
the district court abused its discretion in denying Geiger's motion for a mistrial. In doing so,
Geiger must prove that the inadvertent reference to his prior conviction was so prejudicial as
to be unsusceptible to neutralizing by an admonition to the jury. Allen v. State, 99 Nev. 485,
490, 665 P.2d 238, 241 (1983).
[Headnote 6]
To determine whether an inadvertent reference to a prior criminal activity is so prejudicial
that it cannot be cured by an admonition to the jury, the following four factors may be
considered: (1) whether the remark was solicited by the prosecution; (2) whether the district
court immediately admonished the jury; (3) whether the statement was clearly and enduringly
prejudicial; and (4) whether the evidence of guilt was convincing. Allen v. State, 99 Nev.
485, 490-91, 665 P.2d 238, 241-42 (1983).
In applying the factors in Allen, we conclude that the inadvertent reference to Geiger's
prior conviction was not so prejudicial that it could not be neutralized by the admonition to
the jury. First, the reference to Geiger's prior conviction was inadvertently made by district
court clerk, and therefore, was not solicited by the prosecution. Second, the district court
admonished the jury almost immediately after the reference was made and prior to the
presentation of evidence. The admonition was very thorough because the district court not
only instructed the jury to disregard the language regarding the prior conviction, but also
stated that the language was a mistake and that there was no prior conviction. Third, the
reference was not clearly and enduringly prejudicial. The reference constituted only one brief
reference during the two-day trial and it was followed by a thorough admonition to the jury.
Finally, the evidence of guilt was convincing. As we have concluded, there was sufficient
evidence to support the conviction. Accordingly, we conclude that the district court did not
abuse its discretion in denying Geiger's motion for a mistrial.
4
The judgment of conviction is
affirmed.
Young and Springer, JJ., concur.
__________

4
Although this court has not granted appellant permission to proceed in proper person, we have received and
considered appellant's proper person
Shearing, J., dissenting in part and concurring in part:
I agree with the dissent that the conviction should be reversed on the basis of the State's
reference to Geiger's prior conviction; however, I agree with the majority that there was
sufficient evidence to sustain the conviction.
Rose, J., dissenting:
For the reasons discussed below, I would reverse the judgment of conviction based on
insufficiency of the evidence to support the jury verdict, and I would reverse the district
court's denial of Geiger's motion for a mistrial.
First, I disagree with the majority's reaffirmation of the standard for fingerprint-only cases
set forth in Carr v. State, 96 Nev. 936, 620 P.2d 869 (1980). In that case, this court held that
[w]hen fingerprints of the defendant are found where the crime was committed, and
circumstances rule out the possibility that they might have been imprinted at a different time
than when the crime occurred, a conviction is warranted. Carr v. State, 96 Nev. 936, 939,
620 P.2d 869, 871 (1980) (citing Hervey v. People, 495 P.2d 204 (Colo. 1972)). The language
in Carr is troublesome because it does not clearly identify who has the burden of proving
circumstances that would rule out the possibility of the fingerprint having been imprinted at
some earlier time. Worse, Carr appears to improperly shift to the defendant the burden of
proving that his or her fingerprints could have been imprinted at some other time than when
the crime occurred; the reason being that the state is unlikely to present evidence of
circumstances where the defendant, on some other occasion than the time of the crime, could
have possibly imprinted his or her fingerprints on objects found at the crime scene. It is the
defendant who is more likely to present such evidence. Further, notwithstanding where the
burden of proof lies, the standard set forth in Carr is vague and does not clearly identify what
type of circumstances rule out the possibility that the fingerprints may have been imprinted at
a different time and how such circumstances can be demonstrated.
I believe that a review of the legal standard set forth by the Ninth Circuit Court of Appeals
for fingerprint-only cases is illuminating. I find the Ninth Circuit standard and the reasoning
supporting it persuasive. In Mikes v. Borg, 947 F.2d 353 (9th Cir. 1991), cert. denied, 505
U.S. 1229 (1992), the court articulated the standard as follows:
__________
documents. See NRAP 46(b). We deny appellant's motion to grant the appeal for failure of the state to respond
to appellant's supplemental opening brief. We further deny appellant's motion to submit as moot.
We have held that fingerprint evidence alone may under certain circumstances support
a conviction. However, in fingerprint-only cases in which the prosecution's theory is
based on the premise that the defendant handled certain objects while committing the
crime in question, the record must contain sufficient evidence from which the trier of
fact could reasonably infer that the fingerprints were in fact impressed at that time and
not at some earlier date. In order to meet this standard the prosecution must present
evidence sufficient to permit the jury to conclude that the objects on which the
fingerprints appear were inaccessible to the defendant prior to the time of the
commission of the crime.
Id. at 356-57 (citations omitted). This standard clearly places the burden of proof on the
prosecution to show that the object was inaccessible to the defendant prior to the commission
of the crime, and therefore the fingerprints must have been impressed at the time of the crime.
In Mikes, the court further stated:
Under our judicial system, the defendant has no duty to explain the presence of his
fingerprints. Likewise, he is under no obligation to illuminate any inferences from the
fingerprint evidence that are consistent with his innocence. To put it more directly, the
defendant need not explain how or when his fingerprints were placed on the object in
question; that burden lies elsewhere.
Id. at 359 (citation omitted).
I would adopt the standard in Mikes as the standard applicable to cases where fingerprint
evidence is the only evidence of guilt. Further, I believe that clarification of the standard set
forth in Carr is necessary, and would overrule that standard to the extent it places the burden
of proof on the accused and is inconsistent with the standard in Mikes.
In applying the Mikes standard to the instant case, the record contains insufficient evidence
that Geiger's fingerprint was impressed at the time of the crime and not at some earlier date.
The fingerprint was found on a screen located on the outside of Ellis' house and the date of its
impression was not determined. The record contains no evidence of whether the fingerprint
was located on the inside or outside of the screen, whether the screen had been accessible to
the public at some time before the crime occurred, whether the screen had been recently
purchased, or whether the screen had been recently washed. Further, the state presented no
evidence that the window screen was unavailable to Geiger before the crime occurred.
Moreover, there was no evidence placing Geiger at the scene of the crime and Geiger's
fingerprints were not found anywhere inside the house.
inside the house. Geiger's fingerprints were also not found on any items which appeared to be
touched by the burglar such as the purse and wallets, the window, or the lock box removed
from the house. The only evidence presented by the state which linked Geiger to the crime
was testimony by one expert witness that a fingerprint obtained from the outside screen of a
window matched Geiger's fingerprint and testimony by the victim that she did not know
Geiger and that he had never been to her home for any purpose. The state presented no hard
evidence placing Geiger inside the house.
In a similar case, the District of Columbia Circuit reversed a defendant's conviction when
the defendant's fingerprints were found on jars located within the victim's home and from
which valuable coins had been stolen, and the prosecution introduced evidence which placed
the defendant within a mile and a half of the victim's home at the approximate time of the
crime. Borum v. United States, 380 F.2d 595 (D.C. Cir. 1967). The court concluded that the
prosecution presented no evidence that the jars were inaccessible to the defendant prior to the
date of the crime and that the defendant had touched the jars during the commission of the
crime. Id. at 596. The court eloquently stated, to allow this conviction to stand would be to
hold that anyone who touches anything which is found later at the scene of a crime may be
convicted, provided he was within a mile and a half of the scene when the crime may have
been committed. Id. at 597. The instant case is even more troubling. Whereas Borum
contemplates reversing a conviction if fingerprints are found and the state places the
defendant in the area of the crime when the crime was committed, the state in this case
presented no evidence placing Geiger anywhere near the scene of the crime.
Under the federal standard, the state clearly did not meet its burden of proving that Geiger
touched the screen during the commission of the crime and not at some prior date.
Accordingly, because the record contains insufficient evidence of guilt, I would reverse
Geiger's conviction.
Regarding the district court clerk's inadvertent reference in the presence of the jury to
Geiger's prior conviction, I conclude that the district court's denial of Geiger's motion for a
mistrial constituted a clear showing of abuse of discretion and should be reversed.
Although I agree that the factors in Allen v. State, 99 Nev. 485, 665 P.2d 238 (1983), are
applicable to the instant case, I believe that the majority has misweighed these factors.
Specifically, the district court clerk's reference to Geiger's prior conviction in the presence of
the jury was clearly and enduringly prejudicial.
Although it is unclear from the record whether the clerk stated, after having been previously
convicted of . . . or after having been previously convicted of Burglary in 1989, to be fair
to Geiger, I must assume that the clerk stated the word burglary. Because Geiger was being
tried for the crime of burglary, the reference to Geiger's prior burglary conviction was clearly
prejudicial. Moreover, although the district court admonished the jury to disregard the
language about the previous conviction, such admonition may have brought greater attention
to the prior conviction.
Further, the evidence of guilt in this case was far from convincing. As I have concluded,
the evidence was insufficient to support the jury's verdict. Considering the scant evidence
presented by the state, I cannot conclude beyond a reasonable doubt that the reference to
Geiger's prior conviction did not affect the jury's verdict. See Courtney v. State, 104 Nev.
267, 756 P.2d 1182 (1988). The inadvertent reference was so prejudicial to Geiger that it
could not be neutralized by an admonition to the jury. Therefore, a mistrial was warranted and
the district court abused its discretion in denying Geiger's motion for a mistrial.
For the reasons stated, I respectfully dissent.
____________
112 Nev. 946, 946 (1996) Hubbard v. State
ROY EMERY HUBBARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24549
July 22, 1996 920 P.2d 991
Appeal from a judgment of conviction pursuant to a guilty plea of four counts of sexual
assault. Seventh Judicial District Court, Eureka County; Dan L. Papez, Judge.
Defendant was convicted in the district court of lewdness with a minor, and he appealed.
The supreme court affirmed, concluding that defendant waived his contention that statute of
limitations barred prosecution of his offense. Hubbard v. State, 110 Nev. 671, 877 P.2d 519
(1994). Defendant petitioned for rehearing, challenging conclusion that waiver issue was
matter of first impression. The supreme court held that criminal statutes of limitation should
be treated as non-jurisdictional, affirmative defenses which must be raised in trial court or
they are waived.
Petition for rehearing denied.
James J. Jackson, State Public Defender and James P. Logan, Appellate Deputy Public
Frankie Sue Del Papa, Attorney General, Carson City; William Schaeffer, District
Attorney and Hy Forgeron, Special Deputy District Attorney, Eureka County, for
Respondent.
Criminal Law.
Criminal statutes of limitation should be treated as non-jurisdictional, affirmative defenses which must be raised in trial court or
they are waived; overruling Walstrom v. State, 104 Nev. 51, 752 P.2d 225 (1988); Brannen v. State, 102 Nev. 7, 714 P.2d 175 (1988);
Melvin v. Sheriff, 92 Nev. 146, 546 P.2d 1294 (1976).
OPINION ON PETITION FOR REHEARING
Per Curiam:
In a published opinion, we upheld appellant's conviction on four counts of lewdness with a minor. Hubbard v. State, 110 Nev. 671, 877
P.2d 519 (1994). We concluded in that opinion that appellant had waived his contention that the statute of limitations barred prosecution of
his offenses. Appellant challenges on rehearing our conclusion in that opinion that the waiver issue was a matter of first impression.
PROCEDURAL BACKGROUND
The district court convicted appellant pursuant to a guilty plea of four counts of lewdness with a minor. The district court sentenced
appellant to serve four consecutive terms of ten years each in the Nevada State Prison. Appellant appealed from his conviction to this court.
Appellant contended for the first time on appeal that the district court lacked jurisdiction to convict him of the crimes because the
applicable three-year limitation period had run prior to his being charged with the crimes.
We ruled that the limitation period was tolled under NRS 171.095 because appellant had committed the crimes in secret. Hubbard, 110
Nev. at 676-77; 877 P.2d at 522. Although not necessary to our decision, we ruled further that appellant had waived the statute of
limitations argument when he entered his guilty plea. Id. at 677, 877 P.2d at 522. We concluded that statutes of limitation are
non-jurisdictional affirmative defenses which must be asserted in the district court or they are waived. Id.
We stated in our Opinion that the waiver issue was a matter of first impression for this court. Appellant contends in his petition for
rehearing that this statement is untrue and that our prior opinions establish that statutes of limitation are jurisdictional in criminal
proceedings and cannot be waived. See Walstrom v. State, 104 Nev. 51, 752 P.2d 225 {19SS); Brannen v. State, 102
Nev. 7, 714 P.2d 175 {19S6); Melvin v. Sheriff, 92 Nev. 146
Walstrom v. State, 104 Nev. 51, 752 P.2d 225 (1988); Brannen v. State, 102 Nev. 7, 714 P.2d
175 (1986); Melvin v. Sheriff, 92 Nev. 146, 546 P.2d 1294 (1976). We agree that we
incorrectly concluded in our Opinion that the issue of whether the statute of limitation can be
waived was a matter of first impression.
DISCUSSION
In prior decisions, we indicated that statutes of limitation are jurisdictional and that they
may be raised as a bar to prosecution at any time. See Walstrom v. State, 104 Nev. 51, 752
P.2d 225 (1988); Brannen v. State, 102 Nev. 7, 714 P.2d 175 (1986); Melvin v. Sheriff, 92
Nev. 146, 546 P.2d 1294 (1976). In these cases, we did not consider the weight of authority in
other jurisdictions that have addressed this issue. A majority of jurisdictions have concluded
that statutes of limitation in criminal cases are non-jurisdictional, affirmative defenses which
must be raised in the trial court or they are waived. See, e.g., Acevedo-Ramos v. United
States, 961 F.2d 305, 308-09 (1st Cir.), cert. denied, 506 U.S. 905, 113 S. Ct. 299 (1992);
United States v. DeTar, 832 F.2d 1110, 1114 (9th Cir. 1987); State v. Weimer, 533 N.W.2d
122, 132-33 (Neb. Ct. App. 1995); Longhibler v. State, 832 S.W.2d 908, 910 (Mo. 1992);
People v. Dickson, 519 N.Y.S.2d 419, 421 (App. Div. 1987). A significant minority of courts
conclude that statutes of limitation are jurisdictional and may be raised at any time. See, e.g.,
Cox v. State, 585 So. 2d 182, 193 (Ala. Crim. App. 1991), cert. denied, 503 U.S. 987, 112 S.
Ct. 1676 (1992); People v. Morris, 756 P.2d 843, 849-50 & n.4 (Cal. 1988); State v. Short,
618 A.2d 316, 320 (N.J. 1993).
After considering the merits of both approaches, we conclude that the best reasoned
approach is to treat criminal statutes of limitation as non-jurisdictional, affirmative defenses.
The failure to raise the statute of limitation in the trial court waives the defense. To the extent
that our prior decisions are inconsistent with these conclusions, those decisions are overruled.
1
Because we have not altered the result of our prior Opinion in this matter, we deny
appellant's petition for rehearing and we uphold appellant's convictions and sentences.
__________

1
Because this matter overrules prior decisions, it establishes a new rule and thus applies prospectively only. See
Franklin v. State, 98 Nev. 266, 269 n.2, 646 P.2d 543, 545 n.2 (1982).
____________
112 Nev. 949, 949 (1996) Indiana Ins. Co. v. District Court
INDIANA INSURANCE COMPANY, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Clark, and
ADDELIAR D. GUY, District Judge, Respondents, and WILLIAM S. FLEMING, Sr.,
and MARIANNE FLEMING, Husband and Wife, and COLLEEN TREBESCH as
Natural Mother and Legal Guardian of PAUL TREBESCH, a Minor, Real Parties in
Interest.
No. 24742
July 23, 1996 920 P.2d 514
Original petition for a writ of prohibition or mandamus. Eighth Judicial District Court,
Clark County; Addeliar D. Guy, District Judge.
In action for payment of medical bills allegedly due under insurance policy, insurer
petitioned for writ of prohibition or mandamus challenging decision of the district court that
denied motion to dismiss for lack of personal jurisdiction. The supreme court, abrogating
Barnato v. Dist. Court, 76 Nev. 335, 353 P.2d 1103 (1960), held that motion to dismiss for
lack of personal jurisdiction was not general appearance.
Petition for writ of prohibition granted.
Barker, Gillock, Koning & Brown, Las Vegas, for Petitioner.
George T. Bochanis, Ltd., Las Vegas, for Real Parties in Interest.
1. Appearance.
Motion to dismiss for lack of personal jurisdiction was not general appearance and did not subject defendant to jurisdiction of
state's courts; motion was denominated as special appearance; abrogating Barnato v. District Court, 76 Nev. 335, 353 P.2d 1103
(1960); Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993); Consolidated Casinos v. L.A. Caunter & Co., 89 Nev. 501, 515
P.2d 1025 (1973); Selznick v. District Court, 76 Nev. 386, 355 P.2d 854 (1960). NRCP 12(b).
2. Appearance.
Motion to dismiss action that is brought in special appearance and based on ground which would warrant granting of motion to
quash service of summons does not ipso facto constitute general appearance. NRCP 12(b).
3. Appearance.
Request for relief other than challenge to court's jurisdiction, such as request for relief premised on court having jurisdiction over
parties, is general appearance. NRCP 12(b).
4. Prohibition.
Writ of prohibition is appropriate remedy for improper exercise of personal jurisdiction by district court.
OPINION
Per Curiam:
This petition for a writ of prohibition or mandamus challenges an order of the district court denying a motion to dismiss. In its motion,
brought in a special appearance in the district court, petitioner Indiana Insurance Company sought dismissal based on lack of personal
jurisdiction of an action brought against it by the real parties in interest for payment of medical bills allegedly due under an insurance
policy. Petitioner contends that the district court improperly denied the motion to dismiss for lack of personal jurisdiction because
petitioner has insufficient contacts with Nevada to establish jurisdiction under Nevada's long-arm statute and constitutional due process
standards.
[Headnote 1]
The district court denied petitioner's motion to dismiss because it found that under our holding in Barnato v. Dist. Court, 76 Nev. 335,
340, 353 P.2d 1103, 1105 (1960), petitioner made a general appearance and subjected itself to the jurisdiction of the Nevada courts by
filing the motion to dismiss. Barnato holds that adoption in Nevada of rules of civil procedure based on the Federal Rules of Civil
Procedure did not change Nevada law, and that therefore a motion to dismiss an action, even when based on a ground which would warrant
the granting of a motion to quash service of summons, constitutes a general appearance, regardless of the fact that it was designated a
special appearance. Barnato, 76 Nev. at 340, 353 P.2d at 1105 (1960). Petitioner contends that the rule in Barnato exalts form over
substance, and that the text of NRCP 12(b) does not give practitioners adequate notice of Nevada law as expressed in Barnato.
Petitioner's arguments have merit. We have explained that [a] general appearance is entered when a person (or the person's attorney)
comes into court as party to a suit and submits to the jurisdiction of the court. Milton v. Gesler, 107 Nev. 767, 769, 819 P.2d 245, 247
(1991). A special appearance is entered when a person comes into court to test the court's jurisdiction or the sufficiency of service. Id.
More recently, we held that the timeliness of service of process could be challenged by a motion to dismiss without making a general
appearance, while maintaining the Barnato rule that propriety of service could be challenged only by a motion to quash. Lacey v.
Wen-Neva, Inc., 109 Nev. 341, 347-48, 849 P.2d 260, 264 (1993).
[Headnotes 2, 3]
Petitioner's motion to dismiss for lack of personal jurisdiction not only is denominated a
special appearance, it corresponds much more to a special than a general appearance as those
concepts are defined in Milton. Therefore, we conclude that it is unjust to invoke Nevada's
jurisdiction over petitioner pursuant to the rule in Barnato. Further, we conclude that the time
has come to abandon the rule that filing a motion to dismiss ipso facto constitutes a general
appearance, as expressed in Barnato and its progeny. See Barnato v. Dist. Court, 76 Nev. 335,
337, 340, 353 P.2d 1103 (1960); see also Lacey v. Wen-Neva, Inc., 109 Nev. 341, 347-48,
849 P.2d 260, 263 (1993); Consolidated Casinos v. L.A. Caunter & Co., 89 Nev. 501, 515
P.2d 1025 (1973); Selznick v. District Court, 76 Nev 386, 355 P.2d 854 (1960). Henceforth, a
motion to dismiss an action that is brought in a special appearance and based on a ground
which would warrant the granting of a motion to quash service of summons does not ipso
facto constitute a general appearance. A request for relief other than a challenge to the court's
jurisdiction, however, such as a request for relief premised on the court's having jurisdiction
over the parties, still constitutes a general appearance. See, e.g., Davis v. District Court, 97
Nev. 332, 335-36, 629 P.2d 1209, 1211-12 (1981) (request for additional relief in the form of
attorney's fees constitutes a general appearance subjecting a party to the jurisdiction of the
Nevada courts), cert. denied, 454 U.S. 1055 (1981).
[Headnote 4]
A writ of prohibition is the appropriate remedy for improper exercise of personal
jurisdiction by a district court. See Judas Priest v. District Court, 104 Nev. 424, 760 P.2d 137
(1988). The sole basis of the district court's determination to deny the motion to dismiss and
exercise jurisdiction over petitioner is that petitioner filed a motion to dismiss rather than a
motion to quash. Accordingly, in view of our opinion expressed above, we grant this petition.
The clerk of this court shall forthwith issue a writ of prohibition prohibiting the respondent
district court from exercising jurisdiction over petitioner on the basis of petitioner's filing the
motion to dismiss.
____________
112 Nev. 952, 952 (1996) City of Sparks v. District Court
CITY OF SPARKS, a Political Subdivision of the State of Nevada; the SPARKS CITY
ATTORNEY'S OFFICE; and the SPARKS CITY MANAGER'S OFFICE, Petitioners,
v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in
and for the County of Washoe, and THE HONORABLE JAMES A. STONE, District
Judge, Respondents, and FLORA E. THOMAS, Real Party in Interest.
No. 26337
July 23, 1996 920 P.2d 1014
Original petition for an extraordinary writ preventing the district court from enforcing an
order imposing sanctions against petitioners and directing the district judge to recuse himself
in the underlying action. Second Judicial District Court, Washoe County; James A. Stone,
Judge.
City, city attorney's office, and city manager's office petitioned for writ of mandamus and
writ of prohibition preventing district court from enforcing order imposing sanctions against
petitioners and directing district judge to recuse himself in underlying personal injury action.
The Supreme Court, Young, J., held that: (1) district judge did not abuse his discretion by
refusing to disqualify himself from underlying action and, therefore, writ of mandamus would
not lie, and (2) district judge abused his discretion in imposing $2,500 sanctions against city
manager and city attorney for their alleged failure to participate in good faith in settlement
conference and, therefore, petition for writ of mandamus to prevent district court from
enforcing sanctions would be granted.
Petition granted in part.
Steven P. Elliott, Sparks City Attorney, Sparks, for Petitioners.
David Allen & Associates, Reno, for Real Party in Interest.
1. Mandamus.
Supreme court would treat petition for writ of prohibition by city attorney's office and city manager's office, challenging district
judge's discretion in imposing sanctions, as petition for writ of mandamus.
2. Mandamus.
Writ of mandamus will not lie to control discretionary act, unless discretion is abused or is exercised arbitrarily or capriciously.
3. Judges.
District judge did not abuse his discretion by refusing to disqualify himself from underlying action; not only was petitioners'
motion to disqualify untimely filed, but petitioners failed to demonstrate either actual bias against party or
evidence to support reasonable inference of bias.
disqualify untimely filed, but petitioners failed to demonstrate either actual bias against party or evidence to support reasonable
inference of bias. NRS 1.235(1).
4. Attorney and Client; Pretrial Procedure.
District judge abused his discretion in imposing $2,500 sanctions against city manager and city attorney for their alleged failure to
participate in good faith in settlement conference and, therefore, petition for writ of mandamus to prevent district court from enforcing
sanctions would be granted. Sanctions levied did not fit purported violations at issue.
Implicit in district judge's authority to sanction parties for failure to comply with pretrial conference orders is that district judge
must design sanction to fit violation. NRCP 37(b)(2).
OPINION
[Headnote 1]
Petitioners are the City of Sparks, the Sparks City Attorney's Office and the Sparks City Manager's Office. The City Attorney's Office
and the City Manager's Office seek a writ of prohibition;
1
the City of Sparks seeks a writ of mandamus. At a
settlement conference just prior to trial in the underlying action, the city attorney and the city
manager, as representatives of the city, proposed a settlement of $25,000.00 for the personal
injury suit being brought against the city by real party in interest Flora E. Thomas
(Thomas). Because the amount proposed was above the city attorney's and the city
manager's settlement authority, the attorney and the manager agreed to recommend the
settlement to the city council for approval.
On June 13, 1994, two weeks after the pretrial settlement conference, the city attorney
presented the facts and possible legal ramifications surrounding Thomas' pending lawsuit to
the city council. After the city attorney recommended that the proposed settlement agreement
be approved, the city council immediately and unanimously voted to deny the $25,000.00
settlement proposal.
After a hearing on an order to show cause at which the parties and the court listened to an
audio tape of the city council meeting, the district court found that the city attorney and the
city manager had not affirmatively recommended the settlement as they had agreed to do
at the settlement conference.
__________

1
Because the petition for writ of prohibition submitted by the City Attorney's Office and the City Manager's
Office challenges the district judge's discretion in imposing sanctions, we treat the petition as a petition for writ
of mandamus. See Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992).
had not affirmatively recommended the settlement as they had agreed to do at the settlement
conference. Therefore, pursuant to NRCP 16(f), the district judge imposed sanctions against
the Sparks City Attorney's Office and the Sparks City Manager's Office and ordered each of
them to pay $2,500.00 to Thomas for their alleged failure to participate in good faith in the
settlement conference. The City Attorney's Office and the City Manager's Office both seek an
extraordinary writ to prevent enforcement of the sanctions.
After the hearing at which the court proposed to impose sanctions, the district judge
allegedly made an obscene remark to the city attorney about one of the city council members
in reference to an unrelated matter. In view of the remark, the city attorney filed an affidavit
of bias and a motion for disqualification of the judge. The district judge denied the motion as
untimely. The City of Sparks seeks a writ of mandamus directing the district judge to
disqualify himself.
DISCUSSION
Standard of review
[Headnote 2]
Pursuant to NRS 34.160, a writ of mandamus may be issued by this court to compel the
performance of an act which the law especially enjoins as a duty resulting from an office,
trust or station. We have also indicated that a writ of mandamus will not lie to control a
discretionary act, unless discretion is abused or is exercised arbitrarily or capriciously. See
Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981).
Accordingly, because we are treating both petitions as petitions for mandamus, the
question presented by the petitions at issue is whether the district judge abused his discretion
by refusing to disqualify himself and by imposing sanctions on the City Manager and the City
Attorney for their alleged failure to participate in good faith in the settlement conference.
Writ sought by City of Sparks
[Headnote 3]
As to the writ sought by the City of Sparks, we conclude that petitioners' motion to
disqualify the district judge was untimely filed. In addition, we note that petitioners have
failed to demonstrate either actual bias against a party or evidence to support a reasonable
inference of bias. See NRS 1.235(1). The bias alleged here consists of some frustration with
the Sparks City Council and an alleged obscene remark made about a council member
regarding an unrelated matter. This situation is akin to that addressed in McNair v. State, 108
Nev. 53, 62-63, 825 P.2d 571, 577 {1992).
577 (1992). Furthermore, we do not agree that the district judge's letter to the editor
constituted a breach of the Code of Judicial Conduct, Canon 3B(9). Also, we note that the
district judge had no mandatory obligation to disqualify himself. See NRS 1.230.
Writ sought by City Manager's Office and City Attorney's Office
[Headnote 4]
With respect to the writ sought by the City Manager's Office and City Attorney's Office,
after a thorough review of the facts and the audiotape of the city council meeting at issue, we
do not believe that the city attorney failed to comply with the conditional agreement reached
at the pretrial settlement conference. In addition, we do not believe that the city manager's
silence at the city council meeting warrants sanctions. After listening to the audiotape of the
city council meeting, we are puzzled as to what additional information or input the city
manager, who presumably lacks formal legal training, could have added to the city attorney's
legal presentation of the negligence suit being brought by Thomas. Additionally, we do not
believe that the light-hearted bantering which occurred between the Mayor of Sparks and the
Sparks City Attorney was meant to degrade Thomas or insinuate that her claim was frivolous.
[Headnote 5]
Pursuant to NRCP 16(f), which incorporates the discovery sanctions found in NRCP
37(b)(2), the district judges of this state have the explicit authority to impose sanctions upon
parties for failing to comply with pretrial conference orders. However, implicit in the district
judges' authority to sanction is that the district judge must design the sanction to fit the
violation. See, e.g., Nevada Power v. Fluor Illinois, 108 Nev. 638, 646-47, 837 P.2d 1354,
1360-61 (1992) (concluding that a sanction for attorney's fees pursuant to NRCP 37(b)(2)
must be limited to the violation of the discovery order at issue); Stubli v. Big D International
Trucks, 107 Nev. 309, 314, 810 P.2d 785, 788 (1991) (concluding that sanction of dismissal
was warranted in light of discovery abuse committed by appellant's agents); see also Charles
A. Wright, et al., Federal Practice and Procedure: Civil 2d 1531 (1990). In the present case,
we conclude that the sanctions levied against the city attorney and the city manager, which
will undoubtedly be paid from the city's coffers, do not fit the purported violations at issue.
Therefore, we conclude that the district judge abused his discretion in imposing the $2,500.00
sanctions on the city manager and the city attorney.
Accordingly, we deny the petition for writ of mandamus sought by the City of Sparks and
grant the petition for writ of mandamus sought by the City Manager's Office and the City
Attorney's Office.
sought by the City Manager's Office and the City Attorney's Office. We direct the clerk of this
court to issue a writ of mandamus commanding the district court to vacate its order
sanctioning the Sparks City Manager's Office and the Sparks City Attorney's Office.
Steffen, C. J., and Shearing and Rose, JJ., concur.
In my view the trial court acted within the discretion given to courts under such
circumstances, and I would deny the writ of prohibition.
____________
112 Nev. 956, 956 (1996) Sheriff v. Middleton
SHERIFF, WASHOE COUNTY, Appellant, v. DAVID MIDDLETON, Respondent.
No. 28778
July 25, 1996 920 P.2d 282
Appeal from an order of the district court granting respondent's pretrial petition for a writ
of habeas corpus. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Defendant was accused of two counts of murder, two counts of kidnapping, grand larceny,
fraudulent use of credit card, possession of stolen property, and two counts of being ex-felon
in possession of firearm. The district court granted defendant's pretrial petition for writ of
habeas corpus. State appealed. The supreme court held that state met its burden of proving
corpus delicti for felony counts of kidnapping and murder during commission of felony.
Attorney, Washoe County, for Appellant.
C. Frederick Pinkerton, Reno, for Respondent.
1. Criminal Law.
To establish probable cause to bind defendant over for trial, state must show that crime has been committed and there is probable
cause to believe defendant committed it. NRS 172.155.
2. Homicide.
In order to prove corpus delicti in murder case, state must demonstrate fact of death, and that death occurred by criminal agency.
3. Criminal Law.
At trial, state bears burden of proving beyond reasonable doubt corpus delicti of crime and that defendant committed crime.
4. Criminal Law.
At preliminary hearing stage, probable cause to bind defendant over for trial may be based on slight, even marginal evidence
because it does not involve determination of guilt or innocence.
5. Criminal Law.
At preliminary hearing stage, state's burden with respect to corpus delicti is same as its burden to show probable cause. State must
present evidence supporting reasonable inference of death by criminal agency.
6. Homicide.
Although medical evidence as to cause of death is often critical in establishing that death occurred by criminal agency, state is
required only to show hypothesis that death occurred by criminal agency; there is no requirement that there be evidence of specific
cause of death.
7. Criminal Law.
Confessions and admissions of defendant may not be used to establish corpus delicti absent sufficient independent evidence;
however, once state presents independent evidence that offense has been committed, admissions and confessions may then be used to
corroborate independent proof.
8. Criminal Law.
Corpus delicti may be established by purely direct evidence, partly direct and partly circumstantial evidence, or entirely
circumstantial evidence.
9. Criminal Law.
Evidence used to establish probable cause may be considered in determining corpus delicti, but only if evidence is relevant to and
probative on question.
10. Criminal Law.
If court concludes that evidence is more susceptible of belief that death was caused by criminal agency than by natural causes,
accident, or suicide, then evidence as to corpus delicti is sufficient to bind defendant over for trial.
11. Criminal Law.
Circumstances of disappearances of two women, discoveries of their bodies in remote locations, tied with rope, wrapped in
garbage bags, and bitten severely clearly created reasonable inference of their deaths by criminal agency, and thus state met its burden
at preliminary hearing of proving corpus delicti for two felony counts of kidnapping and murder during commission of felony.
OPINION
Per Curiam:
Respondent David Middleton stands accused of two counts of murder on theories of both premeditation and felony murder, two counts
of kidnapping, one count of grand larceny, one count of fraudulent use of a credit card, one count of possession of stolen property, and
two counts of being an ex-felon in possession of a firearm.
property, and two counts of being an ex-felon in possession of a firearm. After a preliminary
hearing, the justice's court bound respondent over for trial. Respondent then filed a pretrial
petition for a writ of habeas corpus charging that the state had failed to present sufficient
evidence at the preliminary hearing to establish the corpus delicti of the crime of murder and
had therefore failed to establish probable cause to bind him over for trial. The district court
denied the petition. On November 30, 1995, this court issued its Opinion in Frutiger v. State,
111 Nev. 1385, 907 P.2d 158 (1995). On February 7, 1996, respondent filed a motion for
reconsideration of his original habeas petition and included a challenge on the same grounds
to the state's charges of murder under the felony murder rule. The district court held a
hearing, and on June 6, 1996, it granted reconsideration and granted the petition for a writ of
habeas corpus. The state appeals. NRS 34.575(2).
According to testimony presented at respondent's preliminary hearing, on August 8, 1994,
Thelma Davila disappeared suddenly from the apartment she shared in Reno with her sister,
Dora Valverde. Valverde left Davila napping on the couch in the morning. When Valverde
returned from work in the evening, the door was unlocked, the television was on, a plant was
knocked over, Davila's wallet and keys were on the table, a stash of several hundred dollars in
a basket was intact, but Davila was gone, as were the blankets she had been lying under.
Davila was known as a consistently reliable and stable person, she met her appointments, she
showed up for work. However, after August 8, 1994, she failed to keep a scheduled dentist's
appointment, and she failed to appear for work at her job at Circus Circus. Valverde filed a
missing person's report with the Reno police on August 10, 1994.
Sometime between February 3 and February 6, 1995, elementary school teacher Katherine
Powell disappeared without explanation from her Reno home. She failed to meet her cousin
on February 4, 1995, for a ski trip in Tahoe, and she appeared to be gone on February 5, 1995,
when her neighbor returned from a trip to pick up his dog which she had been taking care of.
In addition, the neighbor noticed that certain items, such as a computer laser printer, fax
machine and portable phone were missing from the house. Numerous items of personal
property were later confirmed as missing from Powell's house, including those identified by
the neighbor, a 35 mm camera, a laptop computer, a CD player and her purse, checkbook and
credit cards. Like Davila, Powell was known to be extremely reliable and consistent in her
activities. She was very committed to her work and was never late or absent without notice.
After February 6, 1995, she never showed up again to school.
6, 1995, she never showed up again to school. She was formally reported missing on February
6, 1995.
Powell's body was found in a dumpster in Reno on February 11, 1995. She was naked
except for a black shirt and two socks. She was tied hand and foot with a white braided rope
and had a human bite mark on her left breast. Her body was wrapped in a sleeping bag and
several black plastic garbage bags with silver warning labels. She was also wrapped in a large
yellow storage bag with the label Warps banana bag on it. An autopsy failed to reveal a
cause of death.
Davila's body was found in the desert near Verdi on April 9, 1995, nine months after she
disappeared. Due to animal activity, her remains were scattered, and all that was left was a
skull attached to several vertebrae and several long bones. Pieces of white braided rope were
also found near the body. Davila was identified by her dental records.
As part of the investigation into Powell's death, police researched the availability of yellow
Warps bags in Reno. They learned that only two stores in the Reno area sell the bags. Of
those two, only one had a record of having sold any such bags, and that store had sold one
box on February 8, 1995. The bags are packaged in boxes of three bags.
Also as a result of the investigation into Powell's death, police were alerted to a credit card
transaction at The Good Guys store in which a person ordered a Yamaha stereo over the
phone using Powell's MasterCard. On February 6, 1995, a woman wearing a yellow
windbreaker with a logo on it and driving a 1970's red International Harvester pick-up truck
picked up the stereo using her own red hand-cart. The same pick-up truck was later found
near the TCI Cablevision offices. Police learned that the truck was registered to respondent,
and that respondent had installed cable at Powell's home on January 28, 1995. A search
warrant was obtained for respondent's apartment. Police were then informed through the
secret witness program that Evonne Haley, respondent's long-time girlfriend, rented a storage
unit in Sparks. Investigation revealed that the unit was rented in the name of Hal-Data
Research but was signed and paid for by respondent. On March 5, 1995, police obtained and
served a warrant for the unit.
In the unit police found Powell's personal property identified as missing from her home.
Also in the unit police found a yellow windbreaker with a logo, a red hand-cart and a Yamaha
stereo. They found two blankets which appeared to be similar to those missing from Davila's
apartment, a black lace shirt similar to one of Davila's and a hair-tie like one she had worn to
work. (Evonne Haley testified that the blankets, lace shirt and hair-tie could have been hers.)
been hers.) In addition, police found a Halloween-type mask, webbing, bondage literature and
photos, several foam and rubber balls and various types of personal restraints. They also
found a Coleman cooler with handcuffs and bolts and several rolls of duct tape inside. In
addition, the unit contained three guns (one of which was identified as Powell's), a box of
women's lingerie, a tape titled 1992 Trust, condoms, an earring hasp, a machete with a
handle made of a dog's skull with fangs and horns, a bat or club, at least one stun-gun or
tazer, and a refrigerator with the internal shelves removed, the freezer section cut out and two
small holes drilled through the top and back. The refrigerator contained blue cotton fibers
matching those found on Powell's body in the dumpster. A large speaker box wired with
cables was attached to a pulley system in the ceiling, and hair was found in the speaker box.
White braided rope similar to that used to tie Powell and Davila was found. The search also
revealed black plastic garbage bags with silver warning labels similar to those found in the
dumpster with Powell, and an open box containing two yellow Warps storage bags. Finally,
a surveillance video taken by the storage company's automatic cameras apparently reveals
respondent and a woman appearing to be Ms. Haley moving a large object . . . consistent
with the packaging of Ms. Powell. The record does not reflect the date of the video, or
whether the large object was being moved into or out of the unit.
Hair samples taken from the restraints were later identified by forensic experts as likely to
have come from Powell; saliva found on one of the foam balls was determined to contain
DNA consistent with Powell's. Hair determined likely to be Davila's hair was taken from the
duct tape. Forensic experts also conducted tests on the ropes from the unit and both victims
and concluded that the ropes used to tie Powell and found near Davila could be the same
rope, and could also be the same as the rope found in the storage unit. However, no cause of
death was established for either woman. The state did not offer any explanation for why no
cause of death could be established, nor did it rule out any causes.
On the basis of the evidence listed above, the justice's court ordered respondent bound
over for trial. On August 31, 1995, respondent filed his pretrial petition for a writ of habeas
corpus. He contended that because the state's evidence had not revealed any cause of death,
the state had not shown that a crime had been committed and had not met its burden of
establishing the corpus delicti of murder: death by a criminal agency. The district court held a
hearing and denied the petition. The court stated that the circumstances of the disappearances
and discoveries of the bodies provided sufficient evidence that the two women had died by
criminal agency.
provided sufficient evidence that the two women had died by criminal agency.
However, in June of 1996, after reconsidering the petition in light of this court's Opinion
in Frutiger, the district court granted the petition. Thus, it appears that the district court
interpreted Frutiger as changing or expanding Nevada's law on the doctrine of corpus delicti.
Frutiger is not intended to expand the corpus delicti rule as it has existed in this stateto the
extent that it may be read to do so, we now take this opportunity to clarify and restate the
parameters of proof of corpus delicti.
[Headnotes 1, 2]
As discussed in Frutiger, to establish probable cause to bind a defendant over for trial, the
state must show that (1) a crime has been committed and (2) there is probable cause to
believe the defendant committed it. NRS 172.155; Frutiger, 111 Nev. at 1389, 907 P.2d at
160. To meet the first prong of this test, known as the corpus delicti, the state must
demonstrate (1) the fact of death, and (2) that death occurred by a criminal agency. Frutiger,
111 Nev. at 1389, 907 P.2d at 160; Azbill v. State, 84 Nev. 345, 350-51, 440 P.2d 1014, 1017
(1968). Here, as in Frutiger, the deaths of both women are conceded. The question is whether
the state has met its burden of showing that those deaths were caused by the criminal agency
of another.
[Headnotes 3-5]
At trial, the state bears the burden of proving beyond a reasonable doubt the corpus delicti
of the crime and that the defendant committed the crime. Frutiger, 111 Nev. at 1390-91, 907
P.2d at 161; Azbill, 84 Nev. at 352, 440 P.2d at 1018. However, at the preliminary hearing
stage, probable cause to bind a defendant over for trial may be based on slight,' even
marginal' evidence because it does not involve a determination of guilt or innocence of an
accused. Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980) (citations omitted);
see also Sheriff v. Milton, 109 Nev. 412, 414, 851 P.2d 417, 418 (1993) (the state need only
present sufficient evidence to support a reasonable inference that the accused committed
the offense' ) (quoting Kinsey v. Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971)). The
same standard applies to proof of the corpus delicti. In Graves v. Sheriff, 88 Nev. 436, 439,
498 P.2d 1324, 1326 (1972), this court stated that the state has the burden of showing a
reasonable inference of death by criminal agency, such that a person of ordinary caution
and prudence [would] believe and conscientiously entertain a strong suspicion. See also
Frutiger, 111 Nev. at 1390, 907 P.2d at 161; Azbill, 84 Nev. at 352, 440 P.2d at 1018.
Accordingly, we now clarify that at the preliminary hearing stage, the state's burden with
respect to the corpus delicti is the same as its burden to show probable cause. The state must
present evidence supporting a reasonable inference of death by criminal agency.
[Headnote 6]
Although medical evidence as to the cause of death is often critical in establishing that a
death occurred by criminal agency, there is no requirement that there be evidence of a specific
cause of death. The state is required only to show a hypothesis that death occurred by
criminal agency; it is not required to show a hypothesis of a specific cause of death. Azbill, 84
Nev. at 352, 440 P.2d at 1019.
[Headnotes 7, 8]
Confessions and admissions of the defendant may not be used to establish corpus delicti
absent sufficient independent evidence. Hooker v. Sheriff, 89 Nev. 89, 506 P.2d 1262 (1973).
Once the state presents independent evidence that the offense has been committed,
admissions and confessions may then be used to corroborate the independent proof. Myatt v.
State, 101 Nev. 761, 763, 710 P.2d 720 (1985). However, all other relevant evidence may be
considered. The corpus delicti may be established by purely direct evidence, partly direct and
partly circumstantial evidence, or entirely circumstantial evidence. Hooker, 89 Nev. at 92,
506 P.2d at 1263; Azbill, 84 Nev. at 351, 440 P.2d at 1018.
The showing of the corpus delicti is a threshold question. Before the state may prosecute a
person for a crime, it must be able to establish probable cause that the crime has been
committed. Evidence as to the corpus delicti should ideally be considered before and
independently of evidence tending to establish probable cause that the defendant committed
the crime. Thus, in Hicks v. Sheriff, 86 Nev. 67, 69, 464 P.2d 462, 464 (1970), this court
observed that circumstantial evidence that the defendant was driving the victim's car was not
relevant to show the corpus delicti, but was only relevant to show probable cause that the
defendant had committed the crime once the fact of the offense itself had been established. In
Frutiger, this court cited Hicks and concluded that again, circumstantial evidence connecting
Frutiger with Poulter's body would be relevant to show probable cause that Frutiger
committed the crime, but was not material to show that Poulter's death had occurred by a
criminal agency. Frutiger, 111 Nev. at 1390, 907 P.2d at 161.
[Headnote 9]
However, these holdings should not be read to mean that evidence which may also be used
to establish probable cause that the defendant committed the crime can never be used in
determining the corpus delicti.
the defendant committed the crime can never be used in determining the corpus delicti. As
this court stated in Azbill:
Technically, we suppose, if it were possible to conduct proceedings in such a precise
manner, evidence should be offered first to prove the corpus delicti and only after that
was established by lawful evidence of the proper degree should the state turn to the
proof of probable cause. However, as any prosecutor, defense counsel or judge knows,
it is often not practical to present evidence in such a manner.
Thus, evidence and testimony on both points, corpus delicti and probable cause,
comes in often, if not always, intermingled and without specific control as to which of
the points it is offered to prove.
As demonstrated by the cases reviewing whether corpus delicti was proved by
evidence lawful for that purpose, the courts look at the entire record and without regard
to the order in which it came in or that certain types of evidence may not be considered
in proving corpus delicti (confessions for example) and hold that there was sufficient
evidence to establish the corpus delicti independent of confessions and possibly
admissions, but that the latter may then be used to corroborate or strengthen the proof
of the corpus delicti.
Azbill, 84 Nev. at 351, 440 P.2d at 1018.
[Headnote 10]
Thus, each case must be decided on its own set of facts, and evidence considered in
establishing the corpus delicti must be relevant to and probative on the question of the corpus
delicti. NRS 48.025.
1
In Frutiger, this court concluded that evidence connecting Frutiger
to the victim was not probative of death by criminal agency and was therefore not relevant to
the question of the corpus delicti. More specifically, in cases such as Frutiger and Azbill,
where there is medical evidence as to possible causes of death, the evidence of death by
natural causes may rebut or outweigh an inference of death by criminal agency. At the
preliminary hearing and on a pretrial petition challenging the probable cause determination,
the court must conduct a balancing test of the relevant, probative evidence. If the court
concludes that the evidence is more susceptible of belief that the death was caused by a
criminal agency than by natural causes, accident or suicide, then the evidence as to corpus
delicti is sufficient to bind the defendant over for trial.
__________

1
To be admissible, evidence must be relevant. NRS 48.025(2). To be relevant, evidence must have any
tendency to make the existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. NRS 48.015.
defendant over for trial. Sheriff v. Larsgaard, 96 Nev. 486, 489, 611 P.2d 625, 627 (1980). At
trial, the jury must weigh all the relevant evidence presented, and must conclude that corpus
delicti has been proved beyond a reasonable doubt.
[Headnote 11]
In the instant case, the district court determined that it was precluded from considering any
and all evidence which would ultimately establish probable cause that respondent committed
the crimes, including evidence regarding the disappearances of the women and the manner
and locations in which their bodies were found. The court concluded that its review was
limited to evidence of the bare conditions of the bodies themselves, and found that the bodies
alone did not reveal death by criminal agency because they did not reveal anything, and
therefore the state had not met its burden. This conclusion is not mandated by our decision in
Frutiger. The court must consider and weigh all the evidence offered which bears on the
question of death by criminal agency. In this case, the circumstances of the disappearances of
the women, the discoveries of their bodies in remote locations, tied with rope, wrapped in
garbage bags, bitten severely, clearly creates a reasonable inference of their deaths by
criminal agency. Furthermore, unlike in Frutiger, where the weight of the available medical
evidence indicated a likelihood of death by natural causes, in this case there is no evidence to
rebut the inference of death by criminal agency. The district court erred in not considering at
least the circumstances of the disappearances of the women and the discoveries of their
bodies. There is ample evidence by those circumstances alone tending to prove that Powell
and Davila died by a criminal agency.
With respect to the question of the felony murder charges, we conclude, in view of our
discussion above, that at the preliminary hearing, the state met its burden of proving a corpus
delicti for the two felony counts of kidnapping and murder during the commission of a
felony.
We reverse the district court's order granting respondent's pretrial petition for a writ of
habeas corpus, and we remand this matter to the district court for further proceedings.
____________
112 Nev. 965, 965 (1996) Scialabba v. Brandise Constr. Co.
PENNY R. SCIALABBA, Appellant, v. BRANDISE CONSTRUCTION COMPANY, INC.,
a Nevada Corporation, Respondent.
No. 24632
August 16, 1996 921 P.2d 928
judgment. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Tenant sued construction company which was working on apartment complex for injuries
sustained when she was assaulted by assailant who had hidden in vacated apartment. The
district court granted summary judgment in favor of construction company. Tenant appealed.
The supreme court, Shearing, J., held that: (1) construction company owed duty to tenant to
keep complex in reasonably safe condition for use; (2) genuine issues of fact as to whether
construction company breached that duty and whether any breach proximately caused tenant's
injuries precluded summary judgment; and (3) decision not to disqualify judge from case was
supported by substantial evidence.
Joseph I. Cronin, Minden, for Appellant.
Corby D. Arnold, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is only appropriate when review of record viewed in light most favorable to nonmoving party reveals no triable
issues of material fact and judgment is warranted as matter of law. NRCP 56(c).
2. Judgment.
accepted as true. NRCP 56(c).
On appeal of order granting summary judgment, supreme court is required to determine whether trial court erred in concluding that
absence of genuine issues of material fact justified its granting of summary judgment. NRCP 56(c).
Supreme court reviews de novo order granting summary judgment. NRCP 56(c).
5. Negligence.
To prevail on negligence theory, plaintiff must generally show that defendant owed duty of care to plaintiff, defendant breached
that duty, breach was legal cause of plaintiff's injury, and plaintiff suffered damages.
6. Judgment.
In order to establish entitlement to judgment as matter of law, moving defendant must show that one of elements of plaintiff's
prima facie case is clearly lacking as matter of law.
7. Negligence.
Whether defendant owes plaintiff duty of care is question of law.
8. Negligence.
As general rule, private person does not have duty to protect another from criminal attack by third person; however, there may be
duty where special relationship exists between parties.
9. Negligence.
Landowner's duty to protect from injury caused by third person is circumscribed by reasonable foreseeability of third person's
actions and injuries resulting from condition or circumstances which facilitated harm.
10. Negligence.
Construction company owed tenant duty of care to use reasonable care to keep apartment complex, on which it was working, in
reasonably safe condition for use. Construction company retained control over premises because it had keys to vacant apartments and
was responsible for locking doors at time tenant was attacked by assailant who had hidden in vacant apartment, and criminal activity
was foreseeable as result of keeping doors to vacant apartments unlocked since construction company had employed night watchman
in anticipation of criminal activity.
11. Judgment.
Genuine issues of material fact as to whether construction company, which was working on apartment complex, breached its duty
to keep apartment complex in reasonably safe condition for use and whether any breach proximately caused tenant's injuries precluded
summary judgment in tenant's action against construction company for injuries sustained when she was attacked by assailant who had
hidden in vacant apartment.
12. Judges.
Decision to deny tenant's motion to disqualify judge in her action against construction company was supported by substantial
evidence where judge stated that he did not know construction company's principal corporate owner and that he knew of no compelling
reason to recuse himself.
OPINION
On December 9, 1988, appellant Penny R. Scialabba, was a resident of Summerhill Pointe Apartments in Las Vegas, Nevada. On that
evening, Scialabba returned home from work following a short trip to the grocery store. Just after unlocking the door of her apartment,
Scialabba was assaulted from the rear, stabbed in the back and then pushed into her apartment. Once in her apartment, Scialabba received
multiple stab, slash, and defensive wounds. Scialabba is permanently disfigured as a result of the attack.
The assailant, Stanley Bernard Harris, also a resident of Summerhill Pointe Apartments at
that time, had hidden in a vacant apartment across the hall from Scialabba's apartment in
preparation for the attack. Harris gained access to the vacant apartment by simply opening the
door, as it was unlocked. Harris was tried and convicted of attempted murder and is presently
serving time in the Nevada State Prison.
At the time of the attack, the apartment building (one of 18 in a complex) was newly
constructed and only a few of the units were occupied by tenants. By October 1988, the
apartment building had been substantially completed with the exception of punch list items,
including installing hardware, adjusting doors, and ensuring the functioning of the electrical
outlets. On November 2, 1988, the Clark County Building Department approved the buildings
for occupancy. Scialabba and Harris signed leases in mid-November, only one month prior to
the attack.
Scialabba brought a negligence suit for money damages against the owner of Summerhill
Pointe Apartments, the property management company, the security company, and respondent
Brandise Construction Company (BCC). Scialabba settled her suit against the property
owner and the property management company on the eve of trial. The district court granted
summary judgment in favor of the security company, which this court affirmed. Thus, the
only remaining action is against the construction company, respondent BCC.
Scialabba's negligence action against BCC is based upon its failure to lock the doors after
working on punch list items in the vacant apartments. Just prior to trial, BCC filed its third
motion for summary judgment. BCC asserted that it owed no contractual or other duty of care
to Scialabba, citing a factually similar case, Doe v. Linder Const. Co., Inc., 845 S.W.2d 173
(Tenn. 1992).
The district court granted BCC's motion for summary judgment, concluding that Harris's
criminal act was not foreseeable. The district court analyzed foreseeability in the context of
both duty and proximate cause. It relied heavily upon the rationale of the Linder case from the
Tennessee Supreme Court to reach its decision.
On appeal, Scialabba contends that the district court erred in granting summary judgment,
arguing that BCC retained control over the property and that the criminal attack was
reasonably foreseeable and therefore, BCC owed a duty to Scialabba comparable to the
property owner's duty. Scialabba further asserts that BCC breached its duty by failing to lock
the doors to keep the premises secure and that the breach proximately caused her injuries.
BCC contends that summary judgment was proper because it owed no duty to Scialabba,
legal or otherwise. BCC also asserts that Harris's tenancy did not create a reasonably
foreseeable probability of harm. BCC argues that an unlocked door to a vacant apartment is
not the proximate cause of Scialabba's injuries as a matter of law.
[Headnotes 1-4]
Summary judgment is only appropriate when a review of the record viewed in a light most
favorable to the nonmoving party reveals no triable issues of material fact and judgment is
warranted as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
(1985); NRCP 56(c). In determining whether summary judgment is proper, the nonmoving
party is entitled to have the evidence and all reasonable inferences accepted as true. Wiltsie
v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). On appeal, this court is
required to determine whether the trial court erred in concluding that an absence of genuine
issues of material fact justified its granting of summary judgment. Bird v. Casa Royale West,
97 Nev. 67, 68, 624 P.2d 17, 18 (1981). This court's review of an order granting summary
judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
[Headnotes 5, 6]
Scialabba sued BCC on a theory of negligence. To prevail on a negligence theory, a
plaintiff must generally show that: (1) the defendant owed a duty of care to the plaintiff; (2)
the defendant breached that duty; (3) the breach was the legal cause of the plaintiff's injury;
and (4) the plaintiff suffered damages. Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805
P.2d 589, 590 (1991). In a negligence action, summary judgment should be considered with
caution. See Sims v. General Telephone & Electric, 107 Nev. 516, 521, 815 P.2d 151, 154
(1991). In order to establish entitlement to judgment as a matter of law, a moving defendant
must show that one of the elements of the plaintiff's prima facie case is clearly lacking as a
matter of law. Id. at 521, 815 P.2d at 154. Accordingly, the first inquiry is whether BCC
owed any duty to Scialabba.
[Headnotes 7, 8]
Whether a defendant owes a plaintiff a duty of care is a question of law. Dubus v. Dresser
Industries, 649 P.2d 198, 202 (Wyo. 1982). As a general rule, a private person does not have
a duty to protect another from a criminal attack by a third person. Kline v. 1500
Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970). However, courts have
imposed liability where a special relationship exists between the parties, including
landowner-invitee, businessman-patron, employer-employee, school district-pupil,
hospital-patient, and carrier-passenger. Id. at 4S2-S3.
ing landowner-invitee, businessman-patron, employer-employee, school district-pupil,
hospital-patient, and carrier-passenger. Id. at 482-83. The rationale behind the imposition of
liability is that:
[S]ince the ability of one of the parties to provide for his own protection has been
limited in some way by his submission to the control of the other, a duty should be
imposed upon the one possessing control (and thus the power to act) to take reasonable
precautions to protect the other one from assaults by third parties which, at least, could
reasonably have been anticipated.
Id. Thus, the element of control is the pivotal factor in the determination of liability arising
from certain relationships.
[Headnote 9]
This court has addressed the duty of a landowner to protect against third-party criminal
activity. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993); Early v.
N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d 683 (1984). In Doud, this court stated that a
landowner owes a duty to use reasonable care to keep the premises in a reasonably safe
condition for use. However, the duty to protect from injury caused by a third person is
circumscribed by the reasonable foreseeability of the third person's actions and the injuries
resulting from the condition or circumstances which facilitated the harm. Doud, 109 Nev. at
1101, 864 P.2d at 799. See also Moody v. Manny's Auto Repair, 110 Nev. 320, 328-33, 871
P.2d 935, 940-43 (1990).
[Headnote 10]
Thus, whether BCC owes Scialabba a duty of care turns on whether it exercised control
over the premises and whether the criminal attack was reasonably foreseeable. We conclude
that BCC exercised sufficient control over the premises in order to establish a duty to
Scialabba. According to George A. Hunt, Esq., the attorney for BCC, during the initial
phases of construction, control was exclusively in the contractor. After they started moving
tenants in, control was joint between the owner and the contractor. After the contractor quit
the premises after completing all of the work, exclusive control shifted to the owner.
Between the time the apartment building was approved for occupancy in November 1988 and
the punch list items were completed in February 1989, BCC and the property owner had
joint control over the premises. At that time, BCC retained master keys to the finished, yet
vacant, apartments. Joseph Brandise, the principal of BCC, stated in his deposition that one of
his workmen was responsible for locking the doors to the vacant apartments at night and
unlocking them in the morning. Given these facts, we conclude that BCC retained control
over the premises because BCC retained keys to the vacant apartments and was
responsible for locking the doors at the time of the attack in December 19SS.
the premises because BCC retained keys to the vacant apartments and was responsible for
locking the doors at the time of the attack in December 1988.
Further, we conclude that criminal activity is foreseeable as a result of keeping the doors to
the vacant apartments unlocked. As this court stated in Doud, [t]he modern trend holds that
foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent
upon notice of prior crimes of a similar nature occurring on or near the premises, but may
also be determined from all of the circumstances present. Doud, 109 Nev. at 1102, 864 P.2d
at 799-80. Thus, according to Doud, foreseeability is determined on a
totality-of-the-circumstances basis. Id.
Joseph Brandise stated that one type of criminal activity, theft, is a common problem in
apartment developments; for example, refrigerators are often taken from vacant apartments.
In addition, BCC employed one of its labor foremen, Joseph Chacon, as a night watchman
primarily to prevent theft. Thus, criminal activity is foreseeable from the failure to keep doors
to vacant apartments unlocked.
1
While one can argue that the specific type of criminal
activity involved here, a violent assault, may not have been foreseeable, the fact that
unsecured vacant apartments allow easy access to unwelcome third parties with nefarious
intentions is sufficient to establish a foreseeable risk of harm to the tenants in the building.
[Headnote 11]
We conclude that BCC owed a duty to Scialabba as a matter of law because it exercised
control over the premises and the alleged failure to lock the doors to the vacant apartments
created a foreseeable risk of criminal activity and harm to Scialabba. But see Doe v. Linder
Const. Co., 845 S.W.2d 173 (Tenn. 1992) (holding that defendant construction company for
housing development owed no duty in negligence action to plaintiff female homeowner, who
was raped when defendant's employee stole the key to plaintiff's home from location within
defendant's control). Therefore, the district court erred in granting summary judgment
because genuine issues of material fact remain as to whether BCC breached that duty and
whether any breach proximately caused Scialabba's injuries. See Doud, 109 Nev. at 1105, 864
P.2d at S01 {stating that questions of proximate cause and intervening cause are
generally questions of fact and not of law, and thus they are best left for the jury to
decide).
__________

1
Further, the record contains an exhibit entitled Las Vegas Metropolitan Police Department Event Retrieval
Summary Report, showing that in the twelve months preceding the attack, the area encompassing the apartment
building reported 571 crimes. Of the total number of crimes, there was one robbery, thirty-one burglaries, fifteen
grand larcenies, two assaults, three batteries, seven instances of malicious destruction of property, and two
prowlers.
801 (stating that questions of proximate cause and intervening cause are generally questions
of fact and not of law, and thus they are best left for the jury to decide).
Scialabba also contends on appeal that District Court Judge Lehman should have been
disqualified from her case. She asserts that Judge Lehman could not be impartial because he
has several good friends who are involved in a companion case. The companion case is a
declaratory relief action that the corporate owner of the apartment building complex, BHP
Partners, and the individual partners filed against their errors and omissions insurance carrier,
Brandise and Martinet Insurance. The principals of Brandise and Martinet Insurance are
Harry Brandise and Loy Martinet, two very close friends of Judge Lehman. Harry Brandise is
the brother of Joseph Brandise, the principal of BCC and a partner in BHP Partners. Judge
Lehman recused himself from the declaratory relief action due to the involvement of his
long-time friends, Harry Brandise and Loy Martinet.
On March 20, 1991, just one month prior to the scheduled trial date of April 22, 1991,
Scialabba filed a motion to disqualify Judge Lehman, arguing that because Judge Lehman
voluntarily recused himself in the declaratory relief action, he should be disqualified from her
case. Judge Lehman filed an affidavit pursuant to NRS 1.235(5)(b),
2
stating that he does
not know of any statute, rule of court, ethical standard or other compelling reason to recuse
himself from this case. Judge Lehman further stated:
I want to point out that in the instant action, Brandise Construction Company, Inc., is a
corporation in which Harry Brandise owns no interest. I point out further that I had not
even been aware that Harry Brandise had a brother who is the principal in the Brandise
Construction Company, Inc., a party in the instant action. Your affiant further add[s]
that I have never met Joseph Brandise and thus [am] confident that I [have] no bias
whatever in favor of Brandise Construction Company, Inc.
A hearing was held before District Court Judge Michael Wendell on Scialabba's motion to
disqualify Judge Lehman on April 11, 1991.
__________

2
NRS 1.235 sets forth the procedure for disqualifying judges other than supreme court justices. It states in
pertinent part:
(5) The judge against whom an affidavit alleging bias or prejudice is filed shall proceed no further
with the matter and shall:
(b) File a written answer with the clerk of the court within 2 days after the affidavit is filed, admitting or
denying any or all of the allegations contained in the affidavit and setting forth any additional facts which
bear on the question of his disqualification. The question of the judge's disqualification must thereupon
be heard and determined by another judge agreed upon by the parties or, if they are unable to agree, by a
judge. . . .
1991. On April 16, 1991, Judge Wendell issued an order denying the motion. On that very
same day, Scialabba filed a Petition for Writ of Certiorari or Prohibition in this court,
requesting this court to grant relief and prohibit Judge Lehman from sitting on the case.
Scialabba v. Eighth Judicial District Court, Case No. 22069 (filed April 16, 1991). In a
three-judge order filed April 17, 1991, this court denied the petition.
[Headnote 12]
We conclude that the decision to deny Scialabba's motion to disqualify Judge Lehman is
supported by substantial evidence. Judge Lehman stated that he did not know Joseph
Brandise and that he knew of no compelling reason to recuse himself. Accordingly,
Scialabba's contention lacks merit and Judge Lehman should not have been disqualified from
the instant case.
For the foregoing reasons, we reverse the order of the district court granting summary
judgment and remand for further proceedings consistent with this opinion.
Springer, J., with whom, Steffen, C. J., agrees, dissenting:
I dissent because I disagree with the majority opinion's conclusion that the alleged failure
to lock the doors to vacant apartments created a foreseeable risk that an assailant would use
the unlocked apartments as an opportunity to leap out and unprovokedly attack passersby. I
do not see this risk as being foreseeable under the circumstances of this case. See Doe v.
Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992), cited in the majority opinion and
which agrees with my position.
____________
112 Nev. 972, 972 (1996) Day v. Zubel
VAL DAVIS DAY, Appellant, v. ERIC ZUBEL, Individually and ERIC ZUBEL, CHTD.,
Respondents.
No. 26579
August 16, 1996 922 P.2d 536
Appeal from an order granting summary judgment in a legal malpractice claim. Eighth
Judicial District Court, Clark County; Peter I. Breen, Judge.
Client brought action against attorney he retained to handle potential federal civil rights
claims against, among others, state and county public defenders involved in his criminal case.
The district court granted attorney's motion for summary judgment, and client appealed. The
supreme court, Rose, J., held that: (1) as a matter of law, statute of limitations governing
client's underlying 19S3 cause of action did not begin to run until charges against him
were dismissed with prejudice, and {2) in context of attorney's claim that client did not
have viable 19S3 claim against state and county public defenders, material fact issue
existed as to whether defenders were acting under color of state law at time of
constitutional violations.
112 Nev. 972, 973 (1996) Day v. Zubel
as a matter of law, statute of limitations governing client's underlying 1983 cause of action
did not begin to run until charges against him were dismissed with prejudice, and (2) in
context of attorney's claim that client did not have viable 1983 claim against state and
county public defenders, material fact issue existed as to whether defenders were acting under
color of state law at time of constitutional violations.
Barker, Gillock, Koning & Brown and Janet S. Markley, Las Vegas, for Appellant.
Rawlings, Olson, Cannon, Gomley & Desruisseaux and Peter M. Angulo, Las Vegas, for
Respondents.
Required elements of legal malpractice claim are: (1) attorney-client relationship; (2) duty owed to client by attorney to use skill,
prudence, and diligence as lawyers of ordinary skill and capacity possess in exercising and performing tasks which they undertake; (3)
breach of that duty; (4) breach being proximate cause of client's damages; and (5) actual loss or damage resulting from negligence.
2. Judgment.
Summary judgment is only appropriate when, after review of the record viewed in light most favorable to nonmoving party, there
remain no issues of material fact.
3. Judgment.
accepted as true.
State supreme court's review of summary judgment order is de novo. Court is required to determine whether trial court erred in
concluding that absence of genuine issues of material fact justified its granting of summary judgment.
5. Limitation of Actions.
Appropriate accrual date for statute of limitations is question of law only if facts are uncontroverted.
6. Limitation of Actions.
Cause of action under 1983 based on wrongful arrest, conviction, and incarceration would accrue upon final termination of
criminal proceedings in plaintiff's favor, which would occur when criminal charges against plaintiff were dismissed with prejudice, not
on earlier date when plaintiff was released from prison pending new trial. 42 U.S.C. 1983.
7. Civil Rights.
To recover damages from state and county public defenders under 1983, plaintiff had to: (1) prove that his conviction or
sentence had been reversed on direct appeal, expunged by executive order, declared invalid by state tribunal authorized to make such
determination, or called into question by federal court's issuance of writ of habeas corpus, and (2) prove that public defenders'
representation of him during his unlawful imprisonment violated his constitutional rights and that public
defenders were acting under color of state law.
112 Nev. 972, 974 (1996) Day v. Zubel
prove that public defenders' representation of him during his unlawful imprisonment violated his constitutional rights and that public
defenders were acting under color of state law. 42 U.S.C. 1983.
8. Civil Rights.
For purposes of 1983 claim, determination of whether public defender acts under color of state law depends on nature and
context of function he is performing. Public defender does not act under color of state law when performing lawyer's traditional
functions as counsel to defendant in criminal proceeding, but may act under color of state law while performing certain administrative,
and possibly investigative, functions. 42 U.S.C. 1983.
9. Judgment.
In context of client's malpractice action based on attorney's handling of potential 1983 claim, genuine issue of material fact
existed as to whether actions of state and county public defenders in client's underlying criminal case in failing to assign personnel to
handle client's writ petition and losing writ petition were administrative functions or traditional lawyer functions, precluding summary
judgment for attorney on grounds that client did not have viable cause of action. 42 U.S.C. 1983.
OPINION
Val Davis Day filed a complaint for legal malpractice against Eric Zubel when Zubel failed to file civil rights claims on Day's behalf.
The district judge granted Zubel's motion for summary judgment on the following grounds: (1) the statute of limitations expired on March
15, 1993, which was before Day met with Zubel; and (2) Day's alleged cause of action contained no viable underlying claims. We conclude
the district judge's grant of summary judgment was improper.
FACTS
In September 1982, Day was convicted of and imprisoned for sexual assault. Subsequently, Day's appeal of his conviction was
processed first by the state public defender's office and then by the county public defender's office. Pursuant to its decision not to allocate
personnel to habeas corpus files until higher priority files were processed, the state public defender's office filed Day's petition for a writ of
habeas corpus in district court after waiting for two and one-half years. Consequently, the writ petition was denied as untimely. After the
writ petition was denied, the state public defender's office transferred Day's file to the county public defender's office, which subsequently
lost the file, thereby delaying action on Day's claim for another one and one-half years. On March 15, 1991, eight and one-half years after
Day's conviction, the district court finally granted Day's writ petition for the following reasons: {1) his incarceration was the
result of a defective identification, {2) discrepancies existed in the forensic evidence, {3) he was represented
by incompetent counsel, and {4) the prosecutor engaged in misconduct.
112 Nev. 972, 975 (1996) Day v. Zubel
following reasons: (1) his incarceration was the result of a defective identification, (2)
discrepancies existed in the forensic evidence, (3) he was represented by incompetent
counsel, and (4) the prosecutor engaged in misconduct. As a result of the grant of Day's writ
petition, his conviction was reversed and a new trial was ordered. On March 27, 1991, bail
was posted and Day was released from prison. On May 17, 1991, the district judge ordered
that all criminal charges against Day be dismissed.
In April 1993, Day retained Zubel to handle his potential federal civil rights claims against
the police department, the prosecutor, and the state and county public defenders' offices
arising under 42 U.S.C. 1981 and/or 1983 for his alleged wrongful arrest, conviction, and
incarceration. Zubel told Day that he would review his case and that the statute of limitations
was rapidly approaching. Day unsuccessfully attempted to contact Zubel on several occasions
following their initial meeting. In July 1993, Zubel informed Day that no claim could be filed
on his behalf because the statute of limitations had expired on March 15, 1993, prior to their
initial meeting.
Day filed a complaint against Zubel alleging a cause of action for legal malpractice. Day
alleged that the statute of limitations on his claims did not expire until May 17, 1993, and
Zubel's failure to take timely action resulted in a loss of opportunity to realize compensation
for his wrongful incarceration.
Zubel filed a motion for summary judgment, asserting that the statute of limitations had
expired on March 15, 1993, two years after Day's writ petition was granted and one month
before Day contacted Zubel, and therefore no viable claim for legal malpractice existed.
Zubel further asserted that even if he had been able to timely file a civil rights complaint on
Day's behalf, two potential defendants, the prosecutor and the police department, were
immune from prosecution pursuant to state and federal law; and the state and county public
defenders' offices, the only other potential defendants, were immune from prosecution
because they acted in a traditional role as attorneys and therefore could not have been state
actors who violated Day's constitutional rights under color of state law.
In his opposition to Zubel's motion for summary judgment, Day reiterated the contention
that the statute of limitations did not expire until May 17, 1993, which was two years after
Day's criminal charges were formally dismissed and several weeks after Day saw Zubel
regarding his potential causes of action. Furthermore, while Day conceded that the prosecutor
was afforded absolute immunity,
1
he still contended that a viable cause of action pursuant
to 42 U.S.C. 19S3 existed against the state and county public defenders' offices because
they violated his rights by virtue of their administrative decision to not allocate personnel
to habeas corpus files.
__________

1
Day's opposition motion asserted that the police department did not enjoy the same immunity if its
investigative irregularities, recognized by the
112 Nev. 972, 976 (1996) Day v. Zubel
action pursuant to 42 U.S.C. 1983 existed against the state and county public defenders'
offices because they violated his rights by virtue of their administrative decision to not
allocate personnel to habeas corpus files. As evidenced in a letter to the county public
defender's office, the state public defender's office admitted it was negligent in processing
Day's appeal by virtue of the fact that it waited two and one-half years before it reviewed
Day's file. The letter specifically described Day's situation as appalling, and that Day is
likely innocent, but received improper representation at trial . . ., on appeal . . ., and in habeas
corpus (this office). Day alleged that his claim against the county public defender's office
would also have been based on administrative neglect.
The district judge granted Zubel's motion for summary judgment, concluding that the
statute of limitations commenced on March 15, 1991, when the petition for habeas corpus
was granted, and that there were no viable underlying claims to be pursued because the state
and county public defenders' conduct constituted traditional lawyer functions not cognizable
in a color of law argument.
Day filed this timely appeal challenging the district judge's grant of summary judgment.
DISCUSSION
[Headnote 1]
The required elements of a legal malpractice claim are: (1) an attorney-client relationship;
(2) a duty owed to the client by the attorney to use such skill, prudence, and diligence as
lawyers of ordinary skill and capacity possess in exercising and performing the tasks which
they undertake; (3) a breach of that duty; (4) the breach being the proximate cause of the
client's damages; and (5) actual loss or damage resulting from the negligence. Sorenson v.
Pavlikowski, 94 Nev. 440, 443, 581 P.2d 851, 853 (1978). Therefore, to maintain his claim of
legal malpractice against Zubel, Day had the burden of showing that he and Zubel had
established an attorney-client relationship, that Zubel had a duty to file his claim, that Zubel
breached this duty, and that the failure to file his claim was the proximate and actual cause of
damages to Day. Zubel's defense against the legal malpractice claim, and the basis of his
motion for summary judgment, was that he owed no duty to Day because the statute of
limitations on Day's claim expired before Zubel established an attorney-client relationship
with Day and further that even if he negligently failed to file Day's claim before the
statute of limitations expired, his negligence caused Day no actual loss because Day had
no viable claims that could have been pursued.
__________
district judge, qualified as actions under color of state law. However, whether there was a viable claim against
the police was not addressed in district court, and Day did not raise the issue on appeal. Therefore, the issue will
not be addressed in this opinion.
112 Nev. 972, 977 (1996) Day v. Zubel
relationship with Day and further that even if he negligently failed to file Day's claim before
the statute of limitations expired, his negligence caused Day no actual loss because Day had
no viable claims that could have been pursued.
[Headnotes 2, 3]
most favorable to the nonmoving party, there remain no issues of material fact. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
P.2d 432, 433 (1989).
[Headnote 4]
P.2d 17, 18 (1981).
Statute of limitations issue
[Headnote 5]
Day contends that genuine issues of material fact remain regarding the accrual date of the
statute of limitations. The appropriate accrual date for the statute of limitations is a question
of law only if the facts are uncontroverted. Nevada Power Co. v. Monsanto Co., 955 F.2d
1304, 1307 (9th Cir. 1992). Here, both parties acknowledge the pertinent dates as true, and
there is no conflicting evidence as to when a fact was known or reasonably should have been
known, which is usually a question of fact. Kawai Farms, Inc. v. Longstreet, 826 P.2d 1322,
1326 (Idaho 1992). Therefore, we conclude that the issue of when the statute of limitations
commenced in Day's action is a matter of law to be determined by this court.
The United States Supreme Court has held that statutes of limitations apply to causes of
action brought pursuant to 42 U.S.C. 1983. Wilson v. Garcia, 471 U.S. 261 (1985). Wilson
was interpreted by the Ninth Circuit to mandate a two year statute of limitations for such
actions in Nevada. Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.), cert. denied, 493 U.S. 860
(1989).
[Headnote 6]
While courts have not directly addressed the issue of whether a cause of action for a civil
rights violation pursuant to 42 U.S.C. 19S3 accrues when the aggrieved is released from
prison pending a new trial or when the charges against the aggrieved are formally
dismissed, the courts have addressed this issue in regard to an aggrieved's cause of
action for malicious prosecution.
112 Nev. 972, 978 (1996) Day v. Zubel
1983 accrues when the aggrieved is released from prison pending a new trial or when the
charges against the aggrieved are formally dismissed, the courts have addressed this issue in
regard to an aggrieved's cause of action for malicious prosecution. The United States
Supreme Court recently reiterated the well recognized rule that the statute of limitations
commences upon final termination of the original criminal proceeding in the claimant's favor.
Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994).
We conclude the aforementioned rule is applicable to the instant case even though the
instant case is not a malicious prosecution action. We further conclude the final termination
of the criminal proceedings occurred when criminal charges against Day were dismissed with
prejudice, which occurred on May 17, 1991, and that the district judge erred in concluding
that Day's proceeding terminated on March 15, 1991. The final termination of the proceedings
occurred on May 17 because prior to that date it was impossible for Day to file his claim for
wrongful arrest, conviction, and incarceration because he was still subject to retrial and could
have been re-convicted on the underlying sexual assault claim. Such a conviction would have
eviscerated his civil rights claims.
Viable underlying claim issue
Day also contends that genuine issues of material fact remain regarding the viability of his
underlying claims against the state and county public defenders' offices. Day conceded that no
viable claim existed against the police department for false arrest or against the prosecutor for
misconduct, but he maintained that he still had claims akin to malicious prosecution against
the state and county public defenders' offices pursuant to 42 U.S.C. 1983.
[Headnote 7]
To recover damages under 42 U.S.C. 1983 in a case like this, Day must satisfy two
elements. First, Day must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court's issuance of a writ of habeas
corpus. Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372. This element was satisfied when the
district judge dismissed with prejudice all criminal charges pending against Day.
[Headnote 8]
Second, Day must prove that the defendants' representation of him during his unlawful
imprisonment violated Day's constitutional rights and that defendants were acting under color
of state law. The determination of whether a public defender acts under color of state law
depends on the nature and context of the function he is performing.
112 Nev. 972, 979 (1996) Day v. Zubel
color of state law depends on the nature and context of the function he is performing. Georgia
v. McCollum, 505 U.S. 42, 54 (1992). [A] public defender does not act under color of state
law when performing a lawyer's traditional functions as counsel to a defendant in a criminal
proceeding. Polk County v. Dodson, 454 U.S. 312, 325 (1981). However, a public defender
may act under color of state law while performing certain administrative, and possibly
investigative, functions. McCollum, 505 U.S. at 54 (citing Polk, 454 U.S. at 325); see also
Imbler v. Pachtman, 424 U.S. 409, 430-31 & n.33 (1975) (discussing line that separates
administrative and investigative functions from those of an advocate); see, e.g., Branti v.
Finkel, 445 U.S. 507 (1980) (public defender acted under color of state law when making
hiring and firing decision on behalf of the state).
[Headnote 9]
Zubel does not dispute that the state and county public defenders' offices violated Day's
constitutional rights; however, he argues that the state and county public defenders' offices
were not acting under color of state law when the violations occurred and therefore no viable
cause of action under 1983 existed. Our analysis is therefore restricted to determining
whether a genuine issue of material fact exists regarding whether the state and county public
defenders' offices acted under color of state law when the alleged violations occurred.
In support of his contention that the state and county public defenders' actions were
traditional lawyer functions and therefore not conducted under color of state law, Zubel cites
Franklin v. Oregon, State Welfare Division, 662 F.2d 1337, 1345 (9th Cir. 1981), a Ninth
Circuit Court of Appeals' decision that concluded that a delay in filing an appeal was not an
action under color of state law. In further support, Zubel states that a public defender's
decision not to file a frivolous suit is within the scope of traditional lawyer functions. See
Polk, 454 U.S. at 312. Zubel argued that Polk is directly on point because the allegation
raised in that casethat the public defender injured the appellant while acting pursuant to
administrative rules and procedures for handling criminal appealsis identical to the
allegation raised in Day's underlying claim. We conclude that these cases cited by Zubel are
not dispositive because in both cases the individual attorney made a unilateral decision either
to delay or to not file an appeal on behalf of his/her client after the case had been assigned to
the attorney, whereas in the instant case, no attorney was apparently even assigned to the
habeas corpus proceedings.
The district judge said that there was no question in his mind that the actions of the
public defender, and any actions of a prosecutor, were traditional lawyer functions. We
disagree. We conclude that a genuine issue of material fact exists regarding whether the
state and county public defenders' actions of {1) failing to assign personnel to handle
Day's writ petition and {2) losing the writ petition were administrative functions or
traditional lawyer functions.
112 Nev. 972, 980 (1996) Day v. Zubel
conclude that a genuine issue of material fact exists regarding whether the state and county
public defenders' actions of (1) failing to assign personnel to handle Day's writ petition and
(2) losing the writ petition were administrative functions or traditional lawyer functions.
Therefore, summary judgment was improperly granted on this issue, and we remand this case
to the district court for further proceedings.
CONCLUSION
We conclude, as a matter of law, that the statute of limitations commenced on May 17,
1991, the date the district judge dismissed all criminal charges against Day. We further
conclude that genuine issues of material fact remain regarding whether Day had a viable
underlying claim against the state and county public defenders' offices. Therefore, the grant of
summary judgment is reversed, and this case is remanded to the district court for further
proceedings consistent with this opinion.
The majority notes the trial judge's comment that there was no question in his mind that
the actions of the public defender and the prosecutor were traditional lawyer functions. With
reference to the trial judge's opinion, the majority opinion merely states, We disagree,
without stating any reasons for the disagreement. In my opinion the trial judge was right. The
attorney was engaging in traditional lawyer functions and should not be held liable; therefore,
I dissent.
____________
112 Nev. 980, 980 (1996) Kirksey v. State
JIMMY TODD KIRKSEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25540
August 16, 1996 923 P.2d 1102
Appeal from order denying petition for post-conviction relief in capital case. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Defendant, whose conviction upon guilty plea to first-degree murder and sentence of death
were affirmed on direct appeal, filed petition for post-conviction relief. Kirksey v. State, 107
Nev. 499, 814 P.2d 1008 (1991). The district court denied petition. Defendant appealed. The
supreme court held that: (1) trial counsel was not ineffective for failure to file pretrial
motion challenging grand jury indictment; {2) defendant's incriminating statements were
made voluntarily; {3) trial counsel's pretrial investigation was reasonable; {4) trial
counsel's acquiescence in defendant's waiver of right to present mitigating evidence did
not constitute ineffective assistance;
trial counsel was not ineffective for failure to file pretrial motion challenging grand jury
indictment; (2) defendant's incriminating statements were made voluntarily; (3) trial counsel's
pretrial investigation was reasonable; (4) trial counsel's acquiescence in defendant's waiver of
right to present mitigating evidence did not constitute ineffective assistance; (5) defendant's
guilty plea resulted in waiver of alleged errors which occurred prior to plea; (6) three-judge
panel convened to sentence defendant was constitutional; (7) district court did not abuse its
discretion in denying request for excess funds for post-conviction investigation; (8) time
limitation placed on post-conviction evidentiary hearing did not deny due process right to full
and fair hearing; and (9) trial judge did not abuse his discretion in refusing to recuse himself.
Affirmed.
[Rehearing denied January 4, 1997]
Patricia Erickson, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Steven Hill, Deputy District Attorney,
1. Criminal Law.
Claim of ineffective assistance of counsel presents mixed question of law and fact and is therefore subject to independent review.
2. Criminal Law.
Defendant claiming ineffective assistance of counsel must establish that counsel's performance was deficient and that deficient
performance prejudiced defense. U.S. Const. amend. 6.
3. Criminal Law.
Deficient assistance of counsel is representation that falls below objective standard of reasonableness, and fair assessment of
attorney performance requires that every effort be made to evaluate conduct from counsel's perspective at that time. U.S. Const. amend.
6.
4. Criminal Law.
In meeting prejudice requirement of ineffective assistance of counsel claim, defendant must show reasonable probability that,
but for counsel's errors, result of trial would have been different. Reasonable probability is probability sufficient to undermine
confidence in outcome. U.S. Const. amend. 6.
5. Criminal Law.
When conviction is result of guilty plea, defendant claiming ineffective assistance of counsel must show that there is reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. U.S. Const.
amend. 6.
6. Homicide.
In proving corpus delicti of murder, fact of death and criminal agency of another responsible for that death must be established.
State need not eliminate all noncriminal inferences, but there must be inference of criminal agency even if there are also
equally plausible noncriminal explanations.
ence of criminal agency even if there are also equally plausible noncriminal explanations.
7. Criminal Law; Indictment and Information.
Sufficient evidence was presented to grand jury to establish that victim's death was caused by beating administered by defendant,
and thus trial counsel made objectively reasonable decision not to challenge indictment where medical examiner testified that victim
died from ruptured aneurysm that was directly related to or was caused by beating administered by defendant. U.S. Const. amend. 6.
8. Grand Jury.
Grand jury must be drawn from cross section of community, and there must be no systematic and purposeful exclusion of
identifiable class of persons. NRS 6.110.
9. Criminal Law.
Trial counsel's assistance was not ineffective based upon failure to file petition challenging underrepresentation of
African-Americans on grand jury where there was no evidence to demonstrate that there was purposeful discrimination or that random
process for choosing grand jury was either not used or somehow resulted in purposeful discrimination, and there was no evidence
regarding composition of 50 person venire. U.S. Const. amend. 6; NRS 6.110.
10. Criminal Law.
When ineffective assistance claim is based upon counsel's failure to file motion to suppress confession, prejudice prong must be
established by showing that claim was meritorious and that there was reasonable likelihood that exclusion of suppression would have
changed result of trial. U.S. Const. amend. 6.
11. Criminal Law.
To be admissible, confession must be made freely and voluntarily, without compulsion or inducement.
12. Criminal Law.
Confession must be product of free will and rational intellect, and physical intimidation or psychological pressure constitutes
coercion, making confession involuntary.
13. Criminal Law.
In determining voluntariness of defendant's confession from effect of totality of circumstances on defendant's will, court considers
following factors: youth of accused, his lack of education or his low intelligence, lack of any advice of constitutional rights, length of
detention, repeated and prolonged nature of questioning, and use of physical punishment such as deprivation of food or sleep.
14. Criminal Law.
Defendant's intoxication alone does not automatically make confession inadmissible. Confession is inadmissible only if it is shown
that accused was intoxicated to such extent that he was unable to understand meaning of his comments.
15. Criminal Law.
Confession by defendant suffering from drug withdrawal may be involuntary when withdrawal results in confession which is not
product of rational intellect and free will.
16. Criminal Law.
Defendant's incriminating statements were made voluntarily since defendant was not so intoxicated that he was unable to
understand meaning of statements he made. There was no indication that defendant was uncomfortable or incoherent,
defendant was responsive to questions posed by officers in each interview, defendant recounted incident in
essentially same words in each of statements, and defendant was advised of his Miranda rights and agreed
to waive them before each statement.
was uncomfortable or incoherent, defendant was responsive to questions posed by officers in each interview, defendant recounted
incident in essentially same words in each of statements, and defendant was advised of his Miranda rights and agreed to waive them
before each statement.
17. Criminal Law.
Attorney must make reasonable investigation in preparation for trial, or reasonable decision not to investigate. U.S. Const. amend.
6.
18. Criminal Law.
Trial counsel's decision to rely on prosecution's files, autopsy reports, grand jury testimony, and prison records in preparation for
trial, without consulting independent investigator or conducting other independent investigation of facts underlying murder charge was
objectively reasonable under circumstances where defendant never denied his involvement in murder and never suggested to attorney
that incriminating statements were made involuntarily, everything defendant told attorney appeared to be consistent with prosecution's
file, defendant wrote letter to judge admitting to three murders, and defendant wrote letter to judge indicating that attorney had
presented him with possibility of lesser charge, but that defendant was determined to plead guilty and ask for death sentence. U.S.
Const. amend. 6.
19. Criminal Law.
Defendant was not prejudiced by counsel's alleged failure to conduct adequate pretrial investigation. Defendant pleaded guilty to
murder without benefit of any plea negotiations or promises from prosecution, he was informed that state would seek death penalty,
and there was no evidence that defendant's decision to plead guilty was result of any urging by counsel or that any of allegedly
uninvestigated information would have induced defendant to change his mind. U.S. Const. amend. 6.
20. Criminal Law.
Defense counsel's acquiescence in defendant's waiver of right to present mitigating evidence at sentencing hearing on first-degree
murder conviction did not constitute ineffective assistance of counsel. U.S. Const. amend. 6.
21. Criminal Law.
Constitutional right to effective assistance of counsel extends to direct appeal. U.S. Const. amend. 6.
22. Criminal Law.
Effective assistance of appellate counsel does not mean that appellate counsel must raise every nonfrivolous issue. U.S. Const.
amend. 6.
23. Criminal law.
Attorney's decision not to raise meritless issues on appeal is not ineffective assistance of counsel. U.S. Const. amend. 6.
24. Criminal Law.
To establish prejudice based on deficient assistance of appellate counsel, defendant must show that omitted issue would have
reasonable probability of success on appeal. U.S. Const. amend. 6.
25. Criminal Law.
Where defendant has pleaded guilty, only claims that may be raised thereafter are those involving voluntariness of plea itself and
effectiveness of counsel. U.S. Const. amend. 6; NRS 34.810(1).
26. Criminal Law.
Appellate counsel's failure to appeal denial of motion for appointment of co-counsel and judge's ex parte communication with
expert witness did not constitute ineffective assistance where those alleged errors arose prior to defendant's
entry of guilty plea.
witness did not constitute ineffective assistance where those alleged errors arose prior to defendant's entry of guilty plea. U.S. Const.
amend. 6.
27. Criminal Law.
Trial court did not abuse its discretion in denying defendant's motion for appointment of co-counsel in capitol case since motion
was filed approximately five months prior to scheduled trial and there was sufficient time for his attorney to investigate and prepare for
trial. NRS 260.060.
28. Criminal Law.
Defendant was not prejudiced by trial court's improper ex parte communication with psychiatrist who submitted written findings
on issue of whether defendant was competent to stand trial where judge informed parties that he would contact psychiatrist and request
supplemental report addressing relevant legal issues, and there was no evidence that psychiatrist was somehow coerced to change his
opinion.
Constitutional right of defendant to be present at critical stages of trial is rooted in Confrontation Clause and Due Process Clause.
Confrontation aspect arises when proceeding involves presentation of evidence, and due process aspect is recognized only to extent
that fair and just hearing would be thwarted by defendant's absence. U.S. Const. amends. 6, 14.
30. Criminal Law.
Defendant's constitutional right to be present at critical stages of trial is subject to harmless error analysis, and defendant must
show that he was prejudiced by absence. U.S. Const. amends. 6, 14.
31. Criminal Law.
Defendant's constitutional right to be present at critical stages of trial was not violated and his defense was not prejudiced by his
absence at reconvenement of three-judge panel that sentenced defendant where panel reconvened to discuss impact of new opinion and
confirmed that any one of aggravating circumstances was sufficient to support death sentence. U.S. Const. amends. 6, 14.
32. Homicide.
Three-judge panel system for sentencing defendant convicted of murder upon plea of guilty was not unconstitutionally arbitrary
and capricious. Defendant presented no evidence that supreme court selected judges who were partial to death sentence, or that
three-judge panels returned death sentences more often than juries. U.S. Const. amend. 14.
33. Criminal Law.
By pleading guilty, defendant waived all claims of error that occurred prior to plea unless related to voluntariness of plea.
34. Grand Jury.
Prosecutor did not violate statute requiring district attorney to submit to grand jury any evidence which will explain away charge
since none of evidence highlighted by defendant would tend to explain away first-degree murder charge. NRS 172.145(2).
35. Costs.
It is within district court's discretion to provide investigatory aid to defendant.
36. Costs.
Trial court did not abuse its discretion in denying defendant's request for excess funds to conduct post-conviction
investigation where district court appointed investigator and stated that he would reconsider investigation
concerning California murder if post-conviction counsel could show that defendant was provided ineffective
trial assistance and district court approved payment of $5,000 in investigative fees.
request for excess funds to conduct post-conviction investigation where district court appointed investigator and stated that he would
reconsider investigation concerning California murder if post-conviction counsel could show that defendant was provided ineffective
trial assistance and district court approved payment of $5,000 in investigative fees.
37. Criminal Law.
Any error by trial court in setting time limitation on post-conviction evidentiary hearing and by directing defendant's counsel to
make offer of proof as to testimony of witnesses who did not have time to testify was harmless error since there was no indication that
any witness who did not testify would have made any difference in outcome of hearing.
38. Criminal Law.
Defendant was not denied full and fair post-conviction hearing by district court's alleged failure to consider exhibits which it
refused to admit into evidence. District court concluded that exhibits were irrelevant to issues before court, and thus court must have at
least considered exhibits.
39. Judges.
Judge has obligation not to recuse himself where there is no occasion to do so. NRS 1.230.
40. Criminal Law.
Judge's decision not to recuse himself voluntarily is given substantial weight and will be affirmed absent abuse of discretion. NRS
1.230.
41. Judges.
Burden is on party asserting challenge to judge's refusal to recuse himself to establish sufficient facts warranting judge's
disqualification. NRS 1.230.
42. Judges.
Judge did not abuse his discretion by refusing to voluntarily recuse himself based upon his improper ex parte communication with
psychiatrist who submitted written findings as to defendant's competence to stand trial where judge contacted psychiatrist in order to
clarify doctor's findings as to competence, and there was nothing to indicate that judge was prejudiced by communication or that he
improperly influenced psychiatrist's evaluation. NRS 1.230.
43. Judges.
Trial Judge's sua sponte calling to stand of his law clerk and secretary, to testify during post-conviction hearing as to whether
defense counsel had requested more than one day for evidentiary hearing did not exhibit bias so as to provide basis for requiring
judge's recusal. NRS 1.230.
44. Judges.
General rule is that what judge learns in his official capacity does not result in his disqualification; however, opinion formed by
judge on basis of facts introduced or events occurring in course of current proceedings, or of prior proceedings, constitutes basis for
bias or partiality motion where opinion displays deep seated favoritism or antagonism that would make fair judgment impossible.
45. Judges.
Trial judge did not abuse his discretion in denying motion to disqualify himself based on fact that judge learned that defendant had
asked his counsel about fastest way to get death sentence where judge's awareness of information was acquired in course of judicial
proceedings and defendant's statement merely reflected same information that judge learned at penalty hearing, namely that defendant
wanted death penalty.
OPINION
Per Curiam:
After instructing his attorney not to prepare or assert a defense, appellant Jimmy Todd
Kirksey appeared in court on the day scheduled for trial and pleaded guilty to first-degree
murder for the beating death of Michael A. Foxx. Prior to the penalty hearing before a
three-judge panel, Kirksey instructed his attorney not to present mitigating evidence,
challenge the aggravating factors, or make any statements to the panel on his behalf. The
three-judge panel found three aggravating circumstances and sentenced Kirksey to death.
Although we concluded that two of the aggravating circumstances should not have been
considered, we affirmed Kirksey's conviction and sentence on direct appeal. Kirksey
thereafter petitioned the district court for post-conviction relief. The district court held an
evidentiary hearing and denied the petition. For reasons discussed below, we conclude that
Kirksey received effective assistance of both trial and appellate counsel, and that Kirksey
received a full and fair hearing on his post-conviction petition. Accordingly, we affirm.
Background
The facts surrounding the murder to which Kirksey pleaded guilty and for which he was
sentenced to death are contained in our opinion resulting from Kirksey's direct appeal. See
Kirksey v. State, 107 Nev. 499, 814 P.2d 1008, cert. denied, 502 U.S. 989 (1991).
On February 28, 1992, Kirksey, through counsel,
1
filed a petition for habeas corpus relief,
alleging numerous separate issues of cumulative, prejudicial error and ineffective assistance
of counsel.
2
Kirksey alleged that his trial counsel, George Kelesis (Kelesis), failed to file
appropriate pretrial motions and failed to conduct a proper investigation into either the
underlying crime or mitigating circumstances. Kirksey also alleged that appellate counsel
failed to raise several meritorious issues.
__________

1
On February 19, 1992, the district court filed a nunc pro tunc order appointing Patricia M. Erickson as
post-conviction counsel for Kirksey effective January 24, 1992.

2
The petition raised the following claims: (1) ineffective assistance of trial and appellate counsel; (2)
procedural and substantive errors by the trial court; (3) procedural and substantive errors by the three-judge
panel; (4) Kirksey's incompetence to stand trial; (5) guilty plea was involuntarily and unknowingly entered; (6)
selection process for three-judge panel was arbitrary and capricious, violating Kirksey's due process rights; (7)
Nevada Supreme Court's review of death penalty cases is constitutionally inadequate; (8) death penalty violates
Nevada Constitution; and (9) cumulative error.
The district court conducted an evidentiary hearing on February 1, 1993. Kirksey had
subpoenaed ten witnesses: his trial counsel, his appellate counsel, his girlfriend, the attorneys
who had represented two other individuals previously charged in connection with the crime,
one of the individuals previously charged, two psychiatrists, a criminal defense attorney, and
an attorney who had sought to become co-counsel in Kirksey's case. The district court heard
testimony from six of the witnesses, including Kelesis, and accepted an offer of proof as to
the testimony of the other witnesses. The State presented no evidence at the hearing. After
additional briefing by the parties, the district court denied Kirksey's petition.
DISCUSSION
I. Effective assistance of counsel
A. Trial Counsel
[Headnote 1]
A claim of ineffective assistance of counsel presents a mixed question of law and fact and
is therefore subject to independent review. State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322,
323 (1993). This court evaluates a claim of ineffective assistance of trial counsel under the
reasonably effective assistance test articulated in Strickland v. Washington, 466 U.S. 668
(1984), and followed in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied,
471 U.S. 1004 (1985). The Strickland analysis applies to both the guilt and penalty phases of
a trial. Strickland, 466 U.S. at 686-87; see also Paine v. State, 110 Nev. 609, 877 P.2d 1025,
1031 (1994), cert. denied,
------
U.S.
------
, 115 S. Ct. 1405 (1995).
[Headnote 2]
Under the Strickland test, two elements must be established by a defendant claiming
ineffective assistance of counsel: (1) that counsel's performance was deficient, and (2) that the
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; see also Dawson
v. State, 108 Nev. 112, 115, 825 P.2d 593, 595 (1992), cert. denied, 507 U.S. 921 (1993). A
court may consider the two test elements in any order and need not consider both prongs if
the defendant makes an insufficient showing on either one. Strickland, 466 U.S. at 697.
[Headnote 3]
Deficient assistance of counsel is representation that falls below an objective standard of
reasonableness. Dawson, 108 Nev. at 115, 825 P.2d at 595. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time."
distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, 466
U.S. at 689; accord Dawson, 108 Nev. at 115, 825 P.2d at 595.
[Headnotes 4, 5]
In meeting the prejudice requirement, the defendant must show a reasonable probability
that, but for counsel's errors, the result of the trial would have been different. Strickland, 466
U.S. at 694. When a conviction is the result of a guilty plea,
[t]he second, or prejudice, requirement . . . focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the prejudice requirement, the defendant must show
that there is a reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985) (emphasis added); see also State v. Langarica, 107
Nev. 932, 933, 822 P.2d 1110, 1111 (1991), cert. denied, 506 U.S. 924 (1992). A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694.
With these principles in mind, we address Kirksey's contentions.
1. Pretrial motion challenging the indictment
Kirksey first contends that he was denied effective assistance of counsel because counsel
failed to file a pretrial petition for habeas corpus challenging the sufficiency of the evidence
presented to the grand jury to establish that Foxx's death was caused by a criminal agency.
3
Kirksey argues that Kelesis' decision not to file the motion was shown to be unreasonable by
the testimony of criminal defense attorney Cal Potter, who testified that he would have filed
such a motion. Kirksey further contends that such a motion would have been effective
because the medical examiner did not categorically state that Foxx's death could only have
been caused by the trauma. We disagree with both contentions.
[Headnote 6]
In order to hold a person for trial, a grand jury must find probable cause to believe (1) an
offense has been committed (the corpus delicti); and (2) the defendant has committed the
offense. NRS 172.155. Two elements are necessary to establish the corpus delicti: "{1) the
fact of death; and {2) the criminal agency of another responsible for that death."
__________

3
Under NRS 172.155, [t]he defendant may object to the sufficiency of the evidence to sustain the indictment
only by application for a writ of habeas corpus.
pus delicti: (1) the fact of death; and (2) the criminal agency of another responsible for that
death. Azbill v. State, 84 Nev. 345, 350-51, 440 P.2d 1014, 1017 (1968). The state need not
eliminate all non-criminal inferences, but there must be an inference of a criminal agency
even if there are also the equally plausible non-criminal explanations. Id. at 352, 440 P.2d at
1019.
[Headnote 7]
In the case at bar, Dr. Green, the chief medical examiner for Clark County, testified before
the grand jury that an aneurysm may burst spontaneously, as a result of an increase in blood
pressure, or as a result of traumasuch as a beating about the head with fists or feet. When
asked to identify the cause of Foxx's death, Dr. Green stated:
This is a result of this ruptured aneurysm or weak spot in one of the arteries of the
brain.
The rupture of that weak spot is in my opinion directly related to or is caused by the
blunt trauma injury to the head.
Finally, Dr. Green testified that in his opinion Foxx's death was caused by a criminal agency.
Kelesis testified at the post-conviction evidentiary hearing that after reviewing the autopsy
report and grand jury testimony he did not have any question as to the sufficiency of the
evidence [f]or purposes of an indictment. Consequently, he decided not to challenge the
indictment; however, he further testified that he believed there were some issues and
questions that he would have been able to argue before a jury.
Although the evidence did not rule out all possible non-criminal explanations, there was
sufficient evidence for the grand jury to conclude that there was probable cause to believe
Foxx's death was caused by the beating administered by Kirksey. We therefore conclude that
Kelesis made an objectively reasonable decision not to challenge the indictment. Any
challenge would have been unsuccessful because there was sufficient evidence indicating that
the victim's death was caused by a criminal agency.
2. Pretrial petition challenging composition of grand jury
Kirksey next contends that he was denied effective assistance of counsel when counsel
failed to file a pretrial petition for habeas corpus challenging the indictment based upon the
under-representation of African-Americans on the grand jury. We disagree.
[Headnote 8]
[I]t is settled that a grand jury must be drawn from a cross-section of the community, and
there must be no systematic and purposeful exclusion of an identifiable class of persons."
purposeful exclusion of an identifiable class of persons. Adler v. State, 95 Nev. 339, 347,
594 P.2d 725, 731 (1979) (holding that exclusion of persons unwilling to serve operates
without regard to race, sex, status or ethnic background). The procedure for impaneling grand
juries is set forth in NRS 6.110. In a county with a population of 100,000 or more, the clerk
of the court randomly selects and sends a questionnaire to 500 qualified persons until a panel
of 100 persons who are willing to serve is established. NRS 6.110(1). The district judges then
meet and each selects a name from the list of 100 until 50 persons have been selected. NRS
6.110(2). These 50 persons make up the venire, from which the presiding district judge
randomly selects 17 persons as the grand jury, plus 12 alternates. NRS 6.110(3).
[Headnote 9]
Kirksey's post-conviction counsel indicated that the Clark County grand jury which
indicted Kirksey (a black male) was composed of one Latino female, four white females,
eight white males, and two males and one female of undetermined race. Kirksey, however,
has presented no evidence regarding the composition of the 50-person venire. Additionally,
Kirksey has done nothing to demonstrate that there was purposeful discrimination or that the
random process explained above was either not used or somehow resulted in purposeful
discrimination. We therefore conclude that Kirksey's claim of underrepresentation fails the
Strickland test.
3. Motion to suppress incriminating statements
[Headnote 10]
When an ineffective assistance claim is based upon counsel's failure to file a motion to
suppress evidence allegedly obtained in violation of the Fourth Amendment, the prejudice
prong must be established by a showing that the claim was meritorious and that there was a
reasonable likelihood that the exclusion of the evidence would have changed the result of a
trial. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
4
We conclude that the same
analysis applies when the ineffective assistance claim is based upon counsel's failure to file a
motion to suppress a confession.
[Headnotes 11-13]
To be admissible, a confession must be made freely and voluntarily, without compulsion
or inducement. Passama v. State, 103 Nev. 212, 213, 735 P.2d 321, 322 (1987). A confession
must be the product of a free will and rational intellect. Id. at 213-14, 735 P.2d at 322.
Physical intimidation or psychological pressure constitute coercion, making a confession
involuntary. Id. at 214, 735 P.2d at 322-23.
__________

4
See also State v. Berryman, 875 P.2d 850, 855 & n.3 (Ariz. Ct. App. 1994); People v. Wharton, 809 P.2d 290,
323 (Cal. 1991), cert. denied, 502 U.S. 1038 (1992).
constitute coercion, making a confession involuntary. Id. at 214, 735 P.2d at 322-23. The
voluntariness of a confession must be determined from the effect of the totality of the
circumstances on the defendant's will. Id., 735 P.2d at 323. This court has listed the following
factors to be considered:
the youth of the accused; his lack of education or his low intelligence; the lack of any
advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the deprivation of
food or sleep.
Id.
We now address, based on the above standards, the merits of Kirksey's claims that he was
prejudiced by trial counsel's failure to challenge the voluntariness of Kirksey's incriminating
statements.
Kirksey made two incriminating statements to detectives in Riverside, California, and one
incriminating statement to detectives in Las Vegas. The Riverside statements were made on
December 23 and 24, 1988. At this time, Kirksey was in custody on a warrant for the murder
of Gayette Davis. Before the Riverside detectives interviewed Kirksey on December 23,
Kirksey was advised of his Miranda rights. Kirksey stated that he understood and waived
those rights. Thereafter, Kirksey described his involvement in a Las Vegas murder. Riverside
Detective Frogue testified before the grand jury that he thought Kirksey might have been high
during the December 23 interview. After learning from the Las Vegas Metropolitan Police
Department (LVMPD) that Kirksey had been arrested and released on a murder charge, the
Riverside detectives reinterviewed Kirksey on December 24. At the beginning of the
interview, the detectives asked Kirksey if he remembered his rights and was still willing to
waive them. Kirksey responded in the affirmative. Kirksey then related substantially the same
information he had given on the previous day.
After Kirksey was returned to Nevada, LVMPD Detective Dibble interviewed him on
February 8, 1989. Dibble advised Kirksey of his Miranda rights prior to the interview.
Kirksey waived his rights. Kirksey then responded to questions and recounted the beating in
great detail.
Kirksey argues that his first statement to the Riverside detectives could have been
suppressed based upon Detective Frogue's grand jury testimony that Kirksey appeared to have
been under the influence of a drug when he made the statement. Kirksey also relies on his
medical records from September 7, 1987 through December 1988 to show that he may have
been suffering from symptoms of cocaine addiction and withdrawal during all of the
statements. Finally, Kirksey suggests, without any explanation or support in the record, that
all of the statements were the result of coercion.
support in the record, that all of the statements were the result of coercion.
[Headnotes 14, 15]
The defendant's intoxication alone does not automatically make a confession inadmissible.
See, e.g., United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) (methamphetamine use
for four days prior to arrest and confession), cert. denied, 499 U.S. 941 (1991); Graves v.
United States, 878 F. Supp. 409, 414 (N.D.N.Y.) (alcohol consumption), aff'd,
------
F.3d
------
(2d Cir. 1995); State v. Rivera, 733 P.2d 1090, 1096-97 (Ariz. 1987) (alcohol
consumption); Espinoza v. State, 899 S.W.2d 359, 362 (Tex. Ct. App. 1995) (alcohol
consumption). A confession is inadmissible only if it is shown that the accused was
intoxicated to such an extent that he was unable to understand the meaning of his comments.'
Rivera, 733 P.2d at 1097 (quoting State v. Hicks, 649 P.2d 267, 275 (Ariz. 1982)).
Similarly, a confession by a defendant suffering from drug withdrawal may be involuntary
when the withdrawal results in a confession which is not the product of a rational intellect
and a free will. Pickworth v. State, 95 Nev. 547, 549, 598 P.2d 626, 627 (1979). In
Pickworth, this court concluded that the defendant's confession was voluntarily made where
the withdrawal symptoms were minor, and the defendant was coherent, able to recall facts in
great detail, and showed no signs of discomfort. Id.
[Headnote 16]
We conclude that the evidence presented by Kirksey was not sufficient to successfully
challenge the voluntariness of any of his incriminating statements. There is no indication that
Kirksey was so intoxicated on December 23, 1988, that he was unable to understand the
meaning of the statement he made. Moreover, there is no indication that Kirksey was
uncomfortable or incoherent. In each of the statements, he recounted the incident in
essentially the same words. He was responsive to the questions posed by the officers in each
interview and there was little variation in his story. Before each statement, Kirksey was
advised of his Miranda rights and agreed to waive them. None of the interviews was of
inordinate duration. Finally, although Kirksey suggests that each statement was the product of
coercion, he presented no evidence to support this contention. Accordingly, we conclude that
this issue is without merit.
4. Pre-trial investigation
[Headnote 17]
An attorney must make a reasonable investigation in preparation for trial, or a reasonable
decision not to investigate. Strickland, 466 U.S. at 691.
Strickland, 466 U.S. at 691. Strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation. Id. at 690-91.
Kirksey argues that he has been denied effective assistance of counsel because counsel
failed to pursue any independent investigation of the facts underlying the murder charge.
Specifically, Kirksey contends that Kelesis' representation was deficient because he never
consulted with the independent investigator appointed for the defense, never talked to Jerry
Jordon
5
about testifying, never contacted LVMPD Detective Dibble to obtain the homicide
notebook, never tried to view the physical evidence, never sought an independent medical
examination as to the cause of death, never obtained medical records from Riverside General
Hospital establishing Kirksey's long history of cocaine use and psychotic behavior, never
conducted an independent investigation of the California murders, and never contacted family
members. Kirksey therefore concludes that Kelesis could not have made an informed and
rational decision to acquiesce in Kirksey's instructions not to prepare a defense.
Kelesis testified at the post-conviction hearing that he reviewed the prosecution's file,
autopsy reports on both the Nevada and California murders, grand jury testimony, and prison
records from California. He further testified that he had wanted to meet with Kirksey's
mother, but Kirksey instructed him not to do so. Kelesis also stated that he had discussed the
State's evidence with Kirksey on several occasions.
[Headnote 18]
First, we conclude that Kelesis' decision was objectively reasonable under the
circumstances. In Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984), the Eighth Circuit
concluded that an attorney's performance was deficient where he relied solely on the
prosecution's file, medical reports, and interviews with the defendant where the defendant
consistently maintained his innocence and denied statements made to the police. The Thomas
court specifically distinguished that case from one wherein the defendant has not provided the
attorney with any information that would cast doubt on the events as portrayed in the
prosecutor's files. Id.; see also Benson v. United States, 552 F.2d 223, 224-25 (8th Cir.), cert.
denied, 434 U.S. 851 (1977).
Here, Kirksey never denied his involvement and never suggested to Kelesis that his
statements were made involuntarily.
__________

5
Jordon was with Kirksey in Foxx's motel room and had made a statement to the police that Kirksey had beaten
Foxx. Jordon was acquitted on a charge of involuntary manslaughter.
Everything Kirksey told Kelesis appeared to be consistent with the prosecution's file.
Additionally, on July 13, 1989, Judge Lehman received a handwritten letter from Kirksey. In
that letter, Kirksey admitted to the two California murders and the Las Vegas murder.
6
It is
also clear that based upon his investigation, Kelesis believed there were issues regarding the
cause of death which he could have raised with the jury. Kirksey refused to give him that
opportunity. Additionally, in his July 1989 letter to Judge Lehman, Kirksey wrote: This
sorry ass old atterney [sic] you gave me. This fool thinks he is going to lower this down to
man slotter [sic]. But between me and you old man we know better than that.
Kirksey's letter indicates that Kelesis had presented him with the possibility of a lesser
charge, but that Kirksey was determined to plead guilty and ask for a death sentence. In
viewing the circumstances of this case from Kelesis' point of view at the time, we are unable
to conclude that Kelesis' performance fell below an objective standard of reasonableness.
[Headnote 19]
Further, we conclude that Kirksey has failed to show sufficient prejudice. As noted earlier,
when a guilty plea is challenged for ineffective assistance, the defendant must show a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial. Kirksey pleaded guilty without the benefit of any plea
negotiations or promises from the prosecution; indeed, Kirksey was informed on the record
that the State would seek the death penalty and that his guilty plea could result in a death
sentence. There is no indication that his decision was the result of any urging by Kelesis or
that any of the allegedly uninvestigated information would have induced Kirksey to change
his mind and invoke his right to a trial.
5. Investigation of mitigating evidence
On the first day of the sentencing hearing, Kelesis informed the three-judge panel that he
had visited with Kirksey a number of times in the days leading up to the penalty hearing
and that Kirksey had made it quite clear that he did not want Kelesis to challenge the
State's evidence, present mitigating evidence, or make an opening or closing statement
during the sentencing hearing.
__________

6
With respect to Foxx's death, Kirksey wrote:
The one up here they paid me to kill him. He also had a big mouth. So I beat his brains out. Matter of
facted [sic] it was kinda fun. But he was gonna die anyways [sic]. So let's just say I help [sic] him through
the door. But you know what the mistake I made is this. One body ther [sic] should have been three. That
way ther [sic] would have been no witnesses. I did wipe the finger prints off.
Although the State's handwriting expert was unable to identify the writing in the body of the letter as Kirksey's,
he did identify Kirksey's signature on the last page. Additionally, another State expert found two partial
fingerprints on the upper left portion of the signature page; these prints matched Kirksey's left index and left
middle finger. Finally, during the penalty hearing, Kirksey admitted that he wrote the letter to Judge Lehman.
three-judge panel that he had visited with Kirksey a number of times in the days leading up to
the penalty hearing and that Kirksey had made it quite clear that he did not want Kelesis to
challenge the State's evidence, present mitigating evidence, or make an opening or closing
statement during the sentencing hearing. The three-judge panel canvassed Kirksey on two
different occasions during the penalty hearing to ensure that Kirksey understood the
seriousness of his decision.
Kirksey said that he was satisfied with his attorney's performance, understood that he
could present mitigating evidence and that he did not want to do so. He also stated that he
was not aware of any witnesses who should have been interviewed, but were not. Finally,
Kirksey said that he felt he was competent to make this decision.
Kirksey argues that he has been denied effective assistance of counsel because counsel
failed to investigate or prepare for the penalty hearing. A post-conviction investigation
suggests that Kirksey had a history of psychotic and suicidal episodes, and of drug and
alcohol abuse. The investigation further indicates that Kirksey's father had committed suicide
when Kirksey was seventeen. Kirksey argues that this information should have been
presented to the three-judge panel as mitigating evidence. Kirksey further insists that had
counsel conducted an investigation into possible mitigating evidence, it is unlikely that
Kirksey would have prevented counsel from presenting the evidence to the three-judge panel
because Kirksey's instructions were based upon his view that he would get death or life
without in California anyway so why not do it now.
7
Finally, Kirksey contends that Kelesis'
ineffective assistance denied him of his right to an individualized sentence.
[Headnote 20]
Generally, when a defendant is charged with first-degree murder, defense counsel must
prepare for the eventuality that a guilty verdict may be returned. See Blake v. Kemp, 758 F.2d
523, 533 (11th Cir.), cert. denied, 474 U.S. 998 (1985). However, a defendant may waive the
right to present mitigating evidence and defense counsel's acquiescence to such a waiver does
not constitute ineffective assistance of counsel. See, e.g., People v. Lang, 782 P.2d 627,
652-54 (Cal. 1989), cert. denied, 498 U.S. 881 (1990).
8
As the California Supreme Court has
reasoned:
__________

7
At the post-conviction hearing, Kelesis testified that he told Kirksey that he would receive the death penalty in
California for the murder of Gayette Davis.

8
See also Snell v. Lockhart, 14 F.3d 1289, 1302-03 (8th Cir.), cert. denied, 513 U.S. 960, 115 S. Ct. 419
(1994); Davis v. Greer, 13 F.3d 1134, 1139-40 (7th Cir.), cert. denied, 513 U.S. 933, 115 S. Ct. 328 (1994);
To require defense counsel to present mitigating evidence over the defendant's
objection would be inconsistent with an attorney's paramount duty of loyalty to the
client and would undermine the trust, essential for effective representation, existing
between attorney and client. Moreover, imposing such a duty could cause some
defendants who otherwise would not have done so to exercise their Sixth Amendment
right of self-representation before commencement of the guilt phase in order to retain
control over the presentation of evidence at the penalty phase, resulting in a significant
loss of legal protection for these defendants during the guilt phase.
Lang, 782 P.2d at 653 (citations omitted). The Lang court also concluded that a defendant
who refuses to allow his attorney to present mitigating evidence at the penalty phase is
estopped from later claiming ineffective assistance based on counsel's acquiescence to his
wishes. Id. at 654. The California court recognized, however, that failure to adequately
investigate the availability of mitigating evidence or to advise the defendant regarding its
significance might undermine the defendant's decision not to present mitigating evidence and
thereby support a claim of ineffective assistance. See id. at 654.
We agree with the California court's reasoning. This approach is also consistent with prior
Nevada cases wherein this court has upheld the death sentence where the defendant,
appearing in propria persona, refused to present mitigating evidence or to allow standby
counsel to present mitigating evidence. See, e.g., Bishop v. State, 95 Nev. 511, 597 P.2d 273
(1979). We therefore conclude that Kirksey cannot predicate his claim of ineffective
assistance solely on Kelesis' acquiescence.
Moreover, the record of Kirksey's sentencing hearing belies his contention that he decided
not to present mitigating evidence based solely on Kelesis' uninvestigated representation that
Kirksey would receive the death penalty in California. During one of the instances when the
panel members canvassed Kirksey regarding his decision, the following exchange took place:
JUDGE ADAMS: . . . .
Why don't you [Kirksey] want to aggressively be represented here and defend
yourself at a hearing when the result of that hearing could be the difference between
whether you live or die?
__________
Jeffries v. Blodgett, 5 F.3d 1180, 1197-98 (9th Cir. 1993), cert. denied, 510 U.S. 1191, 114 S. Ct. 1294 (1994);
In re Jeffries, 752 P.2d 1338, 1340-43 (Wash.), cert. denied, 488 U.S. 948 (1988). See generally Linda E.
Carter, Maintaining Systemic Integrity in Capital Cases: The Use of Court-Appointed Counsel to Present
Mitigating Evidence When The Defendant Advocates Death, 55 Tenn. L. Rev. 95, 130-42 (1987).
of that hearing could be the difference between whether you live or die? Just tell me
why.
THE DEFENDANT: Either way, man, look, I'll be in the penitentiary the rest of my
life or I'm going to get the death penalty. You know what I'm saying? I might as well be
dead, anyway, if I'm going to set [sic] in the penitentiary, anyway, the rest of my life. I
can't win either way it goes, California or here.
I did them. You know what I'm saying? I don't feel no remorse about it, because I
don't care. Just let it happen.
JUDGE GAMBLE: Now, Mr. Kirksey, do you understand one of the findings we
might make is life with the possibility of parole?
THE DEFENDANT: Yeah. But, then, I got to go back to California. And then what? I
get it there or get another life or another life without.
JUDGE GAMBLE: I just don't want you to be thinking your only two choices are to be
in prison forever or die, because there is another choice if you aggressively defend this.
THE DEFENDANT: Man, with this, with the Las Vegas and California together, I ain't
never getting out of the penitentiary. Either way it go, I end up killing somebody else in
the penitentiary. Either go crazy in the penitentiary, setting in the penitentiary all my
life, end up taking somebody's life.
This dialogue demonstrates that Kirksey was aware of the lesser possible sentences if he were
returned to California for trial. It is equally clear that Kirksey did not want to live in jail.
After reviewing the record, we conclude that Kirksey was not misled by his counsel when
he decided that he did not want counsel to present mitigating evidence and that because
Kirksey instructed counsel not to present mitigating evidence, he cannot now claim
ineffective assistance based on counsel's acquiescence or failure to investigate.
B. Appellate counsel
Next, Kirksey argues that he has been denied effective assistance of appellate counsel
because his attorney failed to assert the following claims on appeal: (1) denial of due process
rights based upon district court's refusal to appoint co-counsel; (2) denial of due process
rights when district judge engaged in an ex parte communication with one of the psychiatrists
assigned to determine whether Kirksey was competent to stand trial; (3) denial of due process
and right to be present when three-judge panel reconvened to consider effect of federal
court decision regarding depravity of mind aggravating factor; and {4) denial of due
process rights because of arbitrary and capricious manner in which three-judge panel was
selected.
reconvened to consider effect of federal court decision regarding depravity of mind
aggravating factor; and (4) denial of due process rights because of arbitrary and capricious
manner in which three-judge panel was selected.
[Headnotes 21-24]
The constitutional right to effective assistance of counsel extends to a direct appeal. Burke
v. State, 110 Nev. 1366, 1368, 887 P.2d 267, 268 (1994). A claim of ineffective assistance of
appellate counsel is reviewed under the reasonably effective assistance test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
9
Effective assistance of appellate counsel
does not mean that appellate counsel must raise every non-frivolous issue. See Jones v.
Barnes, 463 U.S. 745, 751-54 (1983). An attorney's decision not to raise meritless issues on
appeal is not ineffective assistance of counsel. Daniel v. Overton, 845 F. Supp. 1170, 1176
(E.D. Mich. 1994); Leaks v. United States, 841 F. Supp. 536, 541 (S.D.N.Y. 1994), aff'd, 47
F.3d 1157 (2d Cir.), cert. denied,
------
U.S.
------
, 116 S. Ct. 327 (1995). To establish
prejudice based on the deficient assistance of appellate counsel, the defendant must show that
the omitted issue would have a reasonable probability of success on appeal. Duhamel v.
Collins, 955 F.2d 962, 967 (5th Cir. 1992); Heath, 941 F.2d at 1132. In making this
determination, a court must review the merits of the omitted claim. Heath, 941 F.2d at 1132.
With these principles in mind, we address Kirksey's contentions.
10

1. Errors arising prior to the plea: appointment of co-counsel and ex parte
communication
[Headnote 25]
The errors alleged by Kirksey regarding the motion for appointment of co-counsel and
Judge Lehman's ex parte communication with Dr. Masters occurred prior to the entry of his
guilty plea. The State contends that by pleading guilty, Kirksey waived all errors arising
prior to the plea.
__________

9
See, e.g., Williams v. Collins, 16 F.3d 626, 634-35 (5th Cir.), cert. denied, 512 U.S. 1289, 115 S. Ct. 42
(1994); Hollenback v. United States, 987 F.2d 1272, 1275 (7th Cir. 1993); Heath v. Jones, 941 F.2d 1126, 1130
(11th Cir. 1991), cert. denied, 502 U.S. 1077 (1992); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir.
1990).

10
Kirksey also raises each of these issues as constitutional violations independent of his ineffective assistance
claims. To the extent that these issues could have been raised on direct appeal, they are waived. Franklin v.
State, 110 Nev. 750, 877 P.2d 1058 (1994). We nevertheless address Kirksey's claims in connection with his
contention that appellate counsel should have raised them on direct appeal.
waived all errors arising prior to the plea. Warden v. Lyons, 100 Nev. 430, 432, 683 P.2d
504, 505 (1984), cert. denied, 471 U.S. 1004 (1985); Webb v. State, 91 Nev. 469, 470, 538
P.2d 164, 165 (1975).
As we have explained:
[A] guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.
Webb, 91 Nev. at 470, 538 P.2d at 165 (quoting Tollett v. Henderson, 411 U.S. 258, 267
(1973)). Where the defendant has pleaded guilty, the only claims that may be raised thereafter
are those involving the voluntariness of the plea itself and the effectiveness of counsel. NRS
34.810(1); Lyons, 100 Nev. at 432, 683 P.2d at 505.
[Headnote 26]
Because the denial of the motion for appointment of co-counsel and the ex parte
communication occurred prior to the entry of the guilty plea, appellate counsel could not have
raised these claims on direct appeal. Therefore, appellate counsel's failure to raise these issues
could not be considered ineffective assistance.
11

[Headnote 27]
Although the waiver of these issues is dispositive, we also note that a review of the merits
of these two contentions further demonstrates that even if appellate counsel could have
asserted these claims, there was no reasonable probability of success on appeal. Appointment
of co-counsel under NRS 260.060 is discretionary, even in a capital case, and the denial of
co-counsel is appropriate when the amount of preparation and investigation required is not
unduly burdensome. See, e.g., DePasquale v. State, 106 Nev. 843, 846, 803 P.2d 218, 220
(1990), cert. denied, 502 U.S. 829 (1991); Sechrest v. State, 101 Nev. 360, 367-68, 705 P.2d
626, 631-32 (1985). Since Kirksey's motion for co-counsel came approximately five months
prior to the scheduled trial, there was sufficient time for his attorney to investigate and
prepare for trial.
__________

11
Kirksey urges this court to disregard the waiver argument because the State failed to rely on this argument at
the district court level. We decline the invitation. The State's failure to make this argument to the district court
on this post-conviction petition does not change the fact that the issues could not have been raised on direct
appeal because they had been waived. The focus of our inquiry here is from the standpoint of appellate counsel
at the time of the direct appeal.
uled trial, there was sufficient time for his attorney to investigate and prepare for trial.
[Headnote 28]
Although Judge Lehman's ex parte communication with Dr. Masters
12
was inappropriate,
there is no evidence that the communication resulted in bias or prejudice on the part of the
judge.
13
Additionally, there is no evidence that Dr. Masters was somehow coerced to change
his opinion. We therefore conclude that this contention lacks merit and would have had no
reasonable probability of success on appeal.
2. Right to be present at all critical stages
Kirksey argues that his right to be present during all critical stages of the criminal
proceeding was violated when the three-judge panel reconvened for further deliberations.
Kirksey contends that he was denied effective assistance of counsel because appellate counsel
failed to raise this argument on appeal. We disagree.
[Headnotes 29, 30]
The right to be present is rooted in the Confrontation Clause and the Due Process Clause
of the Federal Constitution. The confrontation aspect arises when the proceeding involves the
presentation of evidence. United States v. Gagnon, 470 U.S. 522, 526-27 (1985). The due
process aspect has been recognized only to the extent that a fair and just hearing would be
thwarted by the defendant's absence. Id. The right to be present is subject to harmless error
analysis. Rushen v. Spain, 464 U.S. 114, 118 n.2 (1983). The defendant must show that he
was prejudiced by the absence. See People v. Wharton, 809 P.2d 290, 341 (Cal. 1991), cert.
denied, 502 U.S. 1038 (1992).
__________

12
Two psychiatrists, Doctors Jurasky and Masters, submitted written findings to the district court on the issue
of whether Kirksey was competent to stand trial. Although Dr. Jurasky concluded that Kirksey was competent,
Dr. Masters' report did not specifically address the relevant legal standard. Consequently, Judge Lehman
informed the parties that he would contact Dr. Masters and request that he file a supplemental report addressing
the following questions: (1) can Kirksey distinguish between right and wrong; (2) can Kirksey comprehend the
nature and quality of the act with which he's charged; (3) did Kirksey know what he was doing was wrong at the
time; (4) did Kirksey understand his Miranda rights and intelligently waive them; and (5) can Kirksey be
effective in his own defense. In his supplemental report, Dr. Masters answered each question in the affirmative.

13
The various authorities Kirksey cites are distinguishable. All of the cases cited involved ex parte
communications between the trial or sentencing judge and members of the victims' families. The prejudice
created by such improper ex parte communications is clear. However, no such prejudice existed in this case.
[Headnote 31]
The three-judge panel that sentenced Kirksey reconvened in order to discuss the impact of
a Ninth Circuit opinion declaring Nevada's depravity of mind aggravating factor
unconstitutionally vague.
14
The panel merely confirmed what it had already stated at the
conclusion of the penalty hearingthat any one of the aggravating circumstances was
sufficient to support the death sentence. The prosecutor was not present and the panel did not
consider any new evidence. Under the circumstances, Kirksey's right to be present was not
violated and his defense was not prejudiced by his absence. Accordingly, we concluded that
Kirksey has failed to demonstrate a reasonable probability that this contention would have
succeeded on appeal.
3. Constitutionality of three-judge panel system
Kirksey raises two challenges to the constitutionality of Nevada's three-judge panel system
which he claims appellate counsel should have raised on direct appeal. We conclude that both
contentions lacked a reasonable probability of success on appeal.
[Headnote 32]
First, Kirksey argues that the three-judge panel system is unconstitutional because the
procedure for the selection of the panel is arbitrary and capricious. Kirksey has presented no
evidence to suggest that this court selected judges who are partial to the death sentence to sit
on the three-judge panel which considered his sentence. Additionally, this same issue was
addressed and rejected in Paine v. State, 110 Nev. 609, 618, 877 P.2d 1025, 1030 (1994),
cert. denied,
------
U.S.
------
, 115 S. Ct. 1405 (1995), wherein this court stated: Paine's fear
that this court selects judges who are partial to sentences of death is not only unsupported, it
is unsupportable since it does not occur. Although Paine had not been decided at the time of
Kirksey's direct appeal, our ruling in Paine strongly underscores the lack of merit in Kirksey's
contention.
Second, Kirksey argues that the three-judge panel system is unconstitutionally arbitrary
and capricious because three-judge panels return death sentences more often than juries. This
court has rejected this argument. See, e.g., Paine, 110 Nev. at 617, 877 P.2d at 1030; Redmen
v. State, 108 Nev. 227, 235-36, 828 P.2d 395, 401, cert. denied, 506 U.S. 880 (1992),
overruled in part on other grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).
Again, although these cases were decided after Kirksey's direct appeal, they indicate that
this court would not have granted Kirksey a new sentencing hearing based on this
contention.
__________

14
Deutscher v. Whitley, 884 F.2d 1152, 1162-63 (9th Cir. 1989), vacated, 500 U.S. 901 (1991).
Kirksey's direct appeal, they indicate that this court would not have granted Kirksey a new
sentencing hearing based on this contention.
II. Failure to provide exculpatory evidence
Kirksey next argues that the prosecutor failed to present certain evidence to the grand jury
which could have explained away the murder charge by showing that Foxx had moved
around the room (i.e., he was alive when Kirksey left) and that Foxx had been taking cocaine
(i.e., the cocaine rather than the beating by Kirksey caused Foxx's death).
15
NRS 172.145(2)
requires that [i]f the district attorney is aware of any evidence which will explain away the
charge, he shall submit it to the grand jury. (emphasis added); see also Moran v. Schwarz,
108 Nev. 200, 202, 826 P.2d 952, 953 (1992).
[Headnote 33]
We first emphasize that this contention has been waived by Kirksey's guilty plea, and such
waiver is dispositive of this issue. By pleading guilty, Kirksey waived all claims of error that
occurred prior to the plea unless related to the voluntariness of the plea. Warden v. Lyons,
100 Nev. 430, 432, 683 P.2d 504, 505 (1984), cert. denied, 471 U.S. 1004 (1985); Webb v.
State, 91 Nev. 469, 470, 538 P.2d 164, 165 (1975).
[Headnote 34]
Nevertheless, we note that none of the evidence highlighted by Kirksey would tend to
explain away the charge. First, it is of no consequence whether Foxx was alive when Kirksey
left the hotel room, as long as the prosecution could establish that the beating by Kirksey
caused Foxx's death. Second, Dr. Green testified before the grand jury that there were
traces of cocaine in Foxx's blood consistent with recreational use of the drug, but that in
his opinion it was the trauma {i.e., beating) which caused the aneurysm to rupture.
__________

15
Specifically, Kirksey lists the following evidence:
(1) physical evidence observed by LVMPD Detective Karen Good:
clothing stacked on the north end of the bureau with red, blood-like spots present;
red, blood-like substance on the wall behind items listed above;
red, blood-like substance on the wall in two areas, one behind the first chair closest to the hallway
entering the bathroom; and the second to the east of the second chair which was located near the
northeast corner of the room;
a small brown vial with liquid and three small pellets located under the night stand on the north side of
the bed, on the carpet;
soiled, damp towels on the carpet in the closet had a diluted red, blood-like substance on them.
(2) the prosecutor permitted Kearns to lie about never using any kind of drugs, when brown vials at the
scene indicated otherwise;
(3) the prosecutor failed to question Kearns about the brown vials found in the room, which would have
brought forth evidence of drug use by Kearns and Foxx.
before the grand jury that there were traces of cocaine in Foxx's blood consistent with
recreational use of the drug, but that in his opinion it was the trauma (i.e., beating) which
caused the aneurysm to rupture. Therefore, the prosecutor did not violate NRS 172.145(2).
III. Denial of excess funds for post-conviction investigation
[Headnote 35]
Kirksey next argues that the district court should have granted his request for funds for an
investigator to travel to California. Kirksey contends that the funds were necessary because,
to be effective, his post-conviction counsel had to make a full investigation of possible
mitigating evidence. The State responds that there is no right to effective assistance of
post-conviction counsel and, thus, no requirement that the State provide an investigator. The
State also contends, correctly, that it was within the district court's discretion to provide
investigatory aid. State v. Apelt, 861 P.2d 654, 660 (Ariz. 1993), cert. denied, 513 U.S. 834,
115 S. Ct. 110 (1994).
[Headnote 36]
Moreover, although the district judge was unwilling to pre-approve funds for an
investigation in California, he did appoint an investigator and stated that he would reconsider
the California issue if post-conviction counsel could show that Kelesis had provided
ineffective assistance. However, Kirksey's post-conviction counsel never asked the district
court to reconsider the matter, and on June 22, 1993, the district court approved the payment
of $5,000 in investigative fees. We conclude that the district court did not abuse its discretion
and that post-conviction counsel was able to conduct an adequate investigation on Kirksey's
behalf.
IV. Full and fair post-conviction hearing
Finally, Kirksey contends that he was denied his due process right to a full and fair hearing
by the district court's (1) arbitrary time limitation on the post-conviction evidentiary
hearing; (2) failure to consider exhibits submitted in support of the habeas petition; and (3)
refusal to recuse itself. We disagree.
1. Time limitation
Kirksey had subpoenaed ten witnesses to testify at the hearing. The evidentiary hearing
began at 10:40 a.m. and concluded at 5:15 p.m., with a lunch break from 11:25 a.m. to 1:35
p.m. During the direct examination of Kirksey's second witness, the district court asked
Kirksey's post-conviction counsel to move along because "your time is rather limited."
along because your time is rather limited. Just before Erickson finished the direct
examination of her third witness, the district court made it clear that the hearing would
conclude at 5:00 p.m. When this witness finished testifying, the district court asked counsel to
make an offer of proof as to the testimony of the remaining witnesses. Thereafter, counsel had
one hour left and the district court allowed her to continue calling witnesses.
[Headnote 37]
Although it would have been preferable in this capital case for the district court to have
heard testimony from all of Kirksey's witnesses, we conclude that any error was harmless.
The district court allowed Kirksey's attorney to make an offer of proof regarding the proposed
testimony of each witness who did not testify, and there is no indication that any witness who
did not testify would have made any difference in the outcome of the hearing.
2. Consideration of exhibits
After the district court had denied the petition and Kirksey had filed a notice of appeal,
Kirksey filed a motion with this court to supplement the record on appeal to include Exhibits
2-25 and 31-34 that were presented at the evidentiary hearing.
16
This court referred the
matter to the district court in order to determine whether the district court had considered the
mentioned exhibits. The district court responded that the exhibits in question were irrelevant
to the issues before the district court. Subsequently, this court entered an order granting
Kirksey's motion and directing the district court clerk to transmit the exhibits.
17
Kirksey v.
State, Docket No. 25540, (Order, January 13, 1995).
[Headnote 38]
Kirksey does not contend that the district court abused its discretion in refusing to admit
the exhibits into evidence. Rather, Kirksey's argument is that he was denied a full and fair
hearing because the district court failed to consider the exhibits. Although it is arguable that
the district court abused its discretion in refusing to admit the exhibits,
18
it is clear that the
district court did not completely ignore the exhibits.
__________

16
These exhibits included Kirksey's opening brief on direct appeal, medical records, school records, pre-trial
psychiatric evaluations, records from the California Department of Youth Authority, prison education records,
affidavit from investigator, and transcripts of grand jury testimony from Dr. Green and Detective Frogue.

17
The order stated that [a]lthough the exhibits were not accepted into evidence, they should be included in the
record on appeal so that this court may determine whether the district court abused its discretion in refusing to
admit the exhibits into evidence.

18
The exhibits have been made a part of the record on appeal and this court did consider the exhibits in its
review.
did not completely ignore the exhibits. When the district court responded to this court's order,
it stated that it had only considered exhibits 12, 13, and 14 in reaching its decision. The
district court further stated that the other exhibits were irrelevant to the issues before the
court. Kirksey v. State, Docket No. 25540, (Order, January 15, 1995). The district court
must have at least considered the exhibits in order to determine that they were irrelevant to
the issues before it. In any event, our review of the exhibits prompts us to conclude that they
contain no basis for granting relief to Kirksey. The district court did not err in finding the
exhibits irrelevant.
3. Recusal
[Headnotes 39-41]
Kirksey's final substantive contention is that he was denied a fair hearing when the district
judge refused to recuse himself. Kirksey sets forth three events requiring the district court's
recusal: (1) the district court's ex parte communication with Dr. Masters; (2) the district
court's calling of witnesses during the evidentiary hearing; and (3) the district court's
knowledge of information about Kirksey which was not part of the record. Kirksey contends
that under these circumstances the district court's impartiality might reasonably be
questioned.
NRS 1.230 specifies grounds for the disqualification of judges other than supreme court
justices:
1. A judge shall not act as such in an action or proceeding when he entertains actual
bias or prejudice for or against one of the parties to the action.
2. A judge shall not act as such in an action or proceeding when implied bias exists
in any of the following respects:
(a) When he is a party to or interested in the action or proceeding.
(b) When he is related to either party by consanguinity or affinity within the third
degree.
(c) When he has been attorney or counsel for either of the parties in the particular
action or proceeding before the court.
(d) When he is related to an attorney or counselor for either of the parties by
consanguinity or affinity within the third degree. . . .
3. A judge, upon his own motion, may disqualify himself from acting in any matter
upon the ground of actual or implied bias.
A judge has an obligation not to recuse himself where there is no occasion to do so. See
Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 {19SS).
764 P.2d 1296, 1299 (1988). A judge's decision not to recuse himself voluntarily is given
substantial weight and will be affirmed absent an abuse of discretion. Id. The burden is on
the party asserting the challenge to establish sufficient facts warranting disqualification. Id.
4. Ex parte communication
[Headnote 42]
Although Judge Lehman's ex parte communication with Dr. Masters was inappropriate, it
is easily distinguishable from the cases cited by Kirksey. The cited cases each held that a
sentencing judge who has had ex parte communications with members of the victim's family
must recuse himself. The logic is obvious; during such communications the judge may
become aware of prejudicial and inadmissible information and may form a bias from being
unduly moved by the more intimate presence and statements of a victim's surviving family
members. Nothing of the sort happened in this case; rather, Judge Lehman contacted Dr.
Masters in order to clarify the doctor's findings as to Kirksey's competency. There is nothing
in the record that would indicate that Judge Lehman was prejudiced by the communication or
that he improperly influenced Dr. Masters' evaluation.
5. Calling witnesses
After Kirksey's fifth witness testified, the district court called a brief recess. Upon return,
the district court sua sponte called to the stand his law clerk and secretary to testify as to
whether defense counsel had requested more than one day for the evidentiary hearing. The
law clerk testified that he had told counsel that the court had planned a one-day hearing and
that counsel never requested more time. On cross-examination, the law clerk stated that he
told counsel that it was not unusual for Judge Lehman to go past regular court hours when
necessary. The secretary testified that it was her understanding, based on discussions with
defense counsel, that the hearing would only take one day. On cross-examination, the
secretary stated that she never informed counsel how long a day meant. At the conclusion of
this testimony, counsel motioned the judge to recuse himself. The recusal motion was denied.
[Headnote 43]
NRS 50.145 allows a trial judge to call witnesses on his own motion. Although we
disapprove of the procedure followed by the district court in this case, we do not perceive any
aspect of bias behind the district court's actions, nor do we see any basis for requiring the
recusal of the district court judge.
6. Judge Lehman's knowledge of certain facts
[Headnote 44]
The final instance of alleged bias involves Judge Lehman's knowledge that on the day set
for trial, Kirksey had asked Kelesis the fastest way to get a death sentenceby jury or
three-judge panel. The general rule of law is that what a judge learns in his official capacity
does not result in disqualification. Goldman, 104 Nev. at 653, 764 P.2d at 1301. In other
words, the party asserting the challenge must show that the judge learned prejudicial
information from an extrajudicial source. See id. However, an opinion formed by a judge on
the basis of facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, constitutes a basis for a bias or partiality motion where the opinion
displays a deep-seated favoritism or antagonism that would make fair judgment impossible.
See Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994).
[Headnote 45]
Here, it appears from the record that Judge Lehman's awareness of the information was
acquired in the course of judicial proceedings. In any event, Kirksey does not explain how he
was prejudiced by Judge Lehman's knowledge of this conversation. In fact, the conversation
merely reflects the same information Judge Lehman learned at the penalty hearingKirksey
wanted the death penalty. There also is no evidence that Judge Lehman formed an opinion
regarding Kirksey based on the information that would display a deep-seated antagonism or
make fair judgment impossible. We therefore conclude that the district court did not abuse its
discretion in denying the motion to disqualify.
CONCLUSION
For the foregoing reasons, we conclude that none of Kirksey's issues on appeal has merit.
We therefore affirm the district court's order denying Kirksey's petition for post-conviction
relief.
____________
112 Nev. 1008, 1008 (1996) Lippis v. Peters
JUSTICE OF THE PEACE DEBRA LIPPIS, Department 1, Las Vegas Township; JUSTICE
OF THE PEACE KELLY SLADE, Department 2, Las Vegas Township; JUSTICE
OF THE PEACE DANIEL AHLSTROM, Department 3, Las Vegas Township;
JUSTICE OF THE PEACE JAMES BIXLER, Department 4, Las Vegas Township;
JUSTICE OF THE PEACE WILLIAM JANSEN, Department 5, Las Vegas
Township; JUSTICE OF THE PEACE NANCY OESTERLE, Department 6, Las
Vegas Township, in Her Official Capacity as Justice of the Peace, Justice Court, Las
Vegas Township; NORTH LAS VEGAS JUSTICE OF THE PEACE JAMES
KELLY, Justice Court, North Las Vegas Township; NORTH LAS VEGAS JUSTICE
OF THE PEACE JAMES KELLY and Justice Court, North Las Vegas Township,
Appellants, v. DEBRA B. PETERS and ANTONE PETERS, and HELEN CORBETT,
Individually and on Behalf of All Others Similarly Situated, Respondents.
No. 26575
August 16, 1996 921 P.2d 1248
Appeal from an order of the district court granting a motion for summary judgment, and an
order awarding attorney's fees. Eighth Judicial District Court, Clark County; Lee A. Gates,
Judge.
Tenants initiated suit challenging justice courts' failure to hold hearings for tenants after
tenants filed affidavit in opposition to eviction notice. The district court granted tenants relief.
Courts and justices appealed. The supreme court, Springer, J., held that: (1) justice court rule
of civil procedure denying appeals from orders in summary eviction matters was
unconstitutional; (2) summary eviction statute was not unconstitutional; (3) injunction
requiring justice courts to hold hearing in every case in which tenant filed affidavit in
opposition to summary eviction proceedings was impermissibly broad; and (4) tenants could
not claim attorney fees under federal civil rights statute.
Stewart Bell, District Attorney, Robert J. Gower, Deputy District Attorney, Clark County,
for Appellants.
Nevada Legal Services, Barbara E. Buckley, Dan L. Wulz and Jordan Savage, Las Vegas,
for Respondents.
1. Landlord and Tenant; Statutes.
Justice court rule of civil procedure which provided that there shall be no appeal from order of summary eviction denied
constitutional right of appeal from justice court order to district court solely to tenants summarily evicted, and therefore such rule
violated constitutional provisions granting right to appeal decisions of justice court and requiring that all laws be general and of
uniform operation throughout state. Const. art. 4, 21; art. 6, 6; JCRCP 106.
Summary eviction statute's requirement that tenant who has been served five-day notice, requiring payment of rent or surrender of
premises, to submit to court affidavit of nondefault raising justiciable issue as condition to being granted hearing before tenant is
evicted was not unconstitutional. NRS 40.253.
3. Injunction.
Injunction requiring justice courts to hold hearing in every case in which tenant filed affidavit in opposition to summary eviction
proceedings would require hearings even in those cases in which tenant's affidavit did not meet requirement of summary eviction
statute that tenant state why he or she is not in default in payment of rent, and therefore such injunction was impermissibly broad. NRS
40.253.
4. Civil Rights.
In their action challenging justice courts' practice of denying appeals to district court in summary eviction actions, tenants did not
allege that they were deprived of federal rights, and therefore they could not claim attorney fees under federal civil rights statute. 42
U.S.C. 1983, 1988.
OPINION
This is an appeal by two justices' courts and by seven individual justices of the peace from a district court judgment against them by
which the courts and the justices are enjoined from failing to hold hearings for tenants after the tenants filed an Affidavit in Opposition to
Eviction Notice.
The oddity of the district court's exercising its equitable jurisdiction to enjoin inferior courts and judicial officers and to order that
these courts not fail to hold certain kinds of hearings can be explained by saying that, at the time the injunction was issued, the aggrieved
tenants had no recourse to a direct appeal to the district court from the justices' courts; and the tenants had to challenge collaterally the
justices' courts' failing to hold hearings for tenants. Rather than pursuing the expected remedies of prohibition or mandamus, the
aggrieved tenants chose the equitable remedy of injunction; and, since the form of remedy is not challenged by the appellant justices' courts
or the justices, we will act in the assumption that the parties are properly before this court on a review of the judgments of the district court.
The district court: (1) declared unconstitutional the justices' court rule (JCRCP 106) which
denies the right of appeal from justices' courts to district courts to tenants who are subjected
to being evicted under summary eviction proceedings; (2) declared the summary eviction
statute (NRS 40.253) to be unconstitutional; (3) enjoined the named courts and jurists to hold
hearings in all cases in which tenants file an affidavit in opposition to the eviction
proceedings; and (4) ordered that the courts and the individual justices pay the
respondents/tenants attorneys' fees in the sum of $18,693.50. We hold that the district court
was correct in declaring JCRCP 106 unconstitutional, but that it erred in declaring NRS
40.253 unconstitutional, erred in ordering that hearings must be held in all cases in which an
opposition affidavit is filed by a tenant, and erred in ordering the courts and justices to pay an
$18,693.50 attorneys' fee.
CONSTITUTIONALITY OF JCRCP 106
[Headnote 1]
JCRCP 106 provides that [t]here shall be no appeal from an order of summary eviction.
Although this court ill-advisedly approved the issuance of this rule, it is quite clear that
tenants who are subject to being summarily thrown out of their homes by eviction orders
issued by justices' courts cannot be discriminated against by denying them the right to appeal.
If, for example, respondents Peters, who rightly refused to pay their rent because their roof
was leaking, had (like all other aggrieved parties in justice's court proceedings) been able to
appeal the justice's court's improper order of summary eviction, it appears highly probable
that the district court would have seen the error of the justice's court in the Peters case and
corrected it. In any event, had it not been for JCRCP 106, the justices' court errors
complained of in this case could have been corrected through the normal appellate process;
and all of the class action proceedings and constitutional challenges would not have reached
the attention of either the district court or this court.
1

JCRCP 106 is violative of the Nevada Constitution for two reasons.
__________

1
We are advised that the justices of the peace here involved had adopted some sort of policy by which they
had agreed among themselves that in future cases they planned to deny hearings under certain circumstances and
to grant hearings under other circumstances. It is a bit untoward for judges to announce in advance how they
intend to decide certain cases; still, aside from this, whether appellant justices did or did not have an
agreed-upon policy in summary eviction cases, each case must be decided on its own merits, and, if decided
erroneously, is subject to correction on appeal. Consequently, if tenants were being improperly denied hearings
(as they were) this is a matter that could have been addressed, by direct appeal, on a case by case basis, had it
not been for JCRCP 106, which precluded appeal.
reasons. The first reason is that article 6, section 6, provides that district courts have final
appellate jurisdiction in cases arising in Justices Courts. This means what it says. It does not
say except in cases in which justices courts are summarily evicting tenants from their
homes. The Nevada Constitution proclaims that district courts have final appellate
jurisdiction in all cases arising in justices' courts, including summary eviction cases.
JCRCP 106 is also violative of article 4, section 21, which provides that all laws shall be
general and of uniform operation throughout the State. There is no reason why parties to
landlord-tenant lawsuits should be denied the right of appeal, while all other justices' courts'
litigants are allowed to exercise this right. Henceforth, tenants who have been summarily
evicted from their homes by order of a justice's court, will have the right of direct appeal to
the district court in order to seek correction of any erroneous judgments that might have been
issued by a justice's court.
CONSTITUTIONALITY OF NRS 40.253
[Headnote 2]
A tenant has a right to contest summary eviction proceedings under NRS 40.253. When
a landlord claims that a tenant is in default in payment of the rent, the summary eviction
statute permits the landlord to serve a five-day notice in writing upon a tenant requiring in
the alternative the payment of the rent or the surrender of the premises. A tenant's
noncompliance with the notice authorizes the landlord to apply by affidavit for an order
directing the sheriff or constable of the county to remove the tenant within 24 hours after
receipt of the order.
The landlord's notice to quit must advise the tenant of his right to contest the matter by
filing . . . an affidavit with the court . . . stating that he has tendered payment or is not in
default in the payment of the rent. The filing of such an affidavit of tender or non-default
forestalls the eviction proceedings, and the landlord is forbidden to provide for
nonadmittance of the tenant to the premises by locking or otherwise. When a tenant
contests an eviction proceeding by filing of the prescribed affidavit, the court shall hold a
hearing . . . to determine the truthfulness and sufficiency of any affidavit or notice provided
for in the statute.
NRS 40.253 is quite simple and quite adequate for its purpose. It is not, as contended by
respondents and ruled by the district court, unconstitutional. Tenants who are subject to
eviction proceedings must be given proper notice and an opportunity to be heard if they
choose to contest the landlords' allegations of default in payment of rent. All the statute
requires tenants to do in order to forestall summary eviction proceedings is to file an affidavit
stating why it is that they are not "in default in the payment of the rent"; and by doing
this they can stop all eviction proceedings and entitle themselves to a hearing "to
determine the truth and sufficiency of any affidavit . . . ."
affidavit stating why it is that they are not in default in the payment of the rent; and by
doing this they can stop all eviction proceedings and entitle themselves to a hearing to
determine the truth and sufficiency of any affidavit . . . . In the case at hand, for example,
respondent Debra Peters filed a timely affidavit stating that she did not owe the rent (was
not in default in the payment of rent) because she had been unable to use one bedroom due
to the ceiling leaking and because of other conditions which made the premises
uninhabitable. The filing of this affidavit was in clear compliance with the statute; and Ms.
Peters, without question, had properly contested the eviction proceedings and was entitled to
a hearing to determine the truthfulness and sufficiency of her affidavit. The justice's court
refused to grant the hearing required by the statute and entered an order of summary eviction
without permitting Ms. Peters to contest the matter. This was plain error on the part of the
justice's court and should have been subject to correction on appeal to the district court. The
grievances of the tenants in this case arise out of the erroneous misapplication of NRS 40.253
rather than on the supposed unconstitutionality of the statute.
If tenants request a hearing in the manner provided by NRS 40.253, they are entitled to a
hearing before they can be summarily evicted. Tenants point out in their brief that the courts
have long held that a pre-deprivation hearing must be held after being requested. This is a
true statement, but it should be pointed out that requested means requested in the manner
set out in the statute, that is to say, by filing an affidavit of non-default, averring either that
tender has been made or that the tenant is not in default in the payment of rent. Ordinarily,
the only issue before the justice's court in these matters is whether the tenant is in default in
payment of rent. If this issue is not raised and brought before the court in some manner, there
is no issue to be heard. For example, one of the tenants in this case presented as a defense,
the proposition that my daughter needed a wheelchair and medication . . . and I was unable
to pay Dec/Jan rent. My daughter did not get her Sammy Card until the middle of Jan. We
can pay our rent up sometime this month. I just can't say what day. As touching as this
tenant's plea may be, it does not offer to the court any subject matter upon which it could
properly decide, after a hearing, that the tenant was not in default in the payment of rent. The
same tenant did, however, state in her affidavit that she was not in default in the payment of
rent because . . . [of] the landlord's inclusion of late charges. Under this claim the tenant
raised a disputed issue as to the amount of rent due and was entitled to a hearing. The justice's
court erred in not giving her one.
In Adams v. Sanson Investment Co., 376 F. Supp. 61, 67 (D. Nev. 1974), after giving due
consideration to Fuentes v. Shevin, 407 U. S. 67 (1972), the Nevada federal district court
declined to decide whether the requirement of a preliminary showing by affidavit is an
unconstitutional restriction on the right to a hearing in an unlawful detainer action. It does
not appear to us that requiring a tenant simply to state, as a condition to being granted a
hearing, that he or she is not in default of payment of rent, is an unconstitutional restriction on
the right to hearing in an unlawful detainer action. If this were not the case, the word would
soon go out that all a defaulting tenant had to do to keep from being summarily evicted was to
file a paper saying: I want a hearing. Under these circumstances the summary eviction
statute would lose its intended and justifiable purpose. A judicial hearing is for the purpose of
aiding in the decision of a justiciable issue. If there is no justiciable issue presented in a
summary eviction proceeding (namely, whether there is default in the payment of rent), there
is nothing to hear. It is not unreasonable to require a tenant to raise a justiciable issue as a
condition to being granted a hearing.
NRS 40.253 provides for a hearing under proper circumstances and is not unconstitutional.
PROPRIETY OF ENJOINING JUSTICES' COURTS' NOT TO
FAIL[] TO HOLD HEARINGS AFTER FILING OF
OPPOSITION TO EVICTION NOTICE
[Headnote 3]
It appears that the injunction issued by the district court requires justice's courts to hold a
hearing in every case in which a tenant files an affidavit in opposition to the eviction
proceedings. Such an injunction cannot be sustained because it is quite possible for a tenant
to file an affidavit that does not comply with the statutory requirements imposed upon a
tenant who contests a summary eviction proceeding. Such a tenant is not entitled to a
hearing. A tenant has the right to a hearing to determine the truthfulness and sufficiency of
the affidavit in opposition only under the circumstances provided in the statute. If the
affidavit is insufficient on its face, there is no need to have a hearing to determine its
truthfulness. For example, if all a contesting affidavit averred was that We can pay our rent
up sometime this month, I just can't say what day, such an affidavit is facially insufficient
and does not entitle the affiant to a hearing under NRS 40.253. To abide by this statute a
tenant must, as explained above, make some kind of sworn statement showing that he or she
is not in default in payment of rent. This means timely tender or payment of rent or some
recognized legal excuse, such as the Peters' not being in default because the roof of the
rented premises was leaking.
Peters' not being in default because the roof of the rented premises was leaking.
The injunction ordering, in effect, that a hearing must be held any time that any form of
Affidavit in Opposition to an Eviction Notice is filed is too broad; and it was error for the
trial court to issue such an injunction.
ATTORNEYS' FEES
[Headnote 4]
The judgment awarding fees in this case imposes upon two justices' courts and seven
justices of the peace an obligation to pay to the tenants' attorneys the sum of $18,693.50. This
judgment does present a problem when we start to think about how these public officials and
two courts of law might go about allocating the obligation of $18,693.50. It would not appear
that the courts themselves are subject to execution process; and, therefore, the fee, if it were
going to be paid, would have to be paid by the individual justices, who would have to pay, if
the matter were handled fairly, $2,670.50 each.
The justices' judgment obligation to pay attorneys' fees is based (1) on their having
followed a procedural rule (JCRCP 106) enacted by this court and (2) on their having made
several erroneous judicial decisions. We hesitate to get into the thorny problems presented by
this judgment, problems relating to execution upon public property, relating to official
immunity and judicial immunity and some other similar problems that attend the enforcement
of such a judgment. Fortunately, we do not have to deal with these problems because there
are other less complicated reasons for reversing the attorneys' fees judgment.
It was not until after judgment that the tenants decided to apply for attorneys' fees. There is
no predicate for the granting of attorneys' fees stated in their complaint, and the request for
fees is entirely a post-judgment proceeding. After judgment was entered, the tenants
presented to the court a motion for an award of costs and attorney's fees based on 42 U.S.C.
1988 (1991). This federal statute permits the state courts to award attorneys fees to
successful civil rights litigants in civil rights actions brought in the state courts under 1983.
The cited code provision, section 1988, allows for an award of fees to the prevailing party
when that party has sued to enforce a provision of . . . 42 USCS 1981-1983.
Even if we were to recognize the tenants as the prevailing party in this litigation, it is
more than clear that this action was in no way designed or pleaded to enforce a provision of .
. . 42 USCS 1981-1983.
In their points and authorities in support of their application for attorney's fees the
tenants agree that "[i]n order to state a claim under 19S3, Plaintiffs must allege a
person has deprived him or her of a federal right and the person so depriving acted under
color of state law."
attorney's fees the tenants agree that [i]n order to state a claim under 1983, Plaintiffs must
allege a person has deprived him or her of a federal right and the person so depriving acted
under color of state law. In no instance did plaintiff tenants ever allege [that] a person has
deprived him or her of a federal right. Even if the tenants had included such allegations in
their complaint, they would have had to base their claims on privileged judicial decisions
coming out of the justices' courts of Clark County. They could not have done this. Judicial
judgments are not made under color of state law. They are the law, until disturbed by a
judgment of reversal on appeal.
This is not a section 1983 action, and there is no other claim made which would serve as a
basis for attorneys' fees. The $18,693.50 award of attorneys fees against the Clark County
justices' courts and their presiding justices is reversed.
CONCLUSION
JCRCP 106 is unconstitutional; consequently, henceforth, judgments of the justices' courts
in summary eviction actions will be appealable to the district court. NRS 40.253 is
constitutional; and insofar as the trial court's judgment intimates that the federal and Nevada
constitutions require pre-deprivation hearings as a condition to every summary eviction
order, such judgment is of no effect. Tenants are entitled to a pre-deprivation hearing in
summary eviction proceedings only when they properly request such a hearing by filing an
affidavit with the court showing that the tenant has either tendered payment or is not in
default in payment of rent. The district court's award of attorneys' fees is reversed.
Steffen, C. J., and Young, Shearing, and Rose, JJ., concur.
____________
112 Nev. 1015, 1015 (1996) Wallace v. Wallace
TRACY LYNN WALLACE, Appellant, v. PIETER KENNETH WALLACE, Respondent.
No. 28145
August 16, 1996 922 P.2d 541
Appeal from a judgment of the district court establishing a visitation schedule and
modifying child support. Second Judicial District Court, Washoe County; Charles M. McGee,
Judge.
Following mother and father's divorce, award of physical custody to mother, and mother's
remarriage, mother and father disputed amount of visitation father should have.
disputed amount of visitation father should have. The district court established visitation
schedule and modified child support. Mother appealed. The supreme court, Rose, J., held
that: (1) district court improperly imposed visitation schedule based on father's relocation out
of state without accepting evidence and hearing argument on ramifications of such visitation;
(2) district court improperly reduced father's child support obligation without setting forth
proper findings of fact; and (3) district court improperly granted grandparent visitation.
Marta Presti Salas, Reno, for Appellant.
Todd Torvinen, Reno, for Respondent.
Matters of custody and support of minor children rest in sound discretion of trial court.
It is presumed that trial court has properly exercised its discretion in determining child's best interest regarding matters of custody
and support.
3. Divorce.
In custody proceeding focusing on visitation on one weeknight, trial court improperly imposed visitation schedule based on
father's relocation out of state without accepting evidence and hearing argument on ramifications of such visitation, where mother was
not apprised by court or father of father's relocation until late in hearing.
4. Divorce.
Equity did not empower trial court to go beyond enumerated factors in child support statue permitting reduction of child support
when custodial parent moves away and reduce child support obligation of father, as noncustodial parent, when father chose to move.
NRS 125B.080(9)(i).
5. Divorce.
It was plain error for trial court to reduce father's child support obligation without setting forth findings of fact providing amount
of support which father would owe under statutory formula and basis for its deviation from formula. NRS 125B.080(6).
6. Divorce.
Trial court improperly granted grandparent visitation without receiving evidence on and considering all factors set forth in statute
governing propriety of grandparent visitation. NRS 125A.330(1).
OPINION
Appellant Tracy Vollmer (formerly Tracy Wallace) and respondent Pieter Wallace were married and had a son, Drake.
After they divorced, Tracy gained physical custody of Drake, and she and Pieter shared joint
legal custody. Around the time Tracy remarried, she and Pieter began to disagree about the
amount of visitation Pieter should have. The dispute was taken before the district court,
which established a visitation schedule and ordered certain abatements in Pieter's child
support obligation.
Tracy appealed. She claims that the district court failed to consider Drake's best interests in
establishing the visitation schedule, that the court erred in granting Pieter a reduction in his
child support obligation for travel expenses connected to visitation, and that it erred in
ordering visitation for Pieter's mother without conducting a hearing.
FACTS
Tracy and Pieter were divorced on May 28, 1991, when their son, Drake, was less than a
year old. They entered into a child custody and support and property settlement agreement,
which the district court adopted in its divorce decree. Tracy and Pieter shared joint legal
custody of Drake, and Tracy was awarded physical custody. Pieter received reasonable rights
of visitation and was ordered to pay $250 per month in child support.
From the divorce until about September 1994, the parties agree that visitation occurred
largely without problems. After Drake was about two years old, he began to stay overnight
with Pieter, typically one or two nights a week. During the summer of 1994, Pieter was
unemployed; he therefore paid only $100 a month in child support, but took care of Drake
every weekday while Tracy worked.
In September 1994, Tracy remarried, and Pieter began a job with weekends off. He had
worked weekends at his earlier job. The flexible visitation which occurred before ended. The
parties arrived at an arrangement where Drake stayed with Pieter every other weekend.
Initially, Drake also stayed overnight at Pieter's on Wednesdays. Tracy then stopped the
overnight stay on Wednesdays because she felt that Drake was too tired and cranky the next
day at his preschool. Pieter was not satisfied with the visitation he could exercise. After
discussions between the parties failed, Pieter filed a motion with the district court on January
27, 1995, to establish specific visitation. Pieter later withdrew his motion, but Tracy filed her
own. The court therefore held a hearing on the matter on October 16, 1995.
A child psychologist hired by Tracy was the first witness at the hearing. After seeing
Drake in January 1995, he felt that Drake might be too young for midweek overnight
visitations. The psychologist evaluated Drake again in September 1995, and his opinion
regarding Wednesday overnight visitation remained basically unchanged.
cally unchanged. The psychologist had never spoken to Pieter about Drake's situation.
Tracy testified as follows. After Pieter began working weekdays with weekends off, he
demanded to have Drake every weekend. When she refused and they argued, she told him to
get an attorney. She denied ever threatening to withhold visitation if Pieter did not pay child
support. On cross-examination, Tracy admitted that she told Pieter that he was in for a big
court battle and that she would rather spend money than participate in mediation, which
Pieter requested more than once. She also told Drake that because Pieter did not go to church,
bad things would happen to Pieter and that Pieter did not take good care of Drake.
Pieter's mother testified that Tracy called her after remarrying and threatened to cut Pieter
out of Drake's life regardless of the consequences to Drake.
Pieter testified to the following. In late September or early October 1995, Tracy threatened
that Pieter would not see Drake if he did not immediately pay his child support for October.
Pieter therefore opened an account with the district attorney's office to keep a record of his
support payments. Pieter stated that his new wife had two children and that when Drake
stayed overnight, all the children went to bed around eight or eight-thirty in the evening, the
same time as Drake's bedtime at Tracy's. Drake also took naps. Tracy told Pieter that he could
not see Drake as much because Drake had a new family and dad and that Drake would learn
to live with it. She also warned Pieter that litigation would cost him a lot of money and that
she would ruin him. One time Drake asked Pieter why Pieter did not like God and said that
his mother said that bad things would happen to Pieter if he did not go to church. At the end
of his direct testimony, Pieter informed the district court that the month before he had
received a job offer in Atlanta and that he was going to move there in early 1996.
The district court filed a memorandum of decision on October 24, 1995, and a judgment
consistent with the memorandum on December 6, 1995. The court stated that the case was
basically a dispute over whether five-year-old Drake should spend Wednesday nights with his
father. It noted that Tracy opposed increased visitation because she feels that Drake's routine
would become interrupted; that he has shown signs of fatigue when he returns from his
father's home; and that she feels that his schooling would suffer. It found that Tracy had
been exercising control over Drake's relationship with his father in a manner which has
undermined the father-son relationship. The court cited Tracy's informing her son that his
father was bad for not going to church and telling the boy that his father did not take good
care of him.
The court stated that Drake deserves a better view of his father than his mother is giving him
and if more visitation will do the trick, then more visitation it will be. It therefore granted
overnight stays on Wednesdays.
In case Pieter moved to Atlanta, the court granted him the right to have Drake one
weekend each month, the Thanksgiving holiday, half of the Christmas holiday, a week at
Easter, and seven weeks each summer. It also reduced Pieter's monthly child support by $100
in any month that he traveled to Reno or that Drake traveled to Atlanta for visitation, and it
completely abated child support during summer weeks that Drake spent in Atlanta. If Pieter
could not arrange to have Drake for a weekend during a month, the court ordered that Drake
stay with Pieter's mother that month. Sometime after entry of the court's judgment, Pieter
moved to Atlanta.
DISCUSSION
The district court imposed the visitation schedule without adequate notice and hearing
[Headnotes 1, 2]
NRS 125A.290(1)(a) provides:
Any order awarding a party a right of visitation of a minor child must:
(a) Define that right with sufficient particularity to ensure that the rights of the
parties can be properly enforced and that the best interest of the child is achieved.
Matters of custody and support of minor children rest in the sound discretion of the trial
court. Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 768, 770 (1975). A court
decision regarding visitation is a custody determination. NRS 125A.040(2). It is presumed
that a trial court has properly exercised its discretion in determining a child's best interest.
Culbertson, 91 Nev. at 233, 533 P.2d at 770.
[Headnote 3]
Tracy contends that the court failed to consider Drake's best interest in establishing
visitation. She claims that the only evidence in the record militates against the midweek
overnight visitation ordered. The issue regarding overnight visitation on Wednesdays has
been rendered moot by Pieter's move to Atlanta. But Tracy also opposes the visitation
schedule which requires Drake, who has never spent more than two or three days away from
[his mother], [to] fly across the entire country to spend seven weeks in a home he has never
seen, with a parent he probably will not have been with for many months.
We agree that the district court abused its discretion in imposing a visitation schedule
based on Pieter's relocation to Atlanta without accepting evidence and hearing argument on
the ramifications of such visitation. We do not question the court's conclusion that Tracy had
improperly attempted to interfere with Drake's relationship with his father and that it was in
Drake's best interest to spend more time with his father. However, neither the court nor Tracy
were apprised of Pieter's move to Atlanta until late in the hearing. No evidence was presented
and no arguments were heard regarding an appropriate visitation schedule given this new
location, which was new to Drake and would require him to travel long distances to reach.
We conclude that the district court's judgment in regard to visitation was precipitous and
must be reversed. The court characterized the case before it as basically a dispute over
whether Drake should spend Wednesday nights with his father but then went well beyond that
contested dispute and ordered visitation of much greater impact. The court had little or no
factual basis to determine that the visitation ordered was in Drake's best interest, and Tracy
had no notice that the court would be considering visitation requiring Drake to travel
thousands of miles and therefore had no opportunity to present evidence on that issue. Cf.
Wiese v. Granata, 110 Nev. 1410, 1413, 887 P.2d 744, 746 (1994) (party threatened with loss
of parental rights must be given opportunity to disprove evidence presented, and hearing did
not provide such opportunity where other party presented no evidence); Moser v. Moser, 108
Nev. 572, 576-77, 836 P.2d 63, 66 (1992) (litigants in custody proceeding have right to full
and fair hearing, and preconditions to change of custody award must be supported by factual
evidence).
The district court erred in ordering abatements in Pieter's child support obligation
[Headnote 4]
The district court ordered a reduction in Pieter's child support payments of $100 for any
month in which either he or Drake had to travel between Reno and Atlanta.
NRS 125B.070(1) sets forth the formula to determine the amount of support a parent owes
a child. NRS 125B.080(6) provides that if a court awards child support which is greater or
less than the formula establishes, it must set forth findings of fact providing the amount of
support established under the formula and the basis for the deviation from the formula. This
court has held that any such deviation must be based upon the statutory factors provided
under NRS 125B.080(9). Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652,
654 (1996). The parties agree that the relevant factor in this case is provided in NRS
125B.0S0{9){i):
parties agree that the relevant factor in this case is provided in NRS 125B.080(9)(i): The cost
of transportation of the child to and from visitation if the custodial parent moved with the
child from the jurisdiction of the court which ordered the support and the noncustodial parent
remained.
Pieter cites Khaldy v. Khaldy, 111 Nev. 374, 377, 892 P.2d 584, 585 (1995), which states:
The district court may use equitable principles in considering a deviation [from the statutory
child support formula], as long as the deviation is based on one of the factors enumerated in
NRS 125B.080(9). He argues that here the district court based its deviation on NRS
125B.080(9)(i), which supports a deviation when the custodial parent moves away, and
equitably allowed a deviation when the noncustodial parent moves away.
The district court erred in ordering an abatement in Pieter's support obligation for months
in which travel expenses for visitation occurred. The Legislature expressly provided only that
the cost of transporting a child for visitation is relevant when the custodial parent moves.
Equity does not empower the district court to go beyond the enumerated factors and allow a
reduction when the noncustodial parent chooses to move. Nor does the statute's exclusion of
deviation for moves by noncustodial parents appear arbitrary or inequitable. The Legislature
could have concluded that some noncustodial parents would rather pay for travel expenses
than provide child support to the other parent and would move in order to reduce their child
support obligations, if such a reduction were allowed. On the other hand, it could have
concluded that allowing a reduction in child support when the custodial parent moves
discourages custodial parents from moving simply to prevent visitation by the other parent.
[Headnote 5]
The district court erred also because it failed to set forth findings of fact providing the
amount of support which Pieter would owe under the formula and the basis for its deviation
from the formula, as required by NRS 125B.080(6). It failed to set forth these findings not
only for the $100 reduction in support payments for travel expenses, but also for the complete
abatement of Pieter's support payments during summer visitation. Although Tracy failed to
raise the latter issue on appeal, it constitutes plain error which this court may address sua
sponte. Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986).
In Anastassatos, the district court ordered abatement of the father's support obligation
during the children's summer visitation with the father. It did so without setting forth findings
of fact concerning the basis for the deviation from the formula. The father contended that the
abatement during summer visitation was clearly based upon the fact that the children
would spend four weeks with the father and that no other finding was necessary to justify
the deviation.
clearly based upon the fact that the children would spend four weeks with the father and that
no other finding was necessary to justify the deviation. Anastassatos, 112 Nev. at 321, 913
P.2d at 654. Citing Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989), this court
reasoned that simply because the children spend the four weeks with [the father], it does not
necessarily follow that [the mother's] expenses as primary caretaker should correspondingly
decrease during that time. Anastassatos, 112 Nev. at 321, 913 P.2d at 654. We therefore
concluded that the terms of the district court's order do not adequately support a deviation
from the statutory formula, and the district court's failure to set forth findings of fact as to the
basis for the deviation constitutes reversible error. Id.
Therefore, the district court erred in failing to expressly find the amount of child support
required under the formula and in failing to set forth factual findings to support the complete
abatement of child support during summer visitation.
The district court erred in ordering grandparent visitation without adequate consideration of
all relevant factors
[Headnote 6]
Sometime after the hearing, Pieter's counsel requested that Pieter's mother be allowed
visitation. Tracy contends that the district court heard no evidence regarding the factors which
by statute a court must consider in deciding whether to grant visitation rights to a
grandparent. Tracy asks this court to set aside the district court's order granting grandparent
visitation and remand the matter for a hearing to consider the proper factors.
NRS 125A.330(1) provides that a court may grant visitation rights to a child's grandparent
in a case like this if it finds that such visits
would be in the best interests of the child. In determining whether to grant this right to a
petitioner, the court shall consider:
(a) The love, affection and other emotional ties existing between the party seeking
visitation and the child.
(b) The capacity and disposition of the party seeking visitation to:
(1) Give the child love, affection and guidance;
(2) Cooperate in providing the child with food, clothing and other material needs
during visitation; and
(3) Cooperate in providing the child with health care or alternative care
recognized and permitted under the laws of this state in lieu of health care.
(c) The prior relationship between the child and the party seeking visitation.
(d) The moral fitness of the party seeking visitation.
(e) The mental and physical health of the party seeking visitation.
(f) The reasonable preference of the child, if the child has a preference, and if the
child is determined to be of sufficient maturity to express a preference.
(g) The willingness and ability of the party seeking visitation to facilitate and
encourage a close and continuing relationship between the child and the parent or
parents.
(h) The medical and other needs of the child related to health as affected by the
visitation.
(i) Any other factor considered relevant by the court to a particular dispute.
Pieter argues that there is no statutory requirement for a hearing before granting
grandparent visitation and that NRS 125A.340(1) does not require consideration of every
listed factor since there is no and between the factors. He concludes that the testimony of
Pieter's mother provided sufficient evidence of her moral fitness and of the emotional ties and
prior relationship between her and Drake to allow the district court to order visitation.
Pieter's arguments are unpersuasive. The statute states that a court shall consider the
listed factors. There is no or between the factors to allow a disjunctive reading, as Pieter
urges. The district court erred in not receiving evidence on and considering all the factors set
forth in NRS 125A.340(1) before ordering grandparent visitation.
CONCLUSION
The district court abused its discretion in establishing the visitation schedule without
conducting a full and fair hearing on the ramifications of requiring visitation in Atlanta. It
erred in reducing Pieter's child support obligation for travel expenses connected to visitation
because the relevant statute does not allow consideration of such expenses when the
noncustodial parent moves out of the jurisdiction. The court also erred in abating Pieter's
support obligation during summer visitation without determining the amount of support under
the statutory formula and providing a factual basis for deviation from the formula. Finally, the
court erred in ordering visits by Drake's grandmother without receiving evidence on and
considering all the relevant factors as required by statute.
We therefore reverse the district court's judgment and remand this case for proper
determination regarding a visitation schedule given the fact that Pieter now lives in
Atlanta, child support during summer visitation, and visitation by the grandmother.
this case for proper determination regarding a visitation schedule given the fact that Pieter
now lives in Atlanta, child support during summer visitation, and visitation by the
grandmother.
I dissent from the judgment of the majority because, in my opinion, it constitutes a clearly
unwarranted invasion into the proper exercise of discretion by the trial court. I hope that the
supreme court will not continue to re-try family court disputes of this kind.
We have in this case a woman who frankly admitted her uncooperative attitude with
respect to the best interests of her son. She refused all attempts to discuss or mediate matters
relating to child custody and visitation and threatened to ruin the father of the child
financially by forcing him to pursue unnecessary litigation. Even worse, this woman,
according to the trial court, has been exercising control over [the child's] relationship with
his father in a manner which has undermined the father-son relationship.
NRS 125.480(3) requires that the family court, in custody matters, consider which parent
is more likely to allow the child to have frequent associations and a continuing relationship
with the noncustodial parent. The mother appears to be trying to avoid, at any cost, any
continuing relationship with the child's father. The intention of NRS 125.480 is to reward
cooperative behavior by a parent and to punish the kind of behavior engaged in by this
mother. See, e.g., Prost v. Greene, 675 A.2d 471 (D.C. App. 1996). In my opinion, this statute
mandated the kind of order issued in this case, if not a complete change of custody from the
mother to the father.
In order to assuage the mentioned undermining of the father-son relationship, the trial
court decided to allow the father to have his son, who is just starting school, with him in
Atlanta one weekend each month, the Thanksgiving holiday, half of the Christmas holiday, a
week at Easter and seven weeks each summer. The court also granted some alternative
visitations rights to the child's paternal grandmother.
The judgment of the family court certainly seems to me to be well within the bounds of
judicial discretion; yet, this court cancels out the family court's decision as being
precipitous, ruling that the family court has to start all over in this agonizing custody
dispute. Perhaps the mother of this child will be successful in her attempts to ruin this
father financially and will be able to continue to undermine the father-son relationship. This
court has gone a long way to assist her in this end.
court has gone a long way to assist her in this end. I would leave the perfectly proper
visitation order of the trial court in place.
The subject of child support was not raised on appeal, and for this reason we should not
interfere with the trial court's judgment in this regard.
Perhaps the most troublesome aspect of this case is this court's interfering with the
visitation rights given to the grandparents. There was absolutely nothing untoward or contrary
to the child's best interests in the trial court's permitting the child to visit with his
grandparents when his father was not available; and I think it was very wrong to send this part
of the case back for rehearing.
____________
112 Nev. 1025, 1025 (1996) Edwards Indus. v. DTE/BTE, Inc.
EDWARDS INDUSTRIES, INC., EDWARDS HEAT TREATING SERVICE, INC., and
MARK A. EDWARDS, Appellants, v. DTE/BTE, INC., Respondent.
No. 25012
August 16, 1996 923 P.2d 569
Appeal from judgment on breach of contract claims; from order awarding attorney's fees
and costs; and from order denying motion for a new trial. Second Judicial District Court,
Washoe County; Brent Adams, Judge.
Lessors brought action against lessee for breach of equipment lease and premises lease.
The district court denied enforcement of oral leases based on statute of frauds, refused to
award damages for past-due rents, and awarded attorneys fees and costs to lessee. Lessors
appealed. The supreme court held that: (1) lessee's conduct in occupying premises and paying
rent on monthly basis created month-to-month tenancy; (2) oral equipment lease was
unenforceable under statute of frauds; (3) equipment lessor was entitled to overdue rental
payments; (4) lessee's offer of judgment was invalid and did not entitle it to attorney fees and
costs; and (5) lessors waived right to challenge stipulation or lack of rebuttal testimony.
Harris, Trimmer and Thompson, Reno, for Appellants.
Walther, Key, Maupin, Oats, Cox, Klaich and Legoy and Paul J. Anderson, Reno, for
Respondent.
Findings of fact and conclusions of law, supported by substantial evidence, will not be set aside unless clearly erroneous.
Tenant's conduct in occupying premises and paying rent on monthly basis created month-to-month tenancy supporting landlord's
claims for unpaid rents. NRS 118A.210.
3. Frauds, Statute of.
Full performance by one party may remove contract from statute of frauds. NRS 111.220(1).
Equipment lessor's improvident purchase of equipment before there was any agreement with lessee was not full performance and
did not remove contract from statute of frauds. NRS 111.220(1).
Documents produced by equipment lessor were insufficient memoranda of agreement to meet statute of frauds; conflicting
testimony existed as to who prepared private placement memorandum and proposal on business plan, plan merely indicated that lessee
needed to finance some equipment that would cost approximately $125,000, but did not establish any terms or promises of alleged
agreement, and letter from lessee's principal to lessor did not establish consequence of single default or establish lessee's liability for
entire amount in dispute. NRS 111.220(1).
Separate writings may be considered together to establish sufficient writing or memorandum necessary to satisfy statute of frauds,
even though one of them was not signed by party to be charged and neither was sufficient memorandum in itself. NRS 111.220(1).
Whether writing is legally sufficient to comply with statute of frauds presents question of law. NRS 111.220(1).
Evidence supported trial court's conclusion that equipment lessee was estopped from raising statute of frauds as defense in suit by
lessor. Conflicting testimony existed regarding who negotiated amount and terms of agreement, and lessor's purchase of equipment
before alleged deal was unusual and complicated lessor's estoppel or part performance argument. NRS 111.220(1).
Promise to execute written agreement, without proof of fraud, is insufficient to invoke estoppel against use of statute of frauds as
defense. NRS 111.220(1).
Part performance, standing alone, is insufficient to make statute of frauds inapplicable. NRS 111.220(1).
11. Implied and Constructive Contracts.
Equipment lessee's use of equipment for approximately 12 months while making only 10 payments totaling approximately
$30,000 entitled lessor for past-due rent, even though oral lease was unenforceable under statute of frauds. It would be unjust to allow
lessee to enjoy benefit of use of equipment without paying rent merely because long-term agreement was found to be unenforceable.
NRS 111.220(1).
12. Costs.
Lessee's offer of judgment in favor of landlord and equipment lessor was invalid and could not provide basis for awarding attorney
fees and costs to lessee, even if same person was acting as agent for landlord and lessor; landlord and lessor sought recovery under
separate oral agreements with lessee, and unapportioned joint offer denied landlord and lessor the opportunity
to weigh individual changes for more favorable judgment.
ments with lessee, and unapportioned joint offer denied landlord and lessor the opportunity to weigh individual changes for more
favorable judgment. NRCP 68.
13. Appeal and Error; New Trial.
Decision to grant or deny motion for new trial rests within sound discretion of trial court, and supreme court will not disturb that
decision absent palpable abuse. NRCP 59(a).
14. Appeal and Error; New Trial.
Plaintiffs waived right to raise issues in posttrial motion or on appeal concerning stipulation on method of trial or rebuttal
testimony; plaintiffs never objected to anything in stipulation and never asked for clarification, and they did not reserve right to call
rebuttal witnesses or request rebuttal testimony.
15. Appeal and Error; Evidence.
It is within trial court's discretion to determine probative value and supreme court will not disturb that ruling absent abuse of
discretion.
OPINION
Per Curiam:
Appellants Edwards Heat Treating Services (EHT), Edwards Industries (EI) and Mark Edwards
1
sued respondent
DTE/BTE, Inc. for breach of two oral agreementsan equipment lease and a premises lease.
DTE/BTE invoked the statute of frauds as a defense to enforcement of both leases. The
parties stipulated to a bench trial that would be conducted in summary fashion, with each side
presenting one witness. After trial, the district court found that appellants had failed to meet
their burden of proof, and entered judgment for DTE/BTE. The district court also awarded
DTE/BTE $49,192.70 in attorney's fees and costs on the ground that appellants had failed to
obtain a judgment more favorable than the offer of judgment made by DTE/BTE.
Although the statute of frauds barred enforcement of the oral agreements, we conclude that
the district court erred in failing to award appellants damages for past due rents. We further
conclude that the award of attorney's fees and costs was improper, as it was based on an
invalid, unapportioned joint offer of judgment. Accordingly, we affirm that part of the district
court's judgment rejecting appellants' claims for prospective damages, vacate the district
court's award of attorney's fees and costs to DTE/BTE, and remand the case to the district
court to determine appellants' damages for past due rents.
FACTS
On July 20, 1989, appellants filed a complaint against DTE/BTE alleging: (1) breach of
two oral lease agreements; (2) bad faith breach of the implied covenant of good faith and
fair dealing; and {3) abuse of process.
__________

1
EI, EHT and Edwards will be collectively referred to as appellants except when it is necessary to refer to
Edwards individually.
faith breach of the implied covenant of good faith and fair dealing; and (3) abuse of process.
By amendment, the complaint dropped all but the first claim for breach of lease agreements,
and added four defendants. On May 24, 1993, the district court approved the parties'
stipulation to bifurcate the trial and to try the underlying action between appellants and
DTE/BTE in summary fashion, with each side presenting one witness. A bench trial
commenced on June 1, 1993, and the following testimony was presented by Edwards on
behalf of appellants, and Cherie Humphreys on behalf of DTE/BTE.
In 1970, Edwards formed EI to develop and market a wide-area paging network which
would integrate a variety of services, including paging, voice mail, two-way radio and
answering services. By 1987, most of the network was up or under construction.
In 1986, Humphreys and Allen Harsh formed a company eventually known as DTE/BTE
to sell EI's products and services. During 1987, Edwards and Humphreys began discussing
the prospect of Humphreys starting a new company that would provide the answering service
aspect of EI's network. Edwards provided Humphreys with information regarding the type of
equipment she would need to operate an answering service and assisted her in preparing a
prospectus.
2

According to Humphreys, Edwards represented that DTE/BTE would need a TASCOM,
3
an uninterrupted power supply (U.P.S.), and a diesel generator to operate the system. He
further advised her that this equipment would cost $125,000. Humphreys unsuccessfully tried
to obtain bank financing.
At some point in early 1988, EHT
4
agreed to purchase the necessary equipment and lease
it to DTE/BTE. Edwards reportedly told Humphreys about previous financing he had
obtained for a project from EHT's profit-sharing plan, and suggested that Humphreys contact
EHT as a funding source. Humphreys thereafter contacted EHT and reached an agreement for
funding. According to Humphreys, Edwards arranged the financing and she was unaware of
the source of the funds until late February or March. Humphreys claims that she had never
dealt with William Edwards or negotiated with him regarding the equipment. In February
1988, EHT issued a check to EI for $125,000, which EI used to purchase the equipment.
EI's attorney, Mark Gunderson, prepared an equipment lease in March 1988. The terms of
the lease provided that DTE/BTE would make monthly payments of $2,942 for a period of
60 months {5 years), and at the end of the term DTEJBTE could purchase the equipment
for a total purchase price of $S,000.
__________

2
There was conflicting testimony as to how much assistance Edwards provided in preparing the prospectus.

3
A TASCOM is a type of answering service system.

4
EHT is owned by William Edwards, Mark Edwards' father.
would make monthly payments of $2,942 for a period of 60 months (5 years), and at the end
of the term DTE/BTE could purchase the equipment for a total purchase price of $8,000.
Humphreys, however, refused to sign the lease unless Edwards provided an accounting of the
demised equipment and the cost of its acquisition. According to Humphreys, Edwards never
provided the accounting.
5
Although Humphreys never signed a written equipment lease,
from April 1988 through January 1989 DTE/BTE made 10 lease payments totalling
approximately $30,000.
During February 1988, EI and DTE/BTE also began negotiating for DTE/BTE to sublease
office space from EI.
6
Gunderson prepared several premises leases. The draft leases
provided that DTE/BTE would pay $800 per month in rent and a pro-rata share of the utilities
for a term of five years. However, Humphreys refused to sign a lease until a copy of EI's
master lease with Dermody Properties was attached. Humphreys wanted the master lease
because DTE/BTE was to pay a pro-rated amount of EI's rental payments to Dermody
Properties and she was concerned that DTE/BTE was being overcharged.
7
Although
DTE/BTE moved into the upstairs office space and began paying rent, a written lease was
never signed.
On March 2, 1989, Edwards terminated both the equipment and premises leases by letter.
According to Edwards, he wrote the letter after he and Humphreys had reached a settlement
during discussions to terminate the arrangements. Edwards claims that Humphreys agreed
to pay us what was due and owing, pay for the modifications, pay for the equipment and they
could go on about their business. However, according to Humphreys, Edwards terminated
the arrangements because DTE/BTE had become delinquent in making payments.
8
After
receiving the termination letter, DTE/BTE stopped making payments. Humphreys further
testified that when Edwards terminated the agreements, he informed her that DTE/BTE could
not take the equipment unless the full purchase price was paid.
__________

5
Edwards testified that he did so in June 1988. However, he was unsure whether the accounting was ever
attached to a lease and sent to DTE/BTE.

6
Prior to this time, Humphreys (operating as ACM) had used office space on the first floor of the building
leased by EI. Prior to April 1988, there was no rental agreement and it appears that ACM was not required to
pay rent.

7
Edwards testified that DTE/BTE had requested certain renovations and that the $800 per month rent included
$207.20 per month to cover the $12,432.46 that EI had spent on the renovations. In contrast, Humphreys
testified that she never requested any renovations and was never told that the rent would include an amortized
amount for renovations.

8
Humphreys testified that DTE/BTE did not make the February payments because she was being pressured to
sign premises leases and equipment leases.
equipment unless the full purchase price was paid. Humphreys tried, but was unable to obtain
alternative financing because DTE/BTE could not get an extended warranty on the
TASCOM.
When DTE/BTE vacated the premises in April 1989, it had not paid rent for the months of
February, March, and the period of its occupancy in April. In May 1992, Edwards removed
the TASCOM and sold it for $16,600,
9
less a $2,500 brokerage fee.
The district judge rendered his opinion from the bench, stating:
In this case, because of the absence of a written agreement containing the essential
terms both as to the equipment lease and as to the lease of premises, I might point out
there's no question there was no such agreement, there were many drafts prepared, but
this is not a case in which there was a memorandum containing essential terms to which
everyone agrees, and somehow as a result of negligence it wasn't executed.
There were drafts prepared and submitted andby the plaintiffs and their counsel,
and the defendant refused to sign them.
But the absence of such a document really generates the fundamental problem in this
case, and is the cause of the painful uncertainty which I've suffered the last three days.
The district court then entered findings of fact and conclusions of law, finding that any
agreements there may have been between the parties were in fact oral agreements that had
never been reduced to executed written agreements, and that EI and EHT had failed to carry
their burden of proof. The judgment was entered on June 18, 1993.
A number of post-judgment motions followed. Pursuant to NRS 18.020 and NRCP 68,
DTE/BTE filed a motion for attorney's fees and costs. Appellants filed a motion for a new
trial, arguing that both the district court and appellants had misunderstood the stipulation such
that the appellants were denied the opportunity to present rebuttal testimony.
In an order dated August 2, 1993, the district court denied the motion for a new trial and
granted the motion for attorney's fees and costs. The latter order was amended to reflect that
attorney's fees and costs in the amount of $49,192.70, had been awarded based on NRCP 68.
Appellants filed a supplemental motion for a new trial, arguing that new evidence had
been disclosed which would have supported an action for fraud against DTE/BTE and would
have caused them to oppose bifurcation of the cases.
__________

9
Edwards was unable to obtain a higher purchase price because the TASCOM had become technologically
obsolete by 1989.
caused them to oppose bifurcation of the cases. The district court denied the motion and
certified the judgment; this appeal followed.
DISCUSSION
[Headnote 1]
As this court has stated on numerous occasions, findings of fact and conclusions of law,
supported by substantial evidence, will not be set aside unless clearly erroneous. See, e.g.,
Trident Constr. Corp. v. West Elec., Inc., 105 Nev. 523, 426, 776 P.2d 1239, 1241 (1989).
Additionally, [w]here the trial court, sitting without a jury, makes a determination predicated
upon conflicting evidence, that determination will not be disturbed on appeal where
supported by substantial evidence. Id. at 427, 776 P.2d at 1241.
The premises
[Headnote 2]
During trial, EI stipulated to forgo its claim for prospective damages under the oral
premises lease. Therefore, the only issue on appeal with respect to that lease is whether the
district court erred when it failed to award EI damages for unpaid rent for the months of
February, March, and the period of DTE/BTE's occupancy during April 1992. In this respect,
EI argues that DTE/BTE's conduct in occupying the premises and paying rent on a monthly
basis created a month-to-month tenancy that supported EI's claims for unpaid rents. We agree.
NRS 118A.210 provides, in relevant part:
2. Unless the rental agreement establishes a definite term, the tenancy is from week
to week in the case of a tenant who pays weekly rent and in all other cases the tenancy
is from month to month.
3. In the absence of an agreement, either written or oral:
(a) Rent is payable at the beginning of the tenancy; and
(b) Rent for the use and occupancy of a dwelling is the fair rental value for the use
and occupancy.
Despite the lack of an enforceable premises lease, DTE/BTE was obligated to pay rent for the
use and occupancy of EI's office space.
The equipment
As an initial matter, the parties disagree as to the basis for the district court's ruling with
respect to the alleged equipment agreement. EHT claims that the district court did not base its
decision on the statute of frauds. DTE/BTE contends that the district court refused to enforce
the agreement based upon the statute of frauds.
refused to enforce the agreement based upon the statute of frauds. After reviewing both the
district court's opinion from the bench and the written findings of fact and conclusions of law,
we conclude that the district court did rely on the statute of frauds to preclude enforcement of
the oral equipment agreement. We now consider whether the district court erred in its ruling.
The statute of frauds precludes enforcement of the oral equipment lease because, by its
terms, it could not be performed within one year. See NRS 111.220(1).
10
EHT asserts that
the equipment agreement was taken out of the statute of frauds by any of the following: (1)
admissions; (2) full performance; or (3) writings or memoranda of the agreement sufficient to
meet the statute of frauds. We disagree.
A complete admission in court by the party to be charged should dispense with the
necessity of any writing whatever. 2 Arthur L. Corbin, Corbin on Contracts 498, at 683
(1950). After reviewing the record, we conclude that Humphreys did not make a complete
admission that would dispense with the necessity of any writing. Although it appears that
both parties intended to enter into an agreement, the primary reason Humphreys refused to
sign the proffered equipment lease related to a dispute over whether DTE/BTE had in fact
received, and needed, $125,000 worth of equipment. This dispute goes to the essence of the
agreement.
[Headnotes 3, 4]
Full performance by one party may also remove a contract from the statute of frauds. 2
Corbin, supra, 457. Although EHT tendered a check to EI (February 28, 1988), and
Edwards then purchased the equipment (March 1, 1988), this all antedated the alleged
transaction between EHT and DTE/BTE (March 15, 1988). Therefore, EHT actually
performed before there was any agreement. It would be inappropriate to hold DTE/BTE to an
alleged agreement they never actually consummated merely because EHT improvidently
purchased the equipment without a written agreement.
[Headnotes 5-7]
EHT produced four documents which it contends are sufficient memoranda of the
equipment agreement between EHT and DTE/BTE. Separate writings may be considered
together to establish a sufficient writing or memorandum, "
__________

10
We note that in 1989, the legislature adopted the UCC provisions regarding leases. NRS
104A.2101-104A.2532. The equipment transaction in this case, however, occurred prior to January 1, 1990 and
is therefore governed by applicable laws in effect before that date. NRS 104A.200. Leases entered into after that
date are subject to the statute of frauds provisions set forth in NRS 104A.2201.
sufficient writing or memorandum, even though one of them was not signed by the party to
be charged, and neither was a sufficient memorandum in itself. Ray Motor Lodge, Inc. v.
Shatz, 80 Nev. 114, 118-19, 390 P.2d 42, 44 (1964). Whether a writing is legally sufficient to
comply with the statute of frauds presents a question of law. Id.
Having reviewed each of the documents, we conclude that they are not sufficient
memoranda of the agreement, either individually or collectively. As to two of the documents,
the Private Placement Memorandum and the Proposal and Business Plan, there was
conflicting testimony as to who prepared the documents. Additionally, the latter document
merely indicates that DTE/BTE needed to finance some equipment that would cost
approximately $125,000it does not establish any of the terms or promises in the alleged
agreement. Finally, the letter from Humphreys to EHT does not establish the consequence of
a single default or establish DTE/BTE's liability for the entire amount in dispute.
[Headnote 8]
EHT also argues that DTE/BTE was estopped from raising the statute of frauds as a
defense because EHT relied on DTE/BTE's representations that a written lease would be
signed and that the $125,000 would be repaid when it decided to purchase equipment for
which it had no other need.
[Headnotes 9, 10]
In Zunino v. Paramore, 83 Nev. 506, 509, 435 P.2d 196, 197 (1967), this court set forth
the elements of equitable estoppel:
To constitute estoppel the party relying on it must be influenced by the acts or silence
of the other and it must appear that the acts or conduct of the party estopped caused the
party relying to act as he would not have acted or he cannot complain that he was
deceived to his prejudice.
(Citations omitted.) A promise to execute a written agreement, without proof of fraud, is
insufficient to invoke estoppel against the use of the statute of frauds as a defense. See
Harmon v. Tanner Motor Tours of Nevada, Ltd., 79 Nev. 4, 16, 377 P.2d 622, 628 (1963).
Similarly, this court has recognized that part performance, standing alone, is insufficient to
make the statute inapplicable. Id. However, this court has held that where both circumstances
are present, estoppel is properly invoked. Id. Finally, [e]stoppel or part performance must be
proved by some extraordinary measure or quantum of evidence. Zunino, 83 Nev. at 509, 435
P.2d at 197.
The primary problem with EHT's estoppel or part performance argument is the
conflicting testimony regarding who negotiated the amount and terms of the agreement.
argument is the conflicting testimony regarding who negotiated the amount and terms of the
agreement. It is also complicated by the unusual timing of events: EHT provided the check
and EI/Edwards purchased the equipment before the alleged deal with DTE/BTE. Because of
the conflicting testimony and the district court's ability to weigh the evidence and the
credibility of the two witnesses, we decline to disturb the district court's ruling. See Trident,
105 Nev. at 427, 776 P.2d at 1242.
[Headnote 11]
Although we have determined that the district court correctly applied the statute of frauds,
we are nevertheless convinced that the district court erred when it failed to award damages to
EHT for the past due rent for the equipment. Regardless of Humphreys concerns regarding
the long-term lease and the amount DTE/BTE was being charged, DTE/BTE used the
equipment from April 1988 through mid-April 1989; however, DTE/BTE only made ten
payments totalling approximately $30,000. It would be unjust to allow DTE/BTE to enjoy the
benefit of the use of the equipment without paying rent merely because the long-term
agreement was found to be unenforceable.
Attorney's fees and costs
[Headnote 12]
The trial court awarded attorney's fees and costs to DTE/BTE based upon NRCP 68.
11
Since, upon remand, the trial court may award damages for past due rents in an amount less
than the offer of judgment,
12
it is necessary to address appellants' contention that attorney's
fees and costs could not be awarded pursuant to NRCP 68 because the offer of judgment was
invalid.
This court has twice held that unapportioned joint offers of judgment are invalid for the
purposes of NRCP 68. Bergmann v. Boyce, 109 Nev. 670, 677, 856 P.2d 560, 564-65 (1993)
(citing Morgan v. Demille, 106 Nev. 671, 799 P.2d 561 (1990); and Ramadanis v. Stupak,
104 Nev. 57, 752 P.2d 767 (1988)). An unapportioned joint offer is improper because it
denies the offeree an opportunity to meaningfully weigh the possibility of obtaining a more
favorable judgment against the possibility of obtaining a less favorable judgment and having
to pay attorney's fees and costs. Id. at 678, 856 P.2d at 565.
DTE/BTE contends that the offer of judgment was joint in name only because appellants
acted jointly throughout the case, similar to Uniroyal Goodrich Tire Co. v.
__________

11
Under NRCP 68, a trial court may award attorney's fees and costs to a party who makes an offer of judgment
[i]f the judgment finally obtained by the offeree is not more favorable than the offer . . . .

12
On December 3, 1991, DTE/BTE made an offer of judgment in the amount of $25,000.00 to satisfy all
claims.
name only because appellants acted jointly throughout the case, similar to Uniroyal Goodrich
Tire Co. v. Mercer, 111 Nev. 318, 890 P.2d 785 (1995). In Uniroyal, the plaintiff made an
offer of judgment to Defendant Uniroyal Goodrich Tire Company and Uniroyal, Ltd. 111
Nev. 322, 890 P.2d at 788. In holding that the offer was joint in name only, this court made
the following observations:
Even though there is more than one named defendant in the complaint, counsel for the
Uniroyal companies stipulated that any judgment would be paid by Uniroyal Goodrich
Tire Company, Inc., an American corporation. There was no separate liability or basis
of liability, and therefore the Uniroyal counsel was in a position to assess the risk
appropriately.
Id. at 322-23, 890 P.2d at 788 (emphasis added).
Uniroyal is distinguishable from the case at bar. Here, appellants are not affiliated.
Additionally, appellants submitted separate offers of judgment to DTE/BTE, further
indicating that the parties were asserting separate claims. Finally, even assuming that
Edwards was acting as an agent for both EI and EHT, that does not change the fact that they
sought recovery under separate oral agreements with DTE/BTE.
13
It was entirely possible
that one would have a stronger case than the other and, as such, the unapportioned joint offer
denied EI, EHT, or their alleged agent the opportunity to weigh their individual chances for a
more favorable judgment. Therefore, we conclude that the offer of judgment was invalid and
could not provide an appropriate basis for the award of attorney's fees and costs against
appellants. Accordingly, if DTE/BTE seeks attorney's fees and costs on remand, the offer of
judgment cannot be used as a basis for an award.
Motion for new trial
[Headnote 13]
A new trial may be granted pursuant to NRCP 59(a) where an aggrieved party's substantial
rights have been materially affected by any of the following:
(1) Irregularity in the proceedings of the court, jury, master, or adverse party, or any
order of the court, or master, or abuse of discretion by which either party was prevented
from having a fair trial; . . . .
__________

13
We note, however, that Edwards' alleged agency relationship with both EI and EHT would eliminate any
claim that the offer of judgment was invalid because it was conditional. See Bergmann, 109 Nev. at 678 n.5, 856
P.2d at 565 n.5.
. . . .
(3) Accident or surprise which ordinary prudence could not have guarded against; (4)
Newly discovered evidence material for the party making the motion which he could
not, with reasonable diligence, have discovered and produced at the trial . . . .
(Emphasis added.) The decision to grant or deny a motion for a new trial rests within the
sound discretion of the trial court, and this court will not disturb that decision absent palpable
abuse. Southern Pac. Trans. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978).
[Headnote 14]
Appellants contend that the district court abused its discretion by denying their motion for
a new trial. Appellants specify numerous circumstances which they argue operated
cumulatively to materially affect their substantial rights: (1) prior to entering the stipulation
14
they were led to believe the district court would request additional testimony if necessary; (2)
following Humphreys' cross-examination, they were informed that rebuttal testimony would
not be necessary; (3) they were surprised and unprepared to address testimony regarding
Edwards' alleged involvement as a director of DTE/BTE; (4) discovery violations by
DTE/BTE inhibited their ability to rebut Humphreys' trial testimony; (5) withheld documents
affected their willingness to enter the stipulation; and (6) the district court may have been
prejudiced against them during an ex parte communication with DTE/BTE just prior to trial.
The first two allegations and the fifth allegation relate to appellants' decision to bifurcate
their claims against DTE/BTE from those against other defendants and to enter a stipulation
concerning the method of trial. However, appellants never objected to anything in the
stipulation, never asked that the stipulation be clarified, and, unlike DTE/BTE, never reserved
the right to call rebuttal witnesses prior to trial. Moreover, at the conclusion of Humphreys'
cross-examination, appellants did not reserve the right to call rebuttal witnesses or request
rebuttal testimony; therefore, appellants waived their right to raise the issue in a post-trial
motion, or on appeal. See Fick v. Fick, 109 Nev. 458, 462, 851 P.2d 445, 448 (1993) (failure
to object to characterization of property as community barred subsequent review).
__________

14
The stipulation provided, in pertinent part:
[T]he June 1, 1993 trial shall be conducted in summary fashion, with Mark Edwards testifying on behalf
of Plaintiffs, and Cherie Humphreys testifying on behalf of Defendants. No other witnesses may be called
to testify. Plaintiffs and Defendant DTE/BTE may further stipulate as to the method for trial . . . however,
such stipulation shall be in writing and filed with the Court prior to June 1, 1993.
characterization of property as community barred subsequent review). Additionally,
appellants failed to present any evidence showing they entered the stipulation through fraud,
collusion, accident, or mistake. See Citicorp Servs., Inc. v. Lee, 99 Nev. 511, 513, 665 P.2d
265, 266 (1983). We also note that there is no record of the two conferences during which the
appellants claim they were misled regarding the need for rebuttal witnesses.
[Headnote 15]
The third allegation is basically a challenge to the district court's decision that evidence
relating to Edwards' involvement with DTE/BTE was probative and would be admitted over
appellants' objections. It is within the trial court's discretion to determine probative value, and
this court will not disturb that ruling absent an abuse of discretion. Uniroyal, 111 Nev. at 321,
890 P.2d at 787. We discern nothing in the district court's decision that constitutes an abuse
of discretion.
We further conclude that the documents allegedly withheld would not have changed the
outcome of the case. Therefore, appellants' substantial rights were not violated.
Finally, the last claim relates to an alleged ex parte meeting between the trial judge and
DTE/BTE. There is no record of such a meeting. There is also nothing in the record to
demonstrate bias or prejudice on the part of the trial judge against appellants.
We therefore conclude that there is no basis for a new trial and that the district court did
not abuse its discretion in denying appellants' motion.
CONCLUSION
For the reasons discussed above, we affirm that part of the district court's judgment
denying prospective damages for the equipment agreement and the order denying the motion
for a new trial. However, we remand the case for a determination of damages for past due
rents for both the equipment and the premises. The award of attorney's fees and costs to
DTE/BTE is vacated.
15

__________

15
The Honorable Charles E. Springer, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
112 Nev. 1038, 1038 (1996) Motenko v. MGM Dist., Inc.
BETH MOTENKO; ALLEN MOTENKO; BETH MOTENKO, as Mother and Natural
Guardian of ALLEN MOTENKO, a Minor, Appellants, v. MGM DIST., INC., fka
MGM DESERT INN, INC., a Nevada Corporation dba THE DESERT INN HOTEL
& CASINO, Respondent.
No. 25323
August 16, 1996 921 P.2d 933
Appeal from an order of the district court dismissing a claim for loss of parental
consortium. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Child of Massachusetts resident who was injured when his mother fell in Nevada hotel
asserted loss of parental consortium claim, which is recognized in Massachusetts but not in
Nevada, against hotel. Hotel moved for summary judgment and the district court granted
motion. Child appealed, and the supreme court, Shearing, J., held that: (1) law of forum
governs in tort action unless another state has overwhelming interest, which will exist if
two of four enumerated factors are met, abrogating Heidt v. Heidt, 108 Nev. 1009, 842 P.2d
723 (1992), General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), and
Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728 (1965), and (2) Nevada law applied and
barred action as only factor supporting application of Massachusetts law was fact that child
and mother resided there.
Affirmed.
Galatz, Earl & Bulla, Las Vegas, for Appellants.
Pyatt & Eglet, Las Vegas, for Respondent.
1. Torts.
Where followed, vested rights approach to choice of law matters involving torts requires application of substantive law of forum
in which injury occurred.
2. Torts.
In determining choice of law matters in tort action, law of forum governs, unless another state has overwhelming interest. Such
interest will exist if two of following factors are met: it is place where conduct giving rise to injury occurred, it is place where injury is
suffered, parties have same domicile, residence, nationality, place of incorporation, or place of business and it is different from forum
state, or it is place where relationship, if any, between parties is centered; abrogating Heidt v. Heidt, 108 Nev. 1009, 842 P.2d 723
(1992); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728 (1965).
3. Torts.
Where followed, significant relationship test for determining choice of law matters involving torts provides that rights of
liabilities of parties with respect to issue in tort are determined by local law of state which, with respect to that issue, has most
significant relationship to occurrence and parties. Factors to be considered in making analysis include place where injury occurred,
place where conduct causing injury occurred, domicile, residence, nationality, place of incorporation, and place of business of parties,
and place where relationship between parties, if any, is centered.
Nevada law applied and barred recovery for loss of parental consortium by Massachusetts resident in action brought in Nevada
court after his mother, who was also Massachusetts resident, was injured in fall in Nevada hotel. The only factors supporting
application of Massachusetts law, which would have allowed action, were that mother and child lived in Massachusetts and injury was
suffered there.
OPINION
Appellant Allen Motenko (Allen) and his family (the Motenkos), residents of Massachusetts, were in Las Vegas when Beth
Motenko, Allen's mother, allegedly slipped on a loose tile, fell and was injured on the premises of the Desert Inn, owned by respondent
MGM Dist., Inc. (MGM). Allen filed a claim for loss of parental consortium. The district court dismissed the claim because Nevada does
not recognize a claim for loss of parental consortium. See General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972). Observing that
the injury occurred in Nevada, the district court concluded that the law of Nevada should be applied under the vested rights or lex loci
delicti approach to choice of law problems advocated by the Restatement (First) of Conflict of Laws section 377 (1934) (the vested rights
approach).
The Motenkos appeal, arguing that the district court should have applied Massachusetts law, because Massachusetts is the domicile of
the Motenko family and recognizes a claim for loss of parental consortium. The Motenkos ask us to adopt the significant relationship
approach of the Restatement (Second) of Conflict of Laws section 145(1) (1971) (the significant relationship approach).
[Headnotes 1, 2]
Nevada has historically followed the vested rights approach in choice of law matters involving torts. See Laxalt v. McClatchy, 116
F.R.D. 438, 447 (D. Nev. 1987). This approach requires application of the substantive law of the forum in which the injury occurred.
occurred. See Restatement (First) of Conflict of Laws 377 (1934). Thus, because Nevada
does not recognize a claim for loss of parental consortium, the vested rights approach would
justify the district court's decision to dismiss Allen's claim. See Heidt v. Heidt, 108 Nev.
1009, 1011, 842 P.2d 723, 725 (1992); General Electric, 88 Nev. at 363, 498 P.2d at 371.
For thirty years, however, this court has not directly addressed the issue of whether the
vested rights approach is appropriate. See Lightenburger v. Gordon, 81 Nev. 553, 580, 407
P.2d 728, 736 (1965). Since then, a majority of courts have abandoned the wooden
application of the vested rights approach in order to avoid unjustifiably harsh results. See
O'Connor v. O'Connor, 519 A.2d 13, 15-21 (Conn. 1986) (reasoning that the vested rights
approach fails to acknowledge that many jurisdictions may have legitimate interests in
applying their own laws in a given controversy); Gutierrez v. Collins, 583 S.W.2d 312, 316
(Tex. 1979) (noting that less than half of the states continue to adhere to the vested rights
approach). This trend does not, by itself, give us cause to reevaluate the vested rights
approach. We must agree, however, that the approach can produce harsh results because the
approach demands a blind application of the law of the place of the accident.
[Headnote 3]
In contrast, the significant relationship approach, advocated by the Motenkos, provides
that [t]he rights and liabilities of the parties with respect to an issue in tort are determined by
the local law of the state which, with respect to that issue, has the most significant
relationship to the occurrence and the parties. Restatement (Second) of Conflict of Laws
145(1) (1971). The Restatement sets forth the factors to be considered for this choice-of-law
analysis as follows:
(2) Contacts to be taken into account in applying the principles of 6 to determine the law
applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of
the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Id. In order to determine which jurisdiction's law should apply in a tort action, the substantial
relationship test directs the court to select the law of the jurisdiction which has the most
significant relationship to the issue after considering these factors. The substantial
relationship test assigns no particular weight or priority to the contacts it lists or the
Section 6 principles.1
substantial relationship test assigns no particular weight or priority to the contacts it lists or
the Section 6 principles.
1

This test suffers from two defectslack of uniformity and lack of predictability. Different
judges can weigh the same factors to reach opposite conclusions. For example, the dissenting
justices conclude that Massachusetts law should apply in the instant case after applying these
factors. On the other hand, when we consider the very same factors, we conclude that Nevada
law should apply. In the instant case, every factor except the plaintiff's residence favors the
selection of Nevada law. Yet, the dissent would hold that the law of the plaintiff's residence
trumps all other considerations. When judges who thoughtfully consider the issue under the
same standard reach sharply divided results, it appears that it is impossible to predict the
outcome under this approach without more direction. We believe that it is necessary to
recognize a rule that is more certain in its outcome. Even Section 6 of the Restatement
recognizes that certainty, predictability and uniformity of result are important factors in
choosing the applicable law. Wholesale adoption of the substantial relationship test to actions
sounding in tort would not promote these desirable aims.
We agree that the vested rights approach should be abandoned and therefore, we propose
an approach that would harmonize Nevada's interest in stability in this area and the
substantial relationship test. Under this approach, the law of the forum (the place where the
action is brought) governs in a tort case, unless another state has an overwhelming interest.
Another state has an overwhelming interest if two or more of the following factors are met:
(a) it is the place where the conduct giving rise to the injury occurred;
(b) it is the place where the injury is suffered;
(c) the parties have the same domicile, residence, nationality, place of incorporation, or
place of business and it is different from the forum state;
__________

1
Section 6(2) of the Restatement (Second) which sets forth the general principles in choice-of-law decisions
states:
[T]he factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
(d) it is the place where the relationship, if any, between the parties is centered.
Thus, the law of the forum retains presumptive weight in a tort case, but the presumption can
be overcome by a court's finding that two or more of the above-listed factors are satisfied.
This approach meets the goal of a higher degree of certainty, predictability and uniformity of
result. It also allows a court to more frequently apply the law with which it is most
familiarits own law. Yet, this approach allows for some flexibility in order to avoid
irrational and unjust results. See Foster v. Leggett, 484 S.W.2d 827, 829 (Ky. 1972) (When
the Court has jurisdiction of the parties its primary responsibility is to follow its own
substantive law. The basic law is the law of the forum which should not be displaced without
valid reasons).
[Headnote 4]
Applying this approach to the facts of the instant case, the plaintiffs brought the action in
Nevada so there is a presumption that Nevada law governs. An evaluation of the above-listed
factors indicates that the presumption is not overcome. The second factor is the only factor
that supports the use of Massachusetts law because the Motenkos live in Massachusetts and
the injury has been suffered in that state. None of the other factors are met because the
accident occurred in Nevada, Motenko and MGM are not residents of the same state and they
do not have any relationship separate from the tort. Thus, we conclude that Nevada law
should be applied to the instant action.
We hereby adopt the foregoing choice-of-law approach in determining the rights and
liabilities of the parties with respect to an issue in tort. We affirm the district court's order of
dismissal, however, because the district court's decision reached the correct result. Hotel
Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (If a decision below is
correct, it will not be disturbed on appeal even though the lower court relied upon the wrong
reasons).
Rose, J., concurs.
Young, J., concurring in the result:
Judge Cardozo may have indeed been correct in opining that the power of the precedent is
only the path of the beaten track. Benjamin Nathan Cardozo, The Growth of the Law 62
(1927). In the case presently under review, however, I am compelled to agree with Justice
Jackson that the mere fact that a path is a beaten one is a persuasive reason for following it.
Robert H. Jackson, Full Faith and CreditThe Lawyer's Clause of the Constitution, 45
Colum. L. Rev. 1, 26 {1945).
Constitution, 45 Colum. L. Rev. 1, 26 (1945). I find no compelling reason to abandon the
beaten path to adopt the significant relationship approach to resolve choice of law problems
because I am not convinced that the approach is analytically superior.
The distinctions that the significant relationship approach demands judges to make are
often murky, prompting an Oregon court to lament that applying the approach resembles
skeet shooting with a bow and arrow: a direct hit is likely to be a rarity, if not pure luck.
Fisher v. Huck, 624 P.2d 177, 178 (Or. Ct. App. 1981). One need look no further than to the
dissenting opinion to find cause for the lamentations of the Oregon court. After all, the
presence of the Motenkos in Nevada in 1990, followed by over forty million tourists in 1994,
was not a mere fortuity. The Motenkos were business invitees of the MGM, which is a
Nevada corporation. Thus, Nevada is the place where the injury, the conduct causing the
injury, and actions to redress the injury occurred. The vested rights approach, even if it is, as
one might infer from the dissenting opinion, a toothless old dog, retains a sense of smell keen
enough to determine in these circumstances that Nevada law should be applied.
The dissent is, however, distracted by different odors, leading it to what I believe is an
intolerable result. Applying the significant relationships test, the dissent concludes that the
law of Massachusetts, the domicile of the Motenkos' marriage, should be applied to determine
whether a loss of parental consortium is compensable. This, the dissent reasons, is because
Nevada has no interest in determining the intra-family rights of the Motenkos, even if the
state has an interest in the underlying cause of action.
This reasoning will no doubt come as a surprise to the MGM, its employees, and the vast
numbers of Nevada residents who are dependent upon the tourist industry. Considering that
compensation for interruption of the intra-family rights of the Motenkos will ultimately be
extracted from the pockets of Nevada citizens, I respectfully suggest that the distinction
drawn by the dissent is meaningless.
Nevada must protect its tourist industry as a matter of public policy. See NRS
463.0129(1)(a) (stating that [t]he gaming industry is vitally important to the economy of the
state and the general welfare of the inhabitants). Indeed, because millions of non-residents
regularly avail themselves of the exotic attractions of our state, it is safe to say that a
relatively greater proportion of non-residents are slipping on loose tiles in Nevada than they
are elsewhere. For this reason, I do not think it unreasonable to require non-resident tourists,
while they are in Nevada, to be subject to Nevada laws.
Adoption of the significant relationship approach hinders promotion of this public policy.
Furthermore, as the dissent recognizes, our legislature has not seen fit to afford the citizens of
this state the benefits of a cause of action for loss of parental consortium. Thus, Nevada
citizens are themselves barred from bringing such a claim in Nevada courts, and possibly in
other courts applying the significant relationship approach. Because Massachusetts has
modified the traditional vested rights approach, see Pevoski v. Pevoski, 358 N.E.2d 416, 417
(Mass. 1976) (applying interest analysis), Nevadans visiting Massachusetts should exercise
caution. Nevada children whose parents fall victim to bad clam chowder would conceivably
be unable to recover for loss of consortium in that state. This is an unjust result which the
vested rights approach, for all its faults, would not produce.
Our Nevada trial courts are also required to render justice in an inexpensive and speedy
manner. See NRCP 1 (stating that the rules of civil procedure shall be construed to secure
the just, speedy, and inexpensive determination of every action). The significant relationship
approach does little to help meet this requirement. At the time the significant relationship
approach was hatched, legal scholars recognized that an analysis of relevant interests can be
expected to cast an intolerable burden upon the overworked trial courts. Willis L. M. Reese,
Chief Judge Fuld and Choice of Law, 71 Colum. L. Rev. 548, 559 (1971). This is because
trial courts are required to analyze the relevant interests of each jurisdiction and party in order
to make a proper choice of law. In weighing relevant interests, trial courts must distinguish
between laws designed to influence conduct, allocate loss, and establish recovery after
liability is established. Each type of law gives rise to different governmental and individual
interests.
These various types of laws are all implicated, for instance, in an action to recover for
damages incurred in an alcohol-related auto accident, an all-too-common tort. If a
non-resident is struck in Nevada by a drunk driver, could the district court be forced to apply
a foreign dram-shop act? See Lea Brilmayer, Interest Analysis and the Myth of Legislative
Intent, 78 Mich. L. Rev. 392, 402-07 (1980). Should we apply a foreign dram-shop act if an
intoxicated non-resident hits a Nevada resident? If the intoxicated non-resident is a minor,
should we seek to apply possible common law recovery mechanisms found in his home state?
What about punitive damages? comparative fault statutes? strict liability variations? See John
B. Austin, A General Framework for Analyzing Choice-of-Law Problems in Air Crash
Litigation, 58 J. Air L. & Com. 909, 926-79 (1993) (hereinafter Austin).
The dissent provides an example of the surprises that may be encountered in determining
who is entitled to recover for damages. Should we apply Massachusetts law to determine
whether to place caps on recovery? How should the recovery be calculated? Does
Massachusetts hold a greater interest than Nevada in determining whether an award for loss
of parental consortium should be reduced to present value? A district court should not be
forced to answer these and many other similar questions, not only because of complexity and
expense but because of uncertainty and the possibility of manipulation. These drawbacks led
the Supreme Court of West Virginia to render the following candid admission:
[W]e remain convinced that the tradition rule [i.e., the vested rights approach], for all of
its faults, remains superior to any of its modern competitors. Moreover, if we are going
to manipulate conflicts doctrine in order to achieve substantive results, we might as
well manipulate something we understand. Having mastered marble, we decline an
apprenticeship in bronze.
Paul v. National Life, 352 S.E.2d 550, 556 (W. Va. 1986).
Moreover, the problems encountered in choosing the proper law grow exponentially when
many parties are involved. Complex tort litigation involving the significant relationship
approach has been characterized by one commentator as a lawyer's nightmare. Austin at
913. I suspect that the lasting trauma of this nightmare will be ultimately experienced by
litigants and the district courts, not lawyers. Litigants are the ones paying to establish what
interests are involved, through expert testimony and other means. This added expense and
accompanying uncertainty affects every stage of an action, from the prayer for relief, through
offers of settlement, to judgment, and favors the wealthy over the poor litigant.
These problems outweigh any comfort we may feel in knowing that the underpinnings of
our new-found approach are philosophically intimidating. Witness the reasoning of an early
proponent of the significant relationship approach: We emphasized that what we adopted
was not a rule, but a method of analysis that permitted dissection of the jural bundle
constituting a tort and its environment to determine what elements therein were relevant to a
reasonable choice of law. Conklin v. Horner, 157 N.W.2d 579, 581 (Wis. 1968). After
considering the pros and cons, however, I am inclined to agree with the Supreme Court of
West Virginia, which responded to Conklin as follows: That sounds pretty intellectual, but
we still prefer a rule. The lesson of history is that methods of analysis that permit
dissection of the jural bundle constituting a tort and its environment produce protracted
litigation and voluminous, inscrutable appellate opinions, while rules get cases settled
quickly and cheaply."
is that methods of analysis that permit dissection of the jural bundle constituting a tort and its
environment produce protracted litigation and voluminous, inscrutable appellate opinions,
while rules get cases settled quickly and cheaply. Paul, 352 S.E.2d at 554.
Presumably for these reasons, a clear consensus of jurisdictions does not appear to
embrace fully the significant relationship approach. Instead, many jurisdictions have devised
their own formulae for making a proper choice of law. See, e.g., Rice v. Nova Biomedical
Corp., 38 F.3d 909, 915 (7th Cir. 1994) (noting in Illinois that the law of the place of the
accident retains mild presumptive weight); Chrysler Corp. v. Skyline Indus. Services, Inc.,
528 N.W.2d 698, 702 (Mich. 1995) (refusing to adopt a significant relationship or any other
test, and recognizing that each case should be analyzed individually); O'Connor v. O'Connor,
519 A.2d 13, 19 (Conn. 1986) (following the vesting rights approach unless it would produce
an improper result). For the foregoing reasons, I respectfully submit that the vested rights
approach continues to be the best formula for Nevada.
Evidently feeling as I do, a large number of states remain unintimidated by the obscure
dicta of Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). See, e.g., Jackson v. Domtar
Industries, Inc., 35 F.3d 89, 92 (2nd Cir. 1994) (recognizing that Vermont still follows the
vested rights approach); Stokes v. Southeast Hotel Properties, Ltd., 877 F. Supp. 986, 995
(W.D.N.C. 1994) (recognizing continued use of the lax loci delicti principle in North
Carolina); Clark v. Associates Commercial Corp., 870 F. Supp. 1011, 1014 n.3 (D. Kan.
1994) (noting that Kansas continues to follow the vested rights doctrine); Mullings v. M.G.D.
Graphics Systems Group, 867 F. Supp. 1578, 1580 (N.D. Ga. 1994) (noting that Georgia
follows the vested rights doctrine); Rhee v. Combined Enterprises, Inc., 536 A.2d 1197, 1198
(Md. Ct. Spec. App. 1988) (affirming use of the vested rights approach in Maryland). Far
from doing away with the vested rights approach, Allstate in fact recognized its continued
use. See Allstate, 449 U.S. at 316 n.22.
I respectfully submit that the focus of this court's concern should be upon the needs of this
state, not upon whether this court is deemed to be progressive in the eyes of judicial
colleagues outside our borders. I would, therefore, affirm the district court's order.
Steffen, C. J., with whom Springer, J. agrees, dissenting:
The majority concludes that Nevada should abandon the vested rights approach to
determining choice of law in the area of torts, and then proceeds to adopt a hybrid rule that
amounts to little more than the vested rights doctrine with a twist of lime.
of torts, and then proceeds to adopt a hybrid rule that amounts to little more than the vested
rights doctrine with a twist of lime.
I am of the opinion that the overwhelming trend among sister jurisdictions in favor of the
most significant relationship doctrine is reflective of judicial sensitivity to the role of courts
in promoting just and fair decisions in the area of tort law. I therefore write separately in
dissent.
In theory, I need not criticize the old lex loci delicti (vested rights) rule, for the majority
claims that it is abandoning the rule in Nevada. In its place, the majority has adopted a
mathematical exercise that strongly defers to the vested rights rule absent a showing of an
overwhelming interest in another state. Because the majority has essentially left the vitality
of the vested rights doctrine intact, comment concerning the doctrine is warranted.
The United States Supreme Court fired a direct volley against the lex loci delicti doctrine
with compelling force:
While the place of the accident is a factor to be considered in choice-of-law analysis, to
apply blindly the traditional, but now largely abandoned [vested rights approach],
would fail to distinguish between the relative importance of various legal issues
involved in a lawsuit as well as the relationship of other jurisdictions to the parties and
the occurrence or transaction.
Allstate Ins. Co. v. Hague, 449 U.S. 302, 316 n.22 (1981). Based upon the quoted material
alone, the quality of the compaction of the constitutional soils upon which the vested rights
doctrine rests must be questioned, and the reason is obvious. Individual justice will frequently
be deserved in a jurisdiction where judicial blinders prevent a court from considering the
various factors that should be weighed in determining conflicts of laws issues.
In Clark v. Clark, 222 A.2d 205, 207 (N.H. 1966), a fitting epitaph to the moribund lex
loci doctrine was written:
That old rule [lex loci delicti] is today almost completely discredited as an unvarying
guide to choice of law decisions in all tort cases. . . . No conflict of laws authority in
America today agrees that the old rule should be retained. See e. g. texts and articles by
Cavers, Ehrenzweig, Hancock, Leflar, Morris, Reese, Rheinstein, Trautman, Traynor,
von Mehren and Weintraub, to mention only a few. No American court which has felt
free to re-examine the matter thoroughly in the last decade has chosen to retain the old
rule. It is true that some courts, even in recent decisions, have retained it. But their
failure to reject it has resulted from an unwillingness to abandon established
precedent before they were sure that a better rule was available, not to any belief
that the old rule was a good one.
from an unwillingness to abandon established precedent before they were sure that a
better rule was available, not to any belief that the old rule was a good one. The only
virtue of the old rule, apart from the fact of its pre-existence, was that it was easy for a
court to apply. It was easy to apply because it was a mechanical rule. It bore no
relationship to any relevant consideration for choosing one law as against another in a
torts-conflicts case.
(Citations omitted.)
The majority's solution to the vested rights doctrine is a hybrid that retains allegiance to
the old doctrine unless a party can demonstrate an overwhelming interest in the application
of another state's law. In the process of leaching ambiguity from the term overwhelming,
the majority lists four factors similar to those used in the Restatement (Second) of Conflict of
Laws, 145, and then quantitatively concludes that an overwhelming interest exists if two
or more of the factors are satisfied.
Unfortunately, the process of counting factors ignores qualitative contacts that should have
a place of preeminence in choice-of-law analyses. The most significant relationship doctrine
is designed to achieve a fair and just resolution to choice-of-law disputes by weighing the
quality, not the quantity, of each state's interest in a disputed issue. Thus, in evaluating the
contacts involved in an analysis of significant relationships, the focus is on the quality of
contacts rather than their quantity. Schwartz v. Schwartz, 447 P.2d 254, 257 (Ariz. 1968).
Appropriately, the Restatement assigns no particular weight to any of the factors involved in
the analysis. Indeed, one particularly strong interest can overcome three weaker interests.
The court's analysis . . . does not turn on the number of contacts the event had with each
jurisdiction, but, more importantly, on the qualitative nature of those contacts . . . . Crim v.
International Harvester Co., 646 F.2d 161, 163 (5th Cir. 1981); see also Moore v. Montes,
529 P.2d 716 (Ariz. 1975) (indicating that clearly . . . it is a qualitative, not quantitative,
analysis of the contacts which is crucial to the resolution of the choice-of-law question).
A qualitative evaluation under the most significant relationship doctrine promotes
consideration of differing state policies and interests underlying the particular issue as factors
for making the choice-of-law decision. Griffith v. United Air Lines, Inc., 203 A.2d 796 (Pa.
1964). Finally, the law of the state whose quality of contacts are the most significant will be
applicable in resolving the disputed issue. Johnson v. Spider Staging Corp., 555 P.2d 997
(Wash. 1976); see also Schwartz, 447 P.2d at 257.
Turning now to the majority's solution for Nevada, we are informed that the law of the
forum (lex loci) will apply in tort cases unless another state has an overwhelming interest in
an issue. A state other than the forum state will have an overwhelming interest in a disputed
issue if a party can demonstrate that the other state satisfies two or more of the following four
factors:
(a) it is the place where the conduct giving rise to the injury occurred;
(b) it is the place where the injury is suffered;
(c) the parties have the same domicile, residence, nationality, place of incorporation,
or place of business and it is different from the forum state;
(d) it is the place where the relationship, if any, between the parties is centered.
The majority claims to have created a formula that will retain predictability, certainty and
uniformity of result in most cases, but will allow sufficient flexibility to avoid unjust and
irrational results in those few cases demanding deference to the law of another state. In
disagreeing, I first note that the majority has changed the wording of the Restatement in three
of the four factors quoted above sufficiently to create ambiguity and uncertainty. I will
comment on the variations used by the majority because we are given no purpose or reasons
for their adoption, and aside from the ambiguities they create, their use will retard
opportunities for the promotion of uniformity in the meaning of terms and the law which they
support, both locally and on a national level.
Factor (a) in the majority's formula roughly corresponds with factor (b) in the Restatement
which reads the place where the conduct causing the injury occurred. (Emphasis added.) By
substituting the phrase giving rise to for the word causing, the majority creates an
ambiguity arising out of an equivocation not normally used to describe causation, which is an
element of a cause of action sounding in tort. Several factors somewhat remote from the
causative event could give rise to or contribute to an injury, and I fail to see the rationale
for introducing terminology that is conducive to uncertainty.
Factor (b), above, appears in the Restatement under subsection (a) as the place where the
injury occurred. (Emphasis added.) The majority, in changing the word occurred to the
word suffered, has arguably altered the basic meaning of the factor. An injury can occur in
the forum state, but be primarily suffered in the injured party's place of domicile. Indeed,
based upon the finding by the majority that the injury was suffered by the Motenkos in
Massachusetts because they reside there, the majority seemingly interprets their own
language to refer to the state where the impact of the injury is most strongly or
enduringly felt.
Motenkos in Massachusetts because they reside there, the majority seemingly interprets their
own language to refer to the state where the impact of the injury is most strongly or
enduringly felt. Such an interpretation would be highly relevant in a qualitative evaluation of
the impact on another state of an injury occurring in the forum state. Since the majority's
formula leaves no room for qualitative analysis, however, it would appear that this factor is
simply viewed by the majority, at least in the present case, as a synonym for place of
residence. Thus, if a party injured in Nevada will do most of his or her suffering in another
state, that factor will be satisfied. Here, although both the mother who sustained personal
injury, and her son, Allen, who suffered the injury occurring through loss of parental
consortium, were in Las Vegas at the time of the occurrence upon which liability is based,
their home was in Massachusetts, where they would continue to feel the loss of parental
consortium. Although I do believe that the Restatement language referring to the place where
the injury occurred could be viewed, at least under the circumstances of the instant case, as
being synonymous with the majority's use of the term suffered, I see little reason to
introduce a term that will not benefit from developing and refining decisional law throughout
the nation.
The majority's factor (c) is vastly more restrictive than the corresponding language under
factor (c) of the Restatement, which states the domicile, residence, nationality, place of
incorporation and place of business of the parties shall be a contact taken into account in
determining the law applicable to an issue. The majority would require the litigants to have
commonality of domicile, etc., and the place commonly shared would have to be outside the
forum state, that is, outside the State of Nevada. Again, the majority provides no explanation
for the substantial change wrought by their choice of language, and I see none other than to
assure continued vitality in the lex loci delicti doctrine.
Factor (d) as adopted by the majority is identical to the same factor written in the
Restatement.
In analyzing the four factors adopted by the majority, the majority concludes that only
factor (b) (the place where the injury is suffered) counts toward the application of
Massachusetts law, therefore Massachusetts is one factor short of having its local law apply
in resolving the issue of loss of parental consortium. Unfortunately, the majority has stacked
the deck to the point where the place of the tort will continue to determine the choice of law
in the overwhelming majority of the cases.
Assuming, with some uncertainty, that factor (a) will be construed by the majority to mean
the place where the conduct causing the injury occurred, then invariably, the only occasion
when the local law of another state might apply in the resolution of a disputed issue
would be where all parties share the same domicile, residence, nationality, etc., and the
shared place is outside of Nevada.
causing the injury occurred, then invariably, the only occasion when the local law of another
state might apply in the resolution of a disputed issue would be where all parties share the
same domicile, residence, nationality, etc., and the shared place is outside of Nevada. Indeed,
if the instant case had not presented an issue of parental consortium, factor (b), the place
where the injury is suffered, may have been construed to mean the place where the injury
occurred, i.e., Nevada. Moreover, in cases where personal injury and the extent thereof is
suffered (occurred?) in Nevada, and forms the only basis for liability, even the commonality
of the place of domicile, etc., outside of Nevada would not provide a sufficient basis for
applying the local law of another state (depending, of course, on the interpretation given to
the word suffered). In short, the flexibility written into the new mathematical rule by the
majority is far more illusory than real, and provides little consideration to the policies and
interests implicated in the just resolution of issues that require choice-of-law decisions.
If the majority had adopted the position taken by the Restatement, the following analysis
would apply:
The place where the injury occurred
This factor could arguably favor applying the law of either Nevada or Massachusetts in
resolving the Motenkos' claim for loss of parental consortium. Nevada could be considered
the place of injury because Beth Motenko was injured in Las Vegas and a claim for loss of
consortium is derivative of that injury. The local law of Massachusetts could also qualify
under this factor because that is the place of the Motenkos' domicile and where the son, Allen
Motenko, will primarily suffer the loss of his mother's consortium.
Loss of parental consortium is a relatively new cause of action and much of the analysis
concerning the place of injury regarding this claim would parallel that of its analogue, loss of
spousal consortium. A minor child has a strong interest in his parent's society, an interest
closely analogous to that of the spouse in a normal loss of consortium claim. Ferriter v.
Daniel O'Connell's Sons, Inc., 413 N.E.2d 690, 692 (Mass. 1980).
An argument favoring the application of Nevada law is that the law of the place of the
injury to the spouse (parent) applies because that is where the last event necessary to create
liability occurred. Sesito v. Knop, 297 F.2d 33 (7th Cir. 1961); Jordan v. States Marine Corp.,
257 F.2d 232 (9th Cir. 1958). An action for loss of consortium can also be viewed as
derivative of the primary harm to the physically injured spouse (parent). Miller v. Holiday
Inns, Inc.,
Holiday Inns, Inc., 436 F. Supp. 460 (E.D. Va. 1977) (concluding that because of the
derivative nature of loss of consortium claims, the location of the marital domicile is
irrelevant and the claim must be decided under the same law as the main claim). These
authorities support the proposition that in an action for loss of consortium, the law of the
place of the primary physical injury to the parent would apply because the action is derivative
of the parent's action for personal injury.
The argument favoring the application of Massachusetts' law notes that although the
conduct causing the injury occurred in Nevada, the injury will be suffered primarily where the
relationship between Allen Motenko and his injured mother is domiciled. Equally applicable
to loss of parental consortium is the ruling in Avis Rent-A-Car Systems v. Abrahantes, 559
So. 2d 1262, 1264 (Fla. App. 1990), that
[c]laims for loss of consortium are governed by the law of the state where the marriage
is domiciled, rather than by the law of the state where the [physical] injury occurred. . .
. The state in which the marriage is domiciled has a greater interest . . . in a loss of
consortium case, than does the state where the incident occurred.
See also Linnell v. Sloan, 636 F.2d 65 (4th Cir. 1980) (concluding that, although the physical
injury was suffered in Iowa, Minnesota has the most significant relationship with the issue of
an action for loss of consortium); Wright v. Minter, 736 F. Supp. 1024, 1028 (W. D. Mo.
1990) (the majority view, and the more recent trend, is that the law of the family domicile
governs a conflicts question in an action for loss of either spousal or parental consortium);
Berghammer v. Smith, 185 N.W.2d 226 (Iowa 1971) (within the District of Columbia's
choice-of-law rules, the law of the state of the marital domicile rather than the law of the state
where the wrong occurred should control a loss of consortium action).
I am of the opinion that under the most significant relations test, this factor concerning the
place where the injury occurred should be dispositive in applying the local law of the state of
Massachusetts to the resolution of this issue. Unfortunately, since the majority looks only to
quantity of contacts rather than quality, this most significant of all contacts falls by the
wayside.
The place where the conduct causing the injury occurred
This factor favors the application of Nevada law. The conduct that resulted in the loss of
parental consortium occurred in Las Vegas. In my view, however, this factor does not
approach the significance of the place where the injury to the parent-child relationship
occurred.
significance of the place where the injury to the parent-child relationship occurred.
The domicile, residence, nationality, place of incorporation and place of business of the
parties
This factor should be of no consequence because it applies to both Nevada and
Massachusetts. The Desert Inn is a subsidiary of MGM, Inc. and is incorporated and
domiciled in Nevada, whereas the Motenko family is domiciled in Massachusetts. Note,
however, that because of the change in the language of the Restatement wrought by the
majority, this factor would be counted against the Motenkos in the wooden application of the
majority's mathematical formula.
The place where the relationship, if any, between the parties is centered
Because there is no relationship between Allen Motenko and the Desert Inn, neither has a
superior interest and this factor becomes a non-factor. Again, however, because of the
majority's wooden formula, this factor actually weighs against Allen Motenko. Under a
qualitative analysis embraced by the majority of courts that have felt unencumbered by the
legally unsound lex loci delicti doctrine, the local law of Massachusetts clearly has the most
significant relationship to the Motenko's claim for loss of parental consortium. Unfortunately,
the majority has given lip service to abandoning the old vested rights doctrine, but in reality
has embraced it anew under the strictures of the mathematical formula the majority has
crafted from the rule of reason and fairness adopted by the Restatement.
I am strongly of the opinion that this court should adopt the Restatement (Second)
Conflicts of Laws most significant relationship approach as the most equitable method for
resolving choice-of-law problems in tort cases. In my view, the majority has created a
wooden hybrid rule that essentially retains the evils of the vested rights doctrine, and provides
precious little promise for the resolution of conflicts issues in accordance with judicial
sensitivity to considerations of justice and fairness. It is true that the majority's rule will
provide ease of application, but I suggest that courts of law should have no part in exalting
easily applied rules over less facile methods that are calculated to secure a just and fair result
in the resolution of disputes. Ease of application alone should never be the basis for adopting
rules to be used in determining the rights of litigants.
For the reasons discussed above, I would reverse the order entered by the district court and
allow the Motenkos to pursue Allen's claim for loss of parental consortium based upon the
local law of Massachusetts.
Allen's claim for loss of parental consortium based upon the local law of Massachusetts. I
therefore respectfully dissent.
____________
112 Nev. 1054, 1054 (1996) Washington v. State
ERIC LEE WASHINGTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24034
August 16, 1996 921 P.2d 1253
Proper person appeal from an order of the district court denying appellant's petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Following dismissal of petitioner's direct appeal for failure to file timely notice of appeal,
petitioner sought post-conviction relief. The district court denied relief, and petitioner
appealed. The supreme court held that: (1) prosecutor's questions constituted impermissible
comment on petitioner's post-arrest silence; (2) failure of petitioner's trial counsel to object to
prosecutor's impermissible comments on petitioner's post-arrest silence constituted ineffective
assistance of counsel; (3) prosecutor's closing argument which questioned why petitioner did
not present certain witnesses impermissibly shifted burden of proof to petitioner; and (4)
failure of petitioner's trial counsel to object to prosecutor's impermissible closing argument
constituted ineffective assistance of counsel.
Order denying petition vacated, convictions reversed.
Eric Lee Washington, In Proper Person, Carson City, for Appellant.
1. Criminal Law.
Untimely notice of appeal fails to vest jurisdiction in appellate court. NRAP 11.
2. Criminal Law.
Prosecutor's asking petitioner whether he had informed police of his story that he did not participate in attack on victim constituted
impermissible comment on petitioner's post-arrest silence, where victims of alleged attack provided only evidence against petitioner,
other than police officer's limited testimony that petitioner admitted to being at scene of crime. U.S. Const. amend. 14.
3. Criminal Law.
Failure of petitioner's trial counsel to object to prosecutor's impermissible comments on petitioner's post-arrest silence constituted
ineffective assistance of counsel. U.S. Const. amend. 6.
Due process clause of Federal Constitution forbids prosecution from commenting on defendant's invocation of right to remain
silent after arrest. U.S. Const. amend. 14.
5. Criminal Law.
Appellate court will not reverse conviction when state comments on post-arrest silence if comments were harmless beyond
reasonable doubt.
6. Criminal Law.
Comments on post-arrest silence are not harmless in cases which rest solely on defendant's word versus victim's word.
7. Criminal Law.
Prosecutor's closing argument which questioned why petitioner did not present certain witnesses who petitioner mentioned in his
testimony and, possibly, could support his version of facts, coupled with prosecutor's comments on petitioner's post-arrest silence,
impermissibly shifted burden of proof to petitioner.
8. Criminal Law.
Failure of petitioner's trial counsel to object to prosecutor's impermissible closing argument which questioned why petitioner did
not present certain potentially exculpatory witnesses constituted ineffective assistance of counsel. U.S. Const. amend. 6.
9. Criminal Law.
Prosecution comments on failure to present witnesses or to produce evidence unconstitutionally shifts burden of proof to defense.
OPINION
Per Curiam:
Appellant Eric Lee Washington challenges the district court's denial of his petition for post-conviction relief. Washington contends that
his trial counsel was ineffective for failing to object to the prosecutor's comments on his post-arrest silence and his failure to call witnesses
at trial. Because the prosecutor's comments shifted the burden of proof to Washington, we reverse Washington's conviction.
FACTS
On November 14, 1989, the state filed an information charging appellant Eric Lee Washington and his co-defendant Willie T. Smith
each with one count of burglary and two counts of robbery.
1
The state accused Washington and Smith of
entering a home with four other men and beating and robbing the occupants. The state
prosecuted the other assailants separately.
The district court conducted a jury trial on January 4 and 5, 1990. The state presented only
three witnesses in support of its case: the two victims and the arresting police officer. The
victims testified that at about 4:00 a.m. on October 10, 19S9, they heard a knock on the
door of their house.
__________

1
Washington is the only appellant in this appeal.
testified that at about 4:00 a.m. on October 10, 1989, they heard a knock on the door of their
house. As victim Mario Johnson reached for the door, six men stormed the house and began
beating Mario and harassing Mario's girlfriend Rose Gruba. Mario testified at trial that he saw
Willie Smith and Washington rush into the house. Mario was positive that he saw Smith and
Washington because he had known them for several years. Mario testified that Washington
did not hit him during the melee.
Mario testified that Rose retreated to the kitchen when the group stormed the house.
Although he could not see well because of the beating, Mario stated that he heard Washington
and Willie Smith go into the kitchen toward Rose. Rose eventually escaped through a back
door and called the police.
After beating Mario, the group carried him into the bathroom and tossed him into the bath
tub. Mario discovered after the group left that at least $25 was missing. Mario did not see
anyone take the money.
Rose testified that she ran into the kitchen when she saw the group crash through the front
door. According to Rose, Willie Smith approached her in the kitchen and hit her on the head.
Willie then put Rose in a choke hold. Rose bit Willie's arm and attempted to swing a coffee
pot at him. Willie ordered Rose to leave the apartment through the back door.
Rose discovered after the incident that $80 was missing from her purse. She did not see
anyone steal the money. Rose testified that she did not see Washington come into her home.
In addition, Rose did not know Washington and she could not identify him in court.
Police Officer Dave McArthur testified that he investigated the crime scene. Mario
informed McArthur that Willie Smith and Washington were members of the group that had
attacked him. Contrary to Rose's testimony, McArthur testified that Rose told him that
Washington, not Willie Smith, was the person who had hit her while she was in the kitchen.
McArthur testified further that he arrested Washington in front of Washington's home two
or three hours after the incident. McArthur read Washington the Miranda warnings.
According to McArthur, Washington then admitted to being at the crime scene earlier in the
evening but that he didn't remember what had happened, because he'd been drunk or under a
controlled influence . . . .
McArthur indicated that the contents of the police report contradicted portions of Mario's
and Rose's trial testimony. The police report stated that Mario and Rose were watching
television when the group attacked them. Mario and Rose testified at trial that they did not
own a television. The police report also indicated that Rose, rather than Mario, answered
the door.
cated that Rose, rather than Mario, answered the door. In addition, Rose informed McArthur
that Washington and not Willie Smith attacked her.
Washington testified that he was outside Mario's and Rose's house at approximately 2:15
a.m. with a group of people. He saw others, including Willie Smith, engaging in a discussion
with Mario. The group was harassing Rose and Mario. Washington indicated that two men
named Big Moe and Richard Lee were with the group. Although Washington admitted
that he entered the house briefly, he denied participating in the discussion.
The group left Mario's and Rose's house and went two doors down the street to
Washington's residence.
2
The group listened to music and danced for a short time. The men
then left while Washington stayed at home.
Washington testified that at 4:15 a.m. he heard noises coming from Mario's and Rose's
house. Washington walked to the house and saw members of the group that had congregated
earlier beating up Mario. Someone mentioned during the fracas that the police had been
called. Washington testified that he calmly broke up the fight and told the assailants to flee
before the police arrived. Washington then returned to his house.
The police arrested Washington without incident at his home. Washington asserted that
Officer McArthur did not arrest him, but that McArthur's partner did. Washington contended
that McArthur detained Washington's cousin, Clint Smith, while the other police officer read
Washington the Miranda warnings.
On cross-examination, the prosecutor challenged Washington's version of his arrest.
Washington discounted Officer McArthur's testimony that he had informed the police that he
could not remember the events of the evening because he was intoxicated. According to
Washington, the only statement he made to the police was his request to take him to Mario's
and Rose's house to give them an opportunity to identify him.
The prosecutor challenged Washington's story:
Q You had your Miranda rights read to you?
A Yes, I did.
Q And you understood them?
A Yes, I did.
Q Did you talk to the officer?
A Not beforenot after he read me my rights.
Q Did you ask for an attorney at that point?
A No. I didn't.
__________

2
Washington had lived near Mario and Rose for only a few days.
Q From the time that you had your Miranda rights read to you till today, have you
ever told the police officer or someone in authority your story?
A I told my lawyer. I never told the police officer.
. . .
Q And you didn't make a statement that night that these guys were beating up
[Mario and Rose]?
A No, I didn't. No, I didn't.
Q When you were booked into the jail when you were arrested on this charge, you
didn't tell the booking officer your story; did you?
A No, I didn't. Iwho's the booking officer?
Q Did you tell anybody in the jail your story?
A Ithe first officer I talked to was a Jay Smith, the one that came into the house
and put the handcuffs on me, and the only thing I told him wasI asked him to take me
back down there so they can identify me, cause I was sure he was mistaken.
During closing arguments, the prosecutor contended that Washington had not supported
his defense. The prosecutor attacked Washington's story by noting that some of the people
Washington mentioned in his testimony had not testified at trial: Where's Big Moe? Where's
Richard T.? If Eric [Washington] was living with his cousin and his cousin was there, where
is Clint Smith? What has the state proved?
The jury convicted Washington and Willie Smith of all the charges. The district court
entered a judgment of conviction against Washington on February 14, 1990, of one count of
burglary and two counts of robbery. The district court sentenced Washington to serve in the
Nevada State Prison a term of four years for burglary and two terms of six years each for the
robbery convictions. All prison terms run concurrently.
[Headnote 1]
Washington's counsel filed an untimely notice of appeal on June 13, 1990. That appeal
was never docketed in this court.
3

Washington filed a petition for post-conviction relief on February 4, 1991. The state
conceded that Washington's trial counsel was ineffective for filing a late notice of appeal. See
Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). The district court appointed counsel to
represent Washington and
__________

3
The clerk of the district court should have transmitted the record on appeal even though Washington filed a
late notice of appeal. See NRAP 11. That appeal is technically now pending before this court. An untimely
notice of appeal fails to vest jurisdiction in this court. Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696
P.2d 998 (1985). Accordingly, we lack jurisdiction to review Washington's direct appeal and we dismiss that
appeal.
appointed counsel to represent Washington and addressed the claims Washington could have
raised on direct appeal in addition to the claims he raised in his post-conviction petition.
The district court denied Washington's petition on April 27, 1992. This proper person
appeal followed.
4

DISCUSSION
I. Whether trial counsel was ineffective for failing to object to the prosecutor's comments on
Washington's post-arrest silence
[Headnotes 2, 3]
Washington contends that the prosecutor shifted the burden of proof by commenting on
Washington's post-arrest silence. Under Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994),
the district court properly addressed those issues appellant could have raised on direct appeal
because trial counsel was ineffective for failing to perfect Lozada's appeal. Counsel's failure
to object to the prosecutor's comments, however, waived any challenges to those comments
for purposes of a direct appeal. We address the merits of Washington's contention despite
counsel's failure to object because Washington contended that his trial counsel was
ineffective for failing to object to the prosecutor's comments.
The prosecutor commented on Washington's invocation of his right to remain silent when
he asked Washington whether he had told anyone his story that he did not participate in the
robbery and beating. The prosecutor specifically asked Washington, From the time that you
had your Miranda rights read to you till today, have you ever told the police officer or
someone in authority your story? Washington indicated he had not. The prosecutor then
asked if Washington had made a written statement to police. Washington replied he had not.
The prosecutor then asked if Washington had told his story to the booking officer or to
anyone else in jail. Washington said no.
[Headnote 4]
The Due Process Clause of the Federal Constitution forbids the prosecution from
commenting on a defendant's invocation of the right to remain silent after arrest. Doyle v.
Ohio, 426 U.S. 610 (1976); Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995). In this
case, the prosecutor directly commented on Washington's silence after his arrest.
__________

4
Washington apparently has satisfied his sentences. Washington was sentenced in February of 1990 to three
concurrent terms, the longest of which was six years. This appeal is not moot, however, because collateral
consequences attach to judgments of conviction. Arterburn v. State, 111 Nev. 1121, 1124 n.1, 901 P.2d 668, 670
n.1 (1995).
[Headnotes 5, 6]
This court will not reverse a conviction when the state comments on post-arrest silence if
the comments were harmless beyond a reasonable doubt. Coleman, 111 Nev. at 664, 895 P.2d
at 657. However, comments on post-arrest silence are not harmless in cases which rest solely
on the defendant's word versus the victim's word. Id. at 664, 895 P.2d at 657-58. Other than
Officer McArthur's limited testimony, the victims provided the only evidence against
Washington, and even their testimony was not overwhelming. Mario testified that
Washington did not hit him or steal anything. Although according to Officer McArthur, Rose
informed him that Washington had beaten her, Rose testified at trial that she did not know
Washington and that Willie Smith, not Washington, had beaten her.
The state's case contained other inconsistencies. The police report differs in several
important respects from the victims' testimony. Rose misidentified Washington in the police
report. In addition, contrary to the police report, both Mario and Rose testified that they were
not watching television when the attack occurred. Mario also testified differently at the
preliminary hearing about who hit him first.
The state contends that the prosecutor properly commented on Washington's post-arrest
silence because Washington's testimony conflicted with Officer McArthur's testimony.
McArthur testified that Washington stated that he was at Mario's and Rose's house but that he
was too intoxicated to remember what happened. Washington denied making this statement.
In Anderson v. Charles, 447 U.S. 404, 408 (1980), the United States Supreme Court ruled
that the ban on comments on post-arrest silence does not apply to cross-examination that
merely inquires into prior inconsistent statements. Such questioning makes no unfair use of
silence, because a defendant who voluntarily speaks . . . has not been induced to remain
silent. The Court ruled that comments on post-arrest silence are unconstitutional only when
the comments are designed to draw meaning from silence. Id. at 409.
The prosecutor's comments in this matter were not directed to Washington's inconsistent
statements. The prosecutor asked Washington whether he had informed the police officer
about his intoxication and Washington denied making such a statement. Not satisfied with
this reply, the prosecutor went beyond commenting on the inconsistent statements and
proceeded to attack Washington's credibility by asking him whether he had informed the
police of his story that he did not participate in the attack. This questioning was designed to
draw meaning from Washington's silence and was directed to Washington's defense
theory, not to inconsistent statements.
Washington's silence and was directed to Washington's defense theory, not to inconsistent
statements.
Given the limited evidence against Washington, trial counsel unreasonably failed to object
to these comments. In addition, the prosecutor's comments prejudiced the defense because
they shifted the burden of proof to Washington. Counsel was ineffective for failing to object
to these comments. Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471
U.S. 1004 (1985).
II. Whether trial counsel was ineffective for failing to object to the prosecutor's comments
regarding Washington's failure to present witnesses
[Headnotes 7, 8]
During closing arguments, the prosecutor also commented on three persons who
Washington mentioned in his testimony but who Washington did not call to testify at trial.
Washington stated that Big Moe and Richard T. were with the group that had harassed
Rose prior to the attack. Washington also testified that his cousin Clint Smith was present
when he was arrested. The prosecutor inquired during closing arguments: Where's Big Moe?
Where's Richard T? If Eric [Washington] was living with his cousin and his cousin was there,
where is Clint Smith? What has the state proved?
[Headnote 9]
Prosecution comments on the failure to present witnesses or to produce evidence
unconstitutionally shift the burden of proof to the defense. Ross v. State, 106 Nev. 924, 803
P.2d 1104 (1990). Washington's counsel did not object to the prosecutor's comments.
Although the prosecutor's comments on Washington's failure to call witnesses were brief,
they were prejudicial when coupled with the prosecutor's comments on Washington's
post-arrest silence. As the facts indicate, this case was close. The prosecutor's comments on
the failure to call witnesses and Washington's post-arrest silence shifted the burden of proof
to Washington and may have misled the jury into believing that Washington had a burden to
prove his innocence. Counsel was ineffective for failing to object to these comments. Warden
v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004 (1985).
CONCLUSION
Because the prosecution shifted the burden of proof to Washington by improperly
commenting on his post-arrest silence and his failure to call witnesses, we vacate the
district court's order denying Washington's petition for post-conviction relief.
and his failure to call witnesses, we vacate the district court's order denying Washington's
petition for post-conviction relief. We reverse Washington's convictions.
5

____________
112 Nev. 1062, 1062 (1996) Mack v. Ashlock
DARREN MACK, Appellant, v. DEBRA LYN ASHLOCK, Respondent.
No. 28144
August 16, 1996 921 P.2d 1258
Appeal from an order of the district court denying a motion to permit children to be
enrolled at school of non-custodial father's choosing and granting custodial mother's request
for attorney's fees. Second Judicial District Court, Washoe County; Charles M. McGee,
Judge.
Ex-husband filed a motion requesting court's authority to enroll his children at a private
school at his expense. The district court denied motion to permit children to be enrolled in
school of noncustodial father's choosing and granted custodial mother's request for attorney
fees. The supreme court, Young, J., held that district court abused its discretion by requiring
ex-husband to prove by clear and convincing evidence that total social and academic
environment that children would enjoy by going to private school outweighed some of other
considerations of children going to public school.
Silverman & Decaria, Chtd. and Whitney Selert, Reno, for Appellant.
Skelly & Sheehan, Reno, for Respondent.
1. Divorce.
District court abused its discretion by requiring noncustodial ex-husband, who wished to send his children to private school at his
own expense, to prove by clear and convincing evidence that total social and academic environment that children would enjoy by going
to private school outweighed some of the other considerations of children going to public school. Absent a clear legislative intent to the
contrary, standard of proof in the civil matter was a preponderance of the evidence.
2. Divorce.
While issue of children's enrollment in a private school, as requested by ex-husband, was now a moot issue because
school year had already begun, supreme court deemed it necessary to address issue of correct standard of
proof to apply to ex-husband's request that children be placed in a private school inasmuch as district
court's order indicated that ex-husband could revisit the motion in the future.
__________

5
Given our disposition of this appeal, we need not address Washington's remaining contentions.
The Honorable Thomas L. Steffen, Chief Justice, did not participate in the decision of this appeal.
requested by ex-husband, was now a moot issue because school year had already begun, supreme court deemed it necessary to address
issue of correct standard of proof to apply to ex-husband's request that children be placed in a private school inasmuch as district
court's order indicated that ex-husband could revisit the motion in the future.
3. Divorce.
District court's failure to mention its basis for granting ex-wife's request for attorney fees on ex-husband's motion to have children
enrolled in a private school, rendered supreme court unable to determine if award of attorney fees was appropriate.
OPINION
Appellant Darren Mack (Mack) and respondent Debra Lyn Ashlock (Ashlock) were previously married and have two children,
Jory Daine Mack (Jory) and Jaqueline Elise Mack (Elise), from their marriage. Mack and Ashlock have joint legal custody of their
children. Ashlock has primary physical custody of the two children.
In August 1995, Mack filed a motion with the district court requesting the court's authority to enroll his children at Cambridge
Montessori School (Cambridge), at his expense. On August 24, 1995, counsel for Mack and Ashlock met in the district judge's chambers
to discuss the motion. On November 22, 1995, the district judge entered his order denying Mack's motion and awarding Ashlock attorney's
fees.
Mack appeals, arguing that (1) the district court erred by requiring the non-custodial parent to overcome, by clear and convincing
evidence, a decision of the primary custodial parent; (2) the district court erred by failing to give proper consideration to the children's best
interests regarding which school the children should attend in the fall of 1996; and (3) the district court erred by improperly awarding
attorney's fees to Ashlock.
For the reasons articulated below, we reverse the district court's order and remand this case to the district court with instructions.
FACTS
Mack and Ashlock were divorced on March 18, 1991. The terms of the marital settlement agreement (the agreement) indicate that
Mack and Ashlock have joint legal custody of Jory and Elise. The agreement further provided that Ashlock has primary physical custody of
the children. Additionally, the agreement provides that [t]he Mother agrees to consult with the Father on such matters as surgery, major
medical treatment, selection of schools and substantial disciplinary matters with a view to arriving at a harmonious
policy calculated to promote the best interests of our children."
selection of schools and substantial disciplinary matters with a view to arriving at a
harmonious policy calculated to promote the best interests of our children.
According to Mack, he was not entirely happy with his children's public school, Pleasant
Valley Elementary School (Pleasant Valley), and wanted the children to attend private
school. In July 1995, Mack began searching out private schools for the children to attend that
fall. In mid-August 1995, Mack informed Ashlock that he would provide her with
information on two private schools, Trinity Montessori and Cambridge.
Ashlock told Mack that she was open to the possibility of the children attending private
school in the future. However, due to the last minute nature of Mack's attempt at changing
the children's schooling, Ashlock was reluctant to change the children's schools for the
1995-96 school year. Ashlock wanted to consider the change of schools for the 1996-97
school year after she had a chance to fully examine the prospective schools. Additionally,
Ashlock contends that Mack's last minute decision to change the children's school would
result in a hardship upon her and her family due to the transportation required to and from
Cambridge.
Ashlock claims that she never refused to receive any information on the schools, attend
interviews at the schools, provide basic data regarding the children or discuss the children's
future enrollment at Cambridge, as alleged by Mack. Ashlock further contends that she
needed additional time to examine the schools because she heard some negative comments
about the schools.
An impasse regarding the children's schooling resulted, prompting Mack to motion the
district court to compel Ashlock to allow the children to attend Cambridge.
1
On August 24,
1995, arguments from Mack's and Ashlock's counsel were heard in the district judge's
chambers. During the hearing, the district judge stated:
I know of no guidelines from our own Supreme Court, but I can tell you how I feel
about it, especially considering the timing and the limited opportunity to try to compare
the merits of both sides of this case. If I have a primary custodian who shows the kind
of unusual concern that Mrs. Ashlock seems to show and who made what sounds to me
like an intelligent choice, I think I would have to go beyond probable cause to
something like a clear and convincing evidence standard that the overall academic
and social experience for the children would be clearly superior in a school chosen
by the non-primary physical custodian, and I simply don't have that kind of
evidence available from this limited hearing to be able to say that Jory and Elise are
going to have such a better experience at [Cambridge] Montessori, even though it
enjoys a wonderful reputation in this community, that disrupting them, having them
transported on every day all the way across town, interrupting some of the
socializations that occurs, that purportsI'm not at this point comfortable that the
kind of clearly superior tests that I've enunciated here has [sic] been met, and I'm
not going to force Mrs.
__________

1
Jory, born August 9, 1988, was scheduled to begin second grade at Pleasant Valley in September 1995.
Jacqueline, born February 17, 1990, was scheduled to begin kindergarten at Pleasant Valley in September 1995.
evidence standard that the overall academic and social experience for the children
would be clearly superior in a school chosen by the non-primary physical custodian,
and I simply don't have that kind of evidence available from this limited hearing to be
able to say that Jory and Elise are going to have such a better experience at
[Cambridge] Montessori, even though it enjoys a wonderful reputation in this
community, that disrupting them, having them transported on every day all the way
across town, interrupting some of the socializations that occurs, that purportsI'm not
at this point comfortable that the kind of clearly superior tests that I've enunciated here
has [sic] been met, and I'm not going to force Mrs. Ashlock to enroll her children in the
Montessori school.
On November 22, 1995, the district court entered an order indicating that Mack could
revisit the motion with the understanding that his burden of proof must be clear and
convincing evidence that the total social and academic environment that the children would
enjoy by going to the Montessori School outweighs some of the other considerations of the
children going to their neighborhood, public, Pleasant Valley School. (Emphasis added.)
Additionally, the district court, having considered Ashlock's request for attorney's fees,
awarded Ashlock the amount of $680.00 in attorney's fees.
DISCUSSION
In child custody matters, the Nevada Legislature has explicitly stated that the sole
consideration of the court is the best interests of the child. NRS 125.480; see also NRS
125.510(1)(a) (indicating that the court may make an order regarding the children's education
which is in the children's best interests). While we have not specifically addressed which
burden of proof applies when determining the best interests of a child, we have repeatedly
afforded the district court wide discretion in its decisions regarding best interest
determinations and child custody. See Sims v. Sims, 109 Nev. 1146, 865 P.2d 328 (1993);
Primm v. Lopes, 109 Nev. 502, 853 P.2d 103 (1993).
In Primm, we stated that [t]his court will not disturb the lower court's determinations
absent a clear abuse of discretion. Primm, 109 Nev. at 504, 853 P.2d at 104 (citing Gilbert v.
Warren, 95 Nev. 296, 594 P.2d 696 (1979)). Furthermore, the Primm court stated that in
child custody matters, a presumption exists that the trial court properly exercised its
discretion in deciding what constitutes a child's best interest. Id. (citing Culbertson v.
Culbertson, 91 Nev. 230, 533 P.2d 768 (1975)).
[Headnotes 1, 2]
In the present case, we conclude that the district court abused its discretion by requiring
Mack to prove by clear and convincing evidence that the total social and academic
environment that the children would enjoy by going to the Montessori School outweighs
some of the other considerations of the children going to their neighborhood, public, Pleasant
Valley School. We have previously stated that [a] preponderance of the evidence is all that
is needed to resolve a civil matter. Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d
1179, 1180 (1988) (citing Silver Mining Co. v. Fall, 6 Nev. 116 (1870)). Therefore, absent a
clear legislative intent to the contrary, we conclude that the standard of proof in this civil
matter must be a preponderance of the evidence. See, e.g., NRS 128.090(2) (requiring the
petitioner to prove by clear and convincing evidence that parental rights should be
terminated).
2

[Headnote 3]
We conclude that the district court abused its discretion by requiring Mack to overcome,
by clear and convincing evidence, Ashlock's decision relating to the children's schooling.
Additionally, due to the district court's failure to mention its basis for granting Ashlock's
request for attorney's fees, we are unable to determine if the award of attorney's fees was
appropriate.
Accordingly, we reverse the district court's November 22, 1995 order and remand this case
to the district court with instructions. On remand, the district court is instructed to apply the
preponderance of evidence standard of proof when it reconsiders Mack's motion. Also, on
remand, if the district court determines that Ashlock's request for attorney's fees was
warranted, the district court is instructed to indicate the basis for its decision so that this court
may, if necessary, meaningfully review the determination.
Steffen, C. J., and Rose, J., concur. Springer, J., concurs in result only.
Shearing, J., concurring:
I agree that the order of the district court should be reversed on the ground that the
improper standard of proof was applied.
__________

2
While we conclude that the district court erred by imposing the heightened standard of proof in its order which
decided Mack's motion, we recognize that the children's enrollment for the past school year is now a moot issue.
However, we deem it necessary to remedy the erroneous standard of proof contained in the November 22, 1995
order because the district court's order indicated that Mack could revisit the motion in the future. In fact, it has
recently come to this court's attention that Mack is currently in the process of revisiting the motion with respect
to the children's upcoming school year.
the ground that the improper standard of proof was applied. However, I point out that the
district court's order is particularly disturbing in another respect not considered by the
majority. The district court stated:
If I have a primary custodian who shows the kind of unusual concern that Mrs.
Ashlock seems to show and made what sounds to me like an intelligent choice, I think I
would have to go beyond probable cause to something like a clear and convincing
evidence standard that the overall academic and social experience for the children
would be clearly superior in a school chosen by the non-primary physical custodian. . . .
This statement fails to recognize what joint legal custody meansnamely, that both
parents have an equal right and responsibility to make decisions associated with the health,
education and welfare of the children, even though primary physical custody may be with one
parent. The district court's statement indicates that there is a presumption in favor of the
decision made by the physical custodian. There is no such presumption. On the contrary,
when parents cannot agree on an important subject like the education of a child, the parents
come into court on an equal footing. The sole question for the court is which parent's choice
is in the best interests of the child. Here, the district court's deference to the custodial parent's
choice is particularly puzzling when it appears that one of the principal reasons for the
mother's objection to the father's choice of school was the inconvenience to her in
transporting the children. This reason does not sound like one which considers the best
interests of the child!
____________
GARLAND WASHINGTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26104
August 28, 1996 922 P.2d 547
Appeal from a judgment of conviction of one count of sexual assault. Eighth Judicial
Defendant was convicted in the district court of sexual assault, and he appealed. The
supreme court, Young, J., held that: (1) prosecutor's reasons for striking black veniremember
were race neutral; (2) prosecutor did not infringe on defendant's right to remain silent; {3)
prosecutorial misconduct was not of magnitude warranting reversal; {4) defendant's case
was not prejudiced by cumulative effect of instances of prosecutorial misconduct; {5)
judge was not biased against defendant; {6) evidence was sufficient to support
conviction; and {7) remand was necessary for district court to set specific dollar amount
of restitution to victim for future counseling costs.
remain silent; (3) prosecutorial misconduct was not of magnitude warranting reversal; (4)
defendant's case was not prejudiced by cumulative effect of instances of prosecutorial
misconduct; (5) judge was not biased against defendant; (6) evidence was sufficient to
support conviction; and (7) remand was necessary for district court to set specific dollar
amount of restitution to victim for future counseling costs.
Affirmed in part, reversed in part and remanded.
Geraldine Kirk-Hughes, Las Vegas, for Appellant.
James Tufteland, Chief Deputy, and William D. Kephart, Deputy, Clark County, for
Respondent.
1. Jury.
Prosecutor's reasons for striking black veniremember, due to his job, education, and lack of children, were race neutral, as required
by Batson.
2. Criminal Law.
Prosecutor's comments in his opening statement indicating that defense had their own theories and they would try to convince jury
that their theories were what happened and that prosecutor did not know whether jury would hear from defense did not portray
defendant's right to remain silent in negative light, and did not infringe on defendant's right to remain silent and refrain him from
testifying on his own behalf. U.S. Const. amend. 5.
3. Criminal Law.
Prosecutorial misconduct in sexual assault case was not of magnitude warranting reversal.
4. Criminal Law.
Cumulative effect of instances of prosecutorial misconduct in sexual assault case did not prejudice defendant's case in respect to a
substantial right.
5. Judges.
Judge did not indicate bias against defendant, as might deny him due process, in comments after jury returned its verdict observing
that defendant was given a pretty good negotiation but saw fit to take his chances and go to trial. U.S. Const. amend. 14.
6. Rape.
Jury may convict individual of sexual assault based on victim's uncorroborated testimony.
7. Criminal Law.
Where conflicting testimony is presented at trial, it is within province of jury to determine weight and credibility of testimony.
8. Criminal Law.
Where there is substantial evidence to support verdict in criminal case, supreme court will not disturb jury's verdict or set aside
judgment.
9. Rape.
Evidence was sufficient to support defendant's conviction for sexual assault; victim testified that she repeatedly told defendant
no and pleaded with him to stop, that defendant ceased the sexual assault when telephone rang, and that
she saw back of defendant's head as he exited bedroom after sexual assault.
pleaded with him to stop, that defendant ceased the sexual assault when telephone rang, and that she saw back of defendant's head as
he exited bedroom after sexual assault.
10. Criminal Law.
Order, as part of sentence, that defendant pay any future counseling costs for victim did not satisfy requirement that court set
specific dollar amount of restitution to victim. NRS 176.033(1)(c).
OPINION
Appellant Garland Washington (Washington) was convicted, pursuant to a jury verdict, of one count of sexual assault. The
conviction stems from an incident which occurred on June 29, 1993, in which Washington sexually assaulted his fifteen-year-old stepsister.
After the jury's verdict, the district court imposed the following sentence: twenty years in the Nevada State Prison, $1,000.00 restitution
payable to the Clark County Sexual Abuse Compensation Fund, restitution to the victim for future counselling costs, and a $25.00
assessment fee.
Washington appeals his conviction, arguing that (1) the prosecution violated Washington's Sixth and Fourteenth Amendment rights by
using its only peremptory challenge to eliminate an African-American venireperson on the basis of race; (2) the prosecution engaged in
reversible misconduct by indirectly commenting on Washington's Fifth Amendment right to remain silent and by indirectly implying that
Washington had the burden of proof during the course of the proceedings; (3) the prosecution engaged in reversible misconduct by
interjecting its personal beliefs and factual matters outside the record into its closing argument; (4) the prosecution engaged in reversible
misconduct by introducing into evidence other crimes committed by Washington to prove character; (5) the prosecution engaged in
reversible misconduct by presenting the details and circumstances of Washington's prior criminal activity to impeach his credibility even
though he did not testify; and (6) the district judge committed prejudicial error by presiding over the trial in a biased manner.
Peremptory challenge
Pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), Washington, an African-American, argues that the State's peremptory challenge
of a male African-American venireperson violated his Sixth and Fourteenth Amendment rights.
In the present case, the following dialogue transpired when the State was using its peremptory challenge to exclude the
only male African-American venireperson:
State was using its peremptory challenge to exclude the only male African-American
venireperson:
THE COURT: All right. The State's next peremptory challenge.
MR. KEPHART [PROSECUTION]: Yes, your Honor, we'd like to thank and excuse
Juror Number 11, Michael Wilson.
. . . .
MS. KIRK-HUGHES [DEFENSE COUNSEL]: Your Honor, pursuant to Batson, I'd
like to know what the prosecutor's neutral reasons are for excusing that juror.
MR. KEPHART: Your Honor, no offense to him, but basically he's a cook here in Las
Vegas, he's married and he has no children. I don't see anythere is no reasonI mean
the only reason they're asking is because he is black. That's the only question. And my
position is that it's neutral in reference to his education, his job, and the fact that he
doesn't have any children . . . I'm going to have trouble with that.
THE COURT: And that's the reason?
MS. KIRK-HUGHES: Your Honor, the defendant in this case is black and under
Batson he's entitled to a cross-section of the jury panel. We only have two other
members of the jury panel that are black. We have excused the only black male on the
panel. And I don't think that the reason that the prosecutor has offered is neutral under
Batson.
MR. KEPHART: Your Honor, they need to demonstrate that I systematically was
excluding blacks from the case and I don't think I've done that.
THE COURT: Your objection is noted for the record and thank you for making the
objection. It's noted and it's preserved. But I'll overrule it.
In Purkett v. Elem,
------
U.S.
------
, 115 S. Ct. 1769 (1995), the United States Supreme
Court clarified the manner in which courts are to analyze Batson challenges. The Purkett
court stated:
Under our Batson jurisprudence, once the opponent of a peremptory challenge has
made out a prima facie case of racial discrimination (step 1), the burden of production
shifts to the proponent of the strike to come forward with a race-neutral explanation
(step 2). If a race-neutral explanation is tendered, the trial court must then decide (step
3) whether the opponent of the strike has proved purposeful racial discrimination.
Id. at
------
, 115 S. Ct. at 1770-71 (citations omitted).
[Headnote 1]
Assuming that a prima facie case of racial discrimination existed, we conclude that the
prosecutor's proffered race-neutral reasons satisfy the United States Supreme Court's express
mandate in Purkett. In Purkett, the Court stated that [t]he second step of this process does
not demand an explanation that is persuasive, or even plausible. Id. at
------
, 115 S. Ct. at
1771. The Purkett Court further stated that [u]nless a discriminatory intent is inherent in
the prosecutor's explanation, the reason offered will be deemed race neutral.' Id. (quoting
Hernandez v. New York, 500 U.S. 352, 360 (1991)). We conclude that a discriminatory intent
was not inherent in the prosecutor's explanation that he wanted to excuse the
African-American juror due to his job, education and lack of children. Accordingly, we deem
the prosecutor's explanation race-neutral. Furthermore, we conclude that the district court did
not abuse its discretion when, at step three of the Batson analysis, it overruled Washington's
objection to the State's peremptory challenge.
Right to remain silent and burden of proof
Washington next argues that the State committed reversible error by commenting on his
right to remain silent and by indirectly implying that he had the burden of proof instead of the
State. Specifically, Washington notes that during the prosecutor's opening statement, he stated
that the defense has their own theories and they are certainly going to try to convince you
that their theories are what happened. In the same opening statement, the prosecutor stated
that now you're going to hear the defensewell, I don't know if you will or not, but I'm not
here to go into a month long custody battle between the parents in this case, the mother and
the father.
[Headnote 2]
We conclude that the State did not commit reversible error by commenting on
Washington's right to remain silent. The prosecutor's comments in the present case did not
portray Washington's right to remain silent in a negative light nor did they infringe upon
Washington's right to remain silent and refrain from testifying on his own behalf. Murray v.
State, 105 Nev. 579, 584, 781 P.2d 288, 291 (1989).
We further conclude that Washington never had the burden of proof in the case at bar. We
have stated that [i]t is a fundamental principle of criminal law that the State has the burden
of proving the defendant guilty beyond a reasonable doubt and that the defendant is not
obligated to take the stand or produce any evidence whatsoever."
evidence whatsoever. Barron v. State, 105 Nev. 767, 778, 783 P.2d 444, 451 (1989). In the
present case, during the prosecutor's opening statement, he stated that it's the State's
obligation to prove to you that what happened was a crime. Furthermore, at the conclusion
of the evidentiary phase of the trial, the jury was instructed that [t]he defendant is presumed
innocent until the contrary is proved. This presumption places upon the State the burden of
proving beyond a reasonable doubt every material element of the crime charged and that the
defendant [was] the person who committed the offense. Accordingly, we conclude that
Washington's argument is without merit.
Washington argues that the prosecutor committed reversible misconduct by interjecting his
personal beliefs into his closing argument and by improperly commenting on factual matters
outside the record. Specifically, Washington contends that the prosecutor improperly
commented on several matters, including Washington's physical appearance, the source of
funding for Washington's defense, religion, Washington's prior bad acts, and the prosecutor's
wife being a victim of a previous unrelated assault.
[Headnotes 3, 4]
We conclude that several instances of prosecutorial misconduct occurred in the case at bar.
We do not condone or promote prosecutorial misconduct in any form or manner. However,
we conclude that the prosecutorial misconduct in the present case was not of a magnitude
warranting reversal. See, e.g., Murray, 105 Nev. at 584, 781 P.2d at 291; McGuire v. State,
100 Nev. 153, 158-59, 677 P.2d 1060, 1064 (1984). We further conclude that the cumulative
effect of these instances of prosecutorial misconduct does not alter our stance that
Washington's case was not prejudiced in respect to a substantial right. See Sipsas v. State, 102
Nev. 119, 125, 716 P.2d 231, 235 (1986); Polito v. State, 71 Nev. 135, 140, 282 P.2d 801,
803 (1955).
Judicial bias
[Headnote 5]
Washington argues that the district judge was biased against him because he refused to
accept the State's plea bargain. Specifically, Washington cites to the following comment
which the district judge delivered after the jury returned its verdict:
Young Garland as you were told is doing time on a burglary, he was given probation by
a judge. He violated his probation by selling drugs, robbing, all sorts of things.
by selling drugs, robbing, all sorts of things. The Judge had to revoke his probation and
he imposed a two-year sentence. He was given a pretty good negotiation on this case.
They were going to reduce it to lewdness with a minor, but he saw fit not to take that
negotiation and take his chances and go to trial on this. The jury has now spoken.
This court has recognized that a defendant may be denied due process by a biased or
hostile judge. See Kinna v. State, 84 Nev. 642, 646-47, 447 P.2d 32, 35 (1968). In the present
case, we conclude that the district judge was not biased against Washington and that the
district judge adequately ensured Washington's right to a fair trial. See Collier v. State, 101
Nev. 473, 477, 705 P.2d 1126, 1128 (1985), cert. denied, 486 U.S. 1036 (1989); Kinna, 84
Nev. at 646-47, 447 P.2d at 35. Accordingly, we conclude that this argument lacks merit.
Sufficiency of evidence
The dissent contends that [t]he most serious defect in this conviction is the victim's
failure to identify her assailant. The dissent further alleges that [t]he victim was never able
to say that she saw or heard Washington on the night of the assault. (Emphasis supplied.)
We disagree. First, we note that Washington has not challenged the sufficiency of evidence
on appeal. Second, we have stated that when the sufficiency of evidence is challenged on
appeal, [t]he relevant inquiry for this Court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.' Koza v. State, 100 Nev. 245,
250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We
conclude that the dissent inappropriately applies this standard in the present case by
overlooking portions of the victim's testimony at trial and by viewing the evidence in the light
most favorable to Washington.
[Headnotes 6-8]
It is well established law in Nevada that a jury may convict an individual of sexual assault
based upon the victim's uncorroborated testimony. Deeds v. State, 97 Nev. 216, 217, 626 P.2d
271, 272 (1981). Furthermore, in a case where there is conflicting testimony presented at trial,
it is within the province of the jury to determine the weight and credibility of the testimony.
Id. Where there is substantial evidence to support a verdict in a criminal case, we will not
disturb the jury's verdict or set aside the judgment. Id.
[Headnote 9]
In the present case, the victim testified that she repeatedly told Washington no and
pleaded with him to stop.
1
Washington responded to this by telling her to wait a minute, to
wait until he was finished. The victim further testified that Washington ceased the sexual
assault when the telephone rang and he answered the telephone. She heard Washington tell
the person who was calling that he was busy. The victim further testified that she saw the
back of Washington's head as he exited the bedroom after the sexual assault. Furthermore, the
victim testified that on the morning after the sexual assault, Washington told her not to tell
anyone about what occurred the previous evening.
2
Accordingly, we conclude that the jury
was presented with substantial evidence to support its verdict, and we will not disturb that
decision on appeal.
3

Washington's sentence
[Headnote 10]
As part of Washington's sentence, the district court ordered Washington to pay any future
counselling costs for victim. Although not urged by Washington on appeal, we conclude that
this portion of Washington's sentence violates NRS 176.033(1)(c). See Botts v. State, 109
Nev. 567, 568, 854 P.2d 856, 857 (1993).
NRS 176.033 states, in pertinent part:
1. If a sentence of imprisonment is required or permitted by statute, the court shall:
. . . .
__________

1
The victim testified that before the sexual assault occurred, she had consumed alcohol and taken medication
for her epileptic seizures. The victim further testified that because of the combined effects of the alcohol and
medication, she got real sleepy and just passed out. The victim, whose back was facing the edge of the bed,
was awakened by a fluttering feeling inside her vagina. The victim tried to move but was unable to because
she felt really weak as if she just had a seizure.

2
During cross-examination, the victim testified that Washington could have been referring to the victim and
Washington's indulgence in alcohol, rather than the sexual assault, when he gave her the foregoing admonition.
However, where conflicting testimony is presented at trial, we conclude that it is within the province of the jury
to determine the weight and credibility of testimony. Deeds, 97 Nev. at 217, 626 P.2d at 272.

3
Our dissenting colleague mistakenly contends that the victim told her natural mother that the sexual contact
between herself and Washington was consensual. In fact, during their testimony at trial, the victim and her
natural mother both vehemently denied ever indicating that the sexual contact was consensual. Washington's
mother, the victim's step-mother, was the only individual who alleged that the sexual contact was consensual.
(c) If restitution is appropriate, set an amount of restitution for each victim of the
offense . . . .
In Botts, the district court refused to grant appellant a hearing on the exact amount of
restitution to be imposed and, instead, required appellant to make restitution to the victim for
past and future counselling expenses. Botts, 109 Nev. at 568, 854 P.2d at 857. We concluded
that the district court failed to set an amount of restitution as required by NRS 176.033(1).
Id. at 569, 854 P.2d at 857. The Botts court stated that [t]he statute contemplates that the
district court will set a specific dollar amount of restitution. The statute does not allow the
district court to award restitution in uncertain terms. Id.
In the present case, we conclude the district court erred by failing to set a specific dollar
amount of restitution to the victim for future counselling costs.
Accordingly, we affirm the judgment of the district court pertaining to Washington's term
of imprisonment, restitution to the Clark County Sexual Abuse Compensation Fund and
assessment fee. We reverse the judgment of the district court pertaining to restitution for the
victim's future counselling costs and remand that matter to the district court for resentencing
in accordance with the views expressed in this opinion.
Steffen, C. J., with whom Shearing, and Rose, JJ., concur.
I agree with the majority's conclusion that several instances of prosecutorial misconduct
occurred in the case at bar. I cannot, however, accept, as does the majority, that the
cumulative effect of these several instances of prosecutorial misconduct does not warrant
reversal. The majority does not specify which of the many allegedly improper comments
offered by the defendant are included among the several instances, but it is clear to me that,
in light of the less than overwhelming evidence of guilt in this case, the majority cannot
properly conclude that the misconduct was harmless. See Sipsas v. State, 102 Nev. 119, 125,
716 P.2d 231, 235 (1986).
FAILURE OF VICTIM TO IDENTIFY ASSAILANT
The most serious weakness in the State's case is the victim's inability to identify her
assailant. The victim was never able to say: That is the man that I saw assaulting me. The
victim's testimony makes it very clear that she was unable to identify the man with whom she
had sexual relations on the night in question. She accused Washington, her half brother, after
the fact, and solely on the basis of her having eliminated other possible assailants and by
reason of Washington's having made the remark to her, "Just don't tell anyone."
solely on the basis of her having eliminated other possible assailants and by reason of
Washington's having made the remark to her, Just don't tell anyone. Washington claims that
he said this to his stepsister because they had been drinking beer together, and because he was
afraid that she was going to tell their parents.
If the victim in this case had ever been able to testify that she actually saw or heard or
otherwise positively perceived Washington as the man who assaulted her on the night that she
claims to have been assaulted, I would have no problem in affirming this conviction.
1
The
victim, however, admits that at no time during her encounter with her assailant on that night
was she able to see his face; and she certainly did not make any identification of her assailant
until long after the event. In other words, she could not, at the time of the occurrence, identify
her stepbrother as the person who assaulted her. The victim was never able to say that she
saw or heard Washington on the night of the assault. It is quite clear that, at trial, the victim's
testimony was based entirely on an array of assumptions and not on a recollection of an actual
perception that it was Washington who had assaulted her.
It is easy to understand why the victim was unable to identify Washington as being her
assailant on the night in question. The victim was very intoxicated and was taking drugs at
the time of the claimed sexual assault. In fact, she is not even sure that the event took place,
admitting on a number of occasions that she may have been dreaming. The victim does
remember that during the dream she asked her assailant, whoever he was, to don a condom.
It is also important to add that there were serious questions raised about the credibility of
the victim's testimony. She did not report the episode for several months after she claimed
that it occurred; and the obvious parental opposition to her engaging in sexual conduct with
her stepbrother gave her a strong motive to deny that she consented to the sexual
activity.
__________

1
When I say that the victim was unable to identify Washington, I mean that she did not know who the person
was that she claims got into bed with her on the night in question. Whoever the man was that came into her bed,
the victim was quite patient with him. At one point in the episode the unidentified assailant paused during his
rapacious activities to engage in conversation on the bedside telephone. At another point, at her request, the man
left the room and went searching for a condom. The victim was unable to see the face of the man who had gotten
into bed with her and, consequently, could not tell at the time that it was her stepbrother. The identification was
not made until later, when he told her not to tell anyone. Moreover, there is evidence that, when the victim
finally did put two and two together, so to speak, she told her natural mother about it, saying that she had had
consensual sexual contact with her stepbrother (although at trial the victim denied ever telling anyone that the
sex was consensual). Whether it was caused by the Mad Dog 20/20 or the medication that she was taking on
that night, the fact is that the victim was not able, on the night in question, to identify her own stepbrother as the
person who invaded the privacy of her bed.
sexual conduct with her stepbrother gave her a strong motive to deny that she consented to
the sexual activity. The victim had another, and perhaps stronger, motive to testify as she did.
If she remained with her father, she would have had to attend Clark High School; but if she
lived with her natural mother, then she would have been able to attend Cheyenne High
School, where all of her friends were. Her father initially consented to her moving in with her
natural mother, but he later told the victim that she could not do this because the natural
mother's living arrangement was not stable. Because of her father's decision, the victim ran
away from home. She eventually appeared at her natural mother's house. Knowing that the
victim had been reported to the police as a runaway, the natural mother took her to the police
station. At the police station the victim was informed that she would be able to remain with
her natural mother if she had been abused at her father's house. It was at this time that the
victim told the police that Washington had abused her at her father's home.
Further, it should be noted that, according to the victim's stepmother, when the victim and
her natural mother first mentioned the incident to the victim's stepmother, the victim
described the sexual activity as being consensual. Finally, I would note that the victim's sister
was sleeping next to the victim, in the same bed, at the time of the incident. The sister did not
wake up and had no knowledge that her sister was being raped in the same bed. All in all, this
is a very strange and weak case from the prosecution standpoint; and, in light of the several
instances of prosecutorial misconduct in this case, the conviction calls for reversal and a new
trial.
PROSECUTORIAL MISCONDUCT
As recognized in the majority opinion, this case is infected by prosecutorial misconduct.
The prosecutor personalized the case, telling the jury that he had a sympathetic understanding
of what the victim in this case must have suffered because his wife had been the victim of a
sexual assault. I might be able to overlook such a clearly-objectionable remark if this were
not such a muddled case to begin with. It is difficult to argue that the prosecutor's remarks in
this case, taken in conjunction with the extreme weakness of the proof, did not unfairly
prejudice the jury against Washington.
DENIAL OF A FAIR JURY
I believe also that the prosecution denied Washington equal protection of law by denying
him a fair jury. The State used only one peremptory challenge, and the challenge was used to
disqualify the only black, male juror who had been selected from the jury pool.
jury pool. Washington objected, claiming that the sole reason for the exclusion was the juror's
race or gender. The State argued that the juror was dismissed because he had no children, was
uneducated (even though he graduated from high school and had several years of service in
the army), and was a cook. However, the empaneled jury contained several members who had
no children and who had no more than a high school education.
2
I have no idea why the
State would want to disqualify all cooks from the jury. I find the reason given to be
unbelievable. While I realize that Purkett v. Elem,
------
U.S.
------
, 115 S. Ct. 1769 (1995),
interpreted Batson to require only a race-neutral explanation of why a given peremptory
challenge is being made, [i]f a race-neutral explanation is tendered [step 2], the trial court
must then decide (step 3) whether the opponent of the strike has proved purposeful
discrimination. Id. at
------
, 115 S. Ct. at 1770-71 (citations omitted). In other words, the
court must determine whether the race-neutral explanation is pretextual (as it clearly is in this
case). See, e.g., Hernandez v. New York, 500 U.S. 352, 363 (1991); U.S. v. Joe, 938 F.2d 99,
102 (4th Cir. 1991); Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996). In my opinion, the
majority turns a blind eye to a transparently implausible race-neutral explanation for
excluding the only black, male juror.
For the foregoing three reasons, I would reverse the conviction and remand to the trial
court for a new trial.
____________
112 Nev. 1078, 1078 (1996) Roth v. Scott
JASON MARK ROTH, Appellant, v. COLIN SCOTT, Respondent.
No. 26468
August 28, 1996 921 P.2d 1262
Appeal from order affirming arbitrator's award. Eighth Judicial District Court, Clark
County; Lee A. Gates, Judge.
In automobile accident case, private arbitrator selected by parties awarded plaintiff
$77,100. Defendant requested trial de novo. The district court affirmed arbitrator's award.
Defendant appealed. The supreme court held that: (1) case was never exempted from
arbitration program, thus precluding arbitrator's award of more than $25,000, and (2) parties
did not agree to binding arbitration with high and low caps.
__________

2
It should also be noted that the jury did contain two black women.
112 Nev. 1078, 1079 (1996) Roth v. Scott
Gentile & Associates and Scott T. Evans, Las Vegas, for Appellant.
Kirk-Hughes & Associates, Las Vegas, for Respondent.
1. Arbitration.
Because litigants in auto accident case failed to comply with Nevada Arbitration Rule (NAR) setting forth process for exempting
case from arbitration program, trial court erred by concluding that parties entered binding arbitration, and that it could thus award more
than $25,000. Mere fact that parties completed arbitration process did not mean that they had agreed to binding arbitration, nor did fact
that parties discussed binding arbitration and decided to use private arbitrator, as both are permitted options within arbitration
program.
2. Arbitration.
Litigants in automobile accident case did not reach agreement for binding arbitration with high and low damage caps; although
each party manifested intent to enter binding arbitration, each party insisted on conditions to agreement that were not adequately
reflected in draft agreements or other communications between parties, and, although parties adamantly contended that their respective,
essential conditions were clearly understood, neither side could produce written contract, signed by both parties, that included those
essential terms.
OPINION
Per Curiam:
On March 10, 1993, appellant/defendant Jason Mark Roth was driving near an intersection in Henderson, Nevada when his automobile
collided with the automobile travelling in front of him. Respondent/plaintiff Colin Scott was a passenger in the car that Roth hit. Scott was
injured in the accident and filed a complaint for personal injuries and damages in district court.
Scott alleged special damages totalling approximately $11,000; therefore the claim was subject to mandatory, non-binding arbitration
pursuant to the Court Annexed Arbitration Program (the arbitration program) and the Nevada Arbitration Rules (NAR).
1
Neither
party sought to exempt the case from the arbitration program.
The discovery commissioner selected an arbitrator and the first pre-arbitration conference
was held on March 9, 1994. At the second pre-arbitration conference, held on May 9, 1994,
Scott's attorney informed the arbitrator that she could not in good faith advise her client
to settle for $25,0002the maximum amount the arbitrator could award under NAR
16{B).
__________

1
NAR 3 provides, in relevant part:
All civil cases commenced in the district courts that have a probable jury award value not in excess of
twenty-five thousand dollars ($25,000), exclusive of interest and costs, and regardless of comparative
liability, are subject to the program.
112 Nev. 1078, 1080 (1996) Roth v. Scott
attorney informed the arbitrator that she could not in good faith advise her client to settle for
$25,000
2
the maximum amount the arbitrator could award under NAR 16(B). Therefore,
Scott's counsel announced that Scott would be filing for a trial de novo irrespective of the
outcome of the arbitration. In response, Roth's attorney suggested that the parties could avoid
wasting everyone's time by entering into binding arbitration with high and low caps on the
potential award. Scott's attorney appeared agreeable to the suggestion and negotiations for an
agreement continued.
During the negotiations, Roth's attorney believed that he made it clear that Roth would
agree to binding arbitration only if the appropriate high/low caps could be agreed upon. He
suggested a low cap of $25,000 and a high cap of $50,000. Scott's attorney indicated her
agreement with the high cap, but suggested a low cap of $30,000. Roth's attorney agreed with
the suggestion and on May 10, 1994, wrote to Scott's attorney confirming the selection of
Susan Holland Johnson as the private arbitrator and stating that it was his understanding
that the parties had agreed to the high/low caps. He also attached a draft arbitration agreement
which was never executed.
Scott's attorney claims that she never agreed to Ms. Johnson's selection as arbitrator and
denies ever having agreed to a high/low cap even though the parties had discussed it. After
she received the May 10 letter and arbitration agreement, she called Roth's attorney and
informed him that she would not execute the agreement. At that time, she specifically said
that she would not agree to any high/low caps; nevertheless, she believed the parties had
agreed to final and binding arbitration.
During a conversation on May 18, 1994, the parties agreed upon a new arbitrator, Michael
Myers, because Scott did not want a female arbitrator. Roth's attorney recalls that there was
no discussion of the high/low caps. He drafted a confirmatory letter on May 23, 1994 and
again attached a draft arbitration agreement. Although the signature of Scott's attorney
appears on a copy of this second agreement, it was never returned to Roth's attorney and
neither his signature nor that of the arbitrator appears on the document.
The attorneys spoke again on July 22, 1994. Roth's attorney claims that Scott offered to
settle for $45,000 and that they reconfirmed the $50,000 high cap. Approximately one week
later, Roth made a counteroffer of $43,000. This counteroffer was rejected.
__________

2
Apparently, Scott underwent surgery on his injured knee after filing his complaint. As a result, his special
damages increased to $25,000. Roth still maintains that Scott never established that his special damages
exceeded $18,000.
112 Nev. 1078, 1081 (1996) Roth v. Scott
The arbitration proceeded before Mr. Myers on August 4, 1994. When Mr. Myers inquired
as to whether he could exceed the maximum award allowable under NAR 16(B), Roth's
attorney informed him that it was his understanding that the parties had agreed to a high/low
cap and that the low cap exceeded the $25,000 set forth in NAR 16(B). Scott's attorney did
not object to or contradict this representation.
3

On August 10, 1994, the arbitrator awarded $77,100 to Scott. Thereafter, a dispute
developed between the parties regarding whether they had agreed to a high cap limiting
Roth's liability on the arbitrator's award to $50,000. On August 19, 1994, Roth filed a motion
with the arbitrator to amend the arbitration award pursuant to NAR 17(C), arguing that
because Scott's attorney intentionally withheld her signature from the arbitration agreement,
the case remained in the arbitration program and the arbitrator's award could not exceed
$25,000. Scott opposed the motion, arguing that the parties entered into binding, private
arbitration without high/low caps. Mr. Myers denied Roth's motion on August 31, 1994.
On September 2, 1994, Roth filed a request for a trial de novo with the district court. Scott
filed a motion to strike the request and reduce the arbitration award to judgment together with
a motion for attorney's fees. Roth filed an opposition to Scott's motions, and a counter-motion
to enforce the arbitration agreement with high/low caps. Roth also filed an amended request
for a trial de novo, or a reduction in the arbitration award.
On October 5, 1994, the district court granted Scott's request to strike the motion for a trial
de novo or a reduction of the arbitration award. However, the district court denied Scott's
motion for attorney's fees. On November 1, 1994, an amended order was filed, providing the
reasoning for the decision rendered in the October 5 order. The district court explained that
while there was conclusive evidence of a binding arbitration agreement, there was
insufficient evidence of an agreement as to high/low caps.
Roth appeals.
DISCUSSION
Roth assigns error to the district court's conclusion that the parties agreed to binding
arbitration without high and low caps and the district court's order striking his request for a
trial de novo and a reduction of the arbitrator's award. Although we agree with the district
court's determination that there is insufficient evidence of the parties' agreement to high
and low caps, we conclude that the district court erred in determining that the parties had
agreed to binding arbitration.
__________

3
Although Scott's primary attorney was not able to attend, an associate represented Scott.
112 Nev. 1078, 1082 (1996) Roth v. Scott
evidence of the parties' agreement to high and low caps, we conclude that the district court
erred in determining that the parties had agreed to binding arbitration. We also conclude that
the arbitrator's award should have been reduced to the $25,000 limit.
[Headnote 1]
The district court stated that [b]oth parties admitted in court that they had agreed to
binding arbitration, and the Court finds from the dealings and course of conduct of the
parties, (they proceeded through binding arbitration), that there was an agreement for binding
arbitration. It therefore appears that the district court based its decision on the parties'
discussion of binding arbitration and the fact that they had completed the arbitration process.
We disagree with both conclusions.
The mere fact that the parties completed the arbitration process does not lead to the
conclusion that they agreed to binding arbitration. The district court's conclusion assumes that
the parties had a choice in whether to continue with the arbitration; they did not have that
choice because the case was never exempted from the arbitration program. The arbitration
program is mandatory and non-binding for all civil claims, such as the one at bar, wherein the
probable value of a jury award would not exceed $25,000. NAR 1, 3(A).
There is an established process for exempting a case from the arbitration program. The
party desiring the exemption must file with the discovery commissioner a request to exempt
the case from the program and serve a copy of the request on the other party. NAR 5. The
discovery commissioner then decides if the case is exempted. Id. Having reviewed the record
on appeal, we conclude that the parties did not comply with NAR 5.
Scott apparently relies on the parties' discussion of binding arbitration and decision to
use a private arbitrator as evidence that the parties exempted the case from the arbitration
program. However, neither of these circumstances cures non-compliance with NAR 5.
Moreover, the NAR specifically allow parties subject to the arbitration program to agree to be
bound by any arbitration award, NAR 3(C), and to choose to use a private arbitrator, NAR
6(A). Based upon these provisions, it is clear that discussions of binding arbitration and the
use of a private arbitrator do not operate as an exemption, but rather are permitted options
within the arbitration program.
Because the case never left the arbitration program, it was error for the district court to
conclude that the parties had agreed to binding arbitration based upon the fact that they
completed the arbitration process. As explained above, the parties would have had to
complete the arbitration regardless of whether they reached an agreement to make the
arbitration binding.
112 Nev. 1078, 1083 (1996) Roth v. Scott
reached an agreement to make the arbitration binding. Finally, because the case was never
exempted from the arbitration program, the arbitrator's award could not exceed $25,000. See
NAR 16(B).
[Headnote 2]
We further conclude that the district court erred in determining that there was sufficient
evidence of an agreement for binding arbitration without high and low caps. Although each
party manifested the intent to enter binding arbitration, each party insisted on conditions to
the agreement which were not adequately reflected in the draft agreements or the other
communications between the parties. The intent of the parties was to have a binding
arbitration plus something more: high/low caps or authority to make an award in excess of
$25,000.
4
While the parties adamantly contend that their respective, essential conditions
were clearly understood, neither side could produce a written contract, signed by both parties,
that includes these essential terms. Because the parties did not have a meeting of the minds as
to the essential terms of the contract, there was no agreement for binding arbitration either
with or without high/low caps. See Keddie v. Beneficial Ins., Inc., 94 Nev. 418, 421, 580 P.2d
955, 956 (1978) (Batjer, J., concurring) (stating that all contracts require mutual assent,
agreement, or meeting of the minds as to all essential elements).
CONCLUSION
For the reasons discussed above, we conclude that the parties did not have an agreement
for binding arbitration. Moreover, the case was never exempted from the arbitration program
and the arbitrator's award could not exceed $25,000. We therefore reverse the district court's
order and remand the case for further proceedings.
__________

4
Although the NAR does not prohibit the parties from agreeing to allow the arbitrator to exceed a $25,000
award, it does not expressly allow for such an agreement either. We express no opinion as to whether this is an
acceptable practice.
____________
112 Nev. 1084, 1084 (1996) Sheriff v. Fullerton
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. ROBERT LEE FULLERTON and
CORINNE F. BENNETT, Respondents.
No. 24489
August 28, 1996 924 P.2d 702
Appeal from a district court order granting petitions for writs of habeas corpus and a
motion to dismiss. Second Judicial District Court, Washoe County; Deborah A. Agosti,
Judge.
Defendants charged with violations of Uniform Securities Act petitioned for writs of
habeas corpus and moved to dismiss counts against them. The district court granted petitions
and motion, and appeal was taken. The supreme court, Rose, J., held that: (1) criminal
proceedings alleging same violations of Uniform Securities Act that had been alleged in prior
civil action did not subject defendants to double jeopardy, and (2) evidence did not support
district court's findings that defendants' due process rights were violated by prosecution's use
of civil proceeding or that state had conflict of interest.
Frankie Sue Del Papa, Attorney General, and Grenville Thomas Pridham, Deputy
Attorney General, Carson City, for Appellant.
C. Frederick Pinkerton, Reno, for Respondents.
Joseph C. Long, Norman, Oklahoma, for Amicus Curiae North American Securities
Administrators Association, Inc.
1. Double Jeopardy.
Institution of parallel civil and criminal proceedings pursuant to Uniform Securities Act does not constitute per se violation of
Double Jeopardy Clause. U.S. Const. amend 5; NRS 90.615-90.660.
2. Double Jeopardy.
Criminal proceedings alleging same violations of Uniform Securities Act that had been alleged in prior civil action did not subject
defendants to double jeopardy, where no penalties were assessed against defendants in civil action. U.S. Const. amend 5; NRS
90.615-90.660.
3. Double Jeopardy.
Double Jeopardy Clause does not apply when civil award for offense punished criminally is merely sought but not assessed. U.S.
Const. amend 5.
4. Criminal Law; Habeas Corpus.
Evidence before district court did not support its findings, in granting petitions for writs of habeas corpus and motion to dismiss
indictment alleging same violations of Uniform Securities Act that had been alleged in prior civil case, that defendants' due
process rights were violated by prosecutor's use of civil receiver or that prosecutor acted under conflict of
interest by virtue of conversations with attorney who had represented defendants in civil action in
preparing indictment.
in prior civil case, that defendants' due process rights were violated by prosecutor's use of civil receiver or that prosecutor acted under
conflict of interest by virtue of conversations with attorney who had represented defendants in civil action in preparing indictment.
U.S. Const. amend 5; NRS 90.615-90.660.
5. Criminal Law.
Before case will be dismissed for prosecutorial misconduct, misconduct must be clearly demonstrated to be substantial and
prejudicial.
6. Criminal Law.
Prosecuting attorney's office should not be disqualified for conflict of interest unless evidence establishes that extreme situation
exists.
OPINION
This case revolves around a patented invention known as a zip nut and the efforts to exploit its obvious potential. More particularly,
the issues on appeal relate to the efforts of respondent Robert Lee Fullerton (Fullerton), the inventor of the device to whom the patent was
issued, and respondent Corinne F. Bennett (Bennett), to solicit investors for the production and marketing of the zip nut. The
respondents' efforts in this regard led to the formation of various corporations. The State of Nevada filed a civil complaint for securities
fraud and the appointment of a receiver against respondents involving: (1) the selling of stock in one of these corporations, First Phoenix,
Inc., without telling investors of the existence of other Fullerton-formed corporations claiming an interest in the patent; and (2) the failure
to disclose that a federal injunction had been issued against respondents' activities regarding the patent. The district judge presiding over
the civil receivership case determined that Fullerton was not guilty of fraud, but was simply a poor businessman, and entered consent orders
restructuring the various corporate entities into one entity in which Fullerton and the investors were given various interests. Thereafter, but
while the civil matter was still pending, criminal indictment proceedings were initiated against the respondents, alleging the same violations
of Nevada's Uniform Securities Act that had been alleged in the civil case.
The order appealed from in the instant case granted the respondents' petitions for habeas corpus and motion to dismiss the criminal
charges against them. The district court's rulings were based upon findings that: (1) the initiation of criminal proceedings following the
filing of the still pending civil action had violated the respondents' rights against double jeopardy; (2) the State's use of the civil receiver in
pursuing the criminal action deprived respondents of their rights to due process, as it gave the prosecutor access to evidence
which would otherwise have been available only through a criminal investigation conducted under
constitutional safeguards; and {3) the prosecutor engaged in misconduct and acted under a conflict of interest
by working with the attorney who had represented respondents in the civil action, and whose financial
interests were now adverse to his former clients, in preparing the criminal indictment.
prosecutor access to evidence which would otherwise have been available only through a
criminal investigation conducted under constitutional safeguards; and (3) the prosecutor
engaged in misconduct and acted under a conflict of interest by working with the attorney
who had represented respondents in the civil action, and whose financial interests were now
adverse to his former clients, in preparing the criminal indictment.
For reasons discussed hereafter, we conclude that the respondents were not subjected to
double jeopardy and that the district court incorrectly determined that respondents' due
process rights were violated. We therefore reverse the orders entered below and remand to the
district court for trial.
FACTS
A detailed exposition of factual background and the procedural history of the civil and
criminal proceedings is essential to an understanding of the ratio decidendi of our disposition
of this appeal.
In 1979 Fullerton applied for the protection of a patent on his invention denominated the
zip nut. The zip nut was designed for a quick and easy attachment to a bolt. In late 1982,
prior to receiving the patent, Fullerton assigned his entire right, title and interest therein to
Fullerton Zip Nut, Inc., a Utah corporation, and recorded this assignment with the U.S. Patent
and Trademark Office in January of 1983. The patent on the zip nut was issued to Fullerton in
March of 1983. Later, in February of 1985, Fullerton Zip Nut, Inc. was merged into Fullerton
Inc., a Nevada corporation, with the intent of providing Fullerton Inc. with the patent rights to
the zip nut held by Fullerton Zip Nut, Inc. Thereafter, for reasons which are not apparent on
the record, Fullerton and Fullerton Inc. were sued by former shareholders of Fullerton Zip
Nut, Inc. in Utah's federal district court. The latter court issued a preliminary injunction on
April 8, 1988, enjoining Fullerton and Fullerton Inc. from dissolving Fullerton Inc. or from
transferring any of the assets of Fullerton Inc., including patent rights.
In October 1988, Fullerton and Bennett formed First Phoenix, Inc., a Nevada corporation,
with Bennett as president and Fullerton as secretary/treasurer. Respondents assert that First
Phoenix had, as its only asset, a fifty percent interest in all profits Fullerton received from the
zip nut product. As a further complication, in December of 1988, Fullerton assigned all rights
in the zip nut patent to Crescent Products Corporation (a Virginia corporation, the stock of
which was apparently owned by Fullerton) and recorded this assignment with the U.S. Patent
and Trademark Office on January 9, 1989. Fullerton also dissolved Fullerton Inc. in
December of 19SS.
Fullerton Inc. in December of 1988. All of these actions appeared to be in violation of the
federal injunction issued in Utah.
The State of Nevada alleges that between May 1989 and September 1990, Fullerton and
Bennett sold stock in First Phoenix, Inc., although First Phoenix was not registered to sell
securities in Nevada and Fullerton and Bennett were not licensed as sales representatives in
Nevada. One of the investors who purchased stock, Greg McVickers, is alleged to have been
hired by Bennett and Fullerton to solicit more investors despite the fact that McVickers was
also unlicensed to sell securities.
The State alleges that the foregoing activities constituted fraudulent conduct on the part of
Bennett and Fullerton, since McVickers and the other investors believed they were investing
in the zip nut product (the company was referred to generically as the zip nut corporation,
which in fact did not exist). In fact, however, First Phoenix, Inc. had no rights to the product
because the rights had been assigned to other corporations. Moreover, the investors were not
told of the federal lawsuit and injunction in Utah, and the securities were unregistered and the
salesmen unlicensed. In addition, the investors were unaware that Bennett and Fullerton were
allegedly living off the investors' funds and otherwise using the funds for personal and private
benefit.
On May 16, 1991, Bennett and Fullerton incorporated Zip Nut, Inc., a Nevada corporation.
Respondents refer to this as the development stage corporation of the zip nut device and,
according to their brief and the testimony of their one-time attorney John Schell, this
corporation was designed to be the shell corporation into which the interests of Fullerton,
First Phoenix, and Crescent Products would be consolidated.
Procedural history of the civil action
On September 4, 1991, the State of Nevada, ex rel. the Secretary of State and Securities
Division, filed a civil complaint against Fullerton (both individually and d/b/a Fullerton
Design), Crescent Products Corporation d/b/a Fullerton Design, Zip Nut, Inc., and various
Does, and later, Bennett.
1
The complaint alleged claims for relief based upon: (1) the offer
and sale of unregistered securities, in violation of NRS 90.460; (2) unlawfully transacting
business as a broker-dealer and unlawfully transacting business as a sales representative,
in violation of NRS 90.310; and {3) fraud committed by Fullerton in the offer and sale of
securities, in violation of NRS 90.570.
__________

1
The Attorney General's office served as counsel for the State in this case. On November 19, 1991, Nevada's
civil complaint was amended to add Bennett as a defendant. Also, according to the receiver's testimony before
the grand jury, the complaint was later further expanded, by order or amended complaint, to include Fullerton
Zip Nut, Inc., a Utah corporation, and Fullerton, Inc., a Nevada corporation (the two corporations involved in
the Utah litigation).
fully transacting business as a broker-dealer and unlawfully transacting business as a sales
representative, in violation of NRS 90.310; and (3) fraud committed by Fullerton in the offer
and sale of securities, in violation of NRS 90.570.
The complaint sought: injunctive relief against the respondents and the named
corporations enjoining them and Fullerton's agents from transferring or dissipating the assets
of the named corporations; the appointment of a temporary receiver who would assume
control of the corporate assets (including, presumably, the patent rights), and the benefits
received from respondents' activities; rescission of all agreements with the investors together
with restitution of the investors' funds; and civil penalties of $2,500 for each instance of a
securities act violation, together with costs and fees.
The parties stipulated to a temporary restraining order and the appointment of Matthew
Callister, Esq. as receiver of all corporate and individual defendants' assets. Callister
thereafter took possession of Fullerton and Bennett's personal papers, questioned them
regarding their sources of income and expenditures, and took control of all personal and
corporate bank accounts, requiring respondents to also give him monthly financial reports.
According to statements made by the criminal prosecutor during oral arguments on the
motion resulting in the present appeal, Callister informed the respondents one week after the
filing of the civil complaint that a criminal investigation of their activities was pending.
2

On September 12, 1991, a hearing was held on the State's motion for a permanent
injunction. Garrett Sutton and John Schell represented the defendants below. A complete
transcript of this hearing is not available in the record, but according to the respondents' brief,
the State's witnesses included a sheriff's deputy who had recorded a conversation with
Fullerton, showing that Fullerton had sold First Phoenix stock without disclosing either the
assignment to Crescent Products or the federal injunction.
According to the respondents' brief, John Schell testified on the defendants' behalf that he
had advised Fullerton that sales of First Phoenix stock did not violate the Utah injunction,
and that Fullerton was not required to apprise the First Phoenix investors of either the Utah
injunction or the assignment to Crescent Products since neither posed a risk to the investors.
Schell, who described himself as a commercial securities attorney, also testified that Fullerton
held the patent rights, was the sole owner of Crescent Products, and would own the
controlling interest in the newly formed Zip Nut, Inc., which Schell testified was the
corporation into which Fullerton's assets, Crescent Products and First Phoenix would be
placedgiving the First Phoenix investors "a share of a larger pie."
__________

2
The respondents neither confirm nor deny that this occurred in their brief, but merely point out that the
statement was made by the prosecutor, adding: If this [is] true, the Respondents were represented by John
Schell.
newly formed Zip Nut, Inc., which Schell testified was the corporation into which Fullerton's
assets, Crescent Products and First Phoenix would be placedgiving the First Phoenix
investors a share of a larger pie. Schell had enough confidence in the newly formed Zip
Nut, Inc. to invest in the new corporation himself, after full disclosure of the Utah litigation
and all assignments, and also testified that, while he would have structured the First Phoenix
offering differently had he been acting as Fullerton's counsel at the time, he saw nothing
illegal about it.
On September 17, 1991, District Judge Stone entered a preliminary injunction against the
defendants, enjoining them from engaging in any further transactions in violation of Nevada's
securities laws and ordered the appointment of Callister as receiver over all of the defendant
corporations' assets. The court order noted that the federal action pending in Utah also
involved the zip nut patent at issue here, and that Fullerton had acted in blatant violation of
the federal court's order when he dissolved his original corporation and created a new
corporation from which he sold stock based upon his rights in the patent at issue.
On October 24, 1991, a hearing was held for the purpose of receiving a status report from
Callister. At this hearing, the district court judge stated that he did not consider Fullerton to
be a thief, but simply not a very good businessman and further indicated his intention to sign
an order which, among other things, would allow[] zip nut to go forward with the licensing,
manufacture, [and] distribution of the product, apparently under the operative control of
investor/attorney John Schell. Thereafter, Judge Stone entered the promised consent order
on October 24, 1991, requiring, among other things, a reorganization plan to be sent to all
shareholders of First Phoenix which, according to appellant's opening brief, merged most of
Fullerton's corporations into Zip Nut, Inc. and allowed all of the investors to become
shareholders in the new corporation. The consent order also dismissed the complaint, without
prejudice, against Zip Nut, Inc., and released Zip Nut, Inc. from the receivership.
A subsequent hearing was held on November 7, 1991, at which the judge reiterated that I
don't think Mr. Fullerton is a crook, I think he is a lousy businessman, but he has not
intentionally tried to deprive anything of anybody [sic], and that's the bottom line here.
On November 12, 1991, a stipulation and settlement agreement was filed in the Utah
action, which called for the reinstatement of Fullerton Inc. and the forfeiture and
relinquishment by Fullerton of his stock in that entity, followed by the changing of the name
of Fullerton Inc. to a name not implying any connection with Fullerton or the rights covered
by the agreement.
Fullerton or the rights covered by the agreement. Appellant notes that the Utah settlement
agreement did not cancel the assignment of patent rights to Fullerton Zip Nut, Inc., which
Fullerton had recorded on January 13, 1983. Thus, it is not entirely clear how the resolution
of the Utah matter would affect the rights of the Nevada litigants. In any event, its eventual
dismissal seems to have indicated that Zip Nut, Inc. could go forward with its marketing of
the product, as in the words of Callister, in his grand jury testimony, that [Utah] lawsuit
ha[d] . . . been resolved.
On November 15, 1991, Judge Stone entered a second consent order approving Zip Nut,
Inc.'s offer (which, according to the appellant's brief was for Zip Nut, Inc. to accept
subscription agreements from First Phoenix, Inc. investors and to accept the assignment of
patent rights for the zip nut after the Utah federal litigation was dismissed), and, among other
things, dismissing without prejudice the complaint and receivership as to Fullerton Design,
First Phoenix, and Crescent Products upon their merger into Zip Nut, Inc. The receivership
was maintained over Fullerton and Bennett, requiring Callister's approval before either could
vote any shares or assign any interests.
Judge Stone later signed an affidavit (filed in the criminal proceedings) describing the
intended effect of the two consent orders and the factual findings necessary to support them:
3. After extensive hearings, conferences with the attorneys, review of many
documents, affiant determined that a prima facie showing of fraud by Robert Fullerton
in his dealings with the First Phoenix investors did not exist. On two occasions, affiant
made statements to this effect in open court to the assembled attorneys and investors.
4. The foregoing finding was essential to continue the civil proceedings in the
manner they were conducted. This determination that there was no fraud necessarily led
to the court orders consolidating the several corporate entities into Zip Nut, Inc.,
allowing Robert Fullerton to retain a majority ownership interest in Zip Nut, Inc., and
the election offered to the First Phoenix investors to accept stock in Zip Nut, Inc. or a
promissory note by Zip Nut, Inc. in an amount equal to their investment plus interest.[
3
]
5. If the State of Nevada or any other party to the civil action had proffered prima
facie evidence of fraud, affiant would not have proceeded with the case in the
manner above-described.
__________

3
Respondents maintain that the investors named in the indictment accepted the option of stock in Zip Nut, Inc.
However, appellant asserts that five First Phoenix investors elected to have a return of their investment funds,
through promissory notes, as no cash existed to pay them back.
would not have proceeded with the case in the manner above-described. The Deputy
Attorney General in the civil case told me on at least one occasion in chambers that no
criminal action would be filed by the State in this matter. If the State of Nevada had
informed affiant that it was going to proceed with a criminal prosecution of Robert
Fullerton for the same acts and conduct which was alleged in the civil action, affiant
would have taken measures to stay the civil action to ensure against a conflict in the
proceedings.
In an affidavit filed March 29, 1993, the Deputy Attorney General who handled the civil
case against respondents disputes Judge Stone's statement that Stone was told no criminal
action would be taken. This affidavit refers to a December 6, 1991, application and order
submitted by Callister and signed by Judge Stone which stated that criminal charges may be
brought. However, respondents allege it was this reference to the possibility of criminal
charges which prompted Judge Stone to inquire about the matter.
On December 6, 1991, an order was entered in the Utah action, adopting the terms of the
stipulation and settlement that had been filed therein and dismissing that action, contingent
upon the terms of the settlement agreement, and declaring the December 1988 dissolution of
Fullerton Inc., to be invalid.
4

Procedural history of the criminal action
On January 10, 1992, Deputy Attorney General Grenville Pridham sent a Notice of Intent
to Seek Indictment to various attorneys he believed represented Fullerton. One of the
attorneys to whom this notice was sent was John Schell. However, according to the
respondents' brief, Schell, at that time having assumed the presidency of Zip Nut, Inc., had
terminated his representation of the Respondents . . . [and] had begun trying to take control of
the corporation, and with it the right to develop the patented product, away from Fullerton.
Unrelated difficulties with the county grand jury delayed the criminal case until June 18,
1992, at which time a criminal complaint was filed charging Fullerton and Bennett with
multiple violations of Nevada's Uniform Securities Act and racketeering. Later, Notices of
Intent to Seek Indictment were sent again.
__________

4
We also note that on March 15, 1992, Bennett and Fullerton unsuccessfully filed a motion to have the
receivership terminated. This court, on appeal from the denial of the motion to terminate the receivership,
determined that the purposes of the receivership had not yet been fulfilled and accordingly issued an order
dismissing appeal on March 31, 1994. See Fullerton v. State, Docket No. 24398 (Order Dismissing Appeal,
March 31, 1994).
Respondents aver that at some time in the fall of 1992, Schell hired Dominic Gentile's law
firm to represent Zip Nut, Inc.'s interest in the criminal matter and pursue any possible
third-party claims Zip Nut might have against respondents.
5

The grand jury proceedings were held on November 18, 1992, and included the testimony
of thirteen First Phoenix investors identified in the indictment, as well as testimony by the
receiver, Matthew Callister. Respondents argue this hearing was flawed in that the prosecutor
failed to present exculpatory evidence, such as that the thirteen testifying investors had
elected to obtain stock in Zip Nut, Inc.; that Judge Stone had found against fraud; and that
Fullerton owned Crescent Products, to which the patent had been assigned.
In any event, the grand jury returned a true bill and an indictment was filed on the same
day charging respondents with multiple counts of violating the same provisions of NRS
Chapter 90 (NRS 90.310, 90.460, 90.570) as alleged in the civil complaint; four counts of
obtaining money under false pretenses, in violation of NRS 205.380 (these four counts were
later voluntarily dismissed by the State, see infra); and racketeering, in violation of NRS
207.400. The last two charges were in addition to the statutes identified in the civil complaint
as having been violated, but were based upon the same conduct which formed the basis for
the securities violations.
At their arraignment on December 11, 1992, respondents entered a plea of not guilty;
thereafter, respondents filed a motion for discovery which was heard on January 29, 1993. At
the hearing, respondents' counsel argued that Schell may have divulged information that was
subject to the attorney-client privilege during the course of consultations between Schell and
the State and between Schell and Callister (no specificity was provided as to what privileged
information may have been revealed). Prosecutor Pridham denied this, stating
Mr. Schell or Mr. Callister did not consult with me to enable me to write my indictment
or criminal complaint. . . . I have spoken with Mr. Schell, but he's indicated that he has
the attorney-client privilege . . . . I know I didn't use anything Mr. Schell told me in
preparation of any indictment. In fact, I don't even think Mr. Schell knew I was seeking
an indictment until a true bill was found.
On January 29, 1993, respondents petitioned the court for a writ of habeas corpus,
alleging, among other things, that their rights under the double jeopardy and due process
clauses of the U.S. and Nevada Constitutions were violated.
__________

5
Respondents rely for this assertion upon an unsigned, unnotarized affidavit of Zip Nut, Inc., on Gentile's law
firm's letterhead, and upon certain billing statements discussed more fully infra.
writ of habeas corpus, alleging, among other things, that their rights under the double
jeopardy and due process clauses of the U.S. and Nevada Constitutions were violated. On
March 19, 1993, respondents also filed a motion to dismiss for prosecutorial misconduct. The
latter motion alleged, Pridham's disavowals at the discovery hearing notwithstanding, that
Pridham had in fact worked very closely with Schell through Dominic Gentile, the attorney
Schell had hired to represent Zip Nut, Inc., in preparing and initiating the criminal charges
against respondents. The motion was supported by a billing statement from Gentile's law firm
charging Zip Nut, Inc. c/o John T. Schell, for services rendered. This statement (which
appellant asserts was stolen from the offices of Zip Nut, Inc.)
6
showed that Gentile, in his
representation of Schell's interests as president of Zip Nut, Inc., had assisted Pridham with the
preparation of the criminal action against Schell's former clients and reflects numerous
telephone as well as personal conferences between Schell, Gentile, and prosecutor Pridham.
For example: On November 12, 1992, Gentile's activities included Telephone conf. with
John Schell; telephone conference with Grenville Pridham; commenced preparation by
reviewing documents received from Schell; legal research re best RICO approach. On
November 13, 1992, Gentile held a conference with Grenville Pridham at his office and
reviewed his witness list and original draft of proposed indictment. On November 16, 1992,
Gentile conducted Legal research and telephone conferences with Grenville Pridham re
eliminating most of the alternative RICO counts and settling upon one or two solid ones.
Substantial factual discussion during these conversations. On November 17, 1992, Gentile
held multiple telephone conferences with John Schell and Grenville Pridham. On
November 19, 1992, Gentile held a telephone conf. with Grenville Pridham re modification
of Proposed Indictment.
7

On April 22, 1993, a hearing was held before District Judge Agosti on Fullerton and
Bennett's petition for a writ of habeas corpus and motion to dismiss. The State voluntarily
moved to dismiss all four counts of obtaining money under false pretenses for failure to
correctly instruct the grand jury as to that crime; accordingly, these counts were dismissed.
Before hearing argument, testimonial evidence was presented to Judge Agosti that Pridham
had, in another matter similar to the zip nut case, sought to use the receiver in a civil
proceeding as a witness in a parallel criminal prosecution, as he had done here.
__________

6
According to statements made by Fullerton's counsel at the hearing on the motion to dismiss and the habeas
petition, these documents were sent to Fullerton by one of Schell's employees who was thereafter fired.

7
Since the indictment was filed on November 18, 1992, it is unclear whether this date on Gentile's billing
statement is correct.
to use the receiver in a civil proceeding as a witness in a parallel criminal prosecution, as he
had done here.
8
During oral argument, Pridham now acknowledged that he had had many
conversations with Schell's attorney prior to the indictment.
After hearing the various arguments, Judge Agosti dismissed all remaining counts with
prejudice as having violated the petitioners' rights against double jeopardy (due to the
nonremedial nature of the sanctions sought in the civil proceeding) and to due process (due
to the use of information obtained by the receiver). Additionally, the district court ruled that
in the event of an appeal by the State, and a subsequent reinstatement of the criminal charges,
the Attorney General's office should be disqualified as the prosecutor because it had acted
under a conflict of interest. Thereafter, on May 3, 1993, Judge Agosti entered an order
granting petitions for writ of habeas corpus and motion to dismiss substantially coinciding
with her oral recitations at the hearing.
This appeal ensued.
DISCUSSION
Whether the criminal charges were properly dismissed for violating respondents' double
jeopardy rights
[Headnote 1]
Pursuant to Nevada's enactment of the Uniform Securities Act, the State may proceed
civilly as well as criminally in a case like this. NRS 90.615-.660. The institution of parallel
civil and criminal proceedings does not constitute a per se violation of the Double Jeopardy
Clause. See United States v. Kordel, 397 U.S. 1, 11 (1970). However, under certain
circumstances a civil penalty may constitute punishment under the double jeopardy clause.
United States v. Halper, 490 U.S. 435, 446-51 (1989).
In Halper, the Court held that a defendant already punished in a criminal prosecution
could not be subjected to an additional civil sanction to the extent that the second sanction
served the punitive purposes of retribution or deterrence. Id. at 44S-49.
__________

8
Respondents did not argue that it was inappropriate per se for a civil receiver to act as a witness in a criminal
prosecution, but (in the words of Judge Agosti) that
it is inappropriate to utilize the testimony of a receiver when the receiver was appointed at the State's
behest, and then thereafter manipulated to obtain information in order to make a criminal prosecution
work. In other words, to circumvent the due process rights of these defendants . . . [t]he receiver went out
and just seized everything . . . [and] was subsequently subpoenaed . . . . [Whereas] [t]here would have to
be an up-front criminal prosecution going on to get a search warrant.
In short, the parties were arguing, and the judge appeared to agree, that a civil proceeding [had been used] as
subterfuge to gain evidence for a criminal proceeding.
civil sanction to the extent that the second sanction served the punitive purposes of retribution
or deterrence. Id. at 448-49. In the instant case, the criminal prosecution followed the civil
litigation, but it seems clear that double jeopardy is implicated regardless of the order of the
proceedings. See, e.g., United States v. Sanchez-Escareno, 950 F.2d 193, 200 (5th Cir. 1991),
cert. denied, 506 U.S. 841, 113 S. Ct. 123 (1992) (the Halper principle that a civil penalty
can be factored into the double jeopardy matrix should apply whether the civil penalty
precedes or follows the criminal proceeding).
[Headnotes 2, 3]
We conclude that no double jeopardy violation occurred in the case before us simply
because respondents in this case have not been assessed any penalties in the civil proceeding.
It appears that the Double Jeopardy Clause does not apply when a civil award for an offense
punished criminally is merely sought but not assessed. See United States v. Reed, 937 F.2d
575, 578 (11th Cir. 1991) (Because no damage award has been imposed on defendant, the
Halper test comparing money damages with the government's loss is inapposite to the facts of
this case.); Manocchio v. Kusserow, 961 F.2d 1539, 1542 (11th Cir. 1992) (where no
monetary damages have been assessed, Halper does not apply); cf. Sanchez-Escareno, 950
F.2d at 200-01 (assessment of fines did not constitute punishment under the Double Jeopardy
Clause where the government had not yet sought to enforce them).
Therefore, the district court erred in concluding that the State's actions in bringing the
criminal charges against respondents violated respondents' rights under the Double Jeopardy
Clause.
Whether the prosecutor's use of the civil receiver constituted a violation of respondents' due
process rights justifying dismissal
[Headnote 4]
Appellant argues that there is no known privilege which would have kept respondents'
civil receiver, Matthew Callister, from testifying before the grand jury.
Appellant also points to the Kordel decision, cited above, as an example of a case where
the U.S. Supreme Court declined to overturn a parallel criminal conviction although certain
discovery in the government's civil case may have been helpful in the pursuit of criminal
charges. Using Kordel for support, appellant argues that although items turned over to the
receiver may have helped the State's criminal case, this does not constitute grounds for
dismissal where the receiver has not been shown to have acted at the State's direction in
obtaining information. Moreover, appellant contends that respondents failed to satisfy their
burden of proving that the State engaged the receiver to obtain information for use by the
State in criminally prosecuting respondents.
of proving that the State engaged the receiver to obtain information for use by the State in
criminally prosecuting respondents.
In Kordel, a company president and vice-president were convicted for the misbranding of
drugs in violation of federal law. The government took both civil and criminal action against
the offenders. In view of the criminal charges, defendants sought a stay in the civil matter and
from the civil discovery procedures. The stay was denied, thus prompting the vice-president
to answer the civil interrogatories. The civil matter was thereafter settled, but criminal
indictments followed, which later resulted in convictions. The court of appeals reversed the
convictions due to the possibility that interrogatories answered in the civil case had given the
government useful leads, thereby violating the parties' privilege against self-incrimination.
The Supreme Court reversed, reasoning that neither party was obligated to answer the
interrogatories, but could have invoked [the] Fifth Amendment privilege against compulsory
self-incrimination and passed the interrogatories to some other corporate officer whose
answers would not be self-incriminating. Kordel, 397 U.S. at 7-8.
In essence, the Supreme Court merely rejected the factual analysis of the court of appeals,
which had reasoned that the evidence was submitted to the government under threat of
forfeiture. However, the Kordel Court did affirm that [t]he Court of Appeals was correct in
stating that the Government may not use evidence against a defendant in a criminal case
which has been coerced from him under penalty of either giving the evidence or suffering a
forfeiture of his property.' Id. at 13. The Court also noted that [w]e do not deal here with a
case where the Government has brought a civil action solely to obtain evidence for its
criminal prosecution or has failed to advise the defendant in its civil proceeding that it
contemplates his criminal prosecution . . . . Id. at 11-12.
The respondents assert that the receivership was improperly used to build a case or garner
evidence for this eventual criminal action. However, the State and the receiver steadfastly
deny this allegation, and the prosecutor asserts that the vast majority of the evidence to be
used in the prosecution could have been obtained from sources other than from the
receivership action. Since no evidentiary hearing was held on this issue, we have no idea what
proposed evidence will be part of the State's case and what items could not have been secured
but for the receivership action. In short, we are left with conflicting statements of counsel.
The evidence concerning whether the respondents were advised of the possibility of a
criminal prosecution is equally equivocal. Judge Stone presided over the receivership case
and filed an affidavit in the criminal action that stated the respondents were not advised
during the receivership that a criminal prosecution was contemplated.
were not advised during the receivership that a criminal prosecution was contemplated.
However, the judge signed an order in December 1991 where he expressly stated just the
opposite: The Nevada State Securities Commission is still investigating Defendant
Fullerton's activities and criminal charges may be brought. The prosecutor maintains that the
respondents were well aware throughout the processing of the receivership action that
prosecution was a distinct possibility. Again, conflicting claims with little persuasive
evidence on either side. While we have no problem following the dictates of the Kordel
decision, the evidence is insufficient to establish that the receivership action was improperly
used and that the respondents did not know that prosecution was a possibility.
The evidence to support the district court's finding of a conflict of interest on the part of
the attorney general's office is equally problematic. The district court found that the criminal
complaint included a RICO charge for which the State sought forfeiture of the respondents'
property and Mr. Fullerton's patent. This would have benefited the investors and John Schell,
who had represented Fullerton but then ousted Fullerton from corporate control and became
President of Zip Nut, Inc. The court also observed that the deputy attorney general had several
substantive consultations with Dominic Gentile who was retained by Zip Nut, Inc. and John
Schell after Schell had replaced Fullerton; these conversations included the criminal charges
to be pursued against the respondents, the witnesses to be called to testify, and factual and
legal advice relevant to the forfeiture of the patents.
The district court relied upon the billings of attorney Gentile in making the finding that a
conflict of interest existed because Gentile was representing Schell and Gentile had
conversations with the prosecutor. The assumption is that Gentile revealed confidential
information acquired from Schell to the prosecutor. Gentile's legal billings show calls to the
deputy attorney general about the RICO charges to be stated in the complaint and that the
conversations were factual and substantial. However, we do not know what specific facts
were discussed by Gentile and the prosecutor, whether confidential conversations between
Schell and the respondents were revealed, or on the other hand whether the discussion merely
centered around how to charge a RICO violation and the evidence that was publicly known or
legally obtained. Neither the depositions of Dominic Gentile nor the deputy attorney general
was ever taken. The deputy attorney general adamantly denies that he secured any privileged
information from Gentile. While conversations between a prosecutor and a defendant's
former attorney rightfully raised the district judge's concern, the factual content of these
conversations is not in the record, and without this information, it cannot be determined
whether confidential information was improperly secured by the State.
record, and without this information, it cannot be determined whether confidential
information was improperly secured by the State.
CONCLUSION
[Headnotes 5, 6]
We conclude that the evidence before the district court did not support the findings that the
respondents' due process rights were violated by the prosecution's improper use of the civil
proceeding or that the State had a conflict of interest. Before this court will dismiss a case for
prosecutorial misconduct, the misconduct must be clearly demonstrated to be substantial and
prejudicial. See State v. Tapia, 108 Nev. 494, 835 P.2d 22 (1992). Further, a prosecuting
attorney's office should not be disqualified for a conflict of interest unless evidence
establishes that an extreme situation exists. Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219
(1982). Since such a showing was not made by the respondents, the district court erred in
dismissing this action and granting the writs of habeas corpus. Accordingly, we reverse the
granting of the writs of habeas corpus and the dismissal of this case and remand to the district
court for trial.
Steffen, C. J., with whom Springer, J., joins, dissenting:
I agree that there was no double jeopardy violation in the proceedings below but conclude
that the district court was correct in determining that due process violations justified granting
the petitions for writs of habeas corpus and the dismissal of the criminal counts against
Fullerton and Bennett with prejudice. I therefore dissent.
It is apparent to me that Judge Agosti surveyed with justifiable alarm the number and
nature of intersecting factors between the civil proceeding and receivership against Fullerton
and Bennett on the one hand, and the criminal proceedings resulting in their respective
indictments on the other. After evaluating these factors, the district judge concluded that it
would not be possible to clothe any criminal convictions against the beleaguered inventor and
his associate with sufficient indicia of due process to satisfy constitutional scrutiny. I agree.
The State of Nevada, through the Attorney General, filed a civil complaint for securities
fraud and the appointment of a receiver against Fullerton, various corporations and Bennett.
1

__________

1
As noted by the majority, Bennett and other corporate defendants were later added by amendment to the civil
complaint.
District Judge Stone, who presided over the securities fraud and receivership case, determined
that there was no fraud and that Fullerton, the inventor of what appears to be a highly
utilitarian product known as a zip nut, was simply a poor businessman. Although it is
unnecessary to repeat the factual and procedural recitals in the majority opinion, it should be
emphasized that the receiver, Matthew Callister, took possession of all of Fullerton's and
Bennett's personal papers, questioned them regarding their sources of income and
expenditures, and took control of all personal and corporate bank accounts, requiring
respondents to also give him monthly financial reports.
The civil action eventuated in a consent order that paved the way for a merger of a number
of Fullerton's corporations and a reorganization plan that were designed to facilitate the
licensing, manufacture and distribution of the zip nut under the apparent operative control of
investor/attorney John Schell, who had represented the defendants in the civil proceeding and
receivership. Zip Nut, Inc. was to be the vehicle through which the product would be
marketed and investors would be made whole. As a result, Zip Nut, Inc. was released from
the receivership, but Fullerton and Bennett remained under the control and monitoring of the
receiver.
At a hearing held before Judge Stone on November 7, 1991, the judge repeated his earlier
observations that I don't think Mr. Fullerton is a crook, I think he is a lousy businessman, but
he has not intentionally tried to deprive anything of anybody [sic], and that's the bottom line
here. Judge Stone eventually filed his affidavit in the criminal proceedings describing the
intended effect of the two consent orders he issued in the civil action, and their factual
underpinnings. In pertinent part, his affidavit declared:
3. After extensive hearings, conferences with the attorneys, review of many
documents, affiant determined that a prima facie showing of fraud by Robert Fullerton
in his dealings with the First Phoenix investors did not exist. On two occasions, affiant
made statements to this effect in open court to the assembled attorneys and investors.
4. The foregoing finding was essential to continue the civil proceedings in the
manner they were conducted. This determination that there was no fraud necessarily led
to the court orders consolidating the several corporate entities into Zip Nut, Inc.,
allowing Robert Fullerton to retain a majority ownership interest in Zip Nut, Inc., and
the election offered to the First Phoenix investors to accept stock in Zip Nut, Inc. or a
promissory note by Zip Nut, Inc. in an amount equal to their investment plus interest.
5. If the State of Nevada or any other party to the civil action had proffered prima
facie evidence of fraud, affiant would not have proceeded with the case in the manner
above-described. The Deputy Attorney General in the civil case told me on at least one
occasion in chambers that no criminal action would be filed by the State in this matter.
2
If the State of Nevada had informed affiant that it was going to proceed with a criminal
prosecution of Robert Fullerton for the same acts and conduct which was alleged in the
civil action, affiant would have taken measures to stay the civil action to ensure against
a conflict in the proceedings.
. . . .
7. Affiant was not informed that the receiver, Matthew Callister, had been
subpoenaed to testify before the grand jury. If affiant had been so informed prior to his
appearance, affiant would have ordered the subpoena quashed.
In seeking habeas relief on double jeopardy and due process grounds, and a dismissal of
charges based upon prosecutorial misconduct, respondents brought a number of interesting
and rather compelling facts to light. In support of the motion to dismiss, Fullerton and
Bennett postulated that the Deputy Attorney General, Grenville Pridham, may have received
privileged information from attorney John Schell either directly or through the receiver or
another attorney. Pridham's denials notwithstanding, several factors remain a thorn in the
State's side.
First, it is worthy of emphasis that attorney John Schell was not only an investor in First
Phoenix, he was one of the attorneys who represented respondents in the civil action and
receivership brought by the Attorney General. As noted by the majority, respondents' brief
indicated that Schell testified that he had advised Fullerton that sales of First Phoenix stock
did not violate the Utah injunction, and that Fullerton was not required to apprise the First
Phoenix investors of either the Utah injunction or the assignment to Crescent Products since
neither posed a risk to the investors."3
__________

2
This averment is contested by the Deputy Attorney General who handled the civil case against respondents, in
an affidavit filed March 29, 1993. This affidavit refers to a December 6, 1991, application and order submitted
by Callister and signed by Judge Stone which mentioned the possibility of criminal charges being brought.
However, respondents allege, persuasively, that this reference to the possibility of criminal charges prompted
Judge Stone to specifically satisfy himself on the subject by personal inquiry. Surely we may assume that Judge
Stone would not have positively stated in his affidavit that the Deputy Attorney General told him on at least one
occasion in chambers that no criminal action would be filed by the State in this matter if in fact no such
representation had been made.
to the investors.
3
Apparently Schell saw the economic potential of the zip nut, for
respondents' recitals indicate that Schell (who had been given notice of the intent to seek
indictment by Pridham because he believed Schell represented Fullerton) had become
president of Zip Nut, Inc., had terminated his representation of the respondents, and was
seeking to take control of the corporation from Fullerton and with it the right to proceed with
the development and marketing of the zip nut. It certainly must be presumed that Schell was
totally knowledgeable about all aspects of respondents' activities with the patented product
and the corporate entities connected to the product.
Although Pridham denied consulting with Schell and Callister in the preparation of the
indictment or criminal complaint, Fullerton and Bennett obtained evidence strongly
suggesting that Pridham had in fact worked very closely with Schell through attorney
Dominic Gentile, the attorney whom Schell had allegedly retained to represent Zip Nut, Inc.,
in the preparation of criminal charges against respondents. The evidence consisted of a billing
statement sent by Gentile's law firm to the attention of Schell, charging Zip Nut, Inc. for
services rendered. This statement (which allegedly was purloined from the offices of Zip Nut,
Inc.) indicated that Gentile, in representing Schell's interests as president of Zip Nut, Inc., had
assisted Pridham in preparing the criminal action against Schell's former clients (and apparent
competitors for control in the marketing of the zip nut). The statement evinces numerous
telephonic and personal conferences between Schell, Gentile, and prosecutor Pridham. As a
meaningful example noted by the majority, on November 12, 1992, Gentile's activities were
characterized on the statement as Telephone conf. with John Schell; telephone conference
with Grenville Pridham; commenced preparation by reviewing documents received from
Schell; legal research re best RICO approach. Additional notations, also identified in the
majority opinion, included: (1) an entry for November 13, 1992, indicating that Gentile held a
conference with Grenville Pridham at his office and reviewed his witness list and original
draft of proposed indictment; (2) an entry for November 16, 1992, indicating that Gentile
conducted Legal research and telephone conferences with Grenville Pridham re eliminating
most of the alternative RICO counts and settling upon one or two solid ones. Substantial
factual discussion during these conversations; (3) an entry for November 17, 1992,
indicating that Gentile held "multiple telephone conferences with John Schell and
Grenville Pridham;" and {4) an entry bearing what appears to be an erroneous date of
November 19, 1992 {the indictment against respondents was filed on November 1S,
1992), indicating that Gentile had conferred with Pridham by telephone "re modification
of Proposed Indictment."
__________

3
I will not burden this dissent with factual background and detail concerning the Utah litigation and the
assignment of the zip nut patent to Crescent Products Corporation, as they are sufficiently set forth in the
majority's opinion.
entry for November 17, 1992, indicating that Gentile held multiple telephone conferences
with John Schell and Grenville Pridham; and (4) an entry bearing what appears to be an
erroneous date of November 19, 1992 (the indictment against respondents was filed on
November 18, 1992), indicating that Gentile had conferred with Pridham by telephone re
modification of Proposed Indictment.
The foregoing contacts between Fullerton's former counsel and intended successor, Schell,
and Dominic Gentile, the attorney retained by Schell to represent the interests of Zip Nut, Inc.
(and hence Schell's own interests) and prosecutor Pridham, reflect a high level of cooperation
among individuals who had direct access, through Schell, to privileged information received
by Schell during his representation of Fullerton. Moreover, appearances of impropriety
increase with the realization that Schell stood to personally benefit from helping to separate
his former client, Fullerton, from the zip nut which Fullerton had invented and protected by
patent.
In addition to the foregoing, the testimony of the receiver, who had been appointed at the
behest of the Attorney General in the civil proceeding, before the grand jury was an added
factor that caused Judge Agosti to comment that:
it is inappropriate to utilize the testimony of a receiver when the receiver was appointed
at the State's behest, and then thereafter manipulated to obtain information in order to
make a criminal prosecution work. In other words, to circumvent the due process rights
of these defendants . . . [t]he receiver went out and just seized everything . . . [and] was
subsequently subpoenaed . . . . [Whereas] [t]here would have to be an up-front criminal
prosecution going on to get a search warrant.
As the majority opinion observes, Judge Agosti obviously agreed that the civil proceeding
had been used as a subterfuge to develop evidence for a criminal prosecution.
Judge Agosti's order granting respondents' petitions for writ of habeas corpus and motion
to dismiss essentially coincided with her oral recitations at the hearing:
Among the remedies sought by the state [in its civil action] was forfeiture of a
device commonly known as the Zip Nut, . . . as well as . . . stock in the several
corporate entities . . . . During the course of the civil case, both of the Defendants
provided information . . . to the Receiver . . . the prosecutor [has] acknowledged . . .
that this seizure of Defendants' papers and their interviews would have had to comport
with the Fourth and Fifth Amendments of the Constitution had a criminal prosecution
been pending.
After the Court had made significant determinations in the civil case against the
State's interest . . . the Attorney General decided to pursue this criminal action[] . . .
[and] filed a criminal complaint in which the same alleged fraudulent sales transactions
of First Phoenix, Inc. securities were charged against the Defendants. The complaint . . .
sought forfeiture of the Defendants' property and Mr. Fullerton's patent. . . . [B]ased in
significant part upon the testimony of the Receiver . . . an Indictment was returned in
November 1992. Also, it is undisputed that the Deputy Attorney General had several
substantive consultations with an attorney retained by the Defendants' former attorney
[in the civil matter], John Schell, regarding the criminal charges . . . . It is undisputed
that these consultations occurred during the time John Schell [as President of Zip Nut,
Inc.] was contesting Robert L. Fullerton's rights to the patent and that forfeiture of the
patent and the Defendants' property would inure to the benefit of John Schell. These
consultations make manifest the Attorney General's conflict of interest in that this
criminal prosecution is an attempt by the State to satisfy civil litigants and to obtain for
them by the criminal action that which the State has been unable to obtain in the civil
case. [Accordingly] the Court makes the following conclusions of law:
. . . .
The manner in which the State has proceeded against the Defendants through the
civil case and then the criminal case has violated the Defendants' rights under the Due
Process of Law Clause and the Double Jeopardy Clause. Therefore, all remaining
criminal charges in the Indictment are dismissed with prejudice.
If this conclusion is reversed and the criminal action reinstituted, the Nevada
Attorney General's Office is disqualified to prosecute it.
The majority has concluded that the prosecutor's use of the civil receiver did not adversely
impact respondents' due process rights. I do not agree, especially when viewed in
combination with the attorney general's rather extensive involvement with Fullerton's former
counsel, John Schell, through Schell's surrogate, attorney Dominic Gentile.
4

__________

4
I emphasize at this point that I impute no wrongdoing to attorney Gentile who was representing Zip Nut, Inc.
He had been engaged by Schell to achieve a result that would inure to the benefit of Zip Nut and Schell, as
undoubtedly relayed to Gentile. Moreover, since we do not have actual facts of the disclosures made to Pridham
by Schell through Gentile or otherwise, I do not pejoratively characterize Schell's behavior other than to note
that it has all the appearances of conduct calculated to prejudice his former client, Fullerton, to Schell's eventual
pecuniary advantage.
The United States Supreme Court, in United States v. Kordel, 397 U.S. 1 (1970) affirmed
that [t]he Court of Appeals was correct in stating that the Government may not use
evidence against a defendant in a criminal case which has been coerced from him under
penalty of either giving the evidence or suffering a forfeiture of his property.' Id. at 13. If
Fullerton and Bennett did in fact agree to the appointment of a receiver, as they assert, they
apparently did so in order to retain some interest in the assets which the State's complaint
sought to secure from them. The evident alternative to the receiver appeared to be the
complete forfeiture of any hoped-for future interest in their valuable assets, including the zip
nut patent. Moreover, the Kordel Court stated that
where no one [in the company] can answer the [civil] interrogatories addressed to the
corporation without subjecting himself to a real and appreciable risk of
self-incrimination[] . . . we may assume that in such a case the appropriate remedy
would be a protective order . . . postponing civil discovery until termination of the
criminal action.
Id. at 8-9. This is, of course, pertinent in light of Judge Stone's affidavit stating that he would
have postponed the civil matter, and quashed the appearance of the receiver in the criminal
matter, had he known the criminal matter was pending.
Even more germane here perhaps, is the ruling in Kordel rejecting the offenders' argument
that their due process rights had been violated. The Court noted that [w]e do not deal here
with a case where the Government has brought a civil action solely to obtain evidence for its
criminal prosecution or has failed to advise the defendant in its civil proceeding that it
contemplates his criminal prosecution . . . . Id. at 11-12.
Assuming, logically, that civil seizure is tantamount to civil discovery proceedings,
respondents' civil rights may have been violated if the civil receivership was used solely to
obtain evidence for the criminal case, or if the respondents were never advised, upon
stipulating to and cooperating with the receiver, that a criminal case might be pending.
Applying these factors to the instant case, Judge Agosti's statements at oral argument seem to
indicate her belief that the civil case may have been brought to obtain evidence for the
criminal prosecution, a belief that is certainly not without support.
There is, moreover, an evidentiary basis in the record for concluding that respondents were
not advised during the receivership that a criminal prosecution was contemplated. For
example, Judge Stone's affidavit indicates that opposite assurances were given.
given. It is also clear, from his own statements in the record, that the prosecutor refused to
inform respondents that criminal charges were going to be brought, although he was
personally and pointedly asked the question on the very day that he filed the criminal
complaint.
5

Although no focused evidentiary hearing was held by the district court to determine
whether the State filed the civil action solely as a means of providing evidence for the
criminal prosecution, or at what point respondents were aware of the possibility of criminal
charges, there is nevertheless support for the conclusion that Pridham's use of the civil
receiver as a source of information and testimony deprived respondents of their rights to due
process.
The receiver was able to seize information and evidence without a warrant, which was
later relied upon by the prosecutor. In the absence of the civil action, the State would have
had to obtain a warrant to secure the same information and evidence to support criminal
proceedings against respondents. Kordel lends support for the proposition that the complex of
factors existing here violates due process since there is record evidence indicating that the
State failed to advise respondents in the civil proceeding that it contemplated their criminal
prosecution. I must thus conclude that the ruling of the district court is entitled to deference
and affirmance for the reason stated. Where, as here, there is conflicting evidence, this court
should not interfere with the findings of the district court.
__________

5
Specifically, Pridham stated to Judge Agosti, rather inexplicably:
MR. PRIDHAM: And if the defendants are going to make an issue of their lack of notice, or knowledge
of all of the State's intention to criminally prosecute them, I personally can testify that on June 18th,
1992, when I came to Reno to file my criminal Complaint, when I did come to the civil hearing to
observe Mr. Sourwine specifically and pointedly ask me if there were going to be any criminal charges
brought against both of his clients, Miss Bennett and Mr. Fullerton. And both the defendants were within
earshot, curiously and eagerly waiting my response.
I informed Mr. Sourwine at that point that we don't confirm or deny the investigation, we don't notify
people in advance whenexcept for notice of Indictment.
THE COURT: Wait a minute, the day you filed . . . the complaint you wouldn't tell them you did that?
MR. PRIDHAM: I hadn't filed it yet.
THE COURT: You were intending to?
MR. PRIDHAM: Right.
Contrary to the implications at the beginning of his statement, Pridham's comments would seem to establish that
respondents did not, in fact, have notice or knowledge of the State's intentions with regard to criminal charges
being brought against them as late as June 18, 1992, and that the State's representatives continued to refuse to
inform them of any such intentions on the very day that the charges were filed.
For the reasons discussed above, I find ample reasons for deferring to the two district court
judges who heard the evidence and observed the demeanor of witnesses and counsel in the
civil and criminal proceedings against Fullerton and Bennett, and would affirm Judge
Agosti's rulings granting habeas corpus and dismissing the criminal counts against
respondents with prejudice. It strongly appears that when the State failed to wrest Fullerton's
patented invention from him through the civil action and receivership, it then turned to a
criminal proceeding based upon the same facts in order to accomplish what it failed to
accomplish in the civil matter. I believe that both Judge Stone and Judge Agosti saw through
to the heart of the matter and should be affirmed on grounds that respondents have been
denied their rights to due process. I therefore dissent.
____________
112 Nev. 1106, 1106 (1996) Baker v. Noback
ROGER BAKER, Appellant, v. CARL R. NOBACK, M.D., Respondent.
No. 26845
August 28, 1996 922 P.2d 1201
Appeal from order granting NRCP 41(e) motion to dismiss. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Patient filed medical malpractice action against medical clinic, which was entity not
subject to medical screening panel statute, in order to protect against running of two-year
limitations period, and subsequently filed complaint against physician with the screening
panel. After panel issued its decision, plaintiff filed amended complaint, naming physician
and adding malpractice claims against him. The district court granted physician's motion for
mandatory dismissal on ground that action was not brought to trial within five years after
plaintiff filed action against clinic. Plaintiff appealed. The supreme court held that time
during which complaint was pending before panel was excluded from five-year mandatory
dismissal.
Barker, Gillock, Koning, Brown and Earley and Janet S. Markley, Las Vegas, for
Appellant.
Jimmerson, Davis and Santoro and Lynn M. Hansen, Las Vegas, for Respondent.
Time during which medical malpractice complaint against physician was pending before screening panel pursuant to Medical
Screening Panel Statute could not be included in calculating five-year mandatory dismissal period. NRS 41A.016(1); NRCP 41(e).
Rule requiring trial court to dismiss action unless it is brought to trial within five years is intended to compel expeditious
determinations of legitimate claims; dismissal after five years is mandatory, and only discretionary aspect of dismissal is whether it is
with or without prejudice. NRCP 41(e).
OPINION
Per Curiam:
This appeal requires this court to review the effect of the interplay between the Nevada Rules of Civil Procedure, case law interpreting
those rules, and the Nevada Medical-Legal Malpractice Screening Panel statute, NRS 41A.
Appellant Roger M. Baker pursued a medical malpractice action against Steinberg Diagnostic Medical Imaging and three
doctors, including respondent Dr. Carl R. Noback. Because Steinberg Diagnostic is an entity not subject to the provisions of NRS 41A et
seq., Baker filed an action against Steinberg Diagnostic on November 15, 1989, in order to protect against the running of the two-year
limitations period. The next day, Baker commenced an action for medical malpractice pursuant to NRS 41A.016(1) by filing a complaint
with the Medical-Legal Malpractice Screening Panel against Drs. Leon and David Steinberg and Dr. Noback. After the panel issued its
decision, Baker filed an amended complaint in district court, naming Dr. Noback and adding malpractice claims against him. In February
1995, the district court issued an order granting Dr. Noback's NRCP 41(e) motion for mandatory dismissal. The district court calculated the
five-year period from the date of the filing of the original complaint.
On appeal, Baker contends that the district court erred by including the time during which his complaint was pending before the
screening panel as part of the five-year period. We agree and remand this case for further proceedings.
FACTS AND PROCEDURAL HISTORY
The underlying event giving rise to Baker's medical malpractice claims occurred on September 16, 1987. Baker had been experiencing
back pain as the result of a work-related injury. On September 16, Dr. Noback performed a lumbar discography to relieve Baker's
pain.
relieve Baker's pain. The procedure took place at Steinberg Diagnostic Medical Imaging (the
clinic). Drs. Leon and David Steinberg own the clinic.
After the lumbar discography, Baker's back pain increased and he experienced numbness
in his limbs. On approximately October 26, 1987, Baker was admitted to a hospital in
California. Baker alleged that on November 17, 1987 he became aware that the treatment he
had received at [the clinic] . . . was erroneous and negligent and had resulted in his illness,
specifically a vertebral disc infection and osteomyelitis, and hospitalization.
On November 15, 1989, Baker filed a complaint in district court against the clinic and its
owners. The following day, Baker commenced an action for medical malpractice pursuant to
NRS 41A.016(1) by filing a complaint with the Medical-Legal Malpractice Screening Panel
(the panel) against Drs. Leon and David Steinberg and Dr. Noback. The parties to the action
agreed that an answer to the complaint would not be filed until after the panel rendered its
decision.
On July 25, 1990, Baker received notification that the panel was unable to reach a decision
regarding Dr. Noback; however, the panel concluded that there was no reasonable probability
of medical malpractice by the Steinbergs. Baker then filed an amended complaint in the
district court on August 13, 1990. The amended complaint named Dr. Noback as a defendant
and alleged that his treatment of Baker fell below the requisite standard of care and that he
failed to obtain Baker's informed consent to the treatment. Both Dr. Noback and the clinic
filed answers on August 23, 1990. The district court set a discovery and motion schedule and
ordered the parties to be prepared for trial on the court's first available trial date beginning
February 10, 1992.
Thereafter the case was set and reset for trial at least four times. The first trial date was set
for June 8, 1992, and the fifth trial date was scheduled for December 5, 1994.
1

Apparently, neither party received notice of the December 5, 1994 trial date, and although
the district court could have accommodated a sixth trial date on January 23, 1995, Dr.
Noback's attorney, Lynn Hansen, advised Baker's attorney, Janet Markley, by letter that she
could not stipulate to an NRCP 41(e) extension of the five-year period that would
accommodate a trial in January 1995.
On November 16, 1994, Dr. Noback filed an NRCP 41(e) motion for mandatory dismissal
based upon Baker's failure to bring the action to trial within five years from the date the
original complaint was filed.
__________

1
As of March 18, 1993, by two stipulations and orders, the clinic and its owners were dismissed with prejudice
from the action.
original complaint was filed. Baker opposed the motion to dismiss and filed a motion to
extend the five-year rule. After a hearing, the district court granted the motion for mandatory
dismissal and denied the motion to extend the five-year rule.
On December 22, 1994, Baker filed a motion for relief from the mandatory dismissal
pursuant to NRCP 60(b). Baker argued that the parties and the court had mistakenly
calculated the five-year period from the date of filing of the original complaint (November
15, 1989) rather than the date of the amended complaint, August 13, 1990, when Dr. Noback
was named as a party defendant after completion of the required statutory proceedings before
the panel.
Dr. Noback insisted that the amended complaint related back to the original complaint, a
proposition accepted by the district court in denying relief to Baker.
The district court issued two written orders. In an order entered on February 1, 1995, the
district court granted the motion for mandatory dismissal and denied the motion to extend the
five-year rule. The district court also awarded costs in the amount of $9,500.00 to Dr.
Noback. In a second order entered on February 8, 1995, the district court denied Baker's
motion for relief from dismissal, basing the decision upon NRCP 15 and Volpert v. Papagna,
85 Nev. 437, 456 P.2d 848 (1969), and ruling that the correct date for calculation is the
commencement of the action by the filing of the initial Complaint.
DISCUSSION
[Headnote 1]
Because the clinic was not subject to the provisions of NRS 41A et seq.,
2
Baker filed a
complaint against the clinic on November 18, 1989 in order to protect his claim against the
running of the statute of limitations. Meanwhile, his complaint against the doctors was
pending before the panel. More than eight months passed before the panel rendered its
decision. Within thirty days thereafter, Baker amended his complaint to assert claims for
medical malpractice against Dr. Noback. When the district court granted the mandatory
dismissal, it relied upon NRCP 15(c) and our ruling in Volpert as support for the proposition
that the five-year period must be calculated from the date of the filing of the original
complaint. We disagree and conclude that the time during which a complaint is pending
before the panel should be excluded from the five-year mandatory dismissal period.
__________

2
See NRS 41A.009 (hospital is subject to NRS 41A); NRS 449.012 (defining hospital); Gerald I. Gillock &
Dean P. Vernon, Procedural Technicalities: Filing Suit and Discovery, in Medical Malpractice in Nevada
40-41 (Nat'l Business Inst. 1990).
panel should be excluded from the five-year mandatory dismissal period.
[Headnote 2]
Pursuant to NRCP 41(e), a court must dismiss an action unless such action is brought to
trial within five years after the plaintiff has filed his action, except where the parties have
stipulated in writing that the time may be extended. The five-year rule is intended to compel
expeditious determinations of legitimate claims. C.R. Fedrick, Inc. v. Nevada Tax Comm'n,
98 Nev. 387, 389, 649 P.2d 1372, 1374 (1982). Dismissal after five years is mandatory and
the only discretionary aspect of the dismissal is whether it is with or without prejudice. Home
Sav. Ass'n v. Aetna Cas. & Surety, 109 Nev. 558, 563, 854 P.2d 851, 854 (1993). We have
held that the filing of an amended complaint is irrelevant to the calculation of the five-year
period under NRCP 41(e). See, e.g., Johnson v. Harber, 94 Nev. 524, 527, 582 P.2d 800,
801-03 (1978); Volpert v. Papagna, 85 Nev. 437, 440, 456 P.2d 848, 850 (1969).
NRS 41A.016(1) requires that a medical malpractice claim be submitted to a screening
panel and a determination made by the panel before a cause of action for medical malpractice
may be filed. Although NRS 41A.097(2)(b) tolls the statute of limitations for filing an action
in the district court from the date a claimant files a complaint for review by a screening
panel until 30 days after the date the panel notifies the claimant, in writing, of its findings,
3
the statute of limitations is not tolled with respect to any claims against defendants not subject
to the provisions of NRS 41A et seq.
The circumstances of this case are analogous to those considered in Boren v. City of North
Las Vegas, 98 Nev. 5, 638 P.2d 404 (1982). In Boren, we adopted a rule providing that the
time during which the parties are prevented from bringing an action to trial by reason of a
court-ordered stay shall not be included in determining the five-year period under Rule 41(e).
We reasoned that it would be patently unfair to dismiss an action for failure to bring it to trial
where a district court's stay order prohibited the parties from going to trial within the
five-year period. Boren, 98 Nev. at 5-6, 638 P.2d at 404-05.
In the case at bar, the Medical-Legal Screening Panel statute worked to create a similar
roadblock interfering with the parties' ability to go to trial. Pursuant to NRS 41A.010(1), a
cause of action for medical malpractice may not be filed in district court until it has been
submitted to and decided by a panel. In most cases, NRS 41A.016(1) would not create a
problem with respect to the five-year rule under NRCP 41{e).
__________

3
The 30-day provision was added during the 1989 legislative session and became effective on May 26, 1989.
1989 Nev. Stat., Ch. 194, 13, at 424.
to the five-year rule under NRCP 41(e). However, in cases such as the one before us,
involving defendants both subject and not subject to NRS 41A.016(1), a unique problem
arises. The plaintiff must proceed in district court against defendants who are not subject to
the screening process in order to protect against the period of limitations, but cannot name
screening panel defendants in the same complaint. The plaintiff must wait until the panel has
rendered its decision before proceeding against the defendants who were brought before the
panel. Moreover, in the instant case, the parties agreed that the claims against all of the
defendants should be pursued in one action and that the action would not proceed on the
initial complaint until the panel rendered its decision with respect to the doctors. Under these
circumstances, it would be doubly unfair to include the time during which the complaint
against Dr. Noback was pending before the panel in computing the five-year period under
Rule 41(e).
Dr. Noback responds to the inordinate circumstances created by the statute by suggesting
that Baker should have named him as a party to the original complaint and then sought a stay
of the proceedings pending the panel's findings. We do not agree. In the first place, even if
such a procedure could be construed as acceptable practice under the statute, it would clearly
attenuate the beneficial purposes of the statute by subjecting physicians to the notoriety and
trauma of a medical malpractice complaint before the matter was ever considered by a
screening panel. Moreover, the fundamental purpose of the statute in discouraging the filing
of nonmeritorious medical malpractice claims would also be partially frustrated.
Dr. Noback also contends that based upon the numerous continuances in this case and the
fact that Baker had over four years within which to bring the action to trial, the district court's
dismissal was proper. We disagree. Although these facts might support an exercise of
discretion to dismiss a complaint,
4
the district court in this case exercised no discretion in
dismissing the action under the mandatory five-year provision of the rule. See Home Sav.
Ass'n, 109 Nev. at 563, 854 P.2d at 854.
CONCLUSION
Based on the foregoing analysis,
5
we conclude that the time during which a medical
malpractice complaint is pending before a screening panel may not be included in
calculating the five-year mandatory dismissal period under NRCP 41{e).
__________

4
For example, NRCP 41(e) also provides that a cause of action may be dismissed for want of prosecution if it
has not been brought to trial within two years of the date the plaintiff filed the action. The two-year rule is
discretionary.

5
We have not addressed the constitutional arguments raised by Baker because they are unnecessary to the
determination of this appeal. See Hollis v. State, 96 Nev. 207, 210, 606 P.2d 534, 536 (1980).
screening panel may not be included in calculating the five-year mandatory dismissal period
under NRCP 41(e). Accordingly, the district court's order dismissing Baker's complaint
against Dr. Noback is reversed and the case is remanded for further proceedings. As a result,
the award of costs to Dr. Noback is vacated.
____________
112 Nev. 1112, 1112 (1996) SIIS v. Miller
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant/Cross-Respondent, v. RALPH MILLER, Respondent/Cross-Appellant.
No. 26980
August 28, 1996 923 P.2d 577
Appeal and cross-appeal from an order of the district court denying a petition for judicial
review. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
State Industrial Insurance System (SIIS) petitioned for review of hearing officer's
determination that, where workers' compensation claimant was awarded permanent total
disability (PTD) benefits after having been previously awarded and paid permanent partial
disability (PPD) lump sum benefits, his PTD benefits would be reduced only by actual
amount of PPD benefits paid to him, rather than by percentage of his PPD. The district court
denied petition. SIIS appealed. The supreme court, Shearing, J., held that proper method of
reducing PTD benefits was to deduct from monthly PTD benefits the value of previously
received PPD lump sum awards, that is, amount per month that claimant would have received
had he elected to receive monthly installments.
Vacated and remanded.
Springer and Rose, JJ., dissented.
Lenard T. Ormsby, General Counsel, and Shirley D. Lindsey, Associate General Counsel,
Nancyann Leeder, Nevada Attorney for Injured Workers, and Gary T. Watson, Deputy
Nevada Attorney for Injured Workers, Carson City, for Respondent.
Where workers' compensation claimant was awarded permanent total disability (PTD) benefits after having been previously
awarded and paid permanent partial disability (PPD) lump sum benefits, proper method of reducing his PTD benefits was to deduct
from monthly PTD benefits the value of his previously received PPD lump sum awards, that is, amount per
month that he would have received had he elected to receive monthly installments; such method was
consistent with statute that spoke specifically to previous PPD awards paid in lump sum, and such method
did not unjustly enrich SIIS in that it took into account the time value of money.
112 Nev. 1112, 1113 (1996) SIIS v. Miller
benefits the value of his previously received PPD lump sum awards, that is, amount per month that he would have received had he
elected to receive monthly installments; such method was consistent with statute that spoke specifically to previous PPD awards paid
in lump sum, and such method did not unjustly enrich SIIS in that it took into account the time value of money. NRS 616C.440(4)(a).
2. Administrative Law and Procedure; Statutes.
Construction of administrative statute is question of law for supreme court's de novo review.
3. Statutes.
Specific statute takes precedence over general statute.
4. Statutes.
State Industrial Insurance System (SIIS), as administrative agency charged with duty of administering statute at issue in case
before supreme court, was entitled to receive deference from court to its interpretations of laws it administered, so long as such
interpretations were reasonable and consistent with legislative intent.
Supreme court is not empowered to go beyond face of unambiguous statute to lend it construction contrary to its plain meaning
and not apparent from legislative history.
OPINION
In May 1984, respondent/cross-appellant Ralph Miller was employed as an operator in the production department of Pacific
Engineering Company of Nevada in Henderson, Nevada, when his low back was injured in a job accident. Later in 1984, he underwent
L3-4 and L4-5 discectomy surgery and laminectomy surgery. Miller filed a claim for worker compensation with the
appellant/cross-respondent State Industrial Insurance System (SIIS).
In October 1985, Miller was rated at twenty-three percent (23%) whole body permanent partial disability (PPD) impairment by Dr.
Butters, SIIS medical advisor; in November 1985, pursuant to former NRS 616.607(1), he elected to receive a one-time lump sum payment
from SIIS of $45,236.22
1
rather than receive monthly payments of $281.60 until he reached the age
of 68 on February 14, 2015.
Miller's work-related injury worsened thereafter. After reopening his claim and receiving
further medical benefits, including temporary total disability (TTD) compensation,
2
Miller
underwent a second PPD evaluation in 19S7 and was found to have a PPD whole body
impairment of twenty-seven percent {27%).
__________

1
There is other evidence in the record that the lump sum payment was $46,145.77.

2
The SIIS offset a portion of his TTD compensation with a bi-weekly recoupment of his previous PPD award
pursuant to former NRS 616.613.
112 Nev. 1112, 1114 (1996) SIIS v. Miller
underwent a second PPD evaluation in 1987 and was found to have a PPD whole body
impairment of twenty-seven percent (27%). In January 1988, he received a second one-time
lump sum payment of $7,768.60
3
for the additional four percent (4%) disability in lieu of
receiving $48.97 in monthly payments until he reached the age of 70
4
on February 14, 2017.
In February 1993, Miller was granted permanent total disability (PTD) status after careful
review by SIIS's medical advisor and administrative staff.
Miller was entitled to receive $1,360.40 per month as PTD benefits (66 2/3 percent of his
average monthly wage of $2,040.60) pursuant to former NRS 616.580(1)(a). However, this
amount for Miller's total disability needed to be adjusted to reflect the lump sum payments
Miller received for his partial disability. In calculating the amount of PTD benefits SIIS
would actually pay, SIIS declared that it would deduct the percentage of Miller's PPD, 27%,
from his total monthly PTD payment until his 68th birthday. At that time, SIIS would remove
the 23% reduction and deduct only the remaining 4% of his total monthly PTD payment until
his 70th birthday. After the 70th birthday, SIIS would initiate the full monthly PTD payment
of $1,360.40. Thus, the monthly calculation would be as follows:
$2040.60 x 2/3 = $1360.40
$1360.40 x 73% (100% 23% 4%) = $993.09
(to age 68)
$1360.40 x 96% (100% 4%) = $1305.98 (to age 70)
In 1993, Miller filed an appeal from SIIS's decision and a hearing was held before a
hearing officer. The hearing officer affirmed SIIS's determination. Miller then filed an appeal
from that decision with an appeals officer. In 1994, the appeals officer held that SIIS erred in
reducing Miller's PTD benefits by the percentage of previously awarded PPD, concluding
that, pursuant to former NRS 616.613(1), SIIS should reduce the PTD only by the actual
dollar amount of PPD benefits paid to Miller rather than by the percentage of his PPD.
Accordingly, SIIS could only reduce Miller's PTD compensation until it recovered the exact
amount of the lump sums. Once the exact sums were recovered, there could be no further
deduction. Under this requirement, the amount reduced from Miller's monthly PTD
compensation would be substantially less than under the "percentage of disability"
formula used by SIIS.
__________

3
There is other evidence in the record that the lump sum payment was $8,236.14.

4
Former NRS 616.605(6) provided that lump sum awards be calculated until the age of 70, or for a five-year
period, whichever is later. In a previous version, lump sums were calculated to age 68. That is why Miller's first
lump sum at 23% was calculated to age 68.
112 Nev. 1112, 1115 (1996) SIIS v. Miller
be substantially less than under the percentage of disability formula used by SIIS.
In response to this decision, SIIS filed a petition for judicial review with the district court
in April 1994. Miller later cross-petitioned, claiming that the appeals officer erred in
permitting SIIS to deduct any previous PPD compensation paid to Miller. In February 1995,
the district court affirmed the appeals officer's decision by denying both the petition and
cross-petition for judicial review.
SIIS filed this appeal and now claims that the July 1, 1995, amended version of NRS
616.580, now codified as NRS 616C.440, which is retroactively applicable to Miller's PTD
claim, mandates that SIIS deduct the value
5
of Miller's prior PPD awards from Miller's PTD
compensation, i.e., Miller's PTD compensation should be calculated as 66 2/3 percent of his
average monthly wage, less the amount he would have received in monthly compensation
until the age used in calculating his lump sum award, to wit:
$2040.60 x 2/3 = $1360.40
281.60 until 2/14/15

________

$1078.80
48.97 until 2/14/17

________

$1029.83
Accordingly, SIIS claims Miller's PTD benefits should be paid at the monthly rate of
$1,029.83 until 2/14/15, then increase by $281.60 to $1311.43 until 2/14/17, after which time
Miller can receive the full amount of his PTD monthly payments. This calculation would
allow SIIS to deduct substantially more from Miller's PTD compensation than if SIIS could
only deduct the actual amount paid to Miller in lump sum.
Miller filed a cross-appeal, claiming that there should be no deduction whatsoever based
on the prior PPD awards. Nevertheless, the statute relevant to Miller's cross-appeal, former
NRS 616.613, has also been amended, NRS 616C.405, and Miller now concedes that his
cross-appeal claim is meritless in light of the amendment.
In sum, there are three ways of reducing Miller's PTD compensation that are or have been
contemplated in this case. The first is to reduce the PTD compensation by the percentage of
PPD. However, that method is no longer contemplated by the parties since the amended
statutes do not allow for this type of deduction.
__________

5
Value takes into consideration that money loses value over time. It is SIIS's contention that Miller's lump sum
awards reflected the present value of Miller's PPD benefits and thus were the financial equivalent of the total
money Miller was entitled to receive in monthly payments over the approximately 29-year span.
112 Nev. 1112, 1116 (1996) SIIS v. Miller
parties since the amended statutes do not allow for this type of deduction. The second is to
reduce the PTD compensation until SIIS recovers the actual amount of PPD it awarded to
Miller in lump sum. This is the method used by the appeals officer and upheld by the district
court and urged by Miller here. The third is to reduce Miller's monthly PTD compensation by
the value of Miller's previously received PPD lump sum awards, i.e., the amount per month
that Miller would have received had he elected to receive monthly installments. This is the
method urged by SIIS on appeal.
[Headnote 1]
The sole issue presented by this appeal is how Miller's PTD benefits are to be calculated
under NRS 616C.440 (former NRS 616.580, as amended effective July 1, 1995).
[Headnote 2]
The appeals officer and the district court did not have the benefit of this new statute when
it made its decisions, and this court must now determine how the offset in payments should
be calculated under it. The construction of an administrative statute is a question of law for
this court's de novo review. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993);
Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984); American Int'l
Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983).
The relevant portions of NRS 616C.440 state as follows:
1. Except as otherwise provided in this section and NRS 616C.175, every employee
in the employ of an employer, within the provisions of chapters 616A to 616D,
inclusive, of NRS, who is injured by accident arising out of and in the course of
employment, or his dependents as defined in chapters 616A to 616D, inclusive, of
NRS, is entitled to receive the following compensation for permanent total disability:
(a) In cases of total disability adjudged to be permanent, compensation per month of
66 2/3 percent of the average monthly wage.
(b) If there is a previous disability, as the loss of one eye, one hand, one foot or any
other previous permanent disability, the percentage of disability for a subsequent injury
must be determined by computing the percentage of the entire disability and deducting
therefrom the percentage of the previous disability as it existed at the time of the
subsequent injury, but such a deduction for a previous award for permanent partial
disability must be made in a reasonable manner and must not be more than the total
amount which was paid for the previous award for permanent partial disability.
112 Nev. 1112, 1117 (1996) SIIS v. Miller
and must not be more than the total amount which was paid for the previous award for
permanent partial disability.
. . . .
4. If an employee who has received compensation in a lump sum for a permanent
partial disability pursuant to NRS 616C.495 is subsequently determined to be
permanently and totally disabled, the compensation for the permanent total disability
must be reduced as follows:
(a) If the employee has not received a minimum lump sum, the employee's insurer
shall deduct from the compensation for the permanent total disability an amount equal
to the monthly installment rate for awards for permanent partial disability until the
employee reaches the age upon which his disability was calculated; or
. . . .
The provisions of this subsection are retroactive for all claims for compensation for a
permanent total disability remaining open on July 1, 1995.
(Emphasis added).
Miller focuses on the language in NRS 616C.440(1)(b) for the proposition that SIIS may
only recover the exact amount of compensation actually paid to him: [S]uch a deduction for
a previous award for permanent partial disability must be made in a reasonable manner and
must not be more than the total amount which was paid for the previous award for permanent
partial disability. (Emphasis added). Thus, he contends that this court should affirm the
appeals officer's decision on the grounds that the 1995 amendments do not change the result
in his case and actually support the appeals officer's decision. We disagree with Miller's
contention.
NRS 616C.440(1)(b) is not as specific as the language in NRS 616C.440(4)(a), which
clearly controls the present case. NRS 616C.440(1)(b) does not speak specifically to previous
PPD awards paid in lump sum pursuant to NRS 616C.495 (former NRS 616.607), as Miller
was paid. Moreover, NRS 616C.440(1)(b) contains language regarding a subsequent injury.
Miller suffered no subsequent injury upgrading him to PTD status. In contrast, NRS
616C.440(4)(a) is quite specific and dispositive of the instant case. Tracking the language in
that subsection as quoted above, Miller, the employee, received compensation in a lump sum
for a PPD pursuant to NRS 616C.495 (former NRS 616.607) and was subsequently
determined to be permanently and totally disabled. Accordingly, the compensation for the
PTD must be reduced as follows: since Miller did not receive a minimum lump sum, SIIS
must deduct from the compensation for PTD "an amount equal to the monthly installment
rate" for his PPD awards until he "reaches the age upon which his disability was
calculated."
112 Nev. 1112, 1118 (1996) SIIS v. Miller
pensation for PTD an amount equal to the monthly installment rate for his PPD awards
until he reaches the age upon which his disability was calculated.
[Headnote 3]
Rules of statutory construction provide that a specific statute takes precedence over a
general statute. SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987). We agree
with SIIS that NRS 616C.440(4)(a) contains language that is specifically applicable to the
instant casea case where the PPD awards were paid in a lump sum pursuant to NRS
616C.495 (formerly NRS 616.607). Accordingly, SIIS may deduct the value of the
compensation paid to Miller as represented in the monthly installments Miller would have
received had he not taken a lump sum payment.
[Headnote 4]
In SIIS v. Snyder, 109 Nev. 1223, 1228, 865 P.2d 1168, 1171 (1993), this court stated the
following:
An administrative agency such as SIIS, charged with the duty of administering an act, is
impliedly clothed with power to construe the relevant laws and set necessary precedent
to administrative action. The construction placed on a statute by the agency charged
with the duty of administering it is entitled to deference. We find the SIIS' requirements
to be a reasonable construction of and consistent with the legislative intent behind NRS
616.580.
(Citations omitted). SIIS, the administrative agency charged with the duty of administering
the statute at issue in this case, is entitled to receive deference from this court to its
interpretations of the laws it administers so long as such interpretations are reasonable and
consistent with the legislative intent. Id. Given that SIIS's interpretation of NRS
616C.440(4)(a) is correct when examining the specific language of that subsection, Miller
would nevertheless have us believe that this interpretation is unreasonable and inconsistent
with the legislative intent behind NRS 616C.440. Again, we disagree with Miller.
Miller argues that SIIS's interpretation of NRS 616C.440(4) is unreasonable as SIIS will be
unjustly enriched if it is allowed to recapture the value, rather than the actual amount, of the
prior lump sum PPD awards paid to him. Miller is right that SIIS will collect more through its
proposed method than if it were only allowed to recover the actual amount of the lump sums
paid to Miller. However, we fail to see how this qualifies as unjust enrichment.
Miller's argument ignores the commercial reality that money has value over time and that
the lump sum awards given to Miller represented the present-day value of the total payments
he would have received had he elected monthly or annual payments over a nearly 29-year
period.
112 Nev. 1112, 1119 (1996) SIIS v. Miller
have received had he elected monthly or annual payments over a nearly 29-year period. Thus,
the lump sums and installment payments are financial equivalents. In calculating the
present-day value of the installment payments, SIIS reduced the amount of the total payments
Miller would have received in installments to reflect the then present value of the stream of
income. When the present value of money due in the future is reduced to present value, some
factor must be used to reflect the reasonable earning power of the money over time. That
factor varies based on what is viewed as a reasonable rate of interest. In the instant case, the
factor used to calculate the present value of Miller's awards was established by using actuary
tables adopted by the Division of Industrial Relations of the Department of Business and
Industry for the State of Nevada.
6
According to SIIS, the installment payment plan offered
Miller in 1985 would have been the approximate equivalent of investing the money in a
savings account insured by the federal government. In 1985, Miller had the option of
accepting the guaranteed annual return or of taking his chances in generating a higher yield.
Miller elected to take the lump sums and had the option of directing his investment
personally. If Miller had not elected to take the lump sums, he would have received the
monthly installments. It is exactly those identical installment amounts that SIIS is seeking to
offset from Miller's PTD benefits. Indeed, it is reasonable to assume that if SIIS had
possession of the lump sum money paid to Miller, SIIS would gain interest income from that
money sufficient to pay Miller the monthly PPD installments as they came due over the
approximately 29-year period.
In fact, if Miller prevails in this matter, it is Miller, not SIIS, who will be unjustly enriched
in that he will have the power to generate interest income from the lump sums with minimum
deductions in his PTD benefits. This would amount to giving Miller an interest-free loan, i.e.,
it would have the same financial impact as if SIIS gave Miller a loan in 1985 and 1988 and
allowed him to repay it, without interest, over a multi-year period.
We conclude that SIIS's interpretation of NRS 616C.440(4) is reasonable in light of the
financial circumstances outlined above.
7

__________

6
See former NRS 616.053 (current 616A.100); former NRS 616.607(5) (current NRS 616C.495(5)).

7
NRS 616C.440(4)(a) completely harmonizes with NRS 616C.405(1):
Except as otherwise provided in subsection 4 of NRS 616C.440, an employee who is receiving
compensation for:
1. A permanent total disability is not entitled to compensation for permanent partial disability during the
period when he is receiving compensation for the permanent total disability.
Under this statute, installment payments of PPD must cease when an injured worker is deemed eligible for PTD
benefits. In cases such as the instant case,
112 Nev. 1112, 1120 (1996) SIIS v. Miller
Miller contends, however, that there is no evidence in either pre-1995 legislative history or
the legislative history of the 1995 amendments that the legislature intended to permit SIIS to
deduct from a PTD award any amount other than the actual PPD compensation paid. In fact,
he argues that the 1995 legislative history indicates that the legislature sought to correct the
very alleged injustice of which he complains, i.e., SIIS is retrieving more than it has actually
paid each claimant.
[Headnote 5]
We do not read the legislative history as clearly as Miller reads it. In fact, it is quite
plausible from our reading of the history that the legislature sought to address the alleged
unfairness of SIIS reducing PTD payments by the prior PPD percentage of a distinct and
separate injury. Miller points us to no conclusive legislative history indicating that the
legislators did not intend to allow SIIS to recover the value of its prior lump sum PPD awards
in cases falling within the purview of NRS 616C.440(4)(a). This court is not empowered to
go beyond the face of an unambiguous statute to lend it construction contrary to its plain
meaning and not apparent from the legislative history. See Cirac v. Lander County, 95 Nev.
723, 729, 602 P.2d 1012, 1016 (1979).
In sum, the plain language of NRS 616C.440(4)(a) permits SIIS to deduct from Miller's
monthly PTD benefits the value of his previously received PPD lump sum awards, i.e., the
amount per month that Miller would have received had he elected to receive monthly
installments.
Accordingly, we vacate the order of the district court and remand for proceedings
Springer, J., with whom Rose, J., joins, dissenting:
NRS 616C.440 was the subject of intensive re-examination during the 1995 session of the
legislature. The central figure in the deliberations before the involved legislative committees
was Mr. John W. Taylor of the Southern Nevada Association of Injured Workers. Committee
minutes portray Mr. Taylor's position in this way:
[H]e injured his eye in 1973, the case was reopened in 1982, and 1983 when he lost the
eye. He was given an award of $5,500 [permanent partial disability]. He returned to
work.
__________
where the injured worker has elected to take his PPD award in a lump sum, it is not possible to stop payment
of the PPD award during the period the injured worker is receiving PTD benefits. Logically, in the case of a
lump sum PPD, it is necessary to reduce the PTD compensation level as provided in NRS 616C.440(4)(a) to
prevent the injured worker from obtaining double recovery.
112 Nev. 1112, 1121 (1996) SIIS v. Miller
In 1990 he injured his back, had an operation, went back to work and re-injured his
back. In 1983 he was given a Permanent Total Disability Award. Now, SIIS wants him
to repay $60,000.00. He commented SIIS wants to make money off the loss of his eye. .
. . He commented the application of this statute is being applied retroactively . . . and
that he worked 17 years after his eye injury and now SIIS wants $60,000.00 for the loss
of that eye.
Like John Taylor, Mr. Miller accepted a lump-sum payment for an adjudicated permanent
partial disability. Now, like John Taylor, Mr. Miller is faced with having to repay SIIS
substantially more money than he received by way of his lump-sum payment. The time
periods are different in the two cases, and Mr. Miller does not have to pay back $60,000.00
on a $5,000.00 lump-sum payment; but the principle is the same.
I call the rule adopted by the majority the pawn shop rule because it makes injured
workers like Mr. Miller and John Taylor pay a retroactive pawn charge on their
compensation award, i.e., what the majority characterizes as payment by injured workers for
the value of the money that they received for previous injuries.
Although SIIS insisted on charging Mr. Miller a pawn charge on the money that it awarded
him for his previous disability, on administrative appeal and judicial review, the reviewing
tribunals ruled that SIIS should be permitted under the statute to reduce Miller's disability
award only by the actual dollar amount received by him.
1

In my judgment, the appeals officer and the district court were both correct in ruling that
the statute permits a deduction of not more than the total amount which was paid for the
previous award. I would add that it was unfair for SIIS to extract $60,000.00 out of an injured
worker based on a $5,000.00 award (as apparently was the case with John Taylor), and that
these kinds of retroactive charges are not consistent with the legislative intent.
The majority had to come up with a considerable amount of word-juggling and
legerdemain to find legislative authority for charging injured workers pawn fees on previous
disability awards. The majority ruling is not fair and is contrary to what the legislature was
trying to do in these kinds of cases. As I read the legislative proceedings, the whole thrust was
to avoid the kind of injustice complained of by John Taylor and Ralph Miller. Brian
Stockton, Associate General Counsel of SIIS, read the 1995 legislation as correcting the
John Taylor problem.
__________

1
NRS 616C.440(1)(b) provides that a deduction for a previous award for permanent partial disability must be
made in a reasonable manner and must not be more than the total amount which was paid for the previous award
for permanent partial disability.
112 Nev. 1112, 1122 (1996) SIIS v. Miller
Stockton, Associate General Counsel of SIIS, read the 1995 legislation as correcting the John
Taylor problem. Committee minutes show SIIS counsel Stockton as commenting that he was
happy with the [statutory] language presented and thinks it will prevent occurrences of
problems such as these experienced by Mr. Taylor. How or why the SIIS would have
reversed its position between the time the legislation was enacted and the present is a
puzzlement.
Reading the comments of the various committee members of both Senate and Assembly, I
cannot believe that the legislative intent was to surcharge workers for the cost or value of
previously-awarded disability payments. If indeed, this were the legislative intent, this intent
does not manifest itself in NRS 616C.440. Certainly if the legislature had intended to place
this heavy burden on injured workers, it should have clearly said so. The legislation could
have read something like this:
If a worker accepts a lump-sum permanent partial disability award, that worker will
upon receiving a subsequent permanent total disability award be required to pay back
the entire amount of the previous permanent partial award plus interest on the amount
of that award from the time it was received.
At the time they received their lump-sum awards Mr. Taylor and Mr. Miller did not
understand the pawn charge rule. There is no reason (unless perhaps they were C.P.A.s) that
they would have dreamed that this burden was going to have to be carried.
The majority opinion is contrary to the wording of the statute, contrary to the intent of the
legislature, contrary to fair treatment of injured workers, contrary to the common
understanding by injured workers of disability awards, and contrary to common fairness and
common sense. I dissent.
____________
112 Nev. 1122, 1122 (1996) Atkins v. State
STERLING MARK ATKINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27169
August 28, 1996 923 P.2d 1119
Appeal from a judgment of conviction, pursuant to a jury verdict, for murder, conspiracy
to commit murder, first-degree kidnapping, and sexual assault, and from one sentence of
death. Eighth Judicial District Court, Clark County; Addeliar D. Guy III, Judge.
Defendant was convicted in the district court of murder, conspiracy to commit murder,
first-degree kidnapping, and sexual assault, and was sentenced to death.
assault, and was sentenced to death. Defendant appealed. The supreme court, Shearing, J.,
held that: (1) evidence did not support sexual assault conviction; (2) witness' prior statements
made to Federal Bureau of Investigation (FBI) and second witness were admissible as prior
inconsistent statements; and (3) prosecutor did not make improper closing arguments during
penalty phase.
Steffen, C. J., dissented in part.
Theodore J. Manos & Associates and Laura L. Melia, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District
1. Rape.
Sexual assault statute requires live victim. NRS 200.366(1).
2. Rape.
Evidence that victim was found dead, unclothed, and with twig protruding from her rectum did not support conviction for sexual
assault. Medical examiner's testimony failed to establish whether victim was alive or dead at time twig was inserted into rectum,
autopsy revealed no evidence of contusion, laceration, or other trauma associated with rectum which would have supported position
that victim was alive at time of penetration, and witness did not view any of events associated with twig. NRS 200.366(1).
3. Criminal Law.
Trial courts have considerable discretion in determining relevance and admissibility of evidence.
4. Criminal Law.
Appellate court should not disturb trial court's ruling on admissibility of evidence absent clear abuse of discretion.
5. Witnesses.
Statements that witness made to Federal Bureau of Investigation (FBI) upon being arrested which were inconsistent with
statements made on direct examination were properly admitted as prior inconsistent statements, despite claim that since witness agreed
to prosecutor's questions about statements during redirect examination, testimony was consistent with what he had previously told FBI
agents. NRS 51.035(2)(a).
6. Witnesses.
Prior inconsistent statements may be admissible for both substantive and impeachment purposes. NRS 51.035(2)(a).
7. Witnesses.
Witness' statement to Federal Bureau of Investigation (FBI) that he saw defendant start to kick victim along with third party and
that he yelled at them to stop beating victim was admissible as prior inconsistent statement where witness testified on direct
examination that defendant did nothing more than tap victim with foot to see if she was unconscious. NRS 51.035(2)(a).
8. Criminal Law.
State was justified in calling to stand witness who had agreed to testify pursuant to plea bargain and in expecting him to testify
truthfully regarding defendant's involvement in murder.
9. Criminal Law; Witnesses.
Extrinsic evidence of witness' prior inconsistent statement that he saw defendant beating, kicking, stomping, and choking victim
was admissible even though witness was never recalled to stand to explain or deny prior statement. Failure to confront witness with
statement was harmless error, given that defense thoroughly cross-examined him regarding extent of defendant's involvement in
murder. NRS 50.035(2)(b).
10. Homicide.
Evidence of previous death of victim's child and victim's consequent depression was relevant in response to defense's
characterization of victim as hood rat and substance abuser.
11. Criminal Law.
Whether relevant evidence is more probative than prejudicial should be left to sound discretion of trial court.
12. Criminal Law.
Criminal conviction is not to be lightly overturned on basis of prosecutor's comments standing alone, as statements or conduct
must be viewed in context; only by so doing can it be determined whether prosecutor's conduct affected fairness of trial.
13. Criminal Law.
If supreme court determines that improper comments were made by prosecutor, it must be determined whether errors were
harmless beyond reasonable doubt; it is not enough that prosecutor's remarks were undesirable.
14. Criminal Law.
Federal Constitution guarantees fair trial, not necessarily a perfect trial. U.S. Const. amends. 6, 14.
When defendant claims that prosecutor's comments amounted to prosecutorial misconduct, relevant inquiry is whether prosecutor's
statements so infected proceedings with unfairness as to make results denial of due process. U.S. Const. amends. 6, 14.
16. Criminal Law.
Prosecutor's closing arguments during penalty phase of capital murder prosecution that victim would never see children or family
again, that victim would never experience joy of watching children grow up, that victim would never again be able to watch sunrise or
sunset, and that victim was savaged for significant period of time during which victim had opportunity to think that This is it? I'm
dead; this is it were proper, as they related specifically to impact of crime on victim and her family.
17. Criminal Law.
Prosecutor's closing arguments during penalty phase of capital murder prosecution that you can feel good about a verdict of
death, that you can hold your head up high when you walk out of this building, that defendant, while on parole for yet another
violent felony, kidnapped and sexually assaulted young mother of two and left footprints on her body, and that jury could tell anyone
who asked about case that they found defendant guilty of first-degree murder and sentenced him to death and that they did
justice in case were not blatant attempt to inflame jury or inappropriate encouragement for jury to
approach their duties with anger.
him to death and that they did justice in case were not blatant attempt to inflame jury or inappropriate encouragement for jury to
approach their duties with anger.
OPINION
On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered twenty-five feet from the road in an unimproved
desert area of Clark County. The woman's body was found lying face down with hands extended overhead to a point on the ground where it
appeared that some digging had occurred. A four-inch twig protruded from the victim's rectum. Three distinct types of footwear
impressions were observed in the area as well as a hole containing a broken condom, a condom tip and an open but empty condom
package.
In the opinion of the medical examiner, Mason died from asphyxia due to strangulation and/or from blunt trauma to the head. The
autopsy revealed nine broken ribs, multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior
surface of the neck. Mason's body also bore a number of patterned contusions consistent with footwear impressions on the skin of the back
and chest. Finally, the autopsy revealed severe lacerations of the head and underlying hemorrhage within the skull indicating a blunt force
trauma.
A police investigation led to the arrest of appellant Sterling Mark Atkins, Jr. (Atkins) and Anthony Doyle in Las Vegas, Nevada.
Atkins' brother, Shawn Atkins (Shawn), was also arrested, but his arrest took place in Ohio by agents of the Federal Bureau of
Investigation (FBI). Upon his arrest, Shawn gave a voluntary statement to the FBI regarding the events leading up to Mason's death on
January 15, 1994. Shawn stated that after returning to Atkins' apartment from a party that night, he, Atkins, and Doyle encountered Ebony
Mason, a mutual acquaintance, who was intoxicated and/or high on drugs. Mason agreed to accompany the men to Doyle's apartment to
have sex with them. According to Shawn, Mason had consensual sex with Atkins and oral sex with Shawn, but she refused Doyle when he
attempted to have anal sex with her. After these activities, Doyle agreed to drive Mason to downtown Las Vegas. Doyle drove a pick-up
truck with Shawn, Atkins and Mason accompanying him, but instead of driving downtown, Doyle drove to a remote area in Clark County.
Doyle was angry with Mason and demanded that she walk home. When she refused, Doyle stripped her clothes off and raped her as
Shawn and Atkins watched, and then both Atkins and Doyle beat and kicked her until she died.
and raped her as Shawn and Atkins watched, and then both Atkins and Doyle beat and kicked
her until she died.
The State charged Doyle, Atkins and Shawn with one count each of murder, conspiracy to
commit murder, robbery, first degree kidnapping and sexual assault. The State also filed a
notice of intent to seek the death penalty. Thereafter, the district court granted Doyle's motion
to sever trials and dismissed the robbery count against all three men. At a separate trial,
commencing January 3, 1995, Doyle was convicted on all counts and sentenced to death for
the murder. See Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996).
On February 13, 1995, prior to trial, Shawn entered into a plea bargain agreement wherein
he pleaded guilty to first-degree murder and first-degree kidnapping and was sentenced to two
concurrent life sentences with the possibility of parole. As part of the bargain, Shawn agreed
to testify at Atkins' trial.
On March 20, 1995, Atkins' jury trial commenced. As the State's only eyewitness, Shawn
testified that Atkins was not involved in Mason's beating and murder, but the State
impeached Shawn with his prior inconsistent statements to the FBI and to witness Mark
Wattley. At the conclusion of the guilt phase of the trial on March 30, 1995, the jury found
Atkins guilty of murder, conspiracy to commit murder, first-degree kidnapping and sexual
assault. At the conclusion of the penalty phase, the jury sentenced Atkins to death for the
murder conviction.
Atkins first claims that there is insufficient evidence to support his conviction for sexual
assault based upon the four-inch twig found inserted in Ebony Mason's rectum. Atkins
contends that the crime of sexual assault requires a live victim. He asserts that there was no
evidence adduced at trial regarding whether the twig was placed pre-mortem, peri-mortem, or
post-mortem.
[Headnote 1]
In Doyle, this court faced the identical issue in co-defendant Anthony Doyle's case. NRS
200.366(1) defines sexual assault, but does not indicate whether the victim must be alive.
1
After reviewing the language of the statute and the law in other jurisdictions with similar
statutes which have dealt with this question, this court held that Nevada's sexual assault
statute requires a live victim.
__________

1
NRS 200.366(1) defines sexual assault as follows:
A person who subjects another to sexual penetration, or who forces another person to make a sexual
penetration on himself or another, or on a beast, against the victim's will or under conditions in which the
perpetrator knows or should know that the victim is mentally or physically incapable of resisting or
understanding the nature of his conduct, is guilty of sexual assault.
Sexual penetration includes: any intrusion, however slight, of any part of a person's body or any object
manipulated or inserted by a person into the . . . anal opening of the body of another. NRS 200.364(2).
Under this definition, the act of inserting a four-inch twig into Ebony Mason's rectum constitutes sexual
penetration for the purposes of sexual assault.
reviewing the language of the statute and the law in other jurisdictions with similar statutes
which have dealt with this question, this court held that Nevada's sexual assault statute
requires a live victim. Although Nevada's sexual assault statute provides little guidance . . .,
we conclude that the better reasoned interpretation is that the legislature intended person' in
the rape statute to mean a living human being. Id. at 899, 921 P.2d at 914. In light of
Nevada's necrophilia statute, this court reasoned that the Nevada legislature recognized the
distinction between sexual assault perpetrated on a corpse as opposed to a live human being.
Id. Accordingly, Atkins' conviction for sexual assault can only stand if sufficient evidence
was adduced at trial to establish that Mason was alive at the time the twig was inserted into
her rectum.
[Headnote 2]
Mason was found dead, unclothed, and with the twig protruding from her rectum. The
medical examiner's testimony failed to establish whether Mason was alive or dead at the time
the twig was inserted into her rectum. The autopsy revealed no evidence of contusion,
laceration, or other trauma associated with Mason's rectum, evidence which would have
supported the position that she was alive at the time of the penetration. Shawn's testimony
also provides no guidance. He asserted that he did not view any of the events associated with
the twig. It appears that Mason was killed, dragged into the bushes, and then penetrated with
the twig. In any event, there was insufficient evidence to conclude that the penetration
occurred prior to Mason's death and therefore, Atkins' conviction for sexual assault must be
reversed.
Atkins also contends that the district court erred in allowing the State to introduce prior
inconsistent statements Shawn had made to FBI Agent Larkin upon Shawn's arrest.
[Headnotes 3, 4]
Trial courts have considerable discretion in determining the relevance and admissibility of
evidence. Sterling v. State, 108 Nev. 391, 395, 834 P.2d 400, 403 (1992). An appellate court
should not disturb the trial court's ruling absent a clear abuse of that discretion. Lucas v.
State, 96 Nev. 428, 431-32, 610 P.2d 727, 730 (1980).
There are three separate excerpts from Shawn's testimony to which Atkins attributes error.
We consider each in turn. First, during Shawn's direct examination, the following exchange
occurred:
Q: Let me draw your attention, Shawn, to February 25th, 1994. Do you recall being
arrested in Cleveland, Ohio by the representatives of the Federal Bureau of
Investigation, the FBI?
A: Yes.
Q: And after you were arrested by FBI agents, do you recall giving them a voluntary
statement concerning what had taken place on the evening of January 15, 1994, in
connection with Ebony Mason's death?
A: Yes.
Q: And in fact am I correct in stating that you drew them a little map, a little diagram
of the area, where you thought the killing had occurred?
A: Yes.
Q: And as you spoke with FBI agents, they were taking notes. Is that correct?
A: Yes.
Q: Did they ask you to initial certain pages at the conclusion of the statement?
A: Yes.
Q: [Were] you truthful when you gave that statement to the FBI?
A: Yes.
Although Atkins cites to this testimony in his opening brief as impermissible, he fails to
support his argument with any relevant authority. After review, we conclude that there is
nothing objectionable about this line of questioning.
Second, during Shawn's redirect examination, the following sequence of questions and
answers occurred:
Q: Now you told Defense Counsel that you don't remember Ebony saying anything
with regards to a phone call. Do you recall telling the FBI that, Ebony got outside the
apartment, she was going to a telephone to report her rape to the police. However,
your brother, the Defendant (who you may refer to as Bubba) . . . talked her out of it,
and Bubba and Ebony got back into the truck and snuggled up?
A: Yes. But that's not how it was coming down.
Q: Did you say that to the FBI?
A: Yes, I did.
Q: Do you recall telling the FBI that Tony Doyle and your brother Bubba then began
beating and kicking Ebony?
A: Yes.
Q: Do you recall telling the FBI that you told Bubba and Tony Doyle, This shit's
fucked up? (Excuse my language.)
A: Yes.
Q: Do you recall telling the FBI that, He did not watch what Bubba and Tony Doyle
were doing while he . . .meaning yourselfwas in the truck? And at some point
Bubba and Tony Doyle got back into the truck, turned on the radio and drove back to
Las Vegas.
A: Yes.
Atkins asserts that because Shawn agreed to the prosecutor's questions, his testimony was
consistent with what he had previously told the FBI agents. Therefore, according to Atkins,
this testimony does not fall under the prior inconsistent statement exception to the hearsay
rule and it was improperly admitted.
Our review demonstrates that the above-referenced testimony involved both prior
consistent and prior inconsistent statements. The prosecutor's questions themselves contained
the prior statements. On direct testimony, Shawn did not testify that Ebony left the apartment
in order to report a rape to the police, yet he made that assertion to the FBI in his prior
voluntary statement. In addition, Shawn stated on direct examination that he did not know if
his brother, Atkins (Bubba), did anything more than tap Ebony Mason with his foot to see if
she was still conscious. Yet, Shawn told the FBI that he saw his brother beating and kicking
Ebony Mason. Finally, Shawn did not assert on direct examination that he cursed Atkins and
Doyle before he got back into the truck, yet he told the FBI that he did.
[Headnotes 5, 6]
We conclude that these statements qualify as prior inconsistent statements that were
properly admitted under NRS 51.035(2)(a). This statute sets forth the prior inconsistent
statement exception to the hearsay rule. It allows the admission of an out-of-court statement
that would otherwise be considered inadmissible hearsay when [t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement, and the
statement is inconsistent with his testimony. NRS 51.035(2)(a). Here, Shawn testified at
trial, these out-of-court statments are inconsistent with his trial testimony, he was confronted
with these statements at trial and he was cross-examined regarding them. See Hardison v.
State, 104 Nev. 530, 533, 763 P.2d 52, 55 (1988). We note that prior inconsistent statements
under NRS 51.035(2)(a) may be admissible for both substantive and impeachment purposes.
Miranda v. State, 101 Nev. 562, 567, 707 P.2d 1121, 1124 (1985).
Shawn's other prior statements to the FBI, that Shawn did not view what happened after he
got into the truck and that they all drove back to Las Vegas, are consistent with his direct
testimony. These prior consistent statements are hearsay and they do not fall within any
exception to the hearsay rule, and therefore, their admission was error. However, we conclude
that their admission was harmless error. See NRCP 61.
Third, on direct examination, Shawn stated that his brother did nothing more than tap
Ebony Mason with his foot to see if she was conscious. The prosecutor then introduced
Shawn's prior inconsistent statement to the FBI:
Q: Do you recall telling a member of the FBI that you saw your brother start to kick
Ebony Mason along with Tony Doyle and you started screaming for them, T-H-E-M,
the two of them?
A: When I started screaming, I was screaming at Anthony Doyle.
Q: Do you recall telling a member of the FBI that you were screaming at them for what
they were doing to Ebony Mason?
A: I don't know exactly that I . . .
Q: Do you recall saying that to an FBI agent in Cleveland, Ohio?
A: I don't know if that's exactly what I said. I might have though.
Atkins contends that because Shawn did not agree to or deny making these statements to the
FBI, the admission of these statements was error.
[Headnote 7]
Here, Shawn denied that he yelled at his brother, Atkins, to stop beating Ebony Mason.
Yet, he told the FBI that he had yelled at them, Atkins and Doyle, to stop beating the
victim. We conclude that Shawn's prior inconsistent statements were admissible under NRS
51.035(2)(a).
[Headnote 8]
Atkins further argues that the State's primary purpose in calling Shawn Atkins to the
stand was to get him to say things differently then [sic] what he said to the FBI agents, and
then offer substantive evidence to the jury via the testimony of Agent Larkin, all in the guise
of impeachment evidence. This contention is without merit. The State called Shawn to
testify as the only eyewitness to the crime. Moreover, pursuant to a plea bargain agreement,
Shawn agreed to fully and honestly testify in the present case. Shawn also signed an
Agreement to Testify, wherein he agreed to voluntarily cooperate with the State in the
investigation and prosecution of the instant case. There was no subterfuge, as Atkins
asserts, and the State was completely justified in calling Shawn to the witness stand and
expecting him to testify truthfully regarding Atkins' involvement in the murder.
Atkins also contends that the district court erred in allowing the State to introduce
extrinsic evidence of a prior inconsistent statement made by Shawn to witness Mark Wattley.
[Headnote 9]
At trial, Shawn's testimony minimized his brother's involvment in Mason's murder, stating
that he only saw Atkins tap or kick her with his foot to see if she was still conscious.
During Shawn's direct examination, the following exchange occurred:
Q: Prior to [getting into the truck], what did you see your brother do to Ebony Mason?
A: I think he kicked her with his foot to see if she was conscious, if she was awake.
She was still.
Q: Now, is it your testimony that your brother, the Defendant, went over to Ebony
Mason. And just to see if she was conscious, just tapped her a little with his foot?
A: Ah, I think it was more aggressive than that, but I don'tI don't . . . .
At the time Shawn was on the stand, the State did not confront him with a prior inconsistent
statement to Mark Wattley. Yet, the State thereafter called Mark Wattley as a witness and he
testified that Shawn had told him during a previous conversation that he (Shawn) had seen his
brother beating, kicking, stomping and choking Ebony Mason. Mark Wattley testified as
follows:
Q: As best you can remember at this point in time, Mark, would you explain what you
recall [about] that conversation that you had with Shawn?
A: It was basically about when Tony [Doyle] - - how he jumped it off, and how Bubba
[Atkins] and Tony had kind of started whooping on her. And that after . . .
Q: No,I'm sorry?
A: And then after that, it was like, you know, he told me that just him and Tony went
crazy. Bubba [Atkins] and Tony went crazy, and they hit her in the head with a rock,
stomped her, choked her with her pants leg.
. . .
Q: And did he say specifically what Tony did?
A: Well, after thatI guess, after they got through kicking her, he said Bubba [Atkins]
tried to choke her with a pants leg around her, you know, neck, and then that's when
Tony hit her in the head with a rock.
. . .
Q: When you talked to Shawn about this murder and he described what happened, did
he tell you how Ebony Mason died?
A: Yeah. A brain concussion.
On direct, Shawn stated that his brother tapped and kicked Mason. Yet, Shawn had told
Mark Wattley that his brother had kicked, stomped on whooped and choked Ebony
Mason. We conclude Mark Wattley's testimony regarding Shawn's prior inconsistent
statements was admissible pursuant to NRS 50.135(2)(b). NRS 50.135(2)(b) states:
2. Extrinsic evidence of a prior contradictory statement by a witness is inadmissible
unless:
(b) The witness is afforded an opportunity to explain or deny the statement and the
opposite party is afforded an opportunity to interrogate him thereon.
This statute differs from NRS 51.035(2)(a) in that it relaxes the requirement that the witness
be confronted with the prior inconsistent statement during direct or cross-examination.
2
Rather, extrinsic evidence of a prior inconsistent statement may be introduced and the witness
may thereafter address it. Although the witness need not be confronted with the statement at
the time of his examination, the statute makes clear that there should be some opportunity, at
some point in the trial, for the witness to explain, repudiate or deny the statement.
3

Here, Shawn was never recalled to the stand to explain or deny his prior inconsistent
statements to Mark Wattley and the defense did not interrogate Shawn thereon. Thus, the
statute's requirements were not met. Nevertheless, we conclude that under the limited facts of
this case, the failure to confront Shawn with these prior inconsistent statements was harmless
error. Our review of the trial transcript reveals that the defense thoroughly cross-examined
Shawn regarding the extent of his brother's involvement in the murder.
4

__________

2
NRS 51.035(2)(a) is very similar to NRS 50.135(2)(b). NRS 51.035(2)(a) prohibits the admission of hearsay
evidence unless the declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is inconsistent with his testimony.
NRS 51.035(2)(a) embodies the traditional approach to the admission of prior inconsistent statements. It
addresses the situation where the witness is confronted with the statement at the time of his examination thereby
giving him an opportunity to admit or deny making the prior inconsistent statement at that very moment.

3
We note that NRS 50.135(2)(b) is the Nevada counterpart to Federal Rule of Evidence 613(b). Rule 613(b)
states in relevant part:
Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of prior inconsistent
statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny
the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require.
See also 2 Stephen A. Salzburg et al., Federal Rules of Evidence Manual, 985-1002 (6th ed. 1994).

4
During Shawn's cross-examination, the following exchange occurred:
Q: Isn't it true you saw Sterling kick Ebony once?
A: Yes.
Q: And while it wasn't an attack like the District Attorney [said], it wasn't like that, it wasn't a full cocked
kick either, was it?
A: No, it wasn't like Anthony Doyle was kicking her, no.
Atkins next asserts that the district court erred in admitting evidence relating to the
previous death of Ebony Mason's child because it was irrelevant and more prejudicial than
probative.
Trial courts have considerable discretion in determining the relevance and admissibility of
evidence. Sterling, 108 Nev. at 395, 834 P.2d at 403. An appellate court should not disturb
the trial court's ruling absent a clear abuse of that discretion. Lucas, 96 Nev. at 431-32, 610
P.2d at 730. Relevant evidence is evidence that has any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence. NRS 48.015. Although relevant, evidence is not admissible
if its probative value is substantially outweighed by the danger of unfair prejudice or
confusion of the issues or of misleading the jury. NRS 48.035(1).
We conclude that the evidence of Ebony Mason's child's death was relevant because it was
offered to respond to disparaging comments regarding Mason's character elicited by the
defense. Shawn testified on cross-examination that he believed Mason was either intoxicated
or high on drugs the night of the murder. Essentially, the defense put the victim on trial. In
response, the State presented testimony from Gary Mason, Ebony Mason's father, that
Ebony's child had died in a bathtub drowning six months prior to Mason's death. Gary Mason
further stated that as a result of the death, Ebony suffered from major depression and a
post-traumatic stress syndrome. Gary Mason described Ebony Mason's depression and her
use of illegal drugs as a result of that tragedy.
[Headnotes 10, 11]
We conclude that the evidence of Ebony Mason's child's death and her consequent
depression are relevant to explain the defense's characterization of her as a hood rat and
substance abuser. Whether this evidence was more probative than prejudicial should be left to
the sound discretion of the trial court. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508
(1985).
__________
Q: It wasn't that he was trying to harm her, was it?
A: No.
Q: That's all you saw your brother do. Isn't that right?
A: Yes.
Q: You saw Tony Doyle do a lot more?
A: Ah, I saw him beating her, yeah.
. . .
Q: You didn't see Sterling strangle Ebony Mason, did you?
A: No, I did not. No.
Q: You didn't see Sterling smash a brick in Ebony's head, did you?
A: No, I did not.
We conclude that the district court's admission of this evidence was not an abuse of its
discretion.
Atkins next argues that the aggravating circumstance enunciated in NRS 200.033(4) is
unconstitutional. He asserts that the statute does not genuinely narrow the class of persons
eligible for the death penalty. To support his position, Atkins relies upon State v. Cherry, 257
S.E.2d 551 (N.C. 1979), and State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). We
conclude that Atkins' contention lacks merit.
NRS 200.033(4) states that murder in the first degree may be aggravated if:
The murder was committed while the person was engaged, alone or with others, in the
commission of or an attempt to commit or flight after committing or attempting to
commit, any robbery, sexual assault, arson in the first degree, burglary, invasion of the
home or kidnapping in the first degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
In Petrocelli v. State, 101 Nev. 46, 692 P.2d 503, (1985), this court determined that NRS
200.033(4) is constitutional. This court specifically rejected the merger rule espoused in
Cherry, that the underlying felony becomes an element of the crime of felony murder and
may not act as the basis for additional prosecution or sentence. Id. at 53, 692 P.2d at 509.
This court stated:
We, contrarily, do not adhere to the merger rule. See Brimmage v. State, 93 Nev. 434,
567 P.2d 54 (1977). Because a defendant in our jurisdication can be convicted and
sentenced for both robbery and felony murder, we decline to follow . . . the reasoning
set forth in Cherry. . . . [W]e note that the U.S. Supreme Court has implicitly approved
the use of the underlying felony in felony murder cases as a valid aggravating
circumstance to support the imposition of the death sentence. See Proffitt v. Florida,
428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976).
Id.; accord Miranda v. State, 101 Nev. 562, 707 P.2d 1121 (1985), cert. denied, 475 U.S.
1031 (1986); Farmer v. State, 101 Nev. 419, 705 P.2d 149 (1985), cert. denied, 476 U.S.
1130 (1986). Further, our review of Middlebrooks, the case upon which Atkins heavily relies,
simply demonstrates that the Tennessee Supreme Court has chosen to adopt Cherry and the
merger rule. Middlebrooks, 840 S.W.2d at 341-42. We still decline to embrace Cherry.
Atkins also contends that the prosecutor's comments during closing argument of the
penalty phase amount to prosecutorial misconduct.
[Headnotes 12-15]
[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial. United States v. Young, 470 U.S. 1, 11 (1985). In addition, should this court determine
that improper comments were made by the prosecutor, it must be determined whether the
errors were harmless beyond a reasonable doubt. Witherow v. State, 104 Nev. 721, 724, 765
P.2d 1153, 1155 (1988). It is not enough that the prosecutor's remarks are undesirable.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). The Constitution guarantees a fair trial, not
necessarily a perfect trial. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104 (1990). Thus, the
relevant inquiry is whether the prosecutor's statements so infected the proceedings with
unfairness as to make the results a denial of due process. Darden, 477 U.S. at 181.
Atkins contends that during closing argument of the penalty phase, the prosecutor
inflamed the passion of the jury with the following remarks:
Consider this in contrast to Ebony Mason. She will never see her children again or hear
their laughter. She will never experience the joy of watching her children grow up, get
an education, get married, have children of their own. She will never again be able to
watch the sunrise or the sunset. [Objection overruled.]
She will never again listen to music or read a book. She will never again see her
mother, her father, her grandmother, her brother, or her sister and, of course, her
children. Ebony Mason's parents can visit Ebony Mason, but they have to go to the
cemetery to visit their young child. [Court: Counsel, the last part, I will strike that. The
jury is admonished to disregard the last statement.]
While prison life within those walls might not be easy, within those walls, there is life,
and where there is life, there is hope. What would Ebony Mason give to be in a
situation where she could see her parents? [Objection overruled.]
What would Ebony Mason give to be in a situation where she could hug her children,
where she could see the sunrise and sunset. What would Ebony Mason give just to be
alive?
. . .
The Defendant has already stabbed someone in the back, brutally murdered a young
woman within a span of about two years.
brutally murdered a young woman within a span of about two years. Where does he go
from here? What does he do for an encore? [Objection sustained.]
The shorter the sentence, the sooner this community will find out. [Objection
sustained.]
. . .
This wasn't just a bullet in the head. Hit over the head; she's knocked out; she dies. She
was savaged for a period, a significant period of time, by a group of individuals. How
many times during this period of time as she was clawing, trying to get up, trying to
fight off her attackers, dragged across the ground, beaten, stomped, how many times did
Ebony think, This is it? I'm dead; this is it. [Objection overruled.]
[Headnote 16]
We conclude that the aforementioned closing arguments by the prosecutor during the
penalty phase were proper as they described the impact of the crime on the victim and her
family. Payne v. Tennessee, 501 U.S. 808 (1991). In Homick v. State, 108 Nev. 127, 825 P.2d
600 (1992), this court applaud[ed] the decision in Payne as a positive contribution to capital
sentencing, and conclud[ed] that it fully comports with the intendment of the Nevada
Constitution. Id. at 136, 825 P.2d at 606. This court reasoned:
The key to criminal sentencing in capital cases is the ability of the sentencer to focus
upon and consider both the individual characteristics of the defendant and the nature
and impact of the crime he committed. Only then can the sentencer truly weigh the
evidence before it and determine a defendant's just desserts. Apropos to the point is the
statement by the venerable Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97,
122 (1934), that justice, though due to the accused is due to the accuser also. The
concept of fairness must not be strained till it is narrowed to a filament. We are to keep
the balance true.
Id. at 137, 825 P.2d at 606. The contested arguments related specifically to the impact of
the crime on Ebony Mason and her family. They described to the jury the nature and the
impact of the crime committed. We conclude that they do not constitute prosecutorial
misconduct.
Atkins further contends that the prosecutor committed misconduct by impermissibly
arguing that the jury should return a verdict of death in order to please the jury members'
friends and neighbors. He cites Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985), in
support of his position. In Collier, this court disapproved of a prosecutor's statement to the
jury that it must be angry with the defendant or else "we are not a moral community." Id.
at 479, 705 P.2d at 1129-30.
proved of a prosecutor's statement to the jury that it must be angry with the defendant or else
we are not a moral community. Id. at 479, 705 P.2d at 1129-30. This court found this
comment, among others, to be a blatant attempt to inflame the jury and an inappropriate
encouragement to approach their duties with anger. Id. This court rejected the State's
contention that general comments about community standards are proper. Id.
[Headnote 17]
In the instant case, the prosecutor stated the following during closing argument:
You can feel good about a verdict of death. You can hold your head up high when you
walk out of this building. If asked what you did down at the courthouse in the case,
State v. Sterling Atkins, you can respond by saying you heard evidence about a man
who kidnapped and sexually assaulted a young mother of two, a man who participated
in the shoving of a stick into the rectum of that poor young woman, a man who left foot
impressions on her body, a man who did all this while on parole for yet another violent
felony that he committed.
If asked what you did on that case you can respond by saying you found the
Defendant guilty of first degree murder and you sentenced him to death. That's what
you did down at the courthouse in the case of State v. Sterling Atkins. You can reply by
saying you did justice in that case.
We conclude that the prosecutor's comments in the instant case do not rise to the level of
those in Collier. Rather, the prosecution sought to persuade the jury to do justice in this
particular case. Accordingly, we conclude that there was no prosecutorial misconduct.
In cases in which the death penalty is imposed, this court is also statutorily required to
consider whether the death sentence was imposed under the influence of passion, prejudice,
or any arbitrary factor and whether the sentence of death is excessive considering both the
crime and the defendant. NRS 177.055(2). We conclude that the death sentence was not
imposed under the influence of passion, prejudice or any arbitrary factor, nor was it excessive
in this case considering the senseless and violent nature of the crime.
In conclusion, we reverse the judgment of conviction for sexual assault. We affirm the
judgement of conviction for first-degree murder, conspiracy to commit murder, and
first-degree kidnapping and the sentence of death.
Young and Springer, JJ., concur.
I consider some of the remarks made by the prosecutor in closing argument to be improper
but not to require a reversal of this case. In all other respects, I concur with the opinion of the
majority.
The specific remarks are set out in full in the majority opinion. At one point, the
prosecutor stated that if the verdict of death was returned, the jurors could feel good about it
and hold their head high when they walk out of the building, presumably back into the
community. The prosecutor continued by saying that if asked what they did in this case the
jurors can respond that they sentenced the defendant to death and did justiceagain
presumably responding to the expectations of the community. Although artfully phrased as
the juror responding to inquiries or impressions of the community, the argument is basically
that a conviction will satisfy the conscience of the community and the juror can be proud in
giving the community what it wants. Conversely, if a conviction is not secured, the
expectations of the community will not be satisfied and justice will not have been done.
We have held that it is improper for the prosecution to refer to the jury as representatives
of the community or the conscience of the community. Haberstroh v. State, 105 Nev. 739,
742, 782 P.2d 1343, 1345 (1989); Snow v. State, 101 Nev. 439, 447, 705 P.2d 632, 638
(1985). The reason for this is simple. A juror should determine if the evidence in court
establishes the defendant's guilt beyond a reasonable doubt and not be influenced about what
the community wants or that he or she must take certain action because the juror is the
conscience or representative of the community.
In Collier v. State, 101 Nev. 473, 479, 705 P.2d 1126, 1130 (1985), we held that it was
improper to argue to a jury that if they wish to be deemed moral' and caring,' then they
must approach their duties in anger and give the community what it needs.' In Flanagan v.
State, 104 Nev. 105, 111, 754 P.2d 836, 840 (1988), we strongly disapproved of the
prosecutor's statement, If we don't punish, then society is going to laugh at us. Again, the
reason is that we want the jurors to focus on the quantum of evidence presented against the
defendant in court and not to enforce the community morals or to give the community what it
desires. Although the prosecutor never specifically used the words moral or community
conscience, the argument clearly indicates that the jurors will be giving the community what
it expects and desires if they convict the defendant.
I am also concerned about the emotional remarks the prosecutor made in referring to the
impact of the killing on the victim's family. In Homick v. State, 108 Nev. 127, 136, 825 P.2d
600, 606 {1992), this court expressly adopted Payne v. Tennessee, 501 U.S. S0S {1991), a
United States Supreme Court decision which concluded that "evidence about the victim
and about the impact of the murder on the victim's family is relevant to the jury's decision
as to whether or not the death penalty should be imposed."
606 (1992), this court expressly adopted Payne v. Tennessee, 501 U.S. 808 (1991), a United
States Supreme Court decision which concluded that evidence about the victim and about
the impact of the murder on the victim's family is relevant to the jury's decision as to whether
or not the death penalty should be imposed. Payne, 501 U.S. at 827. While I agree with our
decision in Homick that testimony should be received to show that the victim is an individual
whose death represents a unique loss to society, I am concerned that the presentation of
overly emotional victim impact testimony followed by emotional prosecutorial advocacy will
unfairly prejudice the jury. I believe that the remarks made in this case are at or beyond the
outside limit of the type of victim impact argument that should be permitted.
Although I find these specific remarks improper, I do not think they so infected the
proceedings with unfairness as to require a reversal of this conviction. Further, there was
compelling evidence upon which the jury could easily conclude, beyond a reasonable doubt,
that the appellant was guilty as charged and assessed the death penalty.
Steffen, C. J., concurring in part and dissenting in part:
For the reasons specified in my dissent in Doyle v. State, 112 Nev. 879, 921 P.2d 901
(1996), I respectfully dissent from that part of the majority's opinion that reverses Atkins'
conviction for sexual assault. I concur in all other aspects of the majority's opinion.
____________
112 Nev. 1139, 1139 (1996) Keresey v. State Bar of Nevada
BRADY WILLIAMS KERESEY, Petitioner, v. THE STATE BAR OF NEVADA and THE
NORTHERN NEVADA DISCIPLINARY PANEL, Respondents.
No. 27593
August 28, 1996 923 P.2d 583
Original proceedings in prohibition or mandamus.
Attorney sought prohibition to preclude State Bar from proceeding with complaint alleging
sexual relations with client. The supreme court, Springer, J., held that Bar could not go
forward on prosecution of six-year-old case that appeared never to have been a case as
attorney denied any sexual relations and the client denied that the attorney had ever been
her lawyer.
Petition granted.
Brady Williams Keresey, in Proper Person, Reno, for Petitioner.
C. A. Olendorff, Bar Counsel, Rob Bare, Assistant Bar Counsel, Las Vegas, for
Respondents.
Prohibition.
Prohibition was appropriate to prevent bar from going forward with disciplinary investigation of attorney as to his romantic
involvement with former client where six years had passed since commission of the complained of conduct, two different bar counsel
recommended to the board that complaint be dismissed, client had made sworn statements that the attorney was never her lawyer,
and attorney denied that there had been any sexual relations. Bar could not proceed with a six-year-old case that appeared never to have
been a case.
OPINION
Attorney Brady Williams Keresey seeks a writ of prohibition prohibiting the State Bar of Nevada from proceeding against him on a
complaint filed by the Bar on August 17, 1992, arising out of conduct alleged to have been committed in the summer of 1990.
In May of 1990 Mr. Keresey and his client, Ms. Katrina Kimura-Eckert, signed a document called Agreement of Retainer and
Professional Engagement. In that document Ms. Eckert was designated as Client and Mr. Keresey was designated as Attorney. The
document provided that Mr. Keresey was to represent her in various matters. Mr. Keresey, on his part, agreed that he would act as Ms.
Eckert's attorney and, specifically, that under no circumstances at any time now, or in the future, will Attorney disclose to anyone, in or
out of court, any information whatsoever of and concerning Client without Client's express written permission. This is the essence of the
professional engagement agreement signed by Mr. Keresey and his client.
Mr. Keresey acted as Ms. Eckert's attorney during her divorce case, in association with attorneys Ron Logar and Samuel Belford, at an
agreed-upon hourly rate of $85.00 per hour. Despite the fact that Ms. Eckert filed a sworn affidavit in support of a motion for allowances in
which she requested that her husband pay to Mr. Keresey for his legal services an interim attorney's fee of $13,566.00, she later claimed,
under oath, that Mr. Keresey was never her lawyer.
Claiming that the professional engagement document was a sham and that Mr. Keresey filed an attorney's lien even though he was
never her lawyer, Ms. Eckert brought these improbable claims to Bar officials. Although Ms. Eckert's actual complaints are not part of
this record, her complaints eventually became part of a formal Bar complaint which was filed by Bar counsel on August
17, 1992, about two years after the complaints were originally made.
of a formal Bar complaint which was filed by Bar counsel on August 17, 1992, about two
years after the complaints were originally made. This is the only disciplinary charge that has
ever been made against Mr. Keresey. A copy of the charging allegations of the August 1992
complaint are included in the margin.
1

The first of Ms. Eckert's formal charges against Mr. Keresey is that the professional
engagement document was a sham and was signed by the parties to protect Ms. Eckert so
that Mr. Keresey could not be questioned in her pending divorce proceedings about their
[allegedly romantic] relationship. Quite obviously, the document would not protect Ms.
Eckert from Mr. Keresey's being questioned in her divorce case. Bar counsel mentioned to
the Disciplinary Board that he did not know how that agreement would have done that; and
one Board member chimed in with That makes no sense. The charge that the agreement
was a sham designed only for the purpose of protecting Ms. Eckert and not for its stated
purposes, did not, of course, make any sense; and Bar counsel appropriately advised the
Disciplinary Board that he would not be in a position to prove by clear and convincing
evidence that the agreement . . . was in fact a sham agreement.
2

__________

1
The allegations made in the August 1992 complaint are as follows:
COUNT I.
That Respondent on or about April 20, 1990 met Katrina Kimura-Eckert. That thereafter Respondent and Ms.
Eckert had an ongoing romantic and sexual relationship. As a direct result, Respondent prepared and signed a
fraudulent and sham Retainer agreement dated May 14, 1990 (Exhibit 1) so that he could not be questioned in
her pending divorce proceedings about their relationship. That said Retainer Agreement was later filed in court
and/or presented as evidence in support of an attorney lien filed by Respondent against Ms. Eckert. That
Respondent filed the attorney lien for work not performed and/or performed at excessive rates. That Respondent
denied his relationship with Ms. Eckert to the court and in response to Complainant State Bar's investigation.
That if Respondent did act as Ms. Eckert's attorney, he did not prepare a proper Retainer Agreement. That if he
were her attorney, his romantic involvement with Ms. Eckert violated his duties to his client, created a conflict of
interest, and took advantage of his client's emotional vulnerability at that point. That Respondent submitted his
bill and filed his attorney lien only after his affair with Ms. Eckert ended.
. . . .

2
The complaint also contains a charge that Mr. Keresey did not prepare a proper retainer agreement. It is not
at all clear just what was meant by this charge. The Bar's opposition to the petition refers to SCR 155(2), which
reads: When the lawyer has not regularly represented the client, the basis or rate of the fee shall be
communicated to the client, preferably in writing, before or within a reasonable time after commencing the
representation. Although the hourly rate does not appear in the professional engagement agreement, it is clear
that Mr. Keresey did communicate the $85.00 per hour rate to Ms. Eckert and that she agreed to this. The rule
states that communi-
The Bar is now pursuing charges that Mr. Keresey signed a sham professional
engagement agreement; and the only two charges contained in the August 17, 1992 complaint
which the Bar now intends to pursue are: (1) that Mr. Keresey's romantic involvement with
Ms. Eckert violated his duties to his client, (2) that he was not, in fact, Ms. Eckert's attorney
and that, accordingly, he filed an attorney's lien for [legal] work not performed. The Bar
tells us in its opposition document that there are only two matters remaining in dispute,
namely:
(1) whether Keresey engaged in a sexual relationship with Ms. Eckert; and
(2) whether he did in fact act as her attorney and, if so, to what extent . . . .
The question before us, then, is whether the Bar should be prohibited, under the
circumstances of this case, from trying to prove at this time (in the absence of Ms. Eckert)
that Mr. Keresey engaged in a sexual relationship with Ms. Eckert in 1990 and from trying to
establish whether he did in fact act as her attorney, and if so, to what extent. Because of the
long and intolerable delays (over six years since the alleged commission of the complained-of
professional misconduct) and because of the due process implications inherent in such delay,
we conclude that the Bar should be prohibited from going forward in the manner
announced in their opposition document.
The two most salient reasons for putting a stop to this prosecution are (1) that two different
Bar counsel have recommended to the Board that the complaint be dismissed and (2) that the
Discipline Board itself admitted that the Bar has dropped the ball in his case and is
responsible for the delay.
Two different Bar counsel have tried to dismiss the August 17, 1992 complaint. By the
time of the first hearing (March 2, 1994), almost four years after the complained-of events,
Bar counsel had become convinced that he could not prove a case against Mr. Keresey. Mr.
Keresey has, during the course of these proceedings, incurred close to $40,000.00 in
attorney's fees and suffered other destructive consequences.
3
Because of this he was
apparently willing to accept a private letter of reprimand in exchange for dismissal of the
complaint, even though he has vehemently insisted throughout these proceedings that he
was not guilty of any professional misconduct.
__________
cation of the rate of fee is to be preferably in writing. The agreement was plainly devised for the purpose of
protecting Ms. Eckert from embarrassing disclosures; and the agreement itself cited the kinds of sensitive
information that Ms. Eckert wanted to be kept confidential, for example, assaults by her husband and her
husband's threats to kill her and to hire third persons to commit sexual mayhem and torture her. We can see no
violation of SCR 155(2) arising out of the May 1990 professional engagement agreement.

3
The Bar's opposition document does not deny any of the factual allegations incorporated into Mr. Keresey's
petition; so we may accept Mr.
ently willing to accept a private letter of reprimand in exchange for dismissal of the
complaint, even though he has vehemently insisted throughout these proceedings that he was
not guilty of any professional misconduct.
Bar counsel was very candid at the March 2, 1994 hearing and told the Board that he could
not prove that the agreement was a sham and that he would have a great amount of difficulty
in proving by clear and convincing evidence that Mr. Keresey engaged in a sexual
relationship with Ms. Eckert. Bar counsel represented further that with regard to the
allegations concerning having sex . . . with a client, we don't have a specific rule on that in
Nevada. With reference to Ms. Eckert's sworn statement that Mr. Keresey never was her
lawyer, Bar counsel stated that there was no question that Mr. Keresey performed some
legal services for Miss Katrina Eckert in the course of her divorce. Bar counsel represented
to the Board that Mr. Keresey was then willing to accept a private letter of reprimand relating
to the manner in which he had drafted the professional engagement agreement and
recommended that the complaint be dismissed.
4
The Board refused to accept this
recommendation, and the complaint remained pending.
The matter lay dormant for almost one and one-half years, until August 3, 1995. By this
time another Bar counsel had taken over the case. New Bar counsel conscientiously poured
over page after page of documents in this file and argued to a newly-constituted Disciplinary
Board the same argument that his predecessor had madethat the complaint should be
dismissed.
__________
Keresey's enumeration of some of the consequences which Mr. Keresey claims to have resulted from these
proceedings:
1. Loss of law practice.
2. Loss of law office; termination of business license.
3. $105,000.00 spent out-of-pocket.
4. $75,000.00 in credit card advances and other personal debt.
5. Forced to sell personal property and possessions, including furniture, art work, library.
6. Forced to move out of personal residence of nine years.
7. Now living as a homeless person in his truck with his dog.
8. Respondent has been forced to try to find work as a laborer, since his good reputation as a lawyer has
been destroyed by false Bar complaints; cannot obtain new position as a lawyer in a firm because Bar
matter is still unresolved and a serious blight on Respondent's resume.
9. Respondent is presently unemployed, has no income, is legally bankrupt as his debts exceed his assets,
and has no means to pay further costs of his defense after three years of defending Bar's false complaint.
. . . .

4
It taxes the imagination to try to think of what this reprimand letter might have said.
constituted Disciplinary Board the same argument that his predecessor had madethat the
complaint should be dismissed. At the time of the second, August 1995 hearing Mr. Keresey
had expressed his refusal to accept voluntarily any professional discipline, even a private
letter of reprimand. Bar counsel moved that the panel consider dismissal of this matter based
upon a number of factors I'm going to outline here today. Bar counsel told the Board that,
in fairness, I've looked very closely at her inconsistent statements . . . and I question her
credibility, I really do. On top of this, Bar counsel advised that he had not been successful in
contacting Ms. Eckert and that she had apparently abandoned her complaint. Bar counsel
advised the Board that the State Bar does not intend to call any witnesses and submitted the
matter. Again, the Disciplinary Board refused to accept Bar counsel's motion for dismissal.
At the Disciplinary Board's direction, Bar counsel then hired a private investigator to
search the land for Ms. Eckert. The investigator was eventually successful in locating Ms.
Eckert, who told the investigator and Bar counsel that she would be willing to appear for a
hearing. A hearing was set for October 5, 1995, but, as the Bar's opposition document tells us,
Ms. Eckert failed to show up on October 5, 1995 or to otherwise contact the State Bar.
Nonetheless, the Disciplinary Board still wants to proceed, without Ms. Eckert, in an attempt
to prove that Keresey engaged in a sexual relationship with Ms. Eckert in 1990. Now Bar
counsel is faced, despite his conviction that the complaint should be dismissed, with the duty
of trying to prove, without any witness, that Mr. Keresey was sexually involved with a client
in 1990.
5

In addition to rejecting the recommendations of two different Bar counsel, the two
disciplinary panels involved in this case appear to be ignoring their own appraisal of the
cause of the delays in this case.
__________

5
Bar counsel at the August 3, 1995 hearing, similarly to previous Bar counsel at the March 1994 hearing,
advised the Board on the subject of sexual relations as follows:
This is basically an ongoing controversy in Nevada right now, Mr. Humphrey. We do not have a specific
rule that is what we would call a per se rule prohibiting a lawyer from having sexual relations with a
client. . . .
Some states have a rule, its a per se rule, no sexual intercourse with clients in ongoing litigationwe do
not have that rule. . . .
We have . . . over the last two years since I've been with the State Bar three or four complaints . . . of
sexual relationships with lawyer-type complaints . . . . I'm not aware of a case that has been vehemently
prosecuted based on that alone, based upon an attorney having sex with a client alone.
A Board member commented at the August 3, 1995 hearing:
If we don't have a black and white rule on it. I don't see, you know, in the absence of real strong
compelling circumstances, how you can hang a lawyer out on it.
Given these comments it is hard to understand why the Board voted to go forward on this issue.
Bar counsel, the two disciplinary panels involved in this case appear to be ignoring their own
appraisal of the cause of the delays in this case. Even as far back as the March 2, 1994
hearing, two and one-half years ago, the Bar was aware of the delay problem. During the
March 1994 hearing Board Chairman Digesti was critical of the time that this complaint had
been languishing, noting that we do not think that the Bar office did an adequate job in
prosecuting this case (which Bar counsel believed to be unprovable). Mr. Digesti went on
further to say: [U]nfortunately, I think this sort of fell through the cracks, the ball was
dropped.
If we were more convinced of the legitimacy of the complaint filed against Mr. Keresey,
we might be more tolerant of the Bar's having let it fall through the cracks in 1994. It does
appear, however, that two successive Bar counsel were correct in their appraisal of the
complaint and that there is really nothing to the complaint. The Bar now tells us that it still
wants to pursue the matter of a supposed 1990 sexual relationship with a client.
Paradoxically, even though her statement is incredible on its face, complainant Eckert has
maintained throughout that she was never a client of Mr. Keresey. No one seems to have
noticed that Ms. Eckert took advantage of her vulnerable status as a client when she is
claiming at the same time that she was not Mr. Keresey's client.
This case has gone on long enough. Mr. Keresey has sworn that he did not have sex with
his client. His client claims that she was not his client. Now the Bar, according to its
opposition document, is prepared to go forward and to present evidence on the issue of
whether he did in fact act as her attorney, but that (as charged in the complaint) if he were
her attorney, [a 1990] romantic involvement with Ms. Eckert violated his duties to his client.
(Emphasis supplied.) It is nightmarish. The Bar may not go forward on the prosecution of a
six-year-old case that appears never to have been a case.
The parties have presented a number of legal arguments relating to violations of time
limits set by Supreme Court rules relating to professional discipline cases and arguments
relating to estoppel and due process violations brought about by Mr. Keresey's inability to
defend against these six-year-old charges. We do not find it necessary to deal with these legal
arguments in this case. It is absolutely clear to this court that fundamental fairness and
common sense mandate the termination of these prolonged and agonizing proceedings against
Mr. Keresey.
The writ of prohibition will issue; and the Bar is ordered to dismiss all proceedings against
Mr. Keresey.
Steffen, C. J., concurs. Young, Shearing, and Rose, JJ., concur in result only.
____________
112 Nev. 1146, 1146 (1996) Clark Co. School Dist. v. Buchanan
CLARK COUNTY SCHOOL DISTRICT, Appellant, v. ANNE BUCHANAN, Respondent.
No. 27672
September 24, 1996 924 P.2d 716
Appeal from an order of the district court granting a preliminary injunction. Eighth
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Elementary school teacher who was also volunteer trainer of helping dogs for handicapped
people sought permission to bring dog she was training to classroom every day to lie down or
sleep under her desk. Request was refused by school district, and teacher sought damages and
injunctive relief. Preliminary injunction was issued by the district court and school district
appealed. The supreme court, Young, J., held that: (1) school was place of public
accommodation and thus statute precluding such a place from refusing admittance to person
training a helping dog entitled teacher to be admitted to school with whatever helping dog she
was training; (2) statute extends the same protection to trainers whether or not they are
employees of the place of public accommodation, but right of helping dog trainer to train dog
in place of employment must be balanced against employer's operational needs; (3) district
unreasonably refused to negotiate compromise with teacher, so that teacher showed
probability of success on the merits; (4) finding of irreparable harm was not clearly
erroneous; and (5) trial court did not ignore public interest or alleged hardship to school
district.
Affirmed.
Kamer & Ricciardi and Scott M. Abbott, Las Vegas, for Appellant.
Richard Segerblom, Las Vegas, for Respondent.
1. Injunction.
Preliminary injunction is available if applicant can show likelihood of success on the merits and reasonable probability that
non-moving party's conduct, if allowed to continue, will cause irreparable harm, and district court may also weigh the public interest
and the relative hardship of the parties.
2. Injunction.
While granting of preliminary injunction lies within the discretion of the district court, reasons for its issuance must be sufficiently
clear.
Reasons determined by district court for grant of preliminary injunction should not be disturbed on appeal unless they are clearly
erroneous.
4. Civil Rights.
Public elementary school was a place of public accommodation, and thus teacher who was trainer of helping dogs for
handicapped people was entitled to be admitted to the school with whatever helping dog she was training, under statute precluding
place of public accommodation from refusing admittance to person training a helping dog. NRS 651.050(2)(k), 651.075(1)(b).
5. Civil Rights.
Statute precluding place of public accommodation from refusing admittance to person training a helping dog extends the same
protection to trainers whether or not they are employees of the place of public accommodation in question, but right of helping dog
trainer to train dog in place of employment must be balanced against employer's operational needs. NRS 651.075(1)(b).
6. Schools.
School district has power to place reasonable restrictions on the rights of its employees while they are in the work place.
7. Civil Rights.
Under statute precluding place of public accommodation from refusing admittance to person training a helping dog, school
district's refusal to negotiate reasonable compromise with teacher who was such a trainer and wished to bring such a dog to classroom
was unreasonable, where teacher was willing to place dog under her desk or in another classroom to accommodate the needs of her
students. NRS 651.075(1).
8. Appeal and Error; Injunction.
Elementary school teacher who was also a volunteer trainer of helping dogs for handicapped people established high probability of
success on the merits of claim that school district, by refusing to allow her to bring dog she was training to school, violated statute
precluding place of public accommodation from refusing admittance to person training a helping dog, for purposes of preliminary
injunction, and there was no clear error in trial court's finding of irreparable harm in that dog's training would be incomplete if not
allowed to accompany trainer to work. NRS 651.075(1)(b), 651.090(2)(a).
9. Injunction.
In preliminarily enjoining school district from preventing elementary school teacher, who was also a volunteer trainer of helping
dogs for handicapped people, from bringing dog to school in the course of training, trial court properly fashioned injunction by
requiring teacher to comply with legitimate restrictions school district might place on dog's presence in the classroom. NRS
651.075(1)(b), 651.090(2)(a).
10. Injunction.
Injunction requiring school district to allow elementary school teacher, who was also a volunteer trainer of helping dogs for
handicapped people, to bring training dog to classroom during working hours, under statute precluding place of public accommodation
from refusing admittance to person training helping dog, was not improper as ignoring the public's interest in district's ability to serve
the health, safety and educational needs of children, despite health concern for students with allergic reactions and fact that a few
parents had protested presence of dog, in light of public interest in facilitating training of helping dogs to allow handicapped
individuals to conduct full and productive lives. NRS 651.075.
11. Injunction.
Trial court, in granting preliminary injunction requiring school district to allow elementary school teacher, who was
a volunteer trainer of helping dogs for handicapped people, to bring training dog to classroom during
working hours, under statute precluding place of public accommodation from refusing admittance to person
training a helping dog, did not fail to properly consider alleged hardship to district, where other teachers
were allowed to have pets in classrooms for educational purposes, another district had allowed training
dogs in classrooms for many years without distracting from teaching, teacher would be allowed to have dog
in classroom if she herself were handicapped, trial court accounted for any hardships by requiring teacher
to cooperate in implementing injunction, and teacher was willing to move dog to another classroom if a
student was afraid of dogs or allergic to dogs, and dog would remain under desk where children would not
see her.
district to allow elementary school teacher, who was a volunteer trainer of helping dogs for handicapped people, to bring training dog
to classroom during working hours, under statute precluding place of public accommodation from refusing admittance to person
training a helping dog, did not fail to properly consider alleged hardship to district, where other teachers were allowed to have pets in
classrooms for educational purposes, another district had allowed training dogs in classrooms for many years without distracting from
teaching, teacher would be allowed to have dog in classroom if she herself were handicapped, trial court accounted for any hardships
by requiring teacher to cooperate in implementing injunction, and teacher was willing to move dog to another classroom if a student
was afraid of dogs or allergic to dogs, and dog would remain under desk where children would not see her. NRS 651.075.
OPINION
Every dog must have its day, and this is the day for every dog trained to help our handicapped citizens. Respondent Anne Buchanan
(Buchanan), a volunteer trainer of helping dogs for handicapped people, is also a music teacher for appellant Clark County School
District (CCSD). When Buchanan asked CCSD if she could bring a helping dog she was training to her classroom, CCSD howled its
disapproval. CCSD denied Buchanan's request because it believed that the presence of a dog in the classroom would distract Buchanan
from teaching and could be detrimental to children who are afraid of dogs or allergic to dogs.
Buchanan filed a complaint seeking damages and injunctive relief against CCSD. The complaint was based upon a provision in NRS
651.075 that precludes places of public accommodation from refusing admittance to a person training a helping dog. The district court, in
what might be seen as an attempt to teach an old dog new tricks, granted Buchanan's request for a preliminary injunction.
In this appeal, CCSD continues its dogged efforts by arguing that the district court did not properly apply NRS 651.075 or properly
balance the hardships of the parties. Based on the reasoning in this opinion, there is an irresistible temptation to conclude that CCSD's
appeal barks up the wrong tree. Accordingly, we affirm the district court's ruling, hopefully ending what might be viewed as another form
of judicial dog fight.
FACTS
Buchanan is the only CCSD music instructor at the Vail Pittman Elementary School (Vail Pittman) in Las Vegas. Each of Vail
Pittman's 600 students is required to receive fifty minutes of music instruction per week.
of Vail Pittman's 600 students is required to receive fifty minutes of music instruction per
week. Buchanan is also a volunteer helping dog trainer for Canine Companions for
Independence (CCI). Helping dogs assist non-blind handicapped persons as guide dogs
assist blind persons. Helping dogs are trained to perform hundreds of daily functions for their
masters. Buchanan was training Maria, a 25-35 pound golden retriever, when the present
dispute arose.
The purpose of Buchanan's role in helping dog training is to acclimate a helping dog to a
home environment and the public environment that the dog's future master must frequent.
When in a public environment, helping dogs are trained to refrain from contact with other
humans, unless directed, and will typically lie down or sleep next to their master for extended
periods of time. If not properly trained for such environments, training dogs often fail to
become helping dogs.
During the 1994-95 school year, the dog days began. Buchanan asked CCSD to allow her
to bring Maria to her classroom every day to lie down or sleep under her desk. According to
Buchanan, such exposure was essential for Maria's training because if Maria were left at
home, Maria would not properly learn how to lie still in the company of other human beings.
CCSD denied Buchanan's request, in part because CCSD believed the presence of Maria in
the classroom would distract Buchanan from instructing students. Also, CCSD believed it
was improper to force students who were afraid of dogs or allergic to dogs to attend music
class in the presence of Maria.
Refusing to take CCSD's decision lying down, Buchanan filed a complaint based upon
NRS 651.075,
1
seeking damages and injunctive relief against CCSD. On September 1, 1995,
the district court granted Buchanan a preliminary injunction. In pertinent part, the injunction
read as follows:
1. BUCHANAN'S Motion for Preliminary Injunction is hereby granted. The
DISTRICT shall allow BUCHANAN to bring her training dog to her classroom during
working hours.
2. BUCHANAN shall comply with all legitimate conditions the DISTRICT may
require to implement this ORDER.
3. If, after BUCHANAN has been allowed to bring the dog to her classroom, the
DISTRICT identifies serious difficulties andJor dangers created by the presence of
BUCHANAN's dog which cannot be resolved by BUCHANAN andJor her union, the
Clark County Classroom Teachers Association, the DISTRICT may bring the matter
back to this Court for further consideration.
__________

1
The pertinent portion of NRS 651.075(1) reads as follows:
1. It is unlawful for a place of public accommodation to:
(a) Refuse admittance or service to a person with a visual, aural or physical disability because he is
accompanied by a guide dog, hearing dog, helping dog or other service animal;
(b) Refuse admittance or service to a person training such an animal . . . .
dog to her classroom, the DISTRICT identifies serious difficulties and/or dangers
created by the presence of BUCHANAN's dog which cannot be resolved by
BUCHANAN and/or her union, the Clark County Classroom Teachers Association, the
DISTRICT may bring the matter back to this Court for further consideration.
DISCUSSION
[Headnote 1]
A preliminary injunction is available if an applicant can show a likelihood of success on
the merits and a reasonable probability the non-moving party's conduct, if allowed to
continue, will cause irreparable harm. Pickett v. Comanche Construction, Inc., 108 Nev. 422,
426, 836 P.2d 42, 44 (1992); Berryman v. Int'l Bhd. Elec. Workers, 82 Nev. 277, 280, 416
P.2d 387, 389 (1966). The district court may also weigh the public interest and the relative
hardships of the parties in deciding whether to grant a preliminary injunction. See Ellis v.
McDaniel, 95 Nev. 455, 459, 596 P.2d 222, 224-25 (1979).
[Headnotes 2, 3]
While the granting of a preliminary injunction lies within the discretion of the district
court, the reasons for its issuance must be sufficiently clear. Las Vegas Novelty v. Fernandez,
106 Nev. 113, 118-19, 787 P.2d 772, 775 (1990); Number One Rent-A-Car v. Ramada Inns,
94 Nev. 779, 780, 587 P.2d 1329, 1330 (1978). The reasons determined by the district court
should not be disturbed on appeal unless they are clearly erroneous. Hermann Trust v.
Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 592 (1990).
Likelihood of success on the merits
Typically, a party moving for an injunction must show a reasonable probability of success
on the merits. Christensen v. Chromalloy Amer. Corp., 99 Nev. 34, 36, 656 P.2d 844, 846
(1983). In this case, the district court concluded that it is highly probable that BUCHANAN
will succeed in this lawsuit.
[Headnote 4]
According to NRS 651.075(1)(b), a place of public accommodation is precluded from
refusing admittance to a person training a helping dog. A place of public accommodation
includes any nursery, private school, university or other place of education. NRS
651.050(2)(k). If a person training a helping dog is denied access to a place of public
accommodation, that person may seek injunctive relief. NRS 651.090(2)(a).
We conclude that Buchanan is a trainer of helping dogs and that Vail Pittman is a place of
public accommodation. Accordingly, we conclude that NRS 651.075(1)(b) entitles Buchanan
to be admitted to Vail Pittman with whatever helping dog she may be training.
[Headnote 5]
CCSD argues that an interpretation of NRS 651.075(1) which allows an employee at a
place of public accommodation to benefit from the statute's protection of helping dog trainers
is inappropriate. CCSD asserts that the statutory guarantee of admittance and service for
trainers at places of public accommodation envisioned protection for non-employees of those
public entities.
NRS 651.075(1) is intended to protect handicapped persons who rely on a trained dog for
assistance from being excluded from public places. See NRS 651.075(1). Presumably, this
protection would apply to a handicapped teacher who needed a helping dog for assistance,
thereby mandating a school district to accommodate that teacher by allowing the dog in the
classroom. We conclude that the policy and spirit of NRS 651.075(1)(b) was to extend the
same protection to the trainers of assistance dogs, whether they are employees or not. Without
such protection, helping dogs could not be properly trained to assist handicapped individuals
who work in public places. See Hunt v. Warden, 111 Nev. 1284, 903 P.2d 826 (1995); Houtz
v. State of Nevada, 111 Nev. 457, 893 P.2d 355 (1995).
2

[Headnote 6]
Despite our interpretation of NRS 651.075(1), we recognize that the Nevada Legislature
has placed an enormous responsibility upon CCSD to manage the education of Clark
County's students. Part and parcel with that responsibility is CCSD's authority to make
operational decisions regarding the functioning of its schools. Accordingly, CCSD has the
power to place reasonable restrictions upon the rights of its employees while they are in the
workplace.
Despite the dissent's deep-felt concern that our ruling will perpetrate an overwhelming
burden upon many employers in our state, it should be clear from our opinion that the right of
a helping dog trainer to train a dog in a place of employment must be balanced against an
employer's operational needs. Just as the district court ruled in this case, an employer and a
helping dog trainer should take reasonable steps to accommodate each other's needs.
__________

2
In line with the dissent, we recognize and respect the legislature's right to review our interpretation of NRS
651.075(1) and clarify its intent by amending NRS 651.075(1).
needs. In cases where legitimate health concerns are proven, the employer may properly place
reasonable restrictions on an employee's right to train a helping dog as are necessary to
prevent health problems.
[Headnotes 7-9]
In this case, we conclude that CCSD's refusal to negotiate a reasonable compromise with
Buchanan, despite Buchanan's rights under NRS 651.075(1), was unreasonable. Buchanan
was willing to place her dog under her desk or in another classroom to accommodate the
needs of her students. Therefore, we conclude that the district court correctly ruled that
Buchanan has a high probability of success on the merits of this dispute. Also, we conclude
that the district court properly fashioned its injunction by requiring Buchanan to comply with
legitimate restrictions CCSD may place on her training dog's presence in the classroom.
Irreparable harm
In considering the necessity of a helping dog trainer taking a training dog everywhere the
trainer goes, the district court commented:
To properly complete the training of each dog it will be necessary for BUCHANAN to
take the dog with her everywhere she goes, including to her place of employment, the
elementary schools owned and operated by the DISTRICT. A helping dog must be
trained to be the constant companion of her master, and such training requires that the
dog accompany its trainer during her working hours.
. . . .
Unless the DISTRICT is ordered to allow the dog to accompany BUCHANAN to work
the dog's training will be incomplete and the CCI training being conducted by
BUCHANAN will suffer irreparable harm.
Helping dogs are trained to serve their master in the environment where their master
works. To ensure that a helping dog can fulfill that responsibility, the training program must
expose the training dog to the environments where the future master will work. Accordingly,
we conclude that the district court's conclusion was not clearly erroneous. See Hermann
Trust, 106 Nev. at 566, 796 P.2d at 592.
Public interest
[Headnote 10]
CCSD argues that the district court's ruling ignores the public's interest in CCSD's ability
to serve the health, safety, and educational needs of 16S,000 children.
educational needs of 168,000 children. According to CCSD, the presence of a dog in the
classroom creates a health concern for students with allergic reactions to dogs and could
distract students from learning. CCSD also points out that a few parents called or sent letters
to CCSD protesting the presence of a dog in their children's classroom.
We conclude that CCSD ignores the public's interest in facilitating the training of helping
dogs. These dogs allow handicapped individuals to conduct full and productive lives that
benefit society. Presumably, this very public interest concern motivated the legislature's
enactment of NRS 651.075. Originally, NRS 651.075 precluded places of public
accommodation from hindering access to handicapped individuals with guide or helping
dogs. In 1987, that same protection was extended to the trainers of guide and helping dogs.
1987 Nev. Stat., ch. 359, 12 at 824. Accordingly, we conclude that CCSD's argument is
without merit.
Balance of hardships
[Headnote 11]
CCSD contends that the district court did not properly consider the hardship that CCSD
will suffer if Buchanan is allowed to take her dog to class. We conclude that CCSD has cried
wolf one too many times. First, other teachers at Vail Pittman are allowed to have pets in
their classrooms for educational purposes. The presence of a helping dog, sleeping beneath a
desk, could not be more distracting than the caged rabbits, snakes, lizards, breeding gerbils,
rats, and aquarium full of fish which are present in another Vail Pittman
classroomapparently without complaint!
Second, the Carson City School District has allowed training dogs in classrooms for many
years, and the dogs do not distract from teaching. In fact, the presence of the dogs helps instill
in students the importance of community involvement and concern for the well-being of our
fellow person.
Third, CCSD admits that if Buchanan were actually handicapped, they would comply with
NRS 651.075. This concession displays the limited hardship that CCSD will suffer pursuant
to the preliminary injunction under review in this case.
Fourth the district court, with appropriate foresight, accounted for any hardships CCSD
might suffer by requiring Buchanan to cooperate with CCSD in implementing the preliminary
injunction. Buchanan is willing to move her training dog to another classroom if a student is
afraid of dogs or allergic to dogs, and the training dog would remain under Buchanan's desk
where children would not see her.
CONCLUSION
We conclude that CCSD's appeal is without merit because the district court properly
interpreted NRS 651.075 and properly evaluated the relative hardships of the parties.
Accordingly, we should not discriminate against man's best friend. Justice must be
even-pawed!
Shearing and Rose, JJ., concur.
Despite the natural appeal of the majority's opinion, and the laudable purposes which have
prompted Ms. Buchanan to pursue this litigation, I am unable to find a basis within the
applicable statutes for her right to prevail over the Clark County School District (hereinafter
CCSD). I therefore respectfully dissent.
If this court were simply at liberty to rule based upon emotion and the poignancy
associated with helping dogs and the purposes for which they are trained, I would not hesitate
to climb aboard the majority's bandwagon. Indeed, like so many among humankind, I have a
great appreciation for man's best friend, but unfortunately, that fact can have no bearing on
the resolution of this appeal.
The majority, I suggest, erroneously interpret NRS 651.075(1)
1
as being applicable to the
instant case. In the first place, the referenced statute makes it unlawful for places of public
accommodation to refuse admittance or service (emphasis mine) to: (a) persons with visual,
aural or physical disabilities accompanied by service animals such as a helping dog; and (b)
to persons training such animals. The only reasonable inference to be drawn from the statute
is that places of public accommodation must be accessible to such persons in the company of
their service animals, including helping dogs. These persons are to be admitted and/or
serviced. I do not perceive a basis for concluding that the statute was intended to apply to
employees of a place of public accommodation, who are neither admitted nor serviced
according to the ordinary and accepted meanings of those terms as used in the statute. They
are entitled to be present at their respective places of employment under the terms of their
hiring.
__________

1
In pertinent part, NRS 651.075(1) provides:
1. It is unlawful for a place of public accommodation to:
(a) Refuse admittance or service to a person with a visual, aural or physical disability because he is
accompanied by a guide dog, hearing dog, helping dog or other service animal;
(b) Refuse admittance or service to a person training such an animal . . . .
Moreover, reference to the extremely broad definition of a place of public
accommodation as specified in NRS 651.050(2)(a) through (o), demonstrates that the
legislature did not intend that disabled persons accompanied by helping dogs or other service
animals be denied either admittance or service in any place where the public is invited,
thereby assuring their entitlement to the same quality of life, insofar as possible, that all other
persons enjoy by reason of the availability of such places of public accommodation. It is also
clear from the broad definition of place of public accommodation and the language of NRS
651.075(1)(b), that persons training service animals such as helping dogs are also not to be
denied access to such public places and the services provided therein because these ordinary
experiences of life are necessary to the effective training of such animals in preparation for
their role in assisting the disabled when they are visiting such places and utilizing such
services.
NRS 651.070 bespeaks the purposes for which NRS 651.075(1)(a) and (b) were enacted
by providing that [a]ll persons are entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages and accommodations of any place of public
accommodation, without discrimination or segregation on the ground of . . . disability. NRS
651.080 makes it a crime (misdemeanor) for any person to interfere with or deny or attempt
to deny any right or privilege secured by NRS 651.070.
Under the majority's interpretation of NRS 651.075(1)(b), public or private employers who
deny their employees the right to train helping dogs and other service animals on the job,
would be subject to criminal prosecution. We may thus assume, hypothetically, that if it were
monetarily profitable to train helping dogs or other service animals, all school teachers who
desired to earn additional money while they were teaching their students, could insist on their
right to have their service animals in the classrooms with them. Although Anne Buchanan is a
volunteer, training her helping dog for the charitable purpose of providing a highly beneficial
service to the disabled, the majority's ruling is in no sense limited to Ms. Buchanan or to
employees who are training animals without benefit of monetary gain.
Even if the majority were to rewrite the statute and limit the purview of their opinion to
persons who train service animals without monetary gain, the problems created by the
majority should be readily apparent to all. Fortunately, we have many citizens who are
charitably motivated, who would undoubtedly be willing to train service animals while at
work. Thus, hospitals, pharmacies, restaurants, cafeterias, bakeries and any number of other
places specifically named and/or otherwise included within the definition of "place of public
accommodation" could be faced with untold problems such as maintenance of sanitary
and sterile conditions and avoidance of dangerous distractions occasioned by employees
who insisted upon having service animals in training on the job with them.
the definition of place of public accommodation could be faced with untold problems such
as maintenance of sanitary and sterile conditions and avoidance of dangerous distractions
occasioned by employees who insisted upon having service animals in training on the job
with them. When the legislature included, without spacial limitations, such facilities as
hospitals, pharmacies and bakeries within the definition of places of public
accommodation, there was no provision specifically limiting access to public areas only.
However, by including employees among those who are entitled to be accompanied by
service animals in training, the majority have expanded the scope of places of public
accommodation to include all areas where employees are required to work, whether
accessible to the public or not. Clearly, therefore, the majority have exposed such areas as
those committed to employees only to the rights granted by the statutes as interpreted by the
majority.
One must wonder how the majority would deal with a newborn nursery in a hospital where
one or more of the pediatric nurses insisted on having a service animal in training at her side.
Today's ruling would not only permit it, but could subject the hospital to criminal sanctions if
the nurse showed up training a helping dog on the job and was either terminated or forced to
remove the dog. How about the bakery where the employee reaches down and pets or
positions the service animal he or she is training, and then touches the bakery products
destined for the consumer? Or how about the pharmacist who, while filling a prescription, is
distracted by his training service animal to the fatal detriment of the customer? I am not
comfortable with the anticipated response that people would not be that unreasonable, as we
can expect otherwise based upon human experience.
2

Another serious consequence of the majority's ruling concerns the tail wagging the dog.
Here, the CCSD is accorded no deference in determining how to best educate the students
over whom it has control and responsibility. Instead of the CCSD determining what is best
under all of the circumstances and conditions that can arise in the course of educating and
safely housing and handling thousands of unique students and trying to please thousands of
unique parents, the majority have determined that individual teachers may set school policy
and standards when it comes to training service animals on the job. I am concerned about
how far the majority's opinion will travel in allowing the courts to micro-manage the schools
and usurp the management prerogatives of the experts who have been trained and
carefully selected for these very purposes.
__________

2
Parenthetically, I note that neither the majority opinion nor this dissent has any bearing on the right of disabled
persons to have their helping dogs or other service animals with them in the places of their employment.
prerogatives of the experts who have been trained and carefully selected for these very
purposes.
I also suggest that the majority have concluded inadvisedly that CCSD ignores the
public's interest in facilitating the training of helping dogs. I believe it is highly unlikely that
CCSD's decision not to allow Ms. Buchanan to train the helping dog while engaged in her
teaching duties at school would jeopardize the success of training programs designed to
provide disabled persons with necessary service animals. The majority have cited no credible
authority (aside from what I consider to be their own erroneous interpretation of NRS
651.075) in support of their conclusion. Indeed, if Ms. Buchanan's inability to train her
helping dog during the time of her teaching responsibilities will jeopardize the training
program for these animals, as the majority seem to think, then the training program must be in
serious difficultya premise the majority have failed to document.
Moreover, to conclude that CCSD has ignored the public interest in facilitating the training
of helping dogs suggests that the school district should have balanced its decision involving
Ms. Buchanan more in favor of animal training for the disabled than the educating of its
students, a proposition that is unsound on its face. CCSD's primary responsibility is to see
that the students under its jurisdiction receive the best education possible under conditions
that are safe and conducive to learning and development. CCSD has no other competing
allegiance, and I suggest that it is unwise for this court to superimpose its own lack of
experience and insight upon the operational decisions of the school district in whom the
public trust for making these decisions is reposed.
I also find it difficult to accept the logic that because teachers are allowed to have such
sources of distraction as caged rabbits, snakes, lizards, breeding gerbils, rats, and
aquarium[s] full of fish in the classroom, CCSD cannot restrict the presence of other
distracting animals, such as helping dogs. The syllogism posed by the majority is
unconvincing. CCSD has every right to conclude that certain types of living creatures
properly housed within certain classrooms enhance the learning experiences that are
determined to be compatible with the school's mission to educate the students. This does not
mean that because the school district allows certain animals to be securely exhibited in
classrooms, that all animals must be allowed to be similarly exhibited. To suggest that CCSD
cannot differentiate between the creatures it will use as part of the educating process is hardly
the prerogative of this court, and is certainly not warranted from the evidence of record.
My point is that if CCSD had decided to accommodate Ms. Buchanan and her desire to
train the helping dog while simultaneously fulfilling her responsibilities to her students, I
would have had no difficulty accepting the decision as being within the discretionary
authority of the school district. For the same reason, I would sustain the CCSD in its decision
not to allow teachers to train helping dogs in the classrooms. Thus, if the Carson City School
District is willing to allow the training of helping dogs in the classroom, I would not interfere
in its right to make that decision. But quite like students and parents, school district officials
have differences of opinion as to the best methods of educating students, and this court is
simply not equipped or empowered to conclude that since one method appears to work
successfully in one school district, other school districts are bound to follow suit.
The major flaw in the majority's opinion is its erroneous conclusion that NRS 651.075
applies to employees of places of public accommodation. Because of the majority's ruling,
virtually all employers that admit the public to their places of business, public or private,
must now realize that this court has authorized their employees to undertake the training of
service animals on the job, and any attempt to interfere with the presence and training of such
animals by their employees may subject the employer to criminal sanctions. Perhaps the
legislature will see fit to remedy some of the problems that appear to be a likely result of
today's decision.
For the reasons noted above, I respectfully dissent, and would reverse the order of the
district court granting the preliminary injunction against CCSD.
The trial court issued an injunction ordering that Ms. Buchanan, a school teacher, be
permitted to bring her training dog to her classroom during working hours. The legal basis
for the injunction is NRS 651.075(1) which makes it unlawful for a place of public
accommodation to . . . refuse admittance or service to a person training a guide dog.
Assuming that a place of accommodation has the capacity to refuse anything, I find no
evidence in this case that any place has refused either admittance or service to Ms.
Buchanan. If we are going to call the Clark County School District a place, then this
place has not refused to provide service to Ms. Buchanan and it has not refused
admittance to any place of public accommodation. All the district has done is to tell Ms.
Buchanan that, as an employee, she has no right to keep a dog under her desk all day. This is a
perfectly permissible condition to put upon Ms. Buchanan's employment.
It may be that under NRS 651.050(2)(k) a private school, university or other place of
education may, under certain circumstances (say a public assembly or athletic event),
become a place of public accommodation; but certainly, not every nook and cranny and
every classroom in every place of education is at all times to be deemed a place of public
accommodation.
It is quite clear to me that the statute in question is intended to apply only to persons who
seek admission to public events or seek services that are offered to the public at large. The
statute cannot be read to place limits on an employer's right to prohibit employees from
keeping pets with them on the job.
Although at certain times certain locations within Ms. Buchanan's place of education
might properly become a place of public accommodation, her classroom is not a place of
public accommodation. Even if her classroom could be considered a place of public
accommodation, Ms. Buchanan has not been denied admittance to this place, she has
merely, as part of the employer-employee relationship, been told that she could not keep her
dog with her during her classroom day.
I think that the trial court was in error when it granted an injunction based on NRS
651.075(1). I would cancel the injunction.
____________
112 Nev. 1159, 1159 (1996) Hospital Corp. of America v. Dist. Court
HOSPITAL CORPORATION OF AMERICA, a Tennessee Corporation; HOSPITAL
CORPORATION OF AMERICA, a West Virginia Corporation; COLUMBIA/HCA
HEALTHCARE CORPORATION; HCA-HOSPITAL CORPORATION OF
AMERICA; and HCA PSYCHIATRIC COMPANY, Petitioners, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the
County of Washoe, and THE HONORABLE PETER I. BREEN, Respondents, and
MARSHA ROBINSON, Individually and Guardian Ad Litem of MELISSA BANTA,
KRESNAE PAGNI, PATRICK and CARMA SORENSON, GAYLE HOMES,
WILLARD TUCKER, TAMERA ANNE HUMPHREYS, and BARBARA D'ANNA,
Real Parties in Interest.
No. 28121
September 30, 1996 924 P.2d 725
Original petition for a writ of prohibition or mandamus.
Foreign corporate parents of domestic corporations that owned psychiatric hospital filed
petition for writ of prohibition or mandamus seeking order requiring the district court to
dismiss psychiatric patient's tort action against them for lack of personal jurisdiction.
chiatric patient's tort action against them for lack of personal jurisdiction. The supreme court
held that patients adduced sufficient evidence of agency control by parent corporations to
establish prima facie showing of in personam jurisdiction.
Petition denied.
Lionel Sawyer & Collins and Jeffrey D. Menicucci, Reno, for Petitioners.
Kevin M. Berry, Reno, for Real Parties in Interest.
1. Courts.
So long as personal jurisdiction issue is properly presented to district court prior to trial, defendant does not waive right to
challenge jurisdiction by making appearance at trial and arguing case on merits.
2. Mandamus.
Psychiatric patients adduced sufficient evidence of agency or control by foreign corporate parents of domestic corporations which
owned psychiatric hospital to establish prima facie showing of in personam jurisdiction over parent corporations in patients' tort action.
OPINION
Per Curiam:
In this original petition, petitioners seek to have respondents' tort action against them dismissed for lack of personal jurisdiction. The
dispute arises out of tortious conduct allegedly suffered by real parties in interest (plaintiffs) while they were patients at a Nevada
psychiatric hospital. The hospital was owned, at different times, by two Nevada corporations, both defendants in the underlying action.
Petitioners, also defendants in the underlying action, are the foreign corporate parents or their successors of the domestic corporations and
their successors. Petitioners seek extraordinary relief
1
from this court on the ground that the Nevada District
Court does not have jurisdiction over their persons and therefore is without authority to
proceed against them.
[Headnotes 1, 2]
The district court denied petitioners' pretrial motion to dismiss for lack of personal
jurisdiction after concluding that plaintiffs had adduced sufficient evidence of agency or
control by the parent corporations to establish a prima facie showing of in personam
jurisdiction. We have made a de novo review of the evidence presented to the district court
and conclude that the district court reached the correct result. See Boit v. Gar-Tec Products,
Inc., 967 F.2d 671, 678-79 (1st Cir. 1992) (nondeferential, de novo standard applied on
review of district court order dismissing claim for lack of jurisdiction over the person).
__________

1
The appropriate remedy for a district court's erroneous refusal to quash service of process is a writ of
prohibition. Trump v. District Court, 109 Nev. 687, 692, 857 P.2d 740, 743 (1993).
ferential, de novo standard applied on review of district court order dismissing claim for lack
of jurisdiction over the person). Although this conclusion disposes of this matter, we
emphasize that petitioners may still require plaintiffs to prove personal jurisdiction by a
preponderance of the evidence at trial.
2

For the reasons set forth above, the petition for a writ of prohibition is denied.
Steffen, C. J., Springer, Shearing and Rose, JJ., and Zenoff, Sr. J.
3
, concur.
____________
112 Nev. 1161, 1161 (1996) Coblentz v. Union Welfare Fund
JUDY COBLENTZ, DAVID RAY COBLENTZ, FRANCES ANN FREEDMAN
PROPERTY MANAGEMENT, a Foreign Corporation, and ANNETTE ALLGOOD,
Appellants, v. HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION
WELFARE FUND, a Nevada Corporation, Respondent.
No. 26018
October 22, 1996 925 P.2d 496
Appeal from a summary judgment. Eighth Judicial District Court, Clark County; Jack
Lehman, Judge.
Sublessee's employee brought action against lessor and lessee to recover for injuries
sustained in fall on building's external stairway.
__________

2
NRCP 12(d) provides that a pretrial motion for dismissal for lack of personal jurisdiction shall be heard and
determined before trial on application of any party, unless the court orders that the hearing and determination
thereof be deferred until the trial. When the district court applies the prima facie standard of reviewas it
presumably did in this case as there was never an evidentiary hearingand denies the motion to dismiss for lack
of personal jurisdiction, the district court is implicitly, if not explicitly, ordering that hearing and determination
[of the motion to dismiss] be deferred until the trial. Boit, 967 F.2d at 678 (interpreting identical Fed. R. Civ.
Proc. 12(d)). Thus, so long as the personal jurisdiction issue is properly presented to the district court prior to
trial, a defendant does not waive the right to challenge jurisdiction by making an appearance at trial and arguing
the case on the merits. See generally Trump, 109 Nev. 687, 857 P.2d 740 (setting forth in detail the procedural
aspects of an in personam jurisdictional challenge).

3
sit in the place of The Honorable Cliff Young, Justice. Nev. Const. art. 6, 19; SCR 10.
stairway. Lessor filed cross-claim against lessee based on lessee's failure to maintain stairway
and failure to maintain liability insurance naming lessor as insured. After arbitrators ruled for
lessee on cross-claim, the district court affirmed arbitration award and granted summary
judgment for lessee against employee. Appeal was taken. The supreme court held that: (1)
lessee's duty to maintain liability insurance extended to employee's accident, even though
lease's separate indemnity provision was limited to lessee's use of premises; (2) arbitrators'
conclusion that lessee had no duty under lease's insurance provision constituted manifest
disregard of the law that justified vacating award; (3) any agreement between lessee and
lessor regarding maintenance of stairway did not preclude employee from asserting claim
against lessee; but (4) lessee did not breach its duty of reasonable care.
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Perry & Spann
and Douglas G. Gardner, Las Vegas; and Carol Menninger, Las Vegas, for Appellants.
Barker, Gillock, Koning & Brown, Las Vegas, for Respondent.
When district court errs in failing to expressly consider motion as one for summary judgment based on its consideration of matters
outside the pleadings, state supreme court is not required to reverse, but simply reviews dismissal order as if it were a summary
judgment. NRCP 12(b), 56.
2. Judgment.
Litigant has right to trial whenever slightest doubt as to remaining issues of fact exists. NRCP 56(c).
Lessee's duty under lease to maintain liability insurance naming lessor as insured for injury or damage in or upon the premises or
the remainder of the property, and arising out of the use of all or any portion of the same by the tenant or its agents, employees,
officers, invitees, visitors and guests extended to sublessee's employee's fall on building's external stairway. While separate indemnity
provision of lease referred to use of premises and specified occurrences, lease provision dealing with duty to maintain insurance was
not limited to use of premises.
For purposes of lease provision requiring lessee to maintain liability insurance naming lessor as insured, sublessee, whose
employee fell on external stairway, was invitee and agent of lessee; injury arose out of use of property by sublessee, and sublessee
contracted to perform services for lessee in addition to subleasing space for such purpose.
5. Covenants.
Breach of covenant to provide liability insurance is actionable.
6. Arbitration.
After arbitration award has been made, either party may request trial on any or all issues arising out of action. NRS 38.109.
7. Arbitration.
State supreme court may vacate arbitration award when arbitrator manifestly disregards the law.
8. Arbitration.
In action arising out of sublessee's employee's fall, arbitrators' conclusion that lessee had no duty to name lessor on liability policy
rendered lease's insurance provision meaningless and without effect and thus constituted manifest disregard of the law that justified
vacating award.
9. Arbitration.
Since sublessee's employee, who fell on stairway, was not party to lease agreement between lessor and lessee, issue of lessee's
potential liability to employee was not subject to arbitration.
Just as technical distinctions between trespasser, invitee, and licensee do not determine owner's or occupier's duty of reasonable
care, distinctions between common areas and leased premises or between control and noncontrol of areas do not determine duty of
lessors and lessees to act reasonably towards third persons.
Alleged fact that, under its lease, lessee did not control stairway on which sublessee's employee fell did not preclude employee
from asserting that lessee breached duty of care toward her, although proof of unreasonable action or omission on lessee's part might be
difficult since it did not directly occupy leased premises.
Lessee did not breach its duty of reasonable care toward sublessee's employee, who fell on building's external stairway; although
employee averred that she believed that both lessor and lessee had been told of prior falls on stairs, and that she believed that lessee
was aware that many women at office typically wore high heels, such averments were insufficient to establish that lessee knew of
alleged dangerous condition in stairway in form of crack in step.
13. Judgment.
Affidavits setting forth plaintiff's beliefs as to defendant's knowledge of defective condition in real property were not sufficient
to defeat properly supported motion for summary judgment; affidavit must be made on personal knowledge and set forth facts that
would be admissible into evidence and that show affirmatively that affiant is competent to testify. NRCP 56(e).
OPINION
Per Curiam:
In November 1989, appellant Annette Allgood fell on an external stairway at the office building where she worked and was injured.
Appellants Judy and David Coblentz owned this building. Respondent Hotel Employees & Restaurant Employees International Union
Welfare Fund {the Fund) leased the office space in the building from the Coblentzes at that time, and American
Benefits Plan Administrators {ABPA) subleased the space from the Fund.
national Union Welfare Fund (the Fund) leased the office space in the building from the
Coblentzes at that time, and American Benefits Plan Administrators (ABPA) subleased the
space from the Fund. ABPA occupied the premises at the time of the accident and performed
administrative services for the Fund. Allgood sued the Coblentzes, the Fund, and ABPA, but
ABPA was later dismissed from the action.
The lease agreement between the Coblentzes and the Fund required the Coblentzes to
maintain the stairway. It also required the Fund to name the Coblentzes as insureds on its
liability insurance policy, which the Fund failed to do. The Coblentzes filed a cross-claim
against the Fund. The dispute was submitted to arbitration, and the arbitrators ruled for the
Fund. The district court confirmed the arbitration award and eventually dismissed the
Coblentzes' cross-claim and granted summary judgment for the Fund against Allgood.
We conclude that the district court erred in dismissing the Coblentzes' cross-claim but
properly granted summary judgment against Allgood.
FACTS
On November 17, 1989, appellant Allgood fell on an external stairway at the office
building where she worked. The heel of her shoe got stuck in a crack in a concrete step,
causing her to fall and sustain injuries. Appellants Coblentzes owned this building.
Respondent Fund leased the office space in the building from the Coblentzes at that time, and
ABPA subleased the space from the Fund and occupied the premises at the time of the
accident. Allgood sued the Coblentzes, the Fund, and ABPA. The parties later stipulated to
dismissal of the cause of action as to ABPA.
The Fund retained ABPA to perform certain administrative services for it. An affidavit
filed by the Fund's counsel with the district court stated: the Fund is a multi-employer
employee welfare benefit plan governed by ERISA; ABPA contracted with the Fund to
maintain lists of eligible participants and to receive and process claims; and ABPA is an
independent contractor, not an agent of the Fund.
The Coblentzes and the Fund were successors in interest to a lease agreement, which set
forth their respective obligations as landlord and tenant. The agreement required the tenant to
maintain the interior of the premises and the landlord to maintain the exterior of the building
and common areas such as stairways, elevators, sidewalks, and parking areas. The landlord
retained the right to control access to sidewalks, lobbies, passages, elevators and stairways.
Section 11(b) of the lease agreement stated:
The Tenant shall maintain throughout the Term, at the Tenant's expense, insurance
against loss or liability in connection with bodily injury, death, property damage and
destruction in or upon the Premises or the remainder of the Property, and arising out of
the use of all or any portion of the same by the Tenant or its agents, employees, officers,
invitees, visitors and guests, under policies of general public liability insurance having
[certain limits]. Such policies shall name the Landlord and the Tenant . . . as the insured
parties . . . .
Section 14 stated:
(a) The Landlord shall not be liable for any damage or injury to any person or property
of the Tenant, of the Tenant's employees, agents, guests or invitees or of any other
person, by reason of the Tenant's occupancy or use of the Premises or of the remainder
of the Property, or because of fire, flood, windstorm, acts of God or any other cause.
(b) The Tenant shall be responsible for, and shall indemnify and hold harmless the
Landlord against and from, any and all liability arising out of any injury or damage to
the Tenant or any other person, or to any property, either (i) upon the Premises, or (ii)
elsewhere upon the Tract (if such injury or damage shall occur elsewhere upon the
Tract in the course of the use thereof by the Tenant), caused by any fire, breakage,
leakage, collapse or other event, caused by or resulting from the negligent or
intentionally tortious act or omission of the Tenant or its agents, officers, invitees,
visitors or guests, or from the Tenant's breach of any covenant herein.
The Fund failed to name the Coblentzes as insureds on its liability insurance policy. The
Coblentzes tendered their defense of Allgood's suit to the Fund, which refused to accept it.
The Coblentzes filed a cross-claim against the Fund, alleging that the Fund had breached the
lease agreement by failing to name them as insureds. They sought indemnification and/or
contribution from the Fund. The Coblentzes and the Fund agreed to arbitrate the issue of their
liability to Allgood. The arbitration agreement provided that the arbitration was to be
conducted according to Nevada law and that any appeal from the decision was to be pursued
under NRS Chapter 38. Absent an appeal, the arbitrators' decision was to be binding.
Evidence was presented to two arbitrators, who ruled in favor of the Fund on February 28,
1994. Employing the language of the lease, the arbitrators found that Allgood's accident did
not occur upon the leased premises but elsewhere upon the tract because the stairway was on
the exterior of the building. Quoting Section 14{b) of the lease, they also found that the
accident was not " 'caused by any fire, breakage, leakage, collapse or other event, caused
by or resulting from the negligent or intentionally tortious act or omission of [the Fund] or
its agents, officers, invitees, visitors or guests' " or from the Fund's breach of any
covenant.
14(b) of the lease, they also found that the accident was not caused by any fire, breakage,
leakage, collapse or other event, caused by or resulting from the negligent or intentionally
tortious act or omission of [the Fund] or its agents, officers, invitees, visitors or guests' or
from the Fund's breach of any covenant. The arbitrators made the following legal conclusions.
The lease provisions had to be read together and consistently with one another if possible.
Under the lease the Coblentzes retained control of and had a duty to maintain the exterior of
the building, including the stairway, and assumed the risk for any injuries occurring there.
The Fund did not have and never assumed any duty to maintain the stairway. The Fund's
obligation to obtain insurance coverage naming the Coblentzes as insureds extended only to
the Fund's use of the premises, and the Fund had no obligation to insure the Coblentzes
against the liability for injury occurring in areas remaining in the control of the Coblentzes.
The Fund had no duty to indemnify the Coblentzes for personal injuries allegedly caused by
negligent maintenance on the stairway or to assume their defense in this case.
The Fund moved to confirm the arbitration award on March 16, 1994. At the same time, it
moved to recalendar its motion for summary judgment against Allgood, earlier denied, and
moved to dismiss the Coblentzes' cross-claim. The Coblentzes opposed these motions on
March 21. They stated that they wished to proceed to trial because they believed the
arbitrators had erred. They moved to vacate the award on March 24.
The district court confirmed the arbitration award on March 31, 1994. It concluded that the
Coblentzes were bound by the arbitrators' decision even if it was erroneous, but that it was
not erroneous. The court found that the Coblentzes had a duty to maintain the staircase and
assumed the risk for any injuries occurring there. It stated that the Fund owed no duty to the
plaintiff, and is not responsible to indemnify or otherwise respond to any judgment against
the Coblentzes. Any relitigation of [the Fund's] liability in this case is res judicata. The court
did not address the insurance issue.
On May 17, 1994, the district court granted summary judgment in favor of the Fund
against Allgood and dismissed the Coblentzes' cross-claim against the Fund. It found that the
Coblentzes controlled the stairway, that the Fund did not occupy the premises on the date of
Allgood's accident, and that neither the Fund nor the sublessee ABPA created the condition
which allegedly caused the accident. It concluded that because the Fund had no control of the
stairway it could have no liability to Allgood.
DISCUSSION
[Headnote 1]
The district court looked beyond the pleadings, most obviously to the arbitration award, in
granting the Fund's motion to dismiss the Coblentzes' cross-claim. If . . . matters outside the
pleading are presented to and not excluded by the court, [a motion to dismiss under NRCP
12(b)(5)] shall be treated as one for summary judgment and disposed of as provided in Rule
56. NRCP 12(b). When a district court errs in failing to expressly consider respondent's
motion as one for summary judgment, this court is not required to reverse, but simply
review[s] the dismissal order as if it were a summary judgment. Thompson v. City of North
Las Vegas, 108 Nev. 435, 438-39, 833 P.2d 1132, 1134 (1992).
[Headnote 2]
A district court shall grant summary judgment if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law. NRCP 56(c). A litigant has the right to trial whenever the slightest doubt as
to remaining issues of fact exists. Roy v. Lancaster, 107 Nev. 460, 462, 814 P.2d 75, 76
(1991).
I. Whether the district court erred in dismissing the Coblentzes' cross-claim.
The arbitration award
[Headnotes 3, 4]
The arbitrators concluded that the Fund had not breached its duty to name the Coblentzes
as insureds on its liability insurance policy because this duty extended only to the Fund's use
of the Premises and did not extend to injury occurring in areas remaining in the Coblentzes'
control, such as the stairway. This conclusion was clearly erroneous. Section 11(b) of the
lease agreement required the Fund to maintain liability insurance, naming the Coblentzes as
insureds, for injury or damage in or upon the Premises or the remainder of the Property, and
arising out of the use of all or any portion of the same by the Tenant or its agents, employees,
officers, invitees, visitors and guests. (Emphasis added.) The fact that the injury occurred on
the stairway did not remove it from the insurance coverage called for by the lease.
The arbitrators did not expressly consider whether the injury arose out of a use covered by
this provision of the lease, i.e., whether the use was that of an agent, employee, officer,
invitee, visitor, or guest of the Fund.
visitor, or guest of the Fund. It clearly was. The injury arose out of the use of the property by
ABPA, Allgood's employer. ABPA was an invitee and agent of the Fund because it subleased
the space from the Fund and contracted to perform services for the Fund. See Stanley v. Town
Square Co-Op., 512 N.W.2d 51, 54 (Mich. Ct. App. 1993) (tenants are invitees of the
landlord while in the common areas, because the landlord has received a pecuniary benefit for
licensing their presence); Hartford Cas. Ins. v. Walker County Agency, 808 S.W.2d 681, 687
(Tex. Ct. App. 1991) (an agent is one authorized by another to transact business or manage
some affair for the other). The Fund's assertion that ABPA was an independent contractor
does not mean that ABPA was not the Fund's agent. Dempster Bros., Inc. v. United States
Fidelity & Guar. Co., 388 S.W.2d 153, 156 (Tenn. Ct. App. 1965) (the term agent is not
inconsistent with the term independent contractor; independent contractor contrasts with
servant, and both are agents of their principal).
[Headnote 5]
In limiting the Fund's duty to provide insurance, the arbitrators referred to Section 14(b) of
the lease agreement, which requires the Fund to indemnify and hold harmless the
Coblentzes for liability caused by any fire, breakage, leakage, collapse or other event, caused
by or resulting from the negligent or intentionally tortious act or omission of the Tenant or its
agents, officers, invitees, visitors or guests, or from the Tenant's breach of any covenant
herein. The record supports the arbitrators' finding that Allgood's accident was not due to
any misconduct by the Fund or its agents or invitees. However, the arbitrators erred in
assuming that because of this, the duty to provide insurance did not apply. The lease
agreement sets out the two dutiesto insure and to indemnifyas distinct obligations.
[C]ontracting parties may agree that one will indemnify the other for loss from certain risks
or they may agree to shift the risk of loss to a liability insurance company. Bovis v.
7-Eleven, Inc., 505 So. 2d 661, 664 (Fla. Dist. Ct. App. 1987). Here, the Fund's duty to insure
was defined separately from its duty to indemnify; the first was not limited to liability caused
by misconduct by the Fund. Breach of a covenant to provide liability insurance is actionable.
Schier v. Hertz Corp., 99 Nev. 474, 476, 663 P.2d 1185, 1186 (1983).
We conclude that the arbitrators erred as a matter of law in not recognizing that the Fund
had violated its duty to insure,
1
which was obvious in the contract and distinct from its
duty to indemnify.
__________

1
The Fund's counsel argued before this court that the Fund was unable to obtain the kind of insurance required
by Section 11(b) of the lease agreement. If this was the case, the Fund was obligated to inform the Coblentzes so
that they could take other appropriate action.
was obvious in the contract and distinct from its duty to indemnify.
The district court's action
[Headnote 6]
The district court nevertheless confirmed the arbitrators' decision. It stated that parties who
have agreed to arbitration are deemed to have consented to the arbitrator's decision, even if
the decision is erroneous. As authority for this proposition, the court cited Northwestern Sec.
Ins. Co. v. Clark, 84 Nev. 716, 721, 448 P.2d 39, 42 (1968). In Northwestern, this court held
that a party to arbitration that failed to submit a question of law to the court, as allowed by
NRS 38.140, was bound by the arbitrator's decision on the question. Id. However, the
Legislature repealed NRS 38.140 in 1969. 1969 Nev. Stat., ch. 456, 22 at 799. The law in
effect when the Coblentzes challenged the arbitrators' decision expressly provided that after
an arbitration award has been made, either party to the action may request a trial on any or
all issues arising out of the action. NRS 38.109.
2

[Headnote 7]
This court may vacate an arbitration award when an arbitrator manifestly disregards the
law. Wichinsky v. Mosa, 109 Nev. 84, 89-90, 847 P.2d 727, 731 (1993). The law in regard to
interpretation of contracts, such as the lease agreement in this case, is clear. We should not
interpret the contract so as to render its provisions meaningless. If at all possible, we should
give effect to every word in the contract. Caldwell v. Consolidated Realty, 99 Nev. 635, 639,
668 P.2d 284, 287 (citation omitted).
[Headnote 8]
The arbitrators' conclusion that the Fund had no duty to name the Coblentzes on its
insurance policy rendered one of the lease agreement's provisions meaningless and without
effect and thus constitutes a manifest disregard of the law. The district court therefore erred in
dismissing the Coblentzes' cross-claim.
II. Whether the district court erred in granting summary judgment against Allgood.
[Headnote 9]
It appears that the district court confused the issue of the Fund's potential liability to its
codefendants, the Coblentzes, with the Fund's potential liability to the plaintiff, Allgood. The
arbitrators never ruled on the issue of the Fund's liability to Allgood.
__________

2
The Legislature repealed NRS 38.109 and made other changes to the Uniform Arbitration Act last session.
1995 Nev. Stat., ch. 660, 4 at 2538.
arbitrators never ruled on the issue of the Fund's liability to Allgood. Nor did they have the
power to do so since Allgood was not a party to the arbitration and the issue was not
submitted for arbitration. The arbitrators decided that the Fund had no liability to the
Coblentzes. However, in confirming the award, the district court further concluded that the
Fund owed no duty to Allgood as well.
In reaching their decisions, the arbitrators and the district court relied on Durm v. Heck's,
Inc., 401 S.E.2d 908 (W. Va. 1991). In that case, a customer exited a grocery store and
slipped and fell on a sidewalk outside the store. The court held that
where a lease agreement clearly sets forth that the Lessor has the duty to maintain the
non-leased common areas, thereby retaining the lessor's control over such areas, the
lessee of a store located in a shopping center is not liable when a patron sustains
injuries as a result of an accident which occurs on the non-leased common area.
Id. at 911. The district court cited Durm in ruling that because the Fund did not control the
stairway, the Fund owed no duty to Allgood. This ruling is error under Nevada law.
This court has concluded that
all persons in this society have an obligation to act reasonably and that an owner or
occupier of land should be held to the general duty of reasonable care when another is
injured on that land. While a reasonable person would take greater precautions to
protect from harm's way one invited onto his or her premises than he or she would to
protect a trespasser, the status of the injured party may not be the dispositive factor.
Rather, determinations of liability should primarily depend upon whether the owner or
occupier of land acted reasonably under the circumstances.
Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) (emphasis
added).
[Headnotes 10, 11]
We hold that just as technical distinctions between trespasser, invitee, and licensee do not
determine an owner's or occupier's duty of reasonable care, distinctions between common
areas and leased premises or between control and noncontrol of areas do not determine the
duty of lessors and lessees to act reasonably towards third persons. Any agreement between
the Fund and the Coblentzes regarding maintenance of the stairway leading to the leased
premises does not preclude Allgood from asserting that either or both the lessor and the lessee
breached their duties of care toward her. Because the Fund was a lessee which did not
directly occupy the leased premises, proof of unreasonable action or omission on its part
might be difficult to prove factually, but it would not be a legal impossibility.
directly occupy the leased premises, proof of unreasonable action or omission on its part
might be difficult to prove factually, but it would not be a legal impossibility.
Other courts have recognized that a landlord's obligations do not eliminate a tenant's duty
of reasonable care to third persons. [W]hile a reservation of control will subject a landlord to
liability, the tenant is not thereby automatically relieved of duty or liability to his invitees if
that tenant is aware of the unsafe condition. Hopkins v. F.W. Woolworth Co., 419 N.E.2d
302, 303 (Mass. App. Ct. 1981).
The effect of a covenant to maintain is only to allocate costs between the tenant and
the property owner. . . . [I]f a landlord negligently fails to make repairs required by the
covenant and his tenant is consequently subjected to tort liability, the tenant may
impose the consequences of that liability upon the landlord by crossclaim in the tort
action or otherwise. . . . [H]owever, the covenant absolves neither landlord nor tenant
from liability to innocent third parties.
Jackson v. K-Mart Corp., 442 A.2d 1087, 1091 (N.J. Super. Ct. Law Div. 1981) (citations
omitted); see also Bovis v. 7-Eleven, Inc., 505 So. 2d 661, 664 (Fla. Dist. Ct. App. 1987)
(regardless of lessor's contractual obligations, lessee, as possessor of premises, has
independent duty founded in tort law to prevent injury to invitees and licensees).
Thus, the district erred in ruling that the lease agreement between the Fund and the
Coblentzes absolved the Fund of any duty to act reasonably toward users of the stairway.
Nevertheless, we conclude that summary judgment against Allgood was proper because
Allgood failed to offer evidence that the Fund had breached its duty of reasonable care.
[Headnote 12]
In order to avoid summary judgment, Allgood was required to offer admissible evidence
that the Fund either caused, knew of, or should have known of the alleged dangerous
condition of the stairway. Cf. Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d
320, 322-23 (1993) (where foreign substance causing patron to slip and fall results from
actions of persons other than business or its employees, business is liable only if it had actual
or constructive notice of condition and failed to remedy it). Appellants do not cite to the
record for evidence of the Fund's responsibility for or knowledge of the unsafe condition.
Allgood filed an affidavit with the district court in which she stated that she believed that the
Coblentzes and the Fund had been told of two prior falls on the stairs. She also filed a
supplemental affidavit, stating that many women in ABPA's office were required to wear
high heels and that she was informed and believed that the Fund was aware that women
at the office typically wore high heels.
wear high heels and that she was informed and believed that the Fund was aware that women
at the office typically wore high heels. We conclude that this was insufficient evidence that
the Fund knew of the alleged dangerous condition that caused Allgood's fall and injuries.
[Headnote 13]
Furthermore, Allgood's belief as to the Fund's knowledge is not the type of evidence
necessary to defeat a motion for summary judgment. Affidavits supporting or opposing a
motion for summary judgment shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. NRCP 56(e).
Therefore, summary judgment for the Fund against Allgood was justified.
CONCLUSION
The arbitrators erred in ruling that the Fund had no liability to the Coblentzes under the
lease agreement. Although the Fund was not obligated to indemnify the Coblentzes in regard
to the accident in this case, the Fund breached its duty under the lease agreement to name
them as insureds on its liability insurance policy. The district court therefore erred in
confirming the arbitration award and dismissing the Coblentzes' cross-claim against the Fund.
Although we conclude that the Fund owed Allgood a duty of reasonable care, Allgood
failed to provide evidence that the Fund breached this duty. Summary judgment against
Allgood was thus proper.
We therefore affirm the summary judgment against Allgood and reverse the dismissal of
the Coblentzes' cross-claim and remand for further proceedings consistent with this opinion.
____________
112 Nev. 1172, 1172 (1996) Evans v. State
VERNELL RAY EVANS, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26679
October 22, 1996 926 P.2d 265
Appeal from judgment of conviction, pursuant to a jury verdict, of one count of burglary,
and four counts of first-degree murder with use of a deadly weapon; from four death
sentences; and from the denial of a motion for an acquittal notwithstanding the verdict.
Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
112 Nev. 1172, 1173 (1996) Evans v. State
Defendant was convicted in the district court of one count of burglary and four counts of
first-degree murder, and received four death sentences. Defendant appealed, and the supreme
court, Steffen, C. J., held that: (1) defendant failed to establish systematic exclusion of
African-Americans from venire panel; (2) witness was properly allowed to testify despite
violation of order excluding all witnesses from courtroom; (3) good cause existed for state's
failure to file and serve list of witnesses who would offer testimony rebutting defendant's
alibi; (4) premeditation instruction was proper; (5) evidence supported findings of
aggravating factors of great risk of death to multiple persons, commission of murder to avoid
arrest, and torture; (6) defendant had intended that victims be killed and was eligible for death
sentence; (7) jury was properly instructed during penalty phase; and (8) sentences of death
were not excessive.
Affirmed.
Patricia Erickson, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Jury.
Both Fourteenth and Sixth Amendments guarantee criminal defendant right to trial before jury selected from representative
cross-section of community. Requirement mandates that jury wheels, pools of names, panels, or venires from which juries are drawn
must not systematically exclude distinctive groups in community and thereby fail to be reasonably representative thereof, but there is
no requirement that petit juries actually chosen must mirror community and reflect various distinctive groups in population. U.S.
Const. amends. 6, 14.
2. Jury.
Criminal defendant bears burden of demonstrating prima facie violation of requirement that jury be selected from representative
cross-section of community. To establish prima facie case, defendant must make showing that group alleged to be excluded is
distinctive group in community, that representation of this group in venires from which juries are selected is not fair and reasonable in
relation to number of such persons in community, and that underrepresentation is due to systematic exclusion of group in jury selection
process. U.S. Const. amends. 6, 14.
3. Jury.
Systematic exclusion of distinctive group in community from venires from which jurors are selected, as will violate defendant's
right to jury selected from representative cross-section of community, means underrepresentation inherent in particular jury selection
process utilized. U.S. Const. amends. 6, 14.
4. Jury.
Once defendant who challenges jury selection process establishes prima facie violation of requirement that jury be selected from
representative cross-section of community, burden shifts to State to show that disparity is justified by
significant State interest.
112 Nev. 1172, 1174 (1996) Evans v. State
sentative cross-section of community, burden shifts to State to show that disparity is justified by significant State interest. U.S. Const.
amends. 6, 14.
5. Jury.
African-Americans are distinctive group, the systematic exclusion of which from venire panel will violate defendant's right to jury
selected from representative cross-section of community. U.S. Const. amends. 6, 14.
6. Jury.
Jury selection process utilized in county in which 8.3 percent of population consisted of African-Americans 17 years of age or
older, which resulted in venire panel in which 9.3 percent of members were African-Americans, produced venire which was fair and
representative cross-section of community. U.S. Const. amends. 6, 14.
7. Jury.
Comparative disparity between representation of members of distinctive group on venire panel and group's representation in
general population, for purposes of determining whether violation of right to jury selected from representative cross-section of
community has occurred, takes into account size of group in addition to absolute difference between group's proportionate
representation in community and its representation in jury pool. U.S. Const. amends. 6, 14.
8. Jury.
Comparative disparity between representation of distinctive group on venire panel and that group's representation in general
population which is well below 50 percent is unlikely to be sufficient to show underrepresentation of group on venire in violation of
right to jury selected from representative cross-section of community, especially when absolute disparity is also small. U.S. Const.
amends. 6, 14.
9. Criminal Law.
Fact that witness was allowed to testify for State in murder prosecution even though witness had been in courtroom during first
two days of trial in violation of court's order excluding all witnesses did not prejudice defendant and witness' presence did not warrant
exclusion of testimony; nothing indicated that witness was influenced by testimony he had heard, and his testimony did not directly
relate to that testimony.
10. Criminal Law.
Discretion of trial court to waive rule requiring exclusion of evidence offered by State in rebuttal to defendant's evidence of alibi
where State fails to file and serve on defendant list of witnesses who will offer testimony rebutting defendant's alibi should be exercised
wherever good cause appears. NRS 174.087(5).
11. Criminal Law.
Trial court's finding of good cause to waive rule requiring exclusion of evidence offered by State in rebuttal to defendant's
evidence of alibi where State fails to file and serve on defendant list of witnesses who will offer rebuttal testimony will be upheld on
appeal absent manifest abuse of discretion. NRS 174.087(5).
12. Criminal Law.
Primary purpose of rule under which court may exclude evidence offered by State in rebuttal to defendant's evidence of alibi where
State fails to file and serve on defendant list of witnesses who will offer testimony rebutting defendant's alibi is to counterbalance ease
with which alibi can be fabricated, government's interest in protecting against belated defense, and suspect nature of alibi testimony,
and statute should not be blindly employed to make criminal prosecution a game.
112 Nev. 1172, 1175 (1996) Evans v. State
not be blindly employed to make criminal prosecution a game. NRS 174.087.
13. Criminal Law.
State established good cause for its failure to file and serve on defendant list of witnesses who would offer testimony rebutting
defendant's alibi, and trial court did not abuse its discretion in allowing unnoticed witness to offer rebuttal testimony in murder
prosecution, where State had endorsed witness as probable witness and issued subpoena but had been unable to locate him until shortly
before occasion for his testimony, potential for surprise was not great, and court adjourned for the day to allow defense counsel to
prepare for testimony. NRS 174.087.
14. Criminal Law.
Statutory reasonable doubt instruction used in murder prosecution, which stated that defendant is presumed innocent and that
presumption places on State burden of proving beyond reasonable doubt every material element of crime charged, accurately stated
law. NRS 175.211(1).
15. Criminal Law.
Language in statutory reasonable doubt instruction which instructs jurors that reasonable doubt is not mere possible doubt, but is
such doubt as would govern or control person in more weighty affairs of life, does not lessen prosecution's burden of proof by equating
jury's decisions with everyday decisions and accurately states law. NRS 175.211(1).
16. Homicide.
Premeditation instruction used in murder prosecution which defined premeditation as a design or determination to kill distinctly
formed in mind at any moment before or at time of killing, and that such premeditation could be as instantaneous as successive
thoughts of the mind, accurately stated law.
17. Criminal Law.
Other grounds for grant of new trial exist where trial judge finds that evidence of guilt is conflicting, and after independent
evaluation of evidence disagrees with jury's verdict of guilty. NRS 176.515(4).
18. Criminal Law.
Conflict of evidence warranting grant of new trial occurs where there is sufficient evidence presented at trial which, if believed,
would sustain conviction, but evidence is contested and district judge, in resolving conflicting evidence differently from jury, believes
totality of evidence fails to prove defendant guilty beyond a reasonable doubt. NRS 176.515(4).
19. Criminal Law.
District court lacks authority to grant new trial based on insufficiency of evidence, and when there is truly insufficient evidence to
convict, defendant must be acquitted. NRS 176.515(4).
20. Criminal Law.
Where there is insufficient evidence to support conviction, trial judge may set aside jury verdict of guilty and enter judgment of
acquittal. NRS 175.381(2).
21. Criminal Law.
In contrast to conflicting evidence warranting new trial, insufficiency of evidence, which warrants acquittal, occurs where
prosecution has not produced minimum threshold of evidence upon which conviction may be based, even if such evidence were
believed by jury; standard does not allow district court to act as thirteenth juror and reevaluate evidence and credibility of witnesses.
112 Nev. 1172, 1176 (1996) Evans v. State
22. Homicide.
Finding that defendant who was convicted of four counts of murder had knowingly created great risk of death to more than one
person by means of weapon, device, or course of action, establishing aggravating factor for imposition of death penalty, was supported
by evidence that defendant had discharged his weapon in apartment occupied by six people and used firearm to intentionally commit
multiple murders within closely related time and place, which was course of conduct inherently hazardous to life of more than one
person. NRS 200.033(3).
23. Homicide.
Evidence supported use of instruction during penalty phase of capital murder trial on aggravating factor for imposition of death
penalty of commission of murder for purpose of prevention of lawful arrest. Defendant and accomplice went to apartment to kill
woman who lived there, witness testified that accomplice had stated that other three victims were shot because they were in the wrong
place at the wrong time, and fact that two children who were under age of five who were in apartment were spared was not inconsistent
with prevention of arrest. NRS 200.033(5).
24. Homicide.
To ensure that statutory aggravating factor for imposition of death penalty of torture, depravity of mind, or mutilation is
constitutionally applied, prosecution must show torture, mutilation, or other serious and depraved physical abuse beyond act of killing
itself as qualifying requirement. U.S. Const. amend. 8; NRS 200.033(8).
25. Criminal Law.
Eighth Amendment prohibits imposition of death penalty on defendant who aids and abets felony in course of which murder is
committed by others, but who does not himself kill, attempt to kill, or intend that killing take place or that lethal force be used. U.S.
Const. amend. 8.
26. Criminal Law.
Determination that defendant who participated in felony which resulted in death of victim but did not actually kill victim intended
that killing take place or lethal force be used, or acted with reckless indifference to life, as will allow imposition of death penalty
against defendant under Eighth Amendment, can be made by jury, trial judge, or appellate court. U.S. Const. amend. 8.
27. Criminal Law.
In order for imposition of death sentence to be permissible under Eighth Amendment, defendant must have himself killed,
attempted to kill, intended that killing take place, intended that lethal force be employed, or participated in felony while exhibiting
reckless indifference to human life. U.S. Const. amend. 8.
28. Criminal Law.
Although it is preferable that sentencing body make determination that death penalty defendant himself killed, attempted to kill,
intended that killing take place, intended that lethal force be employed, or participated in felony while exhibiting reckless indifference
to human life, so that death penalty may be imposed under Eighth Amendment, supreme court will do so on appeal. U.S. Const.
amend. 8.
Evidence that defendant was present at scene of murders of four individuals in apartment and helped plan and carry out murders,
and testimony that defendant's accomplice had stated that they wanted to torture victim, supported finding that defendant himself
killed, attempted to kill, or intended that killing take place and accordingly was eligible for death penalty
under Eighth Amendment.
112 Nev. 1172, 1177 (1996) Evans v. State
attempted to kill, or intended that killing take place and accordingly was eligible for death penalty under Eighth Amendment. U.S.
Const. amend. 8.
30. Homicide.
Finding that defendant intended that murder victim suffer, establishing aggravating factor for imposition of death penalty of
torture, depravity of mind, or mutilation, was supported by evidence that victim had been shot in hands prior to fatal shot, and by
testimony that defendant's accomplice had stated that they shot victim in the hands and wanted to torture her. NRS 200.033(8).
31. Homicide.
Any objection by defendant to admissibility of evidence at penalty phase of capital murder trial was waived by his failure to offer
objection, even though objection to that evidence had been sustained during guilt phase.
32. Criminal Law.
Guilt phase and penalty phase in capital case are separate proceedings, and what is irrelevant and inadmissible in one may be
relevant and admissible in the other. NRS 175.552.
33. Criminal Law.
Evidentiary rules are less stringent in penalty phase of trial, and evidence which may or may not ordinarily be admissible under
rules of evidence may be admitted in penalty phase of capital trial as long as questioned evidence does not draw its support from
impalpable or highly suspect evidence. Evidentiary ruling occurring in guilt phase of trial based upon such concerns as relevancy and
hearsay does not have automatic application to separate penalty phase proceeding.
34. Homicide.
Evidence that federal district court, in sentencing alleged accomplice of murder defendant following drug trafficking conviction,
had found that government had failed to establish accomplice's involvement in murders for which defendant was convicted was not
material or related to circumstances of defendant's capital murder trial, and was properly excluded during penalty phase.
35. Homicide.
Sentencing court in capital murder case may not be precluded from considering, as mitigating factor, any aspect of defendant's
character or record and any of circumstances of offense that defendant proffers as basis for sentence less than death.
36. Criminal Law.
Decision to deny motion for mistrial rests in sound discretion of trial court, and will not be disturbed on appeal unless there is clear
showing of abuse.
37. Homicide.
Fact that trial judge in capital murder case had reacted with emotion to penalty phase testimony from members of victims' families
did not influence jury, which was sentencing authority, in manner prejudicial to defendant and did not warrant mistrial, as it was
highly unlikely that jury viewed minor show of emotion by judge, and perceived lessening of emotion following testimony of
defendant's family, as indication of witnesses' credibility or appropriate sentence.
38. Homicide.
Instruction during penalty phase of capital murder trial that jury could not discuss or consider subject of guilt or innocence, as
issue had already been decided, and that its duty was confined to determination of punishment to be imposed
properly stated law.
112 Nev. 1172, 1178 (1996) Evans v. State
already been decided, and that its duty was confined to determination of punishment to be imposed properly stated law.
39. Homicide.
Requested instruction by defendant during penalty phase of capital murder trial that residual doubts of guilt may be considered by
jury as factor in mitigation even if such doubts were not sufficient to raise reasonable doubt in guilt phase was properly rejected.
40. Criminal Law.
While sentencing jury in death penalty case may consider all facts and circumstances of crime in determining appropriate
sentence, lingering or residual doubt as to defendant's guilt or innocence is not appropriate consideration at time of sentencing.
41. Homicide.
Sentencing body in capital murder case may not nullify or neutralize weight of mitigating evidence by excluding such evidence
from its consideration.
42. Criminal Law.
Death penalty must not be imposed in arbitrary or irrational manner. U.S. Const. amend. 8.
43. Homicide.
Facts that sentencing jury in capital murder case, which had requested definition of mitigating circumstances, returned verdict
imposing four death sentences prior to being given definition, and after it was given instruction containing definition and ordered to
deliberate again had returned verdict imposing four death sentences after only five to ten minutes of further deliberation, did not render
imposition of death penalty arbitrary or irrational; instruction given was proper, and there was no indication that jury ignored any
mitigating evidence. U.S. Const. amend. 8.
44. Homicide.
Instruction in penalty phase of capital murder trial on mitigating circumstances which stated that any aspect of defendant's
character or record and any of circumstances of offense, including any desire of jury to extend mercy to defendant, which jury believed
was basis for imposing sentence less than death penalty could be considered as mitigating factor accurately stated law.
45. Criminal Law.
Reviewing court presumes that jury abided by its duty to read and consider all instructions provided by trial court.
Relevant inquiry when reviewing prosecutor's comments for prosecutorial misconduct is whether comments were so unfair that
they deprived defendant of due process. U.S. Const. amend. 14.
47. Criminal Law.
Criminal conviction is not to be lightly overturned on basis of prosecutor's comments standing alone, for statements or conduct
must be viewed in context, and only by so doing can it be determined whether prosecutor's conduct affected fairness of trial.
Comments that are harmless beyond a reasonable doubt do not warrant reversal.
48. Criminal Law.
Statements by prosecutor during penalty phase rebuttal closing argument of capital murder trial that legislature had decided as
policy judgment to allow capital punishment, that parameters for specific role of jury in process had been established before they came
in courtroom, and that jurors should not feel guilty of anything except discharging their civic responsibility did
not constitute prosecutorial misconduct.
112 Nev. 1172, 1179 (1996) Evans v. State
and that jurors should not feel guilty of anything except discharging their civic responsibility did not constitute prosecutorial
misconduct.
49. Homicide.
Imposition of death sentences for each of defendant's four murder convictions for first-degree murder stemming from killings of
four individuals in apartment, which took place in front of four-year-old and 18-month-old children who were not killed, was not
excessive. NRS 177.055(2).
OPINION
A jury convicted Vernell Ray Evans (Evans) of burglary and four counts of first-degree murder. After a penalty hearing, the jury found
that the mitigating circumstances did not outweigh the aggravating circumstances and imposed four death sentences. The district judge
entered a consecutive ten-year term for the burglary conviction. Evans raises numerous issues on appeal.
FACTS
At approximately 1:00 a.m. on May 1, 1992, officers Thomas Carpenter and Phil Miller of the Las Vegas Metropolitan Police
Department (LVMPD), responded to a four-year-old child's report that someone had been shot in the bathroom of a Wardelle Street
apartment. The residents of that apartment (Apartment D), included Samantha Scotti (Samantha), her eighteen-month-old son Francois, and
Alicia Ventura (Alicia) along with her four-year-old daughter Adriana and eight-month-old daughter Ashley.
Upon arrival, the two officers heard music playing inside the apartment and noticed that the front door was open. When the officers
announced their presence and no one responded, they looked inside the apartment. The officers saw a leg extending from beneath bedcovers
in the room down a hallway and a small child sitting on the floor, crying. After observing two lifeless bodies in the front room they decided
to search the apartment for survivors.
The two officers discovered four victims in the apartmentall prey to fatal gunshot wounds. Jermaine Woods (Jermaine) lay on his
stomach on the floor amidst a large pool of blood around his head. He had been shot once in the back of the head. They found the second
victim, Steven Walker (Steven), slumped over on the couch with a pool of blood beside his head and down the side of his body.
1
He
had been shot once in the head, just above his left eyebrow.
__________

1
A white Motorola beeper was located between Steven's feet and a loaded .380 Walther semi-automatic pistol
was discovered in his right front pants pocket.
112 Nev. 1172, 1180 (1996) Evans v. State
eyebrow. Samantha was found in the bathtub. She had been shot approximately eight times,
with entry wounds to her head, neck, face, left shoulder, right breast, left forearm and hand,
right hand and upper arm. The gunshot wound to her left hand caused severe damage to all
four fingers and the gunshot wound to her right hand tore up the palm. Her death was caused
by either the shot to the face or the one to the left shoulder, which punctured her left lung.
There were also indications of a possible blunt force injury to Samantha's head. They found
the fourth victim, Lisa Boyer (Lisa), in bed with a bloody pillow on her chest. She succumbed
to three gunshot wounds: one to the right upper chest area, and two to her left arm, with the
bullets entering her left breast.
The police officers also observed an open window above the bed where Lisa lay and a
screen on the ground below the window. There was, however, no evidence of a forced entry.
Every door in the apartment was open. A plant had been pulled out of its pot, and the cover to
the reservoir of the toilet was out of place. A purse on the bathroom counter contained a
receipt from Lucky's market with the time and date stamped at 11:42 p.m., April 30, 1992.
Investigators relied on this receipt to narrow the times of death.
Laboratory tests revealed that the projectile recovered from Jermaine's head was consistent
with bullets fired from a .38 special or a .357 magnum, as was the projectile recovered from
Steven's head. The deformed projectile removed from Steven's body prevented a positive
match with the gun that was used to kill Jermaine.
One projectile found in Samantha's body was consistent with a 9-millimeter weapon;
whereas, two projectiles came from the same .38 special or .357 magnum used to kill
Jermaine. A third projectile was also consistent with a .38 special or .357 magnum, but was
too deformed to allow for a positive match to the gun used to kill Jermaine or Steven. All
three projectiles fired into Lisa were consistent with the 9-millimeter used to shoot Samantha.
Identification Specialist James Sheets lifted latent fingerprints from the inside surface of
one of the sliding doors to the hallway closet, from the hallway wall near the thermostat, and
near a picture in the hallway. The palm print lifted from the closet door matched Evans' left
palm. The other prints were matched to Everett Flowers (Evie). It is noteworthy that both
Evans and Evie previously lived in that apartment. Evans lived there when Alicia moved in
during March or April 1992, but moved out approximately two weeks later. Evie, Lisa's
boyfriend, moved out of the apartment on the day before Easter, 1992.
112 Nev. 1172, 1181 (1996) Evans v. State
Four-year-old Adriana witnessed the murders and testified at trial.
2
She testified that the
apartment door was unlocked and two men came into the apartment carrying guns. Adriana
referred to the armed intruders as Scary Eyes and Little Ray. They said hi to Jermaine
and Steven, and then shot them. Adriana followed the men into the bathroom where they shot
Samantha. The two men then went into the bedroom and shot Lisa. Adriana could not
remember how many times the women were shot or which one of the men fired the shots.
Adriana did not see how the men left the apartment, but sometime thereafter, Alicia,
Adriana's mother, attempted to call Samantha. Adriana answered the telephone and told her
mother that Samantha was dead. After the conversation, Adriana went to the apartment next
door and told the neighbor that everyone had been killed.
Adriana testified that she did not know Scary Eyes,
3
but she had seen Little Ray
before at Samantha's. Adriana was unable to identify Evans as Little Ray either in court or
in a lineup at the jail. Apparently, Adriana was too frightened to make a reliable
identification. However, Alicia testified that Adriana usually referred to Evans as either
Little Ray or Uncle Ray.
Alicia, of course, had left the apartment before the murders. Although she was able to give
an account of events at the apartment during the afternoon and evening hours of April 30,
1992, it is unnecessary to recount the details as they have little bearing on the evidence
elicited against Evans. Suffice it to say that four men (two at a time) showed up at the
apartment. Steven, who was already at the apartment, was a member of a gang that rivaled a
gang to which two of the men belonged. Additionally, one of the men called Samantha a
snitch bitch and wanted to fight her. Eventually the four men left.
Lisa also arrived at the apartment while the four men were there. She was trying to get
away from her boyfriend, Evie, who had recently put a gun to her head and threatened to kill
her.
Between 7:00 p.m. and 7:30 p.m., Alicia received a telephone call. Although the caller did
not identify himself, Alicia recognized Evans' voice. Evans said something to the effect that:
I don't know why you're living with that snitch bitch [Samantha] still. She's gonna get it
some day. Alicia told Samantha about the call, but she was unfazed because it wasn't the
first time she had been threatened.
__________

2
Adriana was six-years-old at the time she testified.

3
On April 15, 1994, Adriana testified at Richard Powell's sentencing hearing following his conviction on a
federal drug trafficking charge. The federal prosecutor tried to use Powell's involvement in the Wardelle Street
murders to obtain an upward departure from the sentencing guidelines. At Powell's sentencing, Adriana had
referred to the shooters as Little Ray and Scary Eyes. She identified Powell as Scary Eyes. Powell has
never been charged in the Wardelle Street murders.
112 Nev. 1172, 1182 (1996) Evans v. State
the call, but she was unfazed because it wasn't the first time she had been threatened.
Nevertheless, Samantha and Steven left the apartment at approximately 9:00 p.m. to pick up
Jermaine and secure guns for protection.
Alicia and her infant daughter left for a friend's apartment at 10:30 p.m. so that she could
do her laundry. Lisa, Adriana, Francois and two men from next door remained in the
Wardelle Street apartment. When Alicia arrived at the friend's apartment at approximately
11:00 p.m., another man was also there.
4
Evie called while Alicia was at Pitchford's
apartment and asked whether Lisa was over at Samantha's apartment. Alicia said she was not
and immediately called Lisa at Samantha's to warn her not to answer Samantha's phone.
5

At approximately 12:00 a.m., Alicia returned a call that Samantha had made during one of
her trips to the laundry room. Samantha sounded normal and asked Alicia to bring 210 rocks
of cocaine back to the apartment.
6
Alicia retrieved the rock cocaine and called home at
approximately 12:30 a.m. Adriana sounded nervous when she answered the telephone and
said, Uncle Ray, Little Ray came in with the guns, shot everybody, everybody's dead. Alicia
didn't believe Adriana and told her that Samantha was probably sleeping. Adriana said, No.
Uncle Ray, Little Ray came in with the guns, the bad man, and shot everybody. Alicia told
Adriana to take Francois and go to the apartment next door. When Alicia called back a few
minutes later, no one answered, prompting Alicia to return to her apartment.
When Alicia talked to Adriana after her interview with the police, Adriana said Uncle
Ray and the bad man and Scary EyesBogeyman Eyes andcame in with the real guns,
with the brown clothes, and shot everybody.
7

__________

4
The defense presented evidence to suggest that Alicia's friend, Dushawn (Cat) Pitchford, had committed the
murders while carrying out a contract that Samantha's fiance, Anthony (Ace) Collins, had put out on Samantha.
The defense also presented evidence to suggest that Brian (Clay) Hardy, the other man who was with Pitchford
when Alicia arrived to do her laundry, had a motive to kill Samantha because she had informed on him.

5
The defense suggested that Evie was one of the killers based on his abusive relationship with Lisa, including
his threat to kill her just days before her murder.

6
Alicia was supposed to get the drugs from Samantha's safe, which Pitchford had hidden for them in a location
near his apartment. Until a week prior to the murders, the two female victims had kept the safe in Apartment D.
They moved it after several robberies.

7
Alicia's memory of Adriana's statements varied. On May 1, 1992, she told an LVMPD detective that Adriana
had said there were four men. In a statement taken on July 28, 1992, Alicia said Adriana had told her that Evie
was there. Then, before the grand jury, Alicia testified that Adriana told her
112 Nev. 1172, 1183 (1996) Evans v. State
Jeffery Grice (Grice), his wife, son, and a family friend, Aaron Sledge (Sledge), lived in
Apartment C, next door to the crime scene.
8
According to Grice, around 7:00 p.m. on April
30, 1992, Grice took Samantha and an African-American male to Lucky's market.
Later, at approximately 11:00 p.m. or 11:30 p.m., Grice was in his bathroom and heard
what sounded like at least four gunshots. Sledge twice tried to call next door to see what was
happening, but no one answered. They then heard loud music coming from Apartment D.
Fifteen minutes later, Adriana was pounding on Grice's door. When Grice let Adriana into
his apartment, she said They're all dead. They're all dead. They came and they shot them all
dead. . . . Uncle Ray-Ray came in, and they shot them all dead. They were wearing brown.
They were dressed down in brown. . . . They shot Samantha in the bathtub.
Shirannah Rice (Rice) testified that Evans had admitted his involvement in the murders to
her.
9
Rice previously had a romantic relationship with Evans and had been friends with both
Steven and Jermaine. During a conversation on November 8, 1992, Rice told Evans that she
believed Jermaine and Steven had been killed by someone they knew because they always
carried guns and were always watching their backs. Evans told her that the police questioned
him and a guy named Double R
10
after the murders.
Evans then told Rice that Samantha had been working for the police and had set up Double
R in a drug deal, for which he went to jail. Double R had figured out that Samantha set him
up; therefore, he wanted to kill her upon his release. Evans said they planned to kill
Samantha. On the night of the riots in West Las Vegas following the Rodney King verdicts,
Evans called his home boy and said it would be the perfect night to kill Samantha because
the cops were otherwise occupied. Evans said that he went to Apartment D and knocked on
the door.
__________
that Little Ray shot Samantha and Lisa. At trial, Alicia testified that Adriana said it was Ray Evans, Evie
Flowers, and Scary Eyes or Bogeyman Eyes. It should be noted that other suspects remain in the killings that
occurred in Apartment D.

8
There are four apartments at the Wardelle Street address. The two upstairs Apartments D and C share a
common wall.

9
The defense presented Evans' girlfriend, Donna Matthews, as an alibi witness. She testified that she spent the
entire day and evening of April 30, 1992 with Evans at her apartment. Evans spent the night with her. Matthews
did not come forward until contacted by the defense.

10
Rice did not know Double R, but Evans said that he lived next door to Double R. Other witnesses established
that Double R is one of Powell's nicknames.
112 Nev. 1172, 1184 (1996) Evans v. State
said that he went to Apartment D and knocked on the door. A girl answered, let him in, and
then went into the bedroom. Evans stayed in the living room and talked with Steven and
Jermaine. At some point, Evans went outside to spit and returned to the apartment, leaving
the door unlocked. Evans then signaled his partner from the window and his home boy came
in strapped. Steven jumped up and asked what was happening, and Evans told him to take
off his hat. Steven reached for his gun and Evans shot him in the head. Evans told Rice that
Steven's brains flew out onto the end table. Evans' partner went into the bedroom while Evans
asked Jermaine to remove his hat. Jermaine was in shock and asked Evans not to kill him
because he wouldn't tell anyone. Evans said, Man, you know I gotta do this. Evans then
shot Jermaine, who fell forward and [Evans] shot him again in the head. Evans then went to
the bedroom where he and his partner put a pillow over the girl and then they shot her. He
told Rice that Steven, Jermaine, and Lisa were shot because [t]hey were in the wrong place
at the wrong time. Next, they went into the bathroom to kill Samantha. Samantha pleaded
for her life and apologized for what she had done. Rice thought Evans was getting a kick out
of describing what they did to Samantha. They shot her in the breast and in the hand, inin
the fingers, her finger, they shot her fingers off. Evans said they wanted to torture her and
make her suffer.
In another conversation a few months later, Evans told Rice that he was concerned
Adriana could be a witness as she got older and that they had better get her out of town if
they know what's best for her.
Tina Jackson (Jackson) also testified regarding admissions Evans had made to her. While
working as a dancer at the Crazy Horse Too, she met Evans and came to know him by the
name of Mousey. She also knew Alicia and Adriana, and had spoken with them about the
Wardelle Street murders.
11
Jackson testified that Evans and two other men came to her
apartment in November 1992. At that time, Evans told her that he knew Alicia had been
talking to her and that she had better not say anything. When Jackson said she did not know
what he was talking about, he said, Well, I know that you know. Yes, I did do it, and you
better not saying [sic] nothin'."
__________

11
The story which Jackson claimed Alicia told her about the murders is completely inconsistent with the
established facts. Jackson's statement to the police, which she affirmed at trial, was that Alicia had said that her
and her daughter, a girl named Chris, and another little girl that was supposed to have been named Michelle was
over [at] this girl Chris's house and said they had seen Mousey [Evans] come in mad, come in, went into the
bedroom, shot one lady that was supposed to be pregnant several times, and shot two other people.
112 Nev. 1172, 1185 (1996) Evans v. State
saying [sic] nothin'. He placed a gun and bullets on a table, and told Jackson that those
were for [her] if she said anything.
When Evans appeared at the Crazy Horse Too bar later that night, he did not speak to
Jackson. A few days later, Jackson encountered Evans at the Union Plaza. Evans approached
her and basically repeated what he had said in her apartment. He pushed her against a wall
and told her to keep her mouth shut. Afraid of Evans, Jackson soon left the Las Vegas area.
Joseph Salley (Salley), the father of Alicia's youngest child, Ashley, testified as a rebuttal
witness regarding admissions made to him by Evans. In July 1992, Salley was present when
Double R and Evie described their exploits. Double R described how his homey, indicating
Evans, had shot Salley's homey, Steven. Double R said that Steven tried to pull his gun and
Evans blasted him. Evie claimed that a woman's hands had been shot. At some point during
this discussion, Evans jumped up and exclaimed that he was a born killer.
Two weeks later, Salley met Double R and Evans to purchase crack cocaine from them.
Evans told Salley that he was lucky Evans liked him and that Salley had better pay Double R
his cut after selling the crack, otherwise: I'll have to do you like I did your homeys [Steven
and Jermaine]. Evans also said that Steven and Jermaine had been in the wrong place at the
wrong time because they'd (the killers) gone there to take care of two bitches.
At the conclusion of the guilt phase of trial on September 10, 1994, the jury found Evans
guilty of burglary and four counts of first-degree murder.
The penalty phase commenced on September 26, 1994. The State presented evidence
indicating that Evans had a 1992 felony conviction for leaving the scene of an accident, a
1989 felony conviction for battery with the use of a deadly weapon, and that he was facing
drug trafficking and parole violation charges. Members of the victims' families testified about
their losses.
In mitigation, Evans offered his youthful age, the testimony of Dr. Roitman, and the
testimony of family members. Dr. Roitman testified that although Evans was not mentally ill,
he suffered from anxiety illness. His family testified that he was not a bad person and asked
for mercy on his behalf. Evans also exercised his right of allocution. Although he did not
specifically take responsibility for the murders, he said that he had made mistakes in his life
and would change them if he could. He expressed concern for his family and daughter, and
then asked the jury to consider giving him a life sentence.
The jury returned death penalty verdicts on all four counts of first-degree murder. The jury
found that the three aggravating circumstances offered on each murder count were
established beyond a reasonable doubt, and that they were not outweighed by mitigating
circumstances.
112 Nev. 1172, 1186 (1996) Evans v. State
circumstances offered on each murder count were established beyond a reasonable doubt, and
that they were not outweighed by mitigating circumstances. Evans thereafter appealed, raising
numerous issues.
DISCUSSION
Guilt Phase Issues
Jury pool
Evans contends that his jury was not drawn from a representative cross-section of the
community.
12
Specifically, Evans insists that African-Americans were underrepresented in
his jury pool.
[Headnote 1]
Both the Fourteenth and the Sixth Amendments to the United States Constitution
guarantee a defendant the right to a trial before a jury selected from a representative
cross-section of the community. Holland v. Illinois, 493 U.S. 474 (1990); Taylor v.
Louisiana, 419 U.S. 522 (1975). The fair-cross-section requirement mandates that the jury
wheels, pools of names, panels, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community and thereby fail to be reasonably
representative thereof. Taylor, 419 U.S. at 538. However, there is no requirement that petit
juries actually chosen must mirror the community and reflect the various distinctive groups in
the population. Holland, 493 U.S. at 483.
[Headnotes 2-4]
The defendant bears the burden of demonstrating a prima facie violation of the
fair-cross-section requirement. To demonstrate a prima facie violation, the defendant must
show:
(1) that the group alleged to be excluded is a distinctive group in the community; (2)
that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3)
that this underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979) (emphasis added). The Duren Court explained
that systematic exclusion means underrepresentation . . . inherent in the particular
jury-selection process utilized." Id. at 366.
__________

12
Evans also challenged the district court's denial of his motion for jury selection pursuant to statute. His
arguments are without merit. Evans failed to demonstrate a material departure from the jury selection statutes or
the Eighth Judicial District Court's rules, and also failed to show that he was prejudiced by the selection
procedure. See State v. Rice, 844 P.2d 416, 422 (Wash. 1993).
112 Nev. 1172, 1187 (1996) Evans v. State
process utilized. Id. at 366. Once the defendant has made out a prima facie violation of the
fair-cross-section requirement, the burden shifts to the government to show that the disparity
is justified by a significant state interest. Id. at 367.
[Headnotes 5, 6]
That African-Americans are a distinctive group is undisputed. See Vasquez v. Hillery,
474 U.S. 254, 262 (1986) (exclusion of African-Americans from the jury pool violates the
fair-cross-section requirement). However, Evans fails to satisfy the second prong of Duren.
Evans' jury was drawn from a pool of seventy-five people,
13
including seven
African-Americans. Apparently, Evans contends that the fair-cross-section requirement
should be determined based on the composition of the jury pool after the jury pool is
death-qualified pursuant to Morgan v. Illinois, 504 U.S. 719 (1992) and Witherspoon v.
Illinois, 391 U.S. 510 (1968).
14
Evans offers no legal authority to support his proposition.
We therefore will consider the second Duren prong based upon a venire composed of
seventy-five persons, including seven African-Americans. See McKinney v. Sheriff, 93 Nev.
70, 71, 560 P.2d 151, 151 (1977) (stating that contentions unsupported by authority are to be
summarily rejected).
[Headnotes 7, 8]
African-Americans comprised 9.3% of Evans' venire. According to the jury composition
study relied upon by Evans, the 1990 U.S. Census data for Clark County revealed that 8.3%
of the population consisted of African-Americans 18 years of age and over. Thus, the
absolute disparity between the representation of African-Americans in Evans' venire and the
general population positively favored Evans' area of concern. The positive absolute disparity
in this case would also indicate a lower comparative disparity.
15
After reviewing relevant
case law, the Idaho Court of Appeals observed that a comparative disparity well below 50%
is unlikely to be sufficient [to show underrepresentation], especially where the absolute
disparity also is small. State v. Lopez, 692 P.2d 370, 377 (Idaho Ct. App. 1984). We agree,
and conclude that Evans has failed to establish a prima facie violation of the
fair-cross-section requirement.
__________

13
The trial judge indicated there were 72 people in the jury pool.

14
Two African-Americans in Evans' venire were excused because they would always vote to impose the death
penalty; a third was excused because she would never impose a penalty of death.

15
Unlike the absolute disparity, the comparative disparity takes into account the size of the group in addition to
the absolute difference between the group's proportionate representation in the community and its representation
in the jury pool. State v. Lopez, 692 P.2d 370, 376 (Idaho Ct. App. 1984).
112 Nev. 1172, 1188 (1996) Evans v. State
Admissibility of testimony from Joseph Salley
1. Violation of exclusion order
At the beginning of trial, the judge ordered all witnesses excluded pursuant to NRS
50.155,
16
the witness-exclusion rule. Evans objected to testimony from one of the State's
rebuttal witnesses, Joseph Salley, because Salley had been in the courtroom during the first
two days of the trial in violation of the court's exclusion order. The State was unaware of
Salley's presence in the courtroom until defense counsel asked that Salley be prohibited from
testifying on that basis. Although the district court did not specifically rule on the objection to
Salley's testimony, the court did mention that it believed the proper remedy was something
short of prohibiting the testimony. Salley was permitted to testify, prompting Evans to raise
an assignment of error.
In Rainsberger v. State, 76 Nev. 158, 350 P.2d 995 (1960), we had occasion to interpret a
prior, similar witness-exclusion rule. The Rainsberger court held that it was prejudicial error
to preclude a defense witness from testifying because he had been sitting in the courtroom in
violation of an exclusion order where the witness misunderstood the order, was only in the
courtroom for five minutes, and the defense had no knowledge of his presence. Id. at 161-62,
350 P.2d at 996-97. We explained that [w]hile a violation of the [exclusion order] may
subject a witness to punishment such as contempt of court and will affect his credibility it
will not of itself operate to render the witness incompetent to testify. Id.
In Givens v. State, 99 Nev. 50, 657 P.2d 97 (1983), overruled on other grounds by
Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986), this court explained that [t]he
purpose of sequestration of witnesses is to prevent particular witnesses from shaping their
testimony in light of other witnesses' testimony, and to detect falsehood by exposing
inconsistencies. Id. at 55, 657 P.2d at 100. With this purpose in mind, the Givens court held
that because requiring the requesting party to prove that actual prejudice occurred would be
overly harsh and unjust, we will presume prejudice from a violation of NRS 50.155 unless the
record shows that prejudice did not occur. Id. After reviewing the record, the court in Givens
determined that there was no prejudice to the defendant because the testimony of one of the
witnesses who was in the courtroom could not have been influenced by the testimony he
heard, and the other two witnesses who listened to testimony already had testified and
were not called in rebuttal. Id. at 55-56, 657 P.2d at 100.
__________

16
NRS 50.155 provides, in relevant part:
1. Except as otherwise provided [,] . . . at the request of a party the judge shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and he may make the order of his own motion.
112 Nev. 1172, 1189 (1996) Evans v. State
witnesses who was in the courtroom could not have been influenced by the testimony he
heard, and the other two witnesses who listened to testimony already had testified and were
not called in rebuttal. Id. at 55-56, 657 P.2d at 100.
[Headnote 9]
A review of the record reveals no evidence that Salley was influenced by the testimony
given in his presence. Salley's testimony did not directly relate to the testimony occurring
during the first two days of trial when he was present in violation of the exclusion order.
Additionally, the defense used a transcript and tape recording of Salley's initial statement to
the police in order to point out any inconsistencies. We therefore conclude that the purpose of
excluding witnesses was not undermined in this case and Evans was not prejudiced.
Evans asks us to assume prejudice because Salley might have realized that the
prosecution's case during those first two days was weak and that Salley would need to give
strong incriminating evidence when he testified in order to help the prosecution. Although
this argument presents an element of appeal, to recognize it as dispositive would be
tantamount to creating a virtually irrebuttable presumption of prejudice whenever an
exclusion order is violated. This we decline to do.
2. Unnoticed alibi rebuttal witness
Evans objected to Salley being called as a rebuttal witness on the additional ground that
the State had failed to give the notice required by NRS 174.087(2).
17
The district court
overruled the objection, finding that: (1) Salley's testimony would be fair rebuttal to the
entirety of the defense case, not just alibi; and (2) there was good cause to waive the notice
requirement because the State had experienced difficulty in locating Salley. Evans contends
that this was error.
[Headnotes 10, 11]
NRS 174.087(5) allows the district court to exclude evidence offered by the State in
rebuttal to the defendant's evidence of alibi where the State fails to file and serve on the
defendant the list of witnesses required by subsection 2. However, [f]or good cause shown
the court may waive the requirements of this section. NRS 174.0S7{5). "
__________

17
Not less than 10 days after receipt of the defendant's list of witnesses, or at such other times as the court
may direct, the district attorney shall file and serve upon the defendant the names and last known
addresses, as particularly as are known to the district attorney, of the witnesses the state proposes to offer
in rebuttal to discredit the defendant's alibi at the trial of the cause.
112 Nev. 1172, 1190 (1996) Evans v. State
NRS 174.087(5). [T]he court's discretion should be exercised whenever good cause
appears, and a finding of good cause will be upheld on appeal absent a manifest abuse of
discretion. Williams v. State, 97 Nev. 1, 5, 620 P.2d 1263, 1266 (1981).
[Headnote 12]
The primary purpose of NRS 174.087 is to counter-balance the ease with which an alibi
can be fabricated, the government's interest in protecting against a belated defense and the
suspect nature' of alibi testimony. Williams, 97 Nev. at 3, 620 P.2d at 1265. This court has
stated that the exclusion provisions should not be blindly' employed to make the
criminal prosecution a game.' Id. (quoting Founts v. State, 87 Nev. 165, 169, 483 P.2d 654,
656 (1971)).
[Headnote 13]
We conclude that the district court did not abuse its discretion in determining that the State
had shown good cause for its non-compliance with NRS 174.087. Although the State
endorsed Salley as a witness and issued a subpoena for him on August 4, 1994, it had been
unable to locate him until shortly before the occasion for his rebuttal testimony. Moreover,
contrary to Evans' representations below and on appeal, the discovery provided to Evans
indicates that Salley told police that Evans (identified in Salley's statement as Little Ray)
had made admissions to him regarding Evans' involvement in the Wardelle Street murders.
Thus, the potential for surprise which NRS 174.087 seeks to prevent, was not as great in this
case.
18
Finally, the district court adjourned for the day to allow defense counsel to prepare
for Salley's testimony. Under these circumstances, the district court did not abuse its
discretion.
Jury instructions
1. Reasonable doubt
[Headnote 14]
The reasonable doubt instruction
19
given at both the guilt and penalty phases of Evans'
trial mirrors the language mandated by NRS 175.211{1).
__________

18
At trial Salley did testify as to a second admission which did not appear in his original statement to the police.
The defense focused on this point and made it a credibility issue for the jury.

19
The instruction reads:
The defendant is presumed innocent until the contrary is proved. This presumption places upon the State
the burden of proving beyond a reasonable doubt every material element of the crime charged and that
the defendant is the person who committed the offense.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
112 Nev. 1172, 1191 (1996) Evans v. State
penalty phases of Evans' trial mirrors the language mandated by NRS 175.211(1). This court
repeatedly has upheld the use of NRS 175.211(1) as a jury instruction. See, e.g., Bollinger v.
State, 111 Nev. 1110, 1114-15, 901 P.2d 671, 674 (1995); Canape v. State, 109 Nev. 864,
871-72, 859 P.2d 1023, 1028 (1993), cert. denied, 513 U.S. 862, 115 S. Ct. 176 (1994); Lord
v. State, 107 Nev. 28, 38-40, 806 P.2d 548, 554-56 (1991). Evans objected to the reasonable
doubt instruction and raises two challenges on appeal.
First, Evans assigns error to the statutory reasonable doubt instruction, asserting that it is
unconstitutional under the holding in Cage v. Louisiana, 498 U.S. 39 (1990) (plurality
opinion) (substantial and grave doubt based on a juror's moral certainty as opposed to
the reasonable doubt standard based on evidentiary certainty violates Due Process Clause).
We have ruled otherwise, see, e.g., Lord, 107 Nev. at 38-40, 806 P.2d at 554-56,
20
and do so
again today.
[Headnote 15]
Next, Evans assigns error to the statutory reasonable doubt instruction, asserting that the
weighty affairs language lessens the prosecution's burden of proof by equating the jury's
decisions with everyday decisions that, unlike a guilty verdict or death sentence, can be
changed at a later date. We previously have rejected a similar argument, explaining that the
weighty affairs language did not create a reasonable likelihood that the jury applied the
instruction unconstitutionally where the jury was also instructed regarding the State's burden
of proof and the presumption of innocence. Bollinger, 111 Nev. at 1114-15, 901 P.2d at 674.
Such instructions were given here. Accordingly, we reject Evans' contentions on this issue.
2. Premeditation
[Headnote 16]
The premeditation instruction
21
given in this case mirrors that approved by this court in
Powell v. State, 10S Nev. 700, 70S
__________
comparison and consideration of all the evidence, are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must
be actual, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a verdict of not guilty.

20
See also Victor v. Nebraska, 511 U.S. 1, 14-15, 114 S. Ct. 1239, 1247 (1994) (An instruction cast in the
terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's
burden of proof); Canape, 109 Nev. at 872, 859 P.2d at 1028 (reaffirming Lord).

21
The premeditation instruction given to the jury reads:
112 Nev. 1172, 1192 (1996) Evans v. State
approved by this court in Powell v. State, 108 Nev. 700, 708-10, 838 P.2d 921, 926-27
(1992), vacated on other grounds, 511 U.S. 79 (1994). Evans assigns error to the instruction,
arguing that it blurs the line between first and second-degree murder because deliberation
requires more than instantaneous premeditation. Evans further contends that the district
court improperly rejected an instruction proffered by the defense defining deliberation.
22

In Powell, this court approvingly observed that other jurisdictions viewed premeditated,
deliberate, and willful as used to define first-degree murder as a single phrase, meaning that
the defendant intended to kill. Id. Furthermore, [a]s long as the instruction on premeditation
which is given to the jury comports with [Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978)], it
is not necessary to separately define deliberateness or willfulness. Id. at 709-10, 838 P.2d at
927. This court then concluded that the premeditation instruction, identical to the one
challenged in the case at bar, constituted an accurate definition. Id. at 710, 838 P.2d at 927.
We conclude that the reasoning set forth in Powell remains sound and that there is no
reason for this court to reexamine the meaning of the phrase deliberate, premeditated, and
willful at this time.
__________
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or
at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive
thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has
been preceded by and has been the result of premeditation, no matter how rapidly the premeditation is
followed by the act constituting the killing, it is willful, deliberate and premeditated murder.

22
Evans' proffered instruction reads:
Premeditation is a design, a determination to kill distinctly formed in the mind at any moment before or at
the time of the killing.
Deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed cause of action.
The law does not undertake to measure in units of time the length of the period during which the thought
must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The
time will vary with different individuals and under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated
judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash
impulse, even though it includes an intent to kill, is not such deliberation and premeditation as will fix an
unlawful killing as murder of the first degree.
112 Nev. 1172, 1193 (1996) Evans v. State
Motion for acquittal notwithstanding the verdict
Evans contends that the district court used an incorrect standard in deciding whether to
grant his motion for an acquittal notwithstanding the verdict. He insists that the correct
standard is one in which the district court makes an independent evaluation of the evidence
presented, including the credibility of the witnesses. We disagree. Evans has confused the
standard that a district court must use in deciding whether to grant a motion for an acquittal
pursuant to NRS 175.381(2) with that used in deciding whether to grant a motion for a new
trial pursuant to NRS 176.515(4).
[Headnotes 17, 18]
This court has held that other grounds for a new trial exist under NRS 176.515(4) where
the trial judge finds that the evidence of guilt is conflicting, and after an independent
evaluation of the evidence, disagrees with the jury's verdict of guilty. See State v. Purcell, 110
Nev. 1389, 887 P.2d 276 (1994); Washington v. State, 98 Nev. 601, 655 P.2d 531 (1982). We
have explained that
a conflict of evidence occurs where there is sufficient evidence presented at trial which,
if believed, would sustain a conviction, but this evidence is contested and the district
judge, in resolving the conflicting evidence differently from the jury, believes the
totality of evidence fails to prove the defendant guilty beyond a reasonable doubt.
State v. Walker, 109 Nev. 683, 685-86, 857 P.2d 1, 2 (1993).
[Headnotes 19-21]
However, a district court lacks authority to grant a new trial based on insufficiency of the
evidence; when there is truly insufficient evidence to convict, a defendant must be acquitted.
Purcell, 110 Nev. at 1394-95, 887 P.2d at 279. Accordingly, where there is insufficient
evidence to support a conviction, the trial judge may set aside a jury verdict of guilty and
enter a judgment of acquittal. NRS 175.381(2). In contrast to conflicting evidence,
insufficiency of the evidence occurs where the prosecution has not produced a minimum
threshold of evidence upon which a conviction may be based, even if such evidence were
believed by the jury. Id. at 1394, 887 P.2d at 279 (emphasis added). Clearly, this standard
does not allow the district court to act as a thirteenth juror and reevaluate the evidence and
the credibility of the witnesses.
It is apparent that Evans has confused the standards to be used in deciding whether to grant
these two motions. The referenced cases demonstrate that there is a marked difference
between a motion for a new trial and a motion for an acquittal.
112 Nev. 1172, 1194 (1996) Evans v. State
cases demonstrate that there is a marked difference between a motion for a new trial and a
motion for an acquittal. This difference has also necessitated the use by a trial court of two
very different standards in the resolution of the two motions. If the new trial standard were
applied to a motion for an acquittal, then the trial judge could act as a thirteenth juror, acquit
the defendant notwithstanding the jury's contrary verdict and, consequently, prevent the State
from reprosecuting the defendant. We therefore reject Evans' interpretation of the standard to
be used by a district court in deciding whether to grant a motion for an acquittal. Further, we
conclude that the trial judge used the correct standard in denying Evans' motion for an
acquittal notwithstanding the verdict. Finally, we also conclude from our review of the record
that there was sufficient evidence upon which to base Evans' conviction.
Penalty Phase Issues
Aggravating circumstances
In its Notice of Intent to Seek Death Penalty, the State indicated its intention to present
evidence regarding the following six aggravating circumstances at the penalty hearing:
1. The murder was committed by a person who was previously convicted of a felony
involving the use or threat of violence to the person of another, to-wit: Battery With
Use of a Deadly Weapon. NRS 200.033(2).
2. The murder was committed by a person who knowingly created a great risk of death
to more than one person by means of a weapon, device or course of action which would
an attempt to commit any Burglary. NRS 200.033(4).
4. The murder was committed to avoid or prevent a lawful arrest or to effect an escape
from custody. NRS 200.033(5).
5. The murder involved torture, depravity of mind or the mutilation of the victim. NRS
200.033(8).
6. The murder was committed upon one or more persons at random and without
apparent motive. NRS 200.033(9).
Evans filed pretrial motions to strike all but the first of the aggravating circumstances (prior
conviction for a violent felony). The district court addressed Evans' motions at the beginning
of the penalty phase and struck the third (burglary) and the sixth (random and without
apparent motive) aggravators, but denied Evans' motion to strike the other aggravating
circumstances.
112 Nev. 1172, 1195 (1996) Evans v. State
At the conclusion of the penalty hearing, the jury returned four death sentences. In the
course of its deliberations, the jury found that aggravators one, two, and four were established
beyond a reasonable doubt in the murders of Lisa, Steven, and Jermaine. As to Samantha's
death, the jury found that aggravators one, two, and five were established beyond a reasonable
doubt. In all instances, the jury found that there were no mitigating circumstances sufficient
to outweigh the aggravating circumstances.
On appeal, Evans contends that the evidence did not warrant the district court's
instructions to the jury regarding the following aggravating circumstances: two (great risk of
death to more than one person) as to all of the murders; four (prevention of lawful arrest) as
to the murders of Lisa, Steven and Jermaine; and five (torture, depravity of mind, or
mutilation) as to Samantha's murder.
1. Great risk of death to more than one person
[Headnote 22]
Evans contends that the evidence did not warrant an instruction based upon NRS
200.033(3) because (1) the murders were not the result of indiscriminate gunfire; and (2) each
of the victims was an intended victim. We disagree.
This court has explained:
It is of no consequence to multiple victims of a violent crime whether their deaths or
injuries result from a weapon directed at each victim specifically or by random
shootings or the use of a scattergun or other weapon of broader impact. . . . Obviously,
one who intends to commit multiple murders within a closely related time and place
engages in a course of conduct inherently hazardous to the life of more than one
person.
Hogan v. Warden, 109 Nev. 952, 959, 860 P.2d 710, 715 (1993) (emphasis added).
Accordingly, we have upheld this aggravator in cases where the perpetrator shot his victim in
the presence of other people. See, e.g., id. at 957, 860 P.2d at 714; Moran v. State, 103 Nev.
138, 143, 734 P.2d 712, 715 (1987).
In the instant case, Evans discharged his weapon in an apartment occupied by six people.
The fact that he used a firearm to intentionally commit multiple murders within a closely
related time and place, constitutes a course of conduct inherently hazardous to the life of
more than one person as contemplated by NRS 200.033(3). See Hogan, 109 Nev. at 959, 860
P.2d at 715.
2. Prevention of lawful arrest
Evans also challenges the use of the prevention of lawful arrest statutory aggravator, NRS
200.033{5), arguing that the evidence adduced at trial fails to show that his dominant
motive23 for killing Steven, Lisa, and Jermaine was to avoid arrest for a specific crime, or
that these three victims knew him well enough to identify him.
112 Nev. 1172, 1196 (1996) Evans v. State
statutory aggravator, NRS 200.033(5), arguing that the evidence adduced at trial fails to show
that his dominant motive
23
for killing Steven, Lisa, and Jermaine was to avoid arrest for a
specific crime, or that these three victims knew him well enough to identify him. As further
support for his contention that the evidence did not warrant an instruction on this aggravating
circumstance, Evans cites Jimenez v. State, 105 Nev. 337, 343, 775 P.2d 694, 698 (1989),
where this court granted the appellant's request for a new penalty hearing because there was
no basis in fact for the jury to find that the murders had been committed to prevent lawful
arrest or to escape. Evans' contentions are meritless.
[Headnote 23]
This court has held that the arrest need not be imminent and the victim need not actually
be involved in effectuating an arrest for purposes of NRS 200.033(5). Cavanaugh v. State,
102 Nev. 478, 486, 729 P.2d 481, 486 (1986) (aggravator upheld where the defendant
murdered his victim to prevent the victim from contacting law enforcement about the
defendant's participation in a fraudulent scheme to purchase furniture with forged checks). In
a recent case, Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993), cert. denied, 513 U.S.
862, 115 S. Ct. 176 (1994), the evidence produced at trial indicated that Canape robbed his
victim near the victim's car, and then forced him to walk a distance from the freeway, where
Canape shot him in the back. This court concluded that based on the evidence, a jury could
reasonably infer that the murder was committed to avoid lawful arrest. Id. at 874-75, 859 P.2d
at 1030.
Unlike Jimenez, here sufficient evidence existed to justify the court giving an instruction
regarding the aggravator concerned with killing to prevent a lawful arrest. Evans and his
accomplice went to the apartment to kill Samantha. Shirannah Rice testified that Evans told
her that Lisa, Steven, and Jermaine were shot because they were in the wrong place at the
wrong time. Moreover, the fact that Adriana and Francois were spared is not inconsistent
with the prevention of lawful arrest aggravating factor. Eighteen-month-old Francois
presented no identification threat whatsoever, and it is likely that Evans believed
four-year-old Adriana would not be able to tie him to the crimes.
Finally, Evans' contention that the State never showed that Lisa, Jermaine, and Steven
knew Evans to the extent that they could identify him, is disingenuous.
__________

23
As support for his dominant motive argument, Evans relies primarily on Florida case law. See, e.g., Herzog
v. State, 439 So. 2d 1372 (Fla. 1983) (the prevention of lawful arrest aggravator may be applicable when the
fact finder determines that the dominant motive of the murder was for the elimination of witnesses).
112 Nev. 1172, 1197 (1996) Evans v. State
Lisa, Jermaine, and Steven knew Evans to the extent that they could identify him, is
disingenuous. We decline to give so narrow an interpretation to NRS 200.033(5) as to
preclude its use whenever the perpetrator is a stranger to his or her murder victim.
3. Torture, depravity of mind, or mutilation
[Headnote 24]
Evans also challenges the torture, depravity of mind, or mutilation statutory aggravator,
NRS 200.033(8),
24
as applied to Samantha, because the evidence does not show that Evans
fired the shots which mutilated her hand or otherwise tortured her; therefore, the jury would
have been unable to make the necessary culpability determination as to this aggravating
factor.
[Headnotes 25, 26]
Evans cites Enmund v. Florida, 458 U.S. 782, 797 (1982), where the Supreme Court held
that the Eighth Amendment prohibits the imposition of the death penalty on a defendant who
aids and abets a felony (in Enmund, a robbery) in the course of which a murder is committed
by others, but who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force be used. Evans also cites Tison v. Arizona, 481 U.S. 137, 158 (1987), where
the Court held that major participation in a felony that resulted in murder, combined with the
defendant's reckless indifference to human life is sufficient to satisfy the Enmund culpability
test even if the defendant is not the killer. The Enmund/Tison determination can be made by a
jury, trial judge, or an appellate court. Cabana v. Bullock, 474 U.S. 376, 386-87 (1986).
[Headnotes 27, 28]
Based upon Enmund and Tison, this court has held that: To receive the death sentence,
appellant must have, himself, killed, attempted to kill, intended that a killing take place,
intended that lethal force be employed or participated in a felony while exhibiting a reckless
indifference to human life. Doleman v. State, 107 Nev. 409, 418, 812 P.2d 1287, 1292-93
(1991). Although it is preferable that the sentencing body make
__________

24
Prior to a 1995 amendment, NRS 200.033(8) provided that first-degree murder may be aggravated where
[t]he murder involved torture, depravity of mind or the mutilation of the victim. To ensure that this aggravator
is applied in a constitutional manner, this court held that NRS 200.033(8) requires torture, mutilation or other
serious and depraved physical abuse beyond the act of killing itself, as a qualifying requirement to an
aggravating circumstance based in part upon depravity of mind. Robins v. State, 106 Nev. 611, 629, 798 P.2d
558, 570 (1990), cert. denied, 499 U.S. 970 (1991). The requisite limiting instruction was given in this case.
112 Nev. 1172, 1198 (1996) Evans v. State
preferable that the sentencing body make this determination, this court will do so on appeal.
Id. at 417, 812 P.2d at 1292.
[Headnotes 29, 30]
The record in this case reflects ample evidence that Evans, himself, killed, attempted to
kill, or intended that a killing take place when he participated in the killings on May 1, 1992.
The evidence adduced at trial indicated that Evans was not only present at the murder scene,
but helped plan and carry out the murders. The evidence also supports the conclusion that
Evans intended to make Samantha suffer.
Shirannah Rice testified that Evans told her that they shot Samantha in the hands and
that they wanted to torture her. Therefore, we conclude that Evans was an integral part of the
murders committed on May 1, 1992, and directly culpable in the torture and mutilation of
Samantha Scotti. We further conclude that the number and location of the gunshot wounds
suffered by Samantha Scotti warranted an instruction on torture, depravity of mind, or
mutilation as an aggravating circumstance. See Rogers v. State, 101 Nev. 457, 468, 705 P.2d
664, 671-72 (1985), cert. denied, 476 U.S. 1130 (1986).
Penalty phase evidence
Evans contends that he should have been allowed to present the sentencing jury with
evidence regarding a federal district court's conclusion that the government had failed to
prove Richard Powell's involvement in the Wardelle Street murders by even a preponderance
of the evidence.
25
Evans did not attempt to introduce this evidence at the penalty phase
based upon the trial judge's ruling during the guilt phase that the evidence was irrelevant and
inadmissible hearsay.
26
Because the trial judge admonished Evans' attorneys not to in any
way again try to get [the evidence] in, they believed that the ruling applied to the penalty
phase as well.
[Headnotes 31-33]
First, Evans waived any objection regarding the admissibility of the evidence at the penalty
phase by failing to offer it. The guilt phase and the penalty phase in a capital case are separate
proceedings. See NRS 175.552. What is irrelevant and inadmissible in one may be relevant
and admissible in the other. Additionally, evidentiary rules are less stringent in the penalty
phase of trial.
__________

25
The government had sought to use Powell's involvement in the Wardelle Street murders to obtain an upward
enhancement of Powell's sentence for a federal drug trafficking conviction.

26
Evans has not appealed the exclusion of this evidence at the guilt phase.
112 Nev. 1172, 1199 (1996) Evans v. State
Under Nevada law, evidence which may or may not ordinarily be admissible under the rules
of evidence may be admitted in the penalty phase of a capital trial, NRS 175.552, as long as
the questioned evidence does not draw its support from impalpable or highly suspect
evidence. Young v. State, 103 Nev. 233, 237, 737 P.2d 512, 515 (1987). Thus, an evidentiary
ruling occurring in the guilt phase of trial based upon such concerns as relevancy and hearsay
does not have automatic application to the separate penalty phase proceeding. Nevertheless,
given the severity of Evans' punishment, we will consider the merits of Evans' contention.
[Headnotes 34, 35]
Evans directs our attention to Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992), cert. denied,
507 U.S. 951 (1993), wherein the court held that evidence from which it might be inferred
that Mak's co-defendant and a third party planned the massacre for which Mak was convicted
should have been admitted during the penalty phase because it contradicted the prosecution's
theory that Mak was the planner and thus was relevant to his relative culpability. The Mak
court concluded that the evidence was relevant to capital sentencing under the holding in
Eddings v. Oklahoma, 455 U.S. 104 (1982).
27
Evans contends that the Powell evidence
was relevant to his sentencing because it related to the circumstances of the offense.
The evidence excluded in the case at bar is distinguishable from that excluded in Mak. The
final decision reached by the federal court with respect to Powell in no way relates to Evans'
relative culpability. Moreover, Evans was not precluded from introducing evidence
suggesting that the State's theory of the case was wrong, that he had a lesser involvement in
the crimes, or that he deserved a sentence less than death. Finally, the federal court's decision
regarding Powell was based upon a different standard and less evidence than that presented
against Evans. Indeed, it appears that the State had a stronger case against Evans due, in part,
to witness testimony regarding admissions Evans had made. We therefore conclude that the
federal court's final decision in Powell's case was not material or related to the circumstances
of the instant prosecution.
Motion for mistrial
The trial judge reacted with emotion to the penalty phase testimony from members of the
victims' families, prompting the defense to move for a mistrial.
__________

27
In Eddings, the Supreme Court held that the sentencer [may] not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death.' 455 U.S. at 110 (quoting Lockett v. Ohio,
438 U.S. 586, 604 (1978) (emphasis in original)).
112 Nev. 1172, 1200 (1996) Evans v. State
testimony from members of the victims' families, prompting the defense to move for a
mistrial. The judge denied the motion, stating that his mere display of emotion upon hearing a
mother talk about her dead child is insufficient for a mistrial and that he would probably
experience the same feelings after hearing testimony from the defendant's family members.
At the conclusion of the defendant's case in the penalty phase of trial, the defense moved
again for a mistrial based on the obvious lack of emotion showed today after the defense
witnesses testified compared to yesterday. The trial judge again denied the motion. Evans
maintains that the district court erred by denying his motions and that the error denied him a
fair penalty hearing.
[Headnotes 36, 37]
The decision to deny a motion for a mistrial rests in the sound discretion of the trial court
and it will not be disturbed on appeal unless there is a clear showing of abuse. See Owens v.
State, 96 Nev. 880, 620 P.2d 1236 (1980). Both Evans and the State focus their arguments on
a judge's impartiality and the potential for prejudice to a defendant being sentenced by an
impartial judge. However, because the jury, not the trial judge, was the sentencing authority
in this case, we conclude that the more appropriate inquiry is whether the show of emotion by
the judge influenced the jury in a manner that was prejudicial to Evans. Cf. People v. Rogers,
800 P.2d 1327 (Colo. Ct. App. 1990) (reversible error for trial judge to escort child-victim to
and from witness stand in a prosecution for sexual assault because jury could have perceived
action as endorsement of child's credibility, and action thus impinged on right to fair trial);
People v. Martinez, 652 P.2d 174 (Colo. Ct. App. 1981) (judge should not comment upon the
evidence or the credibility of a witness); State v. Ciskie, 751 P.2d 1165 (Wash. 1988) (same).
In order to determine the impact the judge's conduct may have had upon the jury, it is
necessary to review both the extent and nature of that conduct. The record does not contain a
video or audio recording. However, the trial judge gave the following description of what
happened:
Now, in terms of what happened, in terms of actual tears, I think that during the four
women who testified, the four mothers, there was one tear in the corner of my eye and I
looked up at the light and rubbed it out. I think in terms of the admonishment, my voice
probably shook with emotion during the entire reading of the admonishment and I'm
sure that's what the recording would show.
When Evans' counsel made the second motion for a mistrial, the trial judge observed: I think
my voice shook throughout the entire admonishment yesterday.
112 Nev. 1172, 1201 (1996) Evans v. State
entire admonishment yesterday. My perception was, it didn't during the admonishment today
but it did when I was excusing Mr. Evans' mother, and may have also when I was excusing
the two sisters of Mr. Evans.
We conclude that it is highly unlikely that the jury viewed this minor show of emotion by
the judge following the testimony by the victims' families and the perceived lessening of
emotion following the testimony of Evans' family, as an indication of the witnesses'
credibility or the appropriate sentence.
28
We therefore conclude that this issue is without
merit.
Lingering doubt
Evans assigns error to one penalty phase instruction given to the jury.
29
He also argues
that the district court improperly rejected another. Both contentions involve the concept of
lingering doubt as a possible mitigating factor.
[Headnote 38]
The district court gave Jury Instruction No. 18 at the conclusion of the penalty phase. This
instruction informed the jury:
In your deliberation you may not discuss or consider the subject of guilt or
innocence of a defendant, as that issue has already been decided. Your duty is confined
to a determination of the punishment to be imposed.
Evans contends that this instruction was prejudicial because it would make it impossible for
the jury to consider lingering doubts of guilt as a possible mitigating factor. Along these same
lines, Evans proffered the following instruction:
The fact that it may be considered as a factor in mitigation, if you have a lingering or
residual doubt as to the guilt of the defendant, even if such was not sufficient to raise a
reasonable doubt in the guilt phase.
Although the district court rejected the proffered instruction, the district court decided that
Evans would be allowed to argue lingering or residual doubt in the closing argument.
__________

28
Although we conclude that there was no prejudice or abuse of discretion in this case, we urge the district
courts to give a standard instruction to the jury to the effect that the jury is not to be influenced by anything the
judge might have said or done. For example, a pattern preliminary instruction used in the Ninth Circuit,
regarding the duty of the jury, includes the following language: You should not take anything I may say or do
during the trial as indicating what I think of the evidence or what your verdict should be. Committee on Model
Jury Instructions Ninth Circuit, Model Criminal Jury Instructions for the Ninth Circuit, in Modern Federal Jury
Instructions 9-1, 1.01 (1991).

29
Evans also challenges the reasonable doubt instruction given during the penalty phase. We rejected, and
again reject, the same contentions with respect to the identical instruction given during the guilt phase.
112 Nev. 1172, 1202 (1996) Evans v. State
district court decided that Evans would be allowed to argue lingering or residual doubt in the
closing argument.
In Riley v. State, 107 Nev. 205, 808 P.2d 551 (1991), a penalty phase instruction identical
to Jury Instruction No. 18 was challenged on the ground that it improperly precluded the jury
from weighing the evidence of guilt as a possible mitigating factor. This court rejected the
challenge, explaining that because the penalty phase of a capital case is conducted after the
defendant has been found guilty of first-degree murder, the issue of guilt should not be
addressed again by the jury. Id. at 215, 808 P.2d at 557. Our ruling in Riley is dispositive of
this issue; Jury Instruction No. 18 was proper.
[Headnote 39]
Moreover, the district court did not err in refusing Evans' instruction listing residual doubt
as a mitigating circumstance. In Homick v. State, 108 Nev. 127, 141, 825 P.2d 600, 609
(1992), we held, in accord with the Supreme Court's ruling in Franklin v. Lynaugh, 487 U.S.
164 (1988), that there is no constitutional mandate for a jury instruction in a capital case
making residual doubt a mitigating circumstance. The Court reasoned that lingering doubts
over a defendant's guilt do not constitute an aspect of the defendant's character, record, or a
circumstance of the offense. Franklin, 487 U.S. at 174.
However, the district court decided that even though Homick stated that an instruction on
lingering doubt should not be given, under its interpretation of Riley, the defense would still
be permitted to argue lingering doubt in its closing argument. Evans' attorney did argue
lingering doubt during closing and tried to explain that Jury Instruction No. 18 did not
preclude the jury from considering lingering doubt as a mitigating circumstance. In rebuttal,
the prosecutor argued that lingering doubt was not a proper consideration and that Jury
Instruction No. 18 is very clear and most unequivocal, that this is not a time to consider guilt
or innocence; this is the time to consider the punishment to be imposed. Although Evans
failed to object to the prosecutor's comment, Evans now contends that the district court
improperly allowed the comment which contradicted the court's earlier ruling.
[Headnote 40]
We discern nothing in our holding in Riley that would suggest that lingering doubt may be
argued as a mitigating circumstance. Indeed, the instruction upheld in Riley effectively
precludes the jury from considering lingering doubt because to do so it would have to
reconsider the defendant's guilt or innocence, a subject clearly foreclosed by the instruction.
112 Nev. 1172, 1203 (1996) Evans v. State
clearly foreclosed by the instruction. The following additional statement in Riley may be
responsible for the apparent confusion: Further, while the jury was not at liberty to
reevaluate their guilty verdicts, they were nonetheless instructed that they could consider the
evidence produced at trial in deciding whether the death penalty was appropriate.
30
Riley,
107 Nev. at 215, 808 P.2d at 557. What this statement means is that the jury may consider all
of the facts and circumstances of the crime in determining the appropriate sentence. This is
completely consistent with and, in fact, mandated by the Supreme Court's holding in Eddings.
However, it does not suggest that lingering or residual doubt as to the defendant's guilt or
innocence is an appropriate consideration at the time of sentencing. Therefore, the only error
on this issue favored Evans when the district court allowed defense counsel to address
lingering doubt during closing argument.
Jury's understanding of mitigating circumstances
During the jury's deliberations concerning the appropriate sentence to impose, the jury
foreman sent a note to the trial judge requesting a Black's Law or proper definition of
mitigating circumstances. Before the judge could respond, however, the jury returned with a
verdict imposing four death sentences. The trial judge nevertheless granted a request by the
defense, over the State's objections, that the jury be given an instruction answering the jury's
question,
31
and be ordered to deliberate again. Five to ten minutes later, the jury again
returned a verdict imposing four death sentences.
Evans maintains that even though the jury received a definition of mitigating
circumstances, it is apparent that they gave that definition no consideration because they
returned with the first verdict before receiving their requested definition, and after receiving
the requested definition, they returned a verdict after deliberating only long enough to sign
the new verdict forms. Evans concludes that the jury could not possibly have given proper
consideration to the mitigating evidence he presented because the jury did not understand the
meaning of mitigating circumstances.
__________

30
Evans' jury received a similar instruction.

31
The jury was given the following instruction: Mitigating circumstances are things which do not constitute a
justification or excuse of the offense in question, but which in fairness and mercy may be considered as
extenuating or reducing the degree of moral culpability.
112 Nev. 1172, 1204 (1996) Evans v. State
[Headnotes 41-43]
Evans correctly notes that a sentencing body may not nullify or neutralize the weight of
mitigating evidence by excluding such evidence from its consideration, Saffle v. Parks, 494
U.S. 484, 490 (1990), and that the death penalty must not be imposed in an arbitrary or
irrational manner, Parker v. Dugger, 498 U.S. 308, 321 (1991). However, we are persuaded
that the jury was properly instructed and that there is no evidence to indicate that the jury
ignored the evidence adduced in mitigation.
[Headnotes 44, 45]
The jury was instructed concerning the mitigating circumstances presented by Evans.
Additionally, Penalty Phase Instruction No. 16 provided, in relevant part:
The mitigating circumstances which I have read for your consideration are given
only as examples of some of the factors you may take into account as reasons for
deciding not to impose a sentence of death on the defendant. Any aspect of the
defendant's character or record and any of the circumstances of the offense, including
any desire you may have to extend mercy to the defendant, which a jury believes is a
basis for imposing sentence less than death may be considered a mitigating factor. Any
one of them may be sufficient, standing alone, to support a decision that death is not the
appropriate punishment in this case.
(Emphasis added.) Evans never objected to the adequacy of these instructions and we
conclude that they were sufficient and proper instructions to the jury on the subject of
mitigating circumstances. Moreover, the additional instruction defining mitigating
circumstances clarified any possible confusion. This court has always presumed that the jury
abided by its duty to read and consider all instructions provided by the trial court. See
Lambert v. State, 94 Nev. 68, 70, 574 P.2d 586, 587 (1978). We further reject the argument
that the jury failed to consider the mitigating evidence presented by Evans based solely upon
the length of the jury's deliberations.
[Headnotes 46, 47]
The relevant inquiry when reviewing a prosecutor's comments is whether the comments
were so unfair that they deprived the defendant of due process. Darden v. Wainwright, 477
U.S. 168, 181 (1986). [A] criminal conviction is not to be lightly overturned on the basis of
a prosecutor's comments standing alone, for the statements or conduct must be viewed in
context; only by so doing can it be determined whether the prosecutor's conduct affected
the fairness of the trial."
112 Nev. 1172, 1205 (1996) Evans v. State
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial. United States v. Young, 470 U.S. 1, 11 (1985). Accordingly, comments that are
harmless beyond a reasonable doubt do not warrant reversal. Witherow v. State, 104 Nev.
721, 724, 765 P.2d 1153, 1155 (1988).
During the penalty phase rebuttal closing argument, the prosecutor commented:
As a policy judgment in 1977 our legislature decided that it was appropriate to have
capital punishment in the state of Nevada. So whatever your decision may be in this
courtroom, you share the responsibility at least with the legislators
[objection interposed and overruled]
. . . .
I suggest it's a denigration of the criminal justice system to attempt to equate the
legitimate effort to find punishment which fits the crimes with simply a primal
barbarian urge for revenge.
Ladies and gentlemen, there were police officers involved in the investigation of this
case. You heard from both former Detectives Dibble and Scholl. Surely they share
responsibility in what was done. They pursued the investigation; they submitted a case
to the Office of the District Attorney. The Office of the District Attorney has been the
charging entity in this case. The Judge has presided over the trial.
I'm simply saying that you have a specific role within the criminal justice system.
But the parameters were already established before you came to this courtroom; it was
already in place that there are punishments available for a murder of the first degree.
It's certainly my earnest hope that regardless of what you conscientiously and
objectively and honestly decide, that you aren't going to be lured into feeling guilty
about what you've done. You're not guilty of anything, except discharging your civic
responsibility to the best of your ability.
Evans argues that these statements amount to an impermissible inference that the jury shares
its responsibility in determining the appropriate sentence. We disagree.
[Headnote 48]
Evans cites Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), where the Supreme
Court held that it is constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests elsewhere."
112 Nev. 1172, 1206 (1996) Evans v. State
elsewhere. In Caldwell, the prosecutor responded to defense counsel's statement that the jury
faced an awesome responsibility, with the following comment:
Now, they would have you believe that you're going to kill this man and they
knowthey know that your decision is not the final decision. My God, how unfair can
you be? Your job is reviewable. . . .
. . . .
For they know, as I know, and as Judge Baker has told you, that the decision you render
is automatically reviewable by the Supreme Court.
Id. at 325-26. The Court questioned the reliability of the sentence as well as the jury's bias in
favor of the death sentence for a number of reasons when the prosecutor suggested to the
sentencing jury that it could shift its sense of responsibility to an appellate court. Id. at
330-34. For example:
Even when a sentencing jury is unconvinced that death is the appropriate punishment, it
might nevertheless wish to send a message of extreme disapproval for the defendant's
acts. This desire might make the jury very receptive to the prosecutor's assurance that it
can more freely err because the error may be corrected on appeal.
Id. at 331 (quoting Maggio v. Williams, 464 U.S. 46, 54-55 (1983) (Stevens, J., concurring in
judgment)).
The prosecutor's comments in the instant case did not rise to the level of those condemned
in Caldwell. Although the prosecutor told the jury that it share[d] the responsibility at least
with the legislators, the comment appears to have been meant as a response to attempts by
the defense to make the jury feel guilty if they returned a death sentence. The prosecutor
never suggested that the jury must impose the death sentence merely because the legislature
had decided that it is an available punishment, nor did the prosecutor suggest that the
responsibility for determining the appropriate sentence rested elsewhere. Rather, the
prosecutor sought to make it clear that the legislature had made the determination that life
with or without the possibility of parole, and death are available sentences for first-degree
murder and that it was now the jury's responsibility to determine which sentence was
appropriate in Evans' case. We therefore conclude that the prosecutor's comments were not
improper.
32
Mandatory review of propriety of death penalty
__________

32
Evans also cites the following cases: Mazzan v. State, 105 Nev. 745, 783 P.2d 430 (1990) (addressing
prosecutor's statements that they should use the sentence to set a standard and threatening the jury with social
pressure); Dawson v. State, 103 Nev. 76, 734 P.2d 221 (1987) (addressing prosecutor's
112 Nev. 1172, 1207 (1996) Evans v. State
[Headnote 49]
NRS 177.055(2)
33
mandates this court's review of every death sentence. Pursuant to the
statutory requirements, and in addition to the issues raised by Evans and resolved as
discussed above, we have determined that each of the aggravating circumstances found by the
jury was supported by substantial evidence. Additionally, our careful review of the record has
revealed no evidence indicating that Evans' death sentences were imposed under the influence
of passion, prejudice or any arbitrary factor. We therefore hold that the death sentences were
not imposed under the influence of any such factors. Finally, we have concluded that the
death sentences Evans has received are not excessive considering Evans as a person, and the
gravity and circumstances of his crimes.
CONCLUSION
For the reasons discussed above, we conclude that Evans was fairly tried, convicted and
sentenced. Accordingly, we affirm the judgment entered by the district court in all respects,
including the four death sentences.
I concur in the result. I do not join in the majority opinion primarily because of
disagreement with its treatment of the penalty phase. This murder was not committed by a
person who knowingly created a great risk of death to more than one person by means of a
weapon, device or course of action which would normally be hazardous to the lives of more
than one person."
__________
comments that allegedly expressed an opinion about the defendant's guilt and the appropriate sentence); Jones v.
State, 101 Nev. 573, 707 P.2d 1128 (1985) (addressing prosecutor's request that the jury be fair to the victim);
Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985) cert. denied, 486 U.S. 1036 (1988) (moral community
comments). The prosecutor's comments in the case at bar do not implicate any of these cases.

33
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
taken:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
112 Nev. 1172, 1208 (1996) Evans v. State
The aggravating circumstance in question clearly applies only to risky and hazardous
activities which, by their nature (normally) would be expected to create a risk of death to
more than one person. This case involves a series of individually executed killings. Each
killing was a risk of death to one victim and one victim only. The statutory aggravating
circumstance is designed to apply to the use of bombs, lethal gas and other instrumentalities
that present danger to bystanders and those unintended victims who come into the reach of
danger. No one here knowingly created a great risk to anyone other than the person being
killed at the time. There is no sensible way in which NRS 200.033(2) can be applied to this
case. See Hogan v. Warden, 109 Nev. 952, 964-66, 860 P.2d 710, 718-720 (1993) (Springer,
J., dissenting).
To me, the presence of two properly-established aggravators, prevention of lawful arrest
and conviction of a felony, makes Evans death-eligible in this case.
1
I conclude that the jury
was justified, under the circumstances of this case, in concluding that mitigating
circumstances did not outweigh aggravating circumstances. I join, then, in affirming both the
judgment of conviction and the penalty in this case.
____________
112 Nev. 1208, 1208 (1996) Hardaway v. State
KENNETH RAY HARDAWAY aka KENNY RAY HARDAWAY, Appellant, v. THE
No. 25228
October 22, 1996 926 P.2d 288
Appeal from a judgment of conviction pursuant to a jury verdict of one count of sexual
assault causing substantial bodily harm, NRS 200.364 and 200.366. Eighth Judicial District
Court, Clark County; Jack Lehman, Judge.
The supreme court held that: (1) refusal to adopt defendant's proposed testimony and give
his proposed instruction that consent to sexual assault must be determined according to
objective, reasonable person test was not error, and (2) although district court should not have
instructed jury that protracted loss of function of any bodily member or organ had to be
serious for there to be substantial bodily harm required for sexual assault, error did not
require reversal.
__________

1
I also agree with the majority's acceptance of the aggravator, torture, depravity of mind, or mutilation, with
respect to the murder of Samantha Scotti. NRS 200.033(8).
there to be substantial bodily harm required for sexual assault, error did not require reversal.
Affirmed.
Morgan D. Harris, Public Defender and R. Michael Gardner, Deputy Public Defender,
1. Criminal Law.
A defendant has no absolute right to have his own instruction given, particularly when the law encompassed in that instruction is
fully covered by another instruction.
2. Criminal Law.
Refusal to adopt defendant's proposed test and give his proposed instruction that consent to sexual assault must be determined
according to objective, reasonable person test was not error. Jury instructions given correctly stated the law, defendant cited no
authority to support his proposed standard of consent, and in light of evidence of victim's substantial injuries, it was clear that jury's
verdict did not turn on issue of whether victim subjectively or objectively consented to assault.
3. Rape.
Impairment of function of bodily member or organ, which can constitute substantial bodily harm required for a sexual assault
conviction, need not be serious. NRS 0.060.
4. Criminal Law.
Although district court should not have instructed jury that protracted loss of function of any bodily member or organ had to be
serious for there to be substantial bodily harm required for sexual assault, reversal was not required, where district courts set arguably
higher standard for jury to find substantial bodily harm than that required by statute, and thus, even assuming that verdict rested solely
on finding of serious protracted loss of use of victim's broken arm, same evidence would have supported a finding of nonserious
protracted loss. NRS 0.060.
OPINION
Per Curiam:
Appellant was charged with sexual assault arising from an incident which occurred on June 6, 1993. Appellant, described as a street
person, assaulted the victim by the dumpster at her apartment complex. Evidence produced at trial showed that the victim suffered
multiple injuries during the assault, including bruises, scratches, a black eye, and a broken arm. Appellant denied harming the victim, and
testified that the victim consented to having sex. At trial, the instructions to the jury included the following instructions: Instruction No.
4. In order to establish the crime of Sexual Assault, it must be established that the following elements exist:
Instruction No. 4. In order to establish the crime of Sexual Assault, it must be
established that the following elements exist:
1. The defendant knowingly, willingly, and unlawfully
2. without consent, subjected another person
3. to sexual penetration of any kind.
. . . .
Instruction No. 6. Physical force is not a necessary ingredient in the commission of the
crime of sexual assault. The crucial question is not whether the victim was penetrated
by physical force, but whether the act was committed without her consent.
Instruction No. 7. There is no consent where the victim is induced to submit to the
sexual act through fear of death or serious bodily injury.
Instruction No. 8. The victim of a sexual assault is not required to do more than her
age, strength, surrounding facts and attending circumstances make it reasonable for her
to do to manifest her opposition.
. . . .
Instruction No. 10. Substantial bodily harm means bodily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement or protracted
loss or impairment of the function of any bodily member or organ or causes prolonged
physical pain.
During the jury deliberations, the jury questioned the district court concerning the term
serious contained in the definition of substantial bodily harm in Instruction No. 10. The
district court instructed the jury that the term serious applied to permanent disfigurement
and protracted loss, but not to impairment or prolonged physical pain.
The jury returned a verdict of guilty, and appellant was sentenced to serve a term of life
with the possibility of parole in the Nevada State Prison, with no parole eligibility until ten
years are actually served. This appeal followed.
DISCUSSION
[Headnotes 1, 2]
Appellant first contends that the district court erred in refusing to give appellant's jury
instruction that consent must be determined according to an objective, reasonable person
test. Appellant contends that absent such a test, the jury instructions given would allow the
jury to find a lack of consent based solely on the victim's subjective or secret intent not to
consent. A defendant has no absolute right to have his own instruction given, particularly
when the law encompassed in that instruction is fully covered by another instruction."
given, particularly when the law encompassed in that instruction is fully covered by another
instruction. Milton v. State, 111 Nev. 1487, 1492, 908 P.2d 684, 687 (1995) (citing Stroup
v. State, 110 Nev. 525, 529, 874 P.2d 769, 771 (1994)). The jury instructions at trial correctly
stated the law and adequately informed the jury concerning the consent element of sexual
assault, and appellant cites no authority to support his proposed standard of consent. Further,
in light of the evidence of the victim's substantial injuries, it is clear that the jury's verdict did
not turn on the issue of whether the victim subjectively or objectively consented to the
assault. Accordingly, we conclude that the district court did not err in refusing to adopt
appellant's proposed test and give appellant's proposed instruction regarding consent.
[Headnote 3]
Appellant next contends that the district court erred in refusing to instruct the jury that, in
order to find substantial bodily harm, it must find serious permanent disfigurement,
serious protracted loss, or serious impairment of the function of any bodily member or
organ. Appellant contends that such an instruction is a plain reading of NRS 0.060, which
reads:
Substantial bodily harm defined. Unless the context otherwise requires,
substantial bodily harm means:
1. Bodily injury which creates a substantial risk of death or which causes serious,
permanent disfigurement or protracted loss or impairment of the function of any bodily
member or organ; or
2. Prolonged physical pain.
Appellant contends that the district court erred in informing the jury that serious applies
only to permanent disfigurement or protracted loss. Appellant further contends that the
district court's failure to instruct the jury that impairment of the function of a bodily member
or organ must be serious rather than non-serious was critical to the verdict against
appellant.
NRS 0.060 was added to NRS in 1985, replacing the identical definition in former NRS
193.015, and this court has not directly addressed the construction of the statute. In Gibson v.
State, 95 Nev. 99, 100, 590 P.2d 158, 159 (1979), this court found that there was sufficient
evidence to support a finding of substantial bodily harm under former NRS 193.015, stating
that [t]he jury could have found that the victim suffered either protracted loss or impairment
of the function of a bodily member' or prolonged physical pain' or both. In Levi v. State, 95
Nev. 746, 748, 602 P.2d 189, 190 (1979), another case construing former NRS 193.015, this
court held:
Although it is true that the burns to the boy's stomach and hand did not create a
substantial risk of death, protracted loss or impairment of a bodily member or organ, or
prolonged physical pain, there was sufficient evidence offered to enable the jury to find
a serious permanent disfigurement.
(Emphasis added.) Without specifically addressing the issue, therefore, this court limited the
application of serious to permanent disfigurement under former NRS 193.015.
The same construction has been applied in other jurisdictions that use the same or similar
statutory language to define substantial bodily harm (alternatively titled great bodily harm,
serious bodily harm, and so forth). See, e.g., Williams v. State, 696 S.W.2d 896, 898 (Tex.
Crim. App. 1985); People v. Santos, 556 N.Y.S.2d 376, 377-78 (N.Y. App. Div. 1990); State
v. Childers, 801 S.W.2d 442, 446 (Mo. Ct. App. 1990); Commonwealth v. Phillips, 410 A.2d
832, 834 (Pa. Super. Ct. 1979).
In State v. Silva, 864 P.2d 583 (Haw. 1993), the Hawaii Supreme Court addressed the
construction of Haw. Rev. Stat. section 707-710, which contains language identical to NRS
0.060. The Silva court held:
Silva argues that the word serious in the definition is meant to modify both
permanent disfigurement and protracted loss or impairment of the function of any
bodily member or organ. Silva maintains that, because Dr. Behrendt's stipulated
testimony stated only that Simpson had suffered a protracted loss or impairment of his
right eye and not a serious protracted loss or impairment, the prosecution failed to
adduce sufficient evidence at trial to convict him under HRS Sec. 707-710. We
disagree.
First, it is clear from the plain phrasing of the applicable statutory definition that the
word serious modifies only the first phrasepermanent disfigurementand not
the second phrase beginning with protracted loss. Additionally, simple logic dictates
that the word serious is only meant to modify the first phrase and not the second.
. . . .
Moreover, the addition of the modifier serious would add nothing to the second
applicable phrase other than redundancy. By its very nature, a protracted loss or
impairment of the function of any bodily member or organ is a serious injury. . . . It is
incomprehensible that the protracted loss or impairment of a leg, an arm, or an eye, as
in the present case, could be anything but serious.
Id. at 590. The Silva court's analysis is equally applicable to NRS 0.060. Accordingly, we
conclude that the district court did not err in refusing to instruct the jury that it must find
"serious" "protracted loss" or "impairment" in order to establish substantial bodily harm
under NRS 0.060.
err in refusing to instruct the jury that it must find serious protracted loss or
impairment in order to establish substantial bodily harm under NRS 0.060.
[Headnote 4]
We further conclude that the district court erred in instructing the jury that serious also
modifies protracted loss under NRS 0.060. However, by instructing the jury that it was
required to find that the victim suffered serious protracted loss rather than protracted loss
of the function of any bodily member or organ, the district court set an arguably higher
standard for the jury to find substantial bodily harm than that required by NRS 0.060.
Therefore, even assuming that the jury verdict rested solely on a finding of serious
protracted loss of the use of the victim's broken arm, the same evidence would support a
finding of, as appellant terms it, non-serious protracted loss. Because the district court's
misinterpretation of NRS 0.060 did not affect the jury verdict, we conclude that the error was
harmless.
Having concluded that appellant's contentions lack merit, we affirm the district court's
judgment of conviction.
1

____________
112 Nev. 1213, 1213 (1996) State of Montana v. Lopez
THE STATE OF MONTANA, DEPARTMENT OF SOCIAL AND REHABILITATION
SERVICES ex rel., BETTY RILEY, Appellant, v. FIDEL LOPEZ, JR., Respondent.
No. 26386
October 22, 1996 925 P.2d 880
Appeal from an order of the district court dismissing with prejudice an action brought
pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Second
Judicial District Court, Washoe County; Scott Jordan, Judge.
State social services agency brought action under Nevada version of Revised Uniform
Reciprocal Enforcement of Support Act (RURESA) to recover past child support from
noncustodial parent. After domestic master entered order finding noncustodial parent in
arrears and in contempt, the district court dismissed action with prejudice on grounds that
custodial parent's waiver of her right to collect support by concealing location of children also
applied to agency's right to collect support.
__________

1
We note that the parties submitted a document entitled Stipulation to Supplement the Record on Appeal, in
which the parties stipulate that information already contained in the record is accurate. Accordingly, no order
granting leave to supplement the record on appeal is required.
applied to agency's right to collect support. Agency appealed. The supreme court held that,
under Nevada version of RURESA, custodial parent's waiver of child support payments
barred state agency from obtaining reimbursement for public assistance paid as child support.
Affirmed.
Richard A. Gammick, District Attorney and Linda Galli, Deputy District Attorney,
Steven M. Hess, Reno, for Respondent.
Parent and Child; Social Security and Public Welfare.
Under Nevada version of Revised Uniform Reciprocal Enforcement of Support Act (RURESA), custodial parent's waiver of child
support payments bars state agency from obtaining reimbursement for public assistance paid as child support. Under plain language of
statute, agency stands in custodial parent's shoes and has no greater right to reimbursement of child support than he or she does, and
waiver of right to collect back child support means that agency cannot collect such support from noncustodial parent. NRS 130.100.
OPINION
Per Curiam:
In this appeal, we are asked to decide whether a custodial parent's waiver of child support payments bars a state agency from obtaining
reimbursement for public assistance paid as child support.
Respondent and Betty Riley were married on March 24, 1973, in the State of Montana. The couple have two children: Maria, born July
24, 1972, and Francisco, born March 4, 1976. In 1978, the couple moved to Idaho. Soon after the move, respondent returned home from
work to discover Riley had left, taking the furniture and children. Respondent learned from relatives in Montana that Riley had returned to
that state, but was never able to locate Riley or his children. On March 26, 1979, Riley obtained a divorce decree in Montana requiring
respondent to pay $150.00 per month in child support. Riley never collected any child support from respondent, but began receiving public
assistance from the State of Montana in July of 1979. Riley received public assistance for over ten years, until August of 1989, during
which time neither Riley nor the State of Montana ever contacted respondent. After the divorce, respondent moved to Nevada.
In 1993, respondent was served with an order for payment of support and arrearages, and appeared before the Domestic Master on or
about October 14, 1993. The master found that respondent was in arrears to the State of Montana for the sum of
$22,921.00 through September 30, 1993.
was in arrears to the State of Montana for the sum of $22,921.00 through September 30,
1993. Respondent was further found in contempt and sentenced to 600 hours in the Washoe
County Jail, with 360 hours suspended upon respondent's completion of 240 hours and 100
hours of community service. Respondent appealed the order to the district court, contending
that respondent had been unable to contact Riley or his children for over thirteen years, and
had been unaware of any duty to pay child support until the State of Montana initially
attached his wages in 1990. Respondent contended that he had been unable to read or write
English until recently, that he did not believe that he had ever been served with a support
order, and that Riley had never contacted him or requested that child support be paid.
Respondent contended that under Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229
(1990), Riley had waived her right to collect child support by concealing the children and
failing to contact or demand payment from respondent for fourteen years, precluding Riley
and the State of Montana's enforcement of the past child support allegedly owed. Following a
hearing, the district court vacated the order and dismissed the action with prejudice on
September 21, 1994. The district court concluded that Riley had intentionally waived her
right to collect child support by concealing the location of the children from respondent, and
that the waiver also applied to appellant's right to collect child support from respondent. This
appeal followed.
DISCUSSION
Appellant contends that the waiver by Riley does not limit appellant's right to
reimbursement for public assistance paid as child support for respondent's children. Appellant
further contends that public policy supports an agency's right to reimbursement for taxpayer
funds paid as child support, regardless of the independent actions taken by the child's parents.
We disagree.
NRS 130.100 reads in pertinent part:
Remedies of state or political subdivision furnishing support. Whenever the state,
or a political subdivision thereof, furnishes support to an individual obligee, it has the
same right to initiate a proceeding pursuant to this chapter as the individual obligee for
the purpose of securing reimbursement for support furnished, obtaining continuing
support or requesting new or additional support orders.
Under the plain language of the statute, appellant stands in Riley's shoes, and had no greater
right to reimbursement of child support than she does. The parties do not dispute that Riley
waived her right to collect back child support from respondent. Accordingly, we conclude
that the district court did not err in finding that appellant also could not collect back child
support from respondent.
Accordingly, we conclude that the district court did not err in finding that appellant also could
not collect back child support from respondent.
We decline to follow those jurisdictions that have held that a state's right to reimbursement
in a RURESA action is not barred by an obligee parent's inability to recover child support
payments. See, e.g., County of San Diego v. Green, 810 P.2d 622 (Ariz. Ct. App. 1991); State
ex rel. State of Alaska, Child Support Enforcement Div. ex rel. Lacey v. Hargrove, 747 P.2d
366 (Or. Ct. App. 1987). Instead, we find the reasoning of In re Marriage of Olga E., 34 Cal.
Rptr. 2d 165, 167 (Cal. App. 1 Dist. 1994), persuasive. In that case, the California Court of
Appeals held that state agencies could not recover back child support payments after the
mother intentionally concealed the location of the child from the father, stating:
[I]t simply makes no sense that a county assignee could have greater rights than its
assignor and be free of an estoppel binding the assignor. We agree with In re Marriage
of Smith, supra, 209 Cal. App. 3d 196, 203-204, 257 Cal. Rptr. 47, which concludes
that because an assignee stands in the shoes of the assignor and succeeds to the
assignor's rights subject to any defenses then available against the assignor, a county
assignee of child support payments is subject to an estoppel defense against the
assignor as to preassignment arrearages. In short, assignment of a sow's ear to the
county cannot transform it into a silk purse. If the evidence shows that [the assignor
custodial parent] is estopped from receiving or has waived her rights to child support
accrued prior to her assignment to the county, that waiver or estoppel would also bar
the county.
Id. at 169 (quoting In re Marriage of Smith, 209 Cal. App. 3d 196, 204, 257 Cal. Rptr. 47
(1989)).
Having concluded that appellant's contentions lack merit, we affirm the district court's
order dismissing appellant's complaint with prejudice.
____________
112 Nev. 1217, 1217 (1996) Rockwell v. Sun Harbor Budget Suites
VERNON E. ROCKWELL, JR., Individually and VERNON E. ROCKWELL, JR., as
Guardian ad Litem of MICHAEL ANDREW ROCKWELL, a Minor, and VERNON
E. ROCKWELL JR., as Special Administrator of the Estate of LONDA GAIL
ROCKWELL, Deceased, Appellant, v. SUN HARBOR BUDGET SUITES, a Nevada
Corporation, Respondent.
No. 26467
October 22, 1996 925 P.2d 1175
judgment. Eighth Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Survivors of apartment complex tenant who was murdered by apartment complex guard
sued apartment complex owner, asserting claims for respondeat superior liability, negligent
hiring, training, and supervision, and breach of duty of care owed to tenants. The district court
granted owner's motion for summary judgment. Survivors appealed. The supreme court,
Rose, J., held that: (1) guard was owner's employee as matter of law; (2) genuine issues
remained as to whether murder occurred within scope of guard's employment; (3) issues
remained as to whether owner was negligent in hiring, training, and supervising guard; and
(4) issues remained as to whether owner could reasonably foresee that guard would commit
violent act, and whether owner acted reasonably under circumstances.
Benson & Bertoldo, Chtd. and Ernest D. Roark, III, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and Brian C. Whitaker, Las Vegas, for Respondent.
1. Judgment.
Summary judgment is only appropriate when, after review of record viewed in light most favorable to nonmoving party, there
remain no issues of material fact, and moving party is entitled to judgment as matter of law.
2. Judgment.
accepted as true.
Supreme court's review of summary judgment order is de novo. Court is required to determine whether trial court erred in
concluding that absence of genuine issues of material fact justified granting summary judgment.
that absence of genuine issues of material fact justified granting summary judgment.
Respondeat superior liability attaches only when employee is under control of employer and when act is within scope of
employment.
Employer can be vicariously responsible only for acts of his employees, not someone else, and one way of establishing
employment relationship is to determine whether employee is under control of employer; this element of control requires that
employer have control and direction not only of employment to which contract relates but also of all of its details and method of
performing work.
Where property owner hires security personnel to protect his or her premises and patrons, that property owner has personal and
nondelegable duty to provide responsible security personnel; such personnel are employees of property owner as matter of law, even
if property owner engaged third party to hire them.
It is possible for employee to be simultaneously under control of two different employers, for purposes of respondeat superior
liability.
For respondeat superior purposes, apartment complex owner was employer of security guard who murdered tenant, even though
owner engaged third party to hire security personnel. Owner undertook to obtain security services, a personal and nondelegable duty,
and owner arranged for and accepted security services of guard in question.
Generally, whether employee is acting within scope of his or her employment is question for trier of fact, but where undisputed
evidence exists concerning employee's status at time of tortious act, issue may be resolved as matter of law.
For employer to be liable for intentional tort of employee, that tort must occur within scope of task assigned to employee.
11. Judgment.
Genuine issues of material fact, precluding summary judgment for apartment complex owner on respondeat superior claim asserted
by survivors of resident who was murdered by owner's security guard, existed as to whether guard, who was off duty when murder
occurred, was still acting within scope of his employment when he committed murder.
For employer to be liable for negligent hiring, training, or supervision of employee, person involved must actually be employee.
When cause of action is for negligent supervision, as opposed to respondeat superior, it does not matter if employee's actions
occurred within or without his scope of employment.
14. Judgment.
Genuine issues of material fact, precluding summary judgment for apartment complex owner on negligent hiring claim asserted by
survivors of resident who was murdered by owner's security guard, existed as to whether owner was negligent, in light of
evidence that guard had previously been fired from jobs for his violent behavior, that guard was convicted
sex offender, that guard lied on his application about his criminal past, and that guard possibly lied about
his military background.
to whether owner was negligent, in light of evidence that guard had previously been fired from jobs for his violent behavior, that guard
was convicted sex offender, that guard lied on his application about his criminal past, and that guard possibly lied about his military
background.
For purposes of negligent hiring claim, employer has general duty to conduct reasonable background check on potential employee
to ensure that employee is fit for position.
16. Judgment.
Genuine issues of material fact, precluding summary judgment for apartment complex owner on negligent supervision and training
claims asserted by survivors of resident who was murdered by owner's security guard, existed as to whether owner had enough
information to determine that guard was dangerous, and whether owner acted negligently by not remedying situation.
17. Negligence.
Landowner or occupier owes duty to people on land to act reasonably under circumstances; consideration of status of injured
person as trespasser, licensee, or invitee is no longer determinative on this issue, but rather, determinations of liability should primarily
depend upon whether owner or occupier of land acted reasonably under circumstances.
18. Negligence.
Landowner or occupier has duty to take affirmative action to control wrongful acts of third persons only where owner or occupier
has reasonable cause to anticipate such act and probability of injury resulting therefrom.
19. Negligence.
Since possessor of land is not insurer of visitor's safety, he is ordinarily under no duty to exercise any care with respect to acts of
third person until possessor knows or has reason to know that acts of third person are occurring, or are about to occur.
20. Judgment.
Genuine issues of material fact, precluding summary judgment for apartment complex owner on claim that owner breached its
duty to protect tenant from conduct of owner's security guard who murdered that tenant, existed as to whether owner could reasonably
foresee that guard would commit violent act, and whether owner acted reasonably under circumstances.
OPINION
Appellant Vernon Rockwell, his wife Londa, and their son Andrew lived in an apartment at respondent Sun Harbor Budget Suites (Sun
Harbor). Londa was killed by Said Thamar, a Sun Harbor security guard, and Vernon and Andrew sued Sun Harbor on theories of
respondeat superior, negligent hiring, training, and supervision, and breach of duty of care owed to the tenants. The district court dismissed
all of the causes of action on summary judgment.
judgment. We conclude that the district court's order granting respondent's motion for
summary judgment was improper.
FACTS
Vernon, his wife Londa, and their son Andrew all lived in an apartment in Sun Harbor.
While sitting by the swimming pool in mid-1992, Londa and Thamar met for the first time
and allegedly began a sexual affair the next day. When Londa attempted to end the affair in
January 1993, Thamar shot her eighteen times, killing her.
Thamar was hired by Bigelow Management (Bigelow) as a security guard and was
provided to Sun Harbor in the same capacity. Elaine Olsen, the manager of Sun Harbor,
claimed that because Bigelow hired and paid him, Thamar was a Bigelow employee.
However, Thamar was provided with a free apartment at Sun Harbor as part of his
compensation package, but it is unclear from the record whether the apartment was paid for
by Bigelow or Sun Harbor. The issue of which entity was paying for Thamar's services and
apartment was clouded by the fact that Robert Bigelow was the president and treasurer of
Bigelow and was also the treasurer of Sun Harbor, and the address for service of process for
both corporations was the same. This raised the inference that Sun Harbor and Bigelow were
somehow linked, but no other evidence regarding this issue was presented.
Thamar had a history of aggressive behavior which allegedly resulted in his being
terminated from other security jobs. Thamar worked at Jerry's Nugget as a security guard and
was allegedly fired for insubordination when he got angry because his superior requested that
he come to work clean shaven. Thamar also worked at Vegas World and was allegedly fired
due to his aggressive and threatening demeanor. Additionally, on his job application with
Bigelow, under the heading military service, Thamar listed that he was in the bomb unit
of the Moroccan Marine Corps from 1977 through 1981.
1
Vernon claimed that a cursory
check with the Moroccan embassy or local U.S. recruiter would confirm that the Moroccan
military has no marine corps and no bomb unit; however, Vernon provided no evidence as to
the truth of this assertion. Finally, Thamar was a convicted sex offender
2
and under Nevada
law was required to register with the police. On his employment application, Thamar stated
that he had not been convicted of any crimes, and there is no indication of whether he
registered with the police.
__________

1
Thamar was born in Morocco in 1956 and lived there until he moved to the United States in 1982.

2
In 1985, Thamar pleaded no contest in Wisconsin to one count of indecent exposure, was incarcerated in
county jail for sixty days, and placed on probation for two years.
Thamar's aggressive behavior also extended to his relations with Vernon, and during the
later stages of the extramarital affair with Londa, Thamar threatened Vernon on several
occasions. On one occasion, Thamar flagged down Vernon's car in the parking lot, and
according to Vernon, Thamar tried to provoke him into violence so that Thamar could beat
him or kill him. Vernon backed away from Thamar and retreated to his apartment.
Vernon made some efforts to inform Olsen, the Sun Harbor manager, of the situation
between himself, Londa, and Thamar. On January 23, 1993, Vernon met with Olsen and told
her that Thamar and his wife were having an affair and that he wanted Olsen to make Thamar
stop pursuing the relationship. However, Vernon did not tell Olsen about the first threatening
incident that occurred in the parking lot. Olsen stated that she would relate Vernon's concerns
to Thamar, but the record does not indicate if she did so. Additionally, in response to this
discussion, Olsen sent Greg Aliano, another Sun Harbor security guard, to Vernon's
apartment to further discuss the situation and to gather more information.
A second threatening incident occurred on January 26, 1993, when Londa, who had briefly
moved into Thamar's apartment, was moving her things out of Thamar's apartment and back
into Vernon's apartment after reconciling with Vernon. Thamar came downstairs from his
apartment, pointed at Vernon with his finger, and threatened to shoot him. Vernon was a cab
driver and was standing next to his cab and, fearing for his life, called the cab dispatcher to
ask for help. The dispatcher called the police, who responded to the scene. Vernon informed
the responding officer that Londa was attempting to move out of Thamar's apartment and that
Thamar was exhibiting aggressive behavior, but he apparently did not inform the officer that
Thamar had threatened him. The officer talked with Thamar, and Thamar assured him that
everything was fine. The officer then informed the security guard on duty what had happened
and told the guard to likewise inform the person in charge.
On January 27, 1993, Vernon met with Olsen a second time and told her that he and his
family were vacating the apartment and also told her again of the increasingly volatile
situation between Thamar and himself. For the first time, he told her of Thamar's threats and
of the police responding to Sun Harbor the night before. Vernon also stated that several of his
wife's items still remained in Thamar's apartment, that he wished to retrieve them, and that he
was going to have the police escort him when he retrieved the items in order to avert a violent
situation. Olsen stated that the police were not required and that she would provide Sun
Harbor security personnel to help Londa get the rest of her belongings.
On January 27, 1993, after his meeting with Olsen, Vernon began moving the family's
belongings into storage in anticipation of moving into a new apartment complex. Vernon
dropped Londa off at work and made several trips between the apartment and the storage
facility. Vernon called Londa at work and informed her that they would be staying in a hotel
for a few days. Londa indicated that she would be working all day and never stated that she
was going to Thamar's apartment. Without Vernon's or Olsen's knowledge, Thamar picked
Londa up from work around 1:00 p.m. and took her back to his apartment. At the apartment,
Londa told Thamar that the affair was over and that she was returning to her husband, and
Thamar became incensed. He got his gun and shot Londa eighteen times, stopping to reload
several times.
Thamar then used his radio to call Sun Harbor security to tell them what had happened.
Aliano was off duty at the time of the shooting and heard Thamar's call over his radio. He
ascertained and went to Thamar's location, handcuffed Thamar, and called the police. Thamar
was later convicted of second degree murder with the use of a deadly weapon.
Vernon and Andrew originally sued only Sun Harbor for the wrongful death of Londa but
later amended the complaint to include Bigelow as a second defendant.
3
The causes of action
against Sun Harbor for respondeat superior, negligent hiring, training, and supervision, and
breach of duty of care were all dismissed on summary judgment. The order granting summary
judgment contained no findings of fact or conclusions of law.
DISCUSSION
[Headnotes 1, 2]
most favorable to the non-moving party, there remain no issues of material fact, and the
moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev.
449, 451, 705 P.2d 662, 663 (1985). In determining whether summary judgment is proper,
the nonmoving party is entitled to have the evidence and all reasonable inferences accepted as
true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989).
__________

3
The causes of action against Bigelow were not addressed in the motion for summary judgment because that
motion was fully briefed before Vernon amended the complaint to add Bigelow as a defendant. After summary
judgment was granted in favor of Sun Harbor, Vernon voluntarily dismissed the amended complaint without
prejudice as to Bigelow and then filed this appeal. Therefore, there are no issues pending in the district court,
and this court can properly hear this appeal.
[Headnote 3]
P.2d 17, 18 (1981).
A. Cause of action for respondeat superior
[Headnote 4]
[R]espondeat superior liability attaches only when the employee is under the control of
the employer and when the act is within the scope of employment. Molino v. Asher, 96 Nev.
814, 817, 618 P.2d 878, 879 (1980). Therefore, an actionable claim on a theory of respondeat
superior requires proof that (1) the actor at issue was an employee, and (2) the action
complained of occurred within the scope of the actor's employment.
1. Was Thamar an employee of Sun Harbor?
[Headnote 5]
This court has stated that [t]he employer can be vicariously responsible only for the acts
of his employees not someone else, and one way of establishing the employment relationship
is to determine when the employee' is under the control of the employer.' National
Convenience Stores v. Fantauzzi, 94 Nev. 655, 657, 584 P.2d 689, 691 (1978). This element
of control requires that the employer have control and direction not only of the employment
to which the contract relates but also of all of its details and the method of performing the
work. . . .' Kennel v. Carson City School District, 738 F. Supp. 376, 378 (D. Nev. 1990)
(quoting 53 Am. Jur. 2d Master and Servant 2 (1970)).
[Headnotes 6, 7]
However, in the situation where a property owner hires security personnel to protect his or
her premises and patrons, that property owner has a personal and non-delegable duty to
provide responsible security personnel. Therefore, we conclude as a matter of law that the
security personnel are the employees of the property owner, even if the property owner
engaged a third party to hire the security personnel. In such a situation, we find an
employer-employee relationship without evaluating whether the security personnel were
under the control of the property owner, noting that the control analysis is only one of the
methods available to establish such a relationship.
available to establish such a relationship.
4
National Convenience Stores, 94 Nev. at 657, 584
P.2d at 691.
In reaching this conclusion, we follow the ruling in Peachtree-Cain Co. v. McBee, 316
S.E.2d 9 (Ga. Ct. App. 1984), aff'd, 327 S.E.2d 188 (Ga. 1985). In Peachtree-Cain Co., the
Peachtree Company owned a shopping center called the Peachtree Center. Peachtree Center
Management Company, a separate corporation, managed the Peachtree Center and contracted
with American Building Maintenance Company to provide and manage security personnel for
the property. All of these parties were sued by a patron who claimed to have been falsely
arrested by a security guard. Peachtree Company moved for summary judgment on the ground
that it could not be liable for the intentional torts of the independent security agent. The court
denied the motion for summary judgment, concluding that:
As owners of the Peachtree Center complex that had undertaken to obtain security
services, their duty to their invitees to provide responsible agents was personal and
non-delegable, and thus it did not matter that the owners had an additional filter, i.e.,
the Peachtree Center Management Company, between themselves and the actual
security guard. Because that duty was personal and non-delegable, a recovery based
upon a breach of that duty would not constitute imposition of liability without fault. To
hold that the appellants are immune from vicarious liability in these cases would, as
noted above, present opportunities for gross injustice which we will not here
sanction.
Peachtree-Cain Co., 316 S.E.2d at 11 (citations omitted); see Zentko v. G.M. McKelvey Co.,
88 N.E.2d 265, 268 (Ohio Ct. App. 1948) (stating that where an owner of an operation or
enterprise undertakes to obtain security services, the owner's security duties are personal and
non-delegable, and where the owner arranges for and accepts the services, the relationship of
master and servant exists). Adams v. F.W. Woolworth Co., 257 N.Y.S. 776, 781 (App. Div.
1932) (A store owner who places a detective agency on his premises for the purpose of
protecting his property by various means, including arrests, should not be immune from
responsibility to an innocent victim of a false arrest made by the detective agency, even as an
independent contractor.); Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d SS2,
SSS {Tex. Ct. App. 1976) {"because of the 'personal character' of duties owed to the
public by one adopting measures to protect his property, owners and operators of
enterprises cannot, by securing special personnel through an independent contractor for
the purposes of protecting property, obtain immunity from liability for at least the
intentional torts of the protecting agency or its employees."); see also Malvo v. J.C.
Penney Company, Inc., 512 P.2d 575 {Alaska 1973); Noble v. Sears, Roebuck and Co.,
__________

4
We make no determination on the issue of whether Thamar was an employee of Bigelow, although we note
that it is possible for an employee to be simultaneously under the control of two different employers. See Gulf
Oil Corp. v. Williams, 642 S.W.2d 270, 272 (Tex. Ct. App. 1982) (concluding that it is possible for two entities
to have joint control over an employee).
S.W.2d 882, 888 (Tex. Ct. App. 1976) (because of the personal character' of duties owed to
the public by one adopting measures to protect his property, owners and operators of
enterprises cannot, by securing special personnel through an independent contractor for the
purposes of protecting property, obtain immunity from liability for at least the intentional
torts of the protecting agency or its employees.); see also Malvo v. J.C. Penney Company,
Inc., 512 P.2d 575 (Alaska 1973); Noble v. Sears, Roebuck and Co., 109 Cal. Rptr. 269, 274
(Ct. App. 1973); Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 861 n.12 (D.C. 1982)
(recognizing the rule but not reaching the issue for other reasons); Hendricks v. Leslie Fay,
Inc., 159 S.E.2d 362, 366-67 (N.C. 1968); Moore v. Target Stores, Inc., 571 P.2d 1236, 1240
(Okla. Ct. App. 1977).
[Headnote 8]
Similarly, in the instant case, Sun Harbor undertook to obtain security services, a personal
and non-delegable duty, and it did not matter that the owners of Sun Harbor had an additional
filter, i.e., Bigelow, between themselves and the actual security guard. Additionally, Sun
Harbor arranged for and accepted the security services of Thamar, and therefore the
relationship of master and servant (or employer-employee) existed between Sun Harbor and
the security guards.
2. Did Thamar's intentional tort occur within the scope of his employment?
[Headnote 9]
Generally, whether an employee is acting within the scope of his or her employment is a
question for the trier of fact, but where undisputed evidence exists concerning the employee's
status at the time of the tortious act, the issue may be resolved as a matter of law. Evans v.
Southwest Gas, 108 Nev 1002, 1004, 842 P.2d 719, 721 (1992).
[Headnote 10]
This court has held that in order for an employer to be liable for the intentional tort of an
employee, that tort must occur within the scope of the task assigned to the employee. Prell
Hotel Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399, 400 (1970). [I]f the employee's
tort is truly an independent venture of his own and not committed in the course of the very
task assigned to him, the employer is not liable. Id. (holding that an employer was
vicariously liable when the employee, a blackjack dealer, hit a customer in the face while
dealing a game because the assault occurred within the scope of the task assigned to the
dealer, that of dealing blackjack). But see J.C. Penney Co. v. Gravelle, 62 Nev. 434, 449-50,
155 P.2d 477, 4S1-S2 {1944) {concluding that an on-duty security guard acted outside
the scope of his employment when he punched Gravelle because Gravelle had prevented
the guard from catching a shoplifter; the guard's acts were done to punish Gravelle for his
interference and not in order to catch the thief or to retrieve the stolen merchandise, and
the guard's actions were clearly disconnected from the line of his duty to his employer).
Nev. 434, 449-50, 155 P.2d 477, 481-82 (1944) (concluding that an on-duty security guard
acted outside the scope of his employment when he punched Gravelle because Gravelle had
prevented the guard from catching a shoplifter; the guard's acts were done to punish Gravelle
for his interference and not in order to catch the thief or to retrieve the stolen merchandise,
and the guard's actions were clearly disconnected from the line of his duty to his employer).
[Headnote 11]
Vernon produced evidence that at the time Thamar shot Londa, he was still actively
guarding the premises even though he was off duty, and that the off-duty security officers
carried radios and responded to emergency situations. Furthermore, the record indicates that
after Thamar shot Londa, he used his radio to call the Sun Harbor security dispatcher to report
that his girlfriend had been shot, and Aliano, an off-duty security guard, heard the call on his
radio, went to Thamar's location, and handcuffed Thamar until the police arrived.
Conversely, Olsen's affidavit presented evidence that off-duty security guards were not
required to remain in radio contact with Sun Harbor or respond to emergency calls, and that
their free time was their own. This indicates that when Thamar was off duty he was no longer
engaged in the business of or service of his employer and Sun Harbor would not be liable.
This conflicting evidence regarding whether Thamar was still acting within the scope of his
employment when he killed Londa creates a genuine issue of material fact, and we conclude
that it was improper for the district court to grant summary judgment on the respondeat
superior cause of action.
B. Cause of action for negligent hiring, training, and supervision
[Headnotes 12, 13]
It is a basic tenet that for an employer to be liable for negligent hiring, training, or
supervision of an employee, the person involved must actually be an employee.
5
As we
concluded in Section A(1), supra, as a matter of law Thamar was an employee of Sun Harbor
by virtue of the fact that providing security for one's premises and patrons is a personal
and non-delegable duty, and that once the property owner accepts the services of the
security personnel, the property owner cannot claim that the relationship of master and
servant does not exist.
__________

5
When the cause of action is for negligent supervision, as opposed to respondeat superior, it does not matter if
the employee's actions occurred within or without his scope of employment. In a common-law action charging
the master with actionable negligence in retaining an incompetent and unfit employee, . . . it is unnecessary to
determine whether [the employee] was acting within the scope of his employment. Stricklin v. Parsons
Stockyard Company, 388 P.2d 824, 829 (Kan. 1964); see also Eifert v. Bush, 272 N.Y.S.2d 862, 865 (App. Div.
1966), aff'd, 291 N.Y.S.2d 372 (1968).
of Sun Harbor by virtue of the fact that providing security for one's premises and patrons is a
personal and non-delegable duty, and that once the property owner accepts the services of the
security personnel, the property owner cannot claim that the relationship of master and
servant does not exist.
The only remaining question is whether Sun Harbor was negligent in hiring, training, and
supervising Thamar. We conclude that genuine issues of material fact remained as to whether
Sun Harbor was negligent in its hiring, training, and supervision of Thamar, and the district
court erred by granting summary judgment in favor of Sun Harbor on this cause of action.
[Headnote 14]
As to the cause of action for negligent hiring, Vernon produced evidence that Thamar had
previously been fired from jobs for his violent behavior, that Thamar was a convicted sex
offender, that Thamar lied on his application about his criminal past, and that Thamar
possibly lied about his military background in Morocco. This creates a genuine issue of
material fact as to whether Sun Harbor was negligent when it retained Thamar.
[Headnote 15]
The dissent states that because respondents had no appreciable notice of Thamar's violent
propensities, they had no duty to make inquiries. However, the lack of notice does not relieve
the employer of his general duty . . . to conduct a reasonable background check on a
potential employee to ensure that the employee is fit for the position. Burnett v. C.B.A.
Security Service, 107 Nev. 787, 789, 820 P.2d 750, 752 (1991). Requiring Sun Harbor to
make reasonable investigations regarding the security guards' qualifications might be
somewhat burdensome to Sun Harbor, especially in light of the fact that it contracted with
Bigelow to do that job for it, but such investigations are commensurate with Sun Harbor's
personal and non-delegable duty to provide responsible security guards to protect its premises
and patrons.
[Headnote 16]
As to the cause of action for negligent supervision and training, Vernon produced evidence
that Sun Harbor actively supervised the security guards and controlled both the details and
methods of performing the guards' work. Additionally, Vernon produced evidence that Sun
Harbor possessed the ability to fire the security guards. Furthermore, Vernon presented
evidence that in the days preceding the killing he twice spoke with Olsen regarding the
evolving situation. On January 23, 1993, he informed Olsen of the affair between Londa and
Thamar and requested that Olsen investigate the situation and get Thamar to end the
relationship with Londa.
with Londa. In response to this discussion, Olsen sent Aliano to talk to Vernon and gather
more information. On the morning of January 27, 1993, the day of the killing, Vernon
informed Olsen that Londa had ended the affair, that Thamar had threatened his life while on
duty, that he had called the police in response to the threats, and that he wished to call the
police again to help him retrieve his wife's belongings from Thamar's apartment. Olsen stated,
however, that she believed that the situation was a personal matter between Thamar and
Vernon and that she had no right to interfere.
Based on this evidence, Vernon contended that Olsen had enough information to
determine that Thamar was dangerous and that she acted negligently by not remedying the
situation through adequate supervision or training. Sun Harbor contended that it acted
properly at all times with regard to its actions toward Thamar. This is sufficient to create a
genuine issue of material fact as to whether Sun Harbor negligently supervised and trained
Thamar and the district court erred by granting summary judgment in favor of Sun Harbor on
these issues.
C. Cause of action for Sun Harbor's breach of duty to protect its tenants from the conduct of
a third person
[Headnote 17]
A land owner or occupier owes a duty to the people on the land to act reasonably under the
circumstances. Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943
(1994). This court has determined that consideration of the status of the injured person as
trespasser, licensee, or invitee is no longer determinative and concluded that determinations
of liability should primarily depend upon whether the owner or occupier of land acted
reasonably under the circumstances. Id.
[Headnotes 18, 19]
More specifically, when the issue is protecting a guest from the injury caused by a third
person, this court has stated that [t]here is a duty to take affirmative action to control the
wrongful acts of third persons only where the occupant of realty has reasonable cause to
anticipate such act and the probability of injury resulting therefrom. Thomas v. Bokelman,
86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970). On the issue of foreseeability, this court has
stated:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no
duty to exercise any care until he knows or has reason to know that the acts of the third
person are occurring, or are about to occur. . . .
Early v. N.L.V. Casino Corp., 100 Nev. 200, 203, 678 P.2d 683, 684 (1984) (quoting
Restatement (Second) of Torts 344 cmt. f (1965)).
[Headnote 20]
We conclude that genuine issues of material fact also existed as to whether Sun Harbor
could reasonably foresee that Thamar would commit a violent act and whether Sun Harbor
acted reasonably under the circumstances.
6
Vernon presented evidence that on two occasions
he informed Olsen of his marital situation, that he believed Thamar to be dangerous, and that
Thamar had threatened to kill him. However, one of these conversations occurred four days
prior to Londa's death, and the other occurred on the day of Londa's death. We conclude that
these facts create a genuine issue of material fact as to whether Sun Harbor acted reasonably
under the circumstances to protect its tenants from Thamar's violent acts. Therefore, it was
improper for the district court to grant summary judgment in favor of Sun Harbor on this
cause of action.
CONCLUSION
The district court's order granting summary judgment in favor of Sun Harbor was improper
because genuine issues of material fact existed regarding whether Thamar was acting within
the scope of his employment at the time he killed Londa, whether Sun Harbor negligently
hired, trained, and supervised Thamar, and whether Sun Harbor breached its duty to protect
its tenants from the conduct of a third person. Therefore, we reverse the district court's order
granting summary judgment in favor of Sun Harbor and remand the case to the district court
for further proceedings consistent with this opinion.
The trial judge saw Said Thamar's murderous activities as being divorced entirely from his
employment. I agree. Upon examining the record in this case, I have become convinced that
the trial judge was correct in granting summary judgment; so I dissent.
Respondents had no appreciable knowledge of Thamar's violent propensities and, at the
time of Thamar's hiring, had no duty to make inquiry.
__________

6
The dissent misreads this statement to mean that the majority has affirmatively stated that the duty of care
owed to the tenants has been breached. Such is obviously not the case as the plain language clearly states only
that genuine issues of material fact exist on this issue and that summary judgment was therefore improperly
granted.
lent propensities and, at the time of Thamar's hiring, had no duty to make inquiry. I note that
Thamar was not on duty at the time he committed the murder and that trying to tie to his
employment Thamar's psychopathic, emotionally-charged and spontaneous outburst, just
because he happened to be on the payroll at the time, is stretching the facts of this case
beyond their reasonable limits. This court should not interfere with the judgment of the trial
court in this respect.
The majority believes that the owner breached a duty of care owed to the Rockwells as
tenants. I do not think that the owner owed a duty to tenants to keep them from being
murdered in each others' apartments. As appears in the majority's statement of facts, the
murderer, Thamar, picked up his lover/victim, Londa Rockwell, at work, and they went back
to Thamar's apartment to talk. While the couple was in the murderer's apartment, Londa told
Thamar that she was cutting off their romance and returning to her husband; whereupon,
according to the majority,
Thamar became incensed. He got his gun and shot Londa eighteen times, stopping to
reload several times.
Just what Sun Harbor Budget Suites might have done to prevent a deranged and jealous
man from becoming incensed and shooting his lover, escapes me. I see no need for
discussing the cases cited by the parties relative to the unpredictable and unforeseeable nature
of this crime of passion. Sun Harbor management could not have foreseen that Londa's
breaking off of her illicit love affair with Thamar would escalate into a murder. This private
murder in a private apartment has nothing to do with the landlord-tenant relationship and has
nothing to do with the landlord's duty to maintain reasonably safe premises.
The trial court made a correct evaluation of the law and the facts in granting summary
judgment to Sun Harbor. I would affirm the judgment of the trial court.
____________
112 Nev. 1230, 1230 (1996) Allen v. Allen
ALTHEA V. ALLEN, Appellant, v. MICHAEL ALLEN, Respondent.
No. 26511
October 22, 1996 925 P.2d 503
Appeal from an order of the district court denying appellant's motion to set aside a divorce
decree. Second Judicial District Court, Washoe County; Charles M. McGee, Judge.
Wife's motion to set aside divorce decree was denied by the district court and she
appealed. The supreme court Springer, J., held that wife's motion to set aside decree after
husband obtained discharge in bankruptcy between time of parties' oral agreement and
time that written decree was submitted to court for entry was not barred by federal
bankruptcy law.
112 Nev. 1230, 1231 (1996) Allen v. Allen
held that wife's motion to set aside decree after husband obtained discharge in bankruptcy
between time of parties' oral agreement and time that written decree was submitted to court
for entry was not barred by federal bankruptcy law.
Carter R. King, Reno, for Appellant.
Michael C. Lehners, Reno, for Respondent.
1. Bankruptcy; Divorce.
Nothing in federal bankruptcy law would prevent state court from setting aside divorce decree or hearing matters relating to
spousal support and community property disposition on the merits where parties entered into agreement prior to husband's filing of
bankruptcy but written order was not submitted to court and signed until after husband had been discharged in bankruptcy.
2. Divorce.
Where decree was based on parties' oral agreement made a year earlier, court was not entitled to enter written decree without first
hearing merits of wife's claims with respect to unfair disposition inherent in enforcement of the decree in view of intervening
circumstances.
Under no circumstances, bankruptcy or no bankruptcy, should one party to divorce decree be allowed to take all benefits of
divorce settlement and leave other party at disadvantage.
OPINION
The parties to this divorce action entered into an oral settlement agreement on April 29, 1992. In their agreement the wife waived all
right to spousal support; and in consideration of that waiver the husband agreed to pay certain community debts and to pay to the wife
$16,250.00 to equalize the division of community property. The April 29, 1992, agreement was arrived at during a settlement
conference held by the court on that day; however, the agreement was not memorialized in writing until a year later, in April of 1993,
when the court entered a written divorce decree that adopted the April 1992 agreement.
According to the wife, shortly after the parties entered into the April 1992 oral agreement, her husband called her and told her he was
not going to pay her as agreed and told her that he was going to go into bankruptcy. The husband did in fact go into bankruptcy and was
eventually released from most of the financial obligations to his wife which he undertook in the April 1992 agreement. The wife claims that
the husband never intended to abide by the agreement, that he used the bankruptcy to defraud her out of her share of the
community property, and that because of the bankruptcy there was a failure to "equalize the division of
community property," as was the manifest intention of the parties when they made their April 29, 1992,
agreement.
112 Nev. 1230, 1232 (1996) Allen v. Allen
her out of her share of the community property, and that because of the bankruptcy there was
a failure to equalize the division of community property, as was the manifest intention of
the parties when they made their April 29, 1992, agreement.
Before the entry of the April 1993 written decree, the wife called the court's attention to
the injustice inherent in entering a decree which was based on an agreement that was made
before the husband had obtained a discharge in bankruptcy. The court, over the objection of
the wife, entered the divorce decree and disposed of the rights of the parties in accordance
with the parties' year-old oral agreement. This ruling prompted the wife to move to set aside
the decree based upon fraud and upon the injustice inherent in enforcing the agreement of the
parties under circumstances in which the husband was able to avoid virtually all of his
obligations under the oral agreement of April 29, 1992.
[Headnote 1]
The trial court denied the wife's motion to set aside the decree on the ground that the relief
was barred by federal law. We hold that there is nothing in the federal bankruptcy law that
would prevent the court from setting aside the April 1993 divorce decree or from hearing
matters relating to spousal support and community property disposition on their merits. We
therefore reverse the order of the trial court denying the motion to set aside the decree and
order the district court to vacate and set aside the April 23, 1993, decree.
At the time of the mentioned settlement conference of April 29, 1992, the trial judge gave
the parties the opportunity to make a record on the divorce claim; and at the conclusion of the
settlement conference, the trial judge announced from the bench that he was granting a decree
of divorce. Counsel for the husband agreed to prepare the formal decree. Counsel did not
prepare the decree as promised, and the matter stood pending for approximately a year, until
April 23, 1993, at which time the trial judge was persuaded by the husband's counsel to enter
a decree nunc pro tunc, dating back to the April 29, 1992, settlement conference date.
Before the divorce decree was entered in this case, the wife pointed out by way of various
documents filed with the district court that, given the husband's release from his obligation to
pay her the cash sums agreed to in their oral agreement, there was a gross inequity in the
division of property. The wife also argued to the court that her husband never planned to pay
the amounts that he had agreed to pay and that he intended to use the bankruptcy fraudulently
to deprive her of property and of her claims to spousal support. Under these circumstances, it
is very difficult to understand why the district court would enter the April 23, 1993, "nunc
pro tunc" decree.
112 Nev. 1230, 1233 (1996) Allen v. Allen
nunc pro tunc decree. This, however, is not the point in this appeal. The issue in this appeal
is whether the trial court erred in refusing to set aside the mentioned decree and in refusing to
hear the wife's complaint of inequity and fraud.
[Headnote 2]
We note that the district court did not deny the wife's motion to set aside the divorce
decree on its merits but, rather, on the ground that the court was precluded by federal law
from granting her the requested relief. We do not see, however, how hearing this wife's
claims of fraud and unfairness would interfere in any way with federal law. All the wife is
claiming in this case is that the property was not divided equally or fairly and that she should
have the right to present her claims to the court. The April 23, 1993, decree was based
entirely upon an oral agreement of a year before, and the court was not entitled to enter such a
decree without first hearing the merits of the claims asserted by the wife relative to the unfair
property disposition inherent in the enforcement of the April 29, 1992, oral agreement.
The district court may, when it hears this case on remand, de novo and on the merits,
consider the effect of the husband's bankruptcy upon the community and on the rights of the
parties; but this is not to say the state court would be interfering in any way with the
bankruptcy court's decree. We held in Siragusa v. Siragusa, 108 Nev. 987, 843 P.2d 807
(1992), that in adjudicating issues relating to spousal support a district court could properly
consider a spouse's discharged property settlement obligation and that doing this did not
re-create a debt discharged under federal bankruptcy laws. Whether this wife is entitled to a
fair hearing on her claims to alimony and property rights is entirely a matter of state law, and
we have no hesitancy to send this matter back to the district court in order to assure that the
parties are treated fairly in all matters relating to spousal support and property disposition.
It is not necessary to discuss at any length the merits of the wife's motion to set aside the
decree, because this issue has not been a part of this appeal. Both the district judge and the
respondent husband rely entirely on federal law as a defense to the wife's motion. Thus, the
task of this court is made easier by reason of the husband's not arguing anything relating to
the merits of the wife's motion to set aside the decree or of her claim to a right to have this
matter heard on its merits. The only point presented by the husband in his answering brief in
opposition to the wife's appeal is that [a]ppellant's action to set aside the decree of divorce
[is] barred by 11 U.S.C. [] 524[]. The husband's sole argument is that even if there were a
claim for fraud, it is now gone because a complaint in bankruptcy was never filed.
112 Nev. 1230, 1234 (1996) Allen v. Allen
Because the husband relies solely on the bankruptcy and has not addressed the principal
points raised in the wife's appeal from denial of her motion to set aside the divorce decree,
and because of the unfairness inherent in the divorce decree, the order of the trial court must
be reversed. The wife is entitled to have her claims addressed by the district court,
irrespective of whatever legal effects that the bankruptcy decree may ultimately have on the
parties.
[Headnote 3]
We conclude that aside from any question of fraud on the part of the husband, the nunc
pro tunc divorce decree is inherently unfair and must be set aside. Under no circumstances,
bankruptcy or no bankruptcy, should one party to a divorce be allowed to take all of the
benefits of the divorce settlement and leave the other party at the disadvantage suffered by the
wife in the present case.
Accordingly, we reverse the order of the trial court, set aside the nunc pro tunc divorce
decree entered on April 23, 1993, and remand the matter to the district court for further
proceedings.
Steffen, C. J., Young, J. and Shearing, J. and Rose, J. concur.
____________
112 Nev. 1234, 1234 (1996) Sheriff v. Warner
SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. GEORGE HENRY WARNER,
Respondent.
No. 27496
October 22, 1996 926 P.2d 775
Sheriff's appeal from an order of the district court granting respondent's pretrial petition for
a writ of habeas corpus. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Defendant, who was charged by grand jury with one count of first-degree arson and one
count of murder, filed pretrial petition for writ of habeas corpus. The district court granted
petition. State appealed. The supreme court, Rose, J., held that: (1) state's failure to preserve
mobile home and its contents was not result of bad faith; (2) failure to preserve evidence did
not unduly prejudice defendant in violation of his due process right to fair trial; and (3)
defendant was not entitled to court-appointed counsel at third grand jury hearing.
James Tufteland, Chief Deputy District Attorney, and Dan Seaton, Deputy District Attorney,
John Glenn Watkins and John Hall Howard, Las Vegas, for Respondent.
1. Habeas Corpus.
District court correctly considered issue regarding state's failure to preserve exculpatory and material evidence on defendant's
pretrial petition for writ of habeas corpus where defendant contended that loss of evidence precluded him from testing it for
exculpatory value and that proceeding to trial without evidence would deprive him of his due process right to fair trial. U.S. Const.
amends. 6, 14.
In order to establish due process violation resulting from state's loss or destruction of evidence, defendant must demonstrate either
that state lost or destroyed evidence in bad faith, or that loss unduly prejudiced defendant's case and evidence possessed exculpatory
value that was apparent before evidence was destroyed. U.S. Const. amend. 14.
State's failure to preserve mobile home and its contents was not result of bad faith on part of state, and thus state's loss of evidence
did not deprive due process rights to defendant charged with first-degree arson and murder. U.S. Const. amend. 14.
4. Criminal Law.
Burden of demonstrating prejudice from state's loss or destruction of evidence lies with defendant and requires some showing that
it could be reasonably anticipated that evidence sought would be exculpatory and material to defendant's defense. It is not sufficient
that showing disclose merely hoped-for conclusion from examination of destroyed evidence, nor is it sufficient for defendant to show
only that examination of evidence would be helpful in preparing his defense. U.S. Const. amend. 14.
Defendant charged with first-degree arson and murder failed to establish that lost evidence would have been exculpatory, and thus
state's failure to preserve mobile home and its contents did not violate defendant's due process right to fair trial. U.S. Const. amends. 6,
14.
6. Grand Jury.
Defendant was not entitled to court-appointed counsel at third grand jury hearing seeking indictment for first-degree arson and
murder. U.S. Const. amend. 6.
OPINION
Respondent George Henry Warner (Warner) was arrested on August 7, 1989, and charged by a criminal complaint on August 15, 1989,
with one count of first degree arson and one count of murder.
murder. The charges arose out of a fire on June 5, 1989, which resulted in the eventual death
of Warner's wife Carol Warner (Carol) on June 20, 1989, of pneumonia. Warner filed in the
district court a pretrial petition for a writ of habeas corpus. The district court granted the
petition and we now reverse the district court's order.
FACTS
The fire occurred at approximately 3:00 a.m. on June 5, 1989, at the Warners' mobile
home located within a mobile home park in Las Vegas, Nevada. After the fire began, the
Warners' neighbor, Evelyn Farr, heard a male person call for help because his house was on
fire. Farr called the fire department and began to spray water from her backyard toward the
fire. Farr observed Carol appear at Farr's backyard door as if Carol had walked down the
street and up Farr's driveway. Witnesses observed bloody footprints on the street leading to
Farr's driveway. Carol was wearing a robe and asked to use Farr's shower. Shortly thereafter,
Farr followed Carol into Farr's home. While Farr was in her backyard, she did not see anyone
climb over the wall separating her property from the Warners' property and enter her
backyard. The wall separating their property is four feet high with a dense hedge of
eight-foot-high oleanders adjacent to the wall.
As a result of the fire, Carol sustained severe burns over 80 to 85 percent of her body.
Carol was so badly burned that she was bleeding and her skin was hanging from her body.
While paramedics were treating Carol for her burns in Farr's mobile home, Carol refused to
see Warner and asked that someone call her children so that she could tell them what
happened. Warner showed little emotion and asked few questions about Carol's condition.
Upon arrival at the hospital, Carol was tracheally intubated and could not speak from that
time until she died. Warner's injuries included a cut on his hand requiring stitches, singed hair
on the back of his head, and a headache. Warner sustained no other injuries and witnesses
observed that the white clothes Warner was wearing during the fire were virtually spotless.
Experts retained by the state opined that the fire was caused by arson with the use of an
accelerant such as a flammable liquid. The experts' opinions were based on the burn patterns
in the mobile home, the definite demarcation between burned and unburned material, the
unusual burning of the floor boards, and the travel and spread of the fire. The burn patterns
within the mobile home also suggested that the fire had three points of origin. One point was
located on the seat of a lounge chair in the den.
den. The experts further concluded that the burn patterns on Carol's body suggested that Carol
was in a sitting or bent position at the time she sustained the burns, and that the burns were
caused by an accelerant being poured on her and ignited.
Other evidence obtained by the state included evidence that Warner was involved in an
extramarital relationship, an incriminating statement made by Warner that he intended to kill
Carol, the presence of a gasoline can and a Bic butane lighter located outside of the mobile
home after the fire, and evidence that Carol's ventilator which assisted her breathing had been
tampered with while Warner was present in Carol's hospital room.
The state's theory of the crime is that Carol was asleep in the lounge chair in the den when
Warner poured accelerant on her and ignited it. Awakened and burned by the fire, Carol then
exited the mobile home through the front door and walked down the street to Farr's home to
use the shower. Warner, on the other hand, contends that he was asleep in their bed when he
awoke to the sound of Carol's screams. Carol opened the bedroom door and was engulfed in
flames. Warner claimed he was unable to breathe because of the smoke and he hit the
bedroom window and fell outside. Carol then exited through the window using the drapes to
assist her to the ground. Warner claimed he then wrapped his robe around Carol and lifted
Carol over the wall and through the oleanders into Farr's backyard. Warner asserts that the
fire was caused by one of his dogs chewing through an electrical cord attached to a lamp.
At the initial inspection and examination of the fire scene, arson was not a suspected cause
of the fire and the mobile home remained unsecured for eighteen days following the fire.
Thomas Pugh, a fire investigator for an insurance company, first determined that the cause of
the fire was accidental. Upon later review of the photographs and other evidence, Pugh
suspected arson. When Carol died on June 20, 1989, the police began to suspect arson and
sealed off the fire scene. On June 23, 1989, the police obtained and executed a search warrant
for the mobile home.
Pursuant to the search warrant, the police gathered and impounded floor samples, carpet,
electrical wire, broken glass, furniture, a portion of the front steps, a lamp, and a Bic butane
lighter. Items which the state did not impound included the lounge chair, an ottoman used
with the lounge chair, the robe worn by Carol, the gasoline can, the drapes, soil samples, and
blood stains from the block wall located between the Warner and Farr homes. The police also
took numerous photographs of the fire scene. The state tested samples of the lounge chair and
ottoman and found no traces of an accelerant.
Although the district court's appointment of investigators to assist Warner occurred after
the mobile home was lost or destroyed, Warner walked through the mobile home with
Ronald Heilman, an investigator who performed an examination of the mobile home and
its contents.
assist Warner occurred after the mobile home was lost or destroyed, Warner walked through
the mobile home with Ronald Heilman, an investigator who performed an examination of the
mobile home and its contents. While the exact date of the examination is unclear, it appears
to have occurred several months after the fire. Heilman took photographs of the fire scene and
observed that the ottoman was located on the seat of the lounge chair and that the two pieces
of furniture were apparently fused or melted together as a result of the fire. Warner, who
worked for the Nevada Highway Patrol, had access to the mobile home for some period of
time after the fire. Several other people also had access to the mobile home, including a
person who allegedly had a vendetta against Warner. Warner obtained a court order to
preserve the mobile home and its contents, but the mobile home was apparently taken by a
mortgagor some time after December of 1989.
After the filing of the criminal complaint on August 15, 1989, Warner was arraigned and a
preliminary hearing was scheduled. Before the date set for the preliminary hearing, the
prosecutor, without notice to Warner, presented the case to a grand jury on December 7,
1989. The grand jury indicted Warner for first degree arson and murder. Pursuant to the
state's motion, the justice's court dismissed the criminal complaint. Subsequently, the district
court granted Warner's petition for a writ of habeas corpus and dismissed the indictment,
concluding that Warner had not been provided with reasonable notice of the grand jury
hearing prior to the hearing, pursuant to Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389
(1989). Subsequently, this court held that the decision in Marcum did not apply retroactively.
Gier v. District Court, 106 Nev. 208, 789 P.2d 1245 (1990). The district court then reinstated
the indictment and Warner filed a petition for a writ of prohibition in this court. We granted
the writ of prohibition, prohibiting the district court from reinstating the indictment, and we
ordered the indictment dismissed.
The state then elected to file a second complaint on May 17, 1991. The justice's court
dismissed the complaint as being in violation of NRS 174.085(5), and the state did not
appeal. Subsequently, the district attorney, with notice to Warner, presented the case to a
second grand jury between July 16, 1992, and August 20, 1992. Warner was represented by
court-appointed counsel, and expert witnesses testified on behalf of Warner. The grand jury
refused to indict Warner. In light of evidence that this result was based on conflict and
discord among the grand jurors rather than a lack of probable cause, the district court granted
the state's motion for a third grand jury hearing. This court denied Warner's petition for a writ
of certiorari, prohibition, or mandamus.
The state presented the case to a third grand jury on February 17, 1994, and February 24,
1994. Warner's request for court-appointed counsel was denied. At the grand jury hearing,
eighteen witnesses testified on behalf of the state. Warner testified in his own defense and the
state provided the grand jurors with transcript testimony of Warner's experts who testified at
the second grand jury hearing, and with various reports and records. The grand jurors
acknowledged receipt of this exculpatory evidence. The grand jury indicted Warner for first
degree arson and murder.
On November 16, 1994, Warner filed in the district court a petition for a writ of habeas
corpus. After a hearing, the district court granted Warner's petition on two grounds: (1) the
state's failure to preserve potentially exculpatory evidence was prejudicial to Warner; and (2)
the district court's failure to appoint counsel to represent Warner at the third grand jury
hearing deprived Warner of his Sixth Amendment right to counsel. The state filed a notice of
appeal.
DISCUSSION
I. Loss of Evidence
[Headnote 1]
The district court granted Warner's pretrial petition for a writ of habeas corpus on the
ground that the state failed to preserve potentially exculpatory evidence which deprived
Warner of his due process right to a fair trial.
1
Specifically, the district court concluded that
the state's failure to preserve the lounge chair, ottoman, carpet, and the victim's robe
prejudiced Warner in his ability to refute the state's theory that he poured accelerant on Carol.
The district court further determined that the state's failure to preserve electrical wire, broken
glass, and fixtures from the mobile home prevented Warner from proving his claim that he
and Carol exited from the bedroom window of the mobile home.
[Headnote 2]
This court has consistently held that
[i]n order to establish a due process violation resulting from the state's loss or
destruction of evidence, a defendant must demonstrate either {1) that the state lost
or destroyed the evidence in bad faith, or {2) that the loss unduly prejudiced the
defendant's case and the evidence possessed an exculpatory value that was
apparent before the evidence was destroyed.
__________

1
Contrary to the state's assertion, we conclude that Warner properly raised issues regarding the state's failure to
preserve exculpatory and material evidence in his pretrial petition for a writ of habeas corpus. Warner is not
seeking to suppress or challenge the admissibility of certain evidence. Such a challenge would properly be
brought in a motion to suppress. Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). Rather, Warner contends that
the state's loss of the evidence precludes him from testing it for exculpatory value, and that proceeding to trial
without the evidence would deny him a fair trial and result in a due process violation. Thus, we conclude that the
district court correctly considered this issue.
from the state's loss or destruction of evidence, a defendant must demonstrate either (1)
that the state lost or destroyed the evidence in bad faith, or (2) that the loss unduly
prejudiced the defendant's case and the evidence possessed an exculpatory value that
was apparent before the evidence was destroyed.
State v. Hall, 105 Nev. 7, 9, 768 P.2d 349, 350 (1989); see also Howard v. State, 95 Nev.
580, 600 P.2d 214 (1979).
[Headnote 3]
According to our review of the record, there is no evidence that the loss of the items
resulted from any bad faith on the part of the state. Even though Warner obtained a court
order to preserve the mobile home and its contents, there is no indication that the police
destroyed this evidence in an attempt to make it unavailable to Warner. Rather, both parties
assert that the mobile home was taken by a mortgagor when Warner failed to make the
mortgage payments. Accordingly, we conclude that the state did not act in bad faith.
[Headnote 4]
We must therefore determine whether the loss of the evidence was prejudicial to Warner.
The burden of demonstrating prejudice lies with Warner and
requires some showing that it could be reasonably anticipated that the evidence sought
would be exculpatory and material to appellant's defense. It is not sufficient that the
showing disclose merely a hoped-for conclusion from examination of the destroyed
evidence, nor is it sufficient for the defendant to show only that examination of the
evidence would be helpful in preparing his defense.
Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979) (citation omitted); see also
Sterling v. State, 108 Nev. 391, 834 P.2d 400 (1992).
[Headnote 5]
Warner contends that the state lost evidence including the lounge chair, the ottoman, the
robe worn by Carol, electrical wire, broken glass from the bedroom window, carpet samples,
soil samples, fixtures from the mobile home such as a sewing machine and a stereo, a
gasoline can, drapes from the bedroom window, and blood on the block wall located between
the Warner and Farr properties. We conclude that Warner has failed to demonstrate how the
unavailability of this evidence has prejudiced him.
First, it is important to note that the state impounded fragments of broken glass from the
bedroom window, pieces of copper wire from inside the mobile home, a lamp which Warner
contended was the cause of the fire, and samples of carpet.
from inside the mobile home, a lamp which Warner contended was the cause of the fire, and
samples of carpet. Therefore, these items are available for Warner's inspection. Further,
Warner has possession of the robe worn by Carol, and therefore has the opportunity to
examine it. Although Farr washed the robe immediately after the fire and some evidence may
have been lost, any exculpatory value of the robe was unknown at the time because the police
and investigators did not immediately suspect arson.
As for the other lost items, although the lounge chair and the ottoman are clearly material
in light of the state's theory that Warner poured an accelerant on Carol as she slept in the
lounge chair, Warner has not sufficiently demonstrated the exculpatory value of the lounge
chair and ottoman. The primary exculpatory value which Warner has suggested is testing the
items for traces of an accelerant. However, the state is willing to stipulate or present expert
testimony that tests revealed no traces of any accelerant on the lounge chair and ottoman.
Defense counsel also contends that the ottoman was placed on top of the lounge chair such
that Carol could not have been sitting there at the time of the fire. However, the location of
the furniture inside the mobile home can be determined by photographs taken by both the
state and Warner's investigator.
As for the soil and carpet samples, although testing the samples may reveal no traces of an
accelerant, this is not exculpatory in light of the other tests revealing no traces of an
accelerant in the lounge chair and ottoman. The state's theory of arson is not based on testing
items in the mobile home for traces of an accelerant. Rather, the state's case is based on an
analysis of the burn patterns which suggest that an accelerant was used to set the fire.
Insofar as the fixtures in the mobile home are concerned, Warner has not made a sufficient
showing of how fixtures in the mobile home constitute exculpatory evidence. Although the
condition of fixtures within the mobile home may reveal information regarding the extent and
spread of the fire, the location and condition of items within the mobile home are preserved
by photographs taken of the fire. Further, Warner had access to the fixtures for some time and
he removed several items from the mobile home after the fire. Therefore, Warner could in
fact have possession of some fixtures from the mobile home. This analysis applies to the
gasoline can as well. Warner had access to the gasoline can for some time after the fire and
Warner has not specifically demonstrated how the gasoline can is exculpatory.
Finally, Warner contends that testing the drapes to show that the drape material matched a
melted substance located on the robe and testing the blood on the block wall to determine that
it came from either Warner or Carol, would corroborate his version of the events.
of the events. While testing these items may corroborate Warner's version of the events, this
does not transform the drapes and the presence of the blood into exculpatory evidence. Even
if Warner and Carol exited from the window and he lifted her over the block wall, this does
not prove that Warner did not set the fire. Mere assertions by the defense counsel that an
examination of the evidence will potentially reveal exculpatory evidence does not constitute a
sufficient showing of prejudice. See Boggs v. State, 95 Nev. 911, 604 P.2d 107 (1979).
Therefore, we conclude that because Warner has failed to prove that the lost evidence would
have been exculpatory, the unavailability of the evidence does not violate Warner's due
process right to a fair trial.
Moreover, Warner's inability to test the mobile home and its contents for traces of an
accelerant does not strengthen the state's case, because the state is willing to stipulate that no
traces of an accelerant were found. See Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991)
(the state cannot be allowed to benefit by its failure to preserve evidence, particularly when
the state's case is strengthened by the absence of the evidence). Rather the state's arson theory
is based upon expert examination of photographs of the mobile home and of the victim's
body, which suggests that the burn patterns are consistent with arson. Warner may rebut the
state's case by an independent review of the burn patterns which are preserved by
photographs.
Further, Warner had personal access to the mobile home for a significant period of time
after the fire and Warner's investigator examined and took photographs of the mobile home
and its contents. Warner had been indicted with first degree arson, and his investigator most
likely observed the unusual burn patterns and the three points of origin in the mobile home,
suggesting that the fire was caused by arson. Therefore, Warner and his investigator had some
opportunity to obtain exculpatory evidence from the mobile home and its contents, the loss of
which he now claims is prejudicial.
We conclude that while the presence of the mobile home and its contents could aid in
Warner's defense, the loss of that evidence was not so prejudicial that Warner will be denied a
fair trial. Accordingly, the district court erred in granting Warner's habeas petition based on
the state's loss of certain evidence.
2

__________

2
The state further contends that although it has a duty to preserve evidence within its possession or control, it
had no duty to gather evidence which was within Warner's control, such as the lounge chair and ottoman.
Because Nevada law concerns the situation where the state fails to preserve evidence already within its
possession, the state urges this court to adopt an approach similar to that articulated by the New Mexico
Supreme Court in State v. Ware, 881 P.2d 679 (N.M. 1994), for situations when the state fails to gather
evidence. In light of our conclusion in this case, we find it unnecessary to adopt such a standard.
II. Right to Counsel
The district court also granted Warner's pretrial petition for a writ of habeas corpus on the
ground that the failure to appoint counsel to represent Warner at the third grand jury hearing
violated Warner's Sixth Amendment right to counsel. The district court acknowledged that
this court has not extended the right to counsel to grand jury hearings, but reasoned that
Warner was facing the prosecutorial forces of organized society and the state was obviously
committed to prosecuting him. The district court was further persuaded by the fact that
Warner was represented by counsel at the second grand jury hearing, which failed to indict
him.
[Headnote 6]
A person whose indictment the district attorney intends to seek or the grand jury on its
own motion intends to return may be accompanied by legal counsel during any appearance
before the grand jury. NRS 172.239(1) (emphasis added). This court has refused to extend
the right to court-appointed counsel to a person who is the target of a grand jury investigation.
Sheriff v. Bright, 108 Nev. 498, 835 P.2d 782 (1992).
[T]he right to counsel has been recognized as applicable to certain pre-trial procedures,
including preliminary hearings, arraignments, certain identification procedures, and
efforts to elicit inculpatory statements. However, the right has not been extended to
grand jury proceedings because they are generally viewed to be investigatory in nature,
and occurring prior to the initiation of adversarial proceedings. Grand jury targets
have not been formally charged with a crime until indicted.
Bright, 108 Nev. at 501, 835 P.2d at 784 (citation omitted). Extending the right to counsel to
a grand jury hearing might transform the process into a mini-trial. Id. at 502, 835 P.2d at 785.
Further, the rights of the individual are sufficiently safeguarded by the right to notice of the
hearing and to testify at the hearing, and by the prosecutor's obligation to present known
exculpatory evidence. Id. at 501-02, 835 P.2d at 784-85.
Pursuant to the rule set forth in Bright, we conclude that Warner was not entitled to
court-appointed counsel at the third grand jury hearing. Although two complaints and an
indictment against Warner had been dismissed at the time of the third grand jury hearing,
there were no charges pending against Warner at the time.
Further, although Warner was represented by counsel at the second grand jury hearing at
which the grand jury refused to indict him, and Warner contends that the failure to indict
resulted from his counsel's attempts to show a lack of probable cause, this may not be entirely
true. Rather, failure to indict may have resulted from discord between the grand jurors and
the district attorney.
resulted from discord between the grand jurors and the district attorney. Further, failure of the
grand jury to indict does not prevent resubmission of the same charges to a grand jury upon
court approval. NRS 172.255(4). Moreover, at the third grand jury hearing, the state provided
Warner with certain procedural protections including permitting Warner to testify and
providing the grand jurors with known exculpatory evidence such as transcript testimony of
Warner's experts who testified at the second grand jury hearing.
The tortured procedural history of this case is unfortunate, but we are unwilling to make an
exception to the rule that targets of grand jury hearings are not entitled to court-appointed
counsel during such hearings. The legislature of this state has provided targets of grand jury
hearings with sufficient procedural protections, and Warner was provided with these
protections here. Accordingly, we conclude that the district court erred in granting Warner's
pretrial petition for a writ of habeas corpus on this basis.
For the reasons discussed above, we reverse the order of the district court granting
Warner's pretrial petition for a writ of habeas corpus and we remand this matter to the district
court for further proceedings consistent with this opinion.
This case was commenced over seven years ago. In my view, the trial court was acting
properly within its discretion when it finally ruled that the state's loss or destruction of
evidence necessary for Warner's defense prejudiced Warner in his ability to refute the state's
theory of the case.
The trial judge had the opportunity to examine a wide assortment of facts relating to the
nature of each of a number of evidential items and to hear testimony relative to how and why
certain important evidence for the defense had become unavailable. Without having the
advantage of being on the scene and inspecting the large volume of evidence that supported
the trial judge's decision in this case, this court now unadvisedly makes such broad,
unsupported judgments as, Warner has failed to prove that the lost evidence would have
been exculpatory and unavailability of the evidence does not violate Warner's due process
right to a fair trial.
I see the reversal of the trial court's judgment in this case as a serious and unwarranted
intrusion into the prerogatives of the trial court. I see this court as being more and more
willing to do this, and I think that it is an unhealthy and unjust exercise of appellate powers.
appellate powers. The trial court, in my opinion, clearly did not abuse its discretion in making
the decision that it did; therefore, I would affirm the judgment.
____________
112 Nev. 1245, 1245 (1996) Hansen v. Universal Health Servs.
RICHARD HANSEN, Appellant, v. UNIVERSAL HEALTH SERVICES OF NEVADA,
INC., dba VALLEY HOSPITAL MEDICAL CENTER; JOHN THALGOTT, M.D.,
and JOHN THALGOTT, M.D., INC., Respondents.
No. 25848
October 22, 1996 924 P.2d 1345
Appeal from a judgment of the district court in favor of respondents in a medical
malpractice action. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Patient sued hospital and physicians for medical malpractice, alleging that patient's
permanent disability resulted from defendants' actions in implanting experimental device in
plaintiff's spine. The district court entered judgment for defendants, and plaintiff appealed.
Defendants thereafter moved to dismiss appeal and for imposition of sanctions based on
grounds of multiple procedural derelictions and dilatory pursuit of appeal. The supreme court
held that: (1) appeal would not be dismissed, but (2) plaintiff's counsel would be sanctioned
in sum of $5,000.
Motion to dismiss denied; motion for extension granted; sanctions imposed.
Robert D. Walker and Gerald F. Neal, Las Vegas, for Appellant.
Pearson & Patton, Las Vegas, for Respondent Universal Health Services of Nevada, Inc.
Galatz, Earl & Bulla, Las Vegas, for Respondents John Thalgott, M.D., and John Thalgott,
M.D., Inc.
Supreme court would not dismiss plaintiff patient's appeal from verdict for defendant hospital and physicians in action alleging
that plaintiff's permanent disability resulted from defendants' implanting experimental device in plaintiff's spine, despite plaintiff's
counsel's dilatory conduct in prosecution of appeal. Nature of facts underlying dispute was compelling, and dilatory conduct was
occasioned solely by counsel's inexcusable neglect, rather than plaintiff's conduct.
Counsel's calendaring error, preoccupation with other trials, and failure to contact court reporter for status updates on availability
of trial transcript did not constitute extreme or unforeseeable circumstances that would excuse dilatory conduct in prosecution of
appeal.
Supreme court has preference to decide cases on merits.
Sanction of $5,000 would be imposed against plaintiff's counsel for his dilatory conduct in prosecution of appeal from defense
judgment in action alleging that plaintiff patient's permanent disability resulted from defendant hospital and physicians' implanting
experimental device in plaintiff's spine. Counsel's initial failure to timely transmit record on appeal led to $500 sanction and
extension of time to transmit record, counsel thereafter failed to transmit record by extended due date, and counsel failed to contact
court reporter for status update until he was served with second motion to dismiss.
OPINION
Per Curiam:
Respondents have moved to dismiss this appeal and for the imposition of appropriate sanctions based on grounds of multiple
procedural derelictions and dilatory pursuit of the appeal.
Appellant sued respondents for more than $2,000,000 in special damages arising from respondents' actions in implanting an
experimental device in appellant's spine, which appellant contends caused him permanent disability. After the trial of this matter was
completed, the district court entered judgment in favor of respondents on October 28, 1993. Thereafter, appellant filed a motion for a new
trial in the district court. The district court denied the motion. This is an appeal from the October 28, 1993, judgment. Specifically,
appellant claims that the district court made numerous errors with regard to evidentiary rulings, jury instructions, and proceedings
involving the jury.
Appellant was served with the notice of entry of the order denying the motion for a new trial on January 27, 1994, and filed a notice of
appeal and designation of the record on appeal in the district court on February 2, 1994. To date, however, the record on appeal has never
been transmitted.
On July 18 and 27, 1994, respondents moved to dismiss this appeal based on appellant's failure to cause timely transmission of the
record on appeal. Appellant opposed the motions and requested an extension of time to transmit the record. By order entered January 19,
1995, we denied respondents' motions and granted appellant an extension of thirty days from the date of the order within which to cause
transmission of the record on appeal. We imposed a $500 sanction, however, against appellant's counsel, attorney
Robert D.
We imposed a $500 sanction, however, against appellant's counsel, attorney Robert D.
Walker, for failure to comply with our procedural rules.
On February 15, 1995, appellant moved for a second extension of time to transmit the
record. By order entered June 14, 1995, we granted appellant another thirty-day extension to
cause transmission of the record. Due to the inordinate delay in the processing of this appeal,
however, we cautioned attorney Walker that additional sanctions might be imposed for
continued dilatory conduct.
Noting that appellant failed to transmit the record by the extended due date, respondents
filed this second motion to dismiss appeal on August 4, 1995. Appellant opposes the motion,
asserting that the delay was caused by counsel's calendaring error and engagement in other
trials. Additionally, appellant requests yet another extension of time to transmit the record
based on the unavailability of the trial transcript. This request is opposed.
[Headnote 1]
We note that appellant's counsel paid the transcript preparation fees in February 1995, but
thereafter failed to contact the court reporter for a status update until he was served with the
second motion to dismiss in August 1995. We further note that the principal reason proffered
by appellant's counsel for the delay, i.e., a calendaring error and engagement in other trials,
is identical to the reason for delay given the previous year in the August 4, 1994, opposition
to the first motion to dismiss appeal. Indeed, the two-page Points and Authorities
accompanying the August 10, 1995, opposition is merely a replication of certain portions of
the August 4, 1994, opposition.
[Headnotes 2, 3]
We stated in our order of January 19, 1995, that we were gravely concerned by counsel's
failure to comply with our appellate rules. Further, while we granted relief at that time, we
imposed sanctions against counsel and cautioned counsel that additional extensions would be
granted only upon a showing of extreme and unforeseeable circumstances. We conclude that
counsel's calendaring error, preoccupation with other trials and failure to contact the court
reporter do not constitute extreme or unforeseeable circumstances. See generally Varnum v.
Grady, 90 Nev. 374, 528 P.2d 1027 (1974). Nevertheless, the compelling nature of the facts
in the underlying dispute persuades us to allow this appeal to proceed. Moreover, in light of
this court's preference for deciding cases on the merits, see, e.g., Price v. Dunn, 106 Nev. 100,
105, 787 P.2d 785, 787 (1990); Hotel Last Frontier v. Frontier Prop.,
Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963), and because the
dilatory conduct in this matter has been occasioned solely by counsel's inexcusable neglect,
rather than his client's conduct, we decline to dismiss this appeal. Accordingly, we deny
respondents' motion to dismiss this appeal and we grant appellant's motion for an extension
of time. Appellant shall have twenty (20) days from the date of this opinion within which to
cause transmission of the record on appeal.
[Headnote 4]
Finally, we cannot condone attorney Walker's disregard of the strong admonishments
concerning his dilatory conduct in the prosecution of this appeal set forth in our order of
January 19, 1995. As we stated in Burke v. State, 110 Nev. 1366, 1368, 887 P.2d 267, 268
(1994), we expect that all appeals brought in this court will be pursued in a manner meeting
high standards of diligence, professionalism, and competence. Accordingly, in light of
attorney Walker's unexcused dilatory conduct in prosecuting this appeal, and the compelling
need to promptly resolve the merits of this appeal, we conclude that the imposition of
sanctions against attorney Walker in the sum of five thousand dollars ($5,000) is warranted.
See City of Las Vegas v. Int'l Ass'n Firefighters, 110 Nev. 449, 452 n.3, 874 P.2d 735, 737
(1994) (Even though our policy of deciding cases on the merits often induces us not to
dismiss cases where dilatory conduct has indisputably occurred . . . . we will not hesitate to
impose sanctions for material violations of our procedural rules). See also County Comm'rs
v. Las Vegas Discount Golf, 110 Nev. 567, 569, 875 P.2d 1045, 1046 (1994); State, Emp.
Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318, 1320 (1984). Of this amount,
attorney Walker shall personally pay the sum of one thousand dollars ($1,000) to respondents'
counsel to help defray the expenses incurred in filing the second motion to dismiss this
appeal. Further, attorney Walker shall personally pay the sum of four thousand dollars
($4,000) to the Supreme Court Law Library. Counsel shall file proof of such payments with
the clerk of this court within ten (10) days from the date of this opinion. We admonish
counsel that failure to comply with the mandates of this opinion in a timely manner may
result in the imposition of additional sanctions, including dismissal of this appeal.
Accordingly, we deny the motion to dismiss, grant the motion for extension of time and
impose sanctions of $5,000 against attorney Walker.
____________
112 Nev. 1249, 1249 (1996) Cheek v. FNF Constr., Inc.
DENNIS CHEEK and MISTY CHEEK, Appellants, v. FNF CONSTRUCTION, INC., an
Arizona Corporation, Respondent.
No. 28213
October 22, 1996 924 P.2d 1347
Appeal from summary judgment. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Motorists sued State, Department of Transportation, construction company working on
highway, and owner of cow for injuries sustained when their vehicle struck cow. The district
court granted summary judgment in favor of construction company. Motorists appealed. The
supreme court held that district court did not have authority to hear motion for summary
judgment since notice of summary judgment proceeding was legally insufficient.
Vacated and remanded.
Brown and Brown, Las Vegas, for Appellants.
Kummer, Kaempfer, Bonner & Renshaw and Georlen Spangler, Las Vegas, for
Respondent.
1. Federal Civil Procedure.
District court did not have authority to rule on renewed motion for summary judgment, despite fact that motion did not raise any
new issues, where plaintiffs received six days notice by mail and seven days notice by fax, they did not waive ten-day notice
requirement, and they were prejudiced by their inability to fully prepare opposition to summary proceeding under constraints of
shortened time period. NRCP 6(e), 56(c).
Local district court rule governing motions for order shortening time, which grants judge discretion to shorten time for hearing to
less than ten days, did not abrogate ten-day notice requirement of Rules of Civil Procedure where party opposing motion suffered
prejudice by shortened notice. NRCP 6(e); EDCR 2.26.
Service by fax of order shortening time for hearing on motion for summary judgment was improper, even if district court impliedly
authorized service by fax, since such authorization was in violation of local court rule and was invalid. NRCP 5(b); EDCR 7.26.
OPINION
Per Curiam:
Appellants Dennis and Misty Cheek challenge the summary judgment granted by the district court in favor of respondent, FNF
Construction, Inc. (hereafter FNF). The Cheeks contend that the district court erred in entertaining FNF's motion for
summary judgment because they were not afforded adequate notice or service of notice.
that the district court erred in entertaining FNF's motion for summary judgment because they
were not afforded adequate notice or service of notice. We agree and vacate the order.
FACTS
On Sunday, March 25, 1990, at 9:45 p.m., the Cheeks' vehicle struck a cow owned by
Cliven Bundy on northbound I-15 just south of Mesquite, Nevada. About five miles south of
the scene, FNF was in the process of paving a portion of I-15 for the Nevada Department of
Transportation (hereafter NDOT).
The Cheeks filed an action against the State of Nevada, NDOT, FNF, and Bundy for
personal injuries arising out of the collision with the cow. FNF filed a Motion for Summary
Judgment on the ground that the Cheeks had failed to establish a causal connection between
FNF and the cow's presence on the highway. The district court denied the motion without
prejudice to refile after additional discovery.
Eight months later, on December 26, 1995, FNF renewed its motion for summary
judgment and mailed notice of the motion to the Cheeks. The hearing on the motion was
scheduled for January 22, 1996, and the trial on the merits was set for January 16, 1996. To
avoid participating in a trial that could be obviated by the granting of its summary judgment
motion, FNF moved, ex parte, to change the hearing on the motion to January 4, 1996. The
affidavit attached to the motion certified that a notice of the Order Shortening Time would be
served on all counsel of record by hand delivery or facsimile.
The court granted the motion for an order shortening time on December 28, 1995, but did
not specify how service of the order should be accomplished. The Cheeks were notified of the
order on December 28, 1995 by facsimile, and thereafter filed an opposition to the renewed
summary judgment motion arguing that the notice of the hearing date was deficient. Despite
the holiday season, the Cheeks' attorney was able to contact their expert by telephone and
submit his affidavit along with their opposition to the motion.
At the hearing, the district court granted FNF's renewed motion for summary judgment and
released FNF from the action. This appeal followed.
DISCUSSION
The Cheeks claim that FNF's notice of the accelerated hearing on the motion for summary
judgment was legally insufficient, thereby depriving the district court of the authority to
proceed with the hearing at the scheduled time. The basis for the Cheeks' contention is that
the district court violated the notice provisions of NRCP 56{c), in addition to the notice
and service provisions of Eighth District Court Rules {EDCR) 2.26 and 7.26.
contention is that the district court violated the notice provisions of NRCP 56(c), in addition
to the notice and service provisions of Eighth District Court Rules (EDCR) 2.26 and 7.26.
A. NRCP 56(c)
NRCP 56(c) provides that [t]he motion [for summary judgment] shall be served at least
10 days before the time fixed for the hearing. It has been held with respect to the federal
counterpart to NRCP 56(c) that noncompliance with the time provisions of the rule deprives
the court of authority to grant summary judgment, unless . . . there has been no prejudice to
the opposing party by the court's failure to comply with this provision of the rule. Kistner v.
Califano, 579 F.2d 1004, 1006 (6th Cir. 1978).
FNF mailed notice of the renewed motion for summary judgment to the Cheeks on
December 26, 1995. NRCP 6(e) provides that when giving notice by mail, three days shall be
added to the prescribed period. Thus, by operation of the rule, notice of the renewed motion
was given by mail on December 29, 1995.
On December 28, 1995, FNF filed, and the district court granted, an ex parte motion for an
order shortening the time of the summary judgment hearing to January 4, 1996. On the same
day, FNF faxed notice to the Cheeks of the new hearing date. Thus, the Cheeks received six
days' notice by mail and seven days' notice by fax.
In Osbakken v. Venable, 931 F.2d 36, 37 (10th Cir. 1991), the court explained:
the 10-day time period for service of the motion is especially important in the Rule 56
context because it provides an opportunity for the opposing party to prepare himself as
well as he can with regard to whether summary judgment should be entered. In theory,
the additional time ought to produce a well-prepared and complete presentation . . . . In
addition, since opposition to a summary judgment motion often is a difficult task,
usually involving preparation of both legal and factual arguments as well as affidavits,
and since the results of failure are drastic, it is felt that the additional time is needed to
assure that the summary judgment proceeding is fair.
See also Winfrey v. Brewer, 570 F.2d 761, 764 (8th Cir. 1978) (holding that the purpose of
the ten-day notice provision is to allow the opposing party a meaningful opportunity to resist
the motion by submitting counteraffidavits.)
In Osbakken, the court vacated a summary judgment where the lower court only afforded
the opponent eight days' notice of the hearing on the motion. Osbakken, 931 F.2d at 37. In
that case, the opponent stated at the hearing that he had not had sufficient time to
prepare responses to the allegations.
the opponent stated at the hearing that he had not had sufficient time to prepare responses to
the allegations. Id.
[Headnote 1]
The Cheeks insist that they were prejudiced because the Order Shortening Time was
granted during the holiday season when their expert was not readily available. Of the seven
days they had to prepare, three were non-working days due to the New Year's weekend;
moreover, the motion was heard at 9:00 a.m. on January 4. Further, as in Osbakken, the
Cheeks protested the court's consideration of the motion at the hearing. They claimed in their
opposition brief that they were not afforded sufficient notice, and that they did not have an
adequate opportunity to prepare a complete affidavit.
FNF insists that the Cheeks were not prejudiced because this was a renewed motion for
summary judgment that contained no new legal arguments or evidence, and that the facts or
lack thereof would not change no matter how much time the Cheeks had to prepare for the
hearing on the motion. Indeed, FNF noted that the Cheeks did not know who left the
northbound gate open twelve days before the scheduled trial and would never know
irrespective of the length of time they would have to find an answer to that question.
This court has held that an appellant's right to notice has nothing to do with the merits of
the case. Soebbing v. Carpet Barn, Inc., 109 Nev 78, 83, 847 P.2d 731, 735 (1993) (citing
U.S. Development Corp. v. Peoples Federal Savings and Loan Association, 873 F.2d 731,
734 (4th Cir. 1989)).
In U.S. Development Corp., the respondent sought summary judgment and then added a
new count to his complaint without seeking summary judgment on the new count. Id. The
respondent argued that summary judgment on the new count was appropriate because the
count did not contain any additional facts that would create a genuine issue of material fact.
Id. The court held that [o]nce the district court allowed the claim to be added to the
complaint, it could be disposed of only in accordance with the Rules of Civil Procedure and
the dictates of due process. Id.
Likewise, in this case, once the district court allowed the renewed motion, it could only be
disposed of in accordance with the rules of civil procedure and the dictates of due process.
The fact that the renewed motion for summary judgment did not raise any new issues is not
dispositive. Under Osbakken and Soebbing, the Cheeks were entitled to ten days' notice
regardless of the merits, because they objected to the notice at the hearing and have
maintained that they were prejudiced by their inability to fully prepare their opposition to the
summary proceeding under the constraints of the shortened time period.
B. Eighth District Court Rules
EDCR 2.20 provides that [a]ll motions must contain a notice of motion setting the same
for hearing . . . not less than 21 days from the date the motion is served. . . . If a motion to
shorten time is granted, it must be served upon all parties promptly. An order which shortens
the notice of hearing to less than 10 days may not be served by mail. EDCR 2.26.
FNF admits that the Cheeks were only afforded seven days' notice. They argue that EDCR
2.26 governs an Ex Parte Motion for an Order Shortening Time, and under that rule, the
district court judge has discretion to shorten the time for a hearing to less than ten days
notwithstanding the NRCP 56(c) ten-day requirement. FNF also argues that it complied with
EDCR 2.26 because it served notice on the Cheeks promptly by faxing notice of the order to
the Cheeks on December 28, 1995, the same day the order was issued.
The Cheeks, on the other hand, maintain that the ten-day NRCP notice requirement cannot
be abrogated by local rule. They further contend that under the applicable local rules for
service, both the notice mailed December 26 and the notice faxed December 28 were
deficient. We agree.
FNF's argument suggests a conflict between a local district court rule and the general rules
of procedure promulgated by this court. In Western Mercury, Inc. v. The Rix Co., 84 Nev
218, 223, 438 P.2d 792, 795 (1968), this court held that [t]he district courts have
rule-making power,
1
but the rules they adopt must not be in conflict with the Nevada Rules
of Civil Procedure. Thus, the issue becomes whether EDCR 2.26 can be read consistently
with the prevailing rule, NRCP 56(c).
EDCR 2.26 requires prompt service by any accepted method if the order is granted more
than ten days prior to the hearing. If the order is granted less than ten days before the
scheduled hearing, EDCR 2.26 prohibits service by mail. NRCP 56(c), in conjunction with
case law, mandates ten days' notice unless the opponent will not suffer prejudice as a result of
shorter notice. Kistner, 579 F.2d at 1005.
[Headnote 2]
Therefore, the sections are compatible if EDCR 2.26 is construed to permit less than ten
days' notice of a summary judgment hearing only if the party opposing the motion will not
suffer prejudice. If the order does shorten the time to less than ten days, then the rule prohibits
service by mail in the Eighth Judicial District.
__________

1
NRCP 83 provides: Each district court . . . may from time to time make and amend rules governing its
practice not inconsistent with these rules . . . .
District.
2
This reading allowed the district court judge to shorten the notice period set forth
in NRCP 56(c) to seven days providing the Cheeks would not suffer prejudice and the notice
would not be served by mail.
As noted above, the Cheeks did suffer prejudice by the shortened notice period. Thus, the
district court judge should have required ten days' notice under both the local rules and the
Nevada Rules of Civil Procedure. Since the Cheeks were only afforded seven days' notice,
service by mail was improper. Thus, the December 26 mailing would not constitute legally
sufficient notice.
The Cheeks also received notice by fax. EDCR 7.76
3
sets forth other acceptable service
methods:
Service . . . must be made by delivering a copy or mailing it . . . . Delivery of a copy .
. . means: handing it to the attorney . . . ; leaving it at the attorney's . . . office with a
clerk or other person in charge thereof; if the office is closed or the person to be served
has no office, leaving it at the attorney's . . . dwelling house . . . with some person of
suitable age and discretion residing therein.
FNF argues that even though EDCR 7.76 does not provide for service by fax, the affidavit
attached to its Motion to Shorten Time specified that notice of an order shortening the time
for the hearing would be served by hand delivery or facsimile to all counsel of record, so by
granting the Motion to Shorten Time, the court impliedly authorized service by facsimile.
4

[Headnote 3]
EDCR 7.76 does not provide for service by fax. Therefore, if the district court did
impliedly authorize service by fax, that authorization was in violation of EDCR 7.76 as well
as NRCP 5(b) and was invalid. There is simply no provision in the rule authorizing ad hoc
additions by district court judges to methods of service specified by the rule.
CONCLUSION
Based upon the foregoing, we conclude that the notice period was legally insufficient and
that service by fax was improper.
__________

2
There is no provision in the NRCP prohibiting service by mail in this situation, thus, this section of EDCR
2.26 is consistent with the NRCP because it is more restrictive.

3
This rule is virtually identical to NRCP 5(b).

4
The order does not specify a proper method of service, but does reference the motion's supporting affidavit.
Consequently, the district court did not have authority to hear FNF's motion for summary
judgment on the scheduled hearing date.
Accordingly, we vacate the district court's order granting summary judgment and remand
for further proceedings consistent with this opinion.
____________
112 Nev. 1255, 1255 (1996) Eversole v. Sunrise Villas Homeowners
WILLIAM EVERSOLE, Appellant, v. SUNRISE VILLAS VIII HOMEOWNERS
ASSOCIATION, a Nevada Corporation, Respondent.
No. 26472
October 22, 1996 925 P.2d 505
Appeal from an order of the district court awarding attorney fees to respondent in a suit for
injunctive and declaratory relief, damages and attorney fees. Eighth Judicial District Court,
Clark County; Joseph T. Bonaventure, Judge.
Homeowners association brought action against association members for injunctive relief
to enjoin members from acting as directors of association. The district court entered judgment
in favor of association and ordered one individual defendant to pay attorney fees. Defendant
appealed. The supreme court held that association's bylaws permitted 40 percent of
association to call special meeting to elect new officers when president and secretary refused
to take such action.
Kerr & Associates and Craig Burr, Las Vegas, for Appellant.
Deaner, Deaner, Scann, Curtas & Malan, Las Vegas, for Respondent.
1. Associations.
Bylaws of homeowners association permitted 40 percent of association to call special meeting to elect new officers when president
and secretary refused to take such action as required by bylaws, pursuant to provision in bylaws stating that special meetings may be
called by the President and Secretary . . . or by members representing at least 40 percent of the voting power, even though notice and
meeting were not done by president and secretary, as required by bylaws.
2. Contracts.
Contractual provisions should be harmonized whenever possible and construed to reach reasonable solution.
3. Costs.
Defendant who lost at district court level could not be assessed attorney fees, based on district court's prior clear indication that
attorney fees and costs would not be assessed against any of the individual defendants as long as
defendants took no further action in case.
ney fees and costs would not be assessed against any of the individual defendants as long as defendants took no further action in case.
Defendant did file answer after court's indication, but plaintiff made it impossible for defendant to take no action by serving defendant
with notice of intent to default.
OPINION
Per Curiam:
Pursuant to the bylaws of respondent Sunrise Villas VIII Homeowners Association (the Association), the Association's board of
directors had a duty to hold an annual meeting of the Association's membership for the purpose of electing the Association's board of
directors on December 7, 1993. However, this meeting was not held on the scheduled date. Consequently, appellant William Eversole and
other members of the Association attempted to call a special meeting to elect a new board of directors. Eversole and the other members
secured proxies, which contained requests to hold a special meeting to elect new directors, from forty-one percent of the Association's
membership. A written request to hold a special meeting was then delivered to the Association's president and secretary.
Article I, Sections 8 and 9 of the Association's bylaws provide for the calling and notice of special meetings as follows:
Section 8. SPECIAL MEETINGS, HOW CALLED
Special meetings of the membership for any purpose or purposes may be called by the President or Secretary, upon a request
in writing therefor, stating the purpose or purposes thereof, delivered to the President or Secretary, signed by the President or any
two directors, or by members representing at least forty percent (40%) of the voting power in the corporation, or by resolution of
the directors.
(Emphasis added.)
Section 9. NOTICE OF MEMBERSHIP MEETINGS
Written or printed notice, stating the place and time of the meeting, and the general nature of the business to be considered,
shall be given by the Secretary to each member entitled to vote thereat at his last known post office address, not less than ten (10)
nor more than sixty (60) days before the meeting.
(Emphasis added.) In addition, Article III, Section 4 of the bylaws provides that the secretary shall attend to the giving and serving of all
notices to the members and directors and other notices required by law.
The Association's leadership did not honor the request to call a special meeting. In
response, Eversole and the other members took it upon themselves to give notice to the
membership that a special meeting would be held on February 17, 1994. Eversole reserved
the hall where the meeting was to be held with his personal check. The meeting was held, and
an election was conducted wherein Eversole and the other members were installed as the new
board of directors.
The Association filed a complaint in district court against Eversole and these other
members (the defendants) alleging that they had attempted to oust the Association's board of
directors and had conducted a spurious election in violation of the Association's bylaws. The
Association sought a temporary restraining order, as well as preliminary and permanent
injunctive relief, to enjoin the defendants from acting as directors. The complaint also prayed
for a declaration confirming the composition of the board of directors. Finally, the
Association sought damages, including attorney fees and costs.
Before answers were filed, an in-chambers conference was held. In that conference,
counsel for the defendants and the Association agreed that a new election would be held by a
master and that the status quo would be maintained in the interim. The lower court entered an
order reflecting this agreement.
Pursuant to the court's order, an election was held on March 9, 1994, and the directors
whom the defendants had opposed were retained in office. The district court later confirmed
the results of the election.
A status hearing was subsequently held, and the district judge clearly indicated that he felt
the case was moot. The judge stated that Eversole and the other defendants should not file
answers or take any further action and he would not assess any fees against them. When the
attorney for the Association asked about attorney fees, the district judge indicated he might
assess fees against the Association but not against the individual defendants. In talking to a
defendant other than Eversole, the judge explained:
In other words, if you don't answer this complaint nothing is going to happen to you.
You're not going to have any money taken out of your pocket. Is that correct, Miss
Higbee [attorney for Association]?
And later he told the Association's attorney:
And if you want extra money from Mr. Eversole or this man you better notify them.
I'm not prone to give it to them. I don't want to take money out of your pocket. As long
as you let it lie. But if you keep on filing motions or whatever it is and if they win and
prevail you're going to have to pay. All right?
right? But as of right now I very seriously doubt that I'm going to award them attorney
fees that you have to pay or you have to pay personally. I very seriously doubt I'm going
to do that right now. All right? Even if they file a motion. I'm going to have to give
them some money to be paid out of the Sunrise Villas Association fund, but we'll take
that up at a later time.
About a month thereafter, the Association served the defendants with a notice of intent to
default. Since Eversole's attorney had withdrawn, he retained another attorney who advised
him to file an answer, and that was done. A default was entered against the other defendants.
The Association then filed a motion, with points and authorities, for entry of final
judgment, including attorney fees and costs. Eversole filed opposition and reply points and
authorities thereafter and the Association filed its reply. A hearing on the motion was held.
The district court subsequently entered its findings of fact, conclusions of law and
judgment. The court concluded that the election conducted by the defendants violated the
Association's bylaws and that the Association was entitled to attorney fees under NRS
116.4117. The court ordered Eversole to pay the Association $5,563.20 in attorney fees,
one-half the attorney fees alleged to have been incurred by the Association in prosecuting and
defending the action. The court further adjudged that the Association's claims for injunctive
and declaratory relief had been rendered moot by the new election held by the master.
Eversole later filed a motion to amend the court's findings, conclusions and judgment.
After a hearing, the court denied the motion.
Eversole now appeals the award of attorney fees claiming that the parties' stipulation
incorporated in the lower court's order maintaining the status quo operated to preclude the
district court from determining the impropriety of the special election, the lower court erred
in awarding the Association attorney fees as there were genuine issues of material fact which
required a trial, the lower court was estopped from awarding attorney fees when it induced
Eversole and the other defendants to sit on their rights, and the attorney fees that were
assessed were fatally flawed and should have been adjusted by the lower court.
The Association asks this court to conclude that Eversole's appeal is frivolous and seeks
double costs and attorney fees incurred.
[Headnote 1]
The critical legal issue is whether the bylaws permitted forty percent of the Association to
call a special meeting to elect new officers when the president and secretary refused to
take such action as required by the bylaws.
officers when the president and secretary refused to take such action as required by the
bylaws. The Association bylaws require that the annual meeting be called in December each
year by the president and secretary. The bylaws also provide that special meetings may be
called by the President and Secretary . . . or by members representing at least 40% of the
voting power . . . .
The Association claims that although forty percent of the members called the special
meeting to elect new officers and directors, such notice and meeting were ineffective because
they were not done by the president and secretary. The district court agreed and entered this
conclusion as part of its final judgment.
Several cases have come to a result contrary to the district court and seem to provide a
more reasonable, less legalistic solution to organizational stalemate. In Whipple v. Christie,
141 N.W. 1107 (Minn. 1913), the constitution of a fraternal order provided that its head
executive officer had authority to call special meetings and that the order's scribe was to mail
notice of such meetings to members of the order's council. The executive officer called for a
special meeting, the scribe refused to send out notices of the meeting, and the executive
officer mailed the notices himself. The court considered whether the notice of the call was
valid. The notice complied with the provisions of the constitution, was mailed at the proper
place, within the specified time, and was received by every member of the council; [t]he
only defect that may be pointed to is that the Imperial Scribe did not send the notice. Id. at
1108. But the scribe had the mere clerical duty to mail the notice of the meeting. Id. The
court concluded that
in giving notice of a business meeting of a corporation or a managing board, minor
irregularities and deviations from the strict letter of its constitution or by-laws,
necessitated by an unanticipated contingency, and which do not defeat or in substance
affect the purpose of the enactments, do not invalidate the meeting held pursuant to
such call.
Id. at 1109. The court rejected the argument that the executive officer's only remedy was to
seek a court order, reasoning that
the business and conduct of corporations should not be hampered and interrupted by
some willful refusal of an officer to perform a mere clerical duty imposed on him. If
there be such refusal, and the duty is to all intents and purposes as well performed by
some other officer of the corporation, its business should not be at a standstill unless
some good reason exists therefor. A resort to mandamus to compel a recalcitrant
official to perform a ministerial act is at best a slow process, because of the right of
appeal.
Id.; see also Talton v. Behncke, 199 F.2d 471, 474 (7th Cir. 1952) (Defendant's plea that the
meeting should have been called by the president is of no avail, for, having been asked to call
it and having refused and having attempted to prevent the directors from attending, he has
effectually barred himself from questioning the effectiveness of the call by other authorized
officers under the Constitution and By-Laws.); Cullum v. Board of Education of North
Bergen Tp., 104 A.2d 641, 644 (N.J. 1954) (where a board of education rule required the
board secretary to call a special meeting upon the request of three board members, the board
members had the clear right to perform the ministerial act of serving the notice when the
secretary was unavailable; [t]he vital thing was not the presence of the secretary's signature
but the service of the notice in due and reasonable time).
[Headnote 2]
Permitting a substantial minority to call a special meeting when the elected officers or
directors cannot or will not act is a safety provision empowering a substantial minority to
bring an issue before the Association or take necessary action. There is no reason why a
special vote called by forty percent
1
of the members cannot be used to call an annual
meeting that was the responsibility of the president and secretary to call. Requiring the
minority to go to court to compel the president and secretary to call the special meeting when
a specific remedy is already provided in the bylaws seems a waste of precious Association
and judicial resources and to exalt form over substance. Contractual provisions should be
harmonized whenever possible, Royal Indem. Co. v. Special Serv., 82 Nev. 148, 151, 413
P.2d 500, 502 (1966), and construed to reach a reasonable solution. Fisher Properties v.
Arden-Mayfair, Inc., 726 P.2d 8, 15 (Wash. 1986). If forty percent did indeed call the special
meeting, it was valid and done pursuant to the bylaws of the Association.
[Headnote 3]
It is also perplexing why Eversole was assessed attorney fees when the district court gave a
clear indication that attorney fees and costs would not be assessed against any of the
individual defendants, but rather against the Association, as long as the defendants took no
further action in the case. The Association made it impossible for Eversole to do this
because it served him with a notice of intent to default, and his attorney properly advised
him to file an answer.
__________

1
This percentage is much higher than that now permitted by the Legislature. NRS 116.3108(1) provides that
special meetings of a unit-owners' association may be called by units' owners having 20 percent, or any lower
percentage specified in the bylaws, of the votes in the association. (Emphasis added.) Apparently, Sunrise
Villas pre-existed enactment of NRS Chapter 116 so this provision does not apply to this case. See NRS
116.1201, 116.1204.
made it impossible for Eversole to do this because it served him with a notice of intent to
default, and his attorney properly advised him to file an answer. This action was followed by
the Association's motion for final judgment and attorney fees. Eversole opposed the
Association's motion for final judgment, but contrary to its prior indication, the district court
entered judgment against the defendants and assessed Eversole half the attorney fees of
$11,126.40.
Just as the Association began the controversy by failing to call the annual meeting, the
Association's attorneys forced Eversole to act when the district court had indicated it wanted
the opposite conduct from Eversole.
CONCLUSION
When the secretary and president of the Association failed to discharge their
responsibilities to call an annual meeting, Eversole and the other homeowners were
empowered, pursuant to the bylaws, to call a special meeting for that purpose. Since Eversole
acted properly and should have been the prevailing party in this litigation, no attorney fees or
costs should have been assessed against him. Any attorney fees are the responsibility of the
Association to pay. Accordingly, we reverse the judgment of the district court and remand
this case for entry of judgment in Eversole's favor.
____________
112 Nev. 1261, 1261 (1996) White v. State
SEAN DEANDRE WHITE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25516
November 7, 1996 926 P.2d 291
Appeal from a judgment of conviction, pursuant to a jury trial, of one count each of
conspiracy to commit murder, murder with the use of a deadly weapon, conspiracy to commit
robbery, and attempted robbery with the use of a deadly weapon. Eighth Judicial District
Court, Clark County; Addeliar D. Guy, Judge.
The supreme court, Springer, J., held that: (1) defendant, who was firmly identified by
three eyewitnesses, was not entitled to present expert testimony on certain psychological
factors relating to reliability of eyewitness identification, and (2) there was no abuse of
discretion in not setting aside jury's verdict in guilt phase because of remarks reported to have
been made by juror during penalty deliberations.
Affirmed.
112 Nev. 1261, 1262 (1996) White v. State
Rose, J., dissented.
Woodburn & Wedge and James William Erbeck, Las Vegas, for Appellant.
James Tufteland, Chief Deputy District Attorney, Robert Langford, Deputy District Attorney,
1. Criminal Law.
Murder defendant who was identified by three eyewitnesses was not entitled to present expert testimony on certain psychological
factors relating to reliability of eyewitness identification, given the firm identification of defendant by the three witnesses, who gave
similar descriptions.
2. Criminal Law.
Remarks reportedly made by juror during penalty deliberations, likening defendant to a gorilla, a baboon, a native tribesman, did
not require that jury's verdict in guilt phase be set aside.
OPINION
Sean White stands convicted of murder with use of a deadly weapon, conspiracy to commit murder, conspiracy to commit robbery and
attempted robbery with the use of a deadly weapon. Three witnesses identified White as the man who shot and killed a man in the course of
a robbery in a Las Vegas parking garage. From all appearances, it was not necessary for White to kill his robbery victim in order to carry
out the robbery; and this crime comprises a particularly atrocious example of arbitrary, uncalled-for cold-blooded murder.
[Headnote 1]
White's first claim of error is that the district court refused to admit expert testimony on certain psychological factors relating to
reliability of eyewitness identification. Although the dissenting justice believes that White was prejudiced by reason of the jury's not
receiving opinion evidence on such psychological phenomena as unconscious transference, we conclude, given the firm identification of
White by three witnesses, that White received a fair trial.
It is true, as stated in the dissent, that expert testimony may assist the trier of fact in some cases; but the trial judge was in the best
position to judge whether or not the jury was in need of this kind of assistance.
112 Nev. 1261, 1263 (1996) White v. State
this kind of assistance. It is also true that in Echavarria v. State, 108 Nev. 734, 839 P.2d 589
(1992), we reversed a conviction because of the trial court's rejection of expert testimony of
psychological evidence relating to identification, holding that there was considerable doubt
about the reliability of the State's primary identification witness against [the defendant]. Id.
at 746, 839 P.2d at 597. Here there is no such considerable doubt. Three witnesses gave
similar descriptions of White as the assailant, two of whom identified White in a physical
line-up. The victim's wife testified that she saw White shoot her husband. A hotel employee
heard a gunshot and saw a man he identified as White run from the parking lot and into a
white car. A hotel security guard saw a man she identified as White go into the parking lot
and later heard a gunshot coming from the parking lot. This witness saw White leave the
parking lot and get into a white car. This case is very much different from Echavarria.
Decisions regarding the admissibility of expert testimony lie within the discretion of the trial
court. Emmons v. State, 107 Nev. 53, 56, 807 P.2d 718, 720 (1991). We decline to disturb
the verdict in this appeal.
[Headnote 2]
White's other claim of error is that the trial judge should have declared a mistrial because
of certain remarks reported to have been made by a juror during penalty deliberations.
1
After
this was reported to the court, the jury took no further action with regard to the penalty and
was dissolved without having arrived at a penalty verdict. The question is, then, whether the
jury's verdict in the guilt phase should be set aside by reason of the remarks attributed to this
juror during deliberations in the penalty phase.
The trial judge, a highly respected jurist of Afro-American descent, ruled that those
comments, while unfortunate, do not in an of itself indicate the defendant himself did not
have a fair trial as far as I can see at this time. Although, as the dissent points out, a
defendant is constitutionally entitled to an impartial jury, we are unwilling to say that Judge
Addeliar Guy, who was present and was much more aware of the circumstances relating to
this incident than are the members of this appellate tribunal, abused his discretion in refusing
to grant a new trial. We therefore affirm the judgment of the trial court.
__________

1
One juror reported to the court that during penalty deliberations one of the other jurors had likened the
defendant to a gorilla, a baboon, a native tribesman who is not dangerous to his own people but would club or
murder anyone outside of his territory.
112 Nev. 1261, 1264 (1996) White v. State
I respectfully dissent for two reasons. First, the majority misconstrues and misapplies the
holding in Echavarria v. State, 108 Nev. 734, 839 P.2d 589 (1992). Second, the blatant racial
prejudice of some jurors denied White the right to an unbiased jury.
The first issue is whether the district court exceeded its discretion when it disallowed
expert testimony regarding factors that affect the reliability of eyewitness identification.
White offered the expert testimony of Dr. Steven Clark, a cognitive psychologist. Dr. Clark
would have explained how certain factors affect eyewitness identification, such as duration of
observation, expectations, stress, cross-racial identification, identification procedures,
weapon focus, and the forgetting curve. The district court refused to admit Dr. Clark's
testimony.
The criteria for permitting expert testimony on the reliability of eyewitness identification
include: (1) a qualified expert; (2) a proper subject; (3) conformity to a generally accepted
explanatory theory; and (4) comparison of probative value to prejudicial effect. Id. at 746,
839 P.2d at 597. Clearly, all four elements were present in this case. First, Dr. Clark is a
qualified expert. He is an assistant professor of psychology at the University of California,
Riverside. As a cognitive psychologist, Dr. Clark researches the mental processes that
underlie decision making, memory, recognition, and attention. Dr. Clark has published twelve
articles on identification and memory and has testified as an expert in cognitive psychology
on five occasions. The State's suggestion that Dr. Clark is not a qualified expert borders on
ridiculous.
Second, testimony on the reliability of eyewitness identification is a proper subject of
expert testimony. Expert testimony is permissible if it will assist the trier of fact to
understand the evidence or to determine a fact in issue. NRS 50.275. NRS 50.275 seeks to
provide the trier of fact a resource for ascertaining truth in relevant areas outside the ken of
ordinary laity. Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987). An average
juror would not be familiar with all the variables regarding identification and memory about
which Dr. Clark intended to testify.
Dr. Clark planned to testify about unconscious transference, which occurs when a witness
observes a person in one context and later believes that she or he saw the same person under
entirely different circumstances. The Arizona Supreme Court reasoned that trial courts should
admit expert testimony regarding unconscious transference because a court cannot assume
that the average juror would be aware of unconscious transference. State v. Chapple, 660
P.2d 120S, 1221 {Ariz. 19S3).
112 Nev. 1261, 1265 (1996) White v. State
State v. Chapple, 660 P.2d 1208, 1221 (Ariz. 1983). Dr. Clark explained that if a witness
were to see a suspect's photograph several times prior to identifying the suspect, the witness
might be identifying the suspect based on the photograph rather than a memory of the original
event. Unconscious transference is especially relevant to the immediate case because all three
witnesses saw either White's photograph or White himself in another context before they
identified him.
Dr. Clark would have testified about a phenomenon known as the forgetting curve.
Research reveals that witnesses tend to forget most of the observed information very soon
after the event and then the [f]orgetting . . . tends to level out. Id. at 1220. An average juror
is not familiar with this phenomenon, and trial courts should not deprive jurors of information
about it. Id. Considering that the witnesses in the present case at first failed to identify White
but later identified him as the perpetrator, the jury would have benefited from information
regarding the forgetting curve.
Dr. Clark intended to testify about the effect of stress upon eyewitness identification.
People typically believe that witnesses recall stressful situations more accurately than normal
occurrences. Id. at 1221. Research shows, however, that witnesses are less likely to observe
accurately under stressful circumstances and that stress distorts a witness's ability to recall an
event clearly. Id. The effect of stress was a relevant consideration in regard to Vicki
Davenport, who was present when her husband was shot, and Marie Mesday, the security
guard at the hotel parking lot, who testified that her adrenaline was going when the
shooting occurred.
Dr. Clark would have testified on the inaccuracy of cross-racial identifications. Studies
show that own-race/other-race recognition rates vary by as much as thirty percent, and one
study found that people who tried to identify persons of another race made four times as many
errors as those who tried to identify members of their own race. Sheri Lynn Johnson,
Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934, 942-43 (1984).
The California Supreme Court concluded that the difficulties underlying cross-racial
identification are counterintuitive and that few jurors realize the pervasive and even
paradoxical nature of [the] own-race effect.' People v. McDonald, 690 P.2d 709, 720-21
(Cal. 1984). The information on cross-racial identification is sufficiently beyond common
experience that expert testimony on own race/other race recognition rates may assist the
trier of fact. Id. at 721. Dr. Clark's testimony on cross-racial identification was particularly
appropriate in the immediate case because the shooter was African-American, while Vicki
Davenport and Mesday are not.
112 Nev. 1261, 1266 (1996) White v. State
ate in the immediate case because the shooter was African-American, while Vicki Davenport
and Mesday are not.
1

Third, the State concedes that the theories on which Dr. Clark would have testified were
generally accepted explanatory theories. Finally, Dr. Clark's testimony is clearly more
probative than prejudicial. White's conviction was based entirely upon eyewitness
identifications that are all to some degree problematic. Therefore, the district court should
have considered the danger of wrongful conviction inherent in reliance upon such evidence.
As Judge McGowan noted, mistaken eyewitness identification presents conceivably the
greatest single threat to the achievement of our ideal that no innocent [person] shall be
punished. Carl McGowan, Constitutional Interpretation and Criminal Identification, 12
Wm. & Mary L. Rev. 235, 238 (1970).
Courts have long recognized that eyewitness testimony is highly unreliable. United States
v. Wade, 388 U.S. 218, 228 (1967) (The vagaries of eyewitness identification are
well-known; the annals of criminal law are rife with instances of mistaken identification);
Chapple, 660 P.2d at 1222 (admitting expert testimony is worthwhile in a case where one of
the key factual disputes to be resolved involved the accuracy of the eyewitness
identification). Psychologists have gathered empirical evidence proving the inaccuracy of
eyewitness identification. An increasing number of courts, including this court, have
responded to this growing body of psychological evidence by directing trial courts to admit
expert testimony on the factors affecting the reliability of eyewitness testimony.
2
See
Echavarria v. State, 108 Nev. 734, 839 P.2d 589 (1992); Chapple, 660 P.2d at 1208;
McDonald, 690 P.2d at 709; Campbell v. People, 814 P.2d 1 (Colo. 1991). When a trial court
refuses to admit such expert testimony, it deprives jurors of the benefit of scientific research
on eyewitness testimony [and] forces them to search for the truth without full knowledge
and opportunity to evaluate the strength of the evidence.
__________

1
The record does not reveal explicitly the racial identity of Vicki Davenport and Mesday, but it is evident that
they are not black. The State argued that cross-racial testimony is irrelevant to the third eyewitness's testimony
because he is an African American, but did not make this argument in regard to Vicki Davenport or Mesday.

2
Generally, courts rely upon a Note published in Stanford Law Review. See Note, Did Your Eyes Deceive
You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969
(1977) (Did Your Eyes Deceive You?). The district court explained that it relied on Did Your Eyes Deceive
You? to reject Dr. Clark's testimony. Contrary to the district judge's ruling, however, Did Your Eyes Deceive
You? concludes that expert psychological testimony should be presented to aid the trier of fact in evaluating
identification evidence, and . . . that such testimony is not only admissible but necessary for a competent defense
and serves as a valuable safeguard against conviction of the innocent. Id. at 971.
112 Nev. 1261, 1267 (1996) White v. State
jurors of the benefit of scientific research on eyewitness testimony [and] forces them to
search for the truth without full knowledge and opportunity to evaluate the strength of
the evidence. In short, this deprivation prevents jurors from having the best possible
degree of understanding of the subject toward which the law of evidence strives.
Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of
Eyewitness Identification, 29 Stan. L. Rev. 969, 1017-18 (1977).
In Echavarria, this court concluded that because of the conflict in evidence concerning
the pre-arrest identification of the appellant, the district court erred in excluding expert
testimony regarding eyewitness identification. Echavarria, 108 Nev. at 747, 839 P.2d at 598.
In the instant case, the pre-trial identifications of White give cause for some doubt. Less than
three weeks after the murder, Vicki Davenport attended a physical lineup and identified
another African-American man as the shooter, not White. At the preliminary hearing, she
identified White as the shooter but admitted that by that time she had seen his photograph in
the newspaper at least five times. Mesday, the security guard, did not identify White at a
photo lineup less than three weeks after the murder. The next day at a physical lineup, she
identified White, saying he looks a little like him, but I'm not sure. At trial, Mesday
identified White as the man she saw in the parking garage. The identification by Bobby Lide,
the third eyewitness, was similarly problematic. On the day after the murder, Lide failed at a
photo lineup to identify White as the man he saw running from the parking garage. A couple
of weeks later, he did identify White in a photo lineup and a physical lineup, after he had seen
White's photo in the newspaper.
In Echavarria, this court concluded that eyewitness identifications aside, the remaining
evidence linking [the appellant] to the crime was clearly of a qualitative magnitude that
renders harmless the error in excluding the expert testimony on eyewitness identification. Id.
The remaining evidence included the following: The appellant took the morning of the crime
off from work and lied to police about his whereabouts. His fingerprints were found on
license plates connected to the crime. Items linking him to the crime were found in his
apartment and a dumpster outside his apartment. The sum of this evidence established beyond
a reasonable doubt the appellant's guilt. Id.
In the instant case, no such evidence remains after setting aside the eyewitness
identifications. Absent the identifications, White was not linked to the crime. Therefore, the
district court's error in excluding expert testimony regarding such identification was not
harmless under Echavarria, and the case should be remanded for a new trial.
112 Nev. 1261, 1268 (1996) White v. State
in excluding expert testimony regarding such identification was not harmless under
Echavarria, and the case should be remanded for a new trial.
The second issue is juror bias, regarding which the district court held a hearing. One juror
testified that during deliberations other jurors compared White to:
a gorilla, a baboon, a native tribesman who is not dangerous to his own people but
would club or murder anyone outside of his territory, an amoeba, an organism whose
only ability is to reproduce, a predator, a non-human . . . .
The district court appeared to believe the juror's testimony credible but found the
statements were not racial. On appeal, White argues that the court erred and he did not have a
fair and impartial jury. I agree.
The constitutional guarantee of a fair trial includes the right to an impartial jury of the
State and district wherein the crime shall have been committed. U.S. Const. amend. VI.
Interpreting the Sixth Amendment, courts hold that the risk of racial prejudice in some
circumstances requires questioning concerning such prejudice upon the defendant's request.
See Rosales-Lopez v. United States, 451 U.S. 182, 188-89 (1980). In these cases, courts have
focused on whether a likelihood exists that jurors hold racial bias, rather than whether bias
may have affected the trial's outcome. See, e.g., Turner v. Murray, 476 U.S. 28, 36-37 (1986).
The use of blatantly racist speech by non-black jurors about a black defendant reflects
those jurors' racist predispositions and denied White his Sixth Amendment right to an
impartial jury. See Tobias v. Smith, 468 F. Supp. 1287, 1289 (W.D.N.Y. 1979) (juror's
introduction of racial issues into jury deliberation violated Sixth Amendment right to an
impartial jury). Several of the jurors' expressions epitomize racist stereotypes of African
Americans and evidence deep racial prejudice. For example, the native tribesman image
evokes a degrading caricature of African Americans as backward and unworthy to be equal
members of our society. The animal imagery dehumanizes African Americans and makes it
easier to justify racial subordination. Sheri Lynn Johnson, Racial Imagery in Criminal Cases,
67 Tul. L. Rev. 1739, 1753-54 (1993) (discussing how racist stereotypes often portray
African Americans as animals).
Racial prejudice distorts and fatally compromises the impartiality of the jury as a
fact-finder. Miller v. North Carolina, 583 F.2d 701, 708 (4th Cir. 1978). Racial prejudice . .
. color[s] the jury's perception of every event at trial and render[s] unreliable its assessment of
all evidence in the case. Developments in the LawRace and the Criminal Process, 101
Harv. L. Rev. 1472, 1595 {19SS).
112 Nev. 1261, 1269 (1996) White v. State
1595 (1988). Since racial prejudice distorts all the jury's observations and judgments, a court
cannot isolate the prejudicial error to determine its effect on the jury. Accordingly, harmless
error analysis is inappropriate. See Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078
(1993). I would remand this case for a new trial.
The district court should have admitted Dr. Clark's testimony regarding factors that affect
the reliability of eyewitness testimony. Furthermore, White was denied his Sixth Amendment
right to an unbiased jury because the record clearly shows that some jurors were racially
prejudiced. I agree with the majority that this was an unnecessary, atrocious crime and the
perpetrator deserves, at the very least, the punishment assessed by the jury and the court.
However, I want to be confident that the correct person was identified by the eyewitnesses as
the perpetrator and that the jury's conclusion was not the product of racial prejudice. For the
reasons stated, I do not have such confidence and therefore would prefer to reverse this
conviction and remand this case to the district court for a new trial.
____________
112 Nev. 1269, 1269 (1996) Smith v. State
CAROL JANET SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26260
November 7, 1996 927 P.2d 14
Appeal from a judgment of conviction of abuse or neglect of a child. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
The supreme court, Rose, J., held that: (1) statutes prohibiting abuse or neglect of child
were not unconstitutionally vague as applied to defendant; (2) statute making it unlawful for
person to willfully fail to provide medical care necessary for well-being of child when person
is able to do so was not unconstitutionally vague as applied to defendant; and (3) sufficient
evidence existed to support conviction.
Affirmed.
and James Tufteland, Chief Deputy District Attorney, and Brian Kochevar, Deputy District
112 Nev. 1269, 1270 (1996) Smith v. State
District Attorney, and Brian Kochevar, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Statutes challenged for vagueness are evaluated on as-applied basis where First Amendment interests are not implicated. U.S.
Const. amend. 1.
2. Infants.
Phrase placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect, as
used in statutes authorizing criminal penalties for person who willfully places child in such situation or who is responsible for safety of
child and permits or allows child to be placed in such situation, was not unconstitutionally vague as applied to defendant. State proved
that defendant's live-in boyfriend inflicted 33 bruises on her child's chest and abdomen, boyfriend told defendant that he had beaten
child, defendant saw bruises and knew child was listless and sick all day and had temperature of 106 degrees, and that defendant
refused to take child to hospital because she feared that authorities would take child from her. NRS 200.508(1)(a), (b).
3. Infants.
Statute providing that person commits abuse or neglect of child if person willfully fails to provide medical care necessary for
well-being of child when person is able to do so was not unconstitutionally vague as applied to defendant in prosecution for neglect or
abuse of child. State proved that defendant's live-in boyfriend beat defendant's child, defendant knew of beating and knew that child
was lethargic, vomited repeatedly, did not eat or drink, and did not go to bathroom after beating, defendant knew child had temperature
of 106 degrees, that boyfriend had suggested taking child to doctor, but that defendant refused for fear that doctor would take child
away from her because of bruises on child's body. NRS 200.508(3)(a), 432B.140.
4. Criminal Law.
Defendant waived any argument that sufficient evidence did not exist to support her conviction for neglect of child, in her appeal
from judgment entered on jury's general verdict form that did not specify whether it found defendant guilty of abuse or neglect of child,
where defendant only alleged that sufficient evidence did not exist to support conviction of abuse. NRS 200.508(1)(a), (b).
5. Infants.
Sufficient evidence supported defendant's conviction for neglect of child where defendant knew that her live-in boyfriend had
beaten her child, following beating, child was lethargic, vomited repeatedly, did not eat or drink, and did not go to bathroom, child had
temperature of 106 degrees, boyfriend suggested taking child to doctor, but defendant refused for fear that doctor would take child
away from her because of bruises on child's body. NRS 200.508(1)(b).
6. Infants.
Sufficient evidence supported defendant's conviction for abuse of child where defendant's live-in boyfriend told defendant that he
had hit her child, defendant then went back to sleep and let boyfriend take care of child for entire night, defendant saw bruises on
child's body on following day, and still let boyfriend take care of child on that day. NRS 200.508(1)(a).
112 Nev. 1269, 1271 (1996) Smith v. State
OPINION
Appellant Carol Smith was tried and convicted on one count of neglect or abuse of a child.
Smith argues that the statutes she was convicted under were unconstitutionally vague and
further that there was insufficient evidence to convict her.
We conclude that the statutes which Smith was convicted under were not
unconstitutionally vague and that sufficient evidence existed to convict Smith.
FACTS
This case involves child abuse which resulted in the death of Smith's two and one-half year
old son, Glenn Anderson Elam (Andy). The actual abuse was inflicted by Smith's boyfriend,
Donald Wayne Harrell, who later pleaded guilty to murdering Andy, was sentenced to life in
prison with the possibility of parole, and testified against Smith at Smith's trial.
Smith and Andy lived in Las Vegas with Harrell, who was unemployed and took care of
Andy full time while Smith worked as a security guard at Nellis Air Force Base. Harrell
testified that on January 16, 1992, at approximately 10:00 a.m., he became angry with Andy
for wetting his pants while sitting on the floor. Harrell told Andy to get up and go to the
bathroom, but Andy refused and threw a small plastic dinosaur at Harrell. Harrell testified
that he remembered losing control and hitting Andy, but he did not remember how many
times he hit Andy, where he hit Andy, or any other details of the beating.
Harrell testified that after the beating, Andy showed no immediate signs that he was
injured, except that he became quiet, did not move around, did not want to take a nap, and did
not eat anything. Harrell testified that Andy vomited a clear phlegm-like liquid once or twice
prior to Smith returning home from work at approximately 3:00 p.m.
When Smith returned home, Harrell told her that Andy was sick and had vomited, and
Andy vomited again shortly after Smith returned home from work. Harrell did not, however,
inform Smith that he had hit Andy earlier that morning. That night at approximately 6:00 p.m.
Harrell left the house for several hours, during which time he purchased medicine to control
Andy's vomiting. Harrell testified that when he returned home at approximately 9:00 p.m. he
woke Smith and told her that the reason that Andy was vomiting was because he had lost his
temper and hit him.
112 Nev. 1269, 1272 (1996) Smith v. State
temper and hit him. Harrell further testified that Smith told him that he needed to get
professional help as soon as possible to control his temper and that Andy had vomited one
time while Harrell was gone. After telling Harrell these things, Smith went back to sleep.
Smith, however, testified that this conversation never took place, that she had no knowledge
that Andy's illness was caused from Harrell's earlier beating, and that if she knew that Harrell
had hit Andy she would have called 911 immediately.
After the conversation with Smith, Harrell checked on Andy, found him awake and lying
in bed in a fetal position, and noticed that Andy had vomited again, although this time the
vomit was light brown in color. Harrell testified that he told Smith that Andy had vomited
again and that he was going to clean Andy and take care of him. Smith stayed in bed all night
while Harrell tended to Andy, who vomited a darker brown substance several times
throughout the night.
The next morning, January 17, Harrell went to bed at approximately 6:30 or 7:00 a.m., and
Smith took care of Andy. Harrell testified that he heard the bath water running, as Smith was
getting ready to bathe Andy, and heard Smith crying because she had taken Andy's clothes off
and had seen the noticeable bruises on Andy's stomach. Harrell stated that Smith told him that
he had better not hit Andy again. Harrell stated that he asked Smith if they should take Andy
to the doctor and Smith replied that they could not take him to the doctor because the doctor
would take Andy away from her because of the bruises. Smith, however, testified that she
never gave Andy a bath that morning, that she did not see any bruises on Andy's body, but
that she did see a bruise on Andy's head which he had incurred a week prior when he fell and
bumped his head on a table.
Harrell testified that during the day of January 17 Andy was lethargic, did not sleep or eat,
did not use the bathroom, and vomited several more times. Smith had given Andy some of
the medicine in the morning to control his vomiting, and the medicine apparently had some
slight positive effects. At approximately 1:00 p.m., Harrell purchased children's castor oil for
Andy because Andy had some firmness to his stomach and had not urinated or had a bowel
movement for approximately twenty-four hours. The medicine was administered to Andy but
had no noticeable effect. Harrell testified that during the day he again recommended taking
Andy to the doctor and again Smith told him that she would not do so because the doctor
would take him away from her because of the bruising. Smith, however, testified that during
the day of January 17 she called her mother several times to seek advice on how to treat
Andy. Smith testified that after talking to her mother she kept a close eye on Andy and made
sure he drank plenty of fluids.
112 Nev. 1269, 1273 (1996) Smith v. State
he drank plenty of fluids. Smith stated that Andy drank fluids all day and never complained of
any stomach pains, that Andy had urinated several times during the day, each time with
Harrell taking Andy to the bathroom, and also that Andy ate some soup and potato chips
during the day.
Harrell testified that at approximately 8:00 p.m. he took Andy's temperature which read
one hundred and one degrees. Either Harrell or Smith gave Andy some Children's Tylenol at
that point. At approximately 10:00 or 10:30 p.m. Harrell took Andy's temperature again, and
it read one hundred six degrees. Harrell stated that he told Smith that Andy needed to go to
the doctor immediately but Smith told him that the thermometer was wrong and that she did
not trust it. Harrell testified that they gave Andy more Children's Tylenol and Smith went to
bed. At approximately 11:30 p.m., Harrell gave Andy a glass of water which Andy drank.
Shortly thereafter, Harrell heard Andy making a gurgling sound and saw Andy's eyes roll
back into his head, and Andy became unconscious. Harrell then called 911, but Andy was
dead by the time the paramedics arrived. Smith, however, testified that she put Andy to bed
around 8:00 p.m., that she never took his temperature, that she went to bed immediately after
putting Andy to bed, and that she was awakened sometime later in the night by Harrell who
told her that something was wrong with Andy.
Dr. Robert Jordan conducted the autopsy on Andy and testified that an external
examination of Andy's body revealed multiple bruises of recent origin on Andy's head, chest,
abdomen, and lower extremities. Dr. Jordan counted thirty-three bruises on Andy's abdomen
and chest alone and testified that many of the bruises on Andy's body were consistent with
being received from the beating one or two days prior to death. Dr. Jordan testified that an
internal examination revealed a ruptured duodenum
1
and blood-tinged fluid in the abdominal
cavity and that Andy had died as a result of the ruptured duodenum which was caused by a
blunt trauma.
Dr. Troy Reyna, a pediatric surgeon, reviewed Dr. Jordan's autopsy report and concurred
with Dr. Jordan's conclusions. Dr. Reyna also testified that the symptoms a child would
experience as a result of a ruptured duodenum were exactly those that Harrell had stated
Andy experiencedabdominal discomfort, abdominal distention (hardening of the abdomen),
clamminess of the skin, vomiting which progressed from clear to dark brown, listlessness,
lack of thirst or hunger, desire to lie still because movement causes pain, and inability to
urinate.
__________

1
The duodenum is the first portion of the small intestine that comes off the stomach. It is located in the center
of the abdomen, about at the level of the navel.
112 Nev. 1269, 1274 (1996) Smith v. State
ness, lack of thirst or hunger, desire to lie still because movement causes pain, and inability to
urinate.
Additionally, Dr. Reyna stated that the autopsy report indicated that there were thirty-three
bruises on Andy's abdomen and chest and numerous bruises on other parts of Andy's body.
After examining autopsy photographs, Dr. Reyna stated that he believed that a bruise on
Andy's left hip was incurred approximately four or five days prior to death, a bruise on Andy's
right hip was incurred approximately seven to ten days prior to death, a welt on the same hip
was incurred approximately one or two days prior to death, multiple bruises on Andy's back
and buttocks were incurred two to ten days prior to death, multiple bruises on Andy's right
thigh were incurred from the day of death to seven to ten days prior to death, multiple bruises
on Andy's face and head were incurred three days to ten days prior to death, and the
thirty-three bruises on Andy's abdomen and chest were incurred approximately two to seven
days prior to death.
Smith was charged by way of information with two separate counts of child abuse and
neglect. Count I stated that Smith
did willfully, unlawfully, feloniously, and knowingly, being a person responsible for the
safety and welfare of a child under the age of 18 years, to wit: GLENN ANDERSON
ELAM, being approximately 2 years old, allow GLENN ANDERSON ELAM to be
placed in a situation where he suffered unjustifiable physical pain, and substantial
bodily harm, to wit: by having knowledge that her child, GLENN ANDERSON ELAM
was being physically abused by her live-in boyfriend, Donald Wayne Harrell, and yet
took no action to prevent such abuse and as a result her child GLENN ANDERSON
ELAM suffered such physical abuse that he died as a result of injuries inflicted by
Donald Wayne Harrell.
Count II stated that Smith
did willfully, unlawfully, feloniously, and knowingly, being a person responsible for the
safety and welfare of a child under the age of 18 years, to wit: GLENN ANDERSON
ELAM, being approximately 2 years old, allow and permit GLENN ANDERSON
ELAM to be placed in a situation where he suffered unjustifiable physical pain, and
substantial bodily harm, to wit: by having knowledge that her child, GLENN
ANDERSON ELAM was sick and injured and yet willfully failed and delayed in
providing medical care to him.
While Smith was charged with two separate counts, the jury instruction set forth the
counts in the alternative, suggesting that the jury could find Smith guilty of either Count I or
Count II.
112 Nev. 1269, 1275 (1996) Smith v. State
the jury could find Smith guilty of either Count I or Count II. Further, the jury returned a
general verdict form which did not specify upon which count it found Smith guilty, but
indicated only that it found Smith guilty of abuse or neglect of a child. Smith was sentenced
to a term of five years in prison.
DISCUSSION
Whether NRS 200.508(1)(a) and (b) are unconstitutionally vague
Smith was charged pursuant to NRS 200.508(1)(a) and (b) and argues that this statute is
unconstitutionally vague because people would not know that they are subject to criminal
liability under it until they are arrested and tried. Specifically, Smith argues that the phrase in
NRS 200.508(1)(a) and (b) placed in a situation where the child may suffer physical pain or
mental suffering as the result of abuse or neglect does not establish any objective criteria
which ordinary, reasonable people would be able to evaluate in order to determine if they are
subject to the provisions of the statute, and therefore that the statute violates the due process
clause of the Fourteenth Amendment of the United States Constitution. See Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972) (It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not clearly defined.).
The relevant portions of NRS 200.508 state that criminal liability will be found for
1. A person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable
physical pain or mental suffering as a result of abuse or neglect or to be placed in a
situation where the child may suffer physical pain or mental suffering as the result of
abuse or neglect; or
(b) Is responsible for the safety or welfare of a child and who permits or allows that
child to suffer unjustifiable physical pain or mental suffering as a result of abuse or
neglect or to be placed in a situation where the child may suffer physical pain or mental
suffering as the result of abuse or neglect.
NRS 200.508(3) defines several of the terms used in NRS 200.508(1)(a) and (b) as follows:
As used in this section:
(a) Abuse or neglect means . . . negligent treatment or maltreatment of a child under
the age of 18 years, as set forth in NRS . . . 432B.140 . . ., under circumstances which indicate
that the child's health or welfare is harmed or threatened with harm.
112 Nev. 1269, 1276 (1996) Smith v. State
(b) Allow means to do nothing to prevent or stop the abuse or neglect of a child in
circumstances where the person knows or has reason to know that the child is abused or
neglected.
(c) Permit means permission that a reasonable person would not grant and which
amounts to a neglect of responsibility attending the care, custody and control of a minor
child.
[Headnote 1]
Statutes are presumed to be valid, and the burden is on the challenger to make a clear
showing of their unconstitutionality. Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079,
1081 (1991). Furthermore, statutes challenged for vagueness are evaluated on an as-applied
basis where, as here, first amendment interests are not implicated. Lyons v. State, 105 Nev.
317, 320, 775 P.2d 219, 221 (1989); see also Maynard v. Cartwright, 486 U.S. 356, 361
(1988). Additionally, persons are deemed to have been given fair notice of a criminal
offense if the statutorily proscribed conduct has been described with sufficient clarity to be
understood by individuals of ordinary intelligence. Lyons, 105 Nev. at 320, 775 P.2d at 221;
see also U.S. v. Harriss, 347 U.S. 612, 617 (1954). Therefore, Smith has the burden to prove
that NRS 200.508 did not provide her with adequate notice that her conduct was proscribed
by law.
[Headnote 2]
We conclude that as applied to Smith's case, the phrase placed in a situation where the
child may suffer physical pain or mental suffering as the result of abuse or neglect in NRS
200.508(1)(a) and (b) is not vague because all of the terms in that phrase are adequately
defined such that Smith was provided with notice that her conduct was proscribed by law.
Initially, NRS 200.508(1)(a) requires a willful act as a prerequisite for finding guilt, and
this court has defined willful act as an act done intentionally, not accidentally. Batt v. State,
111 Nev. 1127, 1131 n.3, 901 P.2d 664, 666 n.3 (1995). NRS 200.508(1)(b) does not contain
a willful act requirement, but when read as a whole does require knowledge or intent on the
part of the actor as a prerequisite to finding guilt. The statutory definitions of allow and
permit provided in NRS 200.508(3)(b) and (c) are not drafted as clearly as would be
preferred, but they do establish with sufficient clarity the state of mind required to find guilt
under NRS 200.508(1). The definition of allow makes clear that to violate the statute, a
person must know or [have] reason to know of abuse or neglect. The definition of permit
indicates that a violator must act in a way that "a reasonable person" would not.
112 Nev. 1269, 1277 (1996) Smith v. State
that a reasonable person would not. We read these provisions in conjunction and conclude
that both definitions establish the same requirement: a person acts unreasonably and is
therefore criminally liable if she knows or has reason to know of abuse or neglect yet permits
or allows the child to be subject to it. This requirement of knowledge and reasonableness
adequately defines the state of mind required for a finding of guilt and effectively precludes
punishment for inadvertent or ignorant acts.
Additionally, the situation which the child must be placed in is clearly defined by the
remainder of the statute which states that the child must be placed in a situation where it
may suffer physical pain or mental suffering as the result of abuse or neglect. The terms
abuse and neglect are clearly defined in NRS 200.508(3)(a). The phrase physical pain or
mental suffering has previously been challenged as being vague, and this court found the
phrase constitutional in that case. Bludsworth v. State, 98 Nev. 289, 292-93, 646 P.2d 558,
560 (1982). In Bludsworth, this court stated that NRS 200.508 was constitutional as applied
to the appellants because the state alleged and proved that the appellants hit the victim in the
head or allowed the victim to be hit in the head, and in light of the evidence of violence and
force used against the victim, it was untenable for the appellants to claim that they could not
reasonably have known that their conduct was criminal. Id. at 293, 646 P.2d at 560.
In Smith's case, we conclude that it was untenable for her to claim that she could not
reasonably have known that she criminally allowed her child to suffer physical pain or mental
suffering. The State proved that Harrell inflicted thirty-three bruises on Andy's chest and
abdomen on January 16 and further proved that Andy's body had numerous bruises which
predated the beating inflicted by Harrell. The State also proved that Harrell told Smith that he
beat Andy, that Smith saw the bruises on Andy's body when she gave Andy a bath, that Smith
knew that Andy was listless and sick all day and had a temperature of one hundred and six
degrees, and that Smith several times refused to take Andy to the hospital because she feared
that authorities would take Andy from her because of the bruises.
Based on this information, Smith could not properly be heard to say that she was unaware
that her behavior was criminal and that she did not realize that she had placed Andy in a
situation where he suffered physical pain or mental suffering as a result of abuse or neglect.
2

__________

2
We note that California's child abuse and neglect statute, codified at California Penal Code 273a, is very
similar to NRS 200.508. The California statute states in relevant part:
(1) Any person who, under circumstances or conditions likely to
112 Nev. 1269, 1278 (1996) Smith v. State
Whether NRS 432B.140 is unconstitutionally vague in that it lacks specificity to inform an
individual as to what physical condition of a child mandates intervention or treatment by a
medical professional
Smith contends that NRS 432B.140, which is incorporated into NRS 200.508(3)(a), is
unconstitutionally vague because it fails to inform an individual as to what physical condition
of a child mandates intervention by a medical professional.
NRS 432B.140 states:
Negligent treatment or maltreatment of a child occurs if a child has been abandoned,
is without proper care, control and supervision or lacks the subsistence, education,
shelter, medical care or other care necessary for the well-being of the child because of
the faults or habits of the person responsible for his welfare or his neglect or refusal to
provide them when able to do so.
Therefore, pursuant to NRS 432B.140 as incorporated into NRS 200.508(3), a person
commits abuse or neglect if the person willfully fails to provide medical care necessary for
the well-being of the child when the person is able to do so. Smith's argument is that NRS
432B.140 does not delineate factors to determine when home remedies are appropriate and
when treatment by a medical professional is required.
[Headnote 3]
The void for vagueness analysis employed above applies to this analysis, and we conclude
that as applied to this case, NRS 432B.140 was specific enough to inform Smith as to what
physical condition of Andy mandated treatment by a physician as opposed to treatment via
home remedy. The State proved that Harrell beat Andy to the point of inflicting thirty-three
bruises on Andy's abdomen and chest, that Smith knew of the beating and knew that Andy
was lethargic, vomited repeatedly, did not eat or drink, and did not go to the bathroom after
the beating. The State also proved that Smith knew Andy had a temperature of one hundred
six degrees, that Harrell had several times suggested taking Andy to the doctor, and that
Smith refused to take Andy to the doctor for fear that the doctor would take Andy away
from her because of the bruises.
__________
produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes
or permits the person or health of such child to be injured, or willfully causes or permits such child to be
placed in such situation that its person or health is endangered, is punishable by imprisonment . . . .
Several California decisions have concluded that California Penal Code 273a(1) is not void for vagueness. See
People v. Smith, 678 P.2d 886 (Cal. 1984); People v. Harris, 48 Cal. Rptr. 677 (Ct. App. 1966); People v.
Beaugez, 43 Cal. Rptr. 28 (Ct. App. 1965).
112 Nev. 1269, 1279 (1996) Smith v. State
taking Andy to the doctor, and that Smith refused to take Andy to the doctor for fear that the
doctor would take Andy away from her because of the bruises. Given this abundance of
information, we conclude that it was untenable for Smith to argue that she was unaware that
her willful failure to obtain medical treatment for Andy was criminal pursuant to NRS
432B.140.
Smith argued that Dr. Reyna testified that the severity of Andy's injuries would not
manifest themselves immediately, would display symptoms similar to the flu in the first
twenty-four hour period, and would rapidly escalate afterwards. Smith argued that because
the symptoms of the injury mimicked the flu, it was absurd to require her to exercise
informed medical judgment to determine that what appeared to be a normal childhood illness
was in reality a life-threatening internal injury. We conclude that this argument would be
valid if Smith had been unaware of the beating that Harrell had inflicted on Andy. In such a
situation, Smith would likely not have been guilty of negligent treatment or maltreatment, as
codified in NRS 432B.140 and incorporated into NRS 200.508, because Smith would not
have willfully withheld needed medical treatment from Andy. However, the State proved that
Smith knew of the beatings, that she therefore could have ascertained that Andy's injuries
were the result of that beating and not the result of the flu, and that she willfully withheld
treatment from Andy because she feared that the doctor would take Andy from her.
Whether the evidence adduced at trial was sufficient to sustain defendant's conviction
[Headnotes 4, 5]
Smith argues that because the jury was given a general verdict form, it was not possible to
determine whether the jury convicted her on Count I, Count II, or on both. Smith argues that
her conviction should be reversed if the jury convicted her only on Count I because such a
conviction is against the manifest weight of the evidence.
3

__________

3
Because Smith has only alleged that sufficient evidence did not exist to support a conviction on Count I, we
conclude that she has waived any argument that sufficient evidence did not exist to support Count II. Even if
Smith had argued that sufficient evidence did not exist to support her conviction on Count II, her argument
would have been meritless. Our discussion, supra, pp. 10, 12-13, adequately proves that substantial evidence
existed to support Smith's conviction on Count II. We note that it appears that Smith was convicted on Count II
because nearly all of the prosecution's witnesses, evidence, and closing arguments focused on the issue of
whether Smith willfully failed to obtain medical treatment for Andy. However, because there is no way to
confirm whether the jury convicted Smith on Count I or Count II, Smith's arguments regarding Count I must still
be addressed.
112 Nev. 1269, 1280 (1996) Smith v. State
Where there is substantial evidence to support the jury's verdict, it will not be disturbed
on appeal. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). The standard of
review for sufficiency of evidence upon appeal is whether the jury, acting reasonably, could
have been convinced of the defendant's guilt beyond a reasonable doubt. Id.
Smith argues that in order to be convicted under Count I, the prosecution was required to
prove that she knew Harrell was abusing Andy, that she took no action to prevent such abuse,
and that Andy died as a result of such abuse. Smith testified at trial that in August 1992,
Harrell spanked Andy on his buttocks for wetting his pants and that the spanking bruised
Andy's buttocks. Smith further testified that she told Harrell never to spank Andy again and
that Harrell abided by Smith's request. Smith argues to this court that no other evidence was
adduced at trial to prove that Smith knew that Harrell ever abused Andy and therefore any
conviction pursuant to Count I must fail.
[Headnote 6]
We conclude that there was sufficient evidence to convict Smith on Count I because a jury,
acting reasonably, could have been convinced of Smith's guilt beyond a reasonable doubt.
Initially, we note that the fact that Harrell had spanked Andy in August 1992 was almost
certainly not sufficient to put Smith on notice that Harrell was abusing Andy. However, the
State proved that Harrell told Smith that he had hit Andy on January 16, and the evidence
showed that after Harrell told this information to Smith, Smith went back to sleep and let
Harrell take care of Andy for the entire night. Additionally, Smith let Harrell take care of
Andy on January 17 after she saw the bruises on Andy's body. These were situations in which
Smith knew that Harrell had abused Andy, and by letting Harrell continue to provide
unsupervised care for Andy, Smith placed Andy in a situation where he suffered or may have
suffered physical pain and mental suffering as the result of abuse or neglect in violation of
NRS 200.508(1)(a).
CONCLUSION
We conclude that NRS 200.508(1)(a) and (b) and NRS 432B.140 are not
unconstitutionally vague as applied to the facts of this case. Furthermore, we conclude that
substantial evidence existed to convict Smith of either Count I or Count II of the information.
Accordingly we affirm Smith's conviction on one count of abuse or neglect of a child.
112 Nev. 1269, 1281 (1996) Smith v. State
Smith's conviction is void on its face. The majority points out that Smith was charged by
way of information with two separate counts of abuse and neglect. The two counts in the
information contain different allegations of fact and could have resulted in Smith's conviction
of either or both of the charges. The majority concedes that under the evidence the jury
could find Smith guilty of either Count I or Count II.
The majority recognizes that Smith argues that because the jury was given a general
verdict form, it was not possible to determine whether the jury convicted her on Count I or
Count II. Smith would very much like to know whether she was convicted on Count I or
Count II, or both Count I and Count II. The general guilty verdict submitted by the jury does
not give her this information and neither does the judgment of conviction.
1

The majority notes that it appears that Smith was convicted on Count II, because the
prosecution seemed to focus[] on this charge. (My emphasis.) It appears to me that, quite
possibly, Smith was convicted of the charges contained in Count I rather than Count II. The
majority blithely concedes that there is no way to confirm whether the jury convicted Smith
on Count I or Count II. The obvious problem here is that this court does not know whether
Smith stands convicted of the crime charged under Count I or the crime charged in Count II;
and, more importantly, Smith herself does not know why she is in prison.
In its conclusion the majority proclaims, without explanation, that substantial evidence
existed to convict Smith of either Count I or Count II of the information. (My emphasis.) The
majority seems to be saying that it does not make any difference which one of the counts that
the jury had in mind when it voted to convict Smith. In my opinion, it makes a world of
difference.
__________

1
As I read the record, there is really no judgment of conviction entered in this case. All there is in the written
Judgment of Conviction is the following:
THEREFORE, the Clerk of the above entitled Court is hereby directed to enter this Judgment of
Conviction as part of the record in the above entitled matter.
It is not at all clear what the district judge had in mind in referring to this Judgment of Conviction. There is no
reference in the supposed judgment to either count of the indictment. The recitals in the written judgment refer
only to Smith's having been found guilty of the crime of CHILD ABUSE AND NEGLECT WITH
SUBSTANTIAL BODILY HARM (Felony), with no reference to the charges. I do not know; and, obviously,
Smith does not know what Smith was actually convicted of.
112 Nev. 1269, 1282 (1996) Smith v. State
I am unwilling to vote to affirm a conviction when I do not know which count in an
information the judgment of conviction is based upon; therefore, I dissent.
____________
112 Nev. 1282, 1282 (1996) Lofgren v. Lofgren
LINDA LOFGREN, Appellant/Cross-Respondent, v. BENJAMIN STEVEN LOFGREN,
No. 27244
November 7, 1996 926 P.2d 296
Appeal from a decree of divorce. Eighth Judicial District Court, Clark County; Robert
Gaston, Judge.
In divorce proceeding, the district court awarded wife greater share of community
property, and husband appealed. The supreme court, Springer, J., held that term compelling
reasons, as used in statute providing for equal division of community property absent
compelling reasons for unequal division, included financial misconduct.
Affirmed.
Gubler, Peters & Mark, Las Vegas, for Appellant/Cross-Respondent.
Kurt D. Anderson, Las Vegas, for Respondent/Cross-Appellant.
1. Divorce.
Unequal disposition of community property was warranted by former husband's financial misconduct, which included use of
community funds for his own purposes in violation of court's preliminary injunction, and by his waste or hiding of community funds.
NRS 125.150.
2. Divorce.
Term compelling reasons, as used in statute providing for equal division of community property absent compelling reasons for
unequal division, included financial misconduct. NRS 125.150.
OPINION
[Headnote 1]
Appellant Linda Lofgren raises several points on appeal which we conclude are meritless. On the other hand, her husband, Benjamin
Lofgren, in his cross-appeal, raises significant issues relating to disposition of community property under the
1993 amendment of NRS 125.150.
Benjamin Lofgren, in his cross-appeal, raises significant issues relating to disposition of
community property under the 1993 amendment of NRS 125.150. Mr. Lofgren, the husband
in this divorce action, claims that the district court erred in making an unequal disposition of
community property under NRS 125.150. We conclude that the district court decided
correctly; and we affirm its judgment.
[Headnote 2]
In deciding the cross-appeal in this case, we interpret for the first time language in the
1993 amendment to NRS 125.150, which requires that courts make an equal disposition of
community property rather than the equitable division required prior to 1993. The 1993
amendment to NRS 125.150 requires an equal disposition of community property, unless the
court finds compelling reasons for not dividing the property equally and sets forth in
writing the reasons for making an unequal disposition.
When the legislature changed property division from equitable to equal, it deleted the
equitable factors that formerly had to be applied by the courts in making a just and
equitable disposition of community property; but, in making these changes, the legislature
did not define the compelling reasons exception to equal division. As a consequence, trial
judges were left to their own devices in deciding what reasons should compel the unequal
division of property. Although the trial judge in this case did not undertake to define the term
compelling reasons, as such, he did correctly apply the law to the facts when he ruled, in
effect, that the financial misconduct of the husband provided compelling reasons for an
unequal division of the community property.
The financial misconduct in this case is found in the husband's having transferred funds to
his father and in his having used community funds for his own purposes, all in violation of
the court's preliminary injunction. The trial court made a finding that the husband violated the
joint preliminary injunction which prohibited the husband from [t]ransferring, encumbering,
concealing, selling or otherwise disposing of any of the community property of the parties.
The trial court further found the husband wasted and/or secreted most of the $80,000.00
transferred to him by his father in order to avoid sharing that money with his wife. The
trial court was justified in making an unequal disposition of community property under these
circumstances; and we hold that if community property is lost, expended or destroyed through
the intentional misconduct of one spouse, the court may consider such misconduct as a
compelling reason for making an unequal disposition of community property and may
appropriately augment the other spouse's share of the remaining community property.
The financial misconduct in this case, according to trial court findings, is found in the
husband's violation of the restraining order and in his wasting or secreting of community
funds. The trial court relied upon two different aspects of the husband's misconduct in
adjudicating the unequal disposition.
The first aspect relates to the husband's transfer, in defiance of the injunction, of
$100,000.00 in community funds to his father. The court found that the father paid back some
of this money but that there remained an unaccounted-for $39,800.00, which the court
concluded was either wasted or secreted by the husband.
The second aspect of financial misconduct relates to a number of transfers of community
funds that were made by the husband in violation of the preliminary injunction. These are:
1. Transfer of $17,000.00 of community funds for the husband's personal use.
2. Use of $11,200.00 of community funds to improve the husband's house on Bruce
Street.
3. Use of $10,000.00 in community funds to furnish the husband's house on Bruce
Street.
4. Transfer of $13,000.00 of community funds to his father on May 17, 1993.
5. Misappropriation of $5,000.00 of community funds paid to his children without
court consent.
TOTAL: $56,200.00.
When the mentioned $39,800.00 is added to the $56,200.00, there is a total of $96,000.00.
It would appear, then, that the trial court could properly augment the wife's share of the
community property by one-half of this $96,000.00, or $48,000.00.
The district court's findings of fact will not be set aside unless those findings are clearly
erroneous. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 25, 866 P.2d 1138, 1139
(1994) (citation omitted). The trial court's findings relative to the husband's transfers of
community property in violation of the injunction and his waste or secreting of assets are
certainly not clearly erroneous and must be accepted by this court as being true.
Based on the trial court's findings, we note that the total amount of community property
disposed of in this case was $992,573.00. Under an equal disposition, each party would have
received $496,286.50. By the award in this case, the wife was given $540,393.00, some
$44,106.50 more than a one-half share, rather than the $48,000.00 mentioned above. The
$3,893.50 difference is to the cross-appellant husband's advantage and need not be considered
in deciding his cross-appeal. The trial court has correctly augmented the wife's share of the
community property in an amount very close to one-half of the value of the property that
was improperly expended or misused by the husband.
of the property that was improperly expended or misused by the husband.
The parties to this appeal, as appellant and cross-appellant, have presented a number of
other questions for review. We have considered these and found them to be without merit.
The judgment of the trial court is affirmed.
Steffen, C. J., and Young, Shearing, and Rose, JJ., concur.
____________
112 Nev. 1285, 1285 (1996) Kuykendall v. State
RONALD DALE KUYKENDALL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24796
November 7, 1996 926 P.2d 781
Appeal from an order of the district court denying appellant's motion for jail time credit.
Fifth Judicial District Court, Mineral County; John P. Davis, Judge.
Defendant was convicted in the district court of manufacturing a controlled substance, and
his motion for jail time credit was denied. Defendant appealed. The supreme court held that:
(1) defendant was entitled to sentence credit for 81 days of presentence confinement resulting
from his financial inability to post bail, and (2) defendant was entitled to sentencing credit for
81 days he spent in presentence confinement before bail was posted.
Donald Green, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; and Brian T. Kunzi, District
Attorney, Mineral County, for Respondent.
1. Criminal Law.
Defendant was entitled to sentence credit for 81 days of presentence confinement resulting from his financial inability to post bail.
NRS 176.055(1).
2. Criminal Law.
Defendant was entitled to sentencing credit for 81 days he spent in presentence confinement before bail was posted. NRS
176.055(1).
3. Criminal Law.
Purpose of statute governing sentencing credit for terms of presentence confinement is to assure that all time served is credited
towards defendant's ultimate sentence. NRS 176.055(1).
OPINION
Per Curiam:
Appellant Ronald Dale Kuykendall entered a plea of guilty to one count of manufacturing
a controlled substance, NRS 453.321. Pursuant to former NRS 174.065(3), appellant was
entitled to withdraw his plea if the district court sentenced appellant to more than the
recommended maximum of ten years under the plea agreement. At the sentencing hearing on
December 2, 1992, the district court stated that it disagreed with the handling of the case and
with the recommended sentence. The district court stated that it was bound by the plea
agreement, but would specifically refuse to grant credit for any of appellant's presentence
confinement, and sentenced appellant to ten years in the Nevada State Prison. Subsequent to
the entry of the judgment of conviction, appellant filed a motion to amend the judgment of
conviction to allow credit for presentence jail time in the amount of 162 days. The district
court summarily denied the motion by order filed July 7, 1993. This appeal followed.
DISCUSSION
[Headnote 1]
Appellant contends that he was financially unable to post the bail set by the district court,
and that the district court abused its discretion by denying him credit for the time served
before sentencing. The parties do not dispute that appellant was held without bail from June
23, 1992, to September 12, 1992, a total of 81 days. After bail was set at $150,000, appellant
did not post bail. Appellant remained confined from September 12, 1992, until sentencing on
December 2, 1992, an additional 81 days.
NRS 176.055(1) provides, in pertinent part: [W]henever a sentence of imprisonment in
the county jail or state prison is imposed, the court may order that credit be allowed against
the duration of the sentence . . . . This court has held that NRS 176.055
should also be construed to provide credit for confinement . . . where (1) bail has been
set for the defendant and (2) the defendant was financially unable to post the bail. . . .
To provide otherwise would tolerate invidious discrimination based upon a defendant's
financial status.
Anglin v. State, 90 Nev. 287, 292, 525 P.2d 34, 37 (1974).
As in Anglin, appellant's claim for the 81 days of presentence incarceration due to
appellant's financial inability to post bail is based upon the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution.
Amendment of the United States Constitution. See Tate v. Short, 401 U.S. 395, 398-99
(1971), and Williams v. Illinois, 399 U.S. 235, 243-44 (1970). We conclude that appellant is
entitled to credit for the 81 days of presentence confinement resulting from appellant's
financial inability to post bail, and the district court erred in denying appellant's motion for
that amount of credit.
[Headnote 2]
We further conclude that the district court erred in denying appellant's motion for credit
for the remaining 81 days of presentence confinement without bail. It is true that the language
of NRS 176.055(1) and Anglin indicates that the award of credit for such presentence
confinement is discretionary. Further, even in those states where credit for presentence
incarceration is mandated by statute, some courts have specifically limited mandatory credit
to presentence incarceration due to indigency. See, e.g., Milladge v. State, 900 P.2d 1156,
1160-61 (Wyo. 1995). However, the California Supreme Court has reached the opposite
conclusion, holding that the statute requiring mandatory credit applies to all felony
convictions, not only to those in which presentence incarceration occurred as a result of
indigency. In Re Kapperman, 522 P.2d 657, 661 (Cal. 1974). Under the California Supreme
Court's analysis, the purpose of the statute is to ensure that all time served is credited towards
a defendant's ultimate sentence. People v. Riolo, 655 P.2d 723, 726 (Cal. 1983). The
Massachusetts Court of Appeals has also concluded that mandatory credit under the
applicable statute must be granted regardless of whether bail was set. Commonwealth v.
Grant, 317 N.E.2d 484, 487 (Mass. Ct. App. 1974). The First Circuit Court of Appeals upheld
Grant, stating that [t]here is nothing whatever irrational about a general rule that pretrial
detention time should be credited as a matter of course . . . . Beauchamp v. Murphy, 37 F.3d
700, 707 (1st Cir. 1994).
[Headnote 3]
Despite the discretionary language of NRS 176.055(1), we agree with the reasoning of the
California Supreme Court that the purpose of the statute is to ensure that all time served is
credited towards a defendant's ultimate sentence. Accordingly, we conclude that the district
court erred in denying appellant's motion for jail time credit for his 81 days of presentence
confinement without bail.
For the foregoing reasons, we reverse the district court's order denying appellant's motion
for jail time credit and remand this case to the district court with instructions to grant
appellant jail time credit for 162 days of presentence confinement.
____________
112 Nev. 1288, 1288 (1996) Meek v. State
JOHN NATHAN MEEK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26070
December 20, 1996 930 P.2d 1104
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of sexual
assault. Eighth Judicial District Court, Clark County; A. William Maupin, Judge.
1

The supreme court held that: (1) failure to hold Petrocelli hearing concerning evidence of
defendant's attack on another woman four years earlier constituted reversible error; (2) record
did not establish clear and convincing proof of prior attack; (3) court had duty to sua sponte
give limiting instruction on use of prior bad act evidence; (4) reference to witness
intimidation was improper; (5) finding defense counsel in contempt and fining him before
jury was error; and (6) reasonable doubt instruction that included term substantial was
erroneous but did not require reversal.
Parsons & FitzSimmons, Las Vegas, for Appellant.
and James Tufteland, Chief Deputy District Attorney, and John P. Lukens, Deputy District
1. Criminal Law.
Evidence that rape defendant had attacked another woman four years earlier was improperly admitted where court failed to hold
Petrocelli hearing and court never determined whether admission of evidence was justified, whether it was proven by clear and
convincing evidence, or whether danger of unfair prejudice substantially outweighed its probative value. Failure to hold full Petrocelli
hearing outside presence of jury was reversible error. NRS 48.045(2).
2. Criminal Law.
Evidence that rape defendant had attacked another woman four years earlier was not admissible as charged crime was not similar
in nature to prior bad act. In charged crime defendant met woman on bus, persuaded her to join him at his home and sexually assaulted
her using intimidation but not violence, and in prior bad act defendant followed woman late at night by stealth to her home, kidnapped
her, and subjected her to direct and brutal violence. NRS 48.045(2).
3. Criminal Law.
Clear and convincing proof of prior attack by rape defendant of another woman four years earlier was not established where,
despite prior victim's report to police, defendant was never charged with crime.
__________

1
Judge Thomas A. Foley presided at the trial. Judge A. William Maupin sentenced Meek.
112 Nev. 1288, 1289 (1996) Meek v. State
While clear and convincing evidence can be provided by victim's testimony alone, prior woman's statement to police was apparently
insufficient evidence to establish probable cause.
4. Criminal Law.
District court's failure to instruct jury regarding proper limited use of prior bad acts evidence was plain error, despite defendant's
failure to request instruction. District court had duty to give limited instruction sua sponte.
5. Criminal Law.
Prosecutor's reference to witness intimidation before jury when he was unable to demonstrate that defendant was source of
intimidation was improper and district court's failure to advise jury to disregard it was error. Although single reference was not
reversible error, district court should have granted defendant's request and admonished jury to disregard it.
6. Criminal Law.
Finding defense counsel in contempt and fining him before jury was error; even though court admonished both counsel before
jury, only defense counsel was found in contempt and fined.
7. Criminal Law.
Jury instruction on reasonable doubt, that stated reasonable doubt must be actual and substantial, was erroneous but did not
constitute substantive or constitutional error requiring reversal. Term substantial was no longer included in definition of reasonable
doubt. NRS 175.211.
OPINION
Per Curiam:
Appellant John Nathan Meek met a young woman on a bus one morning in May 1993. The woman accompanied Meek to his trailer to
have a beer. She alleged that Meek forced her to have repeated sex with him before she screamed for help and was able to escape. Meek
claimed that she had sex with him willingly. At Meek's trial, the State introduced evidence that Meek had attacked another woman four
years earlier. At the conclusion of the trial, Meek was convicted of two counts of sexual assault and acquitted of seven other sexual assault
counts and one count of kidnapping. We conclude that in addition to other errors during the trial, evidence of the prior bad act was
improperly admitted. We therefore reverse and remand this case to the district court.
FACTS
The State presented the following evidence. On May 9, 1993, the young woman left her work early at a day care center in Las Vegas,
around 8:30 a.m. She caught the bus to go to her mother's house in Henderson. At one point, she changed seats so that she could look out
the window and sat next to Meek. The two began to talk. He suggested that they have a beer, and the woman agreed.
112 Nev. 1288, 1290 (1996) Meek v. State
agreed. They agreed to go to Meek's place. They got off the bus, walked to a nearby R.V.
park, and entered Meek's trailer. Meek served the woman a beer, and they sat on a couch.
Meek then forced her to have sex with him, though she told him she did not want to. The
woman testified to a total of nine incidents of vaginal and anal intercourse, cunnilingus, and
fellatio between Meek and herself, performed without her consent and against her will over a
span of more than two hours. She did not scream for help because she was scared. She was
five feet tall and weighed about 110 pounds. Meek was five feet eleven inches tall, weighed
about 200 pounds, and was muscular at the time in question. Meek told the woman that it was
her fault, that this is what women were for. He told her that he was lonely because he still
loved his ex-girlfriend. He also told her that he was doing crazy things because he had used
drugs the night before for the first time and that he did not mean to hurt her.
Meek went to the bathroom once, about ten feet away from the couch, but the woman did
not try to leave. At one point when Meek was in the kitchen, also about ten feet away, she
tried to run out the door but was unable to unlock the door before Meek grabbed her. He then
forced her to have intercourse again.
Meek went through the woman's purse and recognized her boyfriend from a photo. Meek's
brother had sold a car to the boyfriend. When Meek went to the bathroom another time, the
woman got the trailer door open and began screaming. Meek grabbed her, threw her on the
couch, and said, You just killed your boyfriend. Someone then knocked at the door. The
woman pulled back a curtain and started hitting the window and screaming. She saw an older
lady outside and told her to call the police. Meek pulled her back and told her again that she
had just killed her boyfriend. He then opened the door and looked out. The woman jumped
out of the trailer door, fell down, and ran off. She ended up at the trailer of the lady who had
knocked earlier. Meek came to the door of that trailer twice, yelling abusively at the young
woman. The second time he left her shoe and underwear on the porch. The police showed up
shortly thereafter. An officer testified that after his arrest, Meek admitted having sex with the
woman but claimed that it was consensual.
The State called as a witness a man who lived at the R.V. park at the time in question.
During his testimony, the prosecutor asked the witness if anyone had said anything to him
that day. The witness said that comments had been made out in the hallway. Defense counsel
objected, and the district judge asked the purpose of the question. The prosecutor replied,
Purpose was he was intimidated by another witness. The judge excused the jury. The
prosecutor stated that Meek's brothers had referred to the witness and other witnesses as
"do-gooders" in an intimidating manner.
112 Nev. 1288, 1291 (1996) Meek v. State
the witness and other witnesses as do-gooders in an intimidating manner. He also said that
it was without defense counsel's knowledge. The judge stated that the matter should not have
been brought up in front of the jury. Defense counsel said that he objected and that the jury
should be admonished to disregard the remark. The jury returned, no admonishment was
given, and the trial continued.
Meek presented evidence that he and the young woman had met before May 9, 1993, and
that she had phoned him several times. Meek's testimony regarding the incident at his trailer
tracked the woman's in general outline but differed in the following crucial ways. He claimed
that the woman willingly had sex with him. She got angry, however, when he received a
phone call from another woman around 1:00 p.m. and hung up the phone while Meek was
still talking. He then got angry at her and threatened to tell her boyfriend what they had done.
She said that she would tell everyone that Meek had raped her. The woman then spit on him
and slapped and kicked him. He threw her on the couch and told her he would beat her up.
She then started screaming for help, and he threw her out.
On cross-examination of Meek, the prosecutor persisted, despite objections sustained by
the district judge, in questioning Meek as to whether he had ever sexually assaulted a certain
other woman. The judge finally excused the jury. The judge found it reprehensible that the
prosecutor was attempting to show unrelated past bad acts of Meek in this manner. The
prosecutor maintained that the incidents were strikingly similar and that the other woman
would so testify. The judge called the jury back in and, over objection by defense counsel,
allowed the prosecutor to represent that he would show that Meek had acted on prior
occasions in a manner almost identical to the charged crime. The judge then sustained the
defense objection to the line of questioning and said he would also not allow the State to
establish the evidence outside the presence of the jury. Nevertheless, when the defense rested
shortly thereafter, the State immediately called the other woman as a rebuttal witness, and the
judge allowed her to testify over Meek's objection.
The other woman testified that in April 1989, Meek had secretly followed her home one
night after she had come in contact with him at a club. After she parked in her driveway, he
forced his way into the driver's seat of her car and forced her into the passenger seat.
Although she fought with him, he hit her, took her keys, and drove off with her in the car. As
Meek drove, he called her a bitch and threatened to have sex with her and then kill her. He
continued to beat her as well. At one point he told her that he was on drugs and that he was
very lonely because his girlfriend had left him.
112 Nev. 1288, 1292 (1996) Meek v. State
girlfriend had left him. Finally, the woman persuaded Meek to drive back to her home. As
they pulled in, her boyfriend also arrived. She got out of the car and told her boyfriend that
Meek was trying to kill her. Meek told the boyfriend that she had taken Meek home from the
club with her. The boyfriend and Meek fought. She filed a police report, but Meek was never
charged.
In closing argument, the prosecutor, Mr. Lukens, objected to a statement made by defense
counsel, Mr. Buchanan.
MR. LUKENS: Your Honor. Excuse me, your Honor.
MR. BUCHANAN: Judge, I object to Mr. Lukens. He had his thing and I am going
to tell mine.
THE COURT: One at a
MR. LUKENS: Your Honor
MR. BUCHANAN: He said everything he had to
THE COURT: You raise your voice again, I will cite you for contempt. You sit
down for a minute Messrs. Lukens and Buchanan and you listen.
I am running this court, and I will rule in the matter which I have been trained today.
You will not tell me again how I am to run this courtroom.
At this moment I assess you a fine of $100 as contempt of the court. It will increase
by the second if need be.
Do I make myself clear?
MR. BUCHANAN: Clear, your Honor.
THE COURT: Then get up there and act like a gentlemen and don't you ever shout
again.
The jury found Meek guilty of two counts of sexual assault and acquitted him of seven
counts of sexual assault and one count of kidnapping. The district court sentenced Meek on
each of the two counts to life in prison with the possibility of parole, the sentences to run
consecutively.
DISCUSSION
Prior bad act evidence
[Headnote 1]
The evidence that Meek had attacked another woman four years before was improperly
admitted. NRS 48.045(2) provides that evidence of other crimes, wrongs, or acts is not
admissible as character evidence but may be admissible to prove matters such as motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[B]efore admitting evidence of a prior bad act or collateral offense, the district court
must conduct a hearing outside the presence of the jury. During the hearing, the state
must present its justification for admission of the evidence . . . [and] prove by clear
and convincing evidence that the defendant committed the collateral offense, and
the district court must weigh the probative value of the proffered evidence against
its prejudicial effect.
112 Nev. 1288, 1293 (1996) Meek v. State
present its justification for admission of the evidence . . . [and] prove by clear and
convincing evidence that the defendant committed the collateral offense, and the
district court must weigh the probative value of the proffered evidence against its
prejudicial effect.
Armstrong v. State, 110 Nev. 1322, 1323, 885 P.2d 600, 600-01 (1994) (citing Petrocelli v.
State, 101 Nev. 46, 692 P.2d 503 (1985)). Armstrong added the requirement that a Petrocelli
hearing be conducted on the record to allow this court a meaningful opportunity to review the
district court's exercise of discretion. Armstrong, 110 Nev. at 1323-24, 885 P.2d at 601.
Here, the district court erred in failing to hold a hearing which met the Petrocelli
requirements. A hearing of a sort occurred, but part of it was improperly held in the presence
of the jury. Moreover, the court never determined whether admission of the evidence was
justified, whether it was proven by clear and convincing evidence, or whether the danger of
unfair prejudice substantially outweighed its probative value.
The State cites Felder v. State, 107 Nev. 237, 810 P.2d 755, cert. denied, 502 U.S. 878
(1991), for the proposition that failure to hold a Petrocelli hearing is not necessarily
reversible error. In Felder, the trial court recognized that the prosecutor acted improperly in
offering evidence of prior bad acts without requesting a hearing first, but it expressly ruled
that the evidence was admissible. This court therefore reviewed that ruling for abuse of
discretion and concluded no harmful error occurred. Id. at 241-42, 810 P.2d at 757-58.
Felder is not on point in the instant case because the district court here did not expressly
rule on the admissibility of the evidence, or to the extent that it did, it actually ruled that the
evidence was not admissibleshortly before allowing it to come in anyway. Moreover,
Felder has since been followed by Armstrong. In Armstrong, we concluded that without a
Petrocelli hearing on the record, we were unable to adequately review appellant's contention
that the district court abused its discretion in admitting evidence of other bad acts. Armstrong,
110 Nev. at 1323, 885 P.2d at 601.
Petrocelli has been the law in regard to admission of prior bad act evidence for more than
a decade. The district judge in this case made no attempt to adhere to our directive on this
matter. He permitted the introduction into evidence of a prior bad act without first holding a
hearing to determine if the evidence was admissible. We therefore conclude that the district
court committed reversible error in not holding a full Petrocelli hearing outside the presence
of the jury.
112 Nev. 1288, 1294 (1996) Meek v. State
[Headnote 2]
We further conclude that the evidence in question was not admissible under Petrocelli.
The court never determined whether admission of the evidence was permissible under NRS
48.045(2), whether the prior act was proven by clear and convincing evidence, or whether the
danger of unfair prejudice substantially outweighed its probative value. In regard to the first
consideration, the State argues that the evidence is relevant and admissible because the
charged crime and the alleged incident with the other woman were so similar in nature: both
incidents involved sexual assault or the attempt, Meek met both women by happenstance,
Meek told both that he had recently taken drugs, and he told both that he was lonely and
missed his former girlfriend. The State fails to specify what relevant proof, allowed by NRS
48.045(2), this similarity would establish, but for the purposes of this analysis, we assume
that the State considered it relevant to motive or plan.
The statements that Meek allegedly made to both women regarding his use of drugs and
his missing a girlfriend are similar. However, the prior act and the charged crime were
otherwise fundamentally quite different. The meeting by happenstance is too general a
similarity to deserve much weight, if any. The similarity of the sexual element in both cases is
also quite general. Stated broadly enough, similarities can be shown between many acts. The
question is whether significant similarities remain after the acts are considered in some detail.
In the charged crime, Meek met a woman on a bus in the morning, persuaded her to join him
at his home, and allegedly took advantage of her trust and sexually assaulted her. He was
accused of using intimidation, but not violence. In the alleged prior bad act, Meek followed a
woman late at night by stealth to her home, kidnapped her in her own car, subjected her to
direct and brutal violence, threatened to have sex and kill her, drove with her aimlessly for a
time, and then returned to her home. In view of the differences between these acts, the
similarities between them are insufficient to make the prior act relevant to the charged crime.
[Headnote 3]
Second, it is questionable whether clear and convincing evidence of the prior attack on the
other woman was provided. Despite that woman's report to the police, Meek was never
charged with a crime. In Kimberly v. State, 104 Nev. 336, 757 P.2d 1326 (1988), this court
concluded that the trial court erred in allowing the alleged victim of a prior bad act to testify
on the matter. This court held that a grand jury's refusal to indict based on the alleged prior
victim's testimony is a sufficient reason to disqualify the testimony under the clear and
convincing evidence standard." Id. at 33S, 757 P.2d at 132S.
112 Nev. 1288, 1295 (1996) Meek v. State
standard. Id. at 338, 757 P.2d at 1328. While clear and convincing evidence can be provided
by a victim's testimony alone, Keeney v. State, 109 Nev. 220, 227-29, 850 P.2d 311, 316-17
(1993), the other woman's statement to police was apparently insufficient evidence to
establish probable cause of a crime by Meek. Therefore, we conclude that from the record
before us, clear and convincing proof of the prior attack was not established.
The third consideration is whether the danger of unfair prejudice substantially outweighed
the probative value of the evidence. If the prior act had been admissible for a permissible
purpose and had been shown by clear and convincing evidence, its admission would not have
been unfairly prejudicial. However, since the first two requirements were not met, the
admission of the evidence was harmful error.
[Headnote 4]
Finally, the district court failed to provide jurors with an instruction limiting their use of
the prior act evidence. Meek failed to request any such instruction. The State contends that
the district court has no duty to give limiting instructions sua sponte. However, in Champion
v. State, 87 Nev. 542, 490 P.2d 1056 (1971), this court recognized that a district court does
have such a duty in some cases. In Champion, it was plain and prejudicial error for the trial
court not to give a cautionary jury instruction regarding the evaluation and use of an
addict-informer's testimony, despite defense counsel's failure to request such an instruction.
Id. at 544, 490 P.2d at 1057. It was plain error for the district court here not to instruct the
jury regarding the proper, limited use of the other woman's testimony.
The district court erred in failing to hold a Petrocelli hearing, erred in admitting the
evidence of the prior act, and erred in not giving the jury a limiting instruction regarding
proper use of the evidence.
The accusation of witness intimidation in the presence of the jury
[Headnote 5]
The prosecutor's reference to witness intimidation was improper, and the district court
erred in failing to advise the jury to disregard it.
This court disapproved of prosecutorial references to witness intimidation in Lay v. State,
110 Nev. 1189, 1195-96, 886 P.2d 448, 450-51 (1994). Federal courts have consistently held
that the prosecution's references to, or implications of, witness intimidation by a defendant
are reversible error unless the prosecutor also produces substantial credible evidence that the
defendant was the source of the intimidation. Id. at 1193, 886 P.2d at 450-51.
112 Nev. 1288, 1296 (1996) Meek v. State
The court in Lay noted that the prosecutor never referred to threats or intimidation by the
defendant himself and concluded that the improper references did not constitute reversible
error. Id. at 1193-94, 886 P.2d at 450-51.
In the instant case, the prosecutor acted improperly in referring to witness intimidation
before the jury when he was unable to demonstrate that Meek was the source of the
intimidation. The prosecutor did not claim that Meek was the source, but jurors likely
inferred that his relatives or friends were responsible. Although the single reference made
here was not reversible error, the district court should have granted Meek's request and
admonished the jury to disregard the prosecutor's remark.
Finding defense counsel in contempt and fining him in the presence of the jury
[Headnote 6]
The district court erred in finding Meek's counsel in contempt and fining him before the
jury.
Unquestionably, admonishments to defense counsel are best made outside the jury's
presence. However, a court's contempt citation to a defense attorney in the jury's
presence does not automatically constitute error. Rather, the conduct of the trial as a
whole must be scrutinized to determine whether the defendant was fairly and
impartially tried.
United States v. Baresh, 790 F.2d 392, 402 (5th Cir. 1986) (citations omitted). In Baresh,
after being advised outside of the presence of the jury not to take a particular course of
action, counsel immediately proceeded to contemptuously disregard that order. To that
extent, counsel's conduct implies a planned trial tactic to provoke the district judge and
leads to the inescapable conclusion that counsel hoped to cause the judge to react in
such a manner as to cause error. It would be improper to allow [appellant] to benefit
from such a calculated trial ploy.
Id. Furthermore, the trial court instructed the jury that the fine levied against defense counsel
was not a reflection on the defendant. Id. at 401. See also United States v. Hawley, 768 F.2d
249, 252 (8th Cir. 1985) (though counsel's actions were provocative and warranted contempt
finding, it was clear error to make the finding and have counsel arrested in jury's presence;
however, because of overwhelming evidence of guilt, error was not prejudicial).
The State argues that the trial as a whole was fair and stresses that the district court
admonished both counsel. However, only defense counsel was found in contempt and
fined.
112 Nev. 1288, 1297 (1996) Meek v. State
defense counsel was found in contempt and fined. The district court erred in doing so before
the jury. Unlike the counsel in Baresh, Meek's counsel did not deliberately provoke the court
by disregarding its directive. The record indicates that counsel lost his temper in the heat of
litigation and shouted at opposing counsel. Even if this warranted a finding of contempt and a
fine, the court should have done so without the jury present. A cautionary instruction was also
in order, although Meek apparently did not request one.
The instruction on reasonable doubt
[Headnote 7]
Meek claims that the jury instruction on reasonable doubt was unconstitutional and
violative of NRS 175.211. The instruction stated that to be reasonable a doubt must be
actual and substantial. NRS 175.211(1) defines reasonable doubt and no longer includes the
word substantial. NRS 175.211(2) provides that no other definition of reasonable doubt
may be given to Nevada juries. The instruction given was erroneous, but did not constitute
substantive or constitutional error requiring reversal. Hutchins v. State, 110 Nev. 103, 112,
867 P.2d 1136, 1142 (1994).
CONCLUSION
The prosecutor committed misconduct when he stated before the jury that a witness for the
State had been intimidated. The district court erred in finding Meek's counsel in contempt and
fining him in the presence of the jury. The jury instruction on reasonable doubt was also
erroneous. These errors alone may not be prejudicial enough to warrant reversal.
However, reversible error occurred in regard to evidence of a prior bad act. First, the
district court erroneously failed to hold a Petrocelli hearing to determine that the evidence
was properly admissible. Second, the court erred in admitting the evidence. Third, the court
erred in not giving the jury a limiting instruction regarding its proper use of the evidence.
These errors were prejudicial. We therefore reverse and remand to the district court for retrial.
____________
112 Nev. 1298, 1298 (1996) Bush v. State, Dep't Hum. Res.
ROSEMARY EMILIE BUSH and ALAN DEAN BUSH, Appellants, v. THE STATE OF
NEVADA, DEPARTMENT OF HUMAN RESOURCES, Respondent.
No. 26543
December 20, 1996 929 P.2d 940
Appeal from an order of the district court terminating parental rights. Eighth Judicial
District Court, Clark County; Gerald W. Hardcastle, Judge.
The supreme court, Shearing, J., held that termination of parental rights was warranted by
parents' mental deficiency and was in children's best interest.
Affirmed.
Paul M. Gaudet, Las Vegas, for Appellants.
Frankie Sue Del Papa, Attorney General, and Linda C. Anderson, Deputy Attorney
1. Infants.
Termination of parental rights was warranted by parents' mental deficiency, even though they loved their children and had made
some efforts toward becoming better parents, where parents continued to resist assistance of various agencies both to improve their
abilities and to help children overcome their own deficiencies, children had very special needs, and there was no reason to believe that
parents would not continue to be substantially incapable of parenting. NRS 128.105, 128.106.
2. Infants.
Social worker's testimony as to six-year effort to assist parents and mother's testimony that parents continued to resist agencies'
efforts to help provided clear and convincing evidence that parents were unable to meet immediate and continuing needs of their
children, both by reason of unfitness and by reason of failure to adjust as parents. NRS 128.105, 128.106.
3. Infants.
It was in best interest of children to terminate parental rights, where children had special needs and required level of care that
arguably was difficult even for people of ordinary intelligence to provide, both children had spent at least four years in their present
foster home, one child was ten months old and the other was two years old when they were placed in foster care, foster parents related
well to children, and foster mother indicated that she and her husband would adopt the children if they were free for adoption. NRS
128.105, 128.106.
OPINION
This is an appeal from the district court's order terminating the parental rights of natural
parents, appellants Rosemary Emilie Bush (Rosemary) and her husband Alan Dean Bush
(Alan), as to their children Alan Everett Bush (Alan Everett) and Frisco Lou Bush
(Frisco). Rosemary and Alan are mentally challenged. Rosemary has an IQ of 65, Alan an
IQ of 71. Their children are also mentally challenged and participate in specialized school
programs.
In December, 1988, Clark County Juvenile Court Services received a physical abuse
complaint concerning the Bush family. A child protective services worker was assigned to the
matter. She attempted to work with the Bushes to resolve the problems of Alan's physical
abuse of one of the Bush children, marital discord between Rosemary and Alan, and a filthy
home. At that time, Alan had moved out of the home temporarily, and Rosemary refused to
accept referrals and other family assistance. After eight months of unsuccessful efforts, the
worker recommended terminating Rosemary and Alan's parental rights.
On August 4, 1989, after the unsuccessful efforts to remedy the home situation, Alan
Everett and Frisco were placed in Child Haven. The Clark County District Attorney filed a
neglect petition alleging that Rosemary and Alan were neglectful in caring for their children
because of marital problems, including arguing and fighting in front of the children.
Additionally, it was alleged that Alan spent the family income irresponsibly without leaving
enough for monthly obligations and the children had developmental delays. On August 18,
1989, Rosemary and Alan admitted to the neglect petition. The matter was then transferred to
the Nevada State Division of Child and Family Services (DCFS) for action. A case plan
was filed on October 17, 1989, listing objectives to attain reunification of Alan Everett and
Frisco with Rosemary and Alan and ordering them to comply with the plan. The matter came
before the court for review twice each year from 1990 through 1993. By November 1993,
termination efforts had been commenced. The petition to terminate the parental rights of
Rosemary and Alan to Alan Everett and Frisco was filed on June 17, 1994. Rosemary and
Alan were appointed counsel for this proceeding. After a hearing in October, 1994, the
district court filed a decision granting the petition.
[Headnote 1]
In its decision, the district court found two parental fault grounds to support termination of
the Bushes' parental rights: parental unsuitability and failure of parental adjustment. The court
found that even when the Bushes were willing, they failed to assimilate and practice the
lessons being taught and would never be able to reach a level of ability sufficient to meet the
physical and emotional needs of their children. The court also determined that (1) efforts of
the agencies involved were reasonable and appropriate, (2) the testimony and exhibits
reflected that parenting classes, independent living, financial aid and assistance and other
appropriate services were extended to the family, (3) DCFS made monthly visitation efforts,
and (4) the level of services extended to the family reflected the Bushes' failure to be
receptive to the services. The district court also determined that (1) the children's best
interests would not be served under any reasonable circumstances by sustaining the parental
tie, (2) the children have been in foster care for three and one-half years, (3) the foster parents
are willing to adopt the children, (4) the children have bonded to the foster parents, (5)
further efforts to reunify the Bushes with their children will not change the obvious, and (6)
reunification is not foreseeable even if the court were to deny the petition to terminate
parental rights. On October 25, 1995, the district court filed Findings of Fact, Conclusions of
Law, and Order Terminating Parental Rights. The issue on appeal is whether clear and
convincing evidence supports the district court order. We conclude that it does.
The first question is whether the evidence supports the findings of parental unfitness
and/or failure of parental adjustment under NRS 128.105. For determining parental unfitness,
NRS 128.106 provides the following guidance:
In determining neglect by or unfitness of a parent, the court shall consider, without
limitation, the following conditions which may diminish suitability as a parent:
1. Emotional illness, mental illness or mental deficiency of the parent which renders
the parent consistently unable to care for the immediate and continuing physical or
psychological needs of the child for extended periods of time.
For determining whether there has been a failure of the parents to adjust, NRS 128.107 gives
the following guidance:
If a child is not in the physical custody of the parent or parents, the court, in
determining whether parental rights should be terminated, shall consider, without
limitation:
1. The services provided or offered to the parent or parents to facilitate a reunion
with the child.
2. The physical, mental or emotional condition and needs of the child and his
desires regarding the termination, if the court determines he is of sufficient capacity to
express his desires.
3. The effort the parent or parents have made to adjust their circumstances, conduct
or conditions to make it in the child's best interest to return him to his home after a
reasonable length of time, including but not limited to:
(a) The payment of a reasonable portion of substitute physical care and maintenance,
if financially able;
(b) The maintenance of regular visitation or other contact with the child which was
designed and carried out in a plan to reunite the child with the parent or parents; and
(c) The maintenance or regular contact and communication with the custodian of the
child.
4. Whether additional services would be likely to bring about lasting parental
adjustment enabling a return of the child to the parent or parents within a predictable
period.
For purposes of this section, the court shall disregard incidental conduct, contributions,
contacts and communications.
The evidence supporting both parental unfitness and parental failure to adjust is essentially
the same in this case. The children have been out of the custody of the parents since August,
1989, after a six-month period when Child Protective Services tried to work with the parents
to keep the children in the home. State and county social workers tried for almost six years to
assist the parents to reach the point where they could appropriately take care of their children.
They were unable to do so.
The evidence is undisputed that each parent has a mental deficiency. Whether the
deficiency renders each consistently unable to care for the immediate and continuing needs of
the children for extended periods of time is the disputed question. Clearly, the Bushes love
their children and have made some efforts toward becoming better parents. For example, they
have sought more appropriate housing, have attended some parenting classes and managed
their money more responsibly. However, they refused to complete either counseling or
parenting classes. Randall Stiles, a child development specialist from the Children's
Resources Bureau of the DCFS testified that after interviewing their social worker and the
Bushes, and after observing the Bushes during a monthly hour-long visit with their children,
he concluded that the Bushes had little to no desire to complete the case plan and were not
cognizant of their own weaknesses as parents.
[Headnote 2]
Rosemary admitted at the hearing, and the history of the case demonstrates, that they
continue to resist the assistance of various agencies both to improve their abilities and to help
the children to overcome their deficiencies. The children both have very special needs which
would daunt an above-average parent without outside assistance. The admission of the
persistent refusal of the parents to recognize the need for assistance, and the testimony of the
social workers of the six years of effort, provide clear and convincing evidence that the
Bushes are unable to meet the immediate and continuing needs of the children, both because
of their unfitness as parents to these children, and their failure to adjust as parents. There is no
reason to believe that they will not continue to be substantially incapable of parenting.
We note that other courts which have reached this issue have terminated parental rights
when mental deficiency prevents the parent from being a fit parent. For example, in In re
Interest of D.L.S., 432 N.W.2d 31, 35 (Neb. 1988), the court affirmed the termination of
parental rights where the mother suffered from a mental deficiency . . . which would prevent
her from ever acquiring adequate parenting skills. The court concluded that the mother
remained substantially incapable of applying what she was taught. Id. at 37.
Courts have also terminated parental rights where a mental deficiency results in failure of
parental adjustment despite the provision of adequate resources to the parent. In M.F.K. v.
State Dept. of Human Resources, 571 So. 2d 317, 318 (Ala. Civ. App. 1990), tests showed
that the mothers were limited in their mental abilities. The court affirmed termination,
concluding that where a state agency worked with the parents for an extended period of
time, possibly from 1977 until 1989, appropriate adjustments allowing for the return of the
children were not made. Id. at 319. Likewise, in Ex parte State Dept. of Human Resources,
624 So. 2d 589 (Ala. 1993), a petition requesting parental rights termination alleged that the
parents had an emotional or mental illness which made them unable to care for the needs of
their child. The trial court found clear and convincing evidence that it was in the child's best
interest to terminate parental rights. The court made this finding despite the fact that the
parents regularly visited the child during scheduled times while the child was in foster care,
the mother attended a parenting class, and the father remained employed, because there was
no evidence that the parents tried to improve the condition of their home or their
circumstances, and the parents had made no reasonable efforts to prevent the need to remove
the child from their care. Id. at 591. The appeals court reversed on the basis that the parents
had not been afforded an opportunity to parent the child because she or he had been
taken from them immediately after her birth.
parents had not been afforded an opportunity to parent the child because she or he had been
taken from them immediately after her birth. The Alabama Supreme Court reversed,
concluding that the parents failed to make any changes in their living conditions even after a
state agency requested that they accomplish rehabilitation.
In other cases, courts have reversed orders terminating parental rights where the state
failed to show that termination was in the child's best interests,
1
or failed to provide
appropriate services for the mentally challenged parents.
2
Some courts have required the
district court to make a finding of current unfitness. None of these problems is present in the
instant case.
[Headnote 3]
We also conclude that there was clear and convincing evidence that the best interests of
the children would be served by termination of the parental rights. Frisco and Alan Everett
have special needs and require a level of care that is arguably difficult even for a person of
ordinary intelligence to provide. In addition, both boys have spent at least four years in their
present foster home. When the boys were placed in foster care, Frisco was ten months old and
Alan Everett was two years old. The court-appointed special advocate (CASA) observed
the boys in their foster home for two years and believes that the foster parents relate well to
the boys. The foster mother testified that if the children were free for adoption, she and her
husband would adopt them. The child development specialist at the DCFS recommended
that Frisco and Alan Everett remain in foster care so that their physical, developmental,
and emotional needs continue to be met.
__________

1
For example, in Glover v. Alabama Dept. of Pensions and Sec., 401 So. 2d 786 (Ala. Civ. App. 1981), the
court's decision to reverse the order of termination turned on the state's failure to establish that termination
presented a viable alternative to better serve the future welfare of the children. Id. at 788. The court concluded
that it was unlikely that the children would be adopted. Id. The mother had a low I.Q. but was functional. Id.
She also had little income and has been less than successful in meeting some of the goals set by her caseworkers
over the years. Id.

2
In two cases cited by appellants, the court reversed termination orders because the state failed to provide
services. In In re Victoria M., 255 Cal. Rptr. 498, 499-500 (Ct. App. 1989), the father had abandoned the
children and the mother was in the borderline range of intelligence. No accommodation was made for the
mother's special needs in providing services so that she could be reunified with her children, and her disabilities
were not considered in determining what services would best suit her needs. The court reversed the termination
order, concluding that the rights of a developmentally disabled parent may not be terminated without first
assessing whether the services offered by the state through regional centers may enable the family of a disabled
person to remain intact. Id. In In re Hickman, 489 So. 2d 601, 602 (Ala. Civ. App. 1986), the court concluded
that termination was not supported by sufficient evidence where the reasons behind termination were poverty
and the limited mentality of the mother; thus the court reversed and remanded. The agency seeking termination
had not provided the family with any aid.
child development specialist at the DCFS recommended that Frisco and Alan Everett remain
in foster care so that their physical, developmental, and emotional needs continue to be met.
We conclude that Frisco's and Alan Everett's best interests are not served by sustaining the tie
to Rosemary and Alan.
The district court noted its dismay that Frisco and Alan Everett have remained in foster
care for five years. We agree with the court's expressed dissatisfaction. While the parents'
right to retain their children is an important consideration in the analysis, the rights of the
children to a stable future with a loving family must be paramount. Otherwise, the children's
development is compromised for the sake of the parents. Thus, we affirm the order of the
district court.
Steffen, C. J., concurring:
I concur in the result reached by the majority, but consider it necessary to comment on our
dissenting colleague's opinion.
I would first note, prefatorily, that I view Justice Springer's dissent with more than a small
degree of approbation because he again addresses this most difficult and excruciating subject
of termination of parental rights with a concern and sensitivity that reflects a commendable
ongoing regard for this most vital and precious interest of parents in the right to enjoy life
with their children. Although I find it necessary to disagree with my colleague's positional
outcome regarding the instant case, I consider it important to again be reminded that we are
not merely disposing of another case on appeal. We are asked to carefully and respectfully act
as a final safeguard against an erroneous determination in the lower court that permanently
severs the tie between parent and childa fate that most of us who are blessed with children
would consider far worse than our own death.
I am unaware of the number of termination cases that are finalized in the district courts
without appeal. It seems safe to assume, however, that virtually every such case we see on
appeal evinces at least some degree of parental love and interest concerning a child or
children who are on the brink of extinction as far as their appealing parents are concerned. As
a practical matter, we are the parents' last source of hope for keeping the family alive. I thus
agree with Justice Springer that this court must review these tragic cases with the greatest
degree of diligence and concerna premise recognized with an element of trepidation given
the enormous caseload burdening this court.
Our dissenting colleague, it seems to me, speaks too categorically when he suggests that
the poor, sick and powerless are almost routinely being taken from their natural parents and
permanently given to more talented parents."
manently given to more talented parents. Justice Springer cites no authority for this assertion
and I genuinely hope that he could not do so. Impoverished parents can be just as unfit as
wealthy parents, but I must admit that poor parents may often suffer terminations where those
who can afford timely counsel and supply more favorable home conditions will not. I would
therefore agree that the impoverished, downtrodden and generally more vulnerable parents
should receive at least the same level of social welfare concern and judicial scrutiny and
solicitude as parents who enjoy the financial means to marshal a vigorous and timely defense
of their rights as parents. In other words, equal justice under law must have special meaning
in these types of cases, notwithstanding the realization that some parents are inherently
disadvantaged by various handicaps not of their own making, but which nevertheless can
tragically impact the lives of their children.
Unfortunately, these cases often present the courts with the Hobson's choice of either
preserving parental rights at the expense of the children or sacrificing the parents in order to
salvage the lives and futures of the children. Where it has been patiently and responsibly
determined that both interests cannot be preserved without extensive injury to the one or the
other, our Legislature has determined, and so must we, that the lives and the best interests of
the children must take precedence. However, that is not to say in the least that if the poor, the
sick and the powerless can be replaced as parents by those who would be better or more
talented, our law would support the state in doing so. The very thought defies decency and
reason, and in any event would be a stark violation of the Constitution.
Turning now to the instant case, it is true that we are faced with loving parents who are
mentally disadvantaged. As our colleague has so effectively noted, this alone must give us
serious cause for concern, for this nation has a laudable public policy favoring affirmative
measures to assist our handicapped citizens in the pursuit of meaningful, quality lives. See
McKay v. Bergstedt, 106 Nev. 808, 825-28, 801 P.2d 617, 628-30 (1990).
However, when it comes to an evaluation of parental fitness or neglect, as the majority
opinion notes, the courts are under statutory mandate, NRS 128.106, to consider emotional
and mental illness or mental deficiency of the parents where it adversely impacts the physical
or psychological needs of the children over extended periods of time.
Unfortunately, mental handicaps may produce conditions that are inconsistent with
functional, healthy home environments for children. Although fault is absent, the impact on
the children is just as great as if fault were present. But I note at the outset of my evaluation
of the facts that this is a most unfortunate caseindeed, unfortunate to the extreme.
evaluation of the facts that this is a most unfortunate caseindeed, unfortunate to the
extreme. Even at this late, late date, this is a very close and difficult case.
Tragically, in affirming the district court's decision to forever deprive these parents of their
children and leave them with no more rights concerning the children than strangers off the
street, I am convinced that we are sacrificing basically good and well-intentioned parents to a
cumbersome, overloaded system that has managed to keep the children from their parents for
over seven years. The one child, Alan Everett Bush, was removed from the parental home at
approximately one and one-half years of age, and the second child, Frisco Lou Bush, taken
from the home at the same time, was a ten-month-old infant. The children have been living in
a foster home since 1990, and the foster parents with whom they have bonded want to adopt
them. This is essentially the only home and family these children know.
In reading this record from cover to cover, I am left with an abiding belief that these
mentally deficient parents are not sufficiently deficient to render them incapable of being
fit and caring parents. Moreover, in reading the testimony of the State's witnesses, I shudder
at the amount of conjecture and speculative forecasting I saw there. Aside from a fearsome
amount of educated guesses drawn from factual patterns that are far from established or
egregious (or, for that matter, perhaps not all that far from normal), jurisdictional grounds
were found to exist in the form of parental unsuitability and failure of parental adjustment. If
we were reviewing this appeal seasonably, I would reject these findings.
The record reveals that for a period of time there were instances of argument between the
parents in front of the children. There is meager evidence of a somewhat violent episode. Mr.
Bush also made the mistake of impetuously purchasing a television set and stereo that the
family could not afford (like how many other millions of parents across the country). There
was also equivocal and conflicting evidence that at least on occasion, Mr. and Mrs. Bush
failed to keep a clean apartment. The Bushes were also disparaged by a child development
expert for their low income, their housing and their lack of transportation. Indeed, this expert
found the Bushes lacking in nurturence and bonding with the children, a rather remarkable
observation given the fact these parents had been restricted to such scant and unnatural
visitation (one hour per month at the agency over an extended period of time) with their
children. The Bushes were also found wanting in being resistive to some of the services
offered by various agencies, and for not completing all of their programmed activities.
Despite the list of less than compelling negatives, including the fact that the children
required special education and medication, these parents would ride their bicycles several
miles to visit their children and made substantial attempts to abide by agency programs and
directions which they believed were designed to effectuate a reunification with their children.
The record frankly causes me to wonder about the extent to which these parents were ever
intended to realize a reunion with Alan and Frisco. As counsel for the Bushes noted, it
appears that his clients were doomed primarily because of their mental deficiencies, and my
reading of their testimony leaves me with gnawing doubts about the accuracy of the
evaluations on this critical point.
Notwithstanding the foregoing, I concur in the result reached by the majority because it
appears to me that under the tragic facts of this case, we must resolve doubts as to whether
jurisdictional grounds were demonstrated by clear and convincing evidence in favor of the
children. I reach this conclusion advisedly, however, knowing that such a resolution may be
viewed as an infringement of the Bushes' constitutional rights. It is clear, however, that the
Legislature has made the best interests of the children paramount in these types of
proceedings, and I am convinced that at this late date, it would be extremely traumatic for the
two boys to either be again placed in limbo or be torn from the arms and love of the only
parents that they now truly know.
In studying this record, I was painfully reminded once again that we must find some means
of expediting these matters so that tragedies such as the one before us may be avoided.
However, I emphasize this without criticism of the lower court or the various agency workers
involved over the agonizing history of this case. Resources are scarce, and social services
personnel are limited in what they can do given the extent of their caseloads. Nevertheless,
we are discussing the devolution and destruction of families, and we can no more afford to
impose a death sentence on undeserving parents than we can afford to impose capital
punishment on an innocent criminal defendant.
For the reasons noted above, I concur with the result reached by the majority, but with
great respect for the concerns expressed in the dissent.
The State permanently deprived a mentally handicapped mother and father of the right of
love and association with their two children, because of the genetic or physical limitations
suffered by these parents. (Trial Court's Decision, October 19, 1994). The Bushes have lost
their children because the courts have concluded that they are incapable of obtaining the
skills" in parenting that parents must now possess in order to avoid the threat of having
the State take away their children and give them to new, more skillful parents.
skills in parenting that parents must now possess in order to avoid the threat of having the
State take away their children and give them to new, more skillful parents.
This case is one of a number of termination cases in a spate of cases in which poor and
handicapped parents have lost their children to substitute parents because of a supposed lack
of parenting skills and because the best interests of their children is supposedly being
served by presenting them with a new and better set of parents.
I am not sure what causes can be attributed to these onslaughts on the poor and the
handicapped, but it seems to me that they can be traced to the 1987 amendment of NRS
128.105, in which a provision was added to the termination statute, stating that the primary
consideration in any proceeding to terminate parental rights must be whether the best interests
of the child will be served by the termination. As I see the various cases now coming before
this court in which children of the poor, sick and powerless are almost routinely being taken
from their natural parents and permanently given to more talented parents, I get the feeling
that agents of the State have misinterpreted the statutory best interests addition to authorize
a much greater intrusion into Nevada families.
Those who believe that the best interests amendment gives greater powers to the State in
permanently depriving natural parents of their parental rights and bestowing those rights on
more skillful parents are, of course, wrong. The primary consideration in termination
cases is and always has been the best interests of the child. It just cannot be the only
consideration.
Even before Champagne v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984), this
court recognized the dominant purpose of serving the best interests of the child.'
Chapman v. Chapman, 96 Nev. 290, 292, 607 P.2d 1141, 1143 (1980) (quoting NRS
128.090). It is certainly appropriate for the courts to consider the interest of the child as a
primary consideration, so long as, in doing so, they do not ignore the constitutional rights
of the parents, as this court appears to have done in the present case. As we noted in
Champagne:
We agree that children's interests should be paramount; but their interests cannot
displace established liberty interests of natural parents. Children cannot be taken from
poor parents and placed permanently in the home of substitute parents simply because
their emotional needs would be better served or because they might have a cleaner,
neater, or richer environment.
100 Nev. at 649 n.6, 691 P.2d at 856.
Whether the increase in the number of cases involving the termination of parental rights of
the poor and handicapped is caused by a misreading of the best interests amendment of
NRS 128.105 or by some other reasons, a certain pattern of cases is quite obviously on the
increase. Here is the pattern:
Poor or handicapped parents are having trouble raising their children. The kinds of
problems that these parents have are too legion to catalogue, but the common result is
that the State removes the children from the home temporarily. Almost always this is
done by court order on a petition unopposed by the poor family, primarily because they
do not have counsel.
Welfare imposes upon the parents a reunification plan that is supposed to be
designed to get the children back into their home. In many cases the problems of
poverty, mental or physical incapacity and other difficulties that brought about the
family separation stand in the way of the parents' satisfactory compliance with the
reunification plan.
The children are placed in the home of substitute parents, parents who are usually in
a much better position to provide a nicer and more nurturing home environment.
The natural parents visitation becomes more and more difficult and awkward. The
children (naturally) bond and integrate with their substitute parents.
Welfare gives notice to the natural parents that they have flunked the reunification
test, that their children are better off in their new home and that the natural parents must
say goodbye forever to their children.
The parents get notice of the termination hearing. They finally, too late, get an
attorney appointed to defend against the State. They lose their case. The children have a
new set of parents. The natural parents have nothing.
Having described the pattern that I am perceiving in the cases now coming before the
court, I want, before proceeding, to say that I do not intend this dissent to be an indictment of
welfare workers. What they are doing, they believe, I am sure, to be the proper, legal and
moral thing to do. If I were to attribute any fault to what is happening, I would attribute that
fault to this court, which refuses to give needed guidance to welfare officials by refusing to
declare the statutory and constitutional limits upon the kinds of activities that I have
described.
I want to say further that I fully realize that there are many cases in which children live in
the homes of abusive and unfit parents and that, once removed, they probably should never go
back. I also want to make it clear that I fully understand the
"damned-if-you-do-damned-if-you-don't" dilemma that Welfare officials are placed in.
damned-if-you-do-damned-if-you-don't dilemma that Welfare officials are placed in. One
voice is telling them to try to reunify the family and place the children back in the home.
Another voice is warning them that the children will be permanently injured, physically or
developmentally, if they are permitted to be raised by abusive or neglectful natural parents. In
most cases, Welfare case workers make the best of very difficult situations; and, having some
familiarity with their trying work, I want to say that they have my highest respect and
admiration.
In the case now before the court, however, it appears to me that the Welfare Division
initiated and carried out termination of parental rights proceedings solely because the parents
were mentally handicapped. This is wrong. It also appears to me that the termination of
parental rights in this case was probably principally motivated by the reality that the substitute
home was a better home than the home that could be provided to the children by their
handicapped parents. For reasons that I will explain in this dissent, I am very much concerned
about prevalent social engineering theories that promote the permanent termination of
parental rights of faltering and inadequate natural parents based on the assumption that
placement of children in a better home will necessarily serve the children's best interests.
I am opposed to any social or legal theory that promotes the severance of parental ties just
because the children (naturally and understandably) appear to have become integrated in a
new, perhaps more amiable, home situation.
At the time of the termination decree which ended the Bush's parental relationship with
their children, the children were six and seven years old. The reasons given by the trial court
for severing the parental ties were that the Bushes were unfit parents and that they had
failed to adjust to become proper parents within a reasonable period of time. At the time the
termination proceedings began, the Bushes had been involuntarily separated from their
children for a period of almost five years.
According to the trial court, Mr. and Mrs. Bush suffer from reduced mental capabilities
(IQ's of 65 and 71) and are incapable of obtaining the skills necessary for [the]
reunification that would allow the Bushes to raise their children. (Emphasis added.) The trial
court concluded that although there may have been a technical compliance with the Welfare
Division's Case Plan, the lessons are not being learned and practiced by Mr. and Mrs.
Bush. (Emphasis added.)
After the State took the Bushes' children out of their home, the Bushes continued to try for
a long time to do what was expected of them to get their children back. According to the trial
court, they did make significant efforts to gain the education and skills necessary to raise
their children."
necessary to raise their children. The trial court observed that failures on the part of the
Bushes to meet standards imposed upon them by the Welfare Division may very well have
arisen from the Bush's inability to succeed and then concluded that the Bushes could never
be able to reach a level sufficient to meet the physical and emotional needs of their children.
(Emphasis in original.)
The trial court concluded that [e]ven when [the parents] have been willing, they have
failed to assimilate and practice the lessons being taught and that it is more likely that the
Bushes are incapable of correcting the conditions that led to the removal of the children.
1

Put plainly, this is not a case of parental fault, it is a case of faultless parental mental
incapacity. The trial court concluded that no matter how hard they tried, the Bushes did not
have sufficient intelligence to be entrusted with raising their children. The trial court
concluded in its Statement of Law that the result is the same regardless of whether the
issue is the parent's inability or unwillingness, which is to say that it does not matter whether
the Bushes were handicapped or recalcitrant. I think the question of fault or incapacity
matters a great deal, and I am of the view that this court's refusal to deal with the question of
fault versus incapacity in termination cases is an inexcusable dereliction on its part.
The leading case in Nevada in this area of the law, the Champagne case, gives no
appreciable guidance as to when it is justified for the family court to terminate the parental
rights of parents who are, faultlessly, physically or mentally handicapped. 100 Nev. 640, 691
P.2d 849 (1984). I do not blame the district judge for arriving at a legally incorrect decision in
this case, as he had no real precedential guidance on this vital subject. As I have said, my
reading of the record tells me that the district judge did a very thorough and thoughtful job in
dealing with this difficult and troubling case. I wish I could say the same for this court, which
has decided the case superficially and has not even touched on the momentous issues
presented by this controversy.
Let me now look a little more deeply into how it came about that the State permanently
denied two loving but mentally handicapped parents of (as it was put by the trial judge) the
right of love and association with their children, especially when the inability to care for the
children may arise from genetic or physical limitations."
__________

1
There is some evidence in the record that the Bushes were at times frustrated, uncooperative and even
hostile to State officials; but, overall, it is quite clear that the court rested its decision on the Bushes' inability
to become adequate parents rather than on any fault or willful misconduct or derelictions on their part.
inability to care for the children may arise from genetic or physical limitations.
There can be no question that the Bushes were far from being model parents and that they
were having difficulties raising their children. Not surprisingly, the children of these two
mentally deficient parents were, themselves, developmentally delayed. When the Welfare
Division filed its child-neglect petition it did not mention the single most significant aspect of
this case, the parents' handicap. The petition stated, as grounds for the petition, only marital
discord, family income irresponsibility and the children's developmental delays.
The Bushes do have very limited reading and writing skills, and it is extremely unlikely
that they understood the nature of the proceeding or the dire consequences that eventually
followed the filing of the petition. When the petition that resulted in their having their
children removed from their home was first brought to court, they did not have an attorney,
and they did not, consequently, file any legal opposition to the petition. These undefended
proceedings not only resulted in the removal of their children from their home, but the court
action taken in these proceedings was the primary cause of the eventual, permanent
termination of their parental rights.
2
The children were removed from the home on August 4,
1989, when one was two years old, and the other was 10 months old. That was the end of the
Bush family.
At some point during the Bushes' attempt to get their children back, an independent living
specialist from the Nevada Association for the Handicapped became involved and put the
Bushes into a program the sensible purpose of which was (as stated in the trial court's
Decision) to provide incremental goals' to avoid overwhelming the parents.
In September of 1992, after the children had been separated from their parents for over
three years, a Welfare Division worker reported to the court that (according to the trial court's
Decision in this matter) the parents were making every attempt possible and that the children
would be a handful even to high functioning parents."
__________

2
As I see it, the Bushes' incapacities and their not having an attorney during the neglect proceedings when their
children were first taken away from them is far more important than their having an attorney at the termination
hearing. By the time of the termination hearing they had already lost the game. Their children had been able to
see them only briefly on fairly infrequent occasions, and the children, naturally (to use psychiatric jargon)
bonded with their foster parents. Every day that the children were out of the Bush home made it more difficult
for the supposed desideratum, reunification, to take place. If these parents had had a truly dedicated attorney
or a CASA volunteer who was something other than a surrogate agent for the State, this would, in my opinion,
have been an entirely different case.
functioning parents. The worker recommended long-term foster care but not termination of
parental rights. (Emphasis in original court Decision.)
In November of 1993, the Welfare Division's position changed. For reasons that do not
appear in the record, the Nevada Association for the Handicapped had discontinued its
program, and the Bushes' attempt to regain their children lost some of its thrust. An inimical
CASA volunteer continued to assert that the Bush's were not capable of giving the children
a permanent home. (Emphasis added.) At this time the Welfare Division recommended the
institution of termination of parental rights proceedings. Termination proceedings were filed
by the Welfare Division on June 17, 1994. With regard to these proceedings, I must agree
with the Bushes' attorney, who wrote in his Pretrial Memorandum that [t]his case evolves
solely from the mental deficiencies of Rosemary and Allen Bush.
None of the consolidated cases dealt with in Champagne involved permanently depriving
faultless, handicapped persons of their children; but Champagne does make reference to the
possibility that permanent parental severance might be justified in no-fault cases of
incapacity and cases in which there is an irremediable inability to function as a parent.
100 Nev. at 648 n.5, 691 P.2d at 855. The question of terminating parental rights in cases of
faultlessly incapacitated or handicapped persons is an open question and a serious question
that was mentioned but not discussed or decided in Champagne. Strangely, the majority does
not cite or refer to Champagne and merely relies on NRS 128.106 which states that in
determining the neglect or unfitness of a parent, the court shall consider the mental
deficiency of the parent which renders the parent consistently unable to care for the
immediate and continuing physical or psychological needs of the child for extended periods
of time. The mentioned statute does not, of course, mandate the termination of parental
rights of intellectually challenged parents and merely provides that the court must consider
disabling mental deficiency as one factor in the determination of the jurisdictional ground of
parental unfitness. As to when, if ever, mental deficiency can be the sole ground for parental
severance, the legislation is silent. It is certainly arguable that parents should never lose their
children just because the parents have a low I.Q. This is a subject that most certainly should
have been addressed by the majority before affirming the judgment of the trial court. It was
not.
The question of when, if ever, it is proper to take incapacitated or handicapped parents'
children away from them is a chilling one. I wonder what the attitude of the majority would
be if a physical deficiency, say quadriplegia, had rendered the Bushes unable to "reach the
level of sufficiency to meet the physical and emotional needs of their children."
unable to reach the level of sufficiency to meet the physical and emotional needs of their
children. I wonder if, in the minds of the majority justices, mental deficiency is considered
to be any more or less disabling than physical deficiency. I wonder how a sensitive and
thoughtful majority would apply the standard of irremediable inability to function as a
parent to the facts of this case. I tend to question, even under the irremediable inability
language of Champagne, whether it is ever morally or constitutionally permissible to
terminate the parental rights of a fault-free parent.
3

I am not, under the present circumstances, obliged, as a minority jurist, to undertake an
answer to these questions. This is the duty of the majority. I do know, however, that until
these and other related questions are answered, the majority has no business concluding that
there are jurisdictional grounds for permanently depriving the handicapped Bushes of their
children.
This is a profound and troubling case. With regard to the jurisdictional grounds of
unfitness and failure to adjust, relied upon by the trial court, this appellate court is not
presently in a position to decide whether these grounds have been proven by clear and
convincing evidence. I say this because the majority has not attempted to apply any
articulated principles of law to the particular circumstances of this case.
4
My first ground for
dissent, then, is that the jurisdictional grounds of unfitness and failure to adjust have not
been adequately defined in the majority opinion for cases involving innocently
handicapped parents and that, consequently, these grounds cannot possibly have been
established {clearly, convincingly or otherwise) as jurisdictional grounds for termination.
__________

3
The recent court cases involving misidentified babies who are inadvertently switched at birth comes to
mind. It occurs to me that when a natural parent comes to court ten or fifteen years after the unfortunate switch,
seeking return of her or his natural child, the court might properly and morally decide that, innocent or not, such
a parent should not be entitled to the return of her or his child and that perhaps termination of parental rights of
that faultless parent, rather than removal of the child from the parents who raised the child, might be in order,
solely because at that point in time the best interest of the child might demand that the wrong parent be
awarded legal parenthood. Also, perhaps it might be at least thinkable to consider terminating the parental rights
of a parent who was in an irreversible comatose and vegetative state, if it was very clearly and convincingly
necessary and in the best interests of a child to do so. I footnote these kinds of situations because it seems to me
that only in the rarest and most unusual of cases (if ever) would it be morally proper to terminate the parental
rights of an innocently incapacitated or handicapped parent who was begging the court not to terminate parental
rights. Certainly I would want to resist the severance of parental ties of any parent who was having trouble
raising a child because of a handicap, especially when the parent was earnestly trying to avert the capital
punishment of welfare law. As appears from the position that I take in the text, I would vote no on the
question of whether unfitness of the Bushes was established by clear and convincing evidence.

4
I agree, incidentally, with the majority's view that the evidence supporting both parental unfitness and
parental failure to adjust is essentially the same in this case. The question in this case boils down to whether an
inability to conform to the parenting plan laid down by the Welfare Division can support a conclusion of either
parental unfitness or parental
sent, then, is that the jurisdictional grounds of unfitness and failure to adjust have not been
adequately defined in the majority opinion for cases involving innocently handicapped
parents and that, consequently, these grounds cannot possibly have been established (clearly,
convincingly or otherwise) as jurisdictional grounds for termination.
I next address the questions relating to the so-called dispositional grounds in this case.
The focus of dispositional grounds is the welfare of the child. Champagne, 100 Nev. at
653, 691 P.2d at 858. In the decision of the trial court, recognizing the holding in
Champagne, the district judge properly noted that dispositional grounds exist only if under
no reasonable circumstances the child's best interest can be served by sustaining the parental
tie. This strict rule, obviously, is a far cry from saying that a child would be better off in
Home A than he would be in Home B and that he should, therefore, be permanently placed in
Home A, with his natural parental ties being permanently cut off.
As I read this record, I see that the Welfare Division has done a remarkably good job in
finding foster parents who are willing to adopt these developmentally delayed children. The
children have been with the foster parents going on five years; and the children, the trial court
tells us, have bonded with the foster parents. It is hard to deny that at the present time the
children would probably be better off staying in the foster home than placing them abruptly
back into the now-alien home of the natural parents.
__________
failure to adjust. I have a particular problem in this case with the failure-to-adjust jurisdictional ground. As we
pointed out in Champagne, the idea of permanently taking a child from a parent by reason of the parent's failing
to adjust to circumstances, conduct or conditions' prescribed by the state is an idea that is new to public family
law. 100 Nev. at 651, 691 P.2d at 857. Caution in such cases is necessary
because of the vast power differential between the state and the welfare client, the paucity of truly
efficacious services' that are or can be made available to the client, the usually greatly diminished
contact between welfare client-parents and the removed child and the oft-seen ineptitude of the so-called
inadequate' parent.
Id.
Significantly, in Champagne, we noted that [f]ailure of parental adjustment may provide a jurisdictional basis
for termination, but it is fraught with difficulties and must be applied with caution. Id. at 652, 691 P.2d at 857. I
find no such caution to have been exercised in this case. I find a certain degree of impatience on the part of
agents of the Welfare Division, and I find as the principle motivating force behind Welfare decisions in this case
to be a desire to place the children in a better home than they had in the home of their poor and intellectually
limited parents. This is not the kind of caution that Champagne was talking about. Champagne teaches that the
courts should be cautious not to take children away from their natural parents absent a clear showing of fault or
incapacitation. Id. at 651, 691 P.2d at 857. What means incapacitation is the center of this controversy and a
subject that is not even mentioned in the majority opinion.
placing them abruptly back into the now-alien home of the natural parents. But, I am not
urging an immediate transfer of custody. I only question the propriety of permanent severance
of parental ties. My point is that I believe that in this case there are reasonable circumstances
under which the children's interest could be served by sustaining the parental ties and that,
consequently, the requirement of dispositional grounds has not been met.
I do not think that it can be safely said that there are no reasonable circumstances which
would permit maintaining the Bushes' parental relationship. Early on, shortly after the
children were placed in foster care, the assigned welfare worker opined, in April of 1993, that
the best interests of the child would be served by long-term foster care rather than termination
of parental rights. The option of long-term foster care provides such a reasonable
circumstance; and it is certainly an option that should have been considered in April 1993
and should have been considered by the trial court in this case.
Sadly enough, it appears to me likely that it is now the policy of the State to take children
away from inadequate parents (see footnote 5) and find them a better home and to use the
best interests of the child as the sole, criterion in determining whether to pursue a
termination of parental rights action. Many of us today would not have been allowed to
remain with our parents if the only basis for permanently taking us away from our parents
was that there were some better parents around the corner.
In Champagne we held that the [s]everance of parental rights is an exercise of awesome
power, a power which we question closely,' id. at 645, 691 P.2d at 853 (citation omitted)
and explained that there are constitutional and fundamental liberty interests of the natural
parents in the care, custody and management of their child,' id. at 647, 691 P.2d at 854
(quoting Santosky v. Kramer, 455 U.S. 745, 753 (1982)). These fundamental interests, we
declared, quoting Santosky, do not evaporate simply because they have not been model
parents or have lost temporary custody of the child to the State.' Id. at 647, 691 P.2d at 854
(quoting Santosky, 455 U.S. at 753). We have here a rather typical example of parents who
are not model parents and who probably can fairly be described as inadequate parents.
5

__________

5
The term inadequate seems to me to describe the Bushes fairly accurately. Footnote 7 in Champagne
poignantly describes these kinds of parents and argues that such parents do not deserve to lose their children.
The footnote bears repeating, in part, in this dissenting opinion:
While no empirical studies provide a statistical breakdown of the reasons for intervention in neglect
cases, probably the largest category of cases involves persons thought to be inadequate parents. All
The predominant reason that I can see in this record that the trial court took the Bushes'
children away from them permanently was that the court saw the children as being better off
in the foster home than they would have been in their own home.
__________
commentators agree that the great majority of neglect cases involve very poor families who are usually
receiving welfare. Most of the parents are not merely poor, however. In addition to the problems directly
caused by the poverty . . . many of these parents can be described as extremely marginal people, that is
they are continually at the borderline of being able to sustain themselveseconomically, emotionally,
and mentally.
Their plight is reflected in their home situations. Their homes are often dirty and run-down. Feeding
arrangements are haphazard. One or both parents may . . . be retarded, which may affect the quality of
their child care. . . .
Such parents may provide little emotional support for their children. While the children may not be
physically abused, left unattended, dangerously malnourished, or overtly rejected, they may receive little
love, attention, stimulation, or emotional involvement. . . .
It is certainly very tempting to intervene to help such children. Intervention might be justified both to
protect the children by providing them with an environment in which they can better reach their potential
and to protect the state, since it is claimed that such children will probably end up as delinquents,
criminals, or welfare recipients. Without intervention, we may be perpetuating a culture of poverty.
Despite the appeal of these arguments, parental inadequacy in and of itself should not be a basis for
intervention, other than the offer of services available on a truly voluntary basis. The term inadequate
home or inadequate parent is even harder to define than emotional neglect. There is certainly no
consensus about what types of inadequate behavior would justify intervention. Given the vagueness of
the standard, almost unlimited intervention would be possible.
. . . . In fact, by focusing solely on parental behavior, child-care workers often ignore the many strengths
a given child may be deriving from his environment. As I have stressed, the complexity of the process by
which a child relates to any environment defies any attempt to draft laws solely in terms of environmental
influences.
Moreover, there is every reason to be extremely pessimistic about the utility of coercive intervention. The
services necessary to help these families are generally unavailable. More day-care centers, homemakers,
health facilities, and job training programs would all be needed if intervention were to mean anything
more than periodic visits by a social worker. Such visits themselves are costly, have not been shown to be
effective, and may be resented by the parent who will blame the child for the outside meddling.
Even when inadequate parents seek help, agencies often lack the resources or ability to alleviate
undesirable home conditions. The chances of success are even lower when the family resists intervention.
Few communities have sufficient personnel and programs to permit meaningful intervention, even in
cases involving physical abuse or severe emotional damage. It is highly questionable whether limited
resources ought to be expended on families with less severe problems, unless the families request services
or accept them voluntarily.
Furthermore, when parents do not respond to the treater, the next step is to remove the children. Yet
there is no evidence demonstrating that children from such families are helped through placement.
In an ideal world, children would not be brought up in inadequate
home than they would have been in their own home. The termination decision appears to
have been based on a determination that the foster home was now the better of the two
possible homes for the children.
In Champagne, we decried the application of a rule which based the termination decision
on such factors as whether the child has become integrated
6
into a foster family. Id. at 650
n.6, 691 P.2d at 856 (quoting NRS 128.108). To terminate parental rights in this case is to
accept the unproved dogma of those psychiatrists who see the best interests of the child as the
sole determining factor in termination cases and who would have the courts decide the
question of parental severance based on an odious comparison between the real parents and
the foster parents to see who can best give the child love, affection and guidance and to
continue the education of the child . . . and who has the capacity . . . to provide the child with
food, clothing and medical care . . . [and the] moral fitness, physical and mental health. Id. A
foster parent who has established a relationship with a child would take precedence over a
natural parent, even if the natural parent has lost custody of the child through no fault of his
own. Id. at 649 n.6, 691 P.2d at 856. Under such a theory, if a child who has been removed
from her home had been temporarily placed in the home of Daddy Warbucks, the natural
parents would have had it. Daddy Warbucks can surely provide better food, clothing and
housing and presumably can do a better job in affording guidance and to continue the
education of the child who has been removed from a home because of neglect or some
other parental failing; still, we cannot properly base a decision to terminate parental rights on
a judgment as to whether a child is better off with his parents or in some richer environment
in the home of some surrogate parents.
The point that I make is that we should not, morally or constitutionally, simply put the
child on the scale and weigh to see which, the natural or the replacement parent, will better
serve the best interests of the child. The parents in this case have a low I.Q. and have had a
terrible time trying to jump through all of the hoops that the Welfare Division introduced as a
condition to their keeping their children.
__________
homes. However, our less than ideal society lacks the ability to provide better alternatives for these
children. The best we can do is to expand the social welfare services now offered families on a voluntary
basis.
Champagne, 100 Nev. at 654 n.7, 691 P.2d at 858.

6
Inote that NRS 128.108 requires the court to consider whether the child has become integrated into the foster
family and the capacity and disposition of the child's parents from whom the child was removed as compared
with that of the foster family to provide the child with food, clothing and all the many other goodies that the
child was probably deprived of to some extent in his natural but inadequate parental home. (See footnote 5).
their keeping their children. The Bushes have satisfactorily raised another child, and it seems
to me that it is reasonable to conclude that with a little more help and a little more patience,
the Bushes could have raised their now-lost children.
The more extreme of those jurists and social engineers who support best interests as the
sole decisional criterion for permanently severing parental ties with children who have
bonded and integrated with replacement parents would apply a simple weighing test in
which the question is asked: In which of the two homes would the best interests of the child
be served? Champagne was a repudiation of such a weighing approach. This court
recognized in Champagne that [t]ermination of parental rights is essentially, of course, a
statutory proceeding; but the statute does not say it all. Overlying constitutional
considerations, 100 Nev. at 663, 691 P.2d at 864, must be taken into account; thus, there
must be either a showing that a parent is unsuitable by reason of having been guilty of such
persistent fault or state of incapacity as to deserve to have his or her parental rights
terminated or that the parent has sacrifice[d] parental rights in the interest of the child, by
reason of irremediable inability to function as a proper and acceptable parent, id. at 648 n.5,
691 P.2d at 858. This is the first time that this court has had an opportunity to examine and
discuss this kind of sacrifice of parenthood. In refusing to do so it does a disservice to
faultlessly incapacitated parents such as the Bushes and to other similarly situated
handicapped parents who are threatened in the future.
This is a case in which the decree terminating the Bushes' parental rights decree should be
reversed; therefore I dissent.
____________
112 Nev. 1319, 1319 (1996) Int'l Ass'n Firefighters v. Las Vegas
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL #1285, Appellant, v.
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation, Respondent.
No. 26815
December 20, 1996 929 P.2d 954
Appeal from an order of the district court granting a motion to stay arbitration
proceedings. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Municipal employer claimed that because firefighter trainee was a probationary position,
terminated firefighter trainee could not pursue arbitration and employer sought a stay of
arbitration. The district court granted stay. Union appealed. The supreme court, Rose, J., held
that question of arbitrability of dispute was for arbitrator, not district court, under
collective bargaining agreement.
court, Rose, J., held that question of arbitrability of dispute was for arbitrator, not district
court, under collective bargaining agreement.
Hilbrecht & Associates, Las Vegas, for Appellant.
Bradford R. Jerbic, City Attorney, and Lona L. Monson and Larry Bettis, Deputy City
Attorneys, Las Vegas, for Respondent.
1. Arbitration.
Whether a dispute is arbitrable is essentially a question of construction of a contract. Reviewing court is obligated to make its own
independent determination on issue and should not defer to district court's determination.
2. Arbitration.
Unless parties clearly and unmistakably provide otherwise in their agreement, question of arbitrability is to be decided by district
court, not arbitrator.
3. Arbitration.
Courts resolve all doubts concerning arbitrability of subject matter of dispute in favor of arbitration.
4. Arbitration.
There is a presumption of arbitrability when contract contains an arbitration clause.
5. Arbitration.
Court should order arbitration of particular grievances unless it may be said with positive assurance that arbitration clause is not
susceptible of interpretation that covers asserted dispute.
6. Labor Relations.
Under collective bargaining agreement provision stating that in disputes not expressly provided for in agreement regarding
established past practices within fire department, arbitrator was to determine whether dispute was arbitrable before addressing its
merits if it was, issue of whether collective bargaining provisions for arbitration of grievances applied to nonconfirmed trainees was an
issue to be decided by arbitrator, not district court.
OPINION
The City of Las Vegas Department of Fire Services (the Fire Department) terminated a Firefighter Trainee. When the International
Association of Firefighters, Local #1285, (the Union) sought arbitration of the termination, the City of Las Vegas (the City) applied for a
district court order to stay the arbitration. The City claimed that because Firefighter Trainee was a probationary position, a terminated
Firefighter Trainee could not pursue arbitration.
position, a terminated Firefighter Trainee could not pursue arbitration. The district court
agreed and granted the stay, and the Union appealed.
We conclude that the district court erred in deciding the arbitrability of the dispute rather
than allowing an arbitrator to decide that question.
FACTS
Thomas Sorenson was a Firefighter Trainee employed by the Fire Department, which
terminated Sorenson on June 17, 1994. The Union represented Sorenson pursuant to a
Collective Bargaining Agreement (CBA) with the Fire Department.
Claiming wrongful termination and seeking reinstatement, Sorenson presented a grievance
form to the Deputy Chief of the Fire Department, then to the Fire Chief, and then to the City
Manager of the City. All three denied the grievance. The Union then requested that the matter
be submitted to final and binding arbitration. The City refused to participate in arbitration,
stating that Sorenson has no rights under the contract as a non-confirmed probationary
employee. The Union requested a panel of arbitrators from the American Arbitration
Association in order to select an arbitrator, and arbitration was set for November 7, 1994. On
October 6, 1994, the City applied to the district court for an order staying arbitration
proceedings.
The district court received and considered a number of documents from the parties in
regard to this application, first of all the CBA. The CBA states that the City recognizes the
Union as the exclusive collective bargaining agent, per NRS Chapter 288, for certain listed
Fire Department employees. Firefighter Trainee is among the list of employees within the
bargaining unit. Article 10 of the CBA sets forth the procedure for settling employee or union
grievances, stating
that any grievance or dispute which may arise between the parties concerning the
interpretation and the application of the expressed provisions of this Agreement shall be
settled in the manner shown below. If a dispute involves an established past practice
within the Fire Department that would be mandatorily negotiable under the provisions
of NRS 288.150, that is not expressly provided for in the provisions of this agreement,
such a dispute may be submitted for resolution as a grievance. In such a case, the
dispute shall be processed in the normal fashion to the arbitrator step. The arbitrator
selected, if any, shall then first rule on the negotiability of the issue and whether or not
the issue was a past practice. If the arbitrator rules the dispute to be arbitratable [sic],
the same arbitrator shall hear the merits of the underlying grievance.
[sic], the same arbitrator shall hear the merits of the underlying grievance.
The grievance procedure entails five steps: oral discussion with an employee's immediate
supervisor, filing a written grievance with the employee's Deputy Chief, presenting the
grievance to the Fire Chief, presenting the grievance to the City Manager, and final and
binding arbitration. Article 10 provides: Actions taken for discharge and/or disciplinary
reasons, should a dispute arise, shall be settled through this grievance procedure, beginning at
the second step.
Article 9(A) of the CBA states: The City may adopt and amend Fire Department Rules
and Regulations consistent with NRS and this Agreement. These shall be the rules by which
the City administers the Fire Department and to which all employees covered by this
Agreement are bound. Article 9(D) sets forth the procedure for changing such rules. Article
9(E) states that any dispute concerning any proposed or implemented modification or
interpretation of the Fire Department Rules and Regulations shall be subject to the provisions
of the Grievance Procedure, including arbitration, in this Contract. Absent an emergency, a
disputed change will not go into effect until the dispute is settled. A dispute as to whether or
not a rule change involves a mandatory subject of bargaining must be submitted to the Local
Government Employee Management Relations Board pursuant to NRS Chapter 288 before
going to arbitration.
Article 9(I) states that the Fire Department Standard Operating Procedures (SOP) must be
issued in a manual. Any changes to the SOP manual must be issued and inserted within
fifteen days of the change. The Union may request that a change to the SOPs be submitted as
a Fire Department rule and regulation change within ten days of its insertion.
The relevance of the City's Civil Service Rules, effective September 2, 1992, was also at
issue. The Rules' stated purpose is,
when not in conflict with existing collective bargaining agreements, to set forth rules
and regulations that provide for:
. . . .
c. The classification of positions.
. . . .
e. Procedures for disciplinary actions against, and the discharge of, employees.
The Civil Service Rules state that employees serving in Trainee classifications shall hold
probationary status. The Rules provide that nonconfirmation of a probationary employee
terminates the employee and that nonconfirmation shall occur for one or more of four
reasons: unsatisfactory performance or conduct, unsuitability to the work, inability to
perform essential functions, or failure to meet appointment standards or classification
specifications.
employee and that nonconfirmation shall occur for one or more of four reasons:
unsatisfactory performance or conduct, unsuitability to the work, inability to perform
essential functions, or failure to meet appointment standards or classification specifications.
Provisions in the Rules allowing appeal of a termination decision apply only to employees
who have completed their initial probationary period.
The City presented the district court with a small portion of a Positive Discipline
manual, which stated that its procedures apply only to employees who have completed their
initial probationary period. It also stated that during the probationary period, the employer can
terminate the employee without going through disciplinary steps or providing formal
notice.
The district court received a copy of an April 1989 arbitration decision. This decision
concluded that Article 9 of the CBA subsumes and encompasses the procedures and
standards for discipline within the Department of Fire Services through Rules and
Regulations, Standard Operating Procedures, and Positive Discipline, thus estopping the City
. . . from relying on the adopted Civil Service Rules as a basis for discipline.
The district court held a hearing on the matter on October 27, 1994, and on January 10,
1995, it issued an order granting the City's motion to stay the arbitration proceedings. The
court concluded that the Positive Discipline manual and the Civil Service Rules applied and
precluded arbitration of Sorenson's grievance. The Union moved for reconsideration of the
order, and the court denied the motion.
DISCUSSION
[Headnotes 1, 2]
On application, the court may stay an arbitration proceeding commenced or threatened on
a showing that there is no agreement to arbitrate. NRS 38.045(2).
Whether a dispute is arbitrable is essentially a question of construction of a contract.
Thus, the reviewing court is obligated to make its own independent determination on
this issue, and should not defer to the district court's determination. Unless the parties
clearly and unmistakably provide otherwise in their agreement, the question of
arbitrability is to be decided by the district court, not the arbitrator.
Clark Co. Public Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990)
(citation omitted).
[Headnotes 3-5]
Nevada courts resolve all doubts concerning the arbitrability of the subject matter of a
dispute in favor of arbitration. Int'l Assoc.
Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 618, 764 P.2d 478, 480 (1988). There
is a presumption of arbitrability when a contract contains an arbitration clause. Id. at 620, 764
P.2d at 481. Courts should order arbitration of particular grievances unless it may be said
with positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.' Id. (quoting AT&T Technologies v. Communications Workers,
475 U.S. 643, 649 (1986)). AT&T states that when an arbitration clause is broadly worded,
[i]n the absence of any express provision excluding a particular grievance from arbitration,
we think only the most forceful evidence of a purpose to exclude the claim from arbitration
can prevail.' AT&T, 475 U.S. at 650 (quoting Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 584-85 (1960)).
[Headnote 6]
The parties disputed whether or not the CBA provisions for arbitration of grievances
applied to nonconfirmed trainees like Sorenson. This is the kind of dispute that the CBA
states should be resolved by arbitration.
Article 10 of the CBA states that any grievance or dispute which may arise between the
parties concerning the interpretation and the application of the expressed provisions of this
Agreement shall be settled in the manner shown below. The manner set forth includes final
and binding arbitration as the last step. Article 10 also provides that in disputes not expressly
provided for in the CBA regarding established past practices within the Fire Department, the
arbitrator determines whether or not the dispute is arbitrable before addressing its merits if it
is. Article 9(E) of the CBA states that any dispute concerning any proposed or implemented
modification or interpretation of the Fire Department Rules and Regulations shall be subject
to the provisions of the Grievance Procedure, including arbitration.
We conclude that these provisions clearly and unmistakably provide that any dispute over
interpretation and application of the CBA, including the arbitrability of a dispute, is to be
decided by an arbitrator, not a district judge. Cf. Int'l Assoc. Firefighters, 104 Nev. at 619-20,
764 P.2d at 480-81. The City has offered no forceful evidence otherwise. Therefore, the
district court erred in not allowing the arbitrator to determine whether or not the CBA and
other documents at issue allowed Sorenson to pursue arbitration.
CONCLUSION
The CBA provisions clearly and unmistakably provide that an arbitrator is to decide any
dispute over interpretation and application of the CBA, including the arbitrability of a
dispute. Therefore, the district court erred in not allowing the arbitrator to determine
whether or not the CBA and other documents at issue allowed Sorenson to pursue
arbitration.
fore, the district court erred in not allowing the arbitrator to determine whether or not the
CBA and other documents at issue allowed Sorenson to pursue arbitration.
We therefore reverse the district court's order and remand this case for submission to an
arbitrator.
Steffen, C. J., with whom Springer, J., joins, dissenting:
I fully agree with the district court and will therefore adopt its reasoning and decision as
the primary basis for my dissent. There are, however, a few observations that I consider
worthy of comment.
Under the Collective Bargaining Agreement (CBA), Article 4(C), the following
fundamentally sound declaration appears: The City shall have the ultimate right and
responsibility of the local government employer to manage its operation in the most efficient
manner consistent with the best interests of all its citizens, its taxpayers and its employees.
See NRS 288.150(5). It is uncontroverted that firefighter trainees are probationary employees.
Although the position of firefighter trainee is listed in the CBA among the classifications
within the Non-Supervisory bargaining unit, at no place in the CBA does it suggest that
firefighter trainees are subject to the grievance procedure available to regular employees.
It would utterly defeat the purposes for which probationary periods of employment are
created if the Union's position were to prevail. First and foremost among the reasons for
probationary service is to allow the employer (and to a lesser extent the employee) to evaluate
the prospective regular employee without concern over costly contests in the event the
employer concludes that the probationary employee is not sufficiently qualified or suitable for
the position. It hardly needs comment that the position taken by the Union and the majority
will subject the City to costly dispute resolutions that will disserve the obligation and
responsibility of the City to manage its operation in the most efficient manner consistent
with the best interests of its citizens, its taxpayers and its employees. The majority has
effectively undermined the obligation of the City to manage its resources wisely and at
minimal cost to its taxpayers.
The record reflects, in a prior arbitration proceeding, that the Union acknowledges that the
Positive Discipline Manual (PDM) (erroneously referred to by the arbitrator as the
Progressive Discipline Manual) adopted by the City's Department of Fire Services was
mutually negotiated as one of the bases upon which the disciplinary measures taken against
firefighters were covered under the terms of the CBA.
under the terms of the CBA. The PDM states that the positive discipline system does not
apply to employees who have not completed their probationary period. Moreover, the PDM
specifically states that while an employee is on probationary status, either the employee or the
organization can terminate the relationship without notice or undergoing any disciplinary
steps.
The Standard Operating Procedures (SOP) of the Las Vegas Fire Department provide,
inter alia, that all trainees are probationary employees, that a probationary employee who is
not confirmed as a regular employee shall be terminated, and that the Appeals and Hearings
procedures available to regular employees shall have no application to probationary
employees. Moreover, the SOP is specifically recognized in the CBA as binding on
employees covered by the CBA if consistent with the CBA and the Nevada Revised Statutes.
The SOP provisions exempting probationary employees from Appeals and Hearings, and the
provision in the PDM providing for the right to terminate such employees without notice or
engaging the disciplinary system to which regular employees are entitled, do not conflict with
either the CBA or the Nevada Revised Statutes.
Moreover, since the CBA requires that the City provide the Union with any changes or
updates to the SOP, and also provides the Union with the right to challenge any such changes
or updates, it is telling that the aforementioned provisions were not, at least at some point,
challenged by the Union.
I view as significant, the representation by the City in support of its Motion for Stay of
Arbitration Proceedings that [i]t has been consistently and continuously held that the Labor
Agreement and the grievance procedure contained therein does not apply to a non-regular, i.e.
probationary employee of the Department of Fire Services. It appears that the Union has not
seriously controverted that proposition, for the Union attempts to find something significant
in its contention that the City did not, as alleged, simply deny confirmation as a regular
employee to Sorenson, but instead terminated him prior to the expiration of his probationary
period.
I have great difficulty understanding the logic behind the position that the City may, as
specified in the SOP, terminate a probationary employee through non-confirmation of
regular employee statusas the Union apparently acceptsbut may not, prior to the
expiration of a probationary period, terminate the employee after having determined that the
employee will not be retained and confirmed as a regular employee. Apparently the Union
believes that, despite the clear language to the contrary in the PDM indicating that a
probationary employee may be terminated without formal notice, such an employee, no
matter how unsatisfactory or unsuited to the position, is entitled to remain employed until
the end of the probationary period.
unsatisfactory or unsuited to the position, is entitled to remain employed until the end of the
probationary period.
I find it interesting that the Union points to NRS 288.150(2) and the inclusion of
discharge and disciplinary procedures among the scope of subjects of mandatory bargaining
as support for the syllogism that since the statute includes the subject among its list of
mandatory bargaining items, and since the CBA also mandates that its purview cover the
same items, the subject of Sorenson's termination was arbitrable. By the same reasoning,
since the mandatory scope of bargaining under NRS 288.150(2) is limited to the enumerated
items, and since the subject of probationary employment was not on the list, probationary
employment is not a matter for negotiation or arbitration. Indeed, NRS 288.150(3)(c) also
provides that [t]hose subject matters which are not within the scope of mandatory bargaining
and which are reserved to the local government employer without negotiation include[] . . .
[t]he right to determine . . . work performance standards . . . .
Discharge and disciplinary procedures properly apply to regular employees. They do not
apply to probationary employees since, by definition, such an employee is on trial, and if he
or she does not prove himself or herself qualified, the termination is not a form of discipline,
but simply an exercise of the right to evaluate the probationer's work performance and
terminate the employee for not measuring up to the requirements or expectations of regular
employee status. In short, there is no occasion for developing discharge and disciplinary
procedures for probationary employees who are subject to termination simply because they
have failed to qualify for regular employment. To assign to such employees the entire panoply
of disciplinary procedures designed to assure fairness to regular employees prior to their
discharge would be such a costly waste as to undermine the entire purpose for a probationary
period of employee evaluation. In effect, the Union seeks to equate the engagement with
the marriage. I suggest that it not only defies logic, but it is counterproductive and a waste
of the public fisc.
Finally, the mere fact that firefighter trainees are included within the CBA does not to any
degree include them, without mention, in the grievance and disciplinary coverage of the
CBA. Their inclusion in the CBA can otherwise be meaningful in assuring them such
opportunities as the right to vote on matters of concern to the Union.
For the reasons articulated by the district court, and in further consideration of the
abbreviated discussion set forth above, I strongly disagree with the majority and would affirm
the order of the district court staying the arbitration proceedings.
____________
112 Nev. 1328, 1328 (1996) Sonner v. State
MICHAEL HAMPTON SONNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26485
December 20, 1996 930 P.2d 707
Appeal from judgment of conviction pursuant to jury verdict on one count of first-degree
murder with use of a deadly weapon and from sentence of death; and judgments of conviction
on one count of being an ex-felon in possession of a firearm, one count of possession of a
stolen vehicle, and one count of resisting a public officer. Sixth Judicial District Court,
Pershing County; Richard A. Wagner, Judge.
Following jury trial before the district court, defendant was convicted of first-degree
murder with use of deadly weapon and sentenced to death. Defendant appealed. The supreme
court held that: (1) jury instruction on authority of Board of Pardons to modify life sentences
was correct when given, although statutory changes required modification of instruction in
future; (2) motions to recuse judge based on prior attorney/client relationship with prosecutor
and motion to disqualify prosecutor were properly denied; (3) refusal to grant defendant
change of venue was not error; (4) defendant's incriminating statements were voluntary,
notwithstanding defendant's alleged thirst upon arriving at police station following his arrest
or his subsequent withdrawal symptoms from nicotine; (5) autopsy photograph and trooper's
hat were admissible over objection as to their gruesome nature; (6) refusal to grant defendant
further psychological testing in absence of demonstration of need for such testing was not
error; (7) defendant was not entitled to discover trooper's personnel records; (8) prosecutor
did not commit misconduct in closing argument in either guilt or penalty phase; (9) allowing
defendant to exercise his right of allocution to penalty-phase jury was not error,
notwithstanding defendant's use of opportunity to request death penalty; and (10) imposition
of death penalty was not excessive under circumstances.
Affirmed.
[Rehearing pending]
Steven G. McGuire, Public Defender, and James P. Logan, Appellate Deputy Public
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney,
and David K. Neidert, Deputy District Attorney, Pershing County, for Respondent.
Jury instruction in capital murder prosecution informing jury that Board of Pardons had authority to modify sentence of life
without possibility of parole did not violate either State or Federal Constitutions because it was accurate statement of law at time it was
given. Instruction did not run afoul of constraints against arbitrary and capricious sentencing patterns. U.S. Const. amend. 14; NRS
175.161(7).
State Pardons Board does not have power to change either death sentence or sentence of life without possibility of parole to any
lesser or different sentence. NRS 175.161.
When requested by party in capital murder prosecution to inform jury of power of Board of Pardons to modify sentence, court is to
inform jury that law does not allow Board to change either death sentence or sentence of life without possibility of parole to any lesser
or different sentence and that jury may not speculate as to whether sentence imposed may be changed at later date. NRS 175.161.
4. Judges.
Defendant in capital murder prosecution had burden of presenting sufficient grounds for judge's recusal.
5. Judges.
Trial judge in capital murder prosecution properly refused to recuse himself based upon former client-attorney relationship with
prosecuting attorney which ended prior to attorney's deputization as deputy district attorney. Defendant did not show any improper
motive or instance of actual bias on part of district judge.
6. Criminal Law.
Criminal defendant was not entitled to disqualification of deputy district attorney based upon his representation of a criminal
defendant after his appointment where attorney and his firm had withdrawn from all representation of criminal defendants by time of
defendant's motion, rendering it moot, and attorney's conduct had not irreparably tainted proceedings.
7. Criminal Law.
Issue of whether to change trial venue is within sound discretion of trial court and will not be disturbed unless there is clear abuse
of discretion.
8. Criminal Law.
Defendant seeking change of venue must present evidence showing extent of inflammatory pretrial publicity and that such
publicity corrupted trial.
9. Criminal Law.
Defendant failed to show entitlement to change of venue based upon jury bias, notwithstanding detailed account of media reports
and statistics reflecting alleged bias within venire, where actual jurors empaneled assured district court that they would be fair and
impartial in their deliberations, notwithstanding high profile of case involving murder of state trooper prior to trial, and defendant
failed to demonstrate any actual bias on part of jury.
10. Criminal Law.
Where extensive pretrial media coverage of high-profile criminal cases will likely penetrate state, real test in each case for
determining whether change of venue is appropriate is whether jurors, who may have harbored preconceived notions of guilt
or innocence prior to their call to jury service, can set aside such notions and fairly and impartially render
verdict based upon trial evidence.
harbored preconceived notions of guilt or innocence prior to their call to jury service, can set aside such notions and fairly and
impartially render verdict based upon trial evidence.
11. Criminal Law.
Voluntariness of confession must be reviewed under standard of totality of circumstances in particular case with state having
burden of proving voluntariness of confession by preponderance of evidence. U.S. Const. amend. 5.
12. Criminal Law.
Defendant's thirst at time he arrived at police station following his arrest for murder did not render his confession involuntary.
There was no evidence that police took advantage of his physical condition. U.S. Const. amend. 5.
13. Criminal Law.
Incriminating statement made by defendant while incarcerated in jail was not rendered involuntary by jail officer's refusal of
defendant's earlier request for cigarettes in exchange for information. On date that defendant made incriminating statement he initiated
conversation, and there was no evidence that he was promised cigarettes in exchange for statement. U.S. Const. amend. 5.
14. Criminal Law.
Possible addiction to nicotine and withdrawal symptoms from cigarettes did not affect defendant's free will under evidence so as to
render his statement to officers while incarcerated involuntary. U.S. Const. amend. 5.
15. Criminal Law.
When defendant pleads not guilty, he puts all elements of offense at issue.
16. Criminal Law.
In capital murder prosecution in which defendant pleaded both not guilty and not guilty by reason of insanity, admission of slain
trooper's hat and autopsy photograph were relevant for purpose of refuting defendant's plea and proving state's case, notwithstanding
fact that defendant did not deny shooting trooper.
17. Criminal Law.
Probative value of autopsy photograph and slain trooper's hat was not substantially outweighed by danger of unfair prejudice in
capital murder prosecution, even though photograph and hat graphically illustrated violence that ended trooper's life. Items were not
excessively gruesome so as to inflame passions of jury or unfairly prejudice defendant. NRS 48.035.
18. Costs.
Defendant who had already been examined by three psychiatrists was properly refused leave for further testing for organic brain
damage in capital murder prosecution in which defendant pleaded not guilty by reason of insanity, where further testing was not
reasonably necessary for proper diagnosis. Defendant had been provided with reasonable level of expert assistance. U.S. Const. amend.
14; NRS 7.135.
19. Criminal Law.
Refusal to allow defendant in capital murder prosecution to discover slain trooper's personnel records did not violate defendant's
right to all favorable evidence in state's possessions where request was based on nothing more than assertion of general right to search
for whatever mitigating evidence might be found in records and defendant advanced no factual predicate making it
reasonably likely that requested file would yield material information.
no factual predicate making it reasonably likely that requested file would yield material information. Const. art. 1; U.S. Const. amends.
6, 14; NRS 174.245.
20. Constitutional Law; Criminal Law; Homicide.
In capital murder prosecution, refusal of trial court to order state to produce state-prison inmate to testify in penalty phase about
consequences of serving life sentence without possibility of parole and did not violate any due process right defendant might have had
to explain to jury true meaning of punishments they were to consider and did not violate Eighth Amendment right to jury capable of
reasoned moral judgment concerning sentencing options; evidence was irrelevant to sentence. U.S. Const. amends. 8, 14; NRS
175.552(3).
21. Criminal Law.
Indirect references to defendant's failure to testify on his own behalf are constitutionally impermissible. U.S. Const. amend. 5.
22. Criminal Law.
Prosecutor's comment during closing argument, that facts concerning slain trooper's murder were undisputed, was not
impermissible comment on defendant's failure to testify. Defendant's trial strategy was to prove insanity, not that he had not committed
act. U.S. Const. amend. 5.
23. Criminal Law.
In capital murder prosecution, prosecutor's plea for justice in accordance with what criminal justice system required under
circumstances was not impermissible law and order appeal to join with prosecution.
24. Criminal Law.
In closing argument in penalty phase of capital murder prosecution, prosecutor's brief expression of interest in defendant's mother's
failure to testify did not improperly shift burden to defense and did not require remedial action. Comment did not occur during guilt
phase in which state had exclusive burden of proving defendant guilty.
25. Criminal Law.
In capital murder prosecution, permitting defendant to exercise his right of allocution to jury during penalty phase, over his
counsel's objections, was not error, even though defendant used opportunity to request death penalty. Defendant's action was invited
error, and it appeared that defendant's statements were motivated by remorse and fear as to what he might do in future.
26. Homicide.
In capital murder prosecution, it was not improper for trial court to allow jury to consider nonstatutory aggravating circumstances
in addition to nine aggravating circumstances listed in statute. NRS 175.552, 200.033.
27. Homicide.
In capital murder prosecution, substantial evidence supported aggravating circumstances that defendant killed law enforcement
officer engaged in official duties, committed murder to prevent unlawful arrest, previously was convicted of two distinct crimes of
violence, and committed murder while under sentence of imprisonment. NRS 177.055(2).
28. Homicide.
Imposition of death sentence upon defendant convicted of first-degree murder with use of deadly weapon for shooting state trooper
who was engaged in official duties was not excessive. NRS 177.055(2).
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of one count of first-degree murder with
use of a deadly weapon pursuant to a jury verdict and from a sentence of death.
1
Appellant
Michael Hampton Sonner has raised numerous issues pertaining to both the guilt and penalty
phases of his trial. We have carefully reviewed each issue and conclude that none has merit.
Because Sonner was fairly tried, convicted and sentenced, we affirm.
FACTS
On the evening of November 30, 1993, a red sport utility vehicle stopped at the Trinity
Truck Stop at the junction of Interstate 80 and Highway 95, twenty-three miles west of
Lovelock. After pumping $22.00 worth of gas, the driver left without paying.
Trooper Carlos Borland was alerted to what had occurred at the truck stop and eventually
halted the red Chevy Blazer near Lovelock. Prior to the stop, the Chevy Blazer and Borland's
patrol car both passed Steven and Doyle Anderson. As the Andersons approached the patrol
car and the Blazer, Steven Anderson saw Trooper Borland lying on the ground and the Blazer
pulling away from the shoulder. The Andersons stopped to help the stricken officer. Another
passing motorist, Jerold Burkhart, also saw the Blazer speed away. Burkhart stopped and used
Borland's radio to summon help. Borland was transported by ambulance to the Pershing
General Hospital emergency room where doctors vainly attempted to stabilize him before he
succumbed to a gunshot wound to the head. The Andersons and Burkhart testified that
Borland's pistol was still in its holster.
On December 1, 1993, a stolen red Chevy Blazer was found abandoned in Churchill
County. Shoe prints were observed leading away from the vehicle in the direction of the Clan
Alpine Mountains. A helicopter reconnaissance team eventually saw what appeared to be a
campfire several miles from the Blazer. A S.W.A.T. team landed, and a standoff ensued
during which Sonner appeared suicidal when he raised his weapon in the direction of the
officers in an attempt to draw their fire. The officers fired two shots, and although Sonner
was not hit, he dropped his gun and surrendered.
__________

1
Although appellant has indicated that he is also appealing from judgments of conviction on one count of being
an ex-felon in possession of a firearm, one count of possession of a stolen vehicle, and one count of resisting a
public officer, appellant has failed to address any of these counts in his briefs and argument on appeal. We
therefore consider these issues abandoned and will not address them in this opinion.
officers fired two shots, and although Sonner was not hit, he dropped his gun and
surrendered.
At trial, Sonner never disputed that he killed Trooper Borland. A jury convicted Sonner of
first-degree murder with use of a deadly weapon and sentenced him to death. Sonner now
appeals the judgment of conviction and imposition of the death penalty.
DISCUSSION
Jury instruction on the authority of the board of pardons
[Headnote 1]
Sonner contends that the district court erred in instructing the jury that under certain
circumstances and conditions the State Board of Pardons Commissioners has the power to
modify sentences.
2
Sonner argues that, in his case, the instruction violated his constitutional
rights to due process and a reliable sentence because it misled the jury into believing that
parole was a future possibility even if it sentenced him to life without possibility of parole.
We disagree.
The instruction given in this case is consistent with the dictates of NRS 175.161(7)
3
and,
as previously held by this court, is constitutional under both the state and federal constitutions
because it does not mislead the jury. See Petrocelli v. State, 101 Nev. 46, 54-56, 692 P.2d
503, 510-11 (1985). The instruction given in this case is identical to the one set forth by this
court in Petrocelli. At the time Sonner was sentenced, the instruction was an accurate
statement of the law. Moreover, as we observed in Petrocelli, the United States Supreme
Court has held that such an instruction does not run afoul of constraints against arbitrary and
capricious sentencing patterns, and that the possibility of commutation is not too
speculative of [sic] an element for the jury's consideration."
__________

2
The district court instructed the jury as follows:
Instruction No. 23. Life imprisonment with the possibility of parole is a sentence to life imprisonment
which provides that the defendant would be eligible for parole after a period of 10 years. This does not
mean that he would be paroled after ten years but only that he would be eligible after that period of time.
Life imprisonment without the possibility of parole means exactly what it says, that the defendant shall
not be eligible for parole.
If you sentence the defendant to death you must assume that the sentence will be carried out.
Although under certain circumstances and conditions the State Board of Pardons Commissioners has the
power to modify sentences, you are instructed that you may not speculate as to whether the sentence you
impose may or may not be changed at a later date.

3
NRS 175.161(7) provided at the time of Sonner's trial that, upon request of either party, the jury must be
informed that in cases where life without possibility of parole is a possible penalty, such penalty does not
exclude executive clemency.
and capricious sentencing patterns, and that the possibility of commutation is not too
speculative of [sic] an element for the jury's consideration. Id. at 55, 692 P.2d at 510 (citing
California v. Ramos, 463 U.S. 992 (1983)). Sonner was not prejudiced by the instruction.
[Headnotes 2, 3]
Although the instruction given in this case accurately represented the law at the time of
Sonner's trial, subsequent changes in the law require a modification in the Petrocelli
instruction effective immediately. During the 1995 legislative session, Chapter 213 of NRS
was amended to prohibit the board of pardons from commuting a sentence of death, or a
sentence of life without possibility of parole, to a sentence that would allow parole. 1995
Nev. Stat., ch. 444, 29 at 1360 (codified at NRS 213.085).
4
To comport with this change,
the fourth paragraph of the Petrocelli instruction
5
should now read:
Although under some limited circumstances and conditions the State Board of
Pardons Commissioners has the power to modify certain sentences, the law does not
allow the Board to change either a death sentence or a sentence of life without the
possibility of parole to any lesser or different sentence. Therefore, you are instructed
that you may not speculate as to whether the sentence you impose may be changed at a
later date.
__________

4
The amendment added a new section to chapter 213, which reads as follows:
1. If a person is convicted of murder of the first degree before, on or after July 1, 1995, the board shall
not commute:
2. If a person is convicted of any crime other than murder of the first degree on or after July 1, 1995, the
board shall not commute:
NRS 213.085.

5
The fourth paragraph currently reads:
Although under certain circumstances and conditions the State Board of Pardons Commissioners has the
power to modify sentences, you are instructed that you may not speculate as to whether the sentence you
impose may be changed at a later date.
Petrocelli, 101 Nev. at 56, 692 P.2d at 511.
Motion to recuse the judge or disqualify the prosecutor
Sonner contends that the district judge erred when he refused to disqualify the prosecuting
attorney or recuse himself because of a prior attorney-client relationship between the judge
and the prosecuting attorney, Brent Kolvet. Kolvet had represented the judge in an unrelated
matter involving a disgruntled litigant.
[Headnotes 4, 5]
Sonner had the burden of presenting sufficient grounds for the judge's recusal; and this
court has always accorded substantial weight to a judge's determination that he can fairly and
impartially preside over a case. See Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296,
1299 (1988). However, Sonner produced no evidence of any improper motive or instances of
actual bias on the part of the district judge. Moreover, an allegation of bias in favor or
against an attorney for a litigant generally states an insufficient ground for disqualification
because it is not indicative of extrajudicial bias against a party '. In re Petition to Recall
Dunleavy, 104 Nev. 784, 790, 769 P.2d 1271, 1275 (1988) (quoting Gilbert v. City of Little
Rock, 722 F.2d 1390, 1398 (8th Cir. 1983)).
Additionally, although Judge Wagner verbally terminated the attorney-client relationship
with Kolvet on January 5, 1994the same day Kolvet was deputized as a deputy district
attorney for Pershing Countythe record reflects that the attorney-client relationship
effectively concluded at least 62 days before the verbal discharge on January 5th. On October
29, 1993, Kolvet sent Judge Wagner a letter indicating that the Ninth Circuit had denied
rehearing to the litigant who had prompted Kolvet's representation of Judge Wagner. This
appears to be the last formal involvement that Kolvet had with Judge Wagner's case. For
these reasons, we conclude that the judge properly refused to recuse himself.
[Headnote 6]
Sonner also contends that Kolvet was not authorized to prosecute him because Kolvet
violated state law by representing a criminal defendant while prosecuting Sonner. The
argument is without merit. This court previously issued an order in the instant case
concluding that because Kolvet and his firm had withdrawn from all representation of
criminal defendants, Sonner's motion to disqualify Kolvet was moot. Our order established
the law of the case and impliedly acknowledged that Kolvet's conduct had not irreparably
tainted the proceedings that occurred during the conflict. The resolution of this issue posed no
prejudice to Sonner.
Motion for change of venue
[Headnotes 7, 8]
The issue of whether to change trial venue is within the sound discretion of the trial court
and will not be disturbed unless there is a clear abuse of discretion. Rogers v. State, 101 Nev.
457, 462, 705 P.2d 664, 668 (1985). Additionally, a defendant seeking a change of venue
must present evidence showing the extent of inflammatory pretrial publicity and that such
publicity corrupted the trial. Id.
[Headnote 9]
Despite Sonner's detailed account of media reports and statistics reflecting bias within the
venire, he has utterly failed to demonstrate actual bias on the part of the jury empaneled to
decide his fate. Moreover, the jurors assured the district court that they would be fair and
impartial in their deliberations. This court previously has upheld the denial of motions for
change of venue based upon such assurances even where pretrial publicity has been
pervasive. See Ford v. State, 102 Nev. 126, 129, 717 P.2d 27, 30 (1986); Gallego v. State,
101 Nev. 782, 785, 798, 711 P.2d 856, 856, 859 (1985); Kaplan v. State, 96 Nev. 798, 801,
618 P.2d 354, 356 (1985).
[Headnote 10]
In the extensively covered sex slave case, Gallego, also tried in a small community, we
observed:
Given the realities of our age, it is unlikely that a high-profile criminal defendant
will be presented with a venire of uninformed individuals from which to select a jury.
Indeed, it is conceded by many jurists that such a panel would least likely provide the
considered, enlightened judgment that can best serve the demands of trial.
Gallego, 101 Nev. at 785, 711 P.2d at 859. We also noted that extensive pretrial media
coverage of high-profile criminal cases will likely penetrate every nook and cranny of our
state capable of hosting such trials. Therefore, the real test in each case is whether jurors who
may have harbored preconceived notions of guilt or innocence prior to their call to jury
service, can set aside such notions and fairly and impartially render a verdict based upon the
trial evidence. See id. at 785-86, 711 P.2d at 859.
Because Sonner was unable to demonstrate actual prejudice resulting from pre-trial
publicity, he insists that this court must presume prejudice based upon the facts of his case.
The presumed prejudice standard is rarely applicable. Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 554 (1976). In only one case decided by the United States Supreme Court has the
Court determined that prejudice must be presumed based upon pretrial publicity, see
Rideau v. Louisiana, 373 U.S. 723 {1963), and there are "only a few additional cases in
which relief was granted on the basis of presumed prejudice." Coleman v. Kemp, 77S F.2d
14S7, 1490 {11th Cir.
prejudice must be presumed based upon pretrial publicity, see Rideau v. Louisiana, 373 U.S.
723 (1963), and there are only a few additional cases in which relief was granted on the
basis of presumed prejudice. Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985).
In Rideau, a criminal defendant's videotaped confession of robbery, kidnapping, and
murder was broadcast three times by a local television station. These broadcasts were seen by
24,000, 53,000, and 29,000 viewers, respectively, in a community of 150,000. We conclude
that none of the pretrial publicity about Sonner's case
6
rises to the level of the publicity that
was presumed prejudicial in Rideau. There is simply no basis in the record for impeaching the
constitutional quality of Sonner's jury. Accordingly, this issue is without merit.
Admissibility of incriminating statements
Sonner contends that two incriminating statements should have been excluded from
evidence. The first statement was made while Sonner was being transported to Lovelock.
After having been advised of his Miranda rights, Sonner stated that Borland came to his
vehicle and asked him to get out. Sonner then stated that he was not about to be taken into
custody and that he had beaten Borland to the draw. Subsequently, Sonner was re-advised
of his Miranda rights, and a police officer recorded a rehashing of the prior conversation.
Sonner contends that the latter statement was made involuntarily.
[Headnote 11]
Voluntariness must be reviewed under a standard of the totality of the circumstances in the
particular case. Passama v. State, 103 Nev. 212, 214, 735 P.2d 321, 323 (1987). The State has
the burden of proving the voluntariness of a confession by a preponderance of the
evidence.
__________

6
A number of newspaper articles detailed the financial impact of the case on Pershing County; the impact on
the victim's family; posthumous honors awarded to the victim; facts adduced at the preliminary hearing,
including details of the shooting, ensuing manhunt and arrest, as well as the statement: When in custody,
Sonner confessed to a Nevada Division of Investigation's officer that he had shot Borland; attempts by
defense counsel to make sanity an issue; the process and results of evaluations to determine whether Sonner was
competent to stand trial; admissions by Sonner concerning other killings; details regarding the nature and extent
of police investigation and evidence testing; photographs, including the crime scene, the victim's grieving
parents and a memorial site at the location of the alleged shooting; the victim's funeral; Sonner's criminal history,
including alleged prison escapes; evaluations of whether Sonner would be able to escape from Pershing County
Jail; references to Sonner's efforts to obtain extraordinary relief and a stay in the trial; references to the start and
continuation of efforts to select the jury; characterizations of Sonner as judge, jury and executioner; and
several letters to the editor, one of which characterized Sonner as the little maggot; and numerous broadcasts
in the electronic media.
burden of proving the voluntariness of a confession by a preponderance of the evidence.
Stringer v. State, 108 Nev. 413, 418, 836 P.2d 609, 612 (1992). In making this determination,
the mere examination of the confessant's state of mind can never conclude the due process
inquiry. Colorado v. Connelly, 479 U.S. 157, 165 (1986). There must also be some sort of
state action tending to exploit the confessant's mental state. Id.
[Headnote 12]
The record is devoid of any facts supporting Sonner's contention that he was coerced or
manipulated into incriminating himself. Although he apparently was thirsty prior to arriving
in Fallon, the record reveals no evidence that the police took advantage of his physical
condition. See United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) (fatigue does not
automatically render a confession involuntary). In fact, the attending officer was solicitous of
Sonner's comfort and properly read Sonner his Miranda rights, which Sonner voluntarily
waived. Our review supports the conclusion that Sonner's statement was voluntary.
[Headnote 13]
Sonner also contends that a second incriminating statement, made while in jail, was
involuntarily given in exchange for cigarettes. Although a jail officer refused Sonner's earlier
requests for cigarettes in exchange for information, on the date that Sonner made the
statement at issue he initiated the conversation and there is no evidence to indicate that he
was promised cigarettes in exchange for his statement. Additionally, Sonner was again
notified of his Miranda rights and told that his attorney probably would not want him to talk.
Sonner nevertheless insisted on speaking.
[Headnote 14]
Finally, Sonner's contention that the statement was involuntary because he was suffering
from substance withdrawal, is meritless. There is nothing in the record to indicate that a
possible addiction to cigarettes affected his free will as he made the statement. Therefore, we
conclude that Sonner's statement while in jail was voluntary.
Admissibility of autopsy photograph and trooper hat
[Headnotes 15, 16]
Sonner challenges the district court's admission of Trooper Borland's hat and autopsy
photograph into evidence because he did not dispute that he shot Borland, and the photograph
and hat assertedly proved nothing and served only to inflame the jury. We disagree. Sonner
pleaded both not guilty and not guilty by reason of insanity. When a defendant pleads not
guilty, he puts all the elements of the offense at issue.
elements of the offense at issue. State v. Foster, 623 P.2d 1360, 1363 (Kan. 1981); see also
People v. White, 606 P.2d 847, 849 (Colo. 1980) (photographs providing proof as to matters
which have been stipulated to by the defendant are not inadmissible); Sanders v. State, 96
Nev. 341, 343, 609 P.2d 324, 326 (1980) (prosecutor need not stipulate to the existence of
any elements of the crime he is attempting to prove if the stipulation will impair the
effectiveness of the case). We conclude that the photograph and hat were relevant for the
purpose of refuting Sonner's plea and proving the State's case with essential facts relating to
Borland's murder. See Dearman v. State, 93 Nev. 364, 369, 566 P.2d 407, 410 (1977).
[Headnote 17]
NRS 48.035 provides that evidence, although relevant, may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
confusing the jury. The decision to admit such evidence is within the sound discretion of the
trial court. Redmen v. State, 108 Nev. 227, 231-32, 828 P.2d 395, 398 (1992). Although the
photograph and the hat graphically illustrated the violence that ended Trooper Borland's life,
we conclude that they were not excessively gruesome so as to inflame the passions of the jury
or unfairly prejudice Sonner's right to a fair trial. See Clem v. State, 104 Nev. 351, 356, 760
P.2d 103, 106 (1988).
Requests for psychological testing
[Headnote 18]
On the eve of trial, after the jury had been empaneled, Sonner moved the district court for
leave to perform further testing for organic brain damage to support an insanity defense, even
though prior to Sonner's motion, he was examined by three psychiatrists. The district court
denied the motion, ruling that further testing was not reasonably necessary for a proper
diagnosis of organic brain damage. The court's decision was based in part on an affidavit
from a neurologist who felt that subjecting Sonner to additional tests was unnecessary
because EEG's and a BAER test taken a few days previously revealed no organic brain
damage.
Sonner contends that he was entitled to the requested tests under NRS 7.135
7
and that he
has a due process right to prove that he was insane at the time he killed Borland, see Ake v.
Oklahoma, 470 U.S. 6S, S2-S3 {19S5); Lickey v.
__________

7
NRS 7.135 provides:
The attorney or attorneys appointed by a magistrate or district court to represent a defendant are entitled,
in addition to the fee provided by law for their service, to be reimbursed for expenses reasonably incurred
by him or them in representing the defendant and may employ, subject to the prior approval of the
magistrate or district court in an ex parte application, such investigative, expert or other services as may
be necessary for an adequate defense.
that he was insane at the time he killed Borland, see Ake v. Oklahoma, 470 U.S. 68, 82-83
(1985); Lickey v. State, 108 Nev. 191, 194, 827 P.2d 824, 828 (1992). Although Sonner was
entitled to attempt to prove his theory of defense, the law does not require an unlimited
expenditure of resources in an effort to find professional support for his theory. Sonner was
examined by three psychiatrists; he was thus provided with a reasonable level of expert
assistance. See Pertgen v. State, 105 Nev. 282, 284, 774 P.2d 429, 430-31 (1989) (Nothing
in the Ake opinion suggests that a State is constitutionally obligated to provide a defendant as
many psychiatrists as it takes to come up with one who will proclaim the defendant insane at
the time of his offense.).
In order to obtain testing beyond that provided by the first three psychiatrists, Sonner had
to demonstrate a need for such testing. See State v. District Court, 85 Nev. 241, 244, 453 P.2d
421, 423-24 (1969). We conclude that Sonner failed to demonstrate such a need, and,
moreover, the affidavit submitted in response to the motion indicated that there was no need
for additional testing.
Discovery of the victim's personnel records
[Headnote 19]
Sonner contends that it was error to deny his motion to discover the victim's personnel
records in order to rebut State evidence of Borland's value as a law enforcement officer and
an individual. Sonner's claim is allegedly supported by NRS 174.245,
8
Article 1 of the
Nevada Constitution, the Sixth and Fourteenth Amendments to the Federal Constitution, and
the Brady doctrine. Sonner is wrong.
Although the State may not withhold evidence favorable to the accused and material to
either guilt or sentence, the State is under no obligation to accommodate a defendant's desire
to flail about in a fishing expedition to try to find a basis for discrediting a victim. See State v.
Blackwell, 845 P.2d 1017, 1021 (Wash. 1993) (Defense counsel's broad, unsupported claim
that the police officers' personnel files may lead to material information does not justify
automatic disclosure of the documents.). As the Washington Supreme Court observed: A
defendant must advance some factual predicate which makes it reasonably likely the
requested file will bear information material to his or her defense.
__________

8
Upon motion of a defendant the court may order the district attorney to permit the defendant to inspect
and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or
portions thereof, which are within the possession, custody or control of the state, upon a showing of
materiality to the preparation of his defense and that the request is reasonable.
the requested file will bear information material to his or her defense. A bare assertion that a
document might' bear such fruit is insufficient. Id. at 1022; see also People v.
Gissendanner, 399 N.E.2d 924, 928 (N.Y. 1979) (What [the decisions] do call for is the
putting forth in good faith of some factual predicate which would make it reasonably likely
that the file will bear such fruit and that the quest for its contents is not merely a desperate
grabbing at a straw.).
Sonner's request was based on nothing more than the assertion of a general right to search
for whatever mitigating evidence might be found in Borland's records. Sonner failed to put
forth any theory of relevance beyond an unfocused general statement. For example, if Sonner
had presented a foundation for believing that Borland had a reputation for being an
aggressive trooper who, consistent with his reputation, provoked Sonner's action, this might
have been sufficient to warrant discovery of corroborating evidence in Borland's file. See
Jeffrey F. Ghent, Annotation, Accused's Right to Discovery or Inspection of Records of Prior
Complaints Against, or Similar Personnel Records of, Peace Officer Involved in the Case, 86
A.L.R.3d 1170, 1175 (1978). However, the evidence supports no such theory as Borland had
not even drawn his weapon when he was gunned down. The district court did not abuse its
discretion in denying Sonner's motion for discovery.
Testimony during penalty phase
[Headnote 20]
Sonner demanded that the State produce a state-prison inmate, Billy Ray Farmer, to testify
about the consequences of serving a life sentence without the possibility of parole. The
district court refused, concluding that the testimony of Farmer was irrelevant. Sonner
contends that this ruling violated his due process right to explain to the jury the true meaning
of one of the punishments they were to consider, and violated his Eighth Amendment right to
a jury capable of a reasoned moral judgment concerning its sentencing options, and whether
death, rather than some lesser sentence, ought to be imposed.
9

NRS 175.552(3) provides that, during the sentencing hearing, evidence may be presented
concerning aggravating and mitigating circumstances relative to the offense, defendant or
victim and on any other matter which the court deems relevant to sentence, whether or not the
evidence is ordinarily admissible. We conclude that the evidence was irrelevant to the
sentence. Additionally, as the district court noted, both sides could probably empty the prison
of various people doing life without the possibility of parole, and each one would have a
different concept of what that means.
__________

9
Sonner provides no legal authority to support these contentions.
the prison of various people doing life without the possibility of parole, and each one would
have a different concept of what that means. This highly tenuous, unsupported, and irrelevant
assignment of error is simply without merit.
A. The guilt phase
Sonner contends that the prosecutor made two comments during closing arguments
10
that
constituted indirect references to his failure to take the witness stand and testify on his own
behalf. He contends that a third comment
11
constituted an impermissible law and order
appeal to join with the prosecution. Neither contention has merit.
[Headnotes 21, 22]
Indirect references to a defendant's failure to testify on his own behalf are constitutionally
impermissible. Burke v. Greer, 756 F.2d 1295, 1300-01 (7th Cir. 1985). However, the
prosecutor in the instant case made no allusion to Sonner's failure to testify. The prosecutor
merely drew the jury's attention to the fact that the facts of record concerning Trooper
Borland's murder were undisputed. Sonner's trial strategy was to prove insanity, and his
counsel also noted that the essential facts were not in dispute.
12

__________

10
The prosecutor stated:
That's what occurred on the 30th; facts that are not in dispute in this case. There's been no contradiction
of that as being the facts that happened on the 30th.
The prosecutor continued:
What the defense argues in this case are the experts. You did not hear them argue the facts. You did not
hear them apply the facts that occurred when Carlos Borland was shot and murdered. The reason is
because the facts clearly do not add up to what they want you to believe.

11
The prosecutor remarked in conclusion:
We would ask again that you return the verdicts that we've requested of guilty on all counts, including the
count of first degree murder in this case.
We ask that the tragedy that's before you not be compounded and that the verdicts reflect the justice that
the system requires.

12
Sonner's counsel argued:
In this case the burden of proof is on the defense to show that Mr. Sonner was insane under the law at the
time that he shot Officer Borland, and we have never disputed any of the allegations about the facts of the
criminal charges. We have come into court and presented substantial evidence that he was insane.
. . . .
The State brought in a parade of witnesses to prove what the defense
The prosecutor's argument was proper and did not impinge upon Sonner's Fifth Amendment
rights.
[Headnote 23]
Similarly, the prosecutor's plea for justice in accordance with what the criminal justice
system requires under the circumstances is not improper argument; neither does it approach
in kind the impropriety found by this court in previous cases. See, e.g., Nevius v. State, 101
Nev. 238, 248, 699 P.2d 1053, 1059 (1985) (prosecutor's statement that the State had a right
to have the defendant convicted, was improper); McGuire v. State, 100 Nev. 153, 158, 677
P.2d 1060, 1064 (1984) (prosecutor's statement that the jury would have no standing to
complain if they acquitted the defendant and he raped again, was improper).
B. The penalty phase
Sonner contends that during closing arguments at the penalty phase, the prosecutor
improperly commented on Sonner's failure to call his mother as a witness.
13
Sonner argues
that the comment improperly shifted the burden of persuasion, violated due process, and
constituted plain error.
This court has held that generally, the State may not comment on a defendant's failure to
call a witness. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990). We have also
recognized an exception to this general rule. In Colley v. State, 98 Nev. 14, 16, 639 P.2d 530,
532 (1982), this court held that it was not improper for the prosecutor to comment on the
absence of a witness where the defendant testified concerning an alibi witness and thus
opened the door for the prosecution to rebut that testimony with implications concerning the
failure of the alibi witness to appear on the defendant's behalf. In the instant case, defense
counsel told the jury during opening argument that it would hear from Sonner's mother, who
would presumably provide the testimonial support for counsel's factual statements.
__________
didn't dispute; and that is the possession of the gun, the car, the shooting and to show you the location of
the fires and footsteps and everything else . . . .

13
During opening statements, Sonner's counsel stated:
You'll also hear for the first time from Michael's natural mother, Phyllis, a woman who raisedif you
want to call it thatMichael for the first three years of his life, who turned Michael over to his father and
basically who had little or any contact over the guidance of Michael following that.
During closing arguments, the prosecutor made the following comment:
What is interesting in part is that they had told you at the start of that process that they were going to have
the mother of Mr. Sonner testify but she didn't appear. I don't know why, but it's interesting that she didn't
take the stand and testify in this case.
monial support for counsel's factual statements. Although the statement was not evidence, it
did constitute factual representations to the jury that never materialized in the form of
testimony by the mother.
[Headnote 24]
Although we need not determine whether the unfulfilled opening statement by defense
counsel justified a responsive comment by the State during the penalty phase of trial, we
conclude that in any event, the brief comment by the prosecutor does not require remedial
action by this court. The harmless comment did not occur during the guilt phase, where the
State has the exclusive burden of proving the defendant guilty beyond a reasonable doubt.
During the penalty phase, the defendant has the burden of presenting mitigating evidence, if
any exists. See Bishop v. State, 95 Nev. 511, 517, 597 P.2d 273, 276 (1979). Therefore, the
prosecutor's brief expression of interest in the mother's failure to testify could not have
improperly shifted the burden to the defense. This issue is without merit.
Sonner's comments to the jury
[Headnote 25]
Sonner contends that the district court should not have allowed him to address the jury
during the penalty phase, over his counsel's objections, and request the death penalty
14
because his statements went beyond the scope of that which is permissible.
This court has recognized a defendant's right to stand before the sentencing authority and
present an unsworn statement in mitigation of sentence, including statements of remorse,
apology, chagrin, or plans and hopes for the future.' Homick v. State, 108 Nev. 127, 133,
825 P.2d 600, 604 (1992) (quoting DeAngelo v. Schiedler, 757 P.2d 1355, 1358 (Or. 1988)).
Moreover, it has been held that this right of allocution may even be used "to plead for
maximum punishment in an attempt to achieve some purported good."
__________

14
Sonner made the following statement to the jury:
First, I would like to let the jury know that I have caused a lot of heartache and pain and death; also, to
the families and you, my family, I am deeply sorry for all the pain that I havethat they have gone
through.
I know that I have caused and done wrong, but I feel there isthere were problems in my head. The
psychiatrists, Dr. Foster and Dr. Rosenthal, said or stated that they felt that I had some mental problems. I
did not give my lawyers much of a way to work with this case, except for a plea of insanity, and since I
am in fact found guilty.
People need a little lovin', and God it's sad all the hell that they have to go through to find some.
I would also like to let you know the pain and anguish in my past and present mind. Ever since it has been
getting worse and I know I can't control it, and I would ask you to put me out of my misery.
used to plead for maximum punishment in an attempt to achieve some purported good.
DeAngelo, 757 P.2d at 1358.
Not only was this invited error, but it appears that Sonner's statements were motivated
by remorse and fear as to what he might do in the future. As such, his remarks were
permissible and we conclude that the district court did not err in permitting Sonner to
exercise his right of allocution.
Constitutionality of Nevada's death penalty statute
Sonner first insists that the aggravating factors in NRS 200.033 are vague and fail to
narrow the categories of eligible defendants. This court previously has held that [t]he clearly
defined, statutorily required, aggravating circumstances that must be found to exist beyond a
reasonable doubt serve to narrow and confine the class of persons against whom the death
penalty may apply. Gallego v. State, 101 Nev. 782, 791, 711 P.2d 856, 862 (1985). Sonner
has not provided additional or more persuasive arguments to convince this court to overrule
Gallego.
[Headnote 26]
Second, Sonner contends that the use of unspecified, nonstatutory aggravating
circumstances without instructing the jury as to what is or is not an appropriate aggravating
circumstance, renders Nevada's death penalty statute unconstitutionally vague, fails to
channel the jury's discretion, and results in cruel and unusual punishment. We disagree.
Under NRS 175.552, evidence may be presented on any other matter which the court
deems relevant to sentence, whether or not the evidence is ordinarily admissible. This court
has held that NRS 175.552 is not limited to those nine aggravating circumstances outlined in
NRS 200.033. Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983). Additionally, in
Gallego we held that [w]hether such additional evidence will be admitted is a determination
reposited in the sound discretion of the trial judge. 101 Nev. at 791, 711 P.2d at 863. More
importantly, however, as noted in Gallego, it is only after a jury has found the existence of
statutorily defined aggravating circumstances beyond a reasonable doubt, that a jury may hear
and consider other aggravating (and mitigating) evidence that is relevant to the life of a
defendant as a whole person. Id. at 791, 711 P.2d at 862. Based on these prior decisions, we
conclude that it was not improper for the district court to allow the jury to consider evidence
outside the categories listed in NRS 200.033.
Third, Sonner contends that the death penalty is cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the Federal Constitution and Article 1, Section
6 of the Nevada Constitution.
of the Nevada Constitution. This court previously has upheld the constitutionality of the death
penalty. Bishop v. State, 95 Nev. 511, 517-18, 597 P.2d 273, 276-77 (1979). Sonner has
offered nothing to convince us to do otherwise.
[Headnotes 27, 28]
NRS 177.055(2)
15
mandates the review of every death sentence by this court. In
conformity with the statutory requirements, and in addition to the issues raised by Sonner and
resolved as hereinbefore discussed, we have determined that each of the aggravating
circumstances found by the jury was supported by substantial evidence. Specifically, the
record substantially reveals that Sonner (1) killed a law enforcement officer engaged in
official duties; (2) committed murder to prevent lawful arrest; (3) & (4) previously was
convicted of two distinct crimes of violence; and (5) committed murder while under sentence
of imprisonment.
Moreover, our careful review of the record has revealed no evidence indicating that
Sonner's death sentence was imposed under the influence of passion, prejudice or any
arbitrary factor. We therefore hold that the death sentence was not imposed under the
influence of any such factors.
Finally, having fully considered Sonner as a person, and the gravity and circumstances of
his crime, we have concluded that the death sentence he has received is not excessive.
CONCLUSION
For the reasons discussed above, we conclude that Sonner was fairly tried, convicted and
sentenced. Accordingly, we affirm the judgment entered by the district court in all respects,
including the sentence of death.
__________

15
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
taken:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
____________
112 Nev. 1347, 1347 (1996) Morrow v. Asamera Minerals
JAMES MORROW, Appellant, v. ASAMERA MINERALS, THE STATE INDUSTRIAL
INSURANCE SYSTEM, and NEVADA DEPARTMENT OF
ADMINISTRATION-HEARINGS DIVISION, APPEALS OFFICER, Respondents.
No. 26597
December 20, 1996 929 P.2d 959
Appeal from summary judgment. First Judicial District Court, Carson City; Michael E.
Fondi, Judge.
Claim for industrial insurance benefits was filed with State Industrial Insurance System
(SIIS). Appeals officer affirmed denial of claim by SIIS, concluding that evidence did not
sufficiently prove that claimant's degenerative back condition was caused by his occupation.
Claimant petitioned for judicial review. The district court affirmed. Claimant appealed. The
supreme court held that doctor's finding that it was medically probable that claimant's
occupation contributed to his back condition provided reasonable factual foundation for
remanding case for reconsideration of issue of whether claimant's back condition was
compensable occupational disease.
Easterly & Armstrong, Elko, for Appellant.
Lenard Ormsby, General Counsel, and Glade A. Myler, Associate General Counsel,
Carson City, for Respondents.
On questions of fact, neither supreme court nor district court may substitute its judgment or view of weight of evidence for that of
administrative agency. Reviewing court must confine its inquiry to determining whether record provides substantial evidence to
support administrative agency's decision.
Court review of administrative agency's decision is plenary concerning questions of law. Agency's conclusions of law, which are
necessarily closely related to agency's view of facts, are entitled to deference and will not be disturbed if they are supported by
substantial evidence.
Doctor's finding that it was medically probable that claimant's occupation as miner had contributed to his degenerative back
condition provided reasonable factual foundation for remanding claimant's case to appeals officer to reconsider issue of whether
claimant's back condition was compensable occupational disease, in light of statutory standard as well as rule governing preexisting
diseases or conditions. NRS 617.440.
Industrial insurance benefits claimant has burden of showing that claimed disability or condition was in fact caused or
triggered or contributed to by industrial injury and not merely result of natural progression of preexisting
disease or condition.
claimed disability or condition was in fact caused or triggered or contributed to by industrial injury and not merely result of natural
progression of preexisting disease or condition.
OPINION
Per Curiam:
Appellant James Morrow, a miner with thirty years experience, filed a claim with the State Industrial Insurance System (SIIS)
alleging that he suffered from an occupational disease in his lower back. SIIS conducted a medical evaluation, and summarily denied
Morrow's claim.
After unsuccessfully appealing the denial of his claim to both the hearing officer and the appeals officer, who accorded Morrow a de
novo hearing, Morrow filed a petition for judicial review in the district court. The district court denied Morrow's petition and affirmed the
decision of the appeals officer.
For reasons hereinafter discussed, we reverse and remand to the district court with instructions that the matter be remanded to the
appeals officer by the district court for reconsideration based upon State Industrial Insurance System v. Kelly, 99 Nev. 774, 775-76, 671
P.2d 29, 30 (1983).
FACTS
Appellant James Morrow worked as an underground miner for numerous companies throughout the western United States for
approximately thirty years. He spent the last five years of his underground mining career in Nevada, and the final eight months working for
Asamera Minerals in a mine located between Reno and Fernley.
In addition to drilling and blasting, Morrow's job responsibilities included timbering unstable ground, which required the lifting of
large timbers having an average weight of 350 pounds. Additional duties included hauling track rail twenty feet in length and weighing 200
pounds. Morrow testified that he lifted timbers on a daily basis for thirty years. Throughout his career, Morrow intermittently sought
chiropractic care to relieve his back strain; however, in July of 1991, during his tenure with Asamera Minerals, Morrow sought the medical
advice of an orthopedist, Dr. Stephen Dow. Dr. Dow notified the Bureau of Vocational Rehabilitation that Morrow's L5-S1 disc was
herniated and identified the cause as chronic occupational stress. In May of 1992, shortly after receiving Dr. Dow's work-related
diagnosis, Morrow, through his counsel, filed a claim with SIIS. SIIS frequently relies on the date of diagnosis as the date of injury in
occupational disease claims. Dr. Dow ultimately performed a surgical fusion at the L5-S1 level in October of
1992.
occupational disease claims. Dr. Dow ultimately performed a surgical fusion at the L5-S1
level in October of 1992.
SIIS conducted a bifurcated medical evaluation by initially exploring the medical
probability of an occupational disease causing Morrow's condition, and then determining
whether an isolated traumatic incident caused Morrow's back problems. In considering
Morrow's lengthy history of back problems, SIIS's medical advisor concluded that Morrow's
ailments did not arise exclusively out of his work. Further, the medical advisor failed to
identify a specific traumatic incident, a condition potentially compensable under the Nevada
Industrial Insurance Act. Based upon the medical advisor's evaluation, SIIS denied Morrow's
claim.
Morrow appealed the denial of his claim to the hearing officer, who affirmed SIIS's
decision on grounds that the claim was untimely filed. Morrow thereafter sought review by
the appeals officer.
In proceedings before the appeals officer, William M. Edwards, M.D., Chief Medical
Advisor for SIIS, disagreed with Dr. Dow's medical assessment that Morrow's back problems
were occupationally related. Despite never having examined Morrow, Dr. Edwards testified
that it was medically unreasonable to characterize Morrow's back problems as an
occupational disease, and concluded that Morrow's complaints were not job related. Dr.
Edwards based his conclusions on his inability to ascribe an acute traumatic incident to
Morrow's condition, and the pervasiveness of degenerative back problems among the general
population. On the issue of causation, upon further questioning by the appeals officer, Dr.
Edwards conceded that Morrow's occupation may have contributed to the condition of his
back. Following an unsuccessful motion by SIIS to dismiss Morrow's claim on the basis of an
untimely filing, the appeals officer retained jurisdiction, deferred ruling on the substantive
issue of causation, and remanded the case for an independent medical evaluation in order to
determine whether a compensable claim existed.
The appeals officer directed that Dr. James Rappaport, of the Sierra Regional Spine
Institute, review the medical records and make a recommendation as to whether a causal
connection existed between Morrow's back condition and his employment. Dr. Rappaport's
sole inquiry was confined to determining whether Morrow's back problems were degenerative
in nature and thus caused by any number of factors outside the scope of his employment, or
whether Morrow's employment constituted the source of his back problems.
Dr. Rappaport, after concluding that an industrial accident did not occur in the case of
Mr.
did not occur in the case of Mr. James Morrow, then addressed the question of whether SIIS
should characterize Morrow's degenerative disc disease as an occupational disease. Dr.
Rappaport's findings were as follows:
It is medically probable that Mr. Morrow's occupation as a miner contributed to his
degenerative disc disease, however, it is not certain to a reasonable degree of medical
probability that Mr. Morrow's degenerative spine problem was caused by his
occupation. Certainly, his degenerative disc disease was not caused by any one
particular industrial accident.
(Emphasis added.)
After reviewing Dr. Rappaport's diagnosis, the appeals officer affirmed SIIS's denial of
Morrow's claim. Despite a finding of fact [t]hat it is medically probable claimant's
occupation as a miner contributed to his degenerative disc disease, the appeals officer made
the following conclusion of law: A preponderance of the medical evidence supports the
proposition that it is not certain to a reasonable degree of medical probability that the
claimant's degenerative spine problem was cause [sic] by his occupation.
DISCUSSION
The Administrative Procedures Act defines the standard of review of the judicial review of
an agency's final decision. The limitations upon court review are set forth under NRS
233B.135.
1

[Headnote 1]
On questions of fact, neither this court nor the district court may substitute its judgment or
view of the weight of the evidence for that of the administrative agency; therefore, a
reviewing court must confine its inquiry to determining whether the record provides
substantial evidence to support the administrative agency's decision.
__________

1
NRS 233B.135 provides in pertinent part:
1. Judicial review of a final decision of an agency must be:
. . . .
(b) Confined to the record.
2. The final decision of the agency shall be deemed reasonable and lawful until reversed or set aside in
whole or in part by the court. The burden of proof is on the party attacking or resisting the decision to
show that the final decision is invalid pursuant to subsection 3.
3. The court shall not substitute its judgment for that of the agency as to the weight of the evidence on a
question of fact. The court may remand or affirm the final decision or set it aside in whole or in part if
substantial rights of the petitioner have been prejudiced because the final decision of the agency is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Made upon unlawful procedure;
(d) Affected by other error of law;
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion.
for that of the administrative agency; therefore, a reviewing court must confine its inquiry to
determining whether the record provides substantial evidence to support the administrative
agency's decision. Installation & Dismantle, Inc. v. SIIS, 110 Nev. 930, 932, 879 P.2d 58, 59
(1994); see also SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
[Headnote 2]
Court review is plenary concerning questions of law; however, an agency's conclusions of
law, which are necessarily closely related to the agency's view of facts, are entitled to
deference and will not be disturbed if they are supported by substantial evidence. See NRS
233B.135; SIIS v. Khweiss, 108 Nev. 123, 126, 825 P.2d 218, 219 (1992); Installation &
Dismantle, 110 Nev. at 931-32, 879 P.2d at 58-59.
SIIS and the appeals officer applied their factual inquiries to the definition of occupational
diseases as set forth in NRS 617.440.
2
Initially, SIIS conducted a medical investigation to
determine the reliability of Dr. Dow's assertion that Morrow's back problems were
occupationally related. As a result, SIIS concluded that Morrow's ten-year history of back
ailments, the failure to pinpoint any specific traumatic event, and the ubiquitous presence of
back problems among the general population, made it medically unreasonable to categorize
Morrow's condition as an occupational disease.
In reviewing the record for substantial evidentiary support for the agency's decision, we
note that the record is flush with examples of conscientious attempts by the appeals officer to
conduct a thorough medical inquiry concerning the nexus between Morrow's health problems
and his occupation. Indeed, the appeals officer's quest for an unbiased medical evaluation
was readily apparent.
__________

2
617.440 Requirements for occupation disease to be deemed to arise out of and in course of
employment.
1. An occupational disease defined in this chapter shall be deemed to arise out of and in the course of the
employment if:
(a) There is a direct causal connection between the conditions under which the work is performed and the
occupational disease;
(b) It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned
by the nature of the employment;
(c) It can be fairly traced to the employment as the proximate cause; and
(d) It does not come from a hazard to which workmen would have been equally exposed outside of the
employment.
2. The disease must be incidental to the character of the business and not independent of the relation of
the employer and employee.
3. The disease need not have been foreseen or expected, but after its contraction must appear to have had
its origin in a risk connected with the employment, and to have flowed from that source as a natural
consequence. . . .
the appeals officer's quest for an unbiased medical evaluation was readily apparent.
For example, the appeals officer sought independent medical advice concerning the
testimony of Dr. William Edwards, Chief Medical Advisor for SIIS. Dr. Edwards had
discounted Dr. Dow's opinion that Morrow's back condition was related to chronic
occupational stress and the job situation that has required extensive repeated bending and
lifting. Noting the conflicting medical opinions and his own lack of medical expertise in
resolving the conflict, the appeals officer wisely sought an independent medical review.
Accordingly, in view of the substantial evidence of record, the findings of fact must
remain undisturbed; however, this court must still address issues of law that are essential to
the proper disposition of this appeal. NRS 233B.135; State Dept. of Motor Vehicles & Public
Safety v. Frangul, 110 Nev. 46, 48-49, 867 P.2d 397, 400 (1994).
[Headnote 3]
Morrow failed to present evidence of an isolated traumatic event as the source of his
complaints. Since the statutory definitions of accident and injury did not apply, Morrow
was foreclosed from claiming industrial insurance benefits under NRS Chapter 616.
3
However, Morrow also sought relief under the provisions of the Nevada Occupational
Diseases Act (NODA), NRS Chapter 617.
Morrow insists that he has a compensable occupational disease, and turns for support to
the appeals officer's factual finding [t]hat it is medically probable claimant's occupation as a
miner contributed to his disease.
Conversely, SIIS maintains that Morrow has failed to meet the four-prong test set forth
under NRS 617.440.
4
Based upon Dr. Rappaport's medical evaluation, SIIS urges that
Morrow has not demonstrated by a preponderance of the evidence that his disability was
causally related to his tenure at Asamera Minerals.
__________

3
NRS 616A.030 provides:
616A.030 Accident defined. Accident means an unexpected or unforeseen event happening
suddenly and violently, with or without human fault, and producing at the time objective symptoms of an
injury (substituted in revision for NRS 616.020).
NRS 616A.265 provides in pertinent part:
616A.265 Injury and personal injury defined.
1. Injury or personal injury means a sudden and tangible happening of a traumatic nature, producing
an immediate or prompt result which is established by medical evidence . . . . (substituted in revision for
NRS 616.110).

4
See n.2.
It is noteworthy that both parties accepted Dr. Rappaport as the independent medical
examiner appointed by the appeals officer to resolve this medical stalemate. The record
reveals that Dr. Rappaport's methodology for resolving the issue of causation was thorough.
We perceive no latitude in this court for concluding that the appeals officer's considered
evaluation of the medical evidence is not substantially supported in the record.
Morrow's inability to pinpoint a specific traumatic event presented another formidable
obstacle to the acceptance of his claim. Dr. Rappaport reported that [c]urrent medical
literature and understanding indicates that degenerative disc disease occurs as a multifactorial
disease process. Moreover, SIIS contends that given the current medical understanding of
degenerative disc disease, Morrow has failed to satisfy the statutory requirements of NRS
617.440.
5
Thus, SIIS argues that Morrow has failed to establish that his disease is
occupationally related.
In addition to challenging SIIS's statutory application of NRS 617.440, Morrow also
claims that SIIS's interpretation of Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 792
P.2d 400 (1990), is equally flawed. Indeed, Morrow relied heavily on Desert Inn as support
for the proposition that while his occupation did not cause his degenerative disc disease, it
aggravated his preexisting condition, and is therefore compensable under Desert Inn.
The claimant in Desert Inn was a masseuse whose work required the inordinate use of her
hands, and she eventually began to experience problems with her hands during the course of
her employment. Moran's medical diagnosis was considered occupationally related and her
condition was aggravated by overuse. This court applied the four-prong test under NRS
617.440 to the facts adduced in Desert Inn and concluded that the demands of her work could
be fairly traced as the proximate cause of her degenerating condition. Desert Inn, 106 Nev.
at 337, 792 P.2d at 402. Accordingly, the Desert Inn court held that Moran had a
compensable occupational disease pursuant to NRS 617.440. Desert Inn, 106 Nev. at 336,
792 P.2d at 402.
SIIS disputes Morrow's claim because it cannot be said to have been caused or
aggravated by his employment. SIIS notes that Dr. Rappaport concluded that [i]t is
medically probable that Mr. Morrow's occupation as a miner contributed to his degenerative
disc disease. (Emphasis added.) Morrow insists that a semantic distinction between
contribute and aggravate is illogical and that these two terms have the same connotation.
Morrow contends that the term contribute is simply another way of stating that Morrow's
occupation aggravated his degenerative disc disease.
__________

5
See n.2.
way of stating that Morrow's occupation aggravated his degenerative disc disease.
We are persuaded that the terms contribute and aggravate are not interchangeable.
Webster's Third New International Unabridged Dictionary (1968), defines aggravate as:
to make worse, more serious, or more severe. Contribute is defined as to bring
together. Thus, to contribute denotes a confluencea flowing together of factors which
would ultimately manifest themselves as the occupational disease. Conversely, to aggravate
connotes a mechanism, environment or factor that operates to worsen or make more severe, a
preexisting condition or disease.
In Desert Inn, this court held that a claimant may receive compensation where it is found
that the occupation aggravates a preexisting condition. Desert Inn, 106 Nev. at 337, 792 P.2d
at 402; see Christensen, 106 Nev. at 87-88, 787 P.2d at 409. In so holding, this court relied on
a rule of law adopted by Arizona and articulated in State Industrial Insurance System v. Kelly,
99 Nev. 774, 775-76, 671 P.2d 29, 30 (1983).
[Headnote 4]
We see in Kelly the basis for an appropriate disposition of the instant case. The rule of law
in Kelly is directly on point: The claimant has the burden of showing that the claimed
disability or condition was in fact caused or triggered or contributed to by the industrial injury
and not merely the result of the natural progression of the preexisting disease or condition.
Kelly, 99 Nev. at 775-76, 671 P.2d at 30 (citing Arrellano v. Indust. Comm., 545 P.2d 446,
452 (Ariz. 1976)) (emphasis added).
We have little difficulty in reading Kelly and NRS 617.440 harmoniously. Dr. Rappaport's
finding [t]hat it is medically probable claimant's occupation as a miner contributed to his
degenerative disc disease, provides a reasonable factual foundation for revisiting the
evidence in light of Kelly and NRS 617.440.
CONCLUSION
For the reasons discussed above, we reverse the summary judgment entered below and
remand with instructions that the district court remand this matter to the appeals officer to
reconsider Morrow's claim consistent with the dictates of this opinion.
____________
112 Nev. 1355, 1355 (1996) Wolff v. Wolff
ROBERTA ELWYN WOLFF, Appellant/Cross-Respondent, v. GERHARD HEINZ WOLFF,
No. 26628
December 20, 1996 929 P.2d 916
Appeal and cross-appeal from a decree of divorce. Second Judicial District Court, Washoe
County; Charles M. McGee, Judge.
Wife filed complaint for divorce. The district court granted divorce and disposed of
property rights, duties and obligations of parties. Wife appealed, and husband cross-appealed.
The supreme court, Young, J., held that: (1) retirement benefits earned by husband during
marriage were community property; (2) trial court's reduction of community property award
to wife with respect to her interest in husband's pension from $577.56 per month to $450.00
per month was arbitrary and in violation of state community property laws; (3) district court's
requirement that husband expend money on life insurance policy to cover lost retirement
benefits to wife under husband's pension in event of husband's death before actual retirement
was improper unequal distribution of debt; (4) parties' community interest in husband's
Public Employees Retirement System (PERS) retirement benefits became separate property
of each former spouse on divorce for inheritance purposes; (5) wife's community property
interest in husband's PERS pension was not subject to reduction for her social security
benefits; and (6) issue of unequal future earning potential of spouses as compelling reason for
unequal distribution of community assets in favor of husband could not be raised for first
time on appeal.
Affirmed in part, reversed in part, and remanded.
[Rehearing denied March 5, 1997]
Rose, J., dissented.
Kevin H. Mirch, Reno, for Appellant/Cross-Respondent.
Skelly and Sheehan, Reno, for Respondent/Cross-Appellant.
1. Divorce.
Before appellate court will interfere with trial judge's disposition of community property or alimony award, it must appear on
entire record that discretion of trial judge has been abused. Trial court has better opportunity to observe parties and evaluate situation
than does appellate court.
2. Divorce; Husband and Wife.
Since retirement benefits earned by husband during marriage were community property, trial court improperly classified wife's
share of such benefits as limited temporary spousal support, which, unlike interest in community property,
would be subject to possible future modification.
112 Nev. 1355, 1356 (1996) Wolff v. Wolff
such benefits as limited temporary spousal support, which, unlike interest in community property, would be subject to possible future
modification. NRS 125.150(7).
3. Divorce.
Trial court's reduction of community property award to wife with respect to her interest in husband's pension from $577.56 per
month to $450.00 per month was arbitrary and in violation of equal distribution presumption of state community property laws; trial
court's decree did not adequately describe why it reduced award, and merely stated that taxable consequences of husband's payments to
wife were considered in equivalency amount to be paid by husband to wife until husband's actual retirement. NRS 125.150(1)(b).
Passive appreciation to sole and separate portion of one spouse's retirement does not constitute that spouse's separate property
upon divorce, but is included in community interest.
5. Divorce.
District court's requirement that husband expend money on life insurance policy to cover lost retirement benefits to wife under
husband's pension in event of husband's death before actual retirement was improper unequal distribution of debt, where decree
provided no corresponding equal liability to wife. NRS 125.150(1)(b).
Upon divorce, parties' community interest in husband's Public Employees Retirement System (PERS) retirement benefits became
separate property of each former spouse, and estate of former wife would thus be entitled to her share of such benefits to be paid
pursuant to community property agreement entered into upon divorce, even though former spouse's estate was not included in
definition of alternate payee applicable to PERS retirement benefits. NRS 286.6703(4).
Social security benefits, or payments used to derive those benefits, cannot be divided in property settlement agreement pursuant to
divorce. Social security benefits to be received following dissolution of marriage are not form of deferred compensation, and are thus
not community property subject to division between spouses.
8. Divorce.
Social security benefits, or payments used to derive those benefits, cannot be given any consideration in offsetting one spouse's
community property interest in other spouse's retirement benefits upon dissolution of marriage. Offsetting award would upset statutory
balance and impair recipient's economic security. NRS 125.150.
9. Divorce.
Husband's and wife's social security benefits were their separate property, and wife's community property interest in husband's
Public Employees Retirement System (PERS) pension was not subject to reduction for her social security benefits.
10. Divorce.
Issue of unequal future earning potential of spouses as compelling reason for unequal distribution of community assets in favor of
husband could not be raised for first time on husband's appeal from terms of property distribution agreement in divorce action. NRS
125.150(1)(b).
112 Nev. 1355, 1357 (1996) Wolff v. Wolff
OPINION
Appellant Roberta Elwyn Wolff (Roberta) and respondent Gerhard Heinz Wolff
(Gerhard) were married on June 18, 1982. On September 10, 1993, Roberta filed a
complaint for divorce. On March 5, 1994, after a pre-trial settlement conference, Roberta and
Gerhard entered into a written property settlement agreement.
The written property settlement agreement disposed of all the property rights, duties and
obligations which Roberta and Gerhard had accumulated during their marriage except for
Gerhard's retirement benefits. Roberta and Gerhard agreed to submit a stipulated statement of
facts to the court, in addition to arguments regarding the appropriate disposition of those
retirement benefits.
On November 1, 1994, the district court entered its decision regarding the disposition of
Gerhard's retirement. On November 22, 1994, the district court entered its findings of fact and
conclusions of law regarding its decision.
Roberta appeals the district court's decision, arguing that the district court erred by
classifying pre-retirement payments as limited temporary spousal support and ordering
Gerhard to pay less than Roberta's share of Gerhard's retirement benefits. Gerhard
cross-appeals, arguing that the district court erred by (1) awarding limited temporary alimony
to Roberta; (2) applying a fatally flawed formula for valuating community retirement
benefits; (3) requiring Gerhard to purchase a life insurance policy, naming Roberta as
beneficiary; (4) ordering that retirement benefits be paid to Roberta's estate if Roberta
predeceases Gerhard; (5) not considering Roberta's payments into social security as an offset
to her share of Gerhard's retirement benefits; and (6) improperly distributing community
property because compelling reasons existed for an unequal distribution in Gerhard's favor.
We conclude that each of Roberta's arguments has merit. Additionally, we conclude that
Gerhard's argument regarding the district court's requirement that Gerhard must purchase a
life insurance policy naming Roberta as beneficiary has merit. Accordingly, we reverse the
district court's order, in part.
FACTS
Gerhard was first employed by the State of Nevada as a highway patrol officer on July 10,
1972. On June 18, 1982, nearly ten years after Gerhard began working for the Nevada
Highway Patrol {"NHP"), Gerhard and Roberta were married.
112 Nev. 1355, 1358 (1996) Wolff v. Wolff
nearly ten years after Gerhard began working for the Nevada Highway Patrol (NHP),
Gerhard and Roberta were married. On September 10, 1993, Roberta filed for divorce.
On March 5, 1994, Gerhard and Roberta entered into a property settlement agreement. The
agreement settled all disputes between the parties except the distribution of Gerhard's Public
Employees Retirement System (PERS) retirement account.
As of March 3, 1994, the effective date of the parties' divorce, Gerhard had accumulated a
total of 21 years and 236 days, or 21.65 years, in his retirement account. The community
acquired 11 years and 260 days, or 11.71 years, in Gerhard's retirement, thereby creating a
fifty-four percent community interest in Gerhard's retirement.
On June 16, 1994, Gerhard's fiftieth birthday, Gerhard became eligible for his retirement
benefits. However, Gerhard elected to continue working. Therefore, pursuant to Chapter 286
of the Nevada Revised Statutes, PERS could not pay Gerhard or Roberta retirement benefits
because he still worked for NHP.
During the course of the marriage, Roberta was gainfully employed and contributed to
social security. Gerhard, on the other hand, did not contribute to social security because of his
state-sponsored retirement with PERS.
On November 1, 1994, the district court made its ruling regarding Gerhard's retirement
benefits. That ruling was memorialized in the district court's November 22, 1994 findings of
fact, conclusions of law and decree of divorce (the decree). The district court found that
[t]he community interest in [Gerhard's] Pension-Retirement benefit is $1,155.12 per month.
The court further provided that [a]ny benefits ordered to be paid by the Court, prior to
[Gerhard's] actual retirement, will have to be paid from [Gerhard's] after tax earnings, from
[Gerhard's] salary.
Because Roberta elected to immediately receive her portion of Gerhard's retirement
benefits, the district court held that Roberta is entitled to receive her share of Gerhard's
retirement on the date of Gerhard's eligibility for such benefits. Until such time, the district
court ruled, Gerhard must provide a reasonable equivalency to Roberta.
According to the district court, an equivalency must reflect Gerhard's obligation to transfer
to Roberta his vested community property interest in Roberta's social security benefits. Also,
such equivalency was required to reflect that Gerhard is paying taxes on his post-marital
revenues. Therefore, the district court ruled that the amount of Roberta's community share of
Gerhard's retirement, when Gerhard is entitled to receive it, will never be less than $578.00
per month subject to minor fluctuations.
The decree further provided that Roberta is awarded $450.00 per month as Limited
Temporary Spousal Support, as a 'reasonable equivalency' [to her present share of
Gerhard's retirement benefits], until she dies or until [Gerhard] retires, whichever first
occurs.
112 Nev. 1355, 1359 (1996) Wolff v. Wolff
per month as Limited Temporary Spousal Support, as a reasonable equivalency' [to her
present share of Gerhard's retirement benefits], until she dies or until [Gerhard] retires,
whichever first occurs. [Roberta's] subsequent remarriage does not abrogate the Limited
Temporary Spousal Support obligation. The decree further stated that [Roberta's] vested
Community Interest in [Gerhard's] Retirement does not terminate upon [Roberta's] death and
continues to her estate until [Gerhard's] death. Additionally, the decree recognized that the
$450.00 limited temporary spousal support payment was a taxable consequence to [Roberta]
and a taxable deduction to [Gerhard].
DISCUSSION
Standard of review
[Headnote 1]
In Shane v. Shane, 84 Nev. 20, 22, 435 P.2d 753, 755 (1968), we stated that [b]efore the
appellate court will interfere with the trial judge's disposition of the community property of
the parties or an alimony award, it must appear on the entire record in the case that the
discretion of the trial judge has been abused. This court's rationale for not substituting its
own judgment for that of the district court, absent an abuse of discretion, is that the district
court has a better opportunity to observe parties and evaluate the situation. Winn v. Winn, 86
Nev. 18, 20, 467 P.2d 601, 602 (1970).
Designation of limited temporary spousal support
[Headnote 2]
Roberta argues that her share of Gerhard's retirement benefits was improperly designated
as limited temporary spousal support. We agree. In Walsh v. Walsh, 103 Nev. 287, 288, 738
P.2d 117, 117 (1987), we stated that retirement benefits earned during the marriage are
community property. In Carrell v. Carrell, 108 Nev. 670, 671, 836 P.2d 1243, 1244 (1992),
we were faced with a similar situation as presented by the case at bar. In Carrell, recognizing
that the wife's pension was worth less than the husband's pension, the district court required
the husband to pay spousal support to the wife that would result in a fifty/fifty division of
the pensions. Id. The Carrell court concluded that
[a]s community property, retirement benefits are afforded certain rights which do not
attach to spousal support awards. Specifically, community property is not subject to
future modification whereas spousal support can be modified upon a change of
circumstances, remarriage, or death. NRS 125.150(5), (7). Consequently, the district
court erred when it characterized [the wife's] community property as "spousal
support," thereby subjecting it to possible future modification.
112 Nev. 1355, 1360 (1996) Wolff v. Wolff
it characterized [the wife's] community property as spousal support, thereby
subjecting it to possible future modification.
Id.
We conclude that classifying Roberta's share of the community asset as limited temporary
spousal support was an error because the spousal support award, unlike an interest in
community property, is subject to possible future modification. See NRS 125.150(7).
In his cross-appeal, Gerhard argues that the award of limited temporary spousal support
was improper because Roberta did not qualify for any kind of spousal support. As discussed
above, we conclude that Roberta is clearly entitled to her portion of the community's interest
in Gerhard's retirement. Further, the classification of that right as temporary limited spousal
support was error. Accordingly, Gerhard's argument misinterprets the purpose of the district
court's award, and therefore, we need not address this particular argument here.
Gerhard's obligation for Roberta's interest in his retirement
Roberta acknowledges that pursuant to the formula announced by this court in Gemma v.
Gemma, 105 Nev. 459, 461, 778 P.2d 429, 431 (1989), the district court properly determined
the community property interest in Gerhard's retirement as $1,155.12 per month. See also
Sertic v. Sertic, 111 Nev. 1192, 1195, 901 P.2d 148, 149 (1995) (designating three factors to
determine the propriety of distributing retirement pension at the time of divorce). However,
Roberta argues that the district court arbitrarily reduced her monthly payment to $450.00,
instead of $577.56.
[Headnote 3]
We agree with Roberta's argument that the district court arbitrarily reduced Roberta's
award. The district court did not adequately describe why it reduced Roberta's $577.56
interest in Gerhard's retirement to the $450.00 reasonable equivalency award for temporary
spousal support. The decree merely stated that [t]he taxable consequences of [Gerhard's]
payments to [Roberta] have been considered in the equivalency' amount [Gerhard] should
pay to [Roberta], until [Gerhard] actually retires. We further conclude that Roberta's receipt
of $450.00 violates the equal distribution presumption governing Nevada's community
property laws. See NRS 125.150(1)(b).
Formula for valuating community retirement benefits
Gerhard argues that the Gemma formula for valuating community retirement benefits is
fatally flawed because it fails to apportion any passive appreciation of the sole and
separate portion of Gerhard's retirement during the time of the marriage.
112 Nev. 1355, 1361 (1996) Wolff v. Wolff
nity retirement benefits is fatally flawed because it fails to apportion any passive appreciation
of the sole and separate portion of Gerhard's retirement during the time of the marriage.
Gerhard urges that such appreciation remains Gerhard's sole and separate property and must
be deducted out before a community interest can be calculated.
[Headnote 4]
We conclude that the Gemma formula for determining community interest in retirement
benefits is not fatally flawed and has been extensively relied upon by this court in deciding
other cases. See, e.g., Sertic, 111 Nev. at 1195, 901 P.2d at 149; Fondi v. Fondi, 106 Nev.
856, 859, 802 P.2d 1264, 1266 (1990). No Nevada case has recognized that the passive
appreciation to the community interest in one spouse's retirement constitutes that spouse's
separate property. The only case which Gerhard cites to support his contention, White v.
White, 521 N.W.2d 874 (Minn. Ct. App. 1994), does not come from a community property
jurisdiction. Accordingly, we decline Gerhard's request to revisit the formula set forth in
Gemma.
Purchase of life-insurance policy
The district court required Gerhard to purchase the life insurance policy at issue
if it is available to him, to cover lost benefits to [Roberta] in the event of [Gerhard's]
death before actual retirement, only if PERS equivalent of a Qualified Domestic
Relations Order (QDRO) does not protect her interest, and only if such term insurance
is not prohibitively expensive.
[Headnote 5]
We conclude that the district court abused its discretion by directing Gerhard to purchase
the life insurance policy. First, Gerhard will be required to obtain, not maintain, an existing
life insurance policy out of his own salary. The decree does not provide for a corresponding
equal liability to Roberta. Accordingly, the district court's requirement that Gerhard expend
money on the life insurance policy is an unequal distribution of debt. See NRS
125.150(1)(b). Second, if Gerhard dies before he retires from the NHP, Roberta may still be
entitled to a portion of Gerhard's retirement from PERS. See NRS 286.6703. According to the
rules governing the administration of a PERS retirement account, if a PERS member dies
before the alternate payee begins receiving benefits and a refund of the contribution account
is payable, the alternate payee will be eligible to receive benefits.
112 Nev. 1355, 1362 (1996) Wolff v. Wolff
Roberta's survivorship rights
[Headnote 6]
In the decree, the district court provided that [Roberta's] vested Community Interest in
[Gerhard's] Retirement does not terminate upon [Roberta's] death and continues to her estate
until [Gerhard's] death. Gerhard argues that this provision violates public policy, and, more
specifically, [is] in direct conflict with the Public Employees Retirement System of Nevada.
Although a former spouse's estate is not encompassed by the definition of alternate payee
in NRS 286.6703(4), we conclude that Roberta's estate should be entitled to her share of
Gerhard's retirement benefits upon his death. Upon divorce, the community interest that
Gerhard and Roberta had in Gerhard's retirement became the separate property of each former
spouse. See 15A Am. Jur. 2d Community Property 101 (1976). Consequently, Roberta's
estate is entitled to her portion of Gerhard's retirement in the event that Roberta predeceases
Gerhard. Accordingly, the district court did not abuse its discretion by requiring Gerhard to
pay Roberta's estate her share of the retirement benefits if Roberta predeceases Gerhard.
Roberta's social security payments
Gerhard argues that the district court abused its discretion by not considering Roberta's
social security payments as an offset to the PERS distribution. Without citing to any legal
authority for support, Gerhard argues that the district court should not have refused to look
at any kind of offset for the amount of time, energy and money the community contributed to
Roberta's Social Security benefits.
[Headnote 7]
Social security benefits to be received following the dissolution of marriage have been
held not to be a form of deferred compensation, and therefore not to be community property
subject to division between the spouses. Charles C. Marvel, Annotation, Pension or
Retirement Benefits as Subject to Award or Division by Court in Settlement of Property
Rights Between Spouses, 94 A.L.R.3d 176 (1979); see also Flemming v. Nestor, 363 U.S.
603, 611 (1960) (finding that the Social Security Act did not create either property or
contractual rights); In re Marriage of Nizenkoff, 135 Cal. Rptr. 189, 190 (Ct. App. 1976)
(finding that social security retirement benefits are the separate property of the spouse
receiving them); In re Marriage of Kelley, 134 Cal. Rptr. 259, 267 (Ct. App. 1976) (finding
that social security retirement benefits are not deferred compensation and that its federal
statutory scheme is in conflict with a state court exercising jurisdiction to award these
benefits as community property).
112 Nev. 1355, 1363 (1996) Wolff v. Wolff
to award these benefits as community property). Accordingly, social security benefits, or the
payments used to derive those benefits, cannot be divided in a property settlement agreement.
[Headnotes 8, 9]
Further, they cannot be given any consideration in offsetting one spouse's community
property interest in the other spouse's retirement benefits. Hisquierdo v. Hisquierdo, 439 U.S.
572, 588-89 (1978). An offsetting award, however, would upset the statutory balance and
impair petitioner's economic security just as surely as would a regular deduction from his
benefit check. . . . Any such anticipation threatens harm to the employee, and corresponding
frustration to federal policy, over and above the mere loss of wealth caused by the offset. Id.
The district judge specifically stated that he was not awarding an offset of Roberta's social
security benefits when he reduced her monthly allowance from the community property
PERS pension. However, he did consider Roberta's social security payments in the decree.
Calling a duck a horse does not change the fact it is still a duck. Considering Roberta's
social security benefits does not change the fact that this is still an offset, and therefore, error.
See Olson v. Olson, 445 N.W.2d 1, 7 (N.D. 1989) (holding that social security cannot be
considered, distributed, or offset in marital property divisions); Marriage of Swan, 720 P.2d
747, 751, 752 (Or. 1986) (holding that family courts cannot consider the social security
benefits of either spouse when dividing marital property).
For the foregoing reasons, we conclude that the district court erred by reducing Roberta's
community property interest in Gerhard's PERS pension when it considered her payments to
social security, despite the court's attempt to deny this as an offset. However, the district
court was correct when it designated each party's social security as their separate property.
Compelling reasons for unequal distribution
[Headnote 10]
Gerhard's final argument is that [c]ompelling reasons exist for an unequal distribution of
the community assets in favor of Gerhard. In support of this contention, Gerhard notes that
Roberta's earning potential is double that of Gerhard's. Roberta, during the marriage, became
educated, experienced and skilled at her career of mortgage brokering. Gerhard is, and was[,]
a Nevada Highway Patrolman. While Roberta's income skyrocketed, Gerhard's income only
moved upward on the State's schedule.
We conclude that because this argument was not presented to the district court for
consideration, this issue is considered waived on appeal.
112 Nev. 1355, 1364 (1996) Wolff v. Wolff
waived on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983
(1981).
CONCLUSION
For the reasons stated above, we conclude that the district court abused its discretion by
classifying Roberta's interest in Gerhard's retirement benefits as limited temporary spousal
support and by ordering Gerhard to pay Roberta less than her share of Gerhard's retirement
benefits. Further, we conclude that the district court improperly required Gerhard to purchase
life insurance for Roberta's benefit. Accordingly, we reverse the district court's decree with
respect to these issues and remand for additional proceedings consistent with this opinion. In
all other respects, the decree is affirmed.
Steffen, C. J., and Springer and Shearing, JJ., concur.
I realize that by federal law and court decision present or future payments of social security
benefits cannot be transferred, assigned, or subject to any legal process. 42 U.S.C. 407(a),
662(c) (1994); Olson v. Olson, 445 N.W.2d 1 (N.D. 1989); Marriage of Swan, 720 P.2d 747
(Or. 1986). My concern is that the transfer/assignment prohibition has been unduly extended
by state courts as in Olson and Swan to prohibit any consideration of a party's social security
benefits when a state court is dividing property in a divorce. I do not find this mandated by
federal law or United States Supreme Court decision.
Although a dollar for dollar offset of anticipated social security benefits against a spouse's
award would violate federal law, I find no mandate that would preclude a court, in its
equitable determinations, from merely considering the fact that one spouse is likely to receive
federal retirement benefits.
The prohibition of any consideration of social security benefits accrued by one party
during marriage usually creates an inequity in the division of property between divorcing
parties. When one party has a state or private pension and the other person has accrued social
security benefits, the person with a state or private pension fares poorly in property division
when compared to the other party.
This case is a good example of my concern. Gerhard has a vested state pension, and that
portion accrued during marriage is community property that presumptively is to be divided
equally. Walsh v. Walsh, 103 Nev. 287, 288, 738 P.2d 117, 117 (1987). During Roberta's
career, she was making more than $100,000 a year and has accrued substantial social security
benefits to be paid to her in the future.
112 Nev. 1355, 1365 (1996) Wolff v. Wolff
to her in the future. Granted, Gerhard might share in some of the social security benefits
accumulated by Roberta because the parties were married for over ten years, after he reaches
age 62 so long as he remains unmarried. By the inability to consider Roberta's social security
benefits that should be substantial when she reaches sixty-five, we have a situation where one
spouse is compelled by state law to share his pension benefits acquired during marriage and
the other is not. Roberta gets one-half of Gerhard's pension, and the lion's share of the social
security benefits that will accrue. Gerhard gets one-half of his pension and the modest amount
that the social security system may grant him as Roberta's former spouse. This seems patently
unfair to me.
Nevada law directs that, to the extent practicable, community property is to be divided
equally, but an unequal division can be made for compelling reasons. NRS 125.150. I would
consider the inequity presented in this case as a compelling reason; and I see no reason why a
district judge cannot look at the totality of circumstances as directed by Nevada law and
consider the benefits one party may derive in the future from accrued social security benefits.
This is not an assignment or set-off of social security benefits, but rather it is a recognition of
the assets the parties presently have or benefits they can reasonably anticipate receiving in the
future, and it will prevent one party from reaping a windfall and the other suffering a hardship
merely because of the type of pension benefits received from employment.
I do not think the district court's modest reduction in monthly payment should be
considered an offset of future social security benefits. In fact, I would remand the case to
the district court to divide all separate and community property equitably after considering the
totality of facts, and this, of course, includes Roberta's substantial accrued social security
benefits that she will reap in the future.
____________
112 Nev. 1365, 1365 (1996) Dent v. State
PATRICIA ANN DENT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26830
December 20, 1996 929 P.2d 891
Appeal from judgment of conviction, pursuant to a jury verdict, of one count of sale of a
controlled substance. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
The supreme court held that defendant acted only as procuring agent" for recipient of
controlled substance and did not benefit from transaction.
112 Nev. 1365, 1366 (1996) Dent v. State
ing agent for recipient of controlled substance and did not benefit from transaction.
Reversed.
Morgan D. Harris, Public Defender, and Kevin V. Williams, Deputy Public Defender,
1. Criminal Law.
Conviction will not be set aside if, after viewing evidence in light most favorable to prosecution, any trier of fact could have found
essential elements of crime beyond reasonable doubt.
Procuring agent is person who acts, not on one's own behalf or for supplier of controlled substance, but solely for recipient, and
procuring agent cannot be guilty of selling controlled substance. Procuring agent defense in prosecution for sale of controlled substance
can be maintained only if defendant was merely conduit for purchase and in no way benefitted from transaction.
Defendant did not engage in unlawful sale of controlled substance because defendant acted only as procuring agent for recipient
of controlled substance and did not benefit from transaction, absent evidence that defendant possessed drugs or money or acted as
holder of proceeds for later distribution. NRS 453.321.
OPINION
Per Curiam:
Appellant Patricia Ann Dent was arrested for selling a controlled substance. She maintains that she acted only as a conduit for the
transaction, for which she received no benefit. We conclude that there is no evidence of record from which a reasonable juror could infer
that Dent benefitted from the sale. Therefore, we reverse her conviction.
FACTS
On January 13, 1994, several officers from the Las Vegas Metropolitan Police Department conducted an undercover narcotics
operation in downtown Las Vegas, Nevada. Dent, a prostitute, was standing on the corner of 9th and Fremont Streets when undercover
police officer Arturo Chavez approached her.
Chavez asked Dent if she had a 20, which is street terminology for a quantity of rock cocaine worth twenty dollars. Dent responded
that she did not, but knew where he could find some. Dent then led Chavez about one hundred feet down Fremont Street
to two or three adult males.
112 Nev. 1365, 1367 (1996) Dent v. State
Dent then led Chavez about one hundred feet down Fremont Street to two or three adult
males.
Dent testified that she asked one of the men if he had any drugs. She also testified, and
Chavez agrees, that the man said yes, and then he turned around and went in his little stash
and got out a 20 and gave it to me . . . . I then gave the rock to the officer, and the officer gave
me the money. Officer Chavez then signaled his associates and left the scene before he saw
what Dent did with the money. Dent claims she gave it to the man who supplied the drugs.
By the time the police moved in to make arrests, the supplier and the other men had left
the area. Dent was the only person arrested. She possessed neither drugs nor money when she
was arrested. She testified that she was not selling or helping to sell cocaine that night, and
was only hoping to find a john to make . . . some money.
Dent was convicted for selling a controlled substance, and sentenced to eighteen months in
the Nevada State Prison. She appeals the conviction.
DISCUSSION
[Headnote 1]
A conviction will not be set aside if after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1981)) (emphasis omitted).
Dent was convicted of Sale of a Controlled Substance in violation of NRS 453.321.
1
Dent
argued at trial that she could not be found guilty of selling a controlled substance because she
was merely a procuring agent.
[Headnote 2]
A procuring agent is a person who acts, not on one's own behalf or for a supplier, but
solely for the recipient. A procuring agent cannot be guilty of selling . . . a controlled
substance. Sheriff v. Roylance, 110 Nev. 334, 338, 871 P.2d 359, 361 (1994). [T]he
procuring agent defense in a prosecution for a sale of a controlled substance can be
maintained only if the defendant was merely a conduit for the purchase and in no way
benefitted from the transaction. Love v. State, 111 Nev. 545, 548, 893 P.2d 376, 378 (1995).
It seems rather fundamental that one cannot be found guilty of being a seller,' when he has
not acted for the supplier but solely for the recipient."
__________

1
NRS 453.321 states that it is unlawful for any person to . . . sell . . . a controlled . . . substance.
112 Nev. 1365, 1368 (1996) Dent v. State
not acted for the supplier but solely for the recipient. Roy v. State, 87 Nev. 517, 518, 489
P.2d 1158, 1159 (1971). In Love, this court held that the burden is on the State to establish
that the defendant had a profit motive or other direct interest when she obtained drugs for the
recipient. Love, 111 Nev. at 551, 893 P.2d at 379.
[Headnote 3]
Dent argues on appeal that the State failed to meet its burden of disproving the procuring
agent defense at trial because it did not introduce any evidence that Dent retained any benefit
from the transaction. We agree.
In Commonwealth v. Simione, 291 A.2d 764 (Pa. 1972), an undercover officer asked the
defendant to arrange the sale of a quantity of hashish through a third-party seller. The officer
gave his money to the defendant, who handed the money to the seller. The seller then gave
the drug to the defendant, who gave it to the officer. Pennsylvania, like Nevada, does not
have a statutory definition for the term sale. However, in construing words employed in
the laws . . . according to their common and approved usage, the Pennsylvania court held
that it cannot fairly be said that the defendant is guilty of a sale where there was no evidence
that the defendant received any of the proceeds of the sale. Id. at 786.
In Commonwealth v. Harvard, 253 N.E.2d 346 (Mass. 1969), the buyer approached the
defendant and asked him for drugs. The defendant took him to a supplier. The supplier
handed the drugs to the defendant, who passed them along to the buyer, and then the buyer
gave $15 to the defendant, who passed it to the supplier. The Supreme Court of
Massachusetts reversed the defendant's conviction of selling a controlled substance because
where there is nothing to show that the defendant had any financial interest in the
transaction, . . . he should be prosecuted as an accessory, or one who has delivered, furnished,
or exchanged a drug. Id. at 348.
Similarly, the prosecution in this case was unable to set forth any direct evidence that Dent
benefitted from the transaction. Upon arrest, Dent was not under the influence of drugs, and
neither drugs nor money were found in her possession. Moreover, there is no evidence to
contradict Dent's story that she gave the money to the supplier because Chavez signaled his
associates and left immediately after he handed the money to Dent. Finally, the fact that the
supplier gave Dent the drugs before receiving payment is not enough to infer that she
received benefit from the transaction.
The prosecution did allude to the fact that often a person called a holder will retain the
proceeds from a drug sale for later distribution,2 but then failed to offer any evidence that
a holder was involved in this case.
112 Nev. 1365, 1369 (1996) Dent v. State
distribution,
2
but then failed to offer any evidence that a holder was involved in this case.
CONCLUSION
For the reasons discussed above, the judgment of conviction entered against Dent is
reversed.
____________
112 Nev. 1369, 1369 (1996) Quillen v. State
DARRIN JOEL QUILLEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26930
December 20, 1996 929 P.2d 893
possession of a firearm by an ex-felon. Eighth Judicial District Court, Clark County; Jack
Lehman, Judge.
The supreme court held that: (1) prior trial testimony of witnesses was admissible; (2)
evidence regarding swastika medal on defendant's jacket at time of his arrest was admissible;
(3) state did not impermissibly refer to defendant's silence; (4) trial court did not abuse its
discretion in refusing defendant's proposed jury instructions; (5) any error that occurred by
state's repeated references to Thanksgiving Day holiday was harmless; (6) improper
explanation of reasonable doubt during state's closing arguments was harmless; (7) defense
was not entitled to define for jury meaning of defendant's prior conviction; and (8) sentence
of six years was not excessive.
Affirmed.
[Rehearing denied March 31, 1997]
Morgan D. Harris, Public Defender, Gary H. Lieberman, Deputy Public Defender, Clark
James Tufteland, Chief Deputy District Attorney, Jennifer Togliatti, Deputy District
1. Criminal Law.
Efforts undertaken by state to locate and serve two witnesses were reasonable, even though state did not make every
possible effort to locate witnesses, and thus their prior trial testimony was admissible.
__________

2
The prosecutor asked Dent: Isn't it true that the money that you made off the drugs went to a person to hold
specifically for that purpose? . . . . And that's what they call a holder. . . . She responded, No, it is not true.
reasonable, even though state did not make every possible effort to locate witnesses, and thus their prior trial testimony was admissible.
Investigator for district attorney's office went to witness' prior place of employment, investigator visited other possible places of
employment, investigator went to witness' last known address, investigator ran computer check, and investigator contacted Department
of Motor Vehicles. U.S. Const. amend. 6.
2. Criminal Law.
Reviewing court need not consider every untried effort state could have made in locating unavailable witness. U.S. Const. amend.
6.
3. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudice to defendant with probative value, is within discretion of trial
judge, and trial court's determination will not be reversed absent manifest error. NRS 48.035.
4. Criminal Law.
Probative value of evidence that defendant was wearing swastika medal on his jacket at time of his arrest outweighed prejudicial
effect of evidence in prosecution for possession of firearm by ex-felon. Defendant argued that he had grabbed weapon after being
attacked by two members of racial minority, and thus swastika evidence was relevant to issue of defendant's motive. NRS 48.035.
5. Criminal Law.
When defendant seeks remedy for state's good-faith loss or destruction of material evidence, defendant must show prejudice
flowing from unavailability of evidence. To establish prejudice, defendant must make some showing that it could be reasonably
anticipated that evidence sought would be exculpatory.
6. Criminal Law.
Defendant was not prejudiced by state's failure to preserve swastika medallion that defendant was allegedly wearing at time of his
arrest, even though evidence regarding medallion was presented at trial. Defendant adduced no evidence, testimonial or otherwise, that
swastika did not exist.
7. Criminal Law.
Prosecutor's remark in closing argument that defendant waited until he was confronted by witnesses before claiming that he had
been attacked with gun was not an improper reference to defendant's postarrest silence. Defense sought admission of defendant's
statements at time of arrest, and defendant's initial statements to police were arguably inconsistent with defendant's later statements.
8. Criminal law.
Officer's testimony that defendant's case had been assigned case number was relevant to establish chain of custody for physical
evidence collected by arresting officers and did not constitute an improper opinion on merit of case.
9. Criminal Law.
Defendant charged with possession of firearm by ex-felon was not entitled to jury instruction stating that if defendant is confronted
by one or more persons who aim or fire firearm towards him, and defendant then seizes that firearm, defendant is allowed to fire
warning shots to prevent possible further threats from said other person or persons. Defendant's theory of case was adequately covered
by other instructions actually given by trial court.
10. Criminal Law.
Defendant was not entitled to jury instruction that prior inconsistent statement may be considered for purpose of testing credibility
of witness, where alleged inconsistencies in witness' statements were trivial.
11. Criminal Law.
Any error that occurred when trial court allowed prosecutor to state in closing arguments that crime had occurred on Thanksgiving
Day was harmless. No objection was made to any of those references and nothing further was stated to emotionalize the situation.
12. Criminal Law.
As a general rule, any improper remarks by prosecutor in closing argument will not be considered on appeal if not objected to at
trial.
13. Criminal Law.
Description of reasonable doubt as the kind of doubt that would govern you in the weightier affairs of life, buying a house,
changing jobs, major life decisions, was improper. NRS 175.211.
14. Criminal Law.
Trial court committed harmless error in permitting prosecutor to describe reasonable doubt as the kind of doubt that would
govern you in the weightier affairs of life, buying a house, changing jobs, major life decisions; jury instruction given by trial court
contained statutory definition of reasonable doubt. NRS 175.211.
15. Criminal Law.
Defendant was not entitled to introduce further explanation of nature of his prior convictions, where defense entered into
stipulation in which defendant agreed that jury would be informed not only of fact of his prior felony conviction, but what the felony
was and when it occurred.
16. Weapons.
Sentence of six years in prison for conviction of possession of firearm by ex-felon was not excessive. NRS 200.481.
OPINION
Per Curiam:
Appellant Darrin Joel Quillen (Quillen) was charged with one count of being a convicted felon in possession of a firearm, a felony,
after a police officer noticed Quillen walking down a North Las Vegas sidewalk with a .22 caliber pistol in his hand. At trial, Quillen's
theory of the case was that he had taken the gun from two attackers immediately prior to his encounter with the police. We conclude that
none of Quillen's claimed errors are meritorious and affirm the conviction.
FACTS
While on patrol, in a marked car, an officer of the North Las Vegas Police Department observed Quillen walking along a public
sidewalk carrying a gun in his left hand and a knife in his right hand. As the officer watched in his rear-view mirror, Quillen tossed the gun
into the desert east of the sidewalk. The officer backed up his patrol car, got out with his side arm drawn, and ordered
Quillen to sit down on the sidewalk.
backed up his patrol car, got out with his side arm drawn, and ordered Quillen to sit down on
the sidewalk. The officer noticed blood on Quillen's mouth and asked him if he was okay and
if he had been in a fight. Quillen answered that he had and that he was okay.
Another officer arrived on the scene, and Quillen was placed in handcuffs. After additional
officers arrived, the first officer recovered the discarded weapon from the desert. The officer
also asked Quillen to identify himself, which he did by giving the officer his name.
Examination of the recovered weapon revealed that it contained five spent casings and one
live round. The police also found seven live rounds of .22 caliber short ammunition in
Quillen's front-left jacket pocket and a knife sheath on his right ankle. While the officers had
Quillen in custody at the scene, two Latino men, Gaytan and Reyes, approached the officers
in an excited manner and told the police that Quillen had shot at them.
According to Gaytan and Reyes, they had gone to a Church's Chicken outlet at about 4:00
p.m., and after purchasing several items, they walked a few blocks and stopped at a ditch to
eat. As they were eating, Quillen approached Gaytan and Reyes and began threatening them
with words to the effect of: Don't move Mexicans . . . . If you move I'll kill you. Quillen
then fired several shots at them. Quillen attempted to fire additional shots, but the gun
jammed and would not fire. When Gaytan and Reyes heard the gun jam, they rushed at
Quillen in an attempt to wrestle the gun away from him. In the ensuing melee, Quillen hit
Gaytan in the face with the gun and hit Reyes with his fist. Quillen then reached into a sheath
on his right leg and pulled out a knife. Gaytan and Reyes fled on foot, and Quillen gave
chase, brandishing the gun in one hand and the knife in the other. Gaytan and Reyes managed
to evade Quillen, but after seeing the police stop him, they returned to the area to tell the
police about the incident. In response to the accusations of Gaytan and Reyes, Quillen told the
police that the men had pointed the gun at him first, then shot at him as he was walking by
along the road.
Quillen was charged with one count of possession of a firearm by a convicted felon, a
felony under NRS 200.481.
1
At trial, the State argued that this was a hate-motivated attack.
Quillen's theory of the case was that a possession conviction was not justified because he had
obtained the gun in self-defense. Officer Ortiz was the first witness, and he testified that he
passed Quillen in his patrol car.
__________

1
Quillen was also charged with several other felonies. In a separate trial, he was convicted of two counts of
assault with use of a deadly weapon and one count of misdemeanor battery. This court dismissed Quillen's
appeal in that case. See Quillen v. State, Docket No. 25658 (Order Dismissing Appeal, July 28, 1995).
in his patrol car. Quillen was carrying a knife in one hand and a pistol in the other. Officer
Ortiz pulled over and saw Quillen discard the pistol. He approached Quillen with his pistol
drawn, and Quillen had dropped the knife and was sitting on the curb. Officer Ortiz identified
Quillen as the individual he had confronted and indicated that Quillen had identified himself
at the scene.
On cross-examination, the officer admitted that Quillen had stated that the Mexicans
pointed the gun at him and shot at him as he was walking by the ditch. Redirect examination
by the prosecution established that the statement was made after the two Hispanic males came
up from the ditch and told officer Ortiz that Quillen had shot at them. Officer Ortiz also stated
that when he first confronted Quillen and saw blood on his mouth, he asked him if he was
okay and if he had gotten in a fight. Quillen said, Yes he [had] and he was okay. No
objection to this statement or request was made that the answer be stricken. The defense
strategy appeared to be to get the defendant's post-arrest statement in evidence through the
testimony of the police officers to establish self-defense without the necessity of Quillen
testifying. When the second officer on the scene testified, defense counsel further established
that Quillen had told him that the Mexicans had pointed the gun at him and he took it away
from them.
In closing argument, Quillen's counsel argued that the facts the State relied upon were not
credible and that Quillen had acted in a calm, reasonable manner when confronted by police.
Countering this argument, the prosecutor asked the jurors to consider how plausible was
Quillen's explanation of what occurred and continued:
Defense counsel also refers to the defendant's behavior when he was stopped by the
officer, he says he didn't run. . . . What else didn't he do? He didn't chase the officer
down and say, I've just been held at gunpoint by two unknown Hispanic males. He
didn't tell the officer when he asked, were you in a fight? Are you okay? No, these two
guys just jumped me out of a ditch, I can't believe it, you know, oh my God. No, he said,
yea, I'm okay. Yeah, I was in a fight.
[Defense counsel] says he wouldn't have said anything. The defendant wouldn't have
said anything. Said, no, nothingeverything is fine, everything is ok. He's got blood on
his lip, a gun in one hand, a knife in the other. He tosses the gun. I don't think the
officer is going to believe everything is okay. I think he has to say something. Yeah, I
was in a fight, I'm okay. It's only later after [Gaytan and Reyes] come up and say that's
him, he tried to shoot at us; it's only later that he said, no, they came at me with a gun
and I took it away from them.
it away from them. And why is that? Because he's an ex-felon. Because he can't possess
a firearm. He needs an explanation and that's the best he can come up with.
(Emphasis added.) Quillen's attorney made no objection to this argument.
Quillen was found guilty and sentenced to six years in the Nevada Department of Prisons,
to run consecutively to any other sentences. Quillen appeals.
On appeal from the judgment of the district court, Quillen alleges various acts of
prosecutorial misconduct, error in the admission of various items of evidence, improper
refusal of proposed jury instructions, and improper limitation of the scope of his closing
argument. He also argues that his sentence is excessive.
DISCUSSION
Admission of prior sworn testimony
[Headnote 1]
Quillen contends that the district court erred in allowing the prior trial testimony of Gaytan
and Reyes to be read into the record in the present case. According to Quillen, the
out-of-court statements violated his right, secured under the Sixth Amendment,
2
to be
confronted with the witnesses testifying against him. Specifically, Quillen contends that the
State failed to establish that the witnesses were unavailable at the time of trial, as mandated
by Ohio v. Roberts, 448 U.S. 56 (1980); see also Power v. State, 102 Nev. 381, 724 P.2d 211
(1986). The State contends that, under Roberts, the efforts undertaken by the State to locate
and serve Gaytan and Reyes were reasonable; therefore, the prior testimony was properly
admitted. We agree.
The task of serving subpoenas upon Gaytan and Reyes was assigned to Tom Lovelace
(Lovelace), an investigator for the Clark County District Attorney's Office. Lovelace testified
that he had been the investigator for the entire history of the case and had successfully served
Gaytan and Reyes two or three times previously (in connection with the preliminary hearing
and the first trial) at their place of employment, Nevada Recycling. Lovelace further testified
that, just before the present trial, he returned to Nevada Recycling, but Gaytan and Reyes
were no longer employed there. He was told that Gaytan and Reyes had left months before,
and that they might be found at one of several other scrap yards in the area.
__________

2
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . . U.S. Const. amend. VI. The Sixth Amendment is made obligatory on the States by the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400 (1965).
left months before, and that they might be found at one of several other scrap yards in the
area. Lovelace visited the other scrap yards, but still did not find Gaytan or Reyes. Lovelace
then went to the men's last known address, but the landlord said that they had moved out five
months earlier, leaving no forwarding address. Lovelace also ran a SCOPE (Shared Computer
Operation for Protection and Enforcement) check and contacted the Department of Motor
Vehicles, both to no avail.
On cross-examination, Lovelace testified that he did not tell Gaytan or Reyes, when he
subpoenaed them previously, that there was another charge remaining and that they should
keep in touch with the district attorney's office. He further testified that, although he spoke
with Gaytan and Reyes' landlord, he did not speak to any of their neighbors, nor did he make
an effort to find out if Gaytan or Reyes had any relatives in town.
The United States Supreme Court has held that the ultimate question in determining
unavailability for Confrontation Clause purposes is whether the witness is unavailable
despite good-faith efforts undertaken by the prosecution, prior to trial, to locate and present
that witness. See Roberts, 448 U.S. at 74. What constitutes a good-faith effort is a question of
reasonableness. Id. In Power, this court concluded that the State had not sustained its burden
of demonstrating that the witness was unavailable at the time of trial. 102 Nev. at 384, 724
P.2d at 213. This court reasoned:
During the week before trial, a police detective and the prosecutor visited and
telephoned the house at which Randy Wheeler [the intended witness] lived and spoke
with the owner of the house. Four days before trial, the police detective spoke to Randy
Wheeler, who said that he would pick up his subpoena, but Wheeler did not do so. On
the day before trial, the prosecutor spoke with Randy Wheeler's employer and one of
Randy Wheeler's friends. And on the day of the evidentiary hearing, the police detective
spoke with another of Randy Wheeler's friends and telephoned local hospitals, jails, and
law enforcement agencies.
. . . .
The state's efforts to obtain Randy Wheeler's presence at trial as a witness, outlined
above, were minimal. . . . The state made absolutely no effort to contact Randy
Wheeler's relatives, neighbors, or co-employees. And the state made only nominal
efforts to contact Randy Wheeler's friends and employers. The fact that the state's
efforts to obtain Randy Wheeler's presence at trial as a witness were so minimal,
conjoined with the importance of Randy Wheeler's testimony, compel us to conclude
that the state's efforts were not sufficiently reasonable.
mony, compel us to conclude that the state's efforts were not sufficiently reasonable.
102 Nev. at 382, 384, 724 P.2d at 212, 213. The State argues that the efforts undertaken by
the State to locate Gaytan and Reyes exceeded the efforts found to be inadequate by this court
in Power.
[Headnote 2]
In the present case, the State's efforts revealed that the witnesses quit their jobs, moved out
of their home some five months prior to trial, and left no forwarding address. There is some
evidence that they returned to Mexico. As Quillen points out, the State could have made
additional efforts to locate the witnesses. For example, as brought out by the defense during
trial, the State could have contacted the telephone company, the gas company, the water
company, the power company, banks, the Immigration and Naturalization Service, the
Internal Revenue Service, neighbors, the post office, or directory assistance. However, a
reviewing court need not consider every untried effort the State could have made in locating a
witness. As the Court noted in Roberts: One, in hindsight, may always think of other things.
Nevertheless, the great improbability that such efforts would have resulted in locating the
witness, and would have led to [the witness's] production at trial, neutralizes any intimation
that a concept of reasonableness required their execution. 448 U.S. at 75-76. We conclude
that the efforts undertaken by the State to locate Gaytan and Reyes were reasonable and that it
is unlikely that the additional efforts suggested by Quillen would have led to the witnesses'
production at trial.
Finally, there is no doubt that the witnesses' testimony was important to the State's case, a
factor found to be significant by this court in Power. Although the police observed Quillen
carrying the gun, Quillen's theory of the case was that he took the gun from Gaytan and Reyes
in self-defense. The testimony of Gaytan and Reyes was the only evidence that directly
refuted Quillen's self-defense theory. Nevertheless, we conclude that, under the
circumstances, the efforts undertaken by the State to locate the witnesses were reasonable,
and the district court's finding that the witnesses were unavailable was, therefore, not
clearly erroneous. Accordingly, the district court did not err in admitting into evidence the
prior testimony of Gaytan and Reyes.
Admission of evidence that Quillen wore a swastika medal
Quillen contends that the district court abused its discretion by allowing testimony that
Quillen was wearing a swastika medal on his jacket at the time of his arrest. Quillen, who
disputed the existence of the swastika during closing argument, also contends that the
State should have been precluded from offering evidence of the alleged swastika because
the State failed to preserve the swastika for trial.
existence of the swastika during closing argument, also contends that the State should have
been precluded from offering evidence of the alleged swastika because the State failed to
preserve the swastika for trial. In response, the State argues that testimonial evidence of the
swastika was properly admitted and that Quillen was not unfairly prejudiced by the absence
of the swastika medal at trial.
[Headnotes 3, 4]
First, Quillen argues that evidence of the swastika was irrelevant and prejudicial.
According to Quillen, the swastika is irrelevant because Nazis are not generally known for
hating Mexicans in particular, and because the swastika is probably the most hated and
feared symbol in history. Under NRS 48.035, evidence, although relevant, is not admissible
if its probative value is substantially outweighed by the danger of unfair prejudice. The
decision to admit or exclude evidence, after balancing the prejudice to the defendant with the
probative value, is within the discretion of the trial judge, and the trial court's determination
will not be reversed absent manifest error. Kazlan v. State, 108 Nev. 67, 72, 825 P.2d 578,
581 (1992). In the present case, the district court heard arguments in limine for and against
the admission of the swastika evidence. The State argued that the incident involving Quillen
and Gaytan and Reyes was a hate-motivated crime and that the swastika was relevant to the
issue of motive. The district court concluded that the State was entitled to put on its theory of
the case and thus could introduce evidence of the swastika. Under the circumstances, we
conclude that the district court's conclusion that the probative value of the swastika evidence
on the issue of motive outweighed its prejudicial effect was not manifestly erroneous.
[Headnote 5]
Second, Quillen argues that the swastika evidence should have been excluded because the
State failed to preserve the alleged swastika medallion.
3
Quillen cites Deere v. State, 100
Nev. 565, 688 P.2d 322 (1984). In Deere, we held:
When an accused seeks dismissal for the state's good-faith loss or destruction of
material evidence, he or she must show prejudice flowing from the unavailability of the
evidence. To establish prejudice, the accused must make some showing that it could
be reasonably anticipated that the evidence sought would be exculpatory."
__________

3
Only one officer testified to seeing the swastika. There was no mention of the swastika in the police report
filed after the incident, and no photographs of the alleged swastika were introduced at trial. The jacket was not
impounded by the police; rather, it was apparently returned to Quillen after his arrest.
evidence sought would be exculpatory. Boggs v. State, 95 Nev. 911, 913, 604 P.2d
107, 108 (1979).
100 Nev. at 566, 688 P.2d at 323. In the present case, Quillen did not seek dismissal of the
case, but merely exclusion of the evidence; nevertheless, we conclude that the reasoning
underlying Deere is applicable to this case even though the appropriate remedy may be
something less drastic than outright dismissal.
[Headnote 6]
The question then, under Deere, is whether Quillen has made some showing that the
evidence would have been exculpatory. The swastika itself, obviously, would not have been
exculpatory; although the jacket, if preserved by the police in its condition at the time of
arrest, would have been exculpatoryprovided, of course, that it did not display a swastika
medallion. However, Quillen, who did not testify at trial, made no showing at trial that the
swastika did not exist. Quillen was able to attack the credibility of the testifying officer with
the absence of the swastika at trial and in the police report, but Quillen adduced no evidence,
testimonial or otherwise, that the swastika did not exist. Under the circumstances, Quillen has
not met his burden of making some showing that it could be reasonably anticipated that the
evidence sought would be exculpatory. Boggs, 95 Nev. at 913, 604 P.2d at 108.
Accordingly, we conclude that Quillen was not prejudiced by the State's failure to preserve
the swastika.
4

For the reasons set forth above, we conclude that the district court did not err in admitting
into evidence testimony regarding a swastika medal on Quillen's jacket.
5

Prosecutorial comments on Quillen's post-arrest silence
[Headnote 7]
On cross-examination of one of the arresting officers, the defense elicited testimony
regarding certain exculpatory statements made by the defendant after his arrest, namely,
that he took the gun from Gaytan and Reyes in self-defense.
__________

4
We note that the absence of the properly preserved jacket may seem to have placed Quillen in the unenviable
position of having to prove a negative. However, the effect of the missing swastika on the credibility of the
State's witness is not to be discounted. In fact, the State twice played down the importance of the swastika
evidence during closing argument, commenting that the State did not need to rely on the swastika to prove its
case. Quillen argues that these statements are a concession by the State that the swastika was irrelevant. We
conclude that the statements were merely a recognition by the State of the weakness of the uncorroborated
swastika testimony.

5
We further conclude that Quillen's attempt to liken this case to Harris v. People, 888 P.2d 259 (Colo. 1995), is
unfounded. Harris involved a prosecutor comparing a defendant's acts to those of Saddam Hussein. In ruling that
the statements were improper, the court held that the comments were irrelevant, involved events with no
connection to the litigation, and were used to raise the passions of the jury. 888 P.2d at 266. As the State
correctly points out, the prosecutor in this case was referring to evidence adduced at trial and not to extraneous
events in other parts of the world.
defense elicited testimony regarding certain exculpatory statements made by the defendant
after his arrest, namely, that he took the gun from Gaytan and Reyes in self-defense.
6
On
redirect examination, the prosecution elicited testimony of other, earlier post-arrest
statements, made by Quillen, that, it contends, contradict his self-defense explanation. In
closing argument, the prosecution asked the jury to consider why Quillen waited until he was
confronted by Gaytan and Reyes before claiming that the two men had attacked him with the
gun first. Quillen contends that the State's closing arguments are references to his post-arrest
silence and that such references are improper. We disagree.
In Coleman v. State, 111 Nev. 657, 895 P.2d 653 (1995), we held that the use of a
defendant's post-arrest silence to impeach an exculpatory explanation subsequently offered by
the defendant at trial is an impermissible comment on the defendant's right to remain silent.
However, in this case, Quillen did not take the stand in his own defense, and the closing
arguments of counsel dealt with statements made by the defendant to police officers at the
scene shortly after he was arrested and the inferences that could be drawn from them.
It is apparent that most of the statements made by Quillen to the police officers were
elicited by his own counsel. The State merely asked about Quillen's initial statement made
before the two Hispanic men joined the police officers. No objection was made, and it
appeared as if Quillen wanted these statements in evidence to present his self-defense theory
without testifying himself. A defendant cannot take one position at trial and assert a different
theory on appeal. See Keeney v. State, 109 Nev. 220, 224, 850 P.2d 311, 314 (1993). Further,
if we view the initial statement of I was in a fight but I'm okay as inconsistent with his
subsequent statements, then it would be permissible for the prosecution to elicit that first
inconsistent statement. See Anderson v. Charles, 447 U.S. 404, 408 (1980) (holding that
Doyle v. Ohio, 426 U.S. 610 (1976), does not apply to cross-examination that merely
inquires into prior inconsistent statements). If it is viewed as a consistent statement, then it is
difficult to see how this statement was harmful when it assisted the defendant in establishing
his self-defense theory. It should be remembered that in both Coleman and Doyle the rulings
prevented a prosecutor from using a lawful silence against the defendant's explanation at trial.
Here we have a review of Quillen's statements and conduct when arrested, the inferences to
be drawn from them, and whether they were in any way inconsistent. This is a substantially
different situation than those presented in Coleman or Doyle.
__________

6
The district court overruled the State's objection to the admission of these hearsay statements. The State has
not appealed this ruling.
Whether a witness gave an opinion as to the merit of the case
[Headnote 8]
The prosecutor, over Quillen's objection, elicited testimony that this case, but not all cases,
was assigned a case number by the North Las Vegas Police Department. Quillen argues that
the only inference that the jury could have made was that the police believed that the case had
merit. Quillen contends that eliciting such a statement was improper. See Aesoph v. State,
102 Nev. 316, 721 P.2d 379 (1986) (prosecutor precluded from giving personal opinion that
case for the state has merit). The State argues that the testimony was relevant to establishing
the chain of custody for physical evidence collected by the arresting officers. We conclude
that the officer's testimony was relevant and did not constitute an improper opinion on the
merit of the case.
Refused jury instruction regarding warning shots
[Headnote 9]
The district court refused Quillen's proposed jury instruction that stated that if the
defendant is confronted by one or more persons who aim or fire a firearm towards him, and
the defendant then seizes that firearm, the defendant is allowed, under the law, to fire warning
shots to prevent possible further threats from the said other person or persons. Quillen
contends that the district court abused its discretion by denying him an instruction on his
theory of the case. See, e.g., Roberts v. State, 102 Nev. 170, 717 P.2d 1115 (1986) (a
defendant is entitled to jury instructions that comport with his theory of the case as disclosed
by the evidence, no matter how weak or incredible that evidence may appear to be). But see
Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989) (it is not error for a trial judge to decline
proffered instructions, even theory-of-the-case instructions, when the subject matter of the
proffered instructions is substantially covered by other instructions actually given by the trial
court).
We conclude that the district court properly refused the proffered instruction. First, Quillen
has presented no authority in support of such an instruction. See Tahoe Village Realty v.
DeSmet, 95 Nev. 131, 136, 590 P.2d 1158, 1162 (1979) (summarily rejecting novel
proposition when no relevant authority cited). Second, Quillen's theory of the case is
adequately covered by other instructions actually given by the district court.
7
Refused jury
instruction regarding inconsistent statements
__________

7
For example, Instruction No. 8 provided: An ex-felon has the same rights of self defense as does any other
person; Instruction No. 9 provided: A person, who is not the original aggressor, has no duty to retreat before
using deadly force, if a reasonable person in a position of a non-aggressor would believe that his assailant is
about to kill him or cause him serious bodily harm; Instruction No. 10 provided: If you have a reasonable
doubt
Refused jury instruction regarding inconsistent statements
[Headnote 10]
Quillen contends that the district court also erred in rejecting his proposed jury instruction
that would have instructed the jury that a prior inconsistent statement may be considered for
the purpose of testing the credibility of a witness. Quillen cites Levi v. State, 95 Nev. 746,
602 P.2d 189 (1979), in which the witnesses at trial repudiated statements they made at the
preliminary examination. The State argues that the statements made by Gaytan and Reyes,
that Quillen verbally threatened them and then shot at them, are consistent throughout the
proceedings and, therefore, this case is distinguishable from Levi. Examples of the kinds of
inconsistencies alleged by the defense are: (1) that on cross-examination, Gaytan said that
Quillen's exact words were, Mexicans, you're going to die. Don't move, because you're going
to die, whereas, in his statement to the police, Gaytan said that Quillen's words were I'm
going to kill you Mexicans) and; (2) that, at trial, Gaytan said that there were two shots, but
at the preliminary hearing, he said that there were two or three shots. The trial court must
refuse to give a jury instruction that is not pertinent. NRS 175.161(3). In this case, the district
court rejected Quillen's proposed instruction, concluding that the alleged inconsistencies were
trivial. We conclude that this was not an abuse of discretion, especially in light of other
instructions given by the district court.
8

The State's references to the Thanksgiving holiday
[Headnote 11]
Quillen contends that he was prejudiced by references in the prosecutor's closing
arguments to the crime having occurred on Thanksgiving Day. Quillen notes that the
prosecutor referred to Thanksgiving no fewer than eight times, stating on two occasions that
Gaytan and Reyes were having their Thanksgiving meal.
9
Quillen argues that the logical
inference from the prosecutor's comments is that what happened to Gaytan and Reyes was
some sort of Thanksgiving Day massacre. The State contends that Quillen has not
established that he was harmed by the prosecutor's remarks.
__________
as to whether the firearm was initially in the possession of Leopoldo Gaytan and/or Francisco Reyes and whether
the defendant reasonably believed that he was about to be seriously injured or killed, even if there was no actual
or immediate danger to the defendant, then you must find the defendant not guilty.

8
Instruction No. 15, for example, instructed the jury that it was permitted to determine the credibility and
believability of a witness based upon, inter alia, the strength or weakness of his recollections.

9
There was no evidence adduced at trial that Gaytan and Reyes were in fact observing the Thanksgiving
holiday.
Quillen has not established that he was harmed by the prosecutor's remarks.
[Headnote 12]
This court has repeatedly held that so-called holiday arguments are inappropriate,
although they rarely warrant reversal by themselves.
10
Such remarks have no purpose other
than to arouse the jurors' emotions. Williams v. State, 103 Nev. at 109, 734 P.2d at 702.
Holiday arguments are generally made to arouse jurors' passions by referring to the victim
and a holidaysuch as the victim will never celebrate Christmas again with his children.
Quillen committed the crime on Thanksgiving Day, and the prosecutor referred to that day
and the Thanksgiving meal the two men were eating more than she probably should have.
However, no objection was made to any of the references and nothing further was stated to
emotionalize the situation. It is well established that, as a general rule, any improper remarks
made by the prosecutor in closing argument will not be considered on appeal if not objected
to at trial. Dearman v. State, 93 Nev. 364, 368-69, 566 P.2d 407, 409-10 (1977).
Since no objections were made to any of the Thanksgiving references and we do not see
how these statements could have been prejudicial to Quillen, any error that may have
occurred was harmless.
State's reasonable doubt explanation
[Headnotes 13, 14]
Quillen contends that he was prejudiced by the prosecutor's description of reasonable
doubt as the kind of doubt that would govern you in the weightier affairs of life, buying a
house, changing jobs, major life decisions. According to Quillen, the prosecutor's
explanation impermissibly diminishes the reasonable doubt standard. Quillen notes that the
model instruction for the United States Court of Appeals for the Ninth Circuit no longer
analogizes reasonable doubt to the most important decisions in one's life, because decisions
like choosing a spouse, buying a house, borrowing money, and the like . . . may involve a
heavy element of uncertainty and risk-taking and are wholly unlike the decisions jurors ought
to make in criminal cases. See 9th Cir. Crim. Jury Instr. 3.03 cmt. (1995). We find the
reasoning underlying the Ninth Circuit model instruction persuasive, although we note that
this kind of improper explanation would ordinarily be harmless. See, e.g., Lord v. State,
107 Nev. 2S
__________

10
See, e.g., Williams v. State, 103 Nev. 106, 734 P.2d 700 (1987) (Valentine's Day); Dearman v. State, 93 Nev.
364, 566 P.2d 407 (1977) (New Year's Day); Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975) (Christmas). In
each of these cases, the improper statements were held not to be prejudicial.
although we note that this kind of improper explanation would ordinarily be harmless. See,
e.g., Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991) (improper explanation of reasonable
doubt cured by proper written jury instruction regarding reasonable doubt). Jury Instruction
No. 12 contained the statutory definition of reasonable doubt provided in NRS 175.211, and
we deem the prosecutor's remarks concerning reasonable doubt to be harmless error.
Refusal to provide the jury with a definition of Quillen's prior felony
[Headnote 15]
Prior to closing arguments, defense counsel requested that he be allowed to provide the
jury a definition of attempted statutory sexual seduction, Quillen's prior felony conviction.
Statutory sexual seduction denotes consensual sex with an under-aged person. Quillen
contends that he was prejudiced by the district court's denial of his request, because the jury
may have mistakenly believed that he had been convicted of forcible rape. The State argues
that there is no authority to support Quillen's request.
In Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980), cited by both parties, we stated that
the prosecution should only be allowed to prove the fact, instead of the nature, of a prior
conviction where the effectiveness of the prosecutor's case is not impaired, and unnecessary
and improper prejudice to the accused is avoided. Id. at 343, 609 P.2d at 326. Sanders was
convicted of robbery with the use of a deadly weapon and of being a convicted felon in
possession of a concealable firearm. His prior convictions were for attempted robbery and
rape. On appeal, Sanders argued that the district court abused its discretion in denying his
motion in limine to exclude evidence of the nature of his two prior felony convictions because
he had offered to stipulate to the fact of those convictions. We reversed, holding that, in a
trial for robbery, it was reversible error to inform the jury, for the purposes of proving a
felon-in-possession charge, that Sanders' prior felony convictions included a conviction for
attempted robbery. Id. at 343, 609 P.2d at 326.
In the present case, Quillen made no effort to preclude identification of the nature of his
prior felony convictions. Instead, the defense entered into a stipulation in which Quillen
agreed that the jury would be informed not only of the fact of his prior felony conviction, but
what the felony was and when it occurred. Under the circumstances, we conclude that it was
not an abuse of the district court's discretion to deny Quillen's request to introduce further
explanation of the nature of Quillen's prior convictions.
Quillen's sentence was not excessive
[Headnote 16]
Quillen was sentenced to six years in prison, the maximum sentence for an ex-felon in
possession of a firearm. However, we have stated many times that a sentence will be upheld if
it is within the district judge's authority to assess. Silks v. State, 92 Nev. 91, 94, 545 P.2d
1159, 1161 (1976). This sentence was within the district judge's authority, and the claim that
it was excessive has no merit.
CONCLUSION
We conclude that: (1) the district court did not abuse its discretion in allowing the prior
trial testimony of Gaytan and Reyes to be read into the record; (2) the district court did not
abuse its discretion in allowing testimony regarding a swastika medal on Quillen's jacket at
the time of his arrest; (3) the State did not improperly refer to statements Quillen made when
first confronted by the police; (4) the arresting officer did not testify as to his opinion of the
merit of the State's case; (5) the district court did not abuse its discretion in refusing Quillen's
proposed jury instruction regarding warning shots; (6) the district court did not abuse its
discretion in refusing Quillen's proposed jury instruction regarding inconsistent statements;
(7) any error that occurred by the State's repeated references to the Thanksgiving Day holiday
was harmless; (8) the State's improper explanation of reasonable doubt during closing
arguments was harmless error; and (9) the district court did not abuse its discretion by
refusing to allow the defense to define for the jury the meaning of attempted statutory sexual
seduction, Quillen's prior felony conviction. We affirm Quillen's judgment of conviction for
violation of NRS 200.481.
____________
112 Nev. 1384, 1384 (1996) Hall v. SSF, Inc.
LAWRENCE D. HALL, Appellant, v. SSF, INC., a Nevada Corporation, dba THE
LIMELITE, PAUL SONNER, JOHN HANDKA, A. RAZAK SALAHO, MICHELLE
F. SONNER and MARTIN F. FOGEL, JR., Respondents.
No. 27067
December 20, 1996 930 P.2d 94
Appeal from partial summary judgment and judgment following a bench trial in an action
for compensatory and punitive damages. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
112 Nev. 1384, 1385 (1996) Hall v. SSF, Inc.
Nightclub patron who was struck in the jaw by bouncer brought tort action against
bouncer, nightclub's manager, company which owned nightclub, and company's officers and
directors. The district court entered judgment in favor of company's officers and directors and
for patron on the theories of intentional assault and battery, and appeal was taken. The
supreme court, Rose, J., held that: (1) trial court's conclusion that patron did not need future
surgery was erroneous and as such, case would be remanded for new trial on issue of whether
patron was entitled to damages for future surgery, and (2) evidence that bouncer had been
discharged less than honorably from the military for striking superior officer was relevant to
the issue of negligent hiring and as such, the evidence should have been admitted.
Affirmed in part, reversed in part and remanded for new trial.
Jonathan H. King, Reno, for Appellant.
Georgeson, McQuaid, Thompson, and Angaran, Chtd., Reno, for Respondent John
Handka.
Laxalt and Nomura and Katherine J. MacKenzie, Reno, for Respondents SSF, Inc., Paul
Sonner, A. Razak Salaho, Michelle F. Sonner, and Martin F. Fogel, Jr.
Where trial court, sitting without jury, makes determination predicated upon conflicting evidence, that determination will not be
disturbed on appeal where supported by substantial evidence.
2. Evidence.
Substantial evidence is that which reasonable mind might accept as adequate to support conclusion.
Trial court's determinations of fact will not be set aside unless they are clearly erroneous.
4. Damages.
Successful plaintiff is entitled to compensation for all the natural and probable consequences of defendant's tortious conduct and to
establish that future medical expenses are a natural and probable consequence of defendant's tortious conduct, plaintiff must establish
that such future medical expenses are reasonably necessary.
5. Damages.
Trial court's conclusion that nightclub patron who was hit in the jaw by bouncer did not need future surgery was clearly erroneous
and not supported by substantial evidence and hence, case would be remanded for new trial on issue of whether patron was entitled to
damages for future surgery. While dentist stated that many people in patron's situation did not need surgery to correct their problem,
dentist was not a specialist in this area and did not testify conclusively as to the treatment that patron required and instead,
dentist deferred judgment on patron's need for surgery to orthodontic specialist who definitively stated
that patron absolutely needed surgery to correct his jaw problems.
112 Nev. 1384, 1386 (1996) Hall v. SSF, Inc.
that patron required and instead, dentist deferred judgment on patron's need for surgery to orthodontic specialist who definitively stated
that patron absolutely needed surgery to correct his jaw problems.
Owner of nightclub was on notice that the issues of negligent hiring, training, supervision and retention were being litigated by
nightclub patron who was struck in the jaw by bouncer. Patron's complaint alleging that owner was negligent in failing to adequately
train and supervise its employees adequately placed owner on notice that issues of negligent training and supervision were being
litigated and while negligent retention was not specifically included in complaint, it was so closely related to negligent supervision that
owner was adequately placed on notice that the issue would be litigated and furthermore, while the pleadings did not specifically
mention negligent hiring, the issue was litigated at trial.
Tort of negligent hiring imposes general duty on employer to conduct reasonable background check on potential employee to
ensure that employee is fit for the position and employer breaches this duty when it hires employee even though employer knew, or
should have known, of employee's dangerous propensities.
Nightclub's hiring of bouncer who is known to have violent propensities would likely be breach of the duty to ensure that
employee is fit for the job since a bouncer, by very nature of the job, has significant interaction with the public and is routinely placed
in confrontational situations with patrons.
9. Appeal and Error; Trial.
Decision to admit or exclude testimony rests within sound discretion of trial court and will not be disturbed unless it is manifestly
wrong.
Evidence that nightclub bouncer had been discharged less than honorably from the military for striking a superior officer, which
may have been improper character evidence regarding the issue of whether bouncer tortiously hit nightclub patron, was relevant to the
issue of negligent hiring because it would have aided trial court in determining whether bouncer had violent propensities and whether
nightclub knew or should have known of the violent propensities and as such, evidence of bouncer's alleged prior violence should have
been admitted.
11. Negligence.
Proprietor owes general duty to use reasonable care to keep the premises in a reasonably safe condition for use.
As is the case in hiring employee, employer has duty to use reasonable care in the training, supervision, and retention of its
employees to make sure that employees are fit for their positions.
Evidence regarding other fights that nightclub bouncer had been in, while it might have been improper character evidence
regarding issue of whether bouncer tortiously hit nightclub patron, was relevant on the issues of negligent training, supervision, and
retention and thus, such evidence should have been admitted. Evidence regarding when and where fights occurred would have
provided court with information needed to determine whether nightclub was aware of bouncer's actions and whether nightclub had
acted negligently.
112 Nev. 1384, 1387 (1996) Hall v. SSF, Inc.
OPINION
Appellant Lawrence Hall filed a complaint against respondents alleging several causes of
action, including the negligent training, supervision, and retention of employees. Hall sought
compensatory and punitive damages, including future medical damages, for injuries sustained
when respondent John Handka, a security guard employed by respondent SSF, Inc. (SSF), hit
Hall in the jaw. The district judge found for Hall and against respondents Handka and SSF on
theories of intentional assault and battery and respondeat superior, awarded Hall damages for
past medical bills, but refused to award him damages for future medical expenses. The
district judge also refused to hear certain evidence regarding the negligent hiring, training,
supervision, and retention claim and ultimately found against Hall on that claim.
We conclude that the district judge erred in refusing to award damages for future medical
expenses and also in refusing to consider evidence relevant to Hall's claim for negligent
hiring, training, supervision, and retention.
FACTS
In March 1992, plaintiff/appellant Hall was in Reno to participate in a fire protection
training class. He and several other members of the class decided to go to the Limelite, a local
night club owned by SSF, a Nevada corporation. At the time, respondents A. Razak Salaho,
Michelle F. Sonner, and Martin F. Fogel, Jr. were officers and directors of SSF. Respondent
Paul Sonner (Paul) was the Limelite's manager, and Handka was one of the Limelite's
doormen (aka bouncers).
Hall and the others in the group were under the mistaken impression that the Limelite
would not be collecting a cover charge that evening. When the group arrived at the Limelite,
they learned of the cover charge, paid it, and entered the night club. Shortly thereafter, the
group determined that there was no activity whatsoever inside, and they decided to leave.
Hall and the others requested a refund of their cover charge, and Paul, the Limelite's manager,
refused.
Paul testified that Hall and seven other members of the group remained in the small
vestibule of the Limelite arguing for the return of the group's cover charge. Paul, who was on
the phone at the time, asked the group to wait until he finished his call. Someone from the
group then reached into the cashier's area, disconnected the phone, and told Paul that we're
talking to you now."
112 Nev. 1384, 1388 (1996) Hall v. SSF, Inc.
now. Paul then requested that Handka and two other doormen remove the group from the
club.
Handka testified that in response to Paul's request, he and the two other doormen began
escorting the group from the club. The group engaged in heated words with the bouncers
while inside the club and continued to argue with Handka after they were escorted outside of
the club. Handka testified that when he perceived someone approaching him in what he
thought was a menacing manner, he struck out with his fist, hitting Hall in the right jaw area.
Handka further testified that he believed he was in danger and struck out in self-defense. Hall
testified that when he turned around to see who had hit him, Handka was jumping up and
down, challenging Hall to a fight.
Hall, complaining of pain in his right jaw area and neck, sought treatment from Dr. Bryan
Keropian, D.D.S. Dr. Keropian diagnosed Hall with a displaced disk in the right
temporomandibular joint (TMJ). Dr. Keropian prescribed an oral orthotic (mouthpiece) for
use by Hall. This orthotic, over a period of time, resolved all of Hall's pain symptoms, and
Hall began wearing the device only at night.
Dr. Keropian testified that Hall suffered from a slipped disk between the upper and
lower jaw bones in the TMJ. He also testified that the orthotic device prescribed for Hall was
not intended to move a slipped disk back into proper position between the upper and lower
jaws; it merely aligned the jaw bones in a position that caused the surrounding muscles and
ligaments to relax, thereby eliminating the source of pain. The problem was that during the
day, when the orthotic was not being used, the jaw bones rubbed together without the
protection of the normally interposed disk. Without the disk in proper position, the jaw bones
were only protected by a very thin ligament, which, over time, may be worn away so that the
upper and lower jaw bones begin to rub together.
Dr. Keropian testified that orthodontics, including surgery, may be used to correct this
situation on a more permanent basis. Dr. Keropian testified, however, that a high
percentage of patients that go to orthodontics do not have surgery. However, Dr. Keropian
testified: Off the top of my head, I would say that my thoughts were that [Hall's treatment]
was not going to include surgery, but I'm not the orthodontist.
Dr. Keropian referred Hall to an orthodontist, Dr. Emmanuel Wasserman. Dr. Wasserman
prescribed orthodontics and, ultimately, surgical intervention. Dr. Wasserman testified that
the course of treatment prescribed for Hall, including surgery, was absolutely necessary. Dr.
Wasserman also testified that orthotics, such as those prescribed by Dr.
112 Nev. 1384, 1389 (1996) Hall v. SSF, Inc.
such as those prescribed by Dr. Keropian, were only interim measures and were not a cure.
As part of the treatment plan, Hall had seven teeth extracted and skin grafts taken from the
roof of his mouth, both causing substantial pain and discomfort. He was also fitted with
braces, which he has worn for two years. Hall testified that he intended to undergo the
recommended surgical procedure.
Hall filed his first amended complaint against respondents in November 1992. Hall alleged
several causes of action sounding in tort, including intentional battery and negligent hiring,
training, supervision, and retention. In March 1994, respondents Salaho, Michelle Sonner,
and Fogel, the corporate officers and directors of SSF, moved for summary judgment. The
district court awarded judgment in their favor, finding no basis for attributing personal
liability. The matter then proceeded to a bench trial on Hall's claims against Handka, Paul,
and SSF.
After three days of trial, the district court found in favor of Paul and against Hall on all
claims and for Hall and against Handka and SSF on the theories of intentional assault and
battery. The district court awarded to Hall $57,782.00 in general and medical damages, but
specifically did not award any damages for future medical expenses or damages relating to
surgery. The district court also awarded punitive damages against Handka and SSF in the
amount of $5,000.00 each, but on motion of SSF, later struck the award of punitive damages
against SSF. Hall was awarded costs in the amount of $9,105.39.
DISCUSSION
Damages for Hall's future medical expenses
Hall contends that the court erred in failing to award damages for future surgery.
Respondents contend that the district court properly rejected Hall's claim because Hall failed
to establish that future surgery would be necessary to treat Hall's condition.
[Headnotes 1-3]
Where the trial court, sitting without a jury, makes a determination predicated upon
conflicting evidence, that determination will not be disturbed on appeal where supported by
substantial evidence. Trident Construction v. West Electric, 105 Nev. 423, 427, 776 P.2d
1239, 1241 (1989). Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion.' State Emp. Security v. Hilton Hotels, 102 Nev. 606, 608,
729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389 (1971)). A district
court's determinations of fact will not be set aside unless they are clearly erroneous.
Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566
112 Nev. 1384, 1390 (1996) Hall v. SSF, Inc.
Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 592 (1990).
[Headnote 4]
A successful plaintiff is entitled to compensation for all the natural and probable
consequences of a defendant's tortious conduct. Lerner Shops v. Marin, 83 Nev. 75, 423 P.2d
398 (1967). In order to establish that the future medical expenses are a natural and probable
consequence of defendant's tortious conduct, the plaintiff must establish that such future
medical expenses are reasonably necessary. See Dowe v. Grady, 540 So. 2d 1040, 1046 (La.
Ct. App. 1989) (absent evidence establishing a genuine need for future medicals, the trial
court erred in awarding such damages).
Dr. Keropian, a dentist, testified generally that a high percentage of people suffering from
the same injuries as Hall did not need surgery. However, Dr. Keropian stated that while he
thought that Hall did not need surgery, he could not make a conclusive determination because
he was not an orthodontist with special training in this area. Dr. Wasserman, the orthodontic
specialist to whom Dr. Keropian deferred judgment on Hall's case, provided uncontradicted
testimony that the course of treatment prescribed for Hall, including braces and surgery, was
absolutely necessary and that the orthotic devices prescribed to ease Hall's pain were simply
an interim measure, not a cure.
In denying the award for future medical damages, the district judge stated, I don't believe
or accept that there is a probability of surgery in the plaintiff's future. In response to
respondents' post-trial motions, the court further stated:
The Court was very attentive during all of the testimony. The Court found, after
listening to both Dr. Keropian and Dr. Wasserman, that surgery was not necessary, nor
the ordinary course, for proper treatment of injuries like those Plaintiff sustained. The
Court carefully assessed what was necessary and probable. There was no factual error
made.
[Headnote 5]
We conclude that based on the testimony given at trial, the district judge's conclusion that
Hall did not need future surgery was clearly erroneous and not supported by substantial
evidence. While Dr. Keropian stated that many people in Hall's situation did not need surgery
to correct their problem, Dr. Keropian was not a specialist in this area and did not testify
conclusively as to the treatment that Hall required. Instead, Dr. Keropian deferred judgement
on Hall's need for surgery to Dr. Wasserman, a specialist in this area, and Dr. Wasserman
definitively stated that Hall absolutely needed surgery to correct his jaw problems.
112 Nev. 1384, 1391 (1996) Hall v. SSF, Inc.
Therefore, the district judge's conclusion that surgery was unnecessary was not supported by
substantial evidence, and this case must be remanded to the district court for a new trial on
this issue.
Hall's cause of action for negligent hiring, training, supervision, and retention
Hall contends that the district judge improperly disallowed certain evidence relevant to his
cause of action for negligent hiring, training, supervision, and retention. SSF contends that
the district court's findings were supported by substantial evidence and further that the district
judge properly refused to admit the contended evidence.
1. Negligent hiring
The district judge initially stated that she did not believe that the pleadings were sufficient
to place the defendants on notice that the issue of negligent hiring, training, supervision, and
retention was being litigated. We disagree. Hall's complaint stated:
Defendants were negligent in failing to adequately train and supervise their managing
agent and employees, agents and representatives.
We have previously stated that a complaint need only set forth sufficient facts to
demonstrate the necessary elements of a claim for relief so that the defending party has
adequate notice of the nature of the claim and the relief sought. Pittman v. Lower Court
Counseling, 110 Nev. 359, 365, 871 P.2d 953, 957 (1994). Additionally, we have stated that
Nevada is a notice pleading jurisdiction and we liberally construe pleadings to place matters
into issue which are fairly noticed to the adverse party. Id.
[Headnote 6]
The plain language of the pleadings adequately placed respondents on notice that the
issues of negligent training and supervision were being litigated. We conclude that while
negligent retention was not specifically included in the complaint, it is so closely related to
negligent supervision that respondents were adequately placed on notice that the issue of
negligent retention would be litigated. Furthermore, while the pleadings did not specifically
mention negligent hiring, the issue was litigated at the bench trial, and both parties examined
witnesses regarding the circumstances surrounding Handka's hiring. NRCP 15(b) states that
when issues not raised by the pleadings are tried by express or implied consent of the parties,
the issues shall be treated as if they were raised in the pleadings. The defense made no
objection to the questions regarding negligent hiring, and therefore the issue was tried by
implied consent.
112 Nev. 1384, 1392 (1996) Hall v. SSF, Inc.
the questions regarding negligent hiring, and therefore the issue was tried by implied consent.
As such, we conclude that respondents were on notice that the issues of negligent hiring,
training, supervision, and retention were being litigated.
[Headnote 7]
The district judge also stated that even if the pleadings were sufficient, Hall presented
insufficient evidence on this issue. The tort of negligent hiring imposes a general duty on the
employer to conduct a reasonable background check on a potential employee to ensure that
the employee is fit for the position. Burnett v. C.B.A. Security Service, 107 Nev. 787, 789,
820 P.2d 750, 752 (1991). An employer breaches this duty when it hires an employee even
though the employer knew, or should have known, of that employee's dangerous propensities.
Kelley v. Baker Protective Services, Inc., 401 S.E.2d 585, 586 (Ga. Ct. App. 1991).
[Headnote 8]
By the very nature of the job, a bouncer has significant interaction with the public and is
routinely placed in confrontational situations with patrons. Therefore, hiring a bouncer who is
known to have violent propensities would likely be a breach of the duty to ensure that the
employee is fit for the job. See Connes v. Molalla Transport System, Inc., 831 P.2d 1316,
1321 (Colo. 1992) (stating that liability [for negligent hiring] is predicated on the employer's
hiring of a person under circumstances antecedently giving the employer reason to believe
that the person, by reason of some attribute of character or prior conduct, would create an
undue risk of harm to others in carrying out his or her employment responsibilities); Yunker
v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. Ct. App. 1993) (stating that negligent hiring
liability is imposed when the employer knew or should have known that the employee was
violent or aggressive and might engage in injurious conduct).
Hall attempted to discover facts regarding the circumstances surrounding Handka's hiring
but was frustrated in his attempts because SSF had been dissolved shortly after the incident at
issue and its records and files had been destroyed. At trial, Hall attempted to introduce into
evidence the fact that Handka had been discharged less than honorably from the military for
striking a superior officer. The district judge sustained respondents' objection that the
evidence was inadmissible as irrelevant and as improper character evidence. The district
judge permitted Hall to make an offer of proof on this issue, which Hall did.
[Headnotes 9, 10]
The decision to admit or exclude testimony rests within the sound discretion of the trial
court and will not be disturbed unless it is manifestly wrong.
112 Nev. 1384, 1393 (1996) Hall v. SSF, Inc.
sound discretion of the trial court and will not be disturbed unless it is manifestly wrong.
Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983). We conclude that the district
judge's decision to exclude the testimony was manifestly wrong. The evidence, which may
have been improper character evidence regarding the issue of whether Handka tortiously hit
Hall, was still relevant to the issue of negligent hiring because it would have aided the district
judge in determining whether Handka had violent propensities and whether SSF knew or
should have known of those violent propensities. Therefore, the case must be remanded for a
new trial on the issue of negligent hiring, and the district judge must consider evidence of
Handka's alleged prior violence as part of the determination of whether SSF was negligent
when it hired Handka.
2. Negligent training, supervision, and retention
[Headnotes 11, 12]
Hall also alleged that SSF failed to use reasonable care in training, supervising, and
retaining Handka. In Nevada, a proprietor owes a general duty to use reasonable care to keep
the premises in a reasonably safe condition for use. Moody v. Manny's Auto Repair, 110 Nev.
320, 331-33, 871 P.2d 935, 942-43 (1994). As is the case in hiring an employee, the employer
has a duty to use reasonable care in the training, supervision, and retention of his or her
employees to make sure that the employees are fit for their positions. See 27 Am. Jur. 2d
Employment Relationship 475-76 (1996).
[Headnote 13]
Hall tried to question Handka regarding five other fights that Handka had been in, but the
judge sustained opposing counsel's objection on the ground that the question called for
improper character evidence and did not let Handka answer the question. We conclude that
such a ruling was manifestly wrong because while the evidence might have been improper
character evidence regarding the issue of whether Handka tortiously hit Hall, it was certainly
relevant on the issue of negligent training, supervision, and retention. Handka's testimony
regarding when and where the fights occurred would have provided the district judge with
information needed to determine whether SSF was aware of Handka's actions and whether
SSF had acted negligently in training, supervising, and retaining Handka. Therefore, the case
must be remanded for a new trial on the issues of negligent training, supervision, and
retention, the district judge must permit testimony regarding Handka's prior fights, and the
district judge must consider such evidence when determining whether SSF acted negligently
in training, supervising, and retaining Handka.
112 Nev. 1384, 1394 (1996) Hall v. SSF, Inc.
CONCLUSION
We therefore conclude that this case must be reversed regarding the issues of future
damages and negligent hiring, training, supervision, and retention and that a new trial must be
conducted on those issues. However, because we conclude that all of Hall's other arguments
on appeal lack merit, we affirm the remainder of the district court's rulings.
Springer, J., dissenting in part and concurring in part in the judgment only:
Although I concur, in part, in the result, I respectfully dissent from the majority opinion.
I believe that the district court's refusal to award damages for future surgery was supported
by substantial evidence. The plaintiff in a negligence case bears the burden of proof on each
element of the negligence cause of action, including damages. Perez v. Las Vegas Medical
Center, 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991). Moreover, it is the role of the trier of
fact, not this court, to judge the credibility of witnesses; consequently, this court generally
may not substitute its own evaluation of the evidence for that of the district court where the
district court had an opportunity to hear the witnesses and judge their demeanor. Kobinski v.
State, 103 Nev. 293, 296, 738, P.2d 895, 897 (1987). Although Dr. Wasserman provided
uncontradicted testimony that future surgery was absolutely necessary in Hall's case, Dr.
Wasserman is not simply an expert on TMJ injury, but is also the orthodontist who would be
performing Hall's surgery. For this reason, the district court was entitled to be somewhat
suspicious of Dr. Wasserman's diagnosis. Finally, I believe that this fact, together with Dr.
Keropian's testimony that most TMJ injury sufferers do not undergo corrective surgery,
sufficiently supports the district court's determination that Hall had not sustained his burden
of proving the reasonable necessity of future surgery. Because I do not find the district court's
conclusion clearly erroneous, I would affirm on the issue of damages. However, because I
believe that Hall was improperly prevented from fully litigating his negligent retention and
supervision causes of action, I would remand these issues to the district court for a new trial.
____________
112 Nev. 1395, 1395 (1996) Spector v. Spector
WILLIAM I. SPECTOR, Appellant, v. MARION GRACE SPECTOR, Respondent.
No. 27304
December 20, 1996 929 P.2d 964
Appeal from an order denying termination of alimony payments. Second Judicial District
Court, Washoe County; James A. Stone, Judge.
Former husband moved to terminate his alimony obligation based on cohabitation
provision incorporated into parties' divorce decree. The district court entered order denying
former husband's motion, on theory that cohabitation provision was void as against public
policy, and former husband appealed. The supreme court held that clause in parties divorce
decree, providing that former husband's obligation to pay alimony would terminate if his
ex-wife cohabited with adult male not a member of her family in romantic relationship, was
not void as against public policy.
Robert A. Grayson, Carson City, for Appellant.
Mark A. Beguelin, Reno, for Respondent.
Divorce; Husband and Wife.
Cohabitation provision incorporated into parties' divorce decree, which indicated that former husband's obligation to pay alimony
would terminate if his ex-wife cohabited with adult male not a member of her family in romantic relationship, was not void as against
public policy.
OPINION
Per Curiam:
This is an appeal from a district court order denying a husband's request to terminate alimony to his former wife based on a provision
in their voluntary separation agreement. Because we conclude that the provision was not against public policy, we reverse the order of the
district court.
William I. Spector (William) and Marion Grace Spector (Marion) were married on September 6, 1970. On July 3, 1991, William
filed for divorce. On April 27, 1992, the district court entered its findings of fact, conclusions of law and judgment, and decree of divorce.
Incorporated into the decree was a child support and property settlement agreement voluntarily entered into by Marion and William. The
agreement contains the provision at issue, which states:
[William] will pay [Marion] the sum of One Thousand Five Hundred Dollars
($1,500.00) per month for an indefinite period of time until [Marion] cohabits with an
adult male not a member of her family in a romantic relationship, dies or remarries, or
when [William] dies, becomes disabled or retires from the practice of medicine,
whichever shall first occur (hereinafter the cohabitation provision).
(Emphasis added.)
On February 22, 1995, William filed a motion to modify the divorce decree based on his
belief and information that Marion was cohabiting with an adult male not a member of her
family in a romantic relationship.
A hearing was held on April 12, 1995. When William's attorney began to present evidence
of Marion's cohabitation with another man, the judge stopped him and elicited an admission
from Marion that she was living with a man with whom she was sexually involved.
1
The
judge stated in open court that whether Marion was cohabiting with a man was not the issue
here, but rather the issue was whether the cohabitation provision was unenforceable as against
public policy. In other words, the court considered whether the cohabitation provision was
void ab initio.
On May 18, 1995, the district court filed its order denying William's motion to modify
divorce decree, holding the cohabitation provision was against public policy. On June 19,
1995, William filed his notice of appeal.
William argues that the cohabitation provision is not against public policy as evidenced by
the overwhelming number of cases from other jurisdictions holding termination of alimony
upon the recipient's cohabitation is proper.
2
Marion cites no authority to the contrary.
__________

1
Marion did not concede this was a romantic relationship, only that on occasion she had sexual relations with
the man she lived with.

2
For cases which allow a voluntary agreement to end alimony upon the recipient's cohabitation, see
Quisenberry v. Quisenberry, 449 A.2d 274 (Del. Fam. Ct. 1982); Gale v. Rose, 455 So. 2d 476 (Fla. 1984);
Alford v. Alford, 594 So. 2d 843 (Fla. Ct. App. 1992); Bell v. Bell, 468 N.E.2d 859 (Mass. 1984); Bisig v.
Bisig, 469 A.2d 1348 (N.H. 1983); Russell v. Russell, 438 N.Y.S.2d 618 (N.Y. App. Div. 1981); Zipparo v.
Zipparo, 416 N.Y.S.2d 321 (N.Y. App. Div. 1979); Rehm v. Rehm, 409 S.E.2d 723 (N.C. Ct. App. 1991);
Taylor v. Taylor, 465 N.E.2d 476 (Ohio Ct. App. 1983); In re Marriage of Edwards, 698 P.2d 542 (Or. Ct. App.
1985); Frey v. Frey, 416 S.E.2d 40 (Va. App. 1992); see also Jones v. Jones, 93 Nev. 545, 571 P.2d 103 (1977).
For cases which rely upon a statute that directs termination of alimony upon cohabitation, see McCluskey v.
McCluskey, 528 So. 2d 328 (Ala. Civ. App. 1988); Hathcock v. Hathcock, 287 S.E.2d 19 (Ga. 1982); In re
Support of Halford, 388 N.E.2d 1131 (Ill. 1979); Roberts v. Roberts, 657 P.2d 153 (Okla. 1983); Wacker v.
Wacker, 668 P.2d 533 (Utah 1983).
We are persuaded by the ample amount of authority from other jurisdictions to conclude
that this cohabitation provision is not against public policy. Accordingly, we reverse the
district court's order that the provision was void ab initio, and we remand this matter for
further proceedings.
3

____________
112 Nev. 1397, 1397 (1996) James Hardie Gypsum, Inc. v. Inquipco
JAMES HARDIE GYPSUM (NEVADA) INC., a Nevada Corporation, Appellant, v.
INQUIPCO, a Nevada Corporation, Respondent.
No. 27384
December 20, 1996 929 P.2d 903
Appeal from judgment awarding contractual damages. Eighth Judicial District Court,
Clark County; James Brennan, Senior Judge, and Gene T. Porter, Judge.
Lessor brought breach of rental contract action against lessee. The district court entered
judgment awarding lost rental damages, attorney fees, investigation fees and prejudgment
interest. Lessee appealed. The supreme court held that: (1) lessee agreed to written
modification of oral agreement; (2) supervisor for lessee was authorized to sign contract on
behalf of lessee; (3) lessor's delay in replacing and repairing vehicle was not reasonable for
purposes of determination of lessor's duty to mitigate loss of use damages; (4) trial court
could determine attorney fees based on affidavits; (5) rental agreement provided for award of
investigation fees; and (6) recalculation of prejudgment interest was required.
Kirshman, Harris and Cooper and Sheldon M. Markel, Las Vegas, for Appellant.
Berkley & Gordon, Las Vegas, for Respondent.
1. Bailment.
Finding that departmental supervisor for lessee assented to written modification of oral rental agreement by signing purchase
agreement was supported by evidence that lessor handed agreement to supervisor and asked him to sign it with all terms in plain view,
supervisor had extensive experience with this type of form, and supervisor was authorized to enter into rental agreement on company's
behalf. NRS 104A.2101, 104A.2206, 104A.2208; Restatement (Second) of Contracts, 211.
__________

3
The Honorable Thomas L. Steffen, Chief Justice, did not participate in the decision of this appeal.
2. Contracts.
Intent to make offer or acceptance is question of fact.
Findings of fact must be upheld if supported by substantial evidence, and may not be set aside unless clearly erroneous. NRCP
52(a).
4. Contracts.
Fact finder should look to objective manifestations of intent to enter into contract.
Finding that departmental supervisor for lessee was agent authorized to sign written modification of oral lease agreement on behalf
of lessee for purposes of statutes of frauds was supported by testimony by supervisor that he had authority to rent equipment. NRS
104A.2201(1)(b).
6. Bailment.
Lessor's 16-month delay in repairing or replacing rental truck damaged by lessee was not reasonable for purposes of lessor's duty
to mitigate its loss of use damages by replacing vehicle within a reasonable time, and required recalculation of loss of use damages
arising out of breach of rental contract.
In construing contract, supreme court is obligated to undertake its own independent review without deference to district court's
determination.
8. Damages.
As general rule, party cannot recover damages for loss that he could have avoided by reasonable efforts.
9. Damages.
In order to recover loss of use damages, plaintiff must show diligence in getting damaged item repaired as early as reasonably
possible.
10. Damages.
For purposes of calculating loss of use damages in breach of contract action, trial court's role, as trier of fact, is to determine
reasonable period of repair.
11. Costs.
Attorney fees are not recoverable absent enabling statute or rule or provision for such fees in contract between parties.
12. Costs.
After lessor moved for attorney fees under rental agreement between lessor and lessee, lessee was not entitled to hearing on
whether contract gave rise to attorney fees. Court had discretion to hear matter on affidavits under rule allowing court to hear matter on
affidavits presented by respective parties when motion is based on facts appearing on record. NRCP 43(c).
13. Bailment.
Vehicle rental agreement providing that lessee would save lessor from and reimburse lessor for all damages to loss of equipment
from any cause allowed for recovery of fees that lessor incurred in investigating vehicle damage in anticipation of litigation.
Remand was required for determination of when loss of use damages, investigation fees, and transportation fees arising out of
breach of contract became due for purposes of calculation of prejudgment interest. NRS 99.040.
15. Interest.
In breach of contract action, money becomes due for purposes of calculation of prejudgment interest on damages when time of
performance was due as resolved by court upon trial.
16. Interest.
Trial court may not speculate as to when sum becomes due for purposes of determining prejudgment interest in breach of contract
action nor decide that question upon premise of what appears to be fair and equitable time for beginning of running of interest.
17. Interest.
Trial court should award prejudgment interest on breach of contract damages from date that various obligations fell due.
OPINION
Per Curiam:
Appellant, James Hardie Gypsum, Inc. (Hardie), entered into an oral rental agreement with Inquipco for a boom crane truck.
Thereafter, the truck was damaged while being operated by a Hardie employee.
Inquipco sued Hardie for loss of rental income, moving expenses, investigation charges and attorney's fees. The district court, sitting
without a jury, entered judgment for Inquipco. Hardie appealed, contending that the trial court erred in finding that the parties entered into
an oral agreement with a written modification. In the alternative, Hardie maintains that the lower court erred in its award of lost rental
damages, attorney's fees, and investigation fees. Hardie also argues that the award of prejudgment interest was erroneous.
We affirm the judgment in part but reverse and remand for a limited retrial on the issue of damages resulting from loss of rental and for
recalculation of prejudgment interest.
FACTS
Hardie operates the Blue Diamond gypsum mine in Blue Diamond, Nevada. Inquipco leases, repairs, and maintains equipment. On
November 3, 1992, Didi Dessaints, a clerk for Hardie, claims that she orally ordered a boom truck for two days at $330.00 per day from
Inquipco at the request of Rodney Hysell, a maintenance foreman for Hardie.
Robert Cancellieri, of Inquipco, promptly directed his office to prepare an Equipment Rental Agreement (the Agreement), and to
deliver the equipment. The Agreement was prepared by Inquipco, and was physically divided into parts separated by horizontal solid lines.
The top portion consisted of a written contract containing terms and conditions and a reference to the reverse side for more terms and
conditions. The top portion also embodied a signature line.
embodied a signature line. The bottom half allowed space for the entry of contractual terms
specific to the parties involved. It also included a Delivery Inspection by signature line.
Wes Watson, an Inquipco employee, promptly delivered the truck to Hardie. Gary Gottula,
a superintendent for Hardie, happened to meet Watson at the guard gate and told Watson to
leave the truck there and he would receive it. Gottula claims that after he inspected the
vehicle, Watson put a document (now known as the Agreement) before him. Without reading
it, Gottula signed on the line indicating his inspection and receipt of delivery of the truck.
Gottula testified that he thought the document was a packing slip. He claims he did not
assent to any of the terms on the document, and that he intended his signature only to be
evidence that he had inspected and received the equipment.
Gottula also testified that he was unaware that Dessaints had ordered the truck before it
arrived, and that he did not accept the truck in his capacity as a superintendent. He claims that
anyone, even the guards or secretaries, can receive deliveries, but are not authorized to sign
equipment rental agreements. He also testified that he did have the authority to rent
equipment, but was not exercising that authority in this case since Hysell rented this
particular equipment. Gottula also testified that at some time prior to the oral agreement, he
must have given Hysell approval to order the truck.
On November 5, 1992, the truck was damaged while being operated by Hysell. Hysell died
in the accident. The parties and the State of Nevada inspected the truck during the next
month. Within a month of the accident, Inquipco transported the truck to its facility.
Larry Cox, the general manager of Inquipco, testified that Inquipco had the means to repair
or replace the vehicle immediately, but chose to wait until February 28, 1994, almost sixteen
months after the accident, to accept insurance proceeds and replace the vehicle. He claims
they waited because Hardie's counsel told him that the truck was defective, so he did not want
to disturb the evidence. He also wanted Hardie to admit responsibility before repairing the
truck.
On January 11, 1993, and again on February 3, 1993, Hardie's counsel sent a letter to
Inquipco, which Cox admits receiving, advising Cox of Inquipco's legal duty to repair and
place the equipment into service. Both letters also informed Inquipco of Hardie's position that
a defect may have caused the accident.
On July 23, 1993, Inquipco filed suit against Hardie for property damages as well as lost
rentals, investigation expenses, transportation expenses, and attorney's fees under the
Agreement provisions. However, Inquipco withdrew its claim for property damages after it
accepted reimbursement from its insurance carrier and recommissioned the vehicle for
use on February 2S, 1994.
damages after it accepted reimbursement from its insurance carrier and recommissioned the
vehicle for use on February 28, 1994.
After the parties had presented their cases, the judge found that the parties entered into an
oral contract, which was subsequently modified by the Equipment Rental Agreement. The
district court entered judgment in favor of Inquipco for lost rental damages of $43,200.00,
transportation damages of $1,100.00, investigation damages of $3,150.00, attorney's fees of
$29,500.00, and court costs of $1,154.14. It was further ordered that the judgment bear
interest beginning on November 5, 1992. This appeal ensued.
DISCUSSION
[Headnote 1]
Hardie admits that it entered into an oral agreement with Inquipco, but claims that the trial
court erred in finding that the contract had been modified in writing. Hardie maintains that
Gottula did not assent to the Agreement. In the alternative, it claims that the Agreement is
unenforceable under Nevada's Statute of Frauds.
[Headnote 2]
NRS Chapter 104A sets forth Nevada's Uniform Commercial Code as it applies to leases.
The article applies to any transaction, regardless of form, that creates or modifies a lease.
NRS 104A.2102; NRS 104A.2208.
NRS 104A.2206 provides that an offer to make a lease contract must be construed as
inviting acceptance in any manner and by any medium reasonable in the circumstances.
Intent to make an offer or an acceptance is a question of fact. See Hanneman v. Downer, 110
Nev. 167, 177, 871 P.2d 279, 285 (1994). Under NRCP 52(a), findings of fact by the court
shall not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.
[Headnote 3]
[F]indings of fact . . . must be upheld if supported by substantial evidence, and may not
be set aside unless clearly erroneous. Trident Construction Corp. v. West Electric, Inc., 105
Nev. 423, 426, 776 P.2d 1239, 1241 (1989). Substantial evidence has been defined as that
which a reasonable mind might accept as adequate to support a conclusion. State of Nevada
Employment Security Dept. v. Jones, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (citation
omitted).
Hardie contends that the district court erred in finding that the Agreement constituted an
offer. Watson handed the Agreement to Gottula and asked him to sign it with all of the
terms in plain view.
Gottula and asked him to sign it with all of the terms in plain view. Thus, we hold that there
were facts upon which the district court could conclude that the Agreement was an offer to
modify the oral lease.
Next, Hardie argues that Gottula's signature did not constitute an acceptance. There can
be no valid executory contract unless there be a meeting of the minds of the respective parties
upon its terms and conditions. Hillyer v. The Overman Silver Mining Co., 6 Nev 51, 56
(1870).
Hardie argues that Gottula thought the Agreement was an inspection receipt or packing
slip and that there is no evidence that he intended to effect a modification of the oral contract
when he signed the Delivery Inspection by line instead of the alleged acceptance line at the
top of the document.
[Headnote 4]
The fact finder should look to objective manifestations of intent to enter into a contract.
Mullen v. Christensen, 642 P.2d 1345, 1350 (Alaska 1982). In Mullen, Mullen argued that the
evidence was insufficient to show mutual assent because one of the parties did not perceive
himself as entering into a contract. The court held that the self-serving testimony of the
parties as to their subjective intentions or understandings is not probative evidence of whether
the parties entered into a contract. Id.
Additionally, Restatement (Second) of Contracts section 211 (1979), states, in pertinent
part that:
(1) [W]here a party to an agreement signs or otherwise manifests assent to a writing
and has reason to believe that like writings are regularly used to embody terms of
agreements of the same type, he adopts the writing as an integrated agreement with
respect to the terms included in the writing.
(2) Such a writing is interpreted wherever reasonable as treating alike all those
similarly situated, without regard to their knowledge or understanding of the standard
terms of the writing.
In this case, Gottula was the superintendent of the engineering department. He had worked
for Hardie and its related companies for nearly thirty years and was in charge of his
department. Further, he testified that he initialed all of the purchase orders so that he could
keep track of what occurred in his department. There was also evidence that he was
authorized to enter into rental agreements on behalf of Hardie.
Based upon the foregoing, we conclude that there was evidence that Gottula had
experience with this type of form and knew that like writings are regularly used to embody
terms of agreements of the same type."
of the same type. Thus, the evidence supports the district court's finding that Gottula
accepted the terms of the Agreement on behalf of Hardie.
Statute of frauds
[Headnote 5]
NRS 104A.2201(1)(b) provides that,
A lease contract is not enforceable by way of action or defense unless . . . [t]here is a
writing, signed by the party against whom enforcement is sought or by that party's
authorized agent, sufficient to indicate that a lease contract has been made between the
parties and to describe the goods leased and the lease term.
Hardie argues that the written contract is barred by NRS 104A.2201(1)(b), or the statute of
frauds, because Gottula was not authorized to sign such a contract for Hardie.
Gottula testified that he was the Engineering Superintendent for Hardie and that he had the
authority to rent equipment. We hold that the district court's finding that Gottula had authority
to rent equipment was based on substantial evidence and thus not erroneous.
Damages
Hardie also challenges the district court's award of damages for loss of use, attorney's fees,
and investigation fees.
1. Loss of use damages
[Headnote 6]
Hardie maintains that Inquipco is not entitled to lost rent pursuant to the Agreement. In the
alternative, it charges the district court with failing to set forth factual findings supporting the
basis for the award and with failing to reduce Inquipco's award for refusing to mitigate its
damages.
[Headnote 7]
In construing a contract, this court is obligated to undertake its own independent review
without deference to the district court's determination. Clark County Public Employees v.
Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990); see also Casino Air v. Sierra Pacific
Power Co., 95 Nev. 507, 510, 596 P.2d 496, 499 (1979). The Agreement in this case
provides:
Lessee will save Lessor from and reimburse Lessor for all damage to and loss of the
equipment from any cause. Lessee further agrees to indemnify and hold lessor harmless
from all loss, damage, liability, cost of expense, of whatsoever nature or cause,
arising out of Lessee's use or possession of equipment.
all loss, damage, liability, cost of expense, of whatsoever nature or cause, arising out of
Lessee's use or possession of equipment.
We agree with the district court that the Agreement provides for loss of use damages, and
that Inquipco sustained the loss of rental fees on the truck after the accident.
Hardie also argues that under NRCP 52(a), when sitting without a jury, the district court
judge shall find the facts specially.
1
In Cooper v. Pacific Auto. Ins. Co., 95 Nev. 798, 603
P.2d 281 (1979), this court held that in the absence of express findings of fact by the district
court, this court may imply findings where the evidence clearly supports the judgment. Id. at
801, 603 P.2d at 283. A detailed itemization of the damage award [is] not necessary [under
NRCP 52(a)], [but] the district court should . . . at least set forth the various categories of
damages and the amount designated to each category. Bing Construction Co. v. Vasey-Scott
Engineering Co., Inc., 100 Nev. 72, 73, 674 P.2d 1107, 1107 (1984).
In this case, the district court awarded Inquipco $43,200.00 in loss of use damages. The
record indicates that although the daily rental charge was $330.00, the monthly rental charge
was $3,950.00. The truck was out of commission for nearly sixteen months. Although the
district court judge only found $43,200.00 in loss of use damages, the evidence supports an
award of $3,950.00 per month for sixteen months, or a total of $63,200.00. Therefore, to this
point, the evidence supports the amount awarded.
Hardie insists, however, that the award was flawed because the court did not reduce the
award commensurate with Inquipco's failure to mitigate its damages.
[Headnotes 8-10]
As a general rule, a party cannot recover damages for loss that he could have avoided by
reasonable efforts. Conner v. Southern Nevada Paving, Inc., 103 Nev. 353, 355, 741 P.2d
800, 801 (1987) (citation omitted). [T]he rule den[ies] recovery for losses which could have
been prevented by the . . . expenditures of plaintiff. . . . Valencia v. Shell Oil Co., 147 P.2d
558, 561 (Cal. 1944). In order to recover loss of use damages, the plaintiff must show
diligence in getting the car repaired as early as reasonably possible. Rownstein v. Bernhard
& Turner Automobile Co., 180 N.W. 282, 284 (Iowa 1920). [T]he trial court's role, as trier
of fact, is to determine the reasonable period of repair."
__________

1
NRCP 52(a) provides that in all actions tried upon the facts without a jury . . . the court shall find the facts
specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.
role, as trier of fact, is to determine the reasonable period of repair. Airborn, Inc. v. Denver
Air Center, Inc., 832 P.2d 1086, 1091 (Colo. Ct. App. 1992).
Hardie claims that there was insufficient evidence adduced at trial to find that Inquipco
employed reasonable efforts to recommission the vehicle because it waited sixteen months
before replacing the truck even though it had the means to do so earlier. Further, Hardie wrote
Inquipco on January 11, 1993, and again on February 3, 1993, advising it to repair the vehicle
as soon as possible to mitigate its damages. Hardie even made a written offer to repair the
vehicle, but Inquipco refused.
Contrary to Inquipco's assertion that it was reasonable to delay while waiting for Hardie's
admission of responsibility, refusal to admit liability and pay for repairs does not in itself
constitute a[n] . . . interference with the repair process. Airborn, 832 P.2d at 1091.
Inquipco also claimed that it maintained the equipment in its damaged condition because
defense counsel threatened a defective product defense at trial. While Inquipco's assertion
might support a finding that it was reasonable in delaying repair, it does not support a finding
that it was reasonable in delaying repair or replacement if it had the means to do so earlier.
Inquipco could have mitigated its loss of use damages by replacing the vehicle within a
reasonable time, while preserving the damaged truck as evidence. Or, Inquipco could have
placed Hardie on notice that it would be given a reasonable time to inspect the damaged
truck, and to give the truck's manufacturer the same opportunity before the truck's repair
would be undertaken. Thus, the district court's determination that Inquipco's delay in
replacing [or repairing?] the vehicle was reasonable is not supported by evidence that
Inquipco needed to preserve the evidence.
We remand this aspect of the case to the district court in order to convene whatever type of
hearing (e.g., evidentiary or the presentation of argument on evidence already admitted) may
be necessary in order to determine a reasonable period for replacement [or repair] and for
recalculation of loss of use damages based on that finding.
2. Attorney's fees
[Headnote 11]
Attorney's fees are not recoverable absent an enabling statute or rule or a provision for
such fees in a contract between the parties. Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d
1332, 1336 (1983). In this case, Inquipco, by affidavit and motion, asked the court for
$37,2S0.00 in attorney's fees.
asked the court for $37,280.00 in attorney's fees. Pursuant to the Agreement, the district judge
awarded $29,500.00.
[Headnote 12]
Hardie argues that under the due process clause[s] of the United States and Nevada
Constitution[s], due process requires that Hardie be entitled to confront witnesses and cross
examine them on the issue of damages. Moreover, Hardie claims that the court erroneously
allowed Inquipco to prove by affidavit the question of contract damages regarding attorney's
fees. Hardie maintains that if a contract gives rise to attorney's fees, those damages are
indistinguishable from any other type of damages awarded under the contract, and that a
court would hardly have tried all the damage issues by affidavit.
For support, Hardie cites NRCP 43(a), which states that in all trials the testimony of
witnesses shall be taken orally in open court, unless otherwise provided by these rules or by
statute. However, NRCP 43(c) states that when a motion is based on facts not appearing of
record the court may hear the matter on affidavits presented by the respective parties, but the
court may direct that the matter be heard wholly or partly on oral testimony or depositions.
NRCP 43(c) is applicable. Since facts regarding attorney's fees were not already in the
record, the court had discretion to hear the matter on affidavits under NRCP 43(c).
3. Investigation fees
[Headnote 13]
Next, Hardie claims that the Agreement does not provide for an award of investigation
fees. As noted above, the Agreement provides:
Lessee will save Lessor from and reimburse Lessor for all damage to and loss of the
equipment from any cause. Lessee further agrees to indemnify and hold lessor harmless
from all loss, damage, liability, cost of expense, of whatsoever nature or cause, arising
out of Lessee's use or possession of equipment.
We are persuaded that the fees Inquipco incurred in investigating the vehicle in
anticipation of litigation can be construed as a cost arising out of Lessee's use of equipment.
Thus, we conclude that the district court did not err in determining that the contract provided
for investigation fees.
Hardie also insists that even if the damages were proper under the contract, they were
miscalculated; that the district court awarded $3,150.00 in investigation fees, but the bill
provided by the investigative agency, Risk Management Associates, was for $1,650.00.
the investigative agency, Risk Management Associates, was for $1,650.00. Responding,
Inquipco notes that in addition to the $1,650.00 invoice, it submitted an invoice into evidence
from California Crane Testing for $1,500.00. The latter statement, in combination with the
former, total the $3,150.00 awarded by the court. Inquipco justifies having taken the crane to
California Crane Testing after it was inspected by Risk Management because defense counsel
specifically asked Inquipco to take the crane to a disinterested third party. Thus, the evidence
of record supports the district court's award of the inspection costs as having arisen out of
Hardie's use of the equipment.
Prejudgment interest
[Headnote 14]
The district court's judgment provides that said Judgment shall bear interest at the rate set
forth at NRS 99.040 from November 5, 1992, until paid in full. Hardie argues that the
district judge erred in awarding prejudgment interest from the date of the accident because
Inquipco has failed to prove when performance came due.
2
We agree.
When there is no express contract in writing fixing a different rate of interest, interest
must be allowed at a rate equal to the prime rate at the largest bank in Nevada, . . . upon
contracts, express or implied. NRS 99.040(1)(a). NRS 99.040, allows interest . . . from the
time the money becomes due. This . . . mean[s] that the interest may be calculated from a date
prior to judgment. Checker, Inc. v. Zeman, 86 Nev. 216, 219, 467 P.2d 100, 102 (1970).
[Headnotes 15-17]
The money becomes due when the time for performance was due as resolved by the court
upon trial of the cause. Paradise Homes, Inc. v. Central Surety, 84 Nev. 109, 116, 437 P.2d
78, 83 (1968). The trial court may not speculate as to when the sum becomes due nor decide
that question upon the premise of what appears to be a fair and equitable time for the
beginning of the running of interest. Brandon v. Travitsky, 86 Nev. 613, 616, 472 P.2d 353,
355 (1970). A trial court should award interest from the dates the various obligations [fall]
due. Id.
In Brandon, the parties engaged in a series of contractual dealings, each coming due at
different times. The trial court held that prejudgment interest should accrue from the date
of performance of the first contract.
__________

2
Hardie also argues that because the Minute Order made no finding in regard to interest, there cannot be such
an award. The fact that the Minute Order does not provide for interest is irrelevant so long as the judgment
awards interest under NRS 99.040. See Morgan v. Hagerman, 69 F. 427 (D. Nev. 1895). Thus, this argument is
without merit.
that prejudgment interest should accrue from the date of performance of the first contract. Id.
This court reversed and held, as a matter of law, that prejudgment interest would not begin to
run until the date when all the obligations stemming from the transactions of the parties had
become due. Id.
In this case, the oral agreement as modified by the Agreement was for a two-day rental
beginning on November 3, 1992, and ending on November 5, 1992. The Agreement provides
that customer agrees to return the equipment to Inquipco . . . in as good condition as when
received. Thus, property damage, and possibly the two-day rental fee, fell due on November
5, 1992, when Hardie breached the Agreement by not returning the equipment to Inquipco in
as good condition as when received. See Conner v. Southern Nevada Paving, 103 Nev. 353,
355, 741 P.2d 800, 801 (1987) (damages begin to accrue upon breach). However, the court
did not award either of those types of damages because Inquipco did not ask for them.
Prejudgment interest on the transportation fees, loss of use, or the investigation fees did
not become due before Inquipco actually incurred the expense giving rise to the particular
award. Otherwise, Inquipco would recover double interest from November 5, 1992, until it
actually incurred the expense on behalf of Hardie. We therefore remand this aspect of the
judgment to the district court for determinations of when the loss of use damages, the
investigation fees, and the transportation fees each became due and for recalculation of
prejudgment interest based upon the respective findings.
CONCLUSION
We conclude that the district court did not err in finding the existence of an oral contract
with a written modification, nor did it err in awarding investigation fees or attorney's fees.
However, the district court's finding that Inquipco's delay in replacing the vehicle was
reasonable is not supported by the evidence. Thus, we remand for further proceedings
regarding loss of use damages consistent with this opinion. Furthermore, the imposition of
prejudgment interest from the date of the accident was erroneous because none of the awards
became due on that date. Therefore, we also remand for further findings regarding when each
award became due and for a recalculation of interest based on the respective dates.
For the reasons discussed above, the judgment entered by the district court is affirmed with
the exception of the award for loss of use damages and prejudgment interest; the
aforementioned exceptions are reversed and remanded for redetermination and recalculation
____________
112 Nev. 1409, 1409 (1996) Flanagan v. State
DALE EDWARD FLANAGAN and RANDOLPH MOORE, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 27320
December 20, 1996 930 P.2d 691
Appeals from a district court order denying habeas corpus relief and appeals from
judgments of conviction of first degree murder and sentences of death entered on remand.
Eighth Judicial District Court, Clark County; Addeliar D. Guy, Judge.
Defendants were convicted of murder and sentenced to death, following trial and penalty
hearing before the district court. Defendants appealed. The supreme court affirmed
convictions but remanded for new penalty hearing, 104 Nev. 105, 754 P.2d 836 (1988). The
trial court reimposed death sentence on remand, and sentence was affirmed by the supreme
court, 107 Nev. 243, 810 P.2d 759 (1991). On grant of certiorari, the United States Supreme
Court vacated and remanded, 503 U.S. 930, 112 S. Ct. 1463 (1991). Upon remand, supreme
court remanded for third penalty hearing, 109 Nev. 50, 846 P.2d 1053 (1993). Defendants
filed habeas petitions and moved to strike sentences. The district court denied habeas corpus
relief and defendants' motion to strike sentence, and reimposed death sentence. Defendants
appealed from denial of habeas relief, original judgments of conviction, and sentences. The
supreme court, Rose, J., held that: (1) harmless error review of admission of irrelevant
evidence of constitutionally protected First Amendment activities during guilt phase of trial is
appropriate; (2) erroneous prosecutorial references in closing argument of guilt phase of trial
to defendants' involvement in occult activities did not contribute to jury's verdict; (3)
evidence was sufficient to sustain aggravating circumstances of creating great risk of death to
more than one person; (4) law of the case doctrine precluded challenge to either
introduction of evidence and prosecutorial argument as to sentences received by four other
codefendants, or trial court's jury instructions precluding jury from considering sympathy; (5)
no prejudice to defendants resulted from alleged failure of trial court to adequately inform
jury of elements of burglary, robbery, escape, and attempt; (6) defendants' failure to request
special jury instructions on elements of burglary, robbery, escape, and attempt precluded
appellate consideration of challenge to adequacy of instructions given; and (7) supreme court
would not review defendants' challenge to jury instruction concerning parole and possible
modification of sentences.
Affirmed.
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender,
Clark County, for Appellant Flanagan.
David M. Schieck, Las Vegas, for Appellant Moore.
First Amendment prevents state from employing evidence of defendant's abstract beliefs at sentencing hearing if those beliefs have
no bearing on issue being tried. U.S. Const. amend. 1.
2. Criminal Law.
Evidence of constitutionally protected activity is admissible at trial only if it is used for something more than general character
evidence.
3. Criminal Law.
Harmless error review of admission of irrelevant evidence of constitutionally protected First Amendment activities during guilt
phase of trial is appropriate. While character of defendant is usually relevant, or even primary, issue during sentencing phase of trial,
and tremendous risk exists that improperly admitted character evidence will influence jury in setting punishment, defendant's character
is not relevant during guilt phase except in expressly restricted circumstances. U.S. Const. amend. 1.
4. Criminal Law.
Harmless-error rule places burden on state to demonstrate beyond reasonable doubt that any error did not contribute to verdict.
5. Criminal Law.
Erroneous prosecutorial references in closing argument of guilt phase of murder trial to defendants' involvement in occult activities
did not contribute to jury's verdict and were therefore harmless. Evidence of such activities was properly admitted as relevant to
defense theory of co-defendant, co-defendant's testimony did not indicate any kind of violence or planned violence at purported
coven meetings and offered little or no support for prosecutor's references to devil worship or finding that involvement in occult
led to murders, one prosecutor questioned relevance of subject of white and black magic to case, jury was properly instructed as to lack
of evidentiary value of opinions of counsel, jury was aware of self-serving nature of co-defendant's testimony, and other evidence of
defendants' guilt was overwhelming.
6. Homicide.
Murder co-defendant's testimony as to defendants' involvement in and leadership of occult activities was relevant to co-defendant's
defense theory that he was compelled by defendants to become involved in murders, and was therefore admissible.
7. Criminal Law.
Prosecutorial references in closing argument during guilt phase of murder trial to defendants' involvement in and leadership of
occult activities were improper, even though evidence concerning such involvement was properly admitted during course
of trial, where activities alleged were protected activity under First Amendment and references during
closing argument employed evidence of defendants' involvement in such activities simply as character
evidence.
involvement was properly admitted during course of trial, where activities alleged were protected activity under First Amendment and
references during closing argument employed evidence of defendants' involvement in such activities simply as character evidence. U.S.
Const. amend. 1.
8. Homicide.
Evidence that one defendant shot his grandmother knowing that his grandfather was upstairs, and that second defendant shot first
defendant's grandfather as he came downstairs, was sufficient to sustain aggravating circumstance of creating great risk of death to
more than one person, despite legislative amendment of applicable sentencing provision to add superseding aggravating circumstance
of conviction of more than one offense of murder in first or second degree. Defendants committed two intentional shootings closely
related in time and place, indicating intent to engage in course of conduct inherently hazardous to life of more than one person, and
amendment to sentencing provision was not retroactive to time of murders. NRS 200.033(3).
9. Criminal Law.
Law of the case doctrine precluded murder defendants from contending, on appeal from results of third penalty hearing, that
introduction of evidence and prosecutorial argument in third penalty hearing as to sentences received by four other co-defendants was
improper, where supreme court had rejected same contention on defendants' appeal from prior penalty hearing at which same evidence
was introduced.
10. Criminal Law.
Law of the case doctrine precluded murder defendants from contending, on appeal from results of third penalty hearing, that jury
instructions precluding jury from considering sympathy were improper in that they violated constitutional requirement that jury
consider all mitigating evidence, where supreme court had rejected such argument and upheld contested instruction on defendants'
appeal from prior penalty hearing.
11. Criminal Law.
Even assuming that instructions to jury in murder trial failed to adequately inform jury of elements of burglary, robbery, escape,
and attempt, with which crimes defendants were also charged, no prejudice resulted from such failure. Defendants did not contend that
robbery and burglary did not occur, and did not demonstrate how failure to define attempt or flight may have led to incorrect verdict.
12. Criminal Law.
Failure of murder defendants to request special jury instructions on elements of burglary, robbery, escape, and attempt, with which
crimes defendants were also charged, precluded appellate consideration of defendants' challenge to adequacy of instructions given.
13. Criminal Law.
Failure to object to or request jury instruction precludes appellate review, unless error is patently prejudicial and requires court to
act sua sponte to protect defendant's right to fair trial.
14. Criminal Law.
Supreme court would not review murder defendants' challenge to trial court's jury instruction concerning parole and possible
modification of sentences, where defendants did not object to giving of such instruction at trial and no patently prejudicial error
resulted from giving of such instruction.
OPINION
In 1984, appellants Dale Flanagan and Randolph Moore murdered Flanagan's
grandparents. Flanagan and Moore were convicted of the murders and sentenced to death.
This court affirmed appellants' convictions on appeal, but remanded for a new penalty hearing
due to prosecutorial misconduct. This court affirmed the death sentences appellants received
after the second penalty hearing. However, the United States Supreme Court vacated that
decision and remanded for reconsideration due to evidence presented at the second hearing
regarding appellants' occult beliefs and activities. Upon remand, this court held that use of
such evidence had been unconstitutional, and we remanded for a third penalty hearing. After
the third hearing, appellants again received death sentences.
Flanagan and Moore appealed. They argue that their convictions should be reversed
because the same type of constitutional error occurred at the guilt phase of their trial as
occurred at the second penalty hearing. They also seek reversal of their sentences on a
number of grounds.
FACTS
This case involves the shooting deaths of Flanagan's grandparents, Carl and Colleen
Gordon. The Gordons were found dead on November 6, 1984, Carl having been shot
seven times in the back and chest and Colleen having been shot three times in the head.
On direct appeal, we found overwhelming evidence that Flanagan, Moore and four
other co-defendants killed the Gordons so that Flanagan could obtain insurance
proceeds and an inheritance under his grandparents' will.
Flanagan v. State, 107 Nev. 243, 245, 810 P.2d 759, 760 (1991) (Flanagan II), vacated, 503
U.S. 930, 931 (1992).
Appellants were tried in September and October 1985 along with two other co-defendants,
Johnny Ray Luckett and Roy McDowell. (Two others charged in the matter pled guilty.)
Luckett's lawyer called Wayne Wittig to testify in Luckett's defense. The district court
allowed in the following testimony over objection by Moore's and Flanagan's lawyers:
Q Now, was there a point in time in your relationship with Dale [Flanagan] and
Randy [Moore] that the three of you along with other people participated in what is
known as a coven?
A Yes, that is correct.
Q Would you please tell us what a coven is?
. . . .
A A coven basically is gathering of people to use, you might say, its basis of Satan
to get the most out of life, so to speak. Being able to have help when you need it. You
know, somebody to kind of call upon if something should ever arise.
. . . .
Q Now, is this practice divided into at least two categories, one of which is black
magic and the other of which is white magic?
A Well, I can't say for all, but I can say for the one I was involved in, there was two
different kinds, yes.
. . . .
Q And would you tell us, at least insofar as your coven at that time was concerned,
what black magic was, what was the purpose of this?
A Well, black magic basically was used to if somebody was in danger in any way,
you could more or less put a hex on them and they would feel pain that they wouldn't
normally feel.
Or psychological effects, you know, more or less just Ow, my arm hurts,
continuous arm hurt. Or just all of a sudden you start feeling weird for some reason and
you can't explain it.
Q What was white magic?
A White magic was the ability to manipulate people to do things they wouldn't
normally otherwise do. Say you are walking down a corridor and for some reason you
never walk through the door on the right. Well, this could give you the ability to walk
through that door.
. . . .
Q Was this just a lighthearted party atmosphere or was it more serious for the
people that were involved in it?
A In some instances it was serious. There were a couple of occasions where a fellow
friend would have some problems, say, at school or something with somebody else.
And it was more like just, you know, I am going to get you sort of thing and just
kind of use it for defense more or less.
Q What was the role of Dale Flanagan in the coven activities which you personally
participated in?
A Dale was basicallyI don't know if the correct word is wizard but he was
basically the second in command as far as the coven went. He had actually the
firstmost power, but there was one power more stronger than his.
Q What type of magic did he practice or engage in?
A Black magic.
Q And what was the role of Randy Moore?
A He was, like I said, basically first in command. He had the white magic which
was the power to manipulate people.
Q Would it be fair to say he was the leader of the group?
A Yes.
Luckett introduced this evidence to support a defense theory that any involvement he had
with the crimes was due to fear of Flanagan and Moore.
Moore's lawyer cross-examined Wittig as follows:
Q Now, you testified about covens and covens which you attended and you told us
that Dale and Randy were at these covens. About how many did you attend? Your best
recollection. I am not asking for an exact number.
A Probably somewhere between zero and 20 or between, say, one and 20, excuse
me.
Q And during these covens that you attended anywhere from one to 20, was there
conversation as among the people in attendance?
A Pertaining to?
Q Was there conversation, yes or no?
A Yes.
Q Was it in the nature of social conversation?
A Sometimes.
Q And did any of the people in attendance at these covens do anything that you
would consider to be antisocial?
A No.
Q Didn't burn or kill any cats?
A No.
Q Didn't set any places afire?
A No.
Q The prior sessions, tell us what went on these sessions you did attend, one to 20?
A More or less psychological. Linked thought, things like that.
Q Okay. But nothing antisocial?
A We didn't run around going Satan, rah, rah, rah, things like that.
Q You didn't go skinning cats, burning lawns or firing crosses or carving things
into?
A No, sir.
Q Whatever strange things one would imagine might be done in this sort of thing?
A No. They were peaceful.
Q Peaceful, social?
A Yes.
Q There was communication among the people present?
A Yes.
Q Nobody was forced to attend?
A No.
Q And nothing was antisocial about those meetings at all?
A No.
One of the two prosecutors cross-examined Wittig regarding a knife which was found near
the murder scene and elicited information regarding coven initiations which involved passing
a knife blade through a flame.
No other evidence of occult activities was presented. The prosecutor who gave the State's
initial closing argument made the following remarks:
[The four defendants] had as their friends gang members. These people were school
dropouts. They were drug users. They were devil worshippers.
And on November the 5th, 1984, as Carl and Colleen Gordon were indeed going to
bed, these four and others were hatching a diabolical plot, a diabolical plot to kill two
good human beings . . . .
. . . .
They didn't ask their grandson Dale to come to them and kill them so they could give
him and his devil-worshipping buddies a piece of their estate a little more quickly.
. . . .
. . . [Flanagan] was going to share [what he thought he would gain from the murders]
with all of his friends. Probably divvy it up in the middle of a coven proceeding or
something.
That's the agreement. That's the conspiracy. That's the dark and evil plan that was
created over a period of time and put into action and finalized on that fateful night.
. . . .
[Flanagan and Moore] were, in fact, the main co-conspirators. They were the talkers,
they were the planners. They led this thing. They didn't only lead the coven, they let
their black and their white magic spill over into this conspiracy . . . .
The prosecutor made further references to devil worship in attacking Luckett's credibility. In
the State's final closing argument, a second prosecutor stated: And then Mr. Luckett through
his attorney decided to project this notion of white and black magic into the case.
magic into the case. I don't know that it has any relevance but it was projected into this case
for a reason.
The jury found Flanagan and Moore guilty of seven crimes: conspiracy to commit
burglary, conspiracy to commit robbery, conspiracy to commit murder, burglary, robbery, and
two counts of first degree murder with use of a deadly weapon. The jury also returned
sentences of death for both men.
Flanagan and Moore appealed. This court acknowledged that prosecutorial misconduct had
occurred during the guilt phase of the trial, but concluded that the prosecutor's actions were
not so prejudicial as to mandate reversal in light of the overwhelming evidence of guilt.
Flanagan v. State, 104 Nev. 105, 107, 754 P.2d 836, 837 (1988) (Flanagan I). However,
extensive misconduct rendered Flanagan's sentencing unfair, and this court remanded for a
new penalty hearing. Id. at 112, 754 P.2d at 840. Moore also received a new penalty hearing
for the same reasons. Moore v. State, 104 Nev. 113, 114, 754 P.2d 841, 841 (1988).
Upon remand, appellants again received death sentences. They appealed, and this court
upheld the sentences. Flanagan II, 107 Nev. at 250, 810 P.2d at 763. The United States
Supreme Court vacated this court's decision and remanded for reconsideration in light of
Dawson v. Delaware, 503 U.S. 159 (1992). Flanagan v. State, 109 Nev. 50, 52, 846 P.2d
1053, 1055 (1993) (Flanagan III) (plurality opinion). In Flanagan III, this court remanded for
a third penalty hearing. Id.
In May 1995, Moore and Flanagan filed habeas petitions with the district court, seeking to
overturn their convictions. They contended that the evidence introduced and the arguments
made regarding covens and devil worship during the guilt phase of their trial violated Dawson
and Flanagan III. The district court heard argument and denied the petitions. Appellants
appealed these denials. Appellants also moved to strike their death sentences on the basis that
they could not receive a fair penalty hearing after ten years in prison. The district court denied
these motions at the same hearing that it denied the habeas petitions.
A third penalty hearing occurred in June 1995. The jury imposed two death sentences on
each appellant for the two murders, finding the same mitigating and aggravating
circumstances for each appellant for each crime. The three mitigating circumstances were: the
defendant had no significant history of prior criminal activity, the youth of the defendant at
the time of the crime, and [a]ny other mitigating circumstances. The four aggravating
circumstances were: the defendants knowingly created a great risk of death to more than one
person, the murders were committed while the defendants were engaged in the commission of
or an attempt to commit or flight after committing or attempting to commit a robbery, the
murders were committed while the defendants were engaged in the commission of or an
attempt to commit or flight after committing or attempting to commit a burglary, and the
defendants committed the murders to receive money or any other thing of monetary
value.
attempting to commit a robbery, the murders were committed while the defendants were
engaged in the commission of or an attempt to commit or flight after committing or
attempting to commit a burglary, and the defendants committed the murders to receive money
or any other thing of monetary value. Appellants filed appeals of their judgments of
conviction. On September 26, 1995, this court ordered joint review of those appeals and the
appeal of the denial of habeas relief.
DISCUSSION
Whether appellants' convictions should be reversed because the State violated appellants'
First Amendment protections during the guilt phase of the trial
Appellants asserted in their habeas petitions below that the State violated their First
Amendment protections during the guilt phase of the trial by arguing that appellants were
involved in devil worship. The district court denied the petitions.
[Headnote 1]
The Supreme Court has held that the First Amendment prevents a state from employing
evidence of a defendant's abstract beliefs at a sentencing hearing when those beliefs have no
bearing on the issue being tried. Dawson v. Delaware, 503 U.S. 159, 168 (1992). In Dawson,
the appellant belonged to a white racist prison gang, and the prosecution introduced this
evidence at his sentencing for murder. The evidence, however, had no apparent relevance to
the sentencing proceeding: it was not tied in any way to the murder, it did not serve to show
that the appellant was a future danger to society, nor was it used to rebut any mitigating
evidence. Id. at 166-67. The Supreme Court concluded that the evidence was not relevant
character evidence because it was employed simply because the jury would find these beliefs
morally reprehensible. Id. at 167.
[Headnote 2]
At the second penalty hearing in the instant case, the State presented evidence that Moore
and Flanagan held beliefs in the occult and participated in coven activities. Flanagan III, 109
Nev. at 52, 846 P.2d at 1055. The United States Supreme Court vacated this court's decision
affirming the sentences imposed at that hearing and remanded for reconsideration in light of
Dawson. Upon remand, this court derived the following rule from Dawson: Evidence of a
constitutionally protected activity is admissible only if it is used for something more than
general character evidence. Id. at 53, 846 P.2d at 1056. The court stated: The prosecution
presented evidence that appellants believed that they controlled "white magic" and
"black magic," that they controlled other supernatural powers, and that they worshipped
the devil.
The prosecution presented evidence that appellants believed that they controlled white
magic and black magic, that they controlled other supernatural powers, and that they
worshipped the devil. Although these beliefs are offensive to many, they are clearly
religious within the broad scope of the First Amendment.
Id. at 54, 846 P.2d at 1057. The court concluded that as in Dawson, the prosecution failed to
link cult participation or beliefs with appellants' crimes. Id. at 55, 846 P.2d at 1057.
As in the second sentencing hearing, the State's closing argument during the guilt phase of
the trial also violated appellants' First Amendment rights under Dawson.
1
The evidence was
irrelevant to the crimes charged, and the prosecutor improperly used it in the guilt phase
simply to demonstrate the appellants' bad character. He implied that devil worship was
somehow linked to the crimes, asserting that Flanagan and Moore let their black and their
white magic spill over into this conspiracy, but he never presented evidence of such a link.
[Headnote 3]
However, we conclude that this error does not require automatic reversal. We decided in
Flanagan III that under Zant v. Stephens, 462 U.S. 862 (1983), due process of law requires
that the jury's decision to impose death be set aside. This requirement leaves no room for a
harmless-error analysis. Flanagan III, 109 Nev. at 57, 846 P.2d at 1058. In regard to death
sentencings, we reaffirm this holding in Flanagan III, but we decline to apply it in cases
where a Dawson violation has occurred in the guilt phase of a trial.
A majority of the United States Supreme Court has indicated that harmless-error analysis
of Dawson errors is permissible. In Dawson, the Court stated: The question whether the
wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless error is
not before us at this time, and we therefore leave it open for consideration by the Supreme
Court of Delaware on remand. Dawson, 503 U.S. at 168-69. In Pope v. Illinois, 481 U.S.
497, 504 (1987), the Court vacated a state court judgment and remanded a criminal obscenity
case to the state court to determine whether a jury instruction which violated the First
Amendment was harmless error. The Court saw no reason to require a retrial if it can be
said beyond a reasonable doubt that the jury's verdict in this case was not affected by the
erroneous instruction." Id. at 502.
__________

1
The State argues that no violation occurred because appellants' co-defendant, not the State, introduced the
evidence of occult beliefs and activities and because the evidence did not simply show the bad character of
Moore and Flanagan, but was presented to show the control that they held over their co-defendant. This
argument may be valid as far as it goes but overlooks the fact that the State affirmatively invoked the evidence
during its closing argument as general character evidence.
to require a retrial if it can be said beyond a reasonable doubt that the jury's verdict in this
case was not affected by the erroneous instruction. Id. at 502.
In his concurrence in Dawson, Justice Blackmun suggested that harmless-error review of
an error violating First Amendment protections was not appropriate [b]ecause of the
potential chilling effect that consideration of First Amendment activity at sentencing might
have. Dawson, 503 U.S. at 169 (Blackmun, J., concurring). In Flanagan III, we in effect
followed Justice Blackmun's suggestion in regard to capital sentencings. Of course, admission
of irrelevant evidence of constitutionally protected First Amendment activities is also
erroneous during a trial's guilt phase, but in light of Pope and the majority opinion in
Dawson, we conclude that such error does not and should not require automatic reversal. The
character of the defendant is usually a relevant, in fact a primary, issue during the sentencing
phase, and there is a tremendous risk that improperly admitted character evidence will
influence a jury in setting a punishment for a convicted defendant. This risk is unacceptably
high when the defendant has been convicted of murder and faces the death penalty. See
Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion) (there is a
heightened need for reliability in the determination that death is the appropriate punishment
in a case). On the other hand, we believe that a jury may not be influenced by improper
character evidence during the guilt phase, where a defendant's character is not relevant except
in expressly restricted circumstances, and therefore conclude that harmless-error review of
guilt-phase Dawson errors is appropriate.
[Headnote 4]
This does not mean that the State has an easy task to establish harmless error and avoid
reversal in such cases. The harmless-error rule places the burden on the State to demonstrate
beyond a reasonable doubt that any error was harmless, i.e., that it did not contribute to the
verdict. Chapman v. California, 386 U.S. 18, 24 (1967).
[Headnotes 5-7]
In this case, as noted above, the evidence regarding appellants' involvement with the occult
was introduced by their co-defendant, Luckett. Admission of this evidence was not error
because it was relevant to Luckett's defense theory, but the prosecutor's closing remarks were
error because he employed the evidence simply as character evidence. We are unconvinced,
however, that the jury gave these remarks much significance above and beyond the evidence
of occult involvement that was properly received into evidence. The only evidentiary basis for
the remarks was unimpressive testimony by one witness, a "coven" participant, regarding
meetings where adolescent males indulged in fantasies of magical power and importance.
coven participant, regarding meetings where adolescent males indulged in fantasies of
magical power and importance. The witness gave no evidence of any kind of violence or
planned violence at these meetings, and his evidence offered little support for the first
prosecutor's references to devil worship and none for finding that involvement in the occult
led to the murders. In fact, the jury heard the second prosecutor question whether the subject
of white and black magic even had any relevance to the case. Furthermore, the jury was
instructed that [s]tatements, arguments and opinions of counsel are not evidence in the
case, that it was to consider only the evidence in the case in reaching a verdict, and that
whatever counsel may say, you will bear in mind that it is your duty to be governed in your
deliberation by the evidence as you understand it and remember it to be and by the law as
given you. The jury was also aware of the self-serving nature of Luckett's evidence of occult
activities and his claim that he was compelled to commit the crimes. The jury apparently
looked on this evidence with skepticism or found it of little or no importance, convicting
Luckett along with appellants and the fourth defendant.
We characterized the evidence against Flanagan and Moore as overwhelming in our first
opinion in this case. There is no reason to change that characterization now, nor has either
appellant disputed the weight of the evidence against him. The evidence included eyewitness
testimony regarding meetings held prior to the murders where appellants planned to kill the
Gordons and statements made after the murders in which Flanagan admitted to killing his
grandmother, Mrs. Gordon, and Moore admitted to killing Mr. Gordon. We conclude beyond
a reasonable doubt that the jury looked to this evidence in convicting appellants and that the
prosecutor's improper remarks did not contribute to the verdict.
Whether sufficient evidence existed to sustain the aggravating circumstance of creating great
risk of death to more than one person
Pursuant to NRS 200.033(3), the State alleged and the jury found the aggravating
circumstance that in committing the murders, appellants knowingly created a great risk of
death to more than one person by means of a weapon, device or course of action which would
normally be hazardous to the lives of more than one person. Appellants contend that there
was insufficient evidence to find this circumstance.
Appellants cite Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989), where this court
determined there was no factual basis for finding creation of a great risk of death to more
than one person.
finding creation of a great risk of death to more than one person. However, the murder
weapons in Jimenez were knives, and the court concluded: Stabbing two persons with two
different knives, even if Jimenez did both stabbings, does not make either knife a weapon or
device that is normally dangerous to a multiplicity of persons. Id. at 342, 775 P.2d at 697.
Appellants also cite Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987). However, in Moran
no other persons were present in the apartment when Moran shot the victim, and there was no
evidence that any neighbor was at an immediate risk of death or that Moran knew of any
other person in close proximity. Id. at 142, 734 P.2d at 714.
[Headnote 8]
In the case at bar, Flanagan shot his grandmother knowing that his grandfather was
upstairs, and Moore shot the grandfather as he came downstairs. They planned to kill both
grandparents. This court held in Hogan v. State, 103 Nev. 21, 24-25, 732 P.2d 422, 424
(1987) (Hogan I), that NRS 200.033(3) includes a course of action' consisting of two
intentional shootings closely related in time and place . . . . See also Hogan v. Warden, 109
Nev. 952, 959, 860 P.2d 710, 715 (1993) (Hogan II) (Obviously, one who intends to commit
multiple murders within a closely related time and place engages in a course of conduct
inherently hazardous to the life of more than one person.).
Appellants point out that in 1993 the Legislature added the aggravating circumstance of
conviction, in the immediate proceeding, of more than one offense of murder in the first or
second degree. NRS 200.033(12); 1993 Nev. Stat., ch. 44, 1 at 77. This amendment does
not apply to murders committed before October 1, 1993. 1993 Nev. Stat., ch. 44, 2 at 77.
Appellants contend that this shows that the Legislature did not intend to include cases such as
theirs, where only intended victims were murdered, within the ambit of NRS 200.033(3),
undermining the holding in Hogan I and Hogan II.
However, we conclude that under Hogan I the aggravator in question was valid in
appellants' case. The legislative amendment apparently requires that for murders committed
after October 1, 1993, the aggravator set forth in NRS 200.033(12), rather than the one in
NRS 200.033(3), be applied to cases such as this one. But this does not mean that NRS
200.033(3) was improperly applied to appellants' case, where the murders occurred in 1984.
We conclude that substantial evidence existed to support the finding that appellants
knowingly created a great risk of death to more than one person by means of a weapon and
course of action which would normally be hazardous to the lives of more than one person.
Claims previously rejected
[Headnote 9]
The district court denied appellants' motion to exclude evidence of their co-defendants'
sentences from the third penalty hearing. The prosecutor informed the jury of the sentences
received by the four other individuals involved in the murders. In closing argument, the
prosecutor argued that in view of the other four individuals' involvement in the crimes and
their sentences, appellants deserved the death penalty. Appellants contend that this evidence
and argument was improper, but this court has already rejected this contention, concluding
that it was proper and helpful for the jury to consider the punishments imposed on the
co-defendants. Flanagan II, 107 Nev. at 248, 810 P.2d at 762. Under the doctrine of the law
of the case, we decline to revisit this issue. Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797,
799 (1975).
[Headnote 10]
Rejecting an alternative instruction offered by appellants, the district court instructed the
jury: A verdict may never be influenced by sympathy, prejudice or public opinion. The jury
was also instructed that murder of the first degree could be mitigated by three enumerated
circumstances and [a]ny other mitigating circumstances. Appellants argue that precluding
the jury from considering sympathy violated the constitutional requirement that a jury
consider all mitigating evidence. This court has already rejected appellants' argument and
upheld the antisympathy instruction, holding that because the penalty jury was properly
instructed to consider any mitigating circumstances, the district court did not err in instructing
the jury that it should not be influenced by sympathy, prejudice or public opinion. Flanagan
II, 107 Nev. at 248, 810 P.2d at 762. Again, under the doctrine of the law of the case, we
decline to revisit this issue. Hall, 91 Nev. at 315-16, 535 P.2d at 799.
Other assignments of error
[Headnotes 11, 12]
Flanagan claims that the jury was inadequately instructed regarding the elements of
burglary, robbery, escape, and attempt. However, he did not request such instruction when
jury instructions were settled. The failure to request special instruction to the jury precludes
appellate consideration of the issue. Etcheverry v. State, 107 Nev. 782, 784, 821 P.2d 350,
351 (1991). We see no merit to Flanagan's argument anyway. He does not contend that
robbery and burglary did not occur, nor does he demonstrate how the failure to define attempt
or flight may have led to an incorrect verdict.
verdict. We conclude that the district court did not err and that no prejudice resulted from the
lack of instruction on these matters.
[Headnotes 13, 14]
Appellants also argue that the district court provided an erroneous jury instruction on
parole and possible modification of sentences. However, they did not object to the
instruction. Failure to object or to request an instruction precludes appellate review, unless
the error is patently prejudicial and requires the court to act sua sponte to protect a defendant's
right to a fair trial. Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1106 (1990). No patently
prejudicial error occurred here since the instruction given is prescribed by Petrocelli v. State,
101 Nev. 46, 56, 692 P.2d 503, 511 (1985).
2

Appellants contend that a number of other errors occurred: that their appeal from denial of
their habeas petitions divested the district court of jurisdiction to conduct the penalty hearing;
that improper evidence of witness intimidation was admitted; that they could not receive a
fair penalty hearing after ten years in prison; that lengthy confinement before imposition of
the death penalty in this case is cruel and unusual punishment; and that insufficient evidence
existed to sustain the aggravating circumstances of committing murder while engaged in the
commission of or attempt to commit a robbery. After thorough review of the record and
consideration of the relevant law, we conclude that none of these contentions has merit.
CONCLUSION
The prosecution violated appellants' First Amendment rights by referring, during closing
argument at the guilt phase of their trial, to appellants' involvement in the occult. Such
involvement was irrelevant to the crimes charged. We hold that this violation in the guilt
phase of the trial should be reviewed under harmless-error analysis and conclude beyond a
reasonable doubt that the remarks were harmless. We conclude that appellants' other
assignments of error also lack merit.
Accordingly, we affirm the order denying habeas corpus relief and the judgments of
conviction of first degree murder. Having previously concluded that the death penalty
sentences were not excessive considering the crimes and the characteristics of the
appellants, we again affirm the sentences of death entered by the district court.
__________

2
Appellants argue also that NRS 213.085(1), effective July 1, 1995, rendered the instruction on parole and
sentence modification inaccurate and misleading. The statute prohibits the Board of Pardons Commissioners in
cases of first degree murder from commuting a sentence of death or life imprisonment without the possibility of
parole to a sentence allowing parole. However, we have concluded that retroactive application of NRS
213.085(1) is unconstitutional. Miller v. Warden, 112 Nev. 930, 921 P.2d 882 (1996). Therefore, the statute has
no effect on appellants' cases.
excessive considering the crimes and the characteristics of the appellants, we again affirm the
sentences of death entered by the district court.
I agree with the majority's holding that improper prosecutorial comments on a defendant's
constitutionally protected speech, activities, or beliefs are subject to harmless error analysis if
such comments are made during the guilt phase of trial. I cannot, however, join in the
majority's conclusion that the improper prosecutorial comments in this case (e.g., that the
defendant was a devil worshipper, a member of a witches' coven, and a practitioner of black
magic) are not of a magnitude that would have adversely influenced a jury. To me this is far
from the kind of improper character evidence that is harmless beyond a reasonable doubt.
The majority points out that defendants' diabolical activities were mitigated somewhat by
defense counsel's cross-examination in which a valiant attempt was made to convince the jury
that these wizard[s] did not burn or kill any cats or go skinning cats or set places
afire. Defense counsel's attempt to portray the devil's allies as benign and peaceful was
more than overcome by the prosecutor's description of the defendants as devil worshippers
whose friends [were] gang members who with their devil-worshipping buddies were
hatching a diabolical plot, a diabolical plot to kill two good [as distinguished from
diabolical] human beings. (My emphasis.)
The majority does not think that the jury gave these remarks much significance. In
coming to this conclusion, the majority, I take it, applied its rule that a jury may not be
influenced by evidence of devil worship and conjecture about a diabolical plot if (a) the
defendant's character is not relevant and (b) the presence of some expressly restricted
circumstances. I take exception. I see no way in which a jury would not be influenced by this
kind of argument by the representative of the State of Nevada, even if I understood what was
meant by character is not relevant and expressly restricted circumstances.
The majority characterizes the evidence against Flanagan and Moore as overwhelming.'
I would have to agree that, as put by the majority, Flanagan, Moore and four other
co-defendants killed the Gordons.' Quoting Flanagan v. State, 107 Nev. 243, 245, 810 P.2d
759, 760 (1991) (Flanagan II), vacated, 503 U.S. 930, 931 (1992). But, this misses the point,
which is that Flanagan and Moore had the right to be tried, and to have the nature of their
participation in a six-person killing judged by a jury that was not under the influence of
the clearly prejudicial and unfairly damaging argument of the prosecution.
have the nature of their participation in a six-person killing judged by a jury that was not
under the influence of the clearly prejudicial and unfairly damaging argument of the
prosecution. If the prosecution had not engaged such a zealous and intentional pursuit of the
diabolical characters of Flanagan and Moore, the jury in this case would have been in a
much better position to pass fair judgment on the degree of guilt of these defendants and on
their punishment.
In our first opinion, Flanagan v. State, 104 Nev. 105, 107, 754 P.2d 836, 837 (1988)
(Flanagan I), we noted that Flanagan and the [five] others broke into the Gordon residence
and accomplished their deadly objective, which was to kill Flanagan's grandparents for
insurance proceeds. With the other four murderers and Flanagan and Moore being improperly
branded as devil worshippers, it does not appear to me that the majority is justified in so
blithely concluding that the jury was not influenced by the fact that Flanagan and Moore
were working for or with the devil.
The majority recognizes that improperly admitted character evidence will influence a jury
in setting a punishment and that [t]his risk is unacceptably high when the defendant . . .
faces the death penalty. It seems to me that the liability stage and the penalty stage of this
trial cannot be safely separated when it comes to improperly admitted character evidence in
this case and that the risk of prejudice is unacceptably high. I would order a new trial in this
case.
1

__________

1
I note my disagreement with the majority's acceptance of knowingly creat[ing] a great risk of death to more
than one person by means of a weapon, device or course of action which would normally be hazardous to the
lives of more than one person.' Quoting NRS 200.033(3). Six persons were involved in the shooting of two
victims. There is absolutely nothing done by any of these killers that would normally be dangerous to the lives of
more than one person. One or more persons killed two other persons. If there is something that Flanagan or
Moore or the other four did that was normally [ ] hazardous to the lives of other people, I cannot identify what
hazardous activity was being engaged in.
Even in the absence of this aggravating factor, however, I would not conclude that these defendants were found
to be death eligible and that the erroneous thinking on this point displayed by the majority does, of itself, justify
reversal of the death penalty judgment.
____________
112 Nev. 1426, 1426 (1996) Lester v. Buchanen
NOELLE LESTER, Appellant, v. ROD BUCHANEN, VIDEO EXPRESS, INC., and RON
JAHN, Respondents.
No. 24087
December 20, 1996 929 P.2d 910
Appeal from an order of the district court granting respondents' motion for summary
judgment. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Videotape rental store submitted police report indicating that videotape had not been
returned and videotape renter was arrested and charges were later dismissed. Renter brought
action against store for malicious prosecution. Video store's motion for summary judgment
was granted by the district court. Renter appealed. The supreme court, Shearing, J., held that
store could not be held liable for commencing criminal action because they reported
information they believed to be true and did not direct, request, or pressure police to
commence criminal proceeding.
Affirmed.
Douglas Norberg, Reno; Donald Pope, Reno, for Appellant.
Erickson, Thorpe & Swainston, and Thomas P. Beko, Reno, for Respondents.
1. Malicious Prosecution.
Elements of malicious prosecution are a lack of probable cause to commence prior action, malice, favorable termination of prior
action, and damages.
Videotape rental company could not be held liable for malicious prosecution for commencing criminal action because they
reported information they believed to be true without directing, requesting, or pressuring police to commence criminal proceeding.
Store presented information to police that videotape renter had not returned tape, and despite renter's claim that she returned tape and
informed store, she admitted that store submitted police report in good faith belief that she had not returned videotape. Restatement
(Second) of Torts 653 comment.
In action for malicious prosecution against videotape store for criminal proceedings commenced pursuant to store's submission of
police report that renter had not returned videotape, whether or not renter actually returned video as she claimed was irrelevant; renter
had admitted in deposition that she believed store submitted police report in good faith belief that she had not returned videotape.
In action for malicious prosecution against videotape store for submitting police report that renter had failed to return videotape,
store could not be held liable for malicious prosecution, despite renter's claim that she had returned tape,
absent evidence that police officers commenced prosecution at discretion, request, or pressure of video
store.
could not be held liable for malicious prosecution, despite renter's claim that she had returned tape, absent evidence that police officers
commenced prosecution at discretion, request, or pressure of video store.
Even if city had commenced criminal action against videotape renter at direction of videotape store, for failure to return videotape,
videotape store had defense against civil action arising out of or involving arrest or detention of renter because store had good faith
belief that renter had not returned property and thus store had probable cause, despite renter's claim that she had returned property and
had notified store. NRS 205.940.
In action for malicious prosecution against videotape store by videotape renter for store's filing of police report for alleged failure
to return videotape, store had complete defense based on its good faith belief that renter failed to return videotape within 20 days after
demand and its compliance with statutory demand requirements, and thus store had probable cause to commence criminal action,
despite renter's claim that she had informed store that she had returned videotape. NRS 205.940.
OPINION
On November 24, 1989, appellant Noelle Lester rented five video tapes and purchased one
tape from Video Express. The rental agreement between Lester and Video Express required
that the videotapes be returned within twenty-four hours. Lester claims that on November 25,
1989, she returned four of the rented videos and re-rented one, The Serpent and the
Rainbow. Lester claims she returned The Serpent and the Rainbow the next day or the day
after that. However, Video Express' records do not reveal that the video was re-rented on
November 25, 1989. Rather, their records indicate that the movie was due on November 25,
1989, and that on that date it began appearing on their overdue films list. Video Express
telephoned Lester to request the return of the movie at which time Lester informed them that
she had returned it. On December 15, 1989, Video Express sent a registered letter to Lester
which stated that the video was overdue and asked for its return.
On January 13, 1990, Sandra Smith, a Video Express employee, filled out a police report
indicating that the movie The Serpent and the Rainbow had been rented on November 24,
1989, and had not been returned. After conducting an investigation, the investigating police
officer requested a complaint and warrant for violation of NRS 205.515, conversion of rental
property.
1
The Reno Police Department filed a criminal complaint
__________

1
It appears that the officer intended to cite a violation of NRS 205.940(2). In 1971, NRS 205.940, the
conversion of rental property statute, was substituted for the old conversion of rental property statute, NRS
205.515.
and on March 30, 1990, a warrant was issued by Justice of the Peace John Kadlic. As of
October 29, 1990, Video Express' records still indicated that the movie The Serpent and the
Rainbow had not been returned. On November 11, 1991, Lester was stopped for a routine
traffic violation. The warrant appeared and Lester was arrested. Charges against Lester were
later dismissed.
On January 7, 1992, Lester filed a complaint against Video Express; Rod Buchanen, the
owner of Video Express at the time; Police Officer Darrel Norman; Police Officer T.A.
Tilton; and the City of Reno, alleging, false imprisonment, false arrest, libel, malicious
prosecution, and negligence. In September 1992, Lester settled with defendants Norman,
Tilton and the City of Reno and the case was dismissed with prejudice as to these defendants.
An amended complaint was filed on December 1, 1992, naming Ron Jahn, a co-owner and
manager of Video Express at the time, as an additional defendant. Also in the amended
complaint Lester abandoned her claims for false arrest, false imprisonment, and negligence.
Video Express, Buchanen and Jahn (hereinafter referred to collectively as Video Express)
filed a motion for summary judgment on December 8, 1992. On January 19, 1993, Lester
stipulated to dismiss her libel claim with prejudice. Accordingly, Lester's claim for malicious
prosecution was the only claim remaining. Video Express' motion for summary judgment was
granted, and judgment for the defendants was entered on January 21, 1993. This appeal
followed.
Lester contends that the district court erred in granting Video Express' motion for
summary judgment on her malicious prosecution claim because there are material facts in
dispute. Specifically, Lester asserts that the parties dispute whether she returned the video and
whether she responded to the registered letter Video Express sent her.
Under NRCP 56(c), a motion for summary judgment should be granted if there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. In determining whether summary judgment is proper the non-moving party is
entitled to have the evidence and all reasonable inferences accepted as true. City of Boulder
City v. State of Nevada, 106 Nev. 390, 793 P.2d 845 (1990) (citing Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432 (1989).
[Headnote 1]
The elements that must be proved in a malicious prosecution action are: (1) a lack of
probable cause to commence the prior action; (2) malice; (3) favorable termination of the
prior action; and (4) damages. Dutt v. Kremp, 111 Nev. 567, 571-72, 894 P.2d 354, 357
{1995).
354, 357 (1995). We conclude that the district court properly granted summary judgment
because the essential element of lack of probable cause for instituting the prior action was not
established. Furthermore, under NRS 205.940(2), Video Express cannot be held liable for
commencing the criminal action under the undisputed facts.
[Headnote 2]
The Restatement (Second) of Torts, 653 cmt. g (1977), states in relevant part:
[G]iving the information or even making an accusation of criminal misconduct does not
constitute a procurement of the proceedings initiated by the officer if it is left entirely to
his discretion to initiate the proceedings or not. When a private person gives to a
prosecuting officer information that he believes to be true, and the officer in the
exercise of his uncontrolled discretion initiates criminal proceedings based upon that
information, the informer is not liable under the rule stated in this Section even though
the information proves to be false and his belief was one that a reasonable man would
not entertain. The exercise of the officer's discretion makes the initiation of the
prosecution his own and protects from liability the person whose information or
accusation has led the officer to initiate the proceedings (emphasis added).
Further, this Court has stated that [t]o recover for malicious prosecution, [plaintiff] had to
demonstrate that police officers commenced the criminal prosecution because of direction,
request, or pressure' from [defendants]. M & R Investment Co. v. Mandarino, 103 Nev. 711,
720, 748 P.2d 488, 494 (1987) (citing Catrone v. 105 Casino Corp., 82 Nev. 166, 414 P.2d
106 (1966). We conclude that Video Express cannot be held liable for commencing the
criminal action because they merely reported information they believed to be true without
directing, requesting, or pressuring the police to commence the criminal proceeding.
[Headnote 3]
First, although Lester asserts that Video Express knew she had returned the property
because she told them so, there is no evidence in the record to support an assertion that Video
Express believed that Lester had returned the property. Video Express' records revealed that
the property had not been returned. Further, at her deposition, Lester testified as follows:
Q Do you believe that Movie Express submitted the initial police report because they
believed that the movie had not been returned?
A Yes.
Q Do you have any evidence to support a claim that Movie Express submitted charges
or submitted a statement to the Reno Police Department for any reason other than
because they in good faith felt that the movie had not been returned?
A No.
In this testimony, Lester admits that she believes that Video Express submitted the police
report in the good faith belief that she did not return the property. Thus, whether Video
Express had a good faith belief that Lester did not return the property is not a question of fact
that is in dispute. Whether or not Lester actually returned the video is irrelevant in the action
for malicious prosecution.
[Headnote 4]
Second, the record is devoid of any evidence that the police officers commenced the
criminal prosecution at the direction, request, or pressure of Video Express. At his deposition,
the Deputy District Attorney in charge of prosecuting this matter testified that Video Express
had no further involvement, beyond their initial police report, in the decision to institute
criminal proceedings. Further, Lester testified that she does not have any evidence that Video
Express did anything more than submit an initial statement to the Reno Police Department.
Although the decision to issue an arrest warrant may seem rather extreme, it was the
investigating police officer who requested the warrant, not Video Express.
[Headnote 5]
Even if the City of Reno had commenced the criminal action at the direction of Video
Express, the summary judgment on the action for malicious prosecution would still have been
proper. It appears that even Lester admits that Video Express filed the complaint in good
faith. Because Video Express had a good faith belief that Lester did not return the property,
and because they complied with the requirements of NRS 205.940, they had probable cause
to commence the criminal action.
NRS 205.940(2) provides that:
Any person who, after renting or leasing any personal property under an agreement in
writing which provides for the return of the personal property to a particular place at a
particular time fails to return the personal property to such place within the time
specified, and who, with the intent to defraud the lessor or to retain possession of such
property without the lessor's permission, thereafter fails to return such property to any
place of business of the lessor within 72 hours after a written demand for the return of
such property is made upon him by registered mail addressed to his address as
shown in the written agreement, or in the absence of such address, to his last
known place of residence, is guilty of larceny according to the value of such
property.
is made upon him by registered mail addressed to his address as shown in the written
agreement, or in the absence of such address, to his last known place of residence, is
guilty of larceny according to the value of such property.
The statute further provides that the failure to return the personal property is prima facie
evidence of an intent to defraud the lessor or to retain possession of such property without the
lessor's permission. NRS 205.940(2). Finally, the statute states that if a lessee fails to return
the property within twenty days after a demand is made, the lessor has a complete defense to
any civil action arising out of or involving the arrest or detention of any person upon whom
such demand was made. Id.
[Headnote 6]
Video Express complied with NRS 205.940 by sending a registered letter to Lester which
stated that the property was overdue and asked for its return. Video Express apparently had a
good faith belief that the property was not returned within seventy-two hours or within twenty
days after the demand. Under the statute, such failure to return the property is prima facie
evidence of the requisite intent required for larceny. Further, due to their good faith belief that
Lester failed to return the video within twenty days after the demand, Video Express has a
complete defense to the malicious prosecution action.
2

For the foregoing reasons, we conclude that the district court properly granted Video
Express summary judgment.
This case involves a woman who was a regular customer of a video store called Video
Express. One day she returned several movies that she had rented, but, unexplainably, one of
the movies that she returned, The Serpent and the Rainbow, did not get properly accounted
for at the video store. Now, it may be that Ms. Lester misplaced this one movie and did not
return it as she claims to have done; or, it may be that the movie was misrecorded in the video
store's computerized record system. It really does not matter. Ms. Lester is not a criminal. If
Ms. Lester is responsible for the cost of a lost or misplaced video tape, this is a matter that
should be resolved in the civil courts, not the criminal courts. The frightening aspect of this
case is that Video Express was able, successfully, to use the police, the district attorney
and the criminal process to enforce its civil claims.
__________

2
We note that at the time NRS 205.940 was adopted by the legislature in 1971, video rental stores were not in
existence. Accordingly, the legislature may not have considered how this statute would apply to video rental
situations.
was able, successfully, to use the police, the district attorney and the criminal process to
enforce its civil claims.
No one involved in this case has ever suggested that Ms. Lester did anything wrong. No
one has suggested that Ms. Lester absconded with the movie or that she secreted it for her
own personal use. The very worst thing that can be accused in this case is that Ms. Lester
failed to return one of her rental movies in the time provided in her rental contract.
The criminal complaint does not appear in the record so I have no way of knowing how a
criminal charge might have been contrived to apply to a case like this; but I do know that Ms.
Lester is not a criminal and that Video Express was acting in a terribly wrong and oppressive
manner when it caused Ms. Lester to be arrested in front of her children and dragged down to
the city jail. The owners and managers of Video Express, who are responsible for this
ignominy, should be required to account to Ms. Lester for the torts that they have committed
against her. Because the denial of Ms. Lester's appeal is contrary to the law and manifestly
unjust, I dissent.
The core of Video Express's liability for its malicious prosecution of Ms. Lester lies in the
manner in which it customarily abused criminal process in order to collect its civil claims.
1
Video Express tries to shrug its shoulders and shake its head, saying, We did not file the
criminal complaint; some police officer did. The Video Express owners should not be able
to avoid liability in this way. The record shows that it was the custom and practice of this
business to pursue criminal actions in cases based entirely upon customers' not returning
video tapes after they received mail notice that the tapes were overdue. As a matter of
practice, Video Express, in pursuing criminal actions against its video customers, did not give
any consideration to the necessary elements of criminality set out in the statute (NRS
205.940(2)), namely, an intent to defraud or the criminal intent to . . . retain possession of
such property without the lessor's permission. If customers did not respond to their mail
notice that a video was not returned on time, they were turned over to the police without
any consideration being given to the necessary elements of fraud or an unlawful intention
to retain possession of Video Express's property.
__________

1
The majority claims that the record is devoid of any evidence that the criminal prosecution was
commenced at the direction, request, or pressure of Video Express, yet at the same time argues that Video
Express submitted the police report [that is to say, initiated criminal proceedings] in the good faith belief that
[Ms. Lester] did not return the property. What the majority overlooks is that it is not a crime not to return the
property and that absent an intent to defraud or to retain possession unlawfully, no criminal proceedings could
be properly brought against Ms. Lester. Ms. Lester's testimony that she believed that Video Express preferred
criminal charges against her because they believed that the movie had not been returned is immaterial. It is
Video Express's having Ms. Lester arrested merely because of the belief that she did not timely return a video
tape that comprises the tortious conduct in this case.
video was not returned on time, they were turned over to the police without any consideration
being given to the necessary elements of fraud or an unlawful intention to retain possession of
Video Express's property. That this is the case is made clear by documents filed by Video
Express in the district court.
In examining the defendant's motion for summary judgment, I learned about the unlawful
collection practices adopted by Video Express. Approximately ten days after the company's
computer system indicated that a video tape had not been timely returned, the company would
send a certified letter to the renter advising of that fact. Video Express's moving papers tell us
that if the certified letter failed to prompt the return of the movies, the Video Express
employee would print out a copy of (1) the customer's file and (2) the movie file. Then,
[t]his information along with a copy of the certified letter and postal receipts would be
attached to the original rental contract and the original rental receipt for the movie in
question. The third step in the process, according to the moving documents, was for Video
Express to turn the matter over to its collection agency, the Reno Police Department:
This information would then be delivered to the Reno Police Department. Movie
Express then had no further involvement in the criminal process other than to testify at
trial, if necessary.
As I have pointed out, Movie Express was able to get its delinquent renters arrested merely
by delivering the described information (that the certified letter failed to prompt the
return of the video tape) to the police department. Video Express, the Reno Police
Department and the District Attorney of Washoe County should not be allowed to get away
with these kinds of oppressive practices.
The certified letter to Ms. Lester did in fact fail to prompt the return of The Serpent and
the Rainbow, because Ms. Lester had already returned it, or so she claims. In any event,
whether it got back on the shelves or not, there is no suggestion that Ms. Lester did anything
wrong, much less criminal, with respect to the missing video tape.
I see no point in engaging in a discussion of the law of malicious prosecution. It appears to
me that Ms. Lester was the victim of Video Express's practice of reporting its customers to
the police for prosecution based solely on customers failing to answer its certified letter. No
information was provided to the police or to the district attorney concerning the mens rea of
this crime, namely, that the customer was guilty of fraud or intentional retention of a video
tape without permission. Bringing criminal charges in this way, causing their delinquent
renters to be arrested by the police, is on its face an arrest without probable cause.
criminal charges in this way, causing their delinquent renters to be arrested by the police, is
on its face an arrest without probable cause. Under our law, malice is inferred from such
misconduct. See Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962); Bonamy v. Zenoff,
77 Nev. 250, 362 P.2d 445 (1961); Gattshall v. Sizemore, 71 Nev. 106, 281 P.2d 400 (1955);
McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37 (1899); Cassinelli v. Cassinelli, 24 Nev. 182, 51
P. 252 (1897); Fenstermaker v. Page, 20 Nev. 290, 21 P. 322 (1889).
Summary judgment is entirely unwarranted in this case. I would reverse the judgment of
the trial court.
____________
112 Nev. 1434, 1434 (1996) Geary v. State
MELVIN JOSEPH GEARY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24277
December 20, 1996 930 P.2d 719
On rehearing, appeal from a judgment of conviction, entered pursuant to a jury verdict, of
one count of first-degree murder with use of a deadly weapon, and from a sentence of death.
Second Judicial District Court, Washoe County; Mills Lane, Judge.
The supreme court affirmed appellant's conviction, 110 Nev. 261, 871 P.2d 927 (1994).
On grant of petition for rehearing, the supreme court held that: (1) guilt phase instructions
were proper; (2) penalty phase instruction indicating that sentence of life without parole could
be commuted to sentence of life with possibility of parole was erroneous and prejudicial to
defendant; (3) aggravating circumstance based on commission of murder at random and
without apparent motive, though not unconstitutionally vague on its face, was improperly
applied to defendant; (4) aggravating circumstances based on fact that defendant was on
parole at time of murder and on fact that defendant had previously committed another
murder, which led to that parole, did not violate double jeopardy or defendant's right to due
process or reliable sentence; (5) penalty phase instruction on jury's determination and use of
aggravating circumstances was improper; and (6) penalty phase instruction on when sentence
imposed would be carried out was improper.
Rehearing granted; sentence vacated and remanded.
[Rehearing pending]
112 Nev. 1434, 1435 (1996) Geary v. State
Steven G. McGuire, State Public Defender and Timothy P. O'Toole, Appellate Deputy
Public Defender, Carson City; Michael Pescetta, Nevada Appellate Post-Conviction Project,
Las Vegas, for Appellant.
Attorney, David Wayment, Deputy District Attorney and Terrence P. McCarthy, Deputy
District Attorney, Washoe County, for Respondent.
Jury instruction which defined reasonable doubt as one which would control person's behavior did not violate defendant's rights
to due process and reliable verdict. U.S. Const. amend. 14.
Jury instruction on premeditation and deliberation which conflated first and second degree murder because it defined
premeditation as intent to kill which can be formed at or instantaneously before killing did not violate defendant's rights to due process
and reliable verdict. U.S. Const. amend. 14.
Finding that murder defendant used deadly weapon, based on defendant's use of boning knife, did not violate defendant's rights to
due process and reliable verdict, as boning knife was deadly weapon under inherently dangerous weapon test. U.S. Const. amend. 14.
4. Criminal Law.
Supreme court would consider capital murder defendant's claim that instruction regarding commutation of sentence violated
defendant's constitutional rights, even though defendant did not object to instruction at sentencing hearing and failure to object
normally barred review on appeal, in view of court's primary concern on direct appeal from death sentence of whether sentence is
constitutional.
Jury instruction in penalty phase of capital murder prosecution which indicated that sentence of life without parole could be
commuted to sentence of life with possibility of parole violated defendant's rights to due process and reliable sentence, and warranted
remand for resentencing, where defendant would most likely not meet statutory requirements for parole in view of his criminal history,
while counsel's arguments were based on erroneous presumption that defendant could qualify for parole. Jury was presented with false
choice between death penalty and possibility of defendant's future release. U.S. Const. amend. 14; NRS 213.1099(4).
6. Homicide.
Statutory aggravating circumstance considered in capital punishment proceeding which was based on commission of murder at
random and without apparent motive was not unconstitutionally vague on its face, as random was not so vague that jury did not
understand it. NRS 200.033(9).
7. Homicide.
Aggravating circumstance based on commission of murder at random and without apparent motive was improperly applied to
capital murder defendant, where defendant knew and lived with victim and evidence indicated that defendant killed victim
for reasons of anger, jealousy, or money.
112 Nev. 1434, 1436 (1996) Geary v. State
evidence indicated that defendant killed victim for reasons of anger, jealousy, or money. NRS 200.033(9).
8. Double Jeopardy.
Aggravating circumstance instructions at capital punishment hearing, regarding whether murder was committed while defendant
was on parole and whether defendant had previously been convicted of another murder, were not impermissibly duplicative so as to
violate constitutional prohibition against double jeopardy in first-degree murder prosecution, even though circumstances arose from
same underlying offense. U.S. Const. amend. 5; NRS 200.033(1), (2).
Aggravating circumstance instructions at capital punishment hearing, regarding whether first-degree murder was committed while
defendant was on parole and whether defendant had previously been convicted of another murder, did not violate defendant's right to
due process or reliable sentence, even though circumstances arose from same underlying criminal offense. First circumstance advanced
state's interest in punishing more harshly those who committed murder after having been granted privilege of parole, while second
circumstance advanced state's interest in punishing repeat offenders more harshly. U.S. Const. amend. 14; NRS 200.033(1), (2).
10. Criminal Law.
Jury instruction in capital punishment proceeding stemming from first-degree murder conviction, which directed jury to find
aggravating circumstances beyond reasonable doubt, weigh them against mitigating circumstances, and indicate those aggravating
circumstances on verdict form, did not sufficiently inform jury that finding of each aggravating circumstance had to be unanimous.
11. Criminal Law.
Properly instructed jury is imperative in capital sentencing process. Failure to properly instruct jury results in failure to adequately
guide jury in its sentencing determination, and mandates new penalty hearing.
12. Homicide.
Giving of jury instruction indicating that jury must determine sentence, that first-degree murder was punishable by death only
if aggravating circumstances out-weighed mitigating circumstances, and that murder was otherwise punishable by life imprisonment,
in connection with instruction that decision to impose death penalty was in discretion of jury, was improper, as instructions may not
have adequately conveyed to jury that it is never required to impose death penalty, and jury may have been confused by arguably
conflicting instructions.
13. Homicide.
Arguments by state may enlighten jury concerning imposition of death penalty in first-degree murder prosecution, but may never
be substituted for proper jury instruction.
14. Homicide.
Jury instruction in penalty phase of first-degree murder prosecution indicating that sentence imposed would be served consecutive
to sentence which defendant was already serving, and that prior sentence had to be completed or commuted before sentence imposed
would begin to run, was improper because it could have led jury to believe that ultimate determination about defendant's death rested
with others and thus created danger that jury would minimize its role in imposing death sentence.
112 Nev. 1434, 1437 (1996) Geary v. State
Per Curiam:
Appellant Melvin Joseph Geary was first convicted of first-degree murder twenty years
ago. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975). Geary was on parole from the
sentence imposed in that case when he committed another murder. For this second murder,
Geary was convicted of one count of first-degree murder and was sentenced to death. On
direct appeal, this court affirmed Geary's conviction and sentence. Geary v. State, 110 Nev.
261, 871 P.2d 927 (1994). Geary petitioned this court for rehearing, arguing that error
occurred at both the guilt and penalty phases of his trial. In an order entered on September 29,
1994, we granted Geary's petition for rehearing, and directed the parties to submit
supplemental briefs. Having considered the briefs on rehearing, we agree that error occurred
at the penalty phase of Geary's trial. Accordingly, we vacate the sentence and remand this
case for a new penalty hearing.
1

FACTS
In July 1992, shortly after committing the crime, Geary confessed to murdering his
roommate Edward Colvin with a boning knife. Geary had been drinking at the time.
Following a trial, a jury found Geary guilty of one count of first-degree murder with use of a
deadly weapon.
Geary had previously confessed to murdering another person in a similar manner in 1973.
For that earlier murder, a jury found Geary guilty of one count of first-degree murder and
sentenced him to life in prison without the possibility of parole. This court affirmed his
conviction. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975) (Geary I). In 1980, the Pardons
Board commuted Geary's sentence to a sentence of life with the possibility of parole. After
several appearances before the Parole Board, Geary was released on parole in 1986, in large
part because he was an exemplary prisoner who received commendations for his service to
the prison and the community. One of the conditions of Geary's parole was that he abstain
from alcohol. Geary violated this condition of his parole several times, and on one occasion
was found to have a blood alcohol level of 0.427.
__________

1
On March 29, 1995, Geary filed a request to take judicial notice of a portion of a transcript in another case. On
April 4, 1995, the state filed an opposition to this request. Cause appearing, we deny appellant's request. See
Occhiuto v. Occhiuto, 97 Nev. 143, 145, 625 P.2d 568, 569 (1981) (recognizing that generally a court should
not take judicial notice of records in a different case).
112 Nev. 1434, 1438 (1996) Geary v. State
Geary was on parole from the previous murder when he killed Colvin. At the penalty
hearing for Colvin's murder, the jury was fully informed of the facts and circumstances
surrounding Geary's previous conviction, commutation and parole. After the penalty hearing,
the jury found the following three aggravating circumstances: (1) that Geary committed the
murder while under sentence of imprisonment (i.e., parole) for the 1973 murder; (2) that
Geary was previously convicted of another murder (the 1973 murder) in Nevada; and (3) that
the murder was committed at random and without apparent motive. The jury found that any
mitigating circumstances do not outweigh the aggravating circumstance(s) and imposed the
death penalty.
Geary appealed, arguing that: (1) the district court should have excluded his confessions
because they were involuntary; (2) the district court gave an improper state-of-mind
instruction; (3) the penalty-phase verdict was impermissibly tainted by juror misconduct; and
(4) the district court allowed the jury to consider duplicative aggravating circumstances at the
penalty phase. This court affirmed the conviction and sentence in a per curiam opinion. Geary
v. State, 110 Nev. 261, 871 P.2d 927 (1994) (Geary II). In that opinion, this court rejected
each of these contentions, and conducted a sua sponte review of the penalty phase
instructions and of the sentence, finding both to be proper.
Following our affirmance, Geary petitioned for rehearing. We granted rehearing and
ordered additional briefing on the issues raised in Geary's petition, as well as on two jury
instructions.
DISCUSSION
On rehearing, Geary contends that error occurred at both the guilt and penalty phases of his
trial. Concerning guilt phase error, Geary contends that his rights to due process and to a
reliable verdict were violated. Concerning penalty phase error, Geary contends that: (1) the
jury instruction regarding the possibility of commutation of his sentence was misleading and
violated his constitutional rights to due process and a reliable sentence; (2) the random and
without apparent motive aggravating circumstance violated his rights to due process, to a
reliable sentence, and to not incriminate himself; (3) the two aggravating circumstances based
on his prior conviction and on his being under sentence of imprisonment for the same
conviction violated the prohibition against double jeopardy and deprived him of due process
and a reliable sentence; and (4) constitutional defects in other penalty phase instructions
require reversal of his sentence.
Guilt Phase Instructions
Geary does not concede that this court's disposition of the issues raised on appeal was
proper, nor does he concede that there are no other issues which require reversal.
112 Nev. 1434, 1439 (1996) Geary v. State
issues raised on appeal was proper, nor does he concede that there are no other issues which
require reversal. Geary argues that his rights to due process and to a reliable verdict were
violated by: (1) the jury instruction which defined a reasonable doubt as one which would
control a person's behavior; (2) the jury instruction on premeditation and deliberation which
conflated first and second degree murder because it defined premeditation as an intent to kill
which can be formed at or instantaneously before the killing; and (3) the finding that he used
a deadly weapon based on the use of a boning knife.
[Headnotes 1-3]
Although these issues exceed the scope of this court's order granting rehearing, we have
elected to consider them nonetheless. We disagree with Geary's contentions. The jury
instruction on reasonable doubt is a stock instruction, identical to that given in Lord v. State,
107 Nev. 28, 806 P.2d 548 (1991), where we upheld the instruction. Since Lord, we have
consistently held that the instruction is constitutionally sound. See Wesley v. State, 112 Nev.
503, 916 P.2d 793 (1996); Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993), cert. denied,
115 S. Ct. 176 (1994). We also previously upheld the jury instruction pertaining to
premeditation in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). Further, with regard to
Geary's use of a deadly weapon, a boning knife qualifies as a deadly weapon even under the
inherently dangerous weapon test of Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990).
See Hutchins v. State, 110 Nev. 103, 867 P.2d 1136 (1994) (distinguishing scissors from
knives, which fall within the definition of a deadly weapon). Thus, we conclude that these
contentions are without merit.
Penalty Phase Instructions
1. Commutation Instruction
Concerning the possibility that Geary's sentence could later be modified, the jury was
instructed as follows:
Life imprisonment with the possibility of parole is a sentence to life imprisonment
which provides that the Defendant would be eligible for parole after a period of twenty
years. This does not mean that he would be paroled after twenty years, but only that he
would be eligible after that period of time.
Life imprisonment without the possibility of parole means exactly what it says, that
the Defendant shall not be eligible for parole.
If you sentence the Defendant to death you must assume that the sentence will be
carried out.
112 Nev. 1434, 1440 (1996) Geary v. State
Although under certain circumstances and conditions the State Board of Pardons
Commissioners has the power to modify sentences, you are instructed that you may not
speculate as to whether the sentence you impose may be changed at a later date.
(Emphasis added.) Geary argues that, under the circumstances of this case, the instruction
was misleading and violated his constitutional rights.
[Headnote 4]
Before addressing the merits of this issue, we address the state's argument that this issue is
waived because Geary did not object at the sentencing hearing. Normally, failure to object at
trial bars review on appeal. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991)
(citing McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983)). However, on
direct appeal from a death sentence, this court's greatest concern is whether the sentence is
constitutional. Under compelling circumstances, we have at times allowed this concern to
override procedural problems in capital cases. See, e.g., Lord, 107 Nev. at 38, 806 P.2d at 554
(constitutional error addressed despite failure to object to jury instruction in trial court); Jones
v. State, 101 Nev. 573, 580, 707 P.2d 1128, 1133 (1985) (fundamental instructional error not
raised below addressed sua sponte by this court on appeal). Thus, we address the merits of
appellant's contention.
[Headnote 5]
Appellant contends that, under the unique circumstances of this case, the jury instruction
regarding the possibility of commuting a sentence from life without, to life with the
possibility of parole was misleading, prejudicial, and violated his constitutional rights to due
process and a reliable sentence. Specifically, Geary contends that the jury was misled into
believing that if it sentenced him to life without the possibility of parole, his sentence could
be modified, when in fact, his sentence could not be modified to allow for parole.
First, we note that this instruction complies with our dictate in Petrocelli v. State, 101 Nev.
46, 692 P.2d 503 (1985). In Petrocelli, we expressed concern that juries were instructed
differently regarding the possibility of commutation or parole, and stated that some of those
instructions have by commission or omission, not been totally accurate or suitable. Id. at
56, 692 P.2d at 510. To remedy this problem, we ordered that the jury instruction set forth in
our Petrocelli opinion, if requested, must be given. Id. at 56, 692 P.2d at 511.
After reviewing the controlling statute, NRS 213.1099(4), we conclude that, under the
unique circumstances of this case, the instruction was unconstitutional because Geary
simply would not qualify for parole.
112 Nev. 1434, 1441 (1996) Geary v. State
instruction was unconstitutional because Geary simply would not qualify for parole. At the
time that Geary was convicted, NRS 213.1099(4) provided that:
[e]xcept as otherwise provided in NRS 213.1215, the [parole] board may not release on
parole a prisoner whose sentence to death or to life without possibility of parole has
been commuted to a lesser penalty unless it finds that the prisoner has served at least 20
consecutive years in the state prison, is not under an order that he be detained to answer
for a crime or violation of parole or probation in another jurisdiction, and that he has no
history of:
(a) Recent misconduct in the institution, and that he has been recommended for
parole by the director of the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
Even if the Pardons Board were to commute Geary's sentence, his case for parole falters on as
many as four of the five criteria set forth in NRS 213.1099(4). Having committed two
first-degree murders, both while drunk and one while on parole from the other, Geary has
clearly demonstrated a history of criminal conduct related to the use of alcohol as well as
failure in parole. NRS 213.1099(4)(c), (e). His conduct may also demonstrate repetitive
criminal conduct as well as repetitive violence or aggression. NRS 213.1099(4)(b), (d). Given
these factors, Geary would most likely not be eligible for parole even if his sentence were
commuted to life with the possibility of parole.
We find Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), instructive in
analyzing this issue. In Simmons, a capital case decided after Geary II, a state trial court
refused to instruct the jury, and precluded defense counsel from arguing during the penalty
phase, that the defendant would be ineligible for parole under state law. A plurality of the
High Court concluded that, when the defendant's future dangerousness is at issue, and state
law prohibits the defendant's release on parole, due process requires that the sentencing jury
be informed that the defendant will not be eligible for parole. Id. at 161-62, 114 S. Ct. at
2192-93. The Court stated:
In this case, the jury reasonably may have believed that petitioner could be released on
parole if he were not executed. To the extent this misunderstanding pervaded the jury's
deliberations, it had the effect of creating a false choice between sentencing
petitioner to death and sentencing him to a limited period of incarceration.
112 Nev. 1434, 1442 (1996) Geary v. State
jury's deliberations, it had the effect of creating a false choice between sentencing
petitioner to death and sentencing him to a limited period of incarceration. This
grievous misperception was encouraged by the trial court's refusal to provide the jury
with accurate information regarding petitioner's parole ineligibility, and by the State's
repeated suggestion that petitioner would pose a future danger to society if he were not
executed.
Id. at 161-62, 114 S. Ct. at 2193. The Court continued: Because truthful information of
parole ineligibility allows the defendant to deny or explain' the showing of future
dangerousness, due process plainly requires that he be allowed to bring it to the jury's
attention by way of argument by defense counsel or an instruction from the court. Id. at 169,
114 S. Ct. at 2196. The Court was divided on whether defense argument was enough or
whether an instruction was required.
In this case, even though Geary could not qualify for parole, counsel for both sides based
their arguments on a presumption that he could qualify for parole. Geary was previously
sentenced to life without the possibility of parole, and had his sentence commuted to a term
of life with the possibility of parole by the Pardons Board. Thereafter, Geary was in fact
released on parole. Because these facts were so heavily emphasized before the jury, the jury
may have speculated that a sentence of death was the only way to prevent Geary's eventual
release from prison. This case presents an atypical factual scenario and procedural history
which warranted informing the jury that even if the Pardons Board commuted Geary's
sentence from one without the possibility of parole to one with the possibility of parole,
Geary could not, in fact, be released on parole.
Defense counsel sought to have the jury instructed regarding the function of the Pardons
Board and the process for obtaining a pardon or parole. The district court properly rejected
these instructions pursuant to the dictates of Petrocelli. Defense counsel did not, however,
propose any jury instructions concerning NRS 213.1099(4). Indeed, defense counsel was
seemingly unaware of the statutory prohibition against Geary's future release on parole,
because counsel suggested to the jury that by the time Geary became eligible for parole, he
would be so old and in such poor health that he probably would not live that long. Defense
counsel merely argued that there was no chance that Geary would get out of prison again
because the politicians and the bureaucrats . . . made fools of themselves in 1980 . . . [and
that] even the most irresponsible politician or bureaucrat would summarily dismiss any
concept of this man getting out again. By contrast, the state emphasized Geary's future
dangerousness: There comes a time when you say, "Enough is enough."
112 Nev. 1434, 1443 (1996) Geary v. State
There comes a time when you say, Enough is enough. This man has been given
every single break that could possibly happen.
. . . .
A jury of twelve sentenced him to life without the possibility, just like you folks.
1980, that was commuted to life with. . . . [t]he system let him out after six or seven
parole hearings. Convinced, convinced that this man would not be in trouble in the
future. Unfortunately for Ted Colvin, they were wrong.
. . . .
There are times when you say, We have to punish.
Send him back to prison for a life term so he can live the kind of lifestyle he was
living. Working at what he wants to work at. Going out from prison to give speeches
and lectures. Sounded like at times he was doing just about what he wanted to do.
. . . .
This man is a walking time bomb, a walking volcano, and who is to say he can't
cause problems at the prison? You heard testimony today about pruno being available
there, alcohol. Is he going to take one more drink and kill someone else?
. . . .
I will ask you: Can society take that risk?
The jury instruction suggesting that Geary's sentence could be modified, combined with
the arguments of counsel, may have misled the jury into believing that it had to choose death
in order to prevent Geary from being paroled and released back into society. The jury most
likely was confused, because the prosecutor's primary focus during the penalty phase was
Geary's future dangerousness based on his previous murder conviction for which, despite his
sentence of life without the possibility of parole, he was in fact paroled. Defense counsel
greatly exacerbated the problem by failing to argue that Geary could not be paroled, despite
the statutory prohibition against his parole. Given this, we conclude that the instruction was
constitutionally impermissible, and was therefore given in error.
Further, we conclude that this error was prejudicial. In Jones v. State, 101 Nev. 573, 707
P.2d 1128 (1985), the prosecutor, in his closing remarks, elaborated on jury instructions
regarding the possibility of a pardon or parole, stating that even with a term of life without the
possibility of parole, there was always a possibility of executive clemency and parole. Thus,
the prosecutor urged the jury to impose a death sentence to ensure that the defendant would
not be released. Id. at 580-81, 707 P.2d at 1133. We concluded that the jury was misled and
that the death sentence may well have been imposed arbitrarily and under the influence
of passion because of the misleading statements regarding executive clemency and a
death sentence.
112 Nev. 1434, 1444 (1996) Geary v. State
concluded that the jury was misled and that the death sentence may well have been imposed
arbitrarily and under the influence of passion because of the misleading statements regarding
executive clemency and a death sentence. Id. at 581-82, 707 P.2d at 1133-34. Accordingly,
we vacated the death sentence and remanded for a new penalty hearing. Id. at 582, 707 P.2d
at 1134.
In light of the fact that extensive mitigating evidence was presented at the penalty hearing
and Geary's sentence had, once before, been commuted to a term of life with parole, the jury
may have believed that the possibility of commutation or parole was indeed great.
Consequently, the jury was free to erroneously speculate that Geary was likely to be released
on parole even if it sentenced him to a term of life without the possibility of parole. Thus, the
jury was presented with a false choice, and, operating under this grievous misperception,
rendered a sentence which cannot be said to be constitutionally reliable. The error was
prejudicial, and Jones mandates reversal on this issue.
On remand, to avoid the problem created by giving the jury the Petrocelli instruction in
this case, the following instruction may be given when requested by either the defendant or
the state:
1. Life imprisonment with the possibility of parole is a sentence to life imprisonment
which provides that the Defendant would be eligible for parole after a period of twenty
years. This does not mean that he would be paroled after twenty years, but only that he
would be eligible after that period of time.
2. Life imprisonment without the possibility of parole means exactly what it says, that
the Defendant shall not be eligible for parole.
3. If you sentence the Defendant to death you must assume that the sentence will be
carried out.
4. Although under some limited circumstances and conditions the State Board of
Pardons Commissioners has the power to modify certain sentences, the law does not
allow the Board to change either a death sentence or a sentence of life without the
possibility of parole to any lesser or different sentence. Therefore, you are instructed
that you may not speculate as to whether the sentence you impose may be changed at a
later date.
See Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996) (modifying last paragraph of
Petrocelli instruction to comport with NRS 213.085).
112 Nev. 1434, 1445 (1996) Geary v. State
2. Aggravating circumstances
a. Random and motiveless
The third aggravating circumstance on which the jury was instructed at the penalty phase
was the following:
3. The murder was committed upon one or more persons at random and without
apparent motive.
NRS 200.033(9). The jury premised its imposition of the death sentence in part on the finding
that this aggravating circumstance existed.
Geary challenges this aggravating circumstance on constitutional grounds. He argues that
this aggravating circumstance impermissibly shifts the burden of proof to the defendant to
prove the existence of a motive in order to avoid having the jury find the aggravating
circumstance, and that it violates his constitutional right not to incriminate himself. Geary
further argues that this aggravator violates his rights against cruel and unusual punishment
and to substantive due process because it fails to perform the constitutionally mandated
narrowing function and does not rationally support an increase in the level of culpability. In
addition, Geary argues that the aggravator violates the Eighth and Fourteenth Amendments
because it is unconstitutionally vague on its face and as applied.
Geary also contends that the evidence was insufficient to support a finding of this
aggravating circumstance. He argues that the state's evidence presented during the guilt phase
demonstrated that the killing was not random or motiveless and that the position the state
took in the penalty phase and on appeal directly contradicts the position it took during the
guilt phase. He argues that interpreting NRS 200.033(9) to include this killing violates basic
rules of statutory construction and is contrary to the plain meaning of the statute. Examining
the legislative history and judicial interpretation of the statute, he asserts that this aggravating
circumstance was intended by the legislature to cover thrill killings yet has been applied
broadly by this court to apply to any unnecessary killing, thus depriving the statute of any
rational meaning.
Geary further contends that he was prejudiced by this error. He challenges the propriety of
appellate reweighing and asserts that the error was not harmless beyond a reasonable doubt.
He points to the other problems presented by this case, as well as to the evidence in
mitigation, to support his claim.
[Headnote 6]
We disagree with Geary's contention that the random and motiveless" aggravating
circumstance is unconstitutionally vague on its face.
112 Nev. 1434, 1446 (1996) Geary v. State
motiveless aggravating circumstance is unconstitutionally vague on its face. Although the
jury was given no definitions to guide it in applying this aggravating circumstance, we
conclude that the word random is not so vague that the jury did not understand it. Cf.
Godfrey v. Georgia, 446 U.S. 420 (1980) (death penalty conviction overturned where jury
given no narrowing instructions to guide its application of bare statutory terms which were
unconstitutionally vague); Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (1994) (depravity of
mind and torture aggravating circumstance held unconstitutional where jury not instructed
regarding definition or significance of key terms).
[Headnote 7]
We conclude, however, that this aggravating circumstance was applied unconstitutionally
broadly to the facts of this case. This case is distinguishable from previous cases in which we
upheld the random and motiveless aggravating circumstance; in this case Geary knew and
lived with his victim and expressed resentment of him. Geary had moved in with Colvin
because Geary was unemployed, homeless, and had no money. Because there were no
eyewitnesses and Geary did not testify, we cannot ascertain the exact circumstances of the
murder. Nevertheless, evidence adduced at trial suggests that the murder was neither random
nor motiveless. Although the state argued that the killing was random because Geary went
off like a volcano whenever he drank, and would kill anyone who happened to be there, the
evidence indicates that Geary killed Colvin because Colvin was taunting him. Geary was
pissed off because Colvin, who was characterized as outspoken and belittling, had it all,
and I had nothing. Geary told his ex-girlfriend that he had been in a fight, and Colvin had
defensive wounds, suggesting that there was a struggle in which Colvin resisted. Geary also
told police officers that he had taken money from Colvin. This evidence suggests that the
killing was directed at a specific individual (Colvin) and was for a reason (anger, jealousy,
money). Thus, this killing is not the type of random and motiveless crime at which our
death penalty statutes are directed.
By contrast, in previous cases upholding the random and motiveless aggravating
circumstance, the defendant had no apparent history, prior relationship or personal
involvement with the victim. See, e.g., Lane v. State, 110 Nev. 1156, 1159, 881 P.2d 1358,
1361 (1994) (defendant on spree of violence shot cab driver in the head and took his
money), cert. dismissed, 115 S. Ct. 1444 (1995); Paine v. State, 107 Nev. 998, 999-1000, 823
P.2d 281, 281 (1991) (defendant shot cab driver twice in head before robbing him); Bennett
v. State, 106 Nev. 135, 137-38, 787 P.2d 797, 798 (defendant on killing spree shot
mini-mart clerk in face before even speaking to her), cert. denied, 49S U.S. 925 {1990);
Moran v.
112 Nev. 1434, 1447 (1996) Geary v. State
in face before even speaking to her), cert. denied, 498 U.S. 925 (1990); Moran v. State, 103
Nev. 138, 142-43, 734 P.2d 712, 714-15 (1987) (before robbing bar, defendant killed
bartender and patron without warning and had no idea why he had killed them); Ford v. State,
102 Nev. 126, 127-28, 717 P.2d 27, 28 (1986) (defendant drove car onto crowded city
sidewalk, killing seven and injuring many others).
b. Other aggravating circumstances
In addition to the aggravating circumstance discussed above, the jury found the following
two aggravating circumstances based on Geary's previous murder conviction:
1. The murder of EDWARD COLVIN was committed by defendant MELVIN
JOSEPH GEARY while he was under sentence of imprisonment in that defendant
MELVIN JOSEPH GEARY was on parole from the Nevada State Prison.
2. The murder of EDWARD COLVIN was committed by defendant MELVIN
JOSEPH GEARY who was previously convicted of another murder in 1974 in the State
of Nevada.
These aggravating circumstances are based upon NRS 200.033(1) and (2), which provide that
first-degree murder may be aggravated by the following circumstances:
1. The murder was committed by a person under sentence of imprisonment.
2. The murder was committed by a person who was previously convicted of another
murder or of a felony involving the use or threat of violence to the person of another.
Geary contends that the finding of these two aggravating circumstances based on the same
prior conviction violated his rights to due process, to a reliable sentence, and to not be placed
twice in jeopardy. He contends that, where one offense is incident to an offense for which
he was already convicted, prosecution for the incidental offense is barred by double jeopardy.
Applying this concept to his case, Geary argues that the sentence of imprisonment which was
the basis for the first aggravating circumstance under NRS 200.033(1) was imposed solely as
a result of the prior conviction which was the basis for the second aggravating circumstance
under NRS 200.033(2). Therefore, Geary asserts that a finding of both aggravating
circumstances violated the prohibition against double jeopardy.
Geary further contends that these two aggravating circumstances violate due process and
the Eighth Amendment because they increase the quantum of death eligibility on the basis
of characteristics which make no measurable contribution to acceptable goals of
punishment.
112 Nev. 1434, 1448 (1996) Geary v. State
they increase the quantum of death eligibility on the basis of characteristics which make no
measurable contribution to acceptable goals of punishment. Geary argues that there is no
legislative intent in favor of duplicative aggravating circumstances. He urges this court to
analyze the issue as it practically applies to his case, and to conclude that the state's separate
interests are not met by imposition of duplicative aggravating circumstances. Finally, Geary
contends that imposition of both aggravating circumstances cannot be said to be harmless
[Headnotes 8, 9]
Geary raised these contentions in his direct appeal, and we rejected them, noting that the
two aggravators could, hypothetically, be based upon completely different circumstances and
that they address different state interests. Geary II, 110 Nev. at 266-67, 871 P.2d at 930-31.
We now reject them again for the same reasons. Further, we consider a double jeopardy
analysis to be inappropriate in this case. Geary does not argue that he is being unfairly
punished twice for a prior conviction. Rather, he argues that his prior conviction should not
be parsed into two separate sentencing considerations for the purpose of meting out
punishment for the instant offense. Moreover, the aggravating circumstances do not violate
Geary's rights to due process or a reliable sentence. The first aggravating circumstance
advances the state's interest in punishing more harshly those who commit murder after having
been granted the privilege of parole, and the second aggravator advances the state's interest in
punishing more harshly repeat offenders. Both of those interests are advanced in this case
even though the aggravating circumstances arise from the same underlying criminal offense.
3. Other penalty phase instructions
In our order granting rehearing, we instructed Geary to address the propriety of the jury
instructions. Geary argues at length that the penalty phase instructions failed to provide
specific and detailed guidance to the jury and thus violated his state and federal constitutional
rights to due process and against cruel and unusual punishment. First, Geary contends that the
instructions misled the jury into believing that mitigating circumstances had to be found
unanimously before they could be weighed against the aggravating circumstances. Geary
contends that, in light of the extensive mitigating evidence presented during the penalty
phase, this error cannot be considered harmless. Geary further contends that the jury was not
explicitly instructed that aggravating circumstances had to be found unanimously and that the
penalty phase instructions as a whole did not adequately specify how the penalty
determination was to be made.
112 Nev. 1434, 1449 (1996) Geary v. State
penalty determination was to be made. He attacks the structure of the statutory death penalty
scheme and argues that appellate reweighing is wrong. Geary asserts that this court's decision
in Allen v. State, 99 Nev. 485, 665 P.2d 238 (1983), to allow consideration of non-statutory
aggravating evidence was unconstitutional and contrary to the legislative intent behind the
overall statutory scheme. Geary contends that he was prejudiced by the overbroad allowance
of aggravating evidence because the jury was permitted to hear evidence of criminal conduct
for which he was never convicted.
2
Finally, Geary contends that the instructions did not
adequately convey to the jury that it is never required to impose the death penalty.
[Headnote 10]
We have recently considered and rejected the argument that the jury instructions misled
the jury into believing that mitigating circumstances had to be found unanimously. See
Jiminez v. State, 112 Nev. 610, 918 P.2d 687 (1996). However, we conclude that other
penalty phase instructions suffer from constitutional defects. The jury was never explicitly
instructed that its finding of each aggravating circumstance had to be unanimous. The jury
was simply instructed to find aggravating circumstances beyond a reasonable doubt, to weigh
them against mitigating circumstances, and to indicate those aggravating circumstances on
the verdict form.
[Headnote 11]
Although the phrase beyond a reasonable doubt arguably suggests that unanimity is
required, no instruction explicitly informed the jury whether its findings of aggravating
circumstances had to be unanimous. A properly instructed jury is imperative in the capital
sentencing process. See Walton v. Arizona, 497 U.S. 639, 653 (1990) (When a jury is the
final sentencer, it is essential that the jurors be properly instructed regarding all facets of the
sentencing process.) Failure to so instruct the jury results in a failure to adequately guide the
jury in its sentencing determination, and mandates a new penalty hearing.
The order granting rehearing directed Geary to address the propriety of jury instruction
numbers three and eleven. Unfortunately, nowhere in Geary's lengthy presentation does he
specifically discuss these instructions.
__________

2
Specifically, Geary is referring to penalty hearing testimony regarding the circumstances which led to
discovery of the 1973 murder. Police officers went to Geary's apartment after receiving a report that he had shot
a motel clerk in the ear during a robbery. Upon entering the apartment, they discovered bloody drag marks.
Geary ultimately confessed to having stabbed a woman he met at a bar with a boning knife and dumping her
body in the desert. Geary was convicted of the murder but not of the robbery or shooting at the motel.
112 Nev. 1434, 1450 (1996) Geary v. State
nately, nowhere in Geary's lengthy presentation does he specifically discuss these
instructions. Having failed to adhere to this court's explicit directive, Geary has arguably
waived his right to challenge these instructions on rehearing. Nevertheless, because of the
gravity of the penalty to be imposed in this case, we address these issues on our own accord.
McCullough, 99 Nev. at 74, 657 P.2d at 1158. In so doing, we conclude that the jury may
have been confused by both instructions.
[Headnotes 12, 13]
Penalty Phase Jury Instruction Number Three reads as follows:
The defendant in this case has been found guilty of murder in the first degree.
Under the law of this State, you must now determine the sentence to be imposed
upon the defendant. First degree murder is punishable by death only if the jury finds
one or more aggravating circumstances have been proved beyond a reasonable doubt
and the jury further finds that any mitigating circumstances do not outweigh the
aggravating circumstances.
Otherwise, murder in the first degree is punishable by imprisonment in the state
prison for life with or without the possibility of parole.
By instructing the jury that it must determine the sentence, that murder is punishable by
death only if aggravating circumstances outweigh mitigating circumstances, and that
otherwise murder is punishable by life imprisonment, this instruction may not have
adequately conveyed to the jury that it is never required to impose the death penalty
regardless of the presence or absence of aggravating or mitigating circumstances. However,
elsewhere the jury was instructed that the weighing process is a qualitative, not a quantitative,
process and that [u]ltimately, the discretion of whether to impose the death penalty belongs
to the jury.
3
Because the jury may have been confused by these arguably conflicting
instructions, the process by which the jury arrived at its verdict was irreversibly tainted.
4

__________

3
During closing argument in the penalty phase of Geary's trial, the district attorney said You are never
required to do that [return a verdict of death], but you may return a verdict of death. Arguments by the state
may enlighten the jury concerning the imposition of the death penalty, but may never be a substitute for proper
instruction.

4
The defense offered, but the district court rejected, the following instruction: A jury is never required to
impose a sentence of death. A defendant is never required to establish mitigating circumstances to be sentenced
to less than death. This instruction would have cured the problem with Penalty Phase Jury Instruction Number
Three.
112 Nev. 1434, 1451 (1996) Geary v. State
[Headnote 14]
The jury may also have been misled regarding when the sentence it imposed was to be
carried out. Penalty Phase Jury Instruction Number Eleven reads as follows:
You have heard evidence that Melvin Geary is presently serving a prison sentence.
The laws of the State of Nevada provide that any sentences imposed in this case will
have to be served consecutive to the sentence he is presently serving.
Consecutive means that the prison sentence Mr. Geary is now serving must be
completed or commuted before the sentence in this case will begin to run.
By instructing the jury that Geary's 1973 murder sentence must be completed or commuted
before the sentence in this case will begin to run, Penalty Phase Instruction Number Eleven
may have misled the jury into believing that Geary would not be executed unless he was
paroled from his current sentence of life in prison, or his sentence was commuted. The jury
was instructed that a death sentence, in essence, would result in a term of life in prison
without the possibility of parole, with the threat of execution hanging over Geary's head in the
event he sought parole or commutation of his sentence. Thus, there is a reasonable probability
that the jury did not realize that the death sentence which it imposed would actually be carried
out. [I]t is constitutionally impermissible to rest a sentence on a determination made by a
sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant's death rests elsewhere. Caldwell v. Mississippi, 472 U.S.
320, 328-29 (1985). If the jury is not properly instructed regarding the gravity of its
responsibility, the jury may minimize the importance of its role, which is an intolerable
danger in the capital sentencing process. Id. at 333. In this case, the jury was told that Geary
would not be executed until he completed his first sentence of life in prison. Thus, there is an
intolerable danger that the jury minimized its role because it believed that the ultimate
determination of death rested with others, such as Geary, the Pardons Board, or the Parole
Board. Consequently, Penalty Phase Jury Instruction Number Eleven was improperly given in
this case.
Accordingly, we are compelled to vacate appellant's sentence and remand this case for a
new penalty hearing.
____________
112 Nev. 1452, 1452 (1996) Douglas Co. Contractors v. Douglas Co.
DOUGLAS COUNTY CONTRACTORS ASSOCIATION, a Nevada Nonprofit Corporation;
H & S CONSTRUCTION, a Nevada Corporation; and KEUPER KUSTOM HOMES,
INC., a Nevada Corporation, Appellants, v. DOUGLAS COUNTY, a Political
Subdivision of The State of Nevada; DOUGLAS COUNTY COMMISSIONERS;
DOUGLAS COUNTY SCHOOL DISTRICT, a Political Subdivision of The State of
Nevada; and THE BOARD OF TRUSTEES OF THE DOUGLAS COUNTY
SCHOOL DISTRICT, Respondents.
No. 27465
December 20, 1996 929 P.2d 253
Appeal from summary judgment. Ninth Judicial District Court, Douglas County; David R.
Gamble, Judge.
Developers challenged validity of fees under Fair Share Cost program adopted by county
and school district. The district court upheld the legality of the program, and developers
appealed. The supreme court held that: (1) program was an impact fee or tax and not merely
regulatory measure, and was subject to constraints of impact fee statute; (2) statute was not
authorized by statutes concerning police power; and (3) program was preempted by state
impact fee enabling legislation.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Ltd. and Karen A. Peterson and
James R. Cavilia, Carson City, for Appellant Douglas County Contractors.
Kelly R. Chase, Minden, for Appellants H & S Construction and Keuper Kustom Homes.
Scott W. Doyle, District Attorney, Douglas County, for Respondents Douglas County and
Douglas County Commissioners.
Crowell, Susich, Owen and Tackes, Carson City, for Respondents Douglas County School
District and Board of Trustees.
I.R. Ashleman, Las Vegas, for Amici Curiae Nevada Taxpayers Association, the Nevada
Homebuilders Association, the Builders Association of Northern Nevada, the Western
Nevada Homebuilders Association, and the Southern Nevada Homebuilders Association 1.
Fair Share Cost fee imposed by county and school district constituted an impact fee or tax and not merely regulatory measure,
and thus was subject to constraints of impact fee statute and was improper because statute fails to include school site acquisition
among list of permissible capital improvements. Fee was designed to raise revenue and district intended to use funds anywhere in
county according to the school improvements plan, rather than earmark them for use in subdivision from which they were exacted.
NRS 278B.050, 278B.160.
Statute providing for police power of counties did not provide authorization for county and school district to impose impact fee on
developers for benefit of schools. NRS 244.357(1), (2).
Planning and zoning statute defining parameters of agreements between governing body and person having legal or equitable
interest in land is limited in scope to land uses and did not grant county and school district authority to impose revenue-raising impact
fee or provide county and school district with authority to contractually require land dedications or any variant thereof. NRS 278.0201.
Statute specifying purposes for which zoning regulations must be designed provided no grant of authority for county and school
district to impose revenue-raising impact fee on developers. NRS 278.250(2)(f), (i).
Statutes providing for dedication of school sites as condition of subdivision approval did not authorize county and school district
to raise revenue by charging developers fees in lieu of land dedication. NRS 278.346, 278.349(3)(d).
Legislative scheme for school financing was intended to occupy entire field on the subject, and thus Fair Share Cost impact fee
program adopted by county and school district was preempted by state impact fee enabling legislation. NRS 387.331, 387.335,
387.3285.
OPINION
Per Curiam:
Appellants, Douglas County Contractors Association, H & S Construction, and Keuper Kustom Homes, Inc., contest the imposition of
the Fair Share Cost fee by respondents, Douglas County and the Douglas County School District.
1

Both Douglas County and the Douglas County School District conducted studies
concerning school overcrowding and sought and obtained voter approval for a bond issue in
excess of 29 million dollars.
__________

1
The amici curiae filing briefs in support of appellants' positions are the Nevada Taxpayers Association, the
Nevada Homebuilders Association, the Builders Association of Northern Nevada, the Western Nevada
Homebuilders Association, and the Southern Nevada Homebuilders Association.
and obtained voter approval for a bond issue in excess of 29 million dollars. Douglas County
has since expended all of the funds from the bond sales on either new or existing school
facilities. Recognizing that the bond issue did not fully meet the School District's needs, the
Douglas County School District and Douglas County hired a consulting firm which
developed the Fair Share Cost program.
The Fair Share Cost program was intended to alleviate the pressures exerted upon existing
school facilities by expanding enrollments occasioned in part by new development. Pursuant
to a mathematical formula based upon anticipated school costs and projected student
populations, the Fair Share Cost program would exact a fee in lieu of land on new
subdivision development to augment existing facilities and to construct new school facilities
throughout Douglas County. The Douglas County School District and Douglas County jointly
fashioned an Interlocal Agreement which implemented the Fair Share Cost program.
Appellants challenged the validity of the Fair Share Cost program and sought declaratory
and injunctive relief. Following extensive briefing and cross-motions for summary judgment,
the district court upheld the legality of the program.
In a case of first impression, we are asked to decide whether the Legislature occupies the
field of funding for school capital improvements and thus preempts the Fair Share Cost
program. We conclude that respondents, as local political subdivisions of the State of
Nevada, lack the authority to impose such a program. Accordingly, the district court's entry of
summary judgment in favor of respondents is reversed and this matter is remanded with
instructions to enter judgment in favor of appellants.
FACTS
Appellants H & S Construction and Keuper Kustom Homes (Contractors) are Nevada
contractors who primarily are engaged in the business of constructing single-family
residences. Appellant, Douglas County Contractor's Association (DCCA), is a nonprofit
corporation whose members are mostly general contractors in the business of residential
construction. Respondent Douglas County (County), is a political subdivision of the State
of Nevada which acts by and through respondent, the Board of County Commissioners of
Douglas County (the Commissioners). Respondent Douglas County School District
(School District), is a political subdivision of the State of Nevada and is governed by
respondent, the Board of Trustees of the Douglas County School District (Board of
Trustees).
Recognizing that school overcrowding had become a critical concern, the School District
began conducting studies in late 1990 to pursue alternatives for alleviating the pressures
exerted on existing school facilities.
concern, the School District began conducting studies in late 1990 to pursue alternatives for
alleviating the pressures exerted on existing school facilities. The County and the School
District negotiated an Interlocal Agreement to formulate a procedure for imposing a fee to be
included in new residential subdivision development agreements. The County then ratified
the Interlocal Agreement as Ordinance 596.
In order to implement the Interlocal Agreement, the School District hired a consultant to .
. . assist the District in the adoption of a capital facilities plan for school facilities and . . .
prepare an impact fee analysis which incorporates fair share school facilities costs. After
crediting each dwelling unit for the Residential Construction Tax of $1,000
2
and the debt
service on outstanding bonds, the consultant arrived at a net adjusted fair share cost of
approximately $2,400 per dwelling unit. The County and the School District agreed on this
figure and pursuant to a vote, the Fair Share Cost (FSC) program became effective on
September 2, 1993.
In May, 1992, Douglas County voters approved a bond issue in excess of $29 million
which was quickly exhausted on new and existing school facilities. Recognizing a need for
additional funding, the Commissioners lobbied the 1993 and 1995 sessions of the Nevada
Legislature for an increase in the Residential Construction Tax to be used for school
construction. If passed and approved, this legislation would have tripled the current ceiling of
$1,000 on the Residential Construction Tax as authorized by NRS 387.311.
3
The 1993 bill
died in committee and the identical 1995 bill was indefinitely postponed.
The County has charged, and continues to charge the maximum allowable Residential
Construction Tax of $1,000one of only two counties in Nevada which levy this tax. The
FSC program applies strictly to subdivision development.
Las Vegas Paving, Inc. (LVP) entered into a development agreement with the County to
develop the Sunridge Heights subdivision in Douglas County. Approval of the Sunridge
Heights subdivision development was conditioned on the County's ability to impose rules,
regulations, and ordinances on residential construction as mitigating measures for the School
District. In April 1993 the Contractors executed a written agreement with LVP to purchase
numerous lots, subject to the applicable zoning, building, and development regulations in the
Sunridge Heights subdivision.
__________

2
See n.6.

3
See n.6.
The first lots purchased by the Contractors were not subjected to the FSC because the
ordinance approving the FSC program had not yet passed; however, in October 1993,
following approval of the ordinance, the County began imposing the FSC. The residential
building permits were issued only on the condition that the Contractors pay the FSC fees.
When H & S Construction refused to pay the FSC fees for two lots in the Sunridge
development, the County refused to issue building permits.
The FSC program does not apply to any current construction on residential lots in the
Tahoe Basin because Ordinance 596 was not in effect when those subdivisions were
approved. However, all future subdivisions within the Douglas County portion of the Tahoe
Basin are subject to the FSC. The FSC also does not apply to commercial developments, lots
created by the parcel map process, or divisions of land into large parcels.
DISCUSSION
The nature of the FSC program
[Headnote 1]
The proper characterization of respondents' FSC program is outcome determinative; this
threshold issue therefore supplies the springboard for our analysis. Whether Ordinance 596 is
a regulatory measure or a tax is a critical question. Appellants contend that while it is within
the County's power to impose certain regulatory fees, the County is without power to impose
the FSC as a tax measure under its police power.
Appellants insist that the FSC is really an impact fee which embodies all of the indicia
of a tax because it is designed to raise revenue for schools. As support for this proposition,
appellants direct our attention to the parties' stipulation of facts wherein the FSC is referred to
as the adoption of the Fair Share Fee.
Nevada's impact fee legislation was enacted in 1989 and codified in NRS Chapter 278B.
NRS 278B.050 defines an impact fee as follows: Impact fee' means a charge imposed by a
local government on new development to finance the costs of a capital improvement or
facility expansion necessitated by and attributable to the new development. The term does not
include a tax for the improvement of transportation imposed pursuant to NRS 278.710.
Respondents contend that since Ordinance 596 requires contractors to dedicate land or pay
a fee in lieu of dedication, it must be properly viewed as regulatory in nature. Relying heavily
upon Trimen Development Co. v. King Co., 877 P.2d 187, 192 (Wash. 1994), respondents
advance the proposition that the FSC is not a tax because its primary purpose is regulatory
rather than revenue-raising.
raising. In Trimen, the court upheld the validity of a park development fee in lieu of plat
approval. The court concluded that the county's fee was a regulation and not a tax. Id. at 192.
Respondents urge that even if the FSC imposes burdens or charges, it cannot be characterized
as a tax because its primary purpose is to regulate, not to raise revenue.
Appellants' response is twofold. First, as the discussion that follows illustrates, the FSC is
a tax, not a regulatory device. Second, unlike the Revised Code of Washington, the Nevada
Revised Statutes do not provide an analogous grant of authority to require dedication of land
or payment in lieu of dedication. Appellants note that the Trimen court grounded its decision
in the Revised Code of Washington, Section 82.02.020, which authorized the county to
impose the fee. Id. at 191.
In Southern Nevada Life v. City of Las Vegas, 74 Nev. 163, 166, 325 P.2d 757, 758
(1958), this court was asked to distinguish between regulatory fees and revenue taxes. In
resolving the issue, we were guided by McQuillan on Municipal Corporations, Vol. 9, sec.
26.15, page 26:
On the one hand, a tax that is not in any sense regulatory and is imposed expressly for
general revenue purposes is not a license tax. A so-called license fee or tax imposed for
revenue is in truth a tax and not a license exaction under the police power. . . . Thus, a
declared or obvious purpose to regulate tends to establish an exaction as a purely
licensing and regulatory fee. But an ordinance having no provisions for regulation and
imposing an exaction is a tax ordinance designed to raise revenue. When levied for
revenue alone, so-called license fees or license taxes are revenue taxes.
Two cases from other jurisdictions further illuminate the distinction between a regulatory fee
and a tax. In Eastern Diversified v. Montgomery County, 570 A.2d 850, 854 (Md. 1990), the
court noted:
In evaluating whether a development impact fee is a regulatory charge or a tax, the
purpose of the enactment governs rather than the legislative label. . . . In general, it
may be said that when it appears from the Act itself that revenue is its main objective,
and the amount of the tax supports that theory, the enactment is a revenue measure.
(Emphasis added.)
A Washington court also adopted this distinction: If the fees are merely tools in the
regulation of land subdivision, they are not taxes. If, on the other hand, the primary purpose
of the fees is to raise money, the fees are not regulatory, but fiscal, and they are taxes."
taxes. Hillis Homes, Inc. v. Snomish County, 650 P.2d 193, 195 (Wash. 1982) (emphasis
added).
Appellants emphasize that the Ordinance,
4
Joint Resolution, Final Report, and the
Interlocal Agreement between the County and the School District, uniformly reflect that the
FSC is intended to generate revenue to fund school construction. In its Final Report, the
consulting firm hired by the School District and the County concluded that [t]he School
District must generate revenue in the amount of the FSC for each new residential unit in
order to provide sufficient capital facilities to educate the number of students that the unit
will produce. (Emphasis added.) Apparently, respondents intend to use the FSC funds
anywhere in Douglas County according to their capital improvements plan; the funds do not
appear to be earmarked for or limited to use in the Sunridge Heights subdivision.
The consultant suggested three alternatives to generate revenue: (1) respondents could use
the FSC as evidence of the need to raise the ceiling on the Residential Construction Tax per
dwelling unit;
5
(2) the FSC could be used as leverage in obtaining enabling legislation for
school impact fees to be levied by respondents; or (3) the County could rely on the FSC as a
standard in negotiating development agreements thereby requiring land, facilities, or fees in
lieu of development approval.
The revenue generating language within the Interlocal Agreement and the Joint
Resolution is not as explicit. Both establish guidelines that the County and School District
must follow in their quest to acquire school sites, cash contributions, and development
agreements. However, the language impliedly suggests the need to generate revenues.
Respondents pursued each of the suggestions enumerated in the Final Report, but failed in
two attempts to have the Legislature increase the maximum Residential Construction Tax
available under NRS 387.331.
6
Appellants note that Douglas County is one of only two
counties in Nevada which impose this tax, and that the County is currently imposing the tax
at the $1,000 ceiling.
__________

4
Ordinance No. 596 approved the Interlocal Agreement between the County and the School District and
provided guidelines for the establishment and collection of financing for capital facilities required by the
District.

5
This suggestion apparently would be a predicate upon which respondents could seek legislative relief.

6
387.331 Imposition of tax for construction, remodeling and additions for school buildings in
district whose population is less than 35,000; limitation on amount; deposit of proceeds in fund for
capital projects.
1. The tax on residential construction authorized by this section is a specified amount which must be the
same for each:
the County is currently imposing the tax at the $1,000 ceiling. Respondents sought, through
the Legislature, to triple the statutory limit of $1,000 imposed under NRS 387.331, and then
initiated the FSC program after failing to secure relief from the 1993 legislative session.
As an alternative to the Residential Construction Tax, the consultants urged the School
District to pursue legislation enabling them to levy school impact fees. This suggests that the
consultants did not believe that respondents possessed the authority to levy the FSC.
According to the consultants, the California Legislature has enacted school impact fee
legislation authorizing school districts to levy such fees as a condition of development
approval. However, Nevada has not enacted such legislation.
The Final Report acknowledged the critical distinction between regulatory fees and taxes:
Unlike the residential construction tax, school impact fees are regulatory in character and
can only be used to add school capacity that benefits new development. (Emphasis added.)
Appellants contend that the FSC is utilized to benefit Douglas County at large rather than
the Sunridge Heights subdivision. Appellants also argue that since the fee has all of the
indicia of an assessment against each dwelling unit, it is an impact fee which fits squarely
within the definition of NRS 278B.050. As such, respondents are limited by statute as to the
capital improvements that can be financed by the fee. We agree.
We conclude that any regulatory features of the FSC are incidental to its true purposeto
raise revenue to finance construction benefitting the County at large and not simply the
subdivision at issue. The FSC is clothed with the indicia of a tax rather than a regulatory
measure. Respondents' characterization of the FSC as regulatory rather than a
revenue-generating tax is untenable. Therefore, the district court erred in holding that the FSC
program is not an impact fee or impermissible tax.
Statutory authority
Respondents cite a number of statutes which purportedly enable them to impose the FSC
on selected new development. The County also relies heavily on authority from other
jurisdictions as support for its ability to impose the FSC.
__________
(a) Lot for a mobile home;
(b) Residential dwelling unit;
. . . .
3. If the board of county commissioners decides that the tax should be imposed, it shall notify the
Nevada tax commission. If the commission approves, the board of county commissioners may then
impose the tax, whose specified amount must not exceed $1,000.
Our review of the cited statutes and cases from other jurisdictions leaves us with the
conclusion that none of them can be contorted to provide support for respondents' position.
The cited statutes are inapposite and the cases are readily distinguishable, and in any event do
not provide a basis for superseding Nevada controlling case authority.
We view as dispositive our recent decision in Southern Nevada Homebuilders Association
v. City of North Las Vegas, 112 Nev. 297, 913 P.2d 1276 (1996). There we considered the
validity of a North Las Vegas ordinance requiring payment of fees based upon the square
footage of new development, to be used to finance a portion of the city's emergency medical
services and fire protection.
The City of North Las Vegas argued that NRS 278B.160
7
provided the authorization to
impose its impact fee even though the projects to be benefitted were not enumerated under
the statute. The City contended that the statute was not exclusive. This court disagreed and
concluded that the language of NRS 278B is clear on its face, allowing impact fees only for
the enumerated projects. However, even if NRS 278B were considered ambiguous, the
legislative history of the statute clearly reflects an intent to restrict the projects for which
impact fees could be imposed. Id. at 301, 913 P.2d at 1279.
In so holding, this court confined its analysis to the statute's language and legislative
history. As a threshold inquiry, the Southern Nevada Homebuilders Association court
considered the statutory definitions of impact fee and capital improvement. Under NRS
278B.050, an [i]mpact fee' means a charge imposed by a local government on new
development to finance the costs of a capital improvement or facility expansion[
8
]
necessitated by and attributable to new development. NRS 278B.020 defines capital
improvement as a 1. Drainage project; 2. Sanitary sewer project; 3. Storm sewer project; 4.
Street project; or 5. Water project.
In researching the legislative history concerning the reach of impact fees, we determined
that the list of capital improvements for which impact fees could be used is exclusive.
Southern Nevada Homebuilders Association at 301, 913 P.2d at 1279.
__________

7
NRS 278B.160 provides that [a] local government may by ordinance impose an impact fee in a service area
to pay the cost of constructing a capital improvement or facility expansion necessitated by and attributable to
new development. . . .

8
Facility expansion is defined under NRS 278B.040 as the expansion of the capacity of an existing facility
associated with a capital improvement to serve new development. The term does not include the repair,
maintenance or modernization of a capital improvement or facility.
Nevada Homebuilders Association at 301, 913 P.2d at 1279. Appellants contend, and we
agree, that the imposition of the FSC is improper because NRS 278B fails to include school
site acquisition among the list of permissible capital improvements.
Respondents discount Southern Nevada Homebuilders Association on the premise that the
FSC is not an impact fee. It is evident, of course, why respondents have characterized the
FSC as either a contract, regulatory fee, or fee in lieu of land dedication. To label the
FSC as an impact fee or tax would place it squarely under the prohibitive purview of
Chapter 278B. Nevertheless, respondents have not provided a cogent basis for characterizing
the FSC as anything other than what it isa tax or impact fee. Moreover, if we were to
accept respondents' position, we would render essentially meaningless the constraints
purposely written into Chapter 278B by the Legislature.
[Headnote 2]
Respondents attempt to make an end run around Chapter 278B by resorting to NRS
244.357(1) and (2)
9
as general police power authority for the FSC program. Although the
district court agreed, we must conclude otherwise. This court has held that while the state can
delegate its police power and power to tax to its political subdivisions, [s]uch power is
granted only where the grant plainly appears from the delegating statute. Clark Co. v. Los
Angeles City, 70 Nev. 219, 221, 265 P.2d 216, 217-18 (1954).
The district court also identified additional specific grants of police power in provisions
such as NRS 278.020(1); 278.0201-0207; 278.0226; 278.185, 278.250(2)(f) and (i); 278.346
and 278.349(3)(d). Although we have determined that none of these statutes provides support
for Ordinance 596, we will briefly address those statutes that may appear to have remote
application to the situation before us.
Respondents' interpretation of NRS 244.357 is unavailing because the statute addresses
issues associated with police, sanitary and traffic ordinances. Despite the statute's limited
focus, respondents declare "[l]egislation like the state statute just cited grants the county
police powers as extensive as that of the legislature so long as the subject matter does
not conflict with general laws."
__________

9
In pertinent part, NRS 244.357 provides:
244.357 Police, sanitary, loitering, prowling and traffic ordinances: Enactment and enforcement.
1. Each board of county commissioners may enact and enforce such local police and sanitary ordinances
and regulations as are not in conflict with the general laws and regulations of the State of Nevada
. . . .
2. Such police and sanitary ordinances and regulations may be enacted to apply throughout an entire
county or, where the subject matter makes it appropriate and reasonable, may be enacted to govern only a
limited area within the county which must be specified in the ordinance.
respondents declare [l]egislation like the state statute just cited grants the county police
powers as extensive as that of the legislature so long as the subject matter does not conflict
with general laws.
In Wilkinson v. Bd. of County Comm'rs of Pitkia County, 872 P.2d 1269 (Colo. App.
1993), the court dealt with traditional zoning issues involving subdivisions and parcelling of
property as opposed to impact fees. Unlike the instant case and Nevada's statutory
composition, the Wilkinson court acknowledged that the applicable Colorado statute provided
a broad grant of authority to political subdivisions in regulating and planning the use of their
land. Id. at 1276.
[Headnote 3]
As a fallback position, respondents rely on the planning and zoning statutes codified in
NRS Chapter 278 as the legislative imprimatur for imposing the FSC. Respondents' reliance
on these statutes is equally unavailing. By way of illustration, NRS 278.0201 defines the
parameters of an agreement between a governing body and a person having a legal or
equitable interest in the land at issue. By definition, the agreement is limited in scope to land
uses. The statute also addresses a governing body's ability to adopt any future modifications
or regulations. The statute would confine a future resolution or regulation to permitted uses of
the land, density, design, and construction.
Respondents' claim that the statute grants them revenue-raising capabilities bears little
relation to the statute's language. NRS 278.0201(2) proscribes imposing ordinances or
regulations applicable to the land after an agreement has been reached.
However, NRS 278.0201(3) would allow the County to adopt new regulations applicable
to the land provided they are not in conflict with those in existence when the agreement is
made. Appellants argue, and rightfully so, that the absence of a non-conflicting regulation
such as the FSC, at the time the Development Agreement for Sunridge Heights was made,
trumps the County's ability to add the additional terms of the FSC.
10
The FSC does not fit
within any of these statutory criteria; therefore, NRS 278.0201 does not provide respondents
with the authority to contractually require land dedications or any variant thereof.
[Headnote 4]
NRS 278.185 is equally inapposite. This statute deals with notice of plans for future school
construction. Another statute relied upon by the district court and appellants which
purportedly provides a specific grant of police power to impose the FSC is NRS
27S.250{2){f) and {i):
__________

10
The Development Agreement for Sunridge Heights was passed by ordinance on February 18, 1993. The FSC
established through the Interlocal Agreement became effective on July 22, 1993.
provides a specific grant of police power to impose the FSC is NRS 278.250(2)(f) and (i):
2. The zoning regulations must be adopted in accordance with the master plan for
land use and be designed:
. . . .
(f) To develop a timely, orderly and efficient arrangement of transportation and
public facilities and services, including facilities and services for bicycles.
. . . .
(i) To promote health and the general welfare.
A cursory review of this statute reveals no basis for accepting it as a grant of authority for
respondents to impose the FSC or any variation thereof to finance schools. Respondents'
reliance on this statute is without merit.
[Headnote 5]
Equally without merit is the attempt to validate the FSC under the provisions of NRS
278.346 and NRS 278.349(3)(d). These statutes in unison provide for the dedication of school
sites as a condition of approval if a school site is needed. The Legislature, however, has
required the acquiring school district to pay the owner of the site the fair market value of the
property. Neither statute contains language which, by any stretch of the imagination, grants
respondents the authority to raise revenue by charging developers fees in lieu of land
dedication.
Even respondents acknowledge the shortcomings in relying on these two statutes: this
method is site-specific to a particular subdivision . . . . Thus, we conclude that respondents
have failed to summon any statutory support which clothes them with the general police
power to impose the FSC against developers. Such an interpretation would collide with the
strict limitations placed upon political subdivisions by the Legislature.
Legislative intent
[Headnote 6]
In Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980), we stated that in determining
whether the Legislature intended to occupy an entire field, we must look to the whole
purpose and scope of [the] legislative scheme.' Id. at 111, 605 P.2d at 626 (quoting Lamb v.
Mirin, 90 Nev. 329, 332-33, 526 P.2d 80, 82 (1974)). See also Flick Theater v. City of Las
Vegas, 104 Nev. 87, 89-90, 752 P.2d 235, 237 (1988) (in determining whether Legislature
intends to exclusively occupy a particular field, courts should look to the whole purpose and
scope of the legislative scheme).
In Flick, we upheld the enforcement of local ordinances which restricted the operation of
sexually-oriented businesses. In our ruling, we determined that there was no indication of a
comprehensive legislative scheme to fully occupy the regulation of sexually-oriented
businesses. Id. at 90, 752 P.2d at 237.
The case at bar is distinguishable from Flick. In Flick, this court recognized that the
Legislature did not intend to occupy the field of sexually oriented businesses. Conversely, in
the instant case, the three statutory chapters devoted to school funding provide compelling
evidence that the Legislature intended to exclusively occupy this particular field. Thus, if
local political subdivisions were intended to have unfettered discretion in devising their own
school funding schemes, the Legislature would have made explicit provision for such
authority.
Respondents cite to Grupe Development Co. v. Superior Court, 844 P.2d 545 (Cal. 1993),
as support for finding broad police powers within the Nevada statutes which would validate
respondents' imposition of the FSC. Again, their reliance is misplaced. Contrary to
respondents' interpretation, the California Supreme Court held that the special tax levied by
a school district on all new residential construction was preempted by California's
comprehensive school legislation scheme. Id. at 546. In so holding, the court noted that the
Legislature hereby occupies the subject matter of mandatory development fees and other
development requirements for school facilities finance to the exclusion of all local measures
on the subject. Id. at 549. Clearly, this ruling would prohibit an extension of authority to the
school districts to impose impact fees similar to the FSC under a general police power theory.
Appellants maintain that Nevada's broad and comprehensive legislative scheme for the
operation and funding of schools is evidence of the state Legislature's exclusive occupation of
this subject matter. As support for the proposition that the independence and authority of
political subdivisions is statutorily limited in this area, appellants cite three comprehensive
chapters in the Nevada Revised Statutes addressing the subject of financial support for
Nevada's school system: NRS Chapter 387, Financial Support of School System; NRS
Chapter 278B, Impact Fees for New Development; and NRS Chapter 374, Local School
Support Tax.
Under Nevada's current statutory scheme, school funding is accomplished in several ways.
NRS 387.331 (Residential Construction Tax) permits the smaller counties to levy a
residential construction tax not to exceed $1,000 per residential unit.
11
NRS 3S7.32S5 {Ad
Valorem Tax) enables boards of county commissioners to levy an additional ad valorem
tax, but only after voter approval by a majority of the registered voters in the county.
__________

11
See n.6.
387.3285 (Ad Valorem Tax) enables boards of county commissioners to levy an additional ad
valorem tax, but only after voter approval by a majority of the registered voters in the county.
Another funding vehicle is the issuance of general obligation bonds by the school district's
board of trustees. See NRS 387.335. Clearly, the Legislature has scrupulously addressed this
subject matter, yet impact fees as a vehicle for school funding are conspicuously absent.
In its decision, the district court concluded that:
The Court finds nothing in the portion of Chapter 387 of the Nevada Revised
Statutes relating to the financing of construction of schools (NRS 387.329 et seq.) or
the issuance of bonds (NRS 387.335 et seq.) which specifically prohibits
implementation of an in-lieu of dedication payment program like the FSC. These
provisions in Chapter 387 of the Nevada Revised Statutes do not preempt the FSC
program at issue in this litigation because the program is predicated on other provisions
found in Chapters 244 and 278 of the Nevada Revised Statutes.
As the district court mentions, the Legislature has explicitly delegated a variety of
fund-raising schemes for its political subdivisions. However, to conclude that respondents
have the implied power to impose the FSC in the absence of an express legislative
dispensation runs counter to, and would be disruptive of the whole purpose and scope of the
legislative scheme. Flick, at 90, 752 P.2d at 237.
If this court were to adopt respondents' reasoning, the entire body of exhaustive legislation
dealing with school funding in Nevada would be relegated to the status of a partial funding
mechanism accommodating the proliferation of a variety of revenue-generating measures of
unplanned proportions imposing an unpredictable effect on tax planning, revenue source
allocations, and the statewide tax structure.
12

For the above reasons, we conclude that the Nevada Legislature has carefully planned the
means of orderly school financing within a statutory scheme structured to occupy the entire
field on the subject. Thus, the FSC program has been preempted by Nevada's impact fee
enabling legislation, and the district court erred in ruling to the contrary.
__________

12
Indeed, the Legislature has even controlled the availability of the residential construction tax by requiring
counties seeking to impose the tax to first secure the approval of the Nevada tax commission. This strongly
indicates the intent of the Legislature to carefully monitor the extent to which taxes are employed to construct,
remodel and provide additions to school buildings. NRS 387.331(3).
Although appellants have raised issues concerning the constitutionality of the FSC, given
our disposition of this matter it is unnecessary to address the constitutional issues. We have
carefully considered all remaining points raised by the parties and conclude either that they
are without merit or that they need not be addressed in the disposition of this appeal.
CONCLUSION
For the reasons discussed above, we reverse the summary judgment entered by the district
court in favor of respondents and remand with instructions to grant appellants' motion for
summary judgment.
____________
112 Nev. 1466, 1466 (1996) Bejarano v. Warden
JOHN BEJARANO, Appellant, v. WARDEN, Nevada State Prison, SHERMAN HATCHER,
Respondent.
No. 25469
December 20, 1996 929 P.2d 922
Appeal from an order of the district court denying a petition for a writ of habeas corpus.
Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.
Petitioner was found guilty of murder, robbery with use of deadly weapon and other
crimes, and was sentenced to death, and his direct appeal was dismissed by the supreme
court. Petitioner's post-conviction relief petition was denied by the district court and denial
was affirmed by the supreme court, 106 Nev. 840, 801 P.2d 1388 (1990). Petitioner then
sought federal habeas review which was dismissed without prejudice for unexhausted claims.
Petitioner's habeas corpus petition was denied by the district court. Petitioner appealed. The
supreme court, Young, J., held that: (1) there is no independent right to effective assistance of
counsel during post-conviction proceedings unless counsel is mandatorily appointed pursuant
to statute; (2) good cause for neglecting to raise issues in earlier proceeding could not be
based on claim of ineffective post-conviction relief counsel, overruling Grondin v. State, 97
Nev. 454, 634 P.2d 456 (1981); and (3) failure to consider entire record was not error where
court-appointed, post-conviction counsel failed to provide relevant record.
Affirmed.
[Rehearing denied February 26, 1998]
Kelly & Sullivan, Ltd., Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, David F. Sarnowski, Chief Deputy, Carson City,
for Respondent.
1. Criminal Law.
Rule that there is no right to counsel in state post-conviction relief proceedings applies the same in capital cases as in noncapital
cases.
2. Habeas Corpus.
In habeas corpus petition, asserted cause for failure to raise issues in earlier proceedings that post-conviction relief counsel was
ineffective, was not good cause. Because petitioner had no right to counsel in post-conviction proceedings, there could be no
deprivation of effective assistance of counsel and hence, good cause could not be shown based on claim of ineffectiveness of
post-conviction counsel; overruling Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981). NRS 34.810.
3. Criminal Law.
Defendant is not guaranteed effective counsel for every post-conviction claim that may be raised and therefore, indigent defendant
may choose to accept discretionarily appointed counsel; however, that counsel need not be effective as is required of counsel during
trial and on direct appeal. U.S. Const. amend. 6.
4. Criminal Law.
Petitioner during post-conviction proceedings has no right to effective assistance of counsel unless that court is mandated by
statute to appoint counsel; if petitioner is not appointed counsel pursuant to statutory mandate, he is not automatically entitled to
effective assistance of that counsel. U.S. Const. amend. 6.
5. Criminal Law.
Petitioner for post-conviction relief has burden of establishing the factual allegations in support of his petition.
6. Criminal Law.
Failure of petitioner's court-appointed counsel in post-conviction proceeding to provide record relevant to petition did not
constitute good cause for failure to establish factual allegations in support of petition and did not preclude district court's dismissal of
petition without considering entire record. NRS 34.810.
OPINION
FACTS
John Bejarano (Bejarano) was found guilty of murder in the first degree, robbery with the use of a deadly weapon and several other
crimes. Bejarano was sentenced to death on the murder charge and additional prison terms for the remaining convictions.
Bejarano's direct appeal was dismissed by this court. Bejarano v. State, Docket No. 19023 (Order Dismissing Appeal, December 22,
1988).
On February 21, 1989, Bejarano filed a petition for post-conviction relief with the Second
Judicial District Court. That petition alleged ineffective assistance of counsel, prosecutorial
misconduct, insufficient evidence and incompetence of petitioner to stand trial. After denial,
Bejarano appealed to this court maintaining that aggravating circumstances to uphold the
death penalty were inapplicable as a matter of law or were not proved as a matter of fact and
he received ineffective assistance of counsel from his trial attorney. We found that these
contentions lacked merit and that the trial court properly denied Bejarano's petition for
post-conviction relief. Bejarano v. State, 106 Nev. 840, 843, 801 P.2d 1388, 1390 (1990).
Bejarano then filed a petition seeking federal habeas review pursuant to 28 U.S.C. 2254.
The United States District Court dismissed Bejarano's petition without prejudice because the
petition included unexhausted claims. Bejarano then petitioned the Seventh Judicial District
Court for a writ of habeas corpus. That court denied Bejarano's petition primarily based on
NRS 34.810. This appeal followed.
DISCUSSION
Bejarano raised thirty-five claims in his petition for a writ of habeas corpus. The district
court dismissed all Bejarano's claims primarily based on NRS 34.810. NRS 34.810 provides,
in relevant part:
. . . .
(b) The petitioner's conviction was the result of a trial and the grounds for the
petition could have been:
(2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or
post-conviction relief; or
(3) Raised in any other proceeding that the petitioner has taken to secure relief
from his conviction and sentence, unless the court finds both cause for the failure to
present the grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge or justice
determines that it fails to allege new or different grounds for relief and that the prior
determination was on the merits or, if new and different grounds are alleged, the judge
or justice finds that the failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and
proving specific facts that demonstrate:
burden of pleading and proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the
claim again; and
(b) Actual prejudice to the petitioner. . . .
Bejarano argues that the district court erred in determining that Bejarano's claims should
be dismissed because the district court did not inquire into the existence of cause or
prejudice. However, the only assertion of cause raised by Bejarano was that his
post-conviction relief counsel was ineffective.
[Headnote 1]
In Pennsylvania v. Finley, 481 U.S. 551 (1987), the United States Supreme Court
specifically stated that there is no right to counsel in state post-conviction relief proceedings.
The court in Finley reasoned:
Postconviction relief is even further removed from the criminal trial than is
discretionary direct review. It is not part of the criminal proceeding itself, and it is in
fact considered to be civil in nature. It is a collateral attack that normally occurs only
after the defendant has failed to secure relief through direct review of his conviction.
States have no obligation to provide this avenue of relief, and when they do, the
fundamental fairness mandated by the Due Process Clause does not require that the
State supply a lawyer as well.
Id. at 556-57 (citations omitted).
In addition, the Supreme Court held that the rule in Finley should apply no differently in
capital cases than in non-capital cases. Murray v. Giarratano, 492 U.S. 1, 10 (1989).
[Headnote 2]
In McKague v. Warden, 112 Nev. 159, 164, 912 P.2d 255, 258 (1996), we held that
McKague has no right to effective assistance of counsel, let alone any constitutional or
statutory right to counsel at all, in his post conviction proceedings. We further stated,
Where there is no right to counsel there can be no deprivation of effective assistance of
counsel and hence, good cause' cannot be shown based on an ineffectiveness of post
conviction counsel claim. Id. at 164-65, 912 P.2d at 258. Therefore, Bejarano has failed to
provide good cause for neglecting to raise issues in his earlier proceedings.
Bejarano argues that Grondin v. State, 97 Nev. 454, 634 P.2d 456 (1981), shows this
court's desire to provide effective assistance of counsel during post-conviction proceedings.
Grondin concluded that counsel for appellant at the post-conviction proceedings failed to
provide the required caliber of representation." Id. at 456, 634 P.2d at 45S.
proceedings failed to provide the required caliber of representation. Id. at 456, 634 P.2d at
458. However, because we have already decided this issue in McKague, and because we do
not want to go beyond Finley, Grondin is overruled to the extent that it is inconsistent with
this opinion.
[Headnote 3]
While it may be regrettable, we cannot guarantee every defendant effective counsel for
every claim that may be raised. Defendants have made a sham out of the system of justice and
thwarted imposition of their ultimate penalty with continuous petitions for relief that often
present claims without a legal foundation. As one court stated, We have created a web of
procedures so involved that they threaten to engulf the penalty itself. State v. Steffen, 639
N.E.2d 67, 73 (Ohio 1994) (limiting post-conviction relief for capital cases).
Therefore, an indigent defendant may choose to accept discretionarily appointed counsel;
1
however, that counsel need not be effective as is required of counsel during trial and on
direct appeal. The logic behind such a rule is that if counsel for post-conviction proceedings,
as well as trial and direct appeal, must meet the same standards, then claims of ineffective
assistance of counsel in the immediate prior proceeding may be raised ad infinitum.
Finally, Bejarano also argued that the district court erred in relying on an incomplete
record to deny his petition. Bejarano explains that his attorney failed to lodge several
important documents with the court; therefore, the court should not have concluded that on
the record Bejarano's post-conviction counsel was effective.
[Headnote 4]
This argument is without merit. First, and most decisively, as discussed above, a petitioner
during post-conviction proceedings has no right to effective assistance of counsel unless that
court is mandated by statute to appoint counsel. See McKague, 112 Nev. at 165 n.5, 912 P.2d
at 258 n.5. Therefore, since the district court was not required by NRS 177.345{1) to
appoint counsel for Bejarano, it did not err in denying the claim.
__________

1
In 1989, when Bejarano filed his prior post-conviction petition, NRS 177.345(1) allowed a court to use its
discretion when deciding whether to appoint counsel for an indigent petitioner. This statute has since been
repealed. However, NRS 34.750, still in effect, also allows discretionary appointment of counsel to indigent
petitioners for post-conviction relief. Since Bejarano was not appointed counsel pursuant to a statutory mandate,
he is not automatically entitled to effective assistance of that counsel. See McKague v. Warden, 112 Nev. 159,
165 n.5, 912 P.2d 255, 258 n.5 (1996) (concluding that when a petitioner is entitled to appointment of counsel,
that right includes effective assistance of counsel).
court was not required by NRS 177.345(1) to appoint counsel for Bejarano, it did not err in
denying the claim.
[Headnotes 5, 6]
Second, Bejarano had the burden of pleading and proving specific facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the claim
again; and (b) Actual prejudice to the petitioner. NRS 34.810(3) (emphasis added). A
petitioner for post-conviction relief has the burden of establishing the factual allegations in
support of his petition. Lozada v. State, 110 Nev. 349, 353-54 n.3, 871 P.2d 944, 947 n.3
(1994). The failure of Bejarano's court-appointed counsel in this post-conviction proceeding
to provide the record relevant to his petition does not constitute the good cause required by
NRS 34.810. Therefore, contrary to Bejarano's contention, this failure does not preclude the
district court from dismissing his petition.
In sum, we do not recognize an independent right to effective assistance of counsel during
post-conviction proceedings, unless that counsel was mandatorily appointed pursuant to
statute. See McKague, 112 Nev. at 165 n.5, 912 P.2d at 258 n.5. Therefore, Bejarano must
present other more specific facts that establish cause and prejudice, besides the
performance of his post-conviction relief counsel. In addition, the district court did not err by
failing to consider the entire record.
Bejarano's other contentions have been considered and rejected.
2
The order of the district
court is affirmed.
Steffen, C. J., and Rose and Shearing, JJ., concur.
As in McKague v. Warden, 112 Nev. 159, 912 P.2d 255 (1996), I disagree with the
majority's conclusion that in an adversarial criminal proceeding the State may be represented
by counsel but an indigent defendant has no right to effective assistance of counsel. Such a
conclusion is, to me, inherently unfair; if the State provides an indigent defendant with
counsel, that defendant must also be given some right of judicial review if the defendant
claims to have been prejudiced by the ineffective performance of the provided attorney.
I say that if the court appoints counsel, that counsel is obligated to provide effective
representation. I will not be engaging in a polemic on the constitutional niceties relating to the
rights of accuseds to be represented by counsel; instead, I base my case for providing
effective counsel to impoverished criminal defendants on our own statutory scheme.
__________

2
One of Bejarano's claims during his second post-conviction proceeding was that his direct appeal counsel was
ineffective. This court has considered this claim and has determined that it is without merit.
accuseds to be represented by counsel; instead, I base my case for providing effective counsel
to impoverished criminal defendants on our own statutory scheme. Simply stated, our statutes
allow for the appointment of counsel in post-conviction proceedings; and to me, appointment
of counsel means appointment of effective counsel and not ineffective counsel.
NRS 34.724 provides that a criminal defendant has the right to apply for post-conviction
relief. If the defendant is indigent, the court is empowered to appoint counsel. NRS 34.750(1)
([T]he court may appoint counsel to represent the petitioner.). Once counsel undertakes the
representation of such a defendant, I cannot believe that the misdeeds or faulty representation
of that counsel should be able to escape the judicial review of this court.
1

My views are based on the assumption that all judicial irregularities must be subject to
some kind of review by instituted appellate authority. Thus, for example, if a defendant were
to come to us claiming that his attorney had missed the filing deadline in an appeal or had
been drunk during the post-conviction proceedings, I do not think that it would be wise or just
to turn our backs on such a claimant. If, as the majority rules, an indigent defendant has no
right to effective counsel and no right to judicial review of counsel's performance in
post-conviction proceedings, then even the kinds of gross attorney malpractice mentioned
above would escape judicial review. This does not seem fair to me.
I do not feel called upon to discuss the scope of review that would be necessary in
post-conviction cases because the majority has turned down any and all claims to the right of
review by indigent defendants on the issue of effectiveness of counsel in post-conviction
proceedings. It is my view that judicial review of some kind is mandated once counsel has
been appointed by the district court. It does not seem reasonable to me that an attorney can be
appointed and then not be subject to any surveillance or subsequent review of ineffective and
prejudicial performance on the attorney's part.
I am aware of the contention of some that a holding which gives to an indigent defendant
the right to review of counsel's performance in post-conviction proceedings might possibly
lead to a reluctance on the part of district judges to appoint counsel at all in these kinds of
proceedings.
__________

1
If the majority were to hold that ineptness of defense counsel were subject to some kind of judicial review, I
might then be persuaded to accept the position of the Indiana Supreme Court, as quoted in the majority opinion,
in Baum v. State, 533 N.E.2d 1200, 1201 (1989), that it may not be necessary for this court to judge [the
attorney's] performance by the rigorous standard set forth in Strickland v. Washington, but certainly I would
disagree with the majority's holding that an indigent defendant has no right to effective assistance of counsel.
(Emphasis added.)
to a reluctance on the part of district judges to appoint counsel at all in these kinds of
proceedings. I believe, however, that in any case in which an indigent defendant presented to
the court reasonable grounds for post-conviction relief, it would be very probable that the
judge in such a case would appoint counsel. Ordinarily such counsel would perform
effectively, but when this was not the case, such a situation should be subject to review by the
appellate court.
There are those who say that permitting review of the performance of counsel in
post-conviction matters would result in a facing-mirrors effect, wherein proof of
ineffectiveness of counsel would only result in the appointment of other counsel whose
performance would then, in turn, be subject to further review, ad infinitum. This conjecture
does not appear to me to present as great a menace to the fair administration of criminal
justice as permitting a very bad and prejudicial performance by counsel in post-conviction
proceedings to pass without any remedy by way of judicial review.
In Grondin v. State, 97 Nev. 454, 456, 634 P.2d 456, 458 (1981), this court in reviewing
performance of counsel in post-conviction proceedings ruled that counsel for appellant at the
post-conviction proceedings failed to provide the required caliber of representation. I do not
fully understand this court's excuse for now denying completely a defendant's right to review
the caliber of representation of post-conviction counsel, as we have done in the past. I
disagree with this change in course and with this court's overruling of Grondin.
____________
112 Nev. 1473, 1473 (1996) State v. Gomes
THE STATE OF NEVADA, Appellant, v. DONALD FRED GOMES, Respondent.
No. 27163
December 20, 1996 930 P.2d 701
Appeal by the State from an order of the district court granting a post-conviction petition
for a writ of habeas corpus and setting aside a guilty plea and judgment of conviction. Eighth
Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge.
Defendant was convicted pursuant to plea for sexual assault and was sentenced. Defendant
petitioned for writ of habeas corpus. The district court found that defendant intended to enter
plea of nolo contendere but plea pursuant to Alford was entered instead, and set aside guilty
plea and conviction. State appealed. The supreme court held that: (1) as an apparent matter of
first impression, whenever defendant maintains his innocence but pleads guilty pursuant
to Alford, plea constitutes one of nolo contendere; {2) setting aside plea because of
questions over whether it was plea of nolo contendere or Alford plea was error; {3) even
if counsel performed deficiently in pleading, counsel was not ineffective absent
explanation of how plea differed and how difference would have prompted defendant to
insist on trial rather than accept plea bargain; and {4) defendant's plea was valid and
supported by evidence.
112 Nev. 1473, 1474 (1996) State v. Gomes
impression, whenever defendant maintains his innocence but pleads guilty pursuant to Alford,
plea constitutes one of nolo contendere; (2) setting aside plea because of questions over
whether it was plea of nolo contendere or Alford plea was error; (3) even if counsel
performed deficiently in pleading, counsel was not ineffective absent explanation of how plea
differed and how difference would have prompted defendant to insist on trial rather than
accept plea bargain; and (4) defendant's plea was valid and supported by evidence.
Reversed.
and James Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.
Steven J. Karen, Las Vegas, for Respondent.
1. Criminal Law.
Guilty plea was not involuntary on ground that defendant intended to enter plea of nolo contendere but plea of guilty pursuant to
Alford was entered instead, though defense counsel had stated that defendant was pleading nolo contendere because of civil
implications involved in the case, where defendant lost civil action because he declined to defend it and not because plea was used as
basis for civil judgment, and since the consequences of the two pleas are the same in both criminal and civil cases.
2. Criminal Law.
Even if petitioner's counsel performed deficiently and allowed Alford plea of guilty but protesting innocence to be entered instead
of nolo contendere, deficiency did not amount to ineffective assistance where neither habeas corpus court nor petitioner explained how
plea of nolo contendere and Alford plea differed and how that difference would have prompted petitioner to insist on trial rather than
accept plea bargain. U.S. Const. amend. 6.
3. Criminal Law.
Whenever a defendant maintains his innocence but pleads guilty pursuant to Alford, plea constitutes one of nolo contendere.
4. Habeas Corpus.
Petitioner waived claim that introduction of polygraph evidence at sentencing was ground for habeas relief as challenge to
sentence had to be raised on direct appeal and was otherwise waived.
5. Habeas Corpus.
Even if claim for habeas relief based on introduction of polygraph evidence at sentencing had not been waived, any error was not
reversible as it was invited by petitioner. Petitioner first raised evidence of polygraph tests and agreed to allow evidence to be received,
and district court erred in admitting evidence absent written stipulation.
6. Criminal Law.
Polygraph results are generally inadmissible at sentencing.
7. Criminal Law.
To determine whether defendant entered plea with actual understanding of nature of charges it is preferable for
district court to elicit from defendant either statement indicating that he understands elements of charged
offense or admission that he committed the offense in accepting plea.
112 Nev. 1473, 1475 (1996) State v. Gomes
standing of nature of charges it is preferable for district court to elicit from defendant either statement indicating that he understands
elements of charged offense or admission that he committed the offense in accepting plea. Supreme court should review entire record
and the totality of circumstances of case, not just technical sufficiency of plea canvass.
8. Criminal Law.
In accepting Alford plea or plea of nolo contendere, district court must determine not only that there is factual basis for plea but
must further inquire into and seek to resolve conflict between waiver of trial and claim of innocence.
9. Criminal Law.
There was adequate factual basis to accept defendant's plea of nolo contendere to sexual assault where prosecutor informed court
that victim would testify to numerous sexual assaults by defendant, and there was sufficient basis to resolve conflict between nolo
contendere plea and claim of innocence where defense told court that defendant preferred to plead guilty to one count rather than risk
going to trial and being convicted of multiple counts.
10. Rape.
Sexual assault victim's uncorroborated testimony is sufficient evidence to convict.
11. Criminal Law.
Defendant was informed of nature of charge against him, and his nolo contendere plea was knowing and voluntary where district
court asked him whether he understood charge against him at his arraignment and he answered yes and written plea agreement that
defendant signed set forth statutory definition of charge against him.
OPINION
Per Curiam:
The district court granted post-conviction habeas relief to respondent Donald Fred Gomes and set aside his guilty plea and judgment of
conviction. The court found that Gomes had intended to enter a plea of nolo contendere but that a plea pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), was entered instead. The court concluded that the plea was therefore not voluntary and knowing and should be
set aside.
We hold that a plea entered pursuant to Alford is a plea of nolo contendere and reverse.
FACTS
On January 20, 1993, Gomes signed a plea bargain agreement in which he pleaded guilty to one count of sexual assault. The agreement
stated that Gomes denied his guilt but entered his plea pursuant to Alford and agreed that the State could establish at trial that he had forced
the daughter of the woman he lived with
1
to engage in multiple sexual acts with him since she was
twelve.
__________

1
The agreement called the girl Gomes' stepdaughter, but apparently Gomes and the girl's mother were never
married.
112 Nev. 1473, 1476 (1996) State v. Gomes
engage in multiple sexual acts with him since she was twelve. The agreement repeatedly
referred to the plea as a guilty plea.
The written agreement was filed in open court during a hearing the same day, January 20,
1993. The district court asked Gomes, Do you understand the charge against you? He
answered, Yes. The court asked, What is your plea to that charge? He answered, Nolo
contendere. Defense counsel, Henry R. Gordon, told the court that we are agreeable to the
terms of the Plea Bargain Agreement; however, I want to make sure one thing is clear on the
record: He is pleading nolo contendere with the ramifications for civil purposes because
they're civil implications involved in this case.
The prosecutor then said, Your Honor, the correct language is he is entering a no contest
plea. The Court may treat that and accept that as a guilty plea pursuant to the Alford
decision. Defense counsel said again that Gomes' plea was nolo contendere even though the
written agreement described the plea as guilty. He said that there might be some
inconsistencies with the plea agreement. The prosecutor responded: There is no
inconsistency. The Court and the law provides that this is treated as a guilty plea.
The district court asked for the factual basis for the plea, and the prosecutor said that
Gomes' stepdaughter would testify that Gomes had forced her to have sex with him since
she was twelve. The court asked Gomes if he knew the possible penalty he faced, and Gomes
said, five to life. Gomes answered yes when asked if he had discussed the agreement with
his attorney. When the court asked Gomes if he had read it, Gomes' counsel spoke: In fact,
Your Honor, may I make the record that he's discussed it not only with me on at least three
prior occasions but with two additional attorneys. (Gomes was not in custody while his
lawyer negotiated the plea agreement with prosecutors.) When asked if he had questions of
the court regarding the agreement, Gomes said no. The court then told Gomes that he was
waiving certain constitutional rights by entering his plea: the right to a trial where the State
would have to prove his guilt beyond a reasonable doubt, the right to confront witnesses
against him, the right to subpoena his own witnesses, the right to either testify or not, the right
to an attorney, and the right to appeal. Gomes said he understood.
Defense counsel told the district court that Gomes was entering a plea of nolo contendere
to avoid facing multiple counts and possible greater punishment. The court then said, I'm
going to accept your plea of nolo contendere.
A sentencing hearing occurred on March 24, 1993. Defense counsel moved for a
continuance because Gomes had just been served by the victim's mother with a complaint
for civil claims based on the sexual assaults and needed time to get a lawyer to represent
him.
112 Nev. 1473, 1477 (1996) State v. Gomes
served by the victim's mother with a complaint for civil claims based on the sexual assaults
and needed time to get a lawyer to represent him. The sentencing had been continued twice
before, and the district court denied the motion. The court then said,
January 20th, 1993, this court accepted your guilty plea pursuant to North Carolina
versus Alford to the crime sexual assault.
Mr. Gordon: That was a nolo contendere, for the record. I wanted to clear that up
when I get my turn to be heard. We were very, very sure we wanted to enter that,
because of what we suspected she would do, she did. It was a nolo contendere. It wasn't
an Alford.
The Law Clerk: The court file reveals a nolo plea.
. . . .
The Court: That is correct. The court accepted a nolo contendere plea.
The district court sentenced Gomes to life in prison. A judgment of conviction, prepared
by the District Attorney's office, was entered on May 7, 1993. It stated that the district court
adjudged Gomes guilty of sexual assault by reason of his plea of guilty and sentenced him
to life in prison with the possibility of parole.
Judgment was entered against Gomes in the civil suit on June 14, 1993. The written
judgment stated that an entry of default was filed in the case because Gomes failed to answer
the complaint; nevertheless, a trial was held on June 8, 1993. Gomes did not attend despite
receiving notice. The court awarded a total judgment of $1,026,800.
On May 3, 1994, Gomes filed a petition for a writ of habeas corpus, alleging among other
things that his counsel had been ineffective and that he had not been aware of the
consequences of his plea. The district court held an evidentiary hearing on March 24, 1995.
The only witness to testify was Gomes' former attorney, Gordon, who was called by the State.
Gordon said that Gomes did not really care about defending against the civil claims, even
though Gordon urged him to avoid a default, because Gomes had already got rid of his
assets.
At a hearing on May 5, 1995, the district court stated that
it was clear in the transcript that Mr. Gomes was going to plead nolo contendere to the
charge of sexual assault, and that during thethis was changed right in mid stream; an
Alford plea, pursuant to Alford versus North Carolina, was entered, not a nolo
contendere plea.
There is a difference between those two pleas, and I don't believeit appears from
the record that the defendant was advised and both attorneys agreed that these two
types of pleas were distinctly the same, when, in fact, they are not.
112 Nev. 1473, 1478 (1996) State v. Gomes
advised and both attorneys agreed that these two types of pleas were distinctly the
same, when, in fact, they are not.
Therefore, the Court is going to set aside the defendant's plea of guilty and grant the
writ of habeas corpus and give the petitioner a new trial.
On May 10, 1995, the court entered an order consistent with this ruling, finding that
Gomes did not understand the consequences of his plea, and the plea was not entered
knowingly and voluntarily and that but for counsel's deficient performance . . . a reasonable
probability exist[s] that the defendant would not have pleaded guilty and would have insisted
on a trial.
DISCUSSION
I. The district court erred in setting aside respondent's plea because of questions over
whether it was a plea of nolo contendere or an Alford plea.
On appeal from a district court's determination of a plea's validity, this court presumes that
the lower court correctly assessed the validity and will not reverse absent a clear showing of
an abuse of discretion. Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986).
[Headnote 1]
Although there was a discrepancy between the written plea agreement and the plea made
by Gomes at the arraignment, Gomes' counsel made clear that his client's plea was one of
nolo contendere. At the end of the arraignment the district court said it was going to accept
[Gomes'] plea of nolo contendere. At the sentencing, the court stated that it had accepted a
nolo contendere plea. The incorrect reference to a guilty plea in the written judgment in the
criminal case is attributable to the prosecutor and the district court, not Gomes' counsel. But
that error was of no consequence since nothing in the record indicates that the district court in
the civil action against Gomes considered his plea in the criminal case to have been a guilty
plea and used that plea as the basis for the civil judgment against him. The record shows that
he lost the civil action because he declined to defend it.
Thus, after originally accepting Gomes' plea as one of nolo contendere, the district court
granted him habeas relief two years later without discussing the foregoing facts and
explaining why it now considered the plea to have been an Alford plea. We conclude that the
district court erred.
[Headnote 2]
Even assuming that Gomes' counsel performed deficiently and allowed an Alford plea to
be entered instead of a nolo contendere plea, the district court also failed to explain how
a plea of nolo contendere and an Alford plea differ and how that difference likely would
have prompted Gomes to insist on a trial rather than accept the State's plea bargain.
112 Nev. 1473, 1479 (1996) State v. Gomes
allowed an Alford plea to be entered instead of a nolo contendere plea, the district court also
failed to explain how a plea of nolo contendere and an Alford plea differ and how that
difference likely would have prompted Gomes to insist on a trial rather than accept the State's
plea bargain. Nor has Gomes provided such an explanation to this court.
To state a claim of ineffective assistance of counsel sufficient to invalidate a judgment of
conviction based on a guilty plea, a defendant must demonstrate a reasonable probability that,
but for counsel's errors, he would not have pled guilty and would have insisted on going to
trial. State v. Langarica, 107 Nev. 932, 933, 822 P.2d 1110, 1111 (1991), cert. denied, 506
U.S. 924 (1992). It is clear that Gomes' decision not to go to trial would not have changed
regardless of which kind of plea was entered because the consequences of the two pleas are
the same in a criminal case. Furthermore, they are the same in a civil case as well.
[Headnote 3]
A plea of nolo contendere does not expressly admit guilt but nevertheless authorizes a
court to treat the defendant as if he or she were guilty. North Carolina v. Alford, 400 U.S. 25,
35 (1970). The United States Supreme Court could not perceive any material difference in
practical consequences between pleading guilty while protesting one's innocence, as was the
case in Alford, and pleading nolo contendere. Id. at 37. A criminal defendant in Nevada has
only four possible pleas: not guilty, guilty, guilty but mentally ill, or nolo contendere. NRS
174.035(1). No provision is made for a fifth type of plea under Alford, nor would it make any
sense to so provide. We expressly hold that whenever a defendant maintains his or her
innocence but pleads guilty pursuant to Alford, the plea constitutes one of nolo contendere.
2

Therefore, the district court erred in concluding that Gomes entered an Alford plea and in
concluding that entry of an Alford plea was a basis for granting habeas relief.
__________

2
If an Alford plea were treated as a species of guilty plea, such a plea could be used against a defendant in a
civil proceeding while a nolo contendere plea could not. See NRS 48.125. This inconsistency, resulting simply
from the technical term employed by a defendant in pleading, would be unreasonable, inequitable, and probably
unconstitutional.
Even if an Alford plea could have been used against Gomes in the civil action, the factual record repels a claim
by Gomes that he would have chosen to go to trial in the criminal case rather than allow an Alford plea to be
entered against him. Gomes did not even bother to defend himself in the civil action, apparently because he felt
he had rendered his assets judgment-proof.
112 Nev. 1473, 1480 (1996) State v. Gomes
II. The introduction of polygraph evidence at the sentencing does not constitute grounds for
habeas relief.
[Headnote 4]
Gomes contends that the introduction of polygraph evidence at his sentencing constitutes
grounds for granting him habeas relief. Gomes has waived this claim because a challenge to a
sentence should be raised on direct appeal and otherwise is considered waived in subsequent
proceedings. Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994).
[Headnotes 5, 6]
This claim is also of no avail on its merits. Polygraph results are generally inadmissible at
sentencing. See Buschauer v. State, 106 Nev. 890, 892, 804 P.2d 1046, 1047 (1990). The
instant case differs from Buschauer in that Gomes, not the State, first raised the evidence of
polygraph tests and Gomes agreed to allow evidence of both his and the victim's tests to be
received. The district court erred in admitting evidence of the polygraph tests absent a written
stipulation, but the error is not reversible because it was invited by Gomes. Ybarra v. State,
103 Nev. 8, 16, 731 P.2d 353, 358 (1987) (no reversible error where error was invited and no
objection was made); Milligan v. State, 101 Nev. 627, 637, 708 P.2d 289, 296 (1985) (error
invited by defendant cannot be asserted as grounds for reversal) cert. denied, 479 U.S. 870
(1986).
3

III. The record shows that respondent's plea was valid
Gomes contends that his plea was not knowing and voluntary because his counsel was
ineffective in several ways. Our scrutiny of the record reveals that this contention lacks merit.
Gomes also contends that the evidence that he committed sexual assault was not strong
enough to allow the district court to accept his plea. We conclude that the district court
received sufficient evidence to support Gomes' plea and that the record as a whole shows that
the plea was valid.
[Headnotes 7, 8]
In order to be constitutionally valid, a plea of guilty or nolo contendere must have been
knowingly and voluntarily entered. Love v. State, 99 Nev. 147, 147, 659 P.2d 876, 877
(1983). A defendant must enter a plea with real notice of the nature of the charge against him
or her. Bryant v. State, 102 Nev. 268, 270, 721 P.2d 364, 366 (1986). It is preferable for the
district court to elicit from the defendant either a statement indicating that he or she
understands the elements of the charged offense or an admission that he or she
committed the offense.
__________

3
Even if reversible error had occurred in this regard, it would have constituted grounds only for setting aside
Gomes' sentence, not his conviction.
112 Nev. 1473, 1481 (1996) State v. Gomes
elicit from the defendant either a statement indicating that he or she understands the elements
of the charged offense or an admission that he or she committed the offense. Id. However,
this court should review the entire record and look to the totality of the circumstances of the
case, not just the technical sufficiency of the plea canvass, to determine whether a defendant
entered a plea with actual understanding of the nature of the charges. Id. at 271, 721 P.2d at
367. In accepting an Alford plea or plea of nolo contendere, a district court must determine
not only that there is a factual basis for the plea but must further inquire into and seek to
resolve the conflict between the waiver of trial and the claim of innocence. Tiger v. State, 98
Nev. 555, 558, 654 P.2d 1031, 1033 (1982) (citing Alford, 400 U.S. at 38 n.10).
[Headnotes 9, 10]
We conclude that the district court had an adequate factual basis to accept Gomes' plea in
that the prosecutor informed the court that the victim would testify to numerous sexual
assaults by Gomes. Nothing in the record indicates that the victim was not ready and able to
so testify. A sexual assault victim's uncorroborated testimony is sufficient evidence to
convict. Hutchins v. State, 110 Nev. 103, 109, 867 P.2d 1136, 1140 (1994). The court also
had a sufficient basis to resolve the conflict between the nolo contendere plea and the claim
of innocence: defense counsel told the court that Gomes preferred to plead guilty to one count
rather than risk going to trial and being convicted of multiple counts of sexual assault.
[Headnote 11]
However, Gomes did not make factual statements to the court which constituted an
admission. The issue then is whether Gomes understood the charge against him. When the
district court asked him that question at his arraignment, he answered yes. And the written
plea agreement which Gomes signed sets forth the statutory definition of sexual assault.
This court held that a guilty plea was valid where the defendant signed a plea bargain
memorandum that stated the elements of the charged offense, the district court read the crime
as charged in the information to the defendant and asked him if he understood the charge, and
the defendant said he did. Iverson v. State, 107 Nev. 94, 99, 807 P.2d 1372, 1375 (1991).
Given that the written plea agreement which Gomes signed sets forth the elements of sexual
assault and that Gomes told the court he understood the charge, we conclude that the record
as a whole indicates that he was informed of the nature of the charge against him and that his
plea was knowing and voluntary.
112 Nev. 1473, 1482 (1996) State v. Gomes
CONCLUSION
The district court erred in setting aside respondent's guilty plea and judgment of
conviction. We therefore reverse the district court's order.
____________
112 Nev. 1482, 1482 (1996) Zebe v. State of Nevada, Co. of Lander
KARL B. ZEBE, Petitioner, v. THE STATE OF NEVADA, COUNTY OF LANDER,
Respondent.
No. 27710
December 20, 1996 929 P.2d 927
Proper person petition for a writ of prohibition seeking an order from this court directing
the district court to cease prosecuting petitioner.
Defendant sought writ of prohibition directing district court in one county to cease
prosecution, on grounds that plea agreement entered into between defendant and another
county barred prosecution. The supreme court, Steffen, C. J., held that county was not bound
by plea agreement to which it did not consent.
Petition denied.
Karl B. Zebe, In Proper Person, Carson City, for Petitioner.
Patricia D. Cafferata, District Attorney, Lander County, for Respondent.
1. Criminal Law.
One county could not bind another county to terms of plea agreement without second county's express consent.
2. Criminal Law.
For one county to be bound by plea agreement entered into by second county and defendant, first county's consent to be bound
must be expressly stated as term of plea agreement.
OPINION
This proper person petition seeks a writ of prohibition directing the Sixth Judicial District Court in Lander County to cease prosecuting
petitioner.
1
Petitioner contends that because the state, represented by the Nye County District
Attorney, agreed, as an express condition of a plea agreement, not to prosecute
petitioner, the Lander County District Attorney may not prosecute him on charges arising
from the same conduct.
__________

1
NRS 34.320 provides that a writ of prohibition may issue to arrest the proceedings of any tribunal,
corporation, board or person exercising judicial functions, when such proceedings are without or in excess of the
represented by the Nye County District Attorney, agreed, as an express condition of a plea
agreement, not to prosecute petitioner, the Lander County District Attorney may not
prosecute him on charges arising from the same conduct.
Petitioner engaged in criminal conduct which occurred in two counties: Nye County and
Lander County. On December 14, 1994, in Austin in Lander County, petitioner stole two
vehicles, a blue Mercury Tracer and a Dodge Minivan. He also broke into a house and stole
some tools. He then drove into Nye County in the Dodge, and ended up in a bar just over the
county line. After Nye County sheriff's deputies apprehended petitioner, handcuffed him and
placed him in the sheriff's patrol car, petitioner kicked his way out of the car, stole another
car, a 1989 Mercury, and fled. He was apprehended after he crashed the 1989 Mercury into a
patrol car.
Petitioner was charged in Nye County with grand larceny of the 1989 Mercury, possession
of a stolen vehicle for the Dodge Minivan, assault with a deadly weapon for crashing the
1989 Mercury, burglary for entering the 1989 Mercury, escape for fleeing the custody of the
Nye County Sheriff and possession of an instrument with burglarious intent for possessing
the tools. Petitioner entered a plea of guilty in Nye County to one count of grand larceny and
one count of escape. The other charges were dismissed. As an express provision of the plea,
the state agreed as follows:
[T]he State will not pursue or file any other criminal charges based upon, or arising out
of, the facts and circumstances upon which said pending charges are based, or the facts
and circumstances upon which the complaint is founded.
Subsequently, the district attorney in Lander County filed charges against petitioner:
burglary for entering the house in Austin, petty larceny for stealing two hammers and a
baseball cap, grand larceny of the Dodge Minivan, burglary for entering the Dodge Minivan,
grand larceny of the blue Mercury Tracer and burglary for entering the Tracer. Lander County
also charged petitioner with being a habitual criminal.
Petitioner sought specific enforcement of the plea agreement in the Sixth Judicial District
Court for Lander County, claiming that the agreement provided that the state would not file
any charges based on the events of December 14, 1994. The district court denied petitioner's
motion.
__________
jurisdiction of the tribunal, corporation, board or person. Petitioner has named as respondents in this petition
the State of Nevada and the County of Lander. A writ of prohibition may not issue against these entities.
Petitioner should properly have named the Sixth Judicial District Court and the Lander County District Attorney.
denied petitioner's motion. Petitioner then filed the instant petition in this court asserting that
the state should be precluded from prosecuting him in Lander County as it had already
entered the plea with him in Nye County.
Because it appeared that petitioner had set forth issues of arguable merit, this court ordered
an answer from the real party in interest, the Lander County District Attorney.
The Lander County District Attorney contends that the plea entered in Nye County has no
effect on Lander County's right to prosecute petitioner because Lander County did not enter
into the plea agreement with petitioner and Lander County is a different jurisdiction from Nye
County. Petitioner contends that the state is the state, whether represented by the district
attorney of Lander County or of Nye County. He argues that the state entered into the plea
agreement, agreed to no further prosecution, and therefore, may not prosecute him in Lander
County.
[Headnote 1]
We conclude that one county may not bind another county of Nevada to the terms of a plea
agreement without the second county's express consent. Accordingly, this petition must be
denied.
2

Nevada law provides that each county, acting through its district attorney, has specific
jurisdiction over acts conducted within its borders. See Southwest Gas v. District Court, 85
Nev. 40, 42, 449 P.2d 259, 260 (1969) (holding that, pursuant to NRS 252.110, Lander
County District Attorney has no authority to represent other counties). For purposes of
prosecuting a single criminal act which crosses county lines, venue will lie in either county.
See, e.g., NRS 171.030.
3
Here, in contrast, petitioner completed certain criminal acts in Nye
County and other distinct criminal acts in Lander County. Lander County proposed to
prosecute petitioner only for the conduct which occurred exclusively in Lander County.
4
These statutes reflect a legislative assumption that each county will have independent
jurisdiction over a criminal offender for conduct occurring in that county.
__________

2
We note that petitioner only sought specific performance of the plea agreement in Lander County; it does not
appear that he has moved to withdraw his plea in Nye County. Because this question is not before us, we do not
address it, and we express no opinion as to the merits of such a motion were petitioner to file one.

3
When a public offense is committed in part in one county and in part in another or the acts or effects
thereof constituting or requisite to the consummation of the offense occur in two or more counties, the
venue is in either county.

4
We note that petitioner's double jeopardy rights are not implicated in this situation because Lander County
sought to prosecute conduct which had occurred only in Lander County and which involved different victims,
assumption that each county will have independent jurisdiction over a criminal offender for
conduct occurring in that county.
[Headnote 2]
Furthermore, in cases such as United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985),
the federal courts have held that U.S. attorneys are not bound by each other's plea agreements
unless it affirmatively appears from the record that the agreement contemplates a broader
restriction. The Second Circuit allows an affirmative appearance to bind other jurisdictions
where inferable from the plea negotiations or statements at the plea colloquy. See United
States v. Russo, 801 F.2d 624, 626 (2d Cir. 1986). In the interests of clarity, we conclude that,
in Nevada, the second county's consent to be bound must be expressly stated as a term of the
plea agreement. Here, no express consent by Lander County to be bound to the terms of the
agreement entered into by Nye County appears on the face of the plea agreement.
A writ of prohibition may issue to arrest the proceedings of a district court exercising its
judicial functions, when such proceedings are in excess of the jurisdiction of the district
court. NRS 34.320. No such excess of jurisdiction has been shown here.
We conclude that the Nye County District Attorney had no authority to bind the Lander
County District Attorney to the terms of the plea agreement, without first obtaining Lander
County's consent. The plea agreement does not reflect Lander County's express consent to be
bound by its terms; therefore, Lander County is not bound by the plea agreement and is free
to prosecute petitioner. Petitioner has not demonstrated that he is entitled to relief.
5

Young, Shearing and Rose, JJ., concur.
I see this case in a different light. As I see it, the District Attorney of Nye County had the
power to charge and negotiate only the crimes that were committed in Nye County. Zebe
pleaded guilty to escape, a crime that was committed in Nye County, and to grand larceny of
a 1989 Mercury, a crime that was subject to prosecution in either Nye or Lander County.
__________
different crimes and different elements of proof. Blockburger v. United States, 284 U.S. 299 (1932). Further,
Nye County had no authority to bind Lander County to the terms of its plea agreement with petitioner.

5
Although petitioner has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered petitioner's proper person documents, including the proper
person petitioner's addendum to the state's answer to writ of prohibition received December 21, 1995.
subject to prosecution in either Nye or Lander County.
1
The plea bargain negotiated by the
Nye County District Attorney immunizes Zebe against criminal charges available to that
District Attorney (that is to say, criminal charges arising in that officer's venue) that are
based upon or arising out of the facts and circumstances upon which said pending
charges are based. All of the pending charges that are subject to the plea bargain
necessarily relate to crimes committed in Nye County or, like the larceny charge, were subject
to prosecution in either county.
I see nothing in the plea bargain agreement that would in any way hamper the Lander
County District Attorney in prosecuting Zebe for the crimes committed in Lander County,
with the exception of larceny of the 1989 Mercury, a crime of which he has already been
convicted. The agreement by the Nye County District Attorney can only relate to the pending
charges in Nye County and to facts and circumstances upon which the [Nye County]
complaint is founded. Thus, the Nye County District Attorney merely agreed not to pursue
any of the charges that had been pending in Nye County (possession of a stolen vehicle,
assault with a deadly weapon, burglary, flight, and possession of burglary tools, all crimes
committed within Nye County). This agreement is not binding on and has no effect on the
Lander County District Attorney. The District Attorney of Nye County had no intention or
power to bargain prosecution of crimes that were committed in Lander County. The only
exception to this is, as I have stated, prosecution for the Mercury larceny, a crime for which
Zebe has already been held liable.
It does not make sense for the majority to say that one county may not bind another
county of Nevada to the terms of a plea agreement. The crimes committed here are crimes
against the State. The counties themselves play no part in this prosecution; and counties, as
governmental subdivisions, have no right or interest in trying to bind or not bind each other
to criminal plea agreements.
This is a very simple case. The Nye County District Attorney can prosecute crimes, on
behalf of the State, that were committed in Nye County. The Lander County District Attorney
can prosecute crimes that were committed in Lander Countywith the exception of the
Mercury larceny, a crime that has already been brought to conviction in Nye County. Zebe
would be entitled to a writ of prohibition prohibiting the Lander County District Attorney
from prosecuting him for the Mercury larceny; but since he is not being prosecuted in
Lander County for this crime, he is not entitled to a writ of prohibition.
__________

1
NRS 171.060 provides that [w]hen property taken in one county by . . . larceny . . ., has been brought into
another, the venue of the offense is in either county. . . .
not being prosecuted in Lander County for this crime, he is not entitled to a writ of
prohibition.
____________
112 Nev. 1487, 1487 (1996) Bally's Grand Hotel v. Reeves
BALLY'S GRAND HOTEL & CASINO, Appellant, v. SUSAN REEVES, Respondent.
No. 25600
December 20, 1996 929 P.2d 936
Appeal from an order of the district court granting a petition for judicial review and
reversing the decision of the appeals officer in an industrial injury action. Eighth Judicial
District Court, Clark County; John S. McGroarty, Judge.
The supreme court held that district court's order was final and appealable, despite
inclusion of statement ordering matter remanded for calculation of benefits.
Jurisdiction established.
Schreck, Jones, Bernhard, Woloson & Godfrey and F. Edward Mulholland, II, Las Vegas,
for Appellant.
Pearson & Patton and Douglas M. Rowan, Las Vegas, for Respondent.
Nevada Supreme Court has consistently looked past labels in interpreting rule governing appealable determinations in civil
actions, and has instead taken functional view of finality, which seeks to further the rule's main objective of promoting judicial
economy by avoiding the specter of piecemeal appellate review. NRAP 3A(b)(1).
District court order, granting petition for judicial review and reversing appeals officer's denial of benefits to claimant in industrial
injury action, was final and appealable, despite language ordering matter remanded to self-insured administrator for calculation of
benefits. NRAP 3A(b)(1).
OPINION
Per Curiam:
Respondent Susan Reeves was working for appellant Bally's Grand Hotel when she was involved in a non-industrial car accident in
July of 1987. She was then involved in another car accident in September of 1988 when her car was hit by a fellow employee's car in
the Bally's parking lot.
employee's car in the Bally's parking lot. Thus, this second accident was arguably an
industrial injury.
Eight months after the date of the second car accident, Reeves filled out and filed a formal
Employee Accident Report with Bally's. Bally's denied the claim on the grounds that it was
untimely filed. The hearing officer affirmed Bally's denial of the claim, and Reeves appealed.
The appeals officer also upheld Bally's denial of the claim, holding that Reeves had filed an
untimely claim, that she had not demonstrated any excuse for the late filing, and that she
could not demonstrate distinct injuries resulting from the second accident as compared to the
first accident. Reeves filed a petition for judicial review in the district court.
The district court reversed the decisions of the administrative officers and ruled that the
appeals officer's decision was not supported by substantial evidence. The district court
concluded that Reeves was entitled to benefits. Accordingly, the district court set aside the
appeals officer's decision and stated that the matter should be remanded to Bally's self-insurer
for calculation of benefits.
Because the written judgment states that the matter should be remanded to the self-insured
administrator for further action, this court issued an order directing Bally's to show cause why
the appeal should not be dismissed for lack of jurisdiction. See Clark County Liquor v. Clark,
102 Nev. 654, 730 P.2d 443 (1986) (holding that no appeal lies from an order remanding a
case to an administrative body for further proceedings) and State, Taxicab Authority v.
Greenspun, 109 Nev. 1022, 862 P.2d 423 (1993) (rejecting adoption of the collateral order
doctrine for Nevada).
[Headnote 1]
Bally's argues that the use of the word remand or remanded in this case should not
automatically compel a conclusion that the order of the district court is not a final, appealable
judgment. We agree. Clark County Liquor does not stand for the proposition that every order
remanding a matter to an administrative body is by definition not a final judgment for
purposes of appeal and does not preclude an appeal from a proper final judgment. This court
has consistently looked past labels in interpreting NRAP 3A(b)(1), and has instead taken a
functional view of finality, which seeks to further the rule's main objective: promoting
judicial economy by avoiding the specter of piecemeal appellate review. Valley Bank of
Nevada v. Ginsburg, 110 Nev. 440, 444, 874 P.2d 729, 733 (1994). In Clark County Liquor,
this court noted that the order at issue remanded the action for further substantive action and
specifically ordered the production of discovery.
discovery. 102 Nev. at 657, 730 P.2d at 446. The order was clearly not a final judgment.
[Headnote 2]
In contrast, here, the single discrete issue before the district court on the petition for
judicial review was whether Reeves was entitled to benefits under the circumstances. The
administrative officers had all concluded that she was not; the district court concluded that
she was. The inclusion of the term remand in the order does not change the substantive
finality with regard to the issue actually presented to the district court. The district court's
order merely sent the case back for a calculation of the amount due Reeves pursuant to the
conclusion that she was entitled to benefits. The mere statement that the matter be remanded
for calculation of benefits does not render non-final the otherwise final determination that
those benefits are owed. The district court's order reversing the appeals officer's decision that
Reeves was entitled to benefits cannot be altered by any decision on remand calculating
benefits. Therefore, the order appealed from in this case is final and appealable.
We conclude that the order at issue in this case is, in substance, a final appealable order,
resolving all claims between all the parties.
1

____________
112 Nev. 1489, 1489 (1996) Locklin v. Duka
IRENE AND WILLIAM LOCKLIN, Appellants, v. LAUREN DUKA and BARDUL DUKA,
Respondents.
No. 28272
December 20, 1996 929 P.2d 930
Appeal from order terminating foreign guardianship. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Mother petitioned to terminate foreign guardianship of child. The district court terminated
foreign guardianship, and guardians, who were child's maternal grandparents, appealed. The
supreme court held that: (1) extraordinary circumstances sufficient to overcome parental
preference presumption are those circumstances that result in serious detriment to child, and
(2) relinquishment of child to maternal grandparents did not amount to abandonment, and
therefore, was not extraordinary circumstance overcoming parental preference
presumption.
__________

1
We have determined that oral argument would be of assistance in the disposition of this appeal. Accordingly,
the clerk of this court shall schedule this appeal for oral argument on the first available argument calendar.
Argument shall be limited to thirty (30) minutes.
to abandonment, and therefore, was not extraordinary circumstance overcoming parental
preference presumption.
Affirmed.
Crowell, Susich, Owen & Tackes and Sandra-Mae Pickens, Carson City, for Appellants.
Caryn R. Sternlicht, Carson City, for Respondents.
1. Infants.
District court enjoys broad discretionary powers in determining questions of child custody.
2. Infants.
Exercise of discretion in determining custody will not be disturbed unless it is abused.
Parental preference presumption must be overcome either by showing that parent is unfit or by showing of other extraordinary
circumstances. NRS 125.500(1).
Fact that child had lived with maternal grandparents for approximately nine years was not extraordinary circumstance sufficient
to overcome parental preference presumption, even though mother's contact with child was sporadic while mother was trying to
overcome drug addiction, where mother placed child with grandparents because she could not parent child properly and mother visited
child when she was able, sent gifts, kept in contact by telephone and letters, and, after she stabilized her life, moved to state to be close
to her daughter. NRS 125.500(1).
Extraordinary circumstance sufficient to overcome parental preference presumption is circumstance that results in serious
detriment to child. NRS 125.500(1).
Factors considered in determining whether parental preference presumption has been overcome include abandonment or persistent
neglect of child, likelihood that parental custody will harm child, unjustifiable extended absence of parental custody, continuing
neglect or abdication of parental responsibilities, provision of child's needs by persons other than parent over significant period of time,
existence of bonded relationship between child and nonparent, age of child during period when care is provided by nonparent, whether
child's well-being has been substantially enhanced under care of nonparent, parent's delay in seeking custody, demonstrated quality of
parent's commitment to rearing child, likely degree of stability and security in child's future with parent, extent to which child's right to
education would be impaired while in custody of parent, and any other circumstance that would substantially and adversely affect
child. NRS 125.500(1).
Best interest of child must be considered even after finding that extraordinary circumstances have overcome parental preference
presumption. NRS 125.500(1).
Mother did not abandon child by placing her in guardianship of maternal grandparents, and therefore, that action could not be
extraordinary circumstances sufficient to overcome parental preference presumption, where mother appointed grandparents as
guardians when her life started slipping downhill, moved out of state to live with her brother while she conquered her drug addition,
visited child when mother was financially able, sent gifts, kept in contact by telephone and letters, and moved back to state soon after
she stabilized her life in order to be close to her daughter.
OPINION
Per Curiam:
Appellants Irene and William Locklin challenge the district court's order terminating their guardianship of their granddaughter. They
contend that the district court erred in determining that insufficient extraordinary circumstances existed to overcome the parental
preference presumption. We disagree and affirm.
FACTS
Ralissa Rae Gibson was born on October 25, 1985 to respondents Lauren Duka and her then husband, Timothy Gibson. Lauren, having
planned the pregnancy that gave her Ralissa, practiced prenatal care by refraining from smoking, drinking alcohol, and the use of illicit
drugs. After her birth, Ralissa lived with her parents for about the first year of her life. Then Lauren's relationship with Timothy started to
deteriorate and she began using methamphetamine. During this time, Lauren took Ralissa to live with the child's maternal grandparents,
Irene and William Locklin.
In July of 1988, the Superior Court of California appointed the Locklins as Ralissa's guardians. Lauren testified that she did not object
to the guardianship because she was addicted to methamphetamine and was not capable of properly caring for Ralissa. She also testified
that she did not want Ralissa to end up in foster care.
After the Locklins obtained guardianship of Ralissa, Lauren's contact with Ralissa became infrequent and sporadic. Further, Lauren
provided no financial or emotional support to her daughter.
In November 1989, Lauren filed an Amended Petition for Removal of Guardian because the Locklins interfered with her visitation.
However, she did not follow through with that petition because she realized that her drug dependency made her an unfit parent.
In 1991, Lauren moved to Chicago to live with her brother and free herself from drug
dependency. She claims she entered a day-treatment program and that she has not used
methamphetamine since February 1991.
Shortly after Lauren's move to Chicago, the Locklins, along with Ralissa, moved from
California to Nevada. Lauren travelled from Chicago at her own expense to visit Ralissa.
Lauren also enjoyed time with Ralissa on three different occasions when the Locklins were
visiting Chicago.
While in Chicago, Lauren met Bardul Duka. Bardul and Lauren were married in January
1993. In February 1993, they moved to Nevada so that Lauren could be close to Ralissa.
Lauren visited Ralissa frequently. She dropped by the Locklins pretty much every day
before work.
Unfortunately, it was not long before Bardul and Lauren began having marital problems.
In April 1993, Lauren saw an eye doctor after Bardul struck her, and in a separate incident the
following year, Bardul was convicted of misdemeanor spousal battery. Ralissa was not
present at either incident. Bardul completed anger-control classes, and the district court found
that Lauren and Bardul benefitted from the counselling and the domestic violence is not
likely to occur.
On January 17, 1995, Lauren filed a Petition to Dissolve Foreign Guardianship, or in the
alternative, a Petition for Custody and Visitation which the Locklins opposed. After Lauren
filed the petition, Mrs. Locklin instructed Ralissa's school not to release Ralissa to Lauren.
Lauren's messages were often not returned and visitation arrangements were made through
Ralissa.
Thereafter, Lauren filed a Motion for Temporary Visitation which resulted in a court order
granting Lauren visitation every other weekend and one evening each week. The district court
also ordered Lauren to pay $100 per month in child support. Lauren made all of the payments
and exercised every visitation.
At the hearing on the Petition to Dissolve Foreign Guardianship, Lauren was found to be a
fit parent by the district court based on the testimony of Dr. Araza, the psychologist appointed
by the parties; Valerie Cooney, the court-appointed guardian ad litem; and the Locklins. Dr.
Araza's evaluation of Lauren showed no indications of depression, anxiety, or serious
psychological disturbance.
Mrs. Locklin had informed Dr. Araza that she would prefer to have no further contact
with her daughter, Ms. Duka, and that she would prefer to be able to raise Ralissa without
Ms. Duka's involvement. However, at the hearing, Mrs. Locklin testified that when she made
those statements she was upset, and did not mean them. Lauren testified that she hoped the
Locklins would remain closely involved with Ralissa. Dr. Araza and Ms.
remain closely involved with Ralissa. Dr. Araza and Ms. Cooney testified that Mrs. Locklin's
attitude was not in Ralissa's best interests.
Dr. Araza's evaluation of Ralissa indicated that she was comfortable with, and related well
with her mother. He also indicated that Ralissa is slightly more secure with Mrs. Locklin,
explaining that this was reinforced by stable friends and routine. Dr. Araza recommended
placement with the Locklins, and stated that Lauren's reentry into Ralissa's life still carries
with it some lack of continuity. Dr. Araza also testified that Ralissa is capable of creating a
strong emotional bond with her mother over time, that Lauren presents no danger to Ralissa,
and that he could see no psychological injury that could not be overcome.
After hearing the evidence, the district court made the following findings of fact: (1)
Lauren exhibited concern for Ralissa over these years; (2) she never showed any intent, by her
acts, to abandon her daughter; (3) Lauren's desire to be with Ralissa was a prime motivating
factor for ending her drug dependency; (4) she had consistently been involved with Ralissa
since overcoming her habit; and (5) Lauren realistically took considerable time to create a
relationship with her daughter and did not selfishly seek her own interests.
The district court awarded custody to Lauren and visitation to the Locklins, but determined
that it was in the child's best interest to defer termination of the Locklin's guardianship until
the end of the school year. The court found Lauren to be a fit parent, and that sporadic contact
with Ralissa for a period of approximately four years, which ended about three years prior to
the hearing, was not a sufficiently inordinate circumstance to overcome the parental
presumption set forth in NRS 125.500(1).
DISCUSSION
[Headnotes 1, 2]
The district court enjoys broad discretionary powers in determining questions of child
custody. Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). The court's exercise
of discretion will not be disturbed unless abused. Id. However, this court must be satisfied
that the district court's decision was based upon appropriate reasons. Id.
[Headnote 3]
Under NRS 125.500(1),
Before the court makes an order awarding custody to any person other than a parent,
without the consent of the parents, it shall make a finding that an award of custody to a
parent would be detrimental to the child and the award to a non-parent is required to
serve the best interests of the child.
This statutory provision is known as the parental preference presumption. It must be
overcome either by a showing that the parent is unfit or other extraordinary circumstances.
Litz v. Bennum, 111 Nev. 35, 38, 888 P.2d 438, 440 (1995).
[Headnote 4]
In this case, the Locklins do not dispute that Lauren raised the parental preference
presumption, or that Lauren is currently a fit parent. The central issue is whether there are
sufficient extraordinary circumstances to overcome the presumption. In Litz, the mother
(Lisa) chose to sign consent forms naming her parents (the Bennums) as temporary guardians
of her one-year-old child (Johnny) while she was in custody for parole violation. Lisa testified
that she consented to the guardianship to prevent Johnny from being placed in foster care.
Litz, 111 Nev. at 36, 888 P.2d at 439. Lisa served six months in prison and six months in the
Restitution Center. She later remarried and stabilized her life, yet the Bennums refused to
allow Lisa overnight visits with Johnny. Four years after her release from prison, Lisa filed a
petition to dissolve the guardianship. This court determined that the district court erred in
refusing to dissolve the guardianship because Lisa was a fit parent who had continually been
an active part of her child's life, and that [t]he fact that the Bennums have had custody . . .
for an extended period of time does not amount to an extraordinary circumstance that could
overcome the parental preference doctrine. Id. at 38, 888 P.2d at 440-441.
In determining that extraordinary circumstances did not exist in Litz, we considered the
following factors: Johnny lived with his grandparents for an eight-year period; he was closely
bonded with his grandparents; he regarded his grandparents as his parental figures; he was
thriving with his grandparents; Lisa waited four years after being released from prison to seek
custody; and psychologist evaluations showed that should Johnny be returned to Lisa he
would cope and adjust. Id. at 37-38, 888 P.2d at 439-40.
This case is very similar to Litz with respect to the above factors. Ralissa lived with her
grandparents for approximately a nine-year period. She was thriving with her grandparents,
and desired to continue to live with them. Lauren waited two years after moving to Nevada
before seeking to dissolve the guardianship. Finally, Dr. Araza testified that the most
appropriate place for Ralissa was with Mrs. Locklin, but that Ralissa would adjust to living
with Lauren without lasting psychological injury.
In Litz, the only affirmative guidance given as to when the parental presumption may be
overcome was when it clearly appears that the child's welfare requires a change of custody.
Id. at 38, 888 P.2d at 440. Moreover, we noted that this court has emphasized that "the best
interest of the child is usually served by awarding his custody to a fit parent." Id.
emphasized that the best interest of the child is usually served by awarding his custody to a
fit parent. Id. (quoting McGlone v. McGlone, 86 Nev. 14, 17, 464 P.2d 27, 29 (1970)). We
now consider it advisable to provide further guidance concerning the factors our district
courts should evaluate in determining what circumstances are sufficiently extraordinary to
overcome the parental presumption.
In Maryland, exceptional circumstances are those where the child has experienced some
separation from the natural parent, the non-parent has provided for the child's emotional and
physical needs over a significant length of time, the child has formed a strong attachment to
the non-parent so that there is a possible emotional effect if custody is changed, and the child
is thriving under the current custody of the non-parent. Burrows v. Sanders, 635 A.2d 82, 85
(Md. Ct. Spec. App. 1994). Other Maryland courts consider the age of the child when a
non-parent becomes the care-giver, the period of time that elapsed before the parent sought to
obtain custody of the child, the quality (genuineness and intensity) of the parent's desire to
have the child, the nature and strength of the relationship between the child and the
non-parent custodian, and the likely stability and certainty of the child's future under the
parent's control and custody. See Ross v. Hoffman, 372 A.2d 582, 593 (Md. 1977).
In Wisconsin, examples of extraordinary circumstances are abandonment, persistent
neglect of parental responsibilities, extended disruption of parental custody, or other similar
extraordinary circumstances that would drastically affect the welfare of the child. In the
Matter of the Guardianship of Jenae K.S., 539 N.W.2d 104, 106 (Wis. Ct. App. 1995)
(citation omitted).
Under New York law, extraordinary circumstances are defined as fault or omission by the
parent seriously affecting the welfare of a child, the preservation of the child's freedom from
serious physical harm, illness or death, or the child's right to an education. Bennett v.
Jeffreys, 356 N.E.2d 277, 281 (N.Y. 1976). In both New York and Wisconsin, whether the
child's best interests are served by awarding custody to a third party is considered after a
finding of extraordinary circumstances. Jenae, 539 N.W. at 106; Bennett, 356 N.E.2d at 283.
[Headnotes 5, 6]
We are persuaded that a composite of the factors identified under the case law of the states
of Wisconsin, New York and Maryland would best provide our courts with a foundation for
determining when there are sufficiently compelling, or extraordinary circumstances to
overcome the parental presumption. We therefore hold that in Nevada, extraordinary
circumstances sufficient to overcome the parental preference presumption are those
circumstances which result in serious detriment to the child.
circumstances which result in serious detriment to the child. Factors which may be considered
in evaluating whether such extraordinary circumstances exist include: abandonment or
persistent neglect of the child by the parent; likelihood of serious physical or emotional harm
to the child if placed in the parent's custody; extended, unjustifiable absence of parental
custody; continuing neglect or abdication of parental responsibilities; provision of the child's
physical, emotional and other needs by persons other than the parent over a significant period
of time; the existence of a bonded relationship between the child and the non-parent
custodian sufficient to cause significant emotional harm to the child in the event of a change
in custody; the age of the child during the period when his or her care is provided by a
non-parent; the child's well-being has been substantially enhanced under the care of the
non-parent; the extent of the parent's delay in seeking to acquire custody of the child; the
demonstrated quality of the parent's commitment to raising the child; the likely degree of
stability and security in the child's future with the parent; the extent to which the child's right
to an education would be impaired while in the custody of the parent; and any other
circumstances that would substantially and adversely impact the welfare of the child.
The district court will have to evaluate any of the foregoing factors, or a combination
thereof, that may be present in the case before it, to determine whether there is sufficient
detriment to the welfare of the child to overcome the parental presumption. This holding is in
concordance with our views expressed in Litz.
[Headnote 7]
We also conclude, consistent with the law in New York and Wisconsin, that when
considering the two-part test set forth in NRS 125.500(1), the best interests of the child must
still be considered, even after a finding of extraordinary circumstances that overcome the
parental preference presumption.
[Headnote 8]
In applying these principles to the case at hand, the Locklins contend that Lauren
abandoned Ralissa because Lauren did not voluntarily place Ralissa with the Locklins as Lisa
did in Litzinstead Lauren essentially disappeared. The Locklins also contend that Lauren
persistently neglected Ralissa because, unlike Litz, Lauren did not keep in continuous contact
with Ralissa.
When considering how the guardianship was established, the district court found that
Lauren, to her credit, appointed the Locklins as guardians when her life started slipping
downhill. The finding was based upon Lauren's testimony that she could not recall exactly
how the guardianship transpired because of her drug addiction, but she knew she could
not properly parent Ralissa and that she did not want Ralissa to wind up in foster care.
recall exactly how the guardianship transpired because of her drug addiction, but she knew
she could not properly parent Ralissa and that she did not want Ralissa to wind up in foster
care. The weight and credibility to be given trial testimony is solely the province of the trier
of fact, and a district court's findings of fact will not be set aside unless clearly erroneous.
Washington v. State, 96 Nev. 305, 308, 608 P.2d 1101, 1103 (1980); see also Hermann Trust
v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 592 (1990). Our review of the
record revealed no basis for concluding that the district court erroneously found that Lauren's
testimony substantially supported the determination that Lauren did not abandon Ralissa.
Therefore, in this case, the manner in which the guardianship was established was not a
sufficiently extraordinary circumstance to overcome the parental preference presumption.
Next, the Locklins contend that Lauren did not keep in continuous contact with Ralissa;
whereas, Lisa Litz continually played an active role in Johnny's life. Litz, 111 Nev. at 38,
888 P.2d at 440. The evidence shows that Lauren moved to Chicago to live with her brother
while she conquered her drug addiction. It also shows that Lauren visited Ralissa when she
was financially able, sent gifts, and kept in contact with her by telephone and letters. Lauren
also claims that soon after she stabilized her life, she moved to Nevada to be close to her
daughter. Further, Lauren testified that when the Locklins took Ralissa to Pennsylvania for a
month each December, her visitation rights granted in California were denied because she
was unable to contact them.
There is ample evidence in the record to conclude that the district court, relying on the
above evidence, did not err in finding that Lauren exhibited concern for Ralissa during the
period of sporadic contact, and that Lauren never showed an intent to abandon Ralissa.
CONCLUSION
For the reasons discussed above, we conclude that the circumstances of this case are not
sufficiently extraordinary to overcome the parental preference presumption. Accordingly, we
affirm the district court's order terminating the foreign guardianship.
1

__________

1
We are unable to resist noting our fervent hope that rather than viewing this decision as a defeat, the Locklins
will perceive it as an opportunity to reassess all of the positive steps that their daughter, Lauren, has taken under
the most difficult of circumstances, and concentrate on re-embracing their daughter and their granddaughter,
Ralissa, in a bond of family love that will bring happiness to all. In today's society, to see our prodigal children
return from the brink of disaster to productive, honorable living is an experience to be cherished.
____________
112 Nev. 1498, 1498 (1996) Buhecker v. R.B. Petersen & Sons
VAL S. BUHECKER and TERRI L. BUHECKER, Appellants, v. R.B. PETERSEN & SONS
CONSTRUCTION CO., INC., and D. ANTHONY LEADER, Trustee of the D.
ANTHONY LEADER and ESTELLE LEADER REVOCABLE TRUST,
Respondents.
No. 26273
December 20, 1996 929 P.2d 937
Appeal from summary judgment in an action for equitable relief involving real property.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Vendors sued purchaser of real property and mortgagees seeking injunction against
vendors' eviction from property and declaration that deeds of trust held by mortgagees were
invalid. Mortgagees moved for summary judgment. The district court granted motion and
vendors appealed. The supreme court held that: (1) vendors were estopped from denying
validity of grant, bargain, sale deed which they conveyed to purchaser; (2) information
indicating that vendors were defrauded by purchaser could not be imputed to mortgagees; and
(3) vendors' acceptance of quitclaim deed from purchaser waived any claim they had to
vendor's lien.
Affirmed.
Eva Garcia-Mendoza, Las Vegas, for Appellants.
Bill C. Hammer, Ltd. and Bradley N. Boodt, Las Vegas; Gordon, Silver & Beesley, Donald
T. Polednak and Joseph S. Kistler, Las Vegas, for Respondents.
Photographs and documents which were not considered by trial court and were not made part of record were stricken from
appellate record.
In reviewing grant of summary judgment, supreme court accepts as true all evidence and reasonable inferences favorable to party
against whom summary judgment was entered. NRCP 56(c).
3. Deeds.
Vendors in possession of property were estopped from denying validity of grant, bargain, sale deed which they conveyed to
purchaser.
4. Mortgages.
Information contained within escrow documents that indicated that vendors were defrauded by purchaser who obtained two loans
secured by two deeds of trust on property could not be imputed to deed of trust lender through mortgage broker for purposes of
determining whether lender was bona fide encumbrancer for value in absence of any evidence that mortgage broker had access to
escrow documents, in proceeding wherein vendors sought declaration that deeds of trust were invalid.
5. Mortgages.
Information known by escrow agent that vendors were defrauded by purchaser could not be imputed to deed of trust lenders for
purposes of determining whether lenders were bona fide encumbrancers for value, where vendors gave purchaser grant, bargain, sale
deed without adequately securing their interest and lenders relied on recording records to advance funds in good faith to purchaser, in
proceeding wherein vendors sought declaration that deeds of trust were invalid.
6. Vendor and Purchaser.
Quitclaim deed which purchaser granted to vendors amounted to separate and distinct security interest and, thus, vendors'
acceptance of quitclaim deed effectively waived any claim they had to vendor's lien.
OPINION
1

Per Curiam:
[Headnote 1]
Val and Terri Buhecker (Buheckers) sold their house and the five acres of land upon which
the house sat to FLO Enterprises (FLO), a corporation whose sole shareholder is William
D'Orsay (D'Orsay), for $300,000.00. An escrow was opened with Land Title of Nevada, Inc.
(Land Title). The escrow instructions stated that the Buheckers had already received the
$300,000.00 purchase price outside of escrow, and that there was to be a $125,000.00 first
construction loan. After FLO agreed to give the Buheckers a quitclaim deed to protect their
interest, the Buheckers gave FLO a grant, bargain, sale deed which FLO promptly recorded.
FLO then used the property to secure a $125,000.00 first construction loan advanced by R.B.
Petersen & Sons (Petersen) through Executive Mortgage Co. (Executive) and secured by a
first deed of trust, as well as a $47,000.00 loan advanced by D. Anthony Leader, trustee of the
D. Anthony Leader and Estelle Leader Revocable Trust (Leader) and secured by a second
deed of trust.
FLO soon defaulted on both notes. In order to protect his interest, Leader began making
payments to Petersen on behalf of FLO; Leader then foreclosed on the property.
__________

1
In an order dated February 9, 1996, this court decided not to rule, until after we heard oral arguments, on the
motion to strike portions of appellants' opening brief with regard to the vendor's lien issue and evidence and
allegations that have not been made part of the record on appeal. We now conclude that the photographs of the
property and the photocopy of a State of Nevada Real Estate Commission record shall be stricken, since they
were not considered by the district court and have not been made part of the record. All references to Val
Buhecker's deposition and to Terri Buhecker's deposition shall also be disregarded, since the depositions have
not been made part of the record. Finally, we note that pursuant to an order dated August 23, 1994, the district
court properly certified its judgment as final. Accordingly, we deny respondents' motion to strike the vendor's
lien issue from appellants' opening brief.
interest, Leader began making payments to Petersen on behalf of FLO; Leader then foreclosed
on the property. Because the Buheckers had never vacated the property, Leader began
eviction proceedings. The Buheckers then sued Petersen, Leader, and D'Orsay, seeking an
injunction against the eviction proceedings as well as a declaration that the Petersen and
Leader deeds of trust were invalid. Petersen and Leader both filed motions for summary
judgment. Concluding that both Petersen and Leader were bona fide encumbrancers for value,
the district court granted the motions for summary judgment and ordered the Buheckers'
quitclaim deed cancelled. The Buheckers appeal.
[Headnote 2]
Summary judgment is appropriate when there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law. NRCP 56(c). In reviewing
a grant of summary judgment, this court accepts as true all evidence and reasonable
inferences favorable to the party against whom summary judgment was entered. Busch v.
Flangas, 108 Nev. 821, 823, 837 P.2d 438, 439 (1992). We conclude that because no material
facts are in dispute, summary judgment is proper.
[Headnote 3]
Nevada is a race notice state. See NRS 111.320; NRS 111.325. The Buheckers contend
that neither Petersen nor Leader were bona fide purchasers for value, since the Buheckers'
actual possession of the property provided Petersen and Leader with constructive notice of
their (Buheckers') interest in the property. In Brophy M. Co. v. B. & D. M. Co., 15 Nev. 101,
113 (1880), we recognized that possession of land by a vendor will not impart notice to a
purchaser since a party remaining in possession is estopped from impeaching or contradicting
his own deed, or denying that he granted the premises which his deed purports to convey.
Since the Buheckers conveyed their interest to FLO through a grant, bargain, sale deed, we
conclude that the Buheckers are estopped from denying the validity of the deed they
conveyed.
[Headnote 4]
We also conclude that neither the information contained within the escrow documents nor
the information known to the escrow agent should be imputed to Petersen through Executive.
With regard to the information contained within the escrow documents, there is no evidence
in the record showing that Executive had access to the escrow documents. However, even if it
did, the escrow instructions specifically stated that the Buheckers had already received
$300,000.00 outside of escrow. For these reasons we conclude Executive had no knowledge
of the fraud that could be imputed to Petersen.
sons we conclude Executive had no knowledge of the fraud that could be imputed to
Petersen.
[Headnote 5]
With regard to the information known to the escrow agent, we conclude that it would be
unfair to impute to Petersen constructive notice of the fraud. Even though we have recognized
that a mortgage broker is an agent of the lender, Young v. Nevada Title Co., 103 Nev. 436,
439, 744 P.2d 902, 903 (1987), we also note that this is an action in equity, and equity
considers that done which should have been done. Daly v. Lahontan Mines Co., 39 Nev. 14,
158 P. 285 (1915). Even though the record clearly shows that the Buheckers were defrauded
by D'Orsay and FLO, it is clear that both Petersen and Leader were innocent third party
lenders. In giving FLO a grant, bargain, sale deed without adequately securing their interest,
the Buheckers ran the risk that FLO would record the deed and encumber the property.
Petersen and Leader, relying on the recording records, advanced funds in good faith. For these
reasons we conclude that it would be unfair to impute the escrow agent's knowledge of the
fraud to either Petersen or Leader. Since neither Petersen nor Leader had actual or
constructive notice of the fraud, we conclude that both were bona fide encumbrancers for
value.
Finally, as we stated in Jensen v. Wilslef, 36 Nev. 37, 45, 132 P. 16, 18 (1913),
[w]henever it appears from all the facts surrounding the transaction that a separate and
distinct security was offered by the vendee and accepted by the vendor, the presumption is
that the [vendor's] lien was waived. We conclude that the quitclaim deed from FLO to the
Buheckers amounted to a separate and distinct security interest. Accordingly, we conclude
that the Buheckers have effectively waived any claim they may have had to a vendor's lien.
We have reviewed the record and conclude that all remaining issues lack merit.
2
We
affirm the order of the district court.
3

__________

2
This court previously dismissed this appeal in an unpublished order. Respondent Petersen has moved this
court to publish our Order Dismissing Appeal as an Opinion. We grant this motion. Accordingly, we issue this
Opinion in place of our Order Dismissing Appeal filed April 4, 1996.

3
The Honorable Miriam Shearing, Justice, did not participate in the decision of this appeal.
____________
112 Nev. 1502, 1502 (1996) Labastida v. State
KRISEYA J. LABASTIDA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 25685
December 20, 1996 931 P.2d 1334
Appeal from judgment of conviction, pursuant to jury trial, of second-degree murder and
child neglect. Second Judicial District Court, Washoe County; James A. Stone, Judge.
Defendant was convicted in the district court of second-degree murder and child neglect,
and she appealed. The supreme court, Steffen, C. J., held that: (1) defendant's acquittal on
felony child abuse charges did not bar her conviction for second-degree murder based upon
child neglect; (2) information adequately advised defendant of charges against her; (3)
defendant's convictions of second-degree murder and child neglect did not violate double
jeopardy; and (4) mistrial was not required when magazine, which had been excluded from
evidence, was inadvertently delivered to jury during deliberations.
Affirmed.
Hamilton & Lynch, Reno, for Appellant.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Witnesses.
Opinion testimony concerning dispute within district attorney's office as to nature of charges which should have been filed against
defendant based on elements developed before, during and after former district attorney's active involvement in defendant's case, and
motives behind successor district attorney's decision to charge more severely than her predecessor was protected by executive privilege
in prosecution for second-degree murder and child neglect.
2. Criminal Law.
Defendant's acquittal on felony child abuse charges did not bar her conviction for second-degree murder based upon child neglect,
in view of evidence that defendant failed to prevent severe abuse of her infant child by child's father. Jury could have elected to give
defendant benefit of leniency based on finding that her involvement was much less than that of father. NRS 195.020, 200.010,
200.030(1)(a), 200.508(1)(a).
Information charging defendant with first-degree murder, second-degree murder, child abuse and child neglect adequately advised
defendant of charges against her arising from death of her infant child, despite defendant's claim that information provided alternatives
and disjunctives and specified no acts committed by herself or by child's father which she aided and abetted.
and specified no acts committed by herself or by child's father which she aided and abetted.
4. Double Jeopardy.
Defendant's convictions of second-degree murder and child neglect after her infant child was severely abused by his father did not
violate double jeopardy, although defendant was acquitted of child abuse charges arising from same incident. Jury could have found
that defendant's actions in failing to seek help for child amounted to neglect, but not abuse. U.S. Const. amend. 5; NRS 200.508.
5. Criminal Law.
Mistrial was not required in murder prosecution, based on alleged fatal abuse of defendant's infant child by child's father, when a
magazine, which had been excluded from evidence, was inadvertently delivered to jury during deliberations; although the magazine,
which allegedly had been found in defendant's apartment, had cover picture of a baby which had been defaced and the caption, Devil
Babies. Do you have one? jury was instructed to disregard such evidence, and each juror affirmed that he or she could do so.
6. Criminal Law.
Jury deliberations were not contaminated in murder prosecution when alternate jurors were escorted into jury room to retrieve their
coats and personal belongings while jury was breaking for lunch. Alternate jurors did not interrupt jury at a time when it was
deliberating.
7. Criminal Law.
Even if prosecutor improperly argued that there was legal conclusive presumption of malice in murder prosecution, argument
was harmless error, where jury was instructed that they were to look exclusively to law as given in instructions, not to argument of
counsel.
Under Nevada law, first-degree murder and second-degree murder are not separate and distinct crimes which must be pleaded
accordingly.
9. Infants.
Child must be placed in situation where it may suffer physical pain as result of abuse or neglect to support conviction for child
abuse or neglect. NRS 200.508.
OPINION
Appellant Kriseya J. Labastida's infant son died of injuries inflicted by his father, who cohabited with Labastida. Labastida insisted
that she had no knowledge of the father's violent abuse. Labastida was acquitted of first-degree murder and child abuse, but convicted of
second-degree murder and child neglect. The latter two convictions resulted in sentences of life in prison and a consecutive twenty years,
respectively. Although Labastida insists that her convictions are infirm, we conclude that she was fairly tried and convicted and therefore
affirm.
FACTS
1

On November 20, 1992, Thunder Michael Lightfoot Strawser was born to Labastida, a
twenty-four-year-old, first-time mother, and Michael Strawser. At the time, Labastida and
Strawser cohabited in a small, poorly illuminated, downstairs apartment. Although all areas
of the apartment were within hearing distance of the other areas, the bedroom could not be
seen from the kitchen area.
Thunder lived for only seven weeks. At approximately 3:00 p.m. on January 9, 1993, the
baby stopped breathing, and Labastida frantically called 911. When the paramedics arrived,
one paramedic observed evidence of injury to the infant despite the dimly-lit environment of
the apartment. The paramedic who carried Thunder from the bedroom to improved lighting in
the kitchen, testified that he felt a crackling associated with injuries suffered by the child. In
the kitchen, the paramedic observed bites and bruises in various stages of aging on the child's
body. Shortly thereafter, the infant's battered, broken, and bitten little body was taken to
Washoe Medical Center, where the child soon died.
A deputy coroner testified to seeing bruises on the baby's buttocks, marks on his face, and
a vivid bite mark on the baby's foot. The pathologist who performed the autopsy noted
many abrasions and skin breaks, extensive bruising covering fifty to seventy-five percent of
the baby's face and body, bite marks on the baby's face, a massively enlarged chin, and a
frenulum tearat least twenty-four hours oldwhich was consistent with blunt, generally
nonaccidental, trauma to the mouth. The pathologist also observed conspicuous and extensive
bruising on the baby's buttocks, and injuries to the baby's penis and scrotum. In addition, she
noted that the infant's skin was puffed out from the chin to the nipples, indicative of air
dissecting through the lungs into the surrounding tissues {the cause of the "crackling"
sound heard by the paramedic).
__________

1
There is nothing to be gained by a critique of the dissenting justice's view of the undisputed facts. Suffice it
to note that the jury heard the facts and found Labastida guilty of second-degree murder and child neglect. We
find it highly improbable that anyone could view the photographs in evidence of the severely beaten, bitten and
battered infant and thereafter reach a reasoned conclusion that Labastida could have been unaware of the
brutalization to which her child was being subjected. Moreover, if Labastida was indeed trapped in an abusive
relationship with Strawsera situation which tragically befalls all too many women in our societyit is
difficult to believe that Strawser would have been all that concerned about concealing his abuse of the child from
an intimidated Labastida. Furthermore, as observed in the body of this opinion, under the facts of this case, it
would not have been difficult for a reasonable jury to conclude that Labastida was aiding and abetting Strawser
in the systematic torture and destruction of her son simply because of the growing evidence of severe beatings
graphically revealed on the face, head and body of her traumatized child, and her apparent unwillingness to do
anything to prevent it.
to the nipples, indicative of air dissecting through the lungs into the surrounding tissues (the
cause of the crackling sound heard by the paramedic). X-rays revealed seventeen bone
fractures that were at least a week old, including nearly all of the baby's ribs in the back, a
finger, and three fractures of the right leg.
After paramedics took Thunder to the hospital, Labastida and Strawser voluntarily agreed
to go with police investigators to the police station. According to police officers, Labastida
appeared upset but was not hysterical.
The police first interviewed Strawser, who hesitantly admitted to committing some abuse
and claimed that he concealed his actions from Labastida by abusing the baby behind closed
doors or while she was asleep. Strawser stated that he began abusing the infant three weeks
prior to his death by shaking him when Labastida was not in the room. He claimed that he
convincingly lied to Labastida about the causes of the baby's apparent bruises and injuries,
telling her that the baby had fallen off a bed and off the washing machine. Strawser also
advised Labastida against obtaining medical assistance, encouraging her with indications that
the baby was getting better and that through their prayers the baby would be healed.
After investigators interviewed Strawser and received a report from the coroner's office,
they interviewed Labastida. Upon hearing that her baby died, Labastida began to cry and was
visibly upset. Labastida told the investigators that Thunder cried incessantly and that she had
taken him to a pediatrician a few days after his birth and then again two weeks later, believing
that the infant had gas. Labastida also consulted a breast-feeding specialist because of an
alleged belief that her baby was suffering from colic, and that a change in her diet might be
helpful to the child.
Labastida attributed the bruises and lacerations on the baby's face, stomach, and neck to
the baby's uncut fingernails and his habit of pinching himself. She ascribed other bruises on
the child to such of her activities as tying his bootie too tight, touching his wrist, and leaving
him in a swing too long, thus causing bruises on his buttocks.
2
She claimed that she had only
noticed the bruises the last three days of his life and believed that he was just a tender baby,
easily subject to bruising. Labastida attributed the baby's difficult breathing and swollen
glands to a cold. She indicated that she had wanted to take him to a hospital earlier that
morning, but Strawser persuaded her that the child was getting better.
When an investigator mentioned that the infant had suffered bone fractures, Labastida
initially opined that the broken bones resulted from the emergency CPR performed before
taking the child to the hospital.
__________

2
The bruises on the buttocks were described at trial as absolutely unavoidable and inescapably obvious.
bone fractures, Labastida initially opined that the broken bones resulted from the emergency
CPR performed before taking the child to the hospital. She expressed total disbelief upon
learning that the ribs in his back had been broken for some time prior to his death. Labastida
told the investigators that she failed to recognize that Thunder's incessant crying was due to
abuse by a man she naively trusted. Because Strawser changed the baby at night, she claimed
not to have seen any abuse, but remembered that the baby would scream at night. Labastida
admitted to seeing Strawser playfully pinch and bite the baby's skin. She also observed
Strawser manhandling or burping Thunder too roughly (hitting the baby's back with a
closed fist) on one occasion, and on other occasions, tossing him up in the air roughly, but she
disclaimed ever seeing Strawser hit, shake, bite, throw or otherwise injure the baby.
[Headnote 1]
Labastida and Strawser were both charged with one count of murder, one count of child
abuse causing substantial bodily harm, and one count of child neglect or endangerment
causing substantial bodily harm. Subsequently, the State also filed a notice of intent to seek
the death penalty against both Strawser and Labastida.
3

__________

3
The dissent contends that the district court committed reversible error in refusing to allow then-Deputy District
Attorney Richard Gammick to testify concerning his initial involvement in the case. We disagree. The dissenting
justice picks up on Labastida's Proper Person Supplemental Brief and argues that Gammick should have been
able to testify concerning the political ambition which motivated then-District Attorney Dorothy Nash Holmes to
overcharge Labastida and selectively prosecute her personally in order to enhance her possibilities for reelection.
First, our colleague's selective prosecution and due process argument was never raised in the trial court, as
Labastida's offer of proof made no mention of selective prosecution or prosecutorial misconduct. Labastida's
claim was based upon Gammick's knowledge concerning her insistence that there was no factual basis for
charging [her] with murder or felony abuse. Since the points raised by our colleague were not raised below they
must be rejected. Gaston v. Hunter, 588 P.2d 326, 334 (Ariz. 1978).
Moreover, the district court properly rejected Gammick's proffered testimony on the basis that was urged below
by Labastida. The evidence of record indicates that further facts were developed after Gammick was relieved of
the case, and in any event, substantial mischief would result from a ruling by this court that would allow
evidence of differences of opinion among prosecutors within a district attorney's office as to the charges being
considered by the State. We need not address whether the district court correctly excluded Gammick's testimony
on the basis of attorney-client privilege as it is clear that the testimony was properly excluded on the basis of
executive privilege. This is not a case where factual evidence was being sought from a knowledgeable witness,
but rather opinion testimony concerning a dispute within the district attorney's office as to the nature of the
charges that should be filed against Labastida based upon the evidence developed before, during, and
Prior to the commencement of trial, Strawser entered a plea of guilty to all three counts.
Labastida, outside the jury's presence, unsuccessfully challenged the sufficiency of the
Information on grounds that the aiding and abetting charge did not separately define the acts
committed by either defendant.
At trial, the State called several medical experts who described the torturous, painful, and
sometimes bloody abuse suffered by the tiny victim. An expert on bites described the
apparent bruising and lacerations that many of the severe bites must have immediately
produced. He testified that a nursing mother should have seen the severity of the injuries to
the baby's mouth, neck, and face and that one who changed and bathed the baby should have
noticed the obvious bites on his stomach and the gruesome bites on his buttocks.
The pathologist who performed the autopsy testified that a nursing mother, one changing
diapers, and one trained in anatomy and physiology (as Labastida allegedly was) would have
seen the injuries to the baby's mouth and throat and other external injuries. The pathologist
indicated that the baby actually died from overwhelming infection due to seepage of
contaminated debris into the chest cavity.
4

Labastida's landlady, who lived upstairs, testified that Labastida rarely left the small
basement apartment.
5
The landlady testified that she heard the painful sounding screams
from the baby four or five times during the last two weeks of his life.
__________
after Gammick's active involvement in the case, and the motives behind the district attorney's decision to charge
more severely than Gammick. See EPA v. Mink, 410 U.S. 73, 90-91 (1972) (protection afforded to matters of
law, policy, or opinion rather than factual material).
Finally, even if the State waived the executive or attorney-client privilege through the testimony of Officers
Jenkins and Myers concerning their participation in the investigation and booking of Labastida, it is of no avail
to Labastida, as she never asked the trial judge to reconsider his ruling excluding Gammick's testimony after the
two officers testified.

4
Although the pathologist opined that the baby died of multiple injuries and sequelae [secondary effects] as a
result of child abuse and could not pinpoint why the heart stopped beating, the testimony indicated that the baby
died basically by suffocating in esophageal infection. The pathologist testified this infection may have been
caused by a blunt injury to the chest, perforation of the throat area in the back of the mouth, or obstruction of
the airways in the form of blunt trauma or a combination of the three.
Strawser testified at trial that prior to the baby's death, he tried to stop the baby's crying by sticking his finger
down the baby's throat, causing a tear in the esophageal lining. He also claimed that in trying to stop the baby's
crying, he covered the baby's mouth while pressing down on the stomach or chest area. These actions, in
addition to the force applied which fractured the baby's ribs along the spine, were viewed as initiating the
leakage of contaminated debris into the baby's chest cavity, which caused the baby's death.

5
The dissent contends that the abuse to the baby occurred while Labastida was at work. However, the landlady
testified that after the baby was born
testified that she heard the painful sounding screams from the baby four or five times during
the last two weeks of his life. The morning after a night when the baby screamed for two
hours, the landlady tried to convince Labastida to take the baby to the doctor, but Labastida
sternly insisted that the baby only had the colic. During this visit, the landlady recalled
Labastida staring intensely and very fiercely at Strawser. Labastida, however, never spoke
harshly of Strawser to the landlady.
Strawser also testified, admitting to the abuse and claiming that Labastida did not
recognize that the baby was being abused and that he convincingly concealed his actions from
her and lied to her about the cause of the child's injuries.
6
Labastida did not testify at trial.
During the jury's deliberations, the clerk of the court inadvertently delivered excluded
evidence to the jurors. This nonevidence consisted of a magazine with a baby on the cover;
the baby was defaced, with a goatee, angled eyebrows, and horns. Also written on the cover
was a new caption stating, Devil Babies.' Do you have one? The magazine was found in
Labastida's apartment several weeks after Thunder's death and was given to the police. The
trial court had rejected the magazine as evidence because there was no foundational basis for
its admission. The jurors saw the cover of the magazine, but did not peruse its pages. The
parties' counsel were informed of the error later that evening. The district court convened the
jurors and advised them that the magazine was not admitted into evidence because it was not
connected to Labastida and directed the jury not to consider the magazine's defaced cover.
The jurors agreed to disregard the magazine. Labastida unsuccessfully moved for a mistrial,
arguing that the magazine's cover was highly prejudicial.
Two other incidents of note also occurred: First, as the jury was breaking for lunch, three
alternate jurors were escorted into the jury room to retrieve their coats and personal
belongings. Second, a deputy prosecutor spoke to a juror, inquiring about dinner, while the
juror was in the jury box. This occurred in the presence of other jurors just after the jury had
been sent home for the night.
__________
Labastida remained in the apartment with the infant doing her work until the child died. The woman also
testified that Strawser worked both at the office and at home after the birth of the child on November 20, 1992,
but that he worked during most of the month of December at the office while Labastida worked at the apartment
with the baby.

6
During Strawser's testimony, he mentioned that the night before Thunder's death, he told Labastida that he
squeezed and bit the baby, but during subsequent questioning by defense counsel, he reconfirmed that he did not
tell her that he committed any abuse.
the night. However, the appellate record does not contain any transcript of the conversation,
including any objection or any ruling on an objection. The next day, defense counsel's motion
for a mistrial was denied. The hearing on the motion was also omitted from the record.
The jury found Labastida guilty of second-degree murder and child neglect, and acquitted
Labastida of first-degree murder and child abuse. The district court sentenced Labastida to
life imprisonment for second-degree murder and a consecutive twenty years in prison for
child neglect. This appeal followed.
DISCUSSION
On appeal, Labastida contends that her acquittal on felony child abuse charges invalidates
her conviction for second-degree murder, that the Information containing the charges against
her was fatally defective, that her conviction for child neglect constituted double jeopardy,
and that trial irregularities deprived her of a fair trial.
Whether acquittal of the felony child abuse charge required acquittal of second-degree
murder
[Headnote 2]
Labastida contends that since the jury acquitted her of felony child abuse, her acquittal of
second-degree murder was mandated. Labastida supports her argument with the untenable
proposition that she cannot be lawfully convicted of second-degree murder based upon child
neglect. Her premise is that because the evidence was directed solely to proof of death from
child abuse, a charge for which she was acquitted, no other evidence existed to support a
finding of an unlawful killing with malice aforethought, elements required for second-degree
murder.
7

The evidence of record clearly supports Labastida's conviction for second-degree murder.
Based upon the trial evidence, including expert testimony, it would have been virtually
impossible for a nursing mother to have overlooked the extensive, extremely severe injuries
inflicted on her baby over a period of time. The jury therefore could have drawn alternative
inferences from such evidence.
First, the jury could have found Labastida guilty of child abuse and first-degree murder
based upon the grounds that (1) she aided and abetted Strawser in the unlawful killing by
observing or being manifestly aware that Strawser was willfully causing the infant to suffer
dangerously severe and unjustifiable injury and pain as a result of abuse, and {2) by
doing nothing to stop this abuse when she was responsible for the child and it was clearly
possible for her to have taken preventive measures.
__________

7
NRS 200.010 defines murder as the unlawful killing of a human being, with malice aforethought, either
express or implied.
suffer dangerously severe and unjustifiable injury and pain as a result of abuse, and (2) by
doing nothing to stop this abuse when she was responsible for the child and it was clearly
possible for her to have taken preventive measures. See NRS 195.020; 200.030(1)(a);
200.508(1)(a). The jury could then have elected to give Labastida the benefit of leniency
based upon a finding that her involvement was much less than that of Strawser. See State v.
Lindsey, 19 Nev. 47, 5 P. 822 (1885); State v. Fisco, 58 Nev. 65, 70 P.2d 1113 (1937),
overruled on other grounds by Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957). Under such
circumstances, Labastida can hardly complain at having been the recipient of the jury's mercy.
See Lindsey, 19 Nev. at 51-52, 5 P. at 823-24.
Second, NRS 200.070, in defining what is not involuntary manslaughter, states, where the
involuntary killing occurs in the commission of an unlawful act, which in its consequences,
naturally tends to destroy the life of a human being, or is committed in the prosecution of a
felonious intent, the offense is murder. NRS 200.010 defines murder as the unlawful
killing of a human being, with malice aforethought, either express or implied . . . . These
statutes are harmonious in cases where the act that tends to destroy human life, or is
committed with felonious intent, is reflective of express or implied malice. See NRS 200.020.
Child neglect, as found in this case, constituted an unlawful act that tended to destroy a
human life
8
and demonstrated the abandoned and malignant heart required for a conviction
of murder. The evidence would strongly support the inference that Labastida, aware of the
bodily evidence and pain-reflecting, incessant crying of her nursing child, unlawfully allowed
or permitted Strawser to inflict such severe and pyramiding injuries on the child as would
tend to result in the child's death.
9

__________

8
NRS 200.508(1) defines abuse, neglect or endangerment of a child as follows:
1. Any person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental
suffering as a result of abuse or neglect or to be placed in a situation where the child may suffer physical
pain or mental suffering as the result of abuse or neglect; or
(b) Is responsible for the safety or welfare of a child and who permits or allows that child to suffer
unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be placed in a situation
where the child may suffer physical pain or mental suffering as the result of abuse or neglect, is guilty of
a gross misdemeanor unless a more severe penalty is prescribed by law for an act or omission which
brings about the abuse, neglect or danger.

9
In response to the dissent's charge that the majority has fashioned an affirmance for reasons attributable to the
realities inherent in the election of judges, I gently remind my esteemed colleague that the author of this opinion
is retiring at the end of this term and has no interest in the prospect of
The dissent cites to Sheriff v. LaMotte, 100 Nev. 270, 680 P.2d 333 (1984), and Johnston
v. State, 101 Nev. 94, 692 P.2d 1307 (1995), for the proposition that child neglect is not the
type of activity that is generally considered inherently dangerous because the referenced cases
ruled that drunk driving resulting in death would not support a charge of second-degree
murder. Our colleague is misguided. Neither LaMotte nor Johnston was based on the decision
that drunk driving is per se not inherently dangerous. We noted, instead, that this
determination was left to the legislature because the Nevada Legislature has set the
punishment for killing or seriously injuring another while driving a vehicle under the
influence of intoxicants . . . . Expansion of the range of punishments for those drunk drivers
who kill fellow motorists or bystanders would constitute an impermissible judicial excursion
into the Legislature's domain. Johnston, at 95, 692 P.2d at 1308 (citing LaMotte, at 272-73,
680 P.2d at 334).
Conversely, in the instant case, the legislature has not set the punishment for those who
allow their child to be abused to death by another. It thus seems clear that malice can be
implied in cases where, as here, child neglect rises to the level of inherent dangerousness.
Whether the Information was sufficient to adequately advise Labastida of the charges against
her
[Headnote 3]
Labastida contends that the Information prevented her from determining the exact nature
of the charges against her because the Information provides alternatives and disjunctives
and specifies no acts committed by herself or acts by Strawser which she aided and
abetted.
__________
reelection. Moreover, our colleague relies on the case of Sheriff v. Morris, 99 Nev. 109, 118, 659 P.2d 852, 859
(1983), for the proposition of law that an accused may be convicted of second-degree murder if he/she engages
in inherently dangerous' conduct that a potential felon foresees' [his emphasis] will result [our emphasis] in
death or mortal injury. The referenced restatement of a previously-stated verbatim quote from Morris takes the
unwarranted liberty of changing the degree of foreseeability of death or injury from that of a possibility to a
certainty (will result). Morris actually declares that [t]here can be no deterrent value in a second-degree felony
murder rule unless the felony is inherently dangerous since it is necessary that a potential felon foresees the
possibility of death or injury . . . . (Our emphasis.) In our judgment, it is unthinkable that a nursing mother, who
was almost constantly in her small apartment with the tiny, incessantly crying victim and Strawser, could have
failed to foresee the strong possibility that the merciless beating the infant was receiving with obvious regularity
would end in the baby's death. Moreover, having been trained in anatomy and physiology, it is equally
incredulous that Labastida could have been persuaded by the untrained Strawser that the infant's proliferating
injuries were not sufficiently serious to warrant taking the child to the hospital. Cogent evidence of what was
occurring in that small apartment was seen by the jury in the form of the graphic photographs of the lifeless,
brutalized body of the child.
the Information provides alternatives and disjunctives and specifies no acts committed by
herself or acts by Strawser which she aided and abetted. She also claims that the State's theory
changed on several occasions during trial.
Labastida's position is without merit. Each of the counts in the Information provides a
sufficient characterization of the crime and description of the specific acts chargeable to the
accused to enable Labastida to defend herself against the accusations. See Simpson v. District
Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229 (1972). The words in Count I of permitting,
allowing, or failing to restrain one another from killing the named victim sufficiently
describes Labastida's actions of aiding and abetting, particularly given her affirmative duty to
protect her child. Likewise, Count II's language of causing, allowing, or permitting the baby
to be injured or placing the baby in a position to be injured sufficiently notified Labastida of
the child abuse charges against her. Moreover, Count III also adequately covered the acts
upon which the jury could have found Labastida guilty of child neglect.
10

Whether Labastida's conviction on second-degree murder and child neglect violated the
Double Jeopardy Clause
[Headnote 4]
Labastida asserts that child abuse and child neglect are essentially the same conduct, have
the same elements, and violate the same statute (NRS 200.508). Consequently, she claims
that her acquittal of child abuse necessitates the voiding of her conviction for child neglect
based upon the Double Jeopardy Clause. Labastida also submits that her convictions for
second-degree murder and child neglectwhich were allegedly based on conduct equivalent
to child abuseviolate the Double Jeopardy Clause. See Athey v. State, 106 Nev. 520, 797
P.2d 956 (1990) (holding that convictions for felony child abuse and murder arising from
conduct occurring on the same evening violated the Double Jeopardy Clause). She also
claims that the facts of her case are similar to those in Athey, and consequently, are violative
of the same clause.
NRS 200.508 criminalizes the abuse or the neglect of children, and the jury did not err in
finding, based on the evidence or out of leniency, that Labastida's actions constituted
neglect, but not abuse.
__________

10
Our dissenting colleague would seemingly outlaw use of the disjunctive in criminal pleading. We have read
the same Information as our colleague and would simply note that use of the disjunctive was necessitated by a
lack of precise information on how and by whom the tiny victim was murdered. Murder is often not committed
in the clear light of day in the presence of witnesses. In any event, unlike our colleague, we do not perceive the
need for a Urim and Thummim in order to decipher the acts with which Labastida was being charged.
and the jury did not err in finding, based on the evidence or out of leniency, that Labastida's
actions constituted neglect, but not abuse. In addition, Athey is distinguishable from this case.
Evidence showed that two of the three injuries resulting in the esophageal infection which
caused the baby's death occurred during the last few days of the baby's life. However,
indications of ongoing abuse (bites and extensive bruising) were apparent the last week of the
baby's life. Consequently, the evidence reflects discrete differences between acts of neglect
and acts involved in the murder of the child. See Bludsworth v. State, 98 Nev. 289, 293 n.4,
646 P.2d 558, 560 (1982).
Whether Labastida was denied a fair trial because of the inadvertent submission of excluded
evidence to the jury and improper contacts with the jury
[Headnotes 5, 6]
As for trial irregularities, we conclude that the district court did not abuse its discretion in
refusing to declare a mistrial. Certainly, the defaced magazine may have otherwise had some
effect on the jury, but the jury was instructed to disregard the evidence and each juror
affirmed that he or she could do so. In addition, we are persuaded that the jury deliberations
were not contaminated because the alternate jurors did not interrupt the jury at a time when it
was deliberating. Finally, we are unable to review the record for error as to the allegations of
improper prosecutorial-juror discussions since no aspect of the matter was included in the
record on appeal. In any event, we are convinced that trial irregularities were harmless and
were not prejudicial to Labastida.
[Headnotes 7-9]
We have reviewed all other arguments and issues raised by Labastida and conclude that
they are without merit.
11

__________

11
We will here briefly address certain of the dissenting justice's other objections to our affirmance of
Labastida's convictions. First, our colleague contends that the legal conclusive presumption of malice
allegedly argued by District Attorney Holmes comes as close as anything to explaining why Labastida was
convicted of murder. We remain unconvinced that the argument was even made. Our review and search of the
record failed to produce evidence of any such argument. Labastida raised this argument in her pro per brief, but
we have searched in vain for the argument in the record, including, of course, the transcript of the closing
argument. In any event, the jury was instructed that they must look exclusively to the law as given in the
instructions, and not to the argument of counsel. Therefore, if the phantom argument was indeed presented, it
would have constituted harmless error.
Our dissenting colleague also contends that Labastida could not have been lawfully convicted of second-degree
murder because the Information does not specifically charge her with murder in the second degree. He is
mistaken. Under Nevada law, first-degree murder and second-degree murder are not
CONCLUSION
For the reasons stated above, we conclude that Labastida was fairly tried and convicted,
and therefore affirm the judgment of conviction entered by the district court.
Shearing, J., concurring:
I agree that the legislature has defined murder in such a way that Labastida's failure to act
could be found to be murder in the second degree and therefore her conviction must be
affirmed.
However, I do not agree that there was substantial evidence that Labastida aided and
abetted Strawser in committing murder. In fact, I do not see any evidence in the record which
would support that conviction. Every bit of evidence in the record supports the conclusion
that Michael Strawser inflicted a number of injuries on Thunder Michael Lightfoot Strawser,
which eventually resulted in the child's death. There is not one iota of evidence that Labastida
inflicted one injury on the child, and in fact, the jury acquitted her of child abuse.
__________
separate and distinct crimes which must be pleaded accordingly. Sheriff v. Willoughby, 97 Nev. 90, 92, 624
P.2d 498, 498-99 (1981); see also State v. Whittle, 752 P.2d 489 (Ariz. App. Ct. 1985) modified, State v.
Whittle, 752 P.2d 494 (Ariz. 1988) (holding that second-degree murder is, by its very nature, a constituent part
of first-degree murder, that it is an included offense). Labastida was thus on notice that the trier of fact could
find her guilty of either degree of murder.
We do not agree that the jury was instructed erroneously. We do, however, want to disabuse the reader of the
applicability of the following contention by our colleague:
Instruction No. 35 told the jury that it was a violation of NRS 200.508 if Ms. Labastida had placed [the
child] in a situation where the child may suffer physical pain. I do not think that there is any parent who
has not, unwittingly, placed a child in a situation where the child may suffer physical pain. . . .
Virtually anyone could be convicted of child neglect under the instruction given to the jury. Every person
who takes a child to a swimming pool or to an amusement park is placing the child in a situation where
the child may suffer harm. These types of deliberate and intentional decisions do not constitute child
neglect.
(internal quotations omitted) (emphasis in dissent).
Fortunately, the dissent's position inaccurately represents Instruction 35. [T]he situation which the child must
be placed in is clearly defined by the remainder of the instruction (omitted by our colleague) which states that
the child must be placed in a situation where it may suffer physical pain . . . as the result of abuse or neglect.
(Emphasis ours.) The district court also defined the terms abuse and neglect consistently with NRS
200.508(3)(a) in Instruction 36. Moreover, we have held that the phrase physical pain is constitutionally clear
in its meaning. Bludsworth v. State, 98 Nev. 289, 292-293, 646 P.2d 558, 560 (1982).
None of the other points raised by the dissent warrant further discussion.
fact, the jury acquitted her of child abuse. There is substantial evidence that Labastida was
concerned about the welfare of her child and took measures to see to his welfare. She sought
and received medical assistance for the child when she had problems soon after the child was
born. Later, when she wanted to seek medical assistance, Strawser discouraged her and
convinced her that through their prayers, the baby would be healed.
It has long been established that mere presence at the scene of a crime is not enough to
establish guilt. Skinner v. Sheriff, 93 Nev. 340, 341, 566 P.2d 80, 81 (1977). In Skinner, the
defendant was charged with robbery, and even though the defendant had stolen some property
after someone else had hit the victim, the court held that there was not enough evidence to
establish even probable cause of robbery:
Here the record contains no evidence from which we could infer that Skinner
participated with Williams in a common scheme or plan to batter the victim. In the
absence of facts or conduct showing or inferring such an agreement, Skinner's mere
presence would not render [her] guilty of robbery, however reprehensible [her]
conduct may have been in subsequently taking [the victim's] property.
Id. (quoting James v. State, 161 S.W.2d 285 (Tex. Crim. App. 1942), aff'd on reh'g, 161
S.W.2d at 289).
In Rodriguez v. State, 107 Nev. 432, 813 P.2d 992 (1991), this court reversed convictions
for aiding and abetting kidnapping and two sexual assaults in a gang rape situation. The
reversal was based on the fact that there was no evidence that the defendant did anything to
assist in the kidnapping and sexual assaults by others, even though the evidence was clear that
he participated in the activity by sexually assaulting the victim himself. This court reiterated
the view that mere presence at the scene of a crime cannot support an inference that one is
party to an offense. Id. at 435, 813 P.2d at 994.
If it could not be inferred that Rodriguez aided and abetted his fellow rapists, there is far
less reason to make any such inference against Labastida. There is absolutely no direct
evidence of her aiding and abetting Strawser, and there is considerable evidence that she
would not have knowingly hurt her child and that she believed and trusted the father of her
baby to be honest with her regarding the injuries to their child. Without some other evidence,
the fact that she was aware of injuries does not lead to the inference that she aided and abetted
in inflicting them.
Kriseya Labastida stands convicted of murder and is serving a life sentence in prison for
murdering her infant son when it is clear from this record that she did not murder her son.
clear from this record that she did not murder her son. The child was murdered by his father,
who claims, without contradiction, that he killed the child and that he did so without the
mother's having any knowledge of the murder. This is the most tragic miscarriage of justice
that I have had the misfortune to witness in my close-to-sixteen years on this court.
The undisputed facts of this case are plain: The convicted Kriseya Labastida was trapped
in an abusive relationship with one Michael Strawser, the murderer of her infant son. Michael
Strawser pleaded guilty to first-degree murder and testified that he went to great lengths to
keep his abuse of the child and the actual killing of the child a secret from the child's mother.
Strawser has insistently maintained throughout these proceedings that the mother had no
reason to believe that he might kill her son or otherwise injure him. The record is crystal clear
in one respect: the mother did not, herself, abuse her son, nor did she aid or condone
Strawser's abusing or killing the child.
1
The only fault that can possibly be attributed to this
mother is the claim that, under the circumstances of this case, she should have known about
the way Strawser was treating the child in her absence and, therefore, should have been able
to predict that Strawser would murder her child and that she should have been able, in some
way, to prevent the murder.
The record belies any conclusion that Ms. Labastida should have been able to predict that
Strawser was going to beat her child to death while she was away at work; but even if this
were the case, she would be subject to conviction for child neglect only, and certainly not for
the murder of her son, who was admittedly murdered by another person.
It is legally and factually impossible for Kriseya Labastida to have committed murder. To
understand how this nightmare came to life, it is necessary to review several incidents of this
case that do not come to light in the majority opinion. I have given considerable attention to
Appellant's Proper Person Supplemental Brief, which was filed September 14, 1995. For
whatever reasons, no response to this brief has been filed by the State.
2
I take it that the
following discussion, taken from the brief, represents an accurate summary of the
essence of this case.
__________

1
I agree with Justice Shearing when she notes in her concurring opinion that there was not one iota of evidence
that Labastida inflicted one injury on the child and that there is not any evidence in the record that would
support a conviction for aiding and abetting Strawser's murder of her son. It is also undeniably true, as put by
Justice Shearing, that there is substantial evidence that Labastida was concerned about the welfare of her child
and took measures to see to his welfare.

2
One possible explanation for the State's not opposing the proper person brief is that counsel for the State,
Richard Gammick, the present district attorney, has expressed his opinion publicly that this is not a murder case.
Mr. Gammick was the deputy assigned to prosecute this case by then-District
take it that the following discussion, taken from the brief, represents an accurate summary of
the essence of this case. Because of the convincing and sometimes eloquent manner in which
Ms. Labastida's brief characterizes the facts of this case, I quote at some length:
On January 9, 1993, Kriseya J. Labastida's fifty-day old baby died after two or three
weeks of secret abuse by his father. While still in shock she tried to help the police
discover what happened. Because she stated disbelief that her child could have been
abused when she was always with him, she was charged with investigation of child
neglect by the Deputy District Attorney on duty [present District Attorney Richard
Gammick]. [My emphasis.]
The District Attorney election was nearing. D.A. Dorothy Nash Holmes, who fired
over 80% of her staff, was at odds with the legal community and in a dispute with a
judge, was combating bad press to win back alienated voters. Reno, Nevada had
suffered many cases of child abuse. Nearing election, the D.A. coincidentally declared
she would base her re-election on prosecuting child abusers. Labastida was a
convenient target for this political plan. After 3 days in jail, barely grasping her baby's
death or why she was charged, Mrs. Holmes personally ordered Kriseya's charges raised
to first degree murder, child abuse and neglect or endangerment causing substantial
bodily harm, in spite of a total lack of further evidence. Within days, the D.A. declared
she would personally prosecute Labastidathe only criminal trial she undertook since
taking office in 1990.
If not for political aspirations, it's difficult to fathom why Mrs. Holmes chose
Labastida's case, considering that in all the preceding years, when many Anglo women
were inculpated in abuse and murder, she never personally prosecuted even one. In
roughly 95% of prior cases, the mother was only charged with neglect or abuse even
where it was proved she either caused or directly participated in the death. In fact, in
those cases, the father usually got a life sentence, but the mother received no more than
ten years, average. The D.A.'s choice of this case, singling Kriseya out for murder, first
degree, then a death penalty, raises serious questions about motives; more so,
when the testimony and facts were that Kriseya did not cause, aid or abet inflicting
any harm.
__________
Attorney Dorothy Nash Holmes. At the time of the Strawser murder, Deputy District Attorney Gammick made
the decision not to charge Ms. Labastida with murder. District Attorney Dorothy Nash Holmes took over the
case, countermanded Mr. Gammick's prosecutorial decision and filed murder charges. At Ms. Labastida's trial,
Mr. Gammick offered to testify that Ms. Labastida's actions did not warrant the filing of murder charges. District
Attorney Dorothy Nash Holmes was successful in excluding Mr. Gammick's testimony on the ground that it
would violate the attorney-client privilege.
first degree, then a death penalty, raises serious questions about motives; more so, when
the testimony and facts were that Kriseya did not cause, aid or abet inflicting any harm.
Also puzzling is why testimony by Judge Mills Lane, who spoke before the committee
which revised the child abuse and murder statute in 1989, was disregarded. He testified
for the defense that to charge murder there must be evidence of an act by the
accusedtotally lacking in this case. The Deputy D.A. who originally charged
Labastida, subpoenaed also, could not testify for her because Judge Stone ruled in favor
of the D.A., based on attorney-client privilege. When a District Attorney selectively
prosecutes someone because of racial and/or political reasons, the public has every just
cause to question the integrity of the justice system. (Exhibits in Appendix)
Our American justice system rests on the cornerstone of public confidence. Those
who administer and enforce justice must have unquestionable motives and integrity and
be above reproach. Severe scrutiny must be given to any seeming improprieties.
The many questions raised in the Labastida case merit judicial review: that Mrs.
Holmes never tried a case until election neared; that her re-election platform was to
punish child abusers; that she never before charged murder, much less the death
penalty, against a mother who did not personally cause a child's death. This pattern of
acts suggests that Mrs. Holmes unscrupulously abused her authority, prosecuting
Labastida for political ambition.
Questions about selective prosecution and political motives are properly raised in an
evidentiary hearing and are not presented infra, but we pray that this Honorable Court
will review those factors that may undermine public confidence in the justice system.
After Labastida was sentenced to maximum prison termslife plus twenty years
consecutiveone of her trial jurors, Mr. George Kamp, expressed outrage over her
sentence, saying Judge Stone's questionable instructions were responsible for a verdict
he would not have otherwise given.[
3
]
In her brief, Ms. Labastida claims that her Due Process rights were violated when the
trial judge refused, on the ground of attorney-client privilege to permit then-Deputy
District Attorney Gammick, now District Attorney Gammick, to testify as a defense
witness. Ms. Labastida claimed that through Mr.
__________

3
On May 1, 1994, juror Kamp wrote to the Reno Gazette-Journal that the abuse and torture in the case was
committed the last 21 days of the baby's life, and all done by the father. He said that if he had known that Ms.
Labastida was subject to such a sentence, he would never have consented to the murder conviction because,
She did not do the deed. This repentant juror publicly proclaimed: This woman should not have been
sentenced to life for something she did not do. Justice is not equal.
were violated when the trial judge refused, on the ground of attorney-client privilege to
permit then-Deputy District Attorney Gammick, now District Attorney Gammick, to testify as
a defense witness. Ms. Labastida claimed that through Mr. Gammick's testimony she would
have been able to present a prima facie showing of selective prosecution by Holmes, who
used her case for political expediency. The trial judge's refusing to permit Mr. Gammick to
testify was, of course, erroneous on its face. There is no attorney-client privilege that would
justify the court's refusal to permit Mr. Gammick from testifying on the subject of selective
prosecution or from testifying on the inappropriateness, based on his investigation of the case,
of the District Attorney's filing first-degree murder charges against Ms. Labastida. My own
view of the case is that there is no acceptable explanation of why the district attorney made a
capital case out of this case or why she announced that she was going to try to put this
grieving mother in the death chamber. There is no explanation other than the explanation
offered by Ms. Labastida, namely, that the district attorney was making political capital out of
a capital case.
There are seven reasons why the murder conviction should be reversed and the case
remanded for retrial on the conviction of child neglect. First, I see the trial court's refusal to
permit then-Deputy District Attorney Gammick to testify on selective prosecution and
prosecutorial misconduct as being a denial of Ms. Labastida's Due Process rights. Second,
there is no legal or factual basis for a murder charge or conviction. Third, Ms. Labastida's
acquittal of first-degree murder by child abuse precludes her being convicted of
second-degree murder. Fourth, the Information is fatally defective. Fifth, the jury was not
adequately instructed that in order to convict Ms. Labastida of child neglect, it was necessary
for the State to prove that she had some knowledge that her son was in danger. Sixth, a
member of the prosecutorial team engaged in conversations with the jury during the trial.
Seventh, either the district court or the district attorney sent or allowed to be sent an excluded
and extremely prejudicial exhibit into the hands of the jury during its deliberations.
I.
DENIAL OF DUE PROCESS IN EXCLUDING
TESTIMONY OF DEPUTY GAMMICK
Deputy District Attorney Gammick's offered testimony relating to Ms. Holmes' motives
for personally taking over this case could not have been properly excluded on the ground of
attorney-client privilege. Of course, at this stage, we have no way of knowing the proposed
content of Mr. Gammick's testimony. We do have the claim in Ms.
the claim in Ms. Labastida's brief that he was going to testify concerning selective
prosecution, apparently based on Ms. Labastida's claims of political ambition and racial
discrimination. I think that Ms. Labastida was entitled to explore these ramifications of her
case as well as Mr. Gammick's direct knowledge of the course of this prosecution as it related
to the crime and the charging process. There might possibly have been some kind of
executive privilege to be asserted, but certainly there was no attorney-client relationship
between Ms. Holmes and Mr. Gammick. The court erred by excluding this
constitutionally-oriented testimony.
II.
NO BASIS IN THE RECORD FOR A MURDER
CHARGE OR CONVICTION
The record contains no basis here for a murder charge, capital or otherwise. At the very
most, Ms. Labastida was guilty of child neglect; and it was a most extravagant prosecutorial
overkill for the district attorney to seek the death penalty in this case.
A totally impartial reader of this record, one divorced entirely from all of the
politically-charged facets of the casea district attorney seeking reelection, a minority
defendant, the politically correct hard-on-crime stance that must be affected by all elected
officials, whether executive, legislative or judicial
4
would have no difficulty at all in
seeing that this is not a murder case.
In all societies, murder is treated differently from other crimes. A malicious taking of
another's life calls for the most serious of penalties, death, or life imprisonment. Under our
statutes, murder can be committed either with express malice (a deliberate intention to
take another's life) or with implied malice (an abandoned and malignant heart).
5
No one
has suggested that Ms. Labastida intentionally killed her son. In fact, no one has suggested
that she killed him at all. If we were to search for some possible basis for a murder charge in
this case it would have to rest on proof of implied malicethat Ms.
__________

4
In a recent speech, United States Supreme Court Justice John Paul Stevens opined that the very worst of all of
the bad incidents relating to the election of judges was the natural susceptibility of judges to be influenced
unduly and unfairly in their judgments on criminal cases by the hard-on-crime political climate of the times. The
Nevada Supreme Court is not immune from this unhappy influence on its decisions, an influence which I believe
to be responsible for the clearly wrong and unjust decision that the court makes today.

5
NRS 200.020.
would have to rest on proof of implied malicethat Ms. Labastida possessed an abandoned
and malignant heart.
Now, of course, no one (least of all Ms. Labastida) has the slightest notion as to what
means abandoned and malignant heart; but, we do have case law that elaborates on the
meaning of implied malice and, consequently, on the meaning of the archaic term employed
in the statute. Sheriff v. Morris, 99 Nev. 109, 118, 659 P.2d 852, 859 (1983), teaches us:
[A] felony which would support the application of this second degree felony murder
rule, would have to be one which is inherently dangerous when viewed in the abstract.
There can be no deterrent value in a second degree felony murder rule unless the felony
is inherently dangerous since it is necessary that a potential felon foresees the
possibility of death or injury . . . .
(My emphasis.)
Under the second degree murder rule just quoted, an accused may be found guilty of
second-degree murder if he/she engages in inherently dangerous conduct that a potential
felon foresees will result in death or mortal injury. (My emphasis.) Law school illustrations
of inherently dangerous conduct that will foreseeably result in death or mortal injury are
irresponsible and reckless conduct such as the shooting of a cannon during the Times Square
New Year's Eve celebration or dropping heavy objects from the top of a city building during
the rush hour. The accused in such cases cannot complain, I did not intend to kill any one,
because creating these kinds of foreseeable risks makes the unintentional killer criminally
liable for felonious homicide, murder, or in some instances, manslaughter. It all depends on
the unacceptability of the risk and the actor's culpability in creating it.
6

Murder accompanied by implied malice, is, then, an unintentional murder committed in
the performance of a reckless or irresponsible act which, by its nature, is inherently
dangerous and one in which the perpetrator foresees the possibility of death or injury.
Morris, 99 Nev. at 118, 659 P.2d at 859. The trial court tried to capture the essence of
implied malice when it instructed the jury (Instruction No. 26) that:
Implied malice may be found when:
1. The killing resulted from an intentional act.
2. The natural consequences of the act are dangerous to human life, and
__________

6
George Fletcher, Rethinking Criminal Law 259 (Little, Brown and Co. 1978).
3. [T]he act was deliberately performed with knowledge of the danger to, and with
conscious disregard for, human life.
Ms. Labastida had no opportunity to defend against an unintentional, inherently
dangerous, implied malice kind of murder. As explained above, the act of which she was
accused was that she did willfully, unlawfully, and with malice aforethought, deliberation
and premeditation, kill and murder or aid and abet . . . [Strawser] to kill and murder Thunder
Michael Lightfoot Strawser. There is nothing in the charging document that would put Ms.
Labastida on notice that she was being charged with having committed a foreseeably
dangerous act with knowledge of the danger to, and with conscious disregard to human life.
If Ms. Labastida had known that this kind of murder was to be the thrust of the charges
against her she would surely have taken a different approach to the case; but this is not the
essence of my point here.
What strikes me is how clear it is that the court's instruction does not apply to the facts in
this case. There is no evidence to support a jury finding (1) that Strawser's killing of this child
resulted from an intentional act on the part of Ms. Labastida, or (2) that the natural
consequences of Ms. Labastida's intentional act[s] are dangerous to human life or (3) that
the intentional, dangerous acts were deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life. At worst, Ms. Labastida was guilty of faulty
perception and faulty predictive powers. There is nothing in the record to suggest that
Strawser's killing of his son had anything to do with any intentional act on the mother's
part. There is nothing in the record to suggest that anything that Ms. Labastida did or did not
do was inherently dangerous to human life. Finally, there is nothing that would support a
jury's finding that any supposed dangerous acts or omissions committed by Ms. Labastida
were deliberately performed with knowledge that they were dangerous to her son's life or
performed with a conscious disregard for her son's life. The whole idea that this mother
deliberately performed some act that she knew would result in her child's death or that she
had a conscious disregard for her son's life approached the absurd. Ms. Labastida cannot
possibly stand convicted under the wording given to the jury in Instruction No. 26. It is no
wonder a juror wrote to the newspaper that he had been bothered by his decision to go
along with a second-degree murder conviction and that this woman should not have been
sentenced to life for something she did not do.
The juror's conviction that Ms. Labastida has been convicted for "something she did not
do" is magnified when we consider what the district attorney told the jury about the
nature of the critical issue in this case, implied malice.
for something she did not do is magnified when we consider what the district attorney told
the jury about the nature of the critical issue in this case, implied malice.
The only real exposure that the jury got to the difficult concept of implied malice as it
relates to second-degree murder came from fatally misleading statements made to the jury by
District Attorney Holmes. The district attorney told the jury that it did not have to decide the
question of malice based on the evidence and that there was a conclusive presumption of
malice. Here is what Ms. Holmes had to say to the jury:
[T]he law permits the jury to imply malice instead of having to deduce it from the
evidentiary finding beyond a reasonable doubt. Legal conclusive presumption once
evidence shows insufficient provocation.
I must admit that Ms. Holmes' statement to the jury makes no sense; still, this
representation of the State clearly got the message across that the jury did not have to base its
findings on implied malice on the evidentiary finding beyond a reasonable doubt and that
there was a legal conclusive presumption of malice, once there was a showing of an
undefined insufficient provocation. The force of Ms. Holmes' argument is brought home by
the note sent to the judge by the jury:
Can we get a transcript of D.A. Holmes['] second closing statement from 1-19-94[?]
This request tells me that the jury was paying a lot of attention to Ms. Holmes' closing
arguments.
I have searched and searched in trying to understand how Ms. Labastida could possibly
have been convicted of murder. The district attorney's telling the jury that a finding of malice
did not have to be based on the evidence and that there was a conclusive presumption of
malice comes as close as anything to explaining the anomalous result in this case.
Aside from the wording of Instruction No. 26, it is very clear to me that there is nothing in
the evidence to support a second-degree murder conviction based on implied malice.
Second-degree murder convictions are almost always based on the use of a firearm or other
inherently dangerous instrumentality; and it is anomalous indeed for us to affirm this
murder conviction, which would appear, if it had any basis at all, to be based on negligence
rather than malicious conduct.
This court has refused twice to permit recklesseven intoxicatedautomobile driving to
be the basis for second-degree murder charges. In Sheriff v. LaMotte, 100 Nev. 270, 680 P.2d
333 (1984), we affirmed the trial court's granting habeas corpus to a defendant charged with
murder in a vehicular homicide case.
Even though the defendant had been driving in an intoxicated condition, we agreed with the
trial court that this was not the kind of conduct that was inherently dangerous in the abstract
and that would, therefore, support a murder charge based on implied malice. Id. at 272, 680
P.2d at 334; see also Johnston v. State, 101 Nev. 94, 692 P.2d 1307 (1995). For this court to
hold, as it impliedly does in this case, that a mother's supposed failure to predict that her son
was going to be murdered by his father is inherently dangerous and the basis for a murder
conviction is contrary to our cases and contrary to common justice.
III.
EFFECT OF MS. LABASTIDA'S MURDER ACQUITTAL
I am of the view that the jury's acquittal on the primary charge, first-degree, child-abuse
murder, of itself, forecloses Ms. Labastida's present murder conviction.
At the same time the jury acquitted Labastida of first-degree, child-abuse murder, it found
that she was guilty of child neglect. Child murder and child neglect are mutually inconsistent
and irreconcilable terms; just as a person cannot be found guilty of murder and manslaughter
for the same homicidal act. If we analyze the child-abuse, first-degree murder statute, this
reality becomes even more obvious. The child-abuse murder statute is analogous to felony
murder in that it is particularized and eliminates the traditional elements of first-degree
murder: premeditation and deliberation. Not until 1989, when the legislature amended
NRS.200.508(1)(b), did child-abuse murder become first-degree murder without the necessity
of proving willfulness, deliberation or premeditation. After passage of the amendment, all
child abuse which results in death is, without more, first-degree murder.
Child abuse, according to NRS 200.508 is committed by willfully causing a child to suffer
unjustifiable physical pain or mental suffering or willfully placing a child in a situation
where the child may suffer physical pain or mental suffering as the result of abuse and
neglect. The jury exonerated Ms. Labastida from the charges that she had willfully caused
her son pain or that she willfully placed him in a situation where the child may suffer pain.
At the same time that the jury adjudicated Labastida's innocence of child abuse, it found her
guilty of child neglect or endangerment, which, by statute, does not involve the willful
causing or permitting a child to suffer pain but, rather, relates only to custodial neglect by one
responsible for the safety or welfare of a child who permits or allows that child to suffer
pain.
The majority opinion states that the second-degree murder conviction in this case is
supportable because the killing cannot be manslaughter. The majority's argument appears to
be: Her son is dead. If she is not guilty of manslaughter, she must be guilty of murder. This
argument cannot be sustained. The involuntary manslaughter statute does, as stated in the
majority, except from the definition of manslaughter conduct which naturally tends to
destroy the life of a human being; but this adds nothing to the definition of implied malice
and of second-degree murder, a crime that is defined by statute and elaborated in our cases.
Before leaving the subject of manslaughter, I want to point out that even though it is
apparent that Ms. Labastida's conduct does not fall into the range of felonious homicide of
any description, certainly defense counsel should not have let the case go to the jury on a
murder charge without requesting that the court give an instruction on involuntary
manslaughter as a lesser offense. In my view, counsel's failure to request an instruction on
manslaughter in this case was ineffective assistance of counsel as a matter of law; but this is
not the point that I make. My point here is simply to say that the majority's reliance on the
manslaughter statute to show what manslaughter is not does not detract from my position that
a murder conviction cannot be based upon negligent conduct and conduct that does not
naturally tend[] to destroy human life.
A conviction of second-degree murder of the neglectful Ms. Labastida is a legal
impossibility. Ms. Labastida's actions in this case most certainly do not support a finding that
she acted with malice as it is defined in our criminal law.
7
As I have pointed out,
second-degree murder cases ordinarily involve deaths that result from such inherently
dangerous conduct as the misuse of dangerous instrumentalities or acts involving deadly
weapons, or from conduct that is so inherently deadly and disregardful of human life that
it is deemed to be evidence of "an abandoned and malignant heart."
__________

7
The worst thing that Ms. Labastida can be said to have done is that she failed to remove her baby from contact
with Strawser until it was too late. This is a typical case in which a woman has been trapped by fear by an
abusive and dominating male figure. Her failure or inability to remove herself and her baby from Strawser's
household is indeed pitiable, but it is not murder.
It appears to me that the jury was in a sense instructed by the court to bring in a verdict of second-degree
murder. Instruction No. 27 instructed the jury that if the unlawful killing of a human being is done with malice
aforethought . . . [and] is not perpetrated by means of torture, or child abuse, then the offense is murder in the
second degree. (My emphasis.) The jury was certainly entitled to find that Ms. Labastida's neglect was
unlawful. Malice aforethought, according to the trial judge, could be based on the depraved heart theory,
referring to NRS 200.020(2) which defines implied malice as arising under circumstances in which no
considerable provocation appears or when all the circumstances of the killing show an abandoned and malignant
heart. It would appear, then, that Ms. Labastida was convicted for possessing an abandoned and malignant
heart, whatever that might be. This kind of heart goes undefined in the court's instruction. I believe that the jury
concluded that the unlawful killing was not perpetrated by
second-degree murder cases ordinarily involve deaths that result from such inherently
dangerous conduct as the misuse of dangerous instrumentalities or acts involving deadly
weapons, or from conduct that is so inherently deadly and disregardful of human life that it is
deemed to be evidence of an abandoned and malignant heart. In the face of the
uncontradicted testimony of the murderer, Strawser, that he had been secretly abusing the
child and had himself, alone, killed the child and that he did this in a manner intentionally
devised to conceal his horrible deeds from the mother's observation, a jury could not have
properly concluded that any conduct on the part of Ms. Labastida naturally tend[ed] to
destroy human life.
IV.
FAULTY CHARGING DOCUMENT
I have already touched on the defects in the criminal pleading in this case; but, because of
the Due Process implications of the faulty Information, I will discuss this problem at greater
length and set it up as an independent reason that reversal of this conviction is required.
I have set out the murder charges (Count I of the Information) in the margin.
8
I have done
this so the reader can get a flavor of criminal pleading at its worst. "
__________
means of torture or child abuse so that then the offense is murder in the second degree. No effort was made to
explain or define malice aforethought as it might apply in this case, and the jury was told in effect that Ms.
Labastida should be convicted of second-degree murder. I consider this to be error in itself.

8
Count I of the Information reads as follows:
That the said defendants, KRISEYA J. LABASTIDA and MICHAEL ROBERT STRAWSER, together
or individually, on or between the 4th day of December A.D. 1992, and the 9th day of January A.D.
1993, or thereabout, and before the filing of this Information, at and within the County of Washoe, State
of Nevada, did willfully, unlawfully, and with malice aforethought, deliberation and premeditation, kill
and murder or aid and abet one another to kill and murder THUNDER MICHAEL LIGHTFOOT
STRAWSER, a baby seven weeks of age, by means of inflicting or allowing, permitting or failing to
restrain one another from inflicting multiple and repeated trauma, internal injuries, bone fractures,
abrasions and lacerations upon the said baby THUNDER MICHAEL LIGHTFOOT STRAWSER from
which he died on January 9, 1993; or
that the said defendants, KRISEYA J. LABASTIDA and MICHAEL ROBERT STRAWSER, together or
individually, did willfully and unlawfully and with malice aforethought, kill and murder or aid and abet
one another to kill and murder THUNDER MICHAEL LIGHTFOOT STRAWSER, a baby seven weeks
of age, during the commission of and in the furtherance of torture or child abuse, in that said defendants
did inflict or allow, permit or fail to restrain one
criminal pleading at its worst. Or appears so many times in the two paragraphs of this count
that it is impossible for Ms. Labastida or anyone else to understand with any degree of
certainty just what acts Ms. Labastida is claimed to have committed. This alone is sufficient
ground for reversing this murder conviction
9
; but, in order to make my main pointthat
murder is a legal impossibility in this caseI will pretend that there is some semblance of
meaning to be found in this criminal pleading.
It is, as I have said, extremely difficult to discover from reading the Information just what
acts were being charged as the basis for any kind of criminal liability on the part of Ms.
Labastida. The best I can do with Count I (the only count on which a murder charge can
possibly be based) of the Information is this: The essence of the charges made in Count I is
that Ms. Labastida committed premeditated and deliberated murderthat Labastida and
Strawser together or individually did willfully, unlawfully, and with malice aforethought,
deliberation and premeditation, kill and murder or that they aid[ed] and abet[ted] one
another to kill and murder. There are two paragraphs in Count I.
The first paragraph is, as suggested before (see footnote 8), virtually unintelligible; but if
one strains to make sense out of it, it can be determined that Ms. Labastida is being charged
either with an intentional killing (premeditated and deliberated) or with aiding and abetting a
first-degree murder (admittedly committed by the father of the child, Michael Strawser). The
jury acquitted Ms. Labastida of first-degree murder, that is to say, both child-abuse murder
and premeditated and deliberated murder; therefore, Ms. Labastida's conviction of
second-degree, unintentional, unpremeditated, undeliberated murder cannot be based on the
first-degree murder allegations contained in the first paragraph of Count I. The second-degree
murder conviction must, then, be based, if at all, on the language contained in the second
paragraph of Count I.
The second paragraph charges first-degree, child-abuse murder, not first-degree,
premeditated murder (as is done in the first paragraph).
__________
another from inflicting multiple trauma, internal injuries, bone fractures, abrasions and lacerations to the
said baby THUNDER MICHAEL LIGHTFOOT STRAWSER, all of which caused or contributed to the
death of said child on or about January 9, 1993.

9
A criminal accusation must include a characterization of the crime and such description of the particular act
alleged to have been committed by the accused as will enable [her] properly to defend against the accusation.'
Simpson v. District Court, 88 Nev. 654, 660, 503 P.2d 1125, 1129 (1972) (quoting 4 R. Anderson, Wharton's
Criminal Law and Procedure 1760 at 553 (1957)).
paragraph). The second paragraph charges that Ms. Labastida and Strawser either together or
individually did actually kill and murder the child or aid and abet one another to kill
(which is to say that either Ms. Labastida aided and abetted Strawser or Strawser aided and
abetted Ms. Labastida to kill the child) either (1) in the furtherance of torture, (2) or in the
furtherance of child abuse or (3) by actually inflicting multiple trauma or (4) by acting to
allow, permit or fail to restrain one another from inflicting multiple trauma. Aside from the
previously discussed problems relating to disjunctive charges, it is hard to locate which of the
multiple possibilities (at least ten) are being relied on by the State to support a second-degree
murder conviction. To sort this out, one must, first, eliminate the charges of torture and child
abuse and the willful infliction of multiple trauma because second-degree murder does not
encompass these kinds of intentional, homicidal acts. NRS 200.030 defines first-degree
child-abuse murder in terms of torture, child abuse and premeditated and deliberate acts,
adding that all other murders shall be murder in the second degree. Thus, torture, child
abuse and premeditated murder are excluded from the ambit of second-degree murder
convictions, and the only remaining charge in the second paragraph of Count I that can
support a second-degree murder conviction is the charge that Strawser and Labastida
allow[ed], permit[ted] or fail[ed] to restrain one another from inflicting multiple trauma.
Let us suppose, then, that we have finally isolated a charge against Ms. Labastida that has
any relevance to a second-degree murder conviction. That would have to be the charge of
allowing or permitting or failing to restrain Michael Strawser in his murderous activities.
Allowing and permitting are ambiguous terms. These words could be read to mean either
that Ms. Labastida allowed (in the sense of negligently failing to stop Strawser from
injuring the child) the murder to happen, or it could mean that she was actively permitted or
condoned or abetted Strawser's murderous activities. If these words were taken to mean mere
negligent failure to be vigilant, then they might support a child neglect charge but not a
murder charge. If these words were taken to mean aiding and abetting the murder, we know
that Ms. Labastida did not aid or abet Strawser in the killing of her son. I will discuss in the
next portion of this dissent the adequacy of the child neglect charges and conviction; but let
me say for now only that permitting or allowing will not support a murder charge.
We must keep in mind at all times that it has never been suggested that Ms. Labastida
herself injured her child in any way and that the sole thrust of the prosecution's murder case
was that Ms.
Ms. Labastida should have known what Strawser was up to and should have done something
about it. In other words, the gist of the murder charge, if there is a murder charge, is that Ms.
Labastida was negligent, that she was neglectful, that she failed to perform a duty that the law
enjoined upon her. Such a breach of duty may constitute criminal child neglect, and in severe
cases maybe even manslaughter
10
; but mere neglect can never be the basis of a murder
conviction. The charge that Ms. Labastida neglectfully failed in her duty to protect her baby is
a far cry from child abuse and a far cry from child murder. The only evidence upon which
Ms. Labastida's murder conviction can be based is that of neglect, and neglect is not enough
to support a conviction of murder in any degree.
What must always be kept in mind is that the jury acquitted Ms. Labastida of child-abuse
murder and found her guilty of child neglect only. Ms. Labastida has been adjudicated to be
not guilty of willful child abuse as it relates to the death of her son. One thing is certain,
and this is that child neglect cannot be the predicate for a murder conviction.
V.
DEFECTS IN THE CHARGES AND CONVICTION
OF CHILD NEGLECT
Count III of the Information has the same problem as the murder charges in Count I,
overuse of the disjunctive. The charge is that Ms. Labastida, a person responsible for the
safety and welfare of her son, willfully and unlawfully did (1) neglect or endanger the
child by causing or allowing or permitting the child to suffer unjustifiable physical pain or
injury or mental suffering or (2) did place Thunder in a situation where he suffered said
physical pain or injury or mental suffering or (3) did neglect or fail to obtain proper
medical care and treatment for the child. We have no way of knowing which of the three
charges was the basis for the conviction on Count III. Whether Ms. Labastida was convicted
of neglecting the child by causing or allowing or permitting the child to suffer injury or of
placing the child in a situation where he suffered pain or of neglecting to obtain medical
care, the one essential element not known to the jury was the requirement that a person
cannot be criminally liable for child neglect unless she knows or has reason to know of
abuse or neglect, yet permits the child to be subjected to it."
__________

10
The trial court refused Ms. Labastida's request for a manslaughter instruction. This refusal was error and
helps to explain why Ms. Labastida was incorrectly convicted of murder.
subjected to it. Smith v. State, 112 Nev. 1269, 927 P.2d 14 (1996).
In Smith, this court held that the child neglect statutes, NRS 200.508(1)(a) and NRS
200.508(1)(b), when read as a whole . . . require knowledge or intent on the part of the actor
as a prerequisite to finding guilt. (My emphasis.) The court held that the statutory
definitions of allow' and permit' . . . are not drafted as clearly as would be preferred, but they
do establish with sufficient clarity the state of mind required to find guilt. Smith, 112 Nev. at
1276, 927 P.2d at 18. Smith defines allow in terms that require the person violating the
statute to know or have reason to know' of abuse or neglect and defines permit so as to
require that a violator must act in a way that a reasonable person' would not. The court in
Smith went on to hold that permit and allow are to be read in conjunction and that
both definitions establish the same requirement, namely, a person acts unreasonably and
is therefore criminally liable if she knows or has reason to know of abuse or neglect yet
permits or allows the child to be subject to it. 112 Nev. at 1277, 927 P.2d at 18. (My
emphasis.) In this way, Smith clarified the statutory requirement of knowledge and
reasonableness which defines the state of mind required for a finding of guilt and
effectively precludes punishment for inadvertent and ignorant acts. 112 Nev. at 1277, 927
P.2d at 18. Knowledge and reasonablenessMs. Labastida must have known of the
danger to her child; and she must have acted unreasonably upon that knowledge if she is to
be held criminally liable; yet the jury did not know this. Ms. Labastida did not have the
benefit of an instruction advising the jury on the state of mind required for a finding of guilt
and this made her subject to punishment for inadvertent and ignorant acts.
If, for example, the jury decided to convict Ms. Labastida for (2) placing the child in a
situation where he suffered pain, such a conviction would not be justified unless Ms.
Labastida knew that she was placing her baby in a situation that was going to result in
harm.
Instruction No. 35 told the jury that it was a violation of NRS 200.508 if Ms. Labastida
had placed [the child] in a situation where the child may suffer physical pain. (My
emphasis.) I do not think that there is any parent who has not, unwittingly, placed a child in a
situation where the child may suffer physical pain. Neither the instruction nor the statute
itself includes the necessary scienter, the knowledge that would lead a reasonable person to
believe that harm was going to result to the child.
Instruction No. 30 defines willfully only in reference to acts or omissions which are
done intentionally, deliberately, or designedly."
designedly. Such definition does not cover the type of knowledge that is necessary to convict
for child neglect. Ms. Labastida may have intentionally left her child in Strawser's custody,
but if she did not know of the danger she was placing her child in, then she cannot be
convicted of child neglect. Virtually anyone could be convicted of child neglect under the
instructions given to the jury. Every person who takes a child to a swimming pool or to an
amusement park is placing the child in a situation where the child may suffer harm. These
kinds of deliberate and intentional decisions do not constitute child neglect. The jury was
never told what child neglect is, and therefore, it could not properly convict Ms. Labastida of
this crime.
VI.
PROSECUTORIAL MISCONDUCT
As the State concedes in its answering brief, it appears that one of the prosecutors made
some comment regarding lunch to one of the jurors. Appellant's more general complaint is
that a deputy district attorney engaged in a conversation with one of the jurors while he was
still in the jury box . . . .
Whether the conversation was merely about lunch, the weather, or some other subject,
the mere fact that a prosecutor is caught conversing with a juror in the jury box cannot be
condoned. Trial counsel simply do not engage jurors in private conversation, either while the
jurors are in the jury box or out of it. In my opinion, the trial court committed reversible error
in not granting a mistrial for this prosecutorial misconduct.
With respect to the jury's receiving an excluded State's exhibit into the jury room, I have
no basis for charging that it was the district attorney rather that the court clerk who was
responsible for submitting for jury consideration a highly prejudicial exhibit that had been
excluded from evidence, so I will discuss this ground for reversal next under the category of
prejudicial clerical error.
VII.
PREJUDICIAL CLERICAL ERROR IN SUBMITTING
PREJUDICIAL, EXCLUDED EXHIBIT TO THE JURY
My final disagreement with the majority opinion relates to the sending into the jury room
of a prejudicial exhibit that the trial court had properly excluded from evidence as being not
connected to either of the defendants in this case.
In some manner, the jurors received in the jury room a highly prejudicial exhibit in the
form of a magazine in which there was a portrayal of a defaced baby, which defacement was,
according to the district attorney, "representative of the sign of the devil," namely, "a little
goat beard drawn onto the baby, the arched eyebrows, the upside-down cross in the
middle of the forehead . . . and the symbol of the devil . . . an eye in the middle of the
forehead and . . . horns . . . added onto the baby."
the district attorney, representative of the sign of the devil, namely, a little goat beard
drawn onto the baby, the arched eyebrows, the upside-down cross in the middle of the
forehead . . . and the symbol of the devil . . . an eye in the middle of the forehead and . . .
horns . . . added onto the baby. The pictorial defacement also bore the inscription Devil
Babies. Do You Have One? The exhibit was without question extremely prejudicial,
intimating that the defendants intentionally killed their devil baby. The trial judge refused
to admit the offer into evidence, as urged by the district attorney.
Prior to its being unlawfully sent into the jury room, the jury was aware of the existence of
this exhibit and had seen it at a distance during trial. The jury was also aware of the court's
obvious effort to conceal the exhibit from the jury during the testimony of Michelle Smith,
the defendants' landlady. The prejudicial effect of this exhibit was readily recognized by
Frederick Brown, who discovered the exhibit. Brown, owner of the building where the
murder took place, knew nothing of the murder but testified that he recognized the
significance of such an item and immediately notified the police about it. That such a
document was extremely prejudicial is just about beyond argument. The State argues,
however, that no harm was done because the judge told the jury to disregard the exhibit. The
court did not examine the jury to determine the extent of the prejudicial effect of the jury's
receiving this excluded exhibit in the jury room; and this is certainly not a case where a bland
admonition to disregard will suffice to overcome the harm done by such an obviously
prejudicial document.
I cannot understand how the clerk could possibly have sent this material into the jury
room, and I suspect that this court attach might have seen herself or himself as a member of
the prosecutorial team. In any event, an unconnected, defaced picture suggesting that the
defendants had killed their child because it was a devil baby is about as prejudicial an item
as I can possibly imagine.
Each of the seven prejudicial errors that I have discussed above warrants the reversal of
these convictions. The murder conviction should be set aside, and the child-neglect
conviction should be remanded for a retrial in which the defendant is given the benefit of
proper jury instructions.
____________
112 Nev. 1533, 1533 (1996) Pangallo v. State
JOHN JOSEPH PANGALLO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27292
December 30, 1996 930 P.2d 100
Appeal from an order of the district court denying a post-conviction motion for jail time
credits. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Prisoner brought post-conviction motion to receive pretrial jail credit. The district court
denied motion on grounds that prisoner had already received credit for time served against
sentences in other cases. Prisoner appealed. The supreme court held that: (1) petition for
post-conviction habeas relief, not post-conviction motion, was proper avenue for pursuing jail
time credit; (2) petition was insufficient in failing to specify sentences being served for
convictions other than one for which prisoner sought jail time credit and for failure to allege
that prisoner did not receive any credit in his other sentences for jail time at issue; and (3)
appeal would be dismissed without prejudice to right to file habeas petition properly
supported by specific factual allegations.
Affirmed.
Michael R. Specchio, Public Defender and John Reese Petty, Deputy Public Defender,
Respondent.
1. Criminal Law; Habeas Corpus.
Proper remedy for prisoner's challenge to failure to grant him jail time credits against sentence was petition for post-conviction
habeas relief, not post-conviction motion. NRS 34.724(2)(c).
2. Habeas Corpus.
Prisoner's technical error in labeling his request for jail time credit as motion for post-conviction relief rather than petition for
habeas corpus was not per se grounds for dismissal. NRS 34.724(2)(c).
3. Habeas Corpus.
Habeas corpus petitioner is not entitled to evidentiary hearing if factual allegations are belied or repelled by record. NRS
34.370(3).
4. Habeas Corpus.
Supreme court considers sufficiency of habeas claim not in abstract but in context of record. NRS 34.370(3).
5. Habeas Corpus.
Habeas corpus petitioner did not allege sufficient claim for jail time credits to require state to provide evidence to rebut or confirm
claim where, although petitioner alleged that he received no credit for specific time served in jail against his sentence, he
did not specify convictions other than one for which he sought jail time credit and did not allege that he did
not receive any credit in his other sentences for jail time at issue.
time served in jail against his sentence, he did not specify convictions other than one for which he sought jail time credit and did not
allege that he did not receive any credit in his other sentences for jail time at issue. Although record did not repel his claim, record was
insufficient to determine whether he deserved credit or deserved further proceedings on issue. NRS 34.370(3).
6. Habeas Corpus.
In absence of sufficient record to determine whether or not prisoner deserved credit for jail time or deserved further proceedings on
issue, reviewing court would affirm district court's order denying jail time credit to habeas corpus petitioner and dismiss appeal without
prejudice to petitioner's right to file habeas petition properly supported by specific factual allegations. NRS 34.370(3).
OPINION
Per Curiam:
On September 22, 1993, appellant John Joseph Pangallo pleaded guilty to one count of possession of a trafficking quantity of a
controlled substance in district court case number CR93-1696. A sentencing hearing was held on November 9, 1993. The district court
fined Pangallo $50,000 and sentenced him to seven years in prison, to run concurrently with sentences imposed in two other cases
(CR93-1523 and CR93-1370). The issue of credit for time served was not raised at the sentencing hearing, and Pangallo received no such
credit.
On June 7, 1995, Pangallo filed a proper person motion for jail time credits, contending that he was entitled to credit in this case for
eighteen days served in the county jail from July 16 to August 2, 1993, pursuant to NRS 176.055(1) and Anglin v. State, 90 Nev. 287, 292,
525 P.2d 34, 37 (1974). On July 5, 1995, the district court entered an order denying the motion: Because the Defendant has already
received credit for time served against his sentences in two other cases, he is not entitled to any credit in the above-entitled case.
1

Pangallo appeals, asking this court to remand the matter to the district court for an
evidentiary hearing.
__________

1
The order states that Pangallo's motion was opposed by the State, but no such written opposition is in the
record on appeal. The record on appeal does contain a document filed by the State on January 31, 1994, in
response to the Motion for Jail Time Credits filed by [Pangallo and] dated June 20, 1993. But no such motion
by Pangallo is in the record. The State's response informed the district court that
the State believes that defendant Pangallo received credit for time served in the Washoe County Jail
against his sentences in CR93-1523 and CR93-1370, and therefore, is not entitled to any credit in
CR93-1585 . . . . In addition, even assuming the defendant was entitled to credit for time served from July
16, 1993, through October 2, 1993, as claimed by his motion, that time period amounts to 79 days, not
the 89 days claimed by the defendant in his motion.
(Emphasis added.) The district court case number for the case before us is CR93-1696.
Pangallo appeals, asking this court to remand the matter to the district court for an
evidentiary hearing.
DISCUSSION
[Headnote 1]
NRS 34.724(2)(c) specifically provides that a post-conviction petition for a writ of habeas
corpus is the only remedy available to an incarcerated person to challenge the computation
of time that he has served pursuant to a judgment of conviction. Pangallo's request for jail
time credits is a challenge to the computation of time he has served. Therefore, Pangallo
should properly have filed a petition for post-conviction habeas relief, not a post-conviction
motion.
2
However, the procedural label per se is not crucial.
[Headnote 2]
In Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967), Peters moved to vacate his
judgment of conviction of grand larceny about two years after his conviction because a
necessary element of the crime, asportation, never occurred. The motion was granted, and the
State appealed, contending that the procedure was improper. This court deemed
the procedural label to be of little importance. The fact remains that courts which make
a mistake in rendering a judgment which works to the extreme detriment of the
defendant will not allow it to stand uncorrected. In a situation such as this, where . . .
the court has inherent power to reconsider a judgment for good cause shown, we hold
that such an issue may be raised by a motion to vacate judgment, though technically
in this state the matter probably should have been raised by a petition for habeas
corpus.
__________

2
NRS 34.724(2) provides that a post-conviction petition for habeas relief:
(a) Is not a substitute for and does not affect any remedies which are incident to the proceedings in the
trial court or the remedy of direct review of the sentence or conviction.
(b) Comprehends and takes the place of all other common law, statutory or other remedies which have
been available for challenging the validity of the conviction or sentence, and must be used exclusively in
place of them.
(c) Is the only remedy available to an incarcerated person to challenge the computation of time that he
has served pursuant to a judgment of conviction.
This court has recognized only two types of post-conviction challenges to a conviction or sentence that are
incident to the proceedings in the trial court under NRS 34.724(2)(a) and therefore not required to be brought
in a habeas petition pursuant to NRS 34.724(2)(b) and (c): motions to modify a sentence based on a mistaken
assumption about a defendant's criminal record and motions to correct a facially illegal sentence. Edwards v.
State, 112 Nev. 704, 707, 918 P.2d 321, 323-24 (1996). Pangallo's motion for jail time credits alleged neither a
mistaken assumption about his criminal record nor a facially illegal sentence.
such an issue may be raised by a motion to vacate judgment, though technically in this
state the matter probably should have been raised by a petition for habeas corpus.
Id. at 301, 429 P.2d at 551.
Similarly, this court has never concerned itself with the fact that inmates have described
their requests to receive credit for time spent in jail as motions rather than habeas petitions.
However, although we will not dismiss the appeal of such a request simply because it is not
labeled a petition for habeas relief, we must dismiss such an appeal where the movant or
petitioner has not met the relevant substantive statutory requirements for such a request.
[Headnote 3]
NRS 34.370(3) requires a habeas petitioner to state facts which show that the restraint or
detention is illegal. NRS 34.735 sets forth the form which a habeas petition must
substantially follow and requires a petitioner to inform the court of a number of things,
including the crime, case number, and sentence being served for any conviction other than the
one under attack and a concise statement, with supporting facts, of every ground in the
petition. This court has stated that a defendant seeking post-conviction relief must raise more
than conclusory claims for relief; a defendant must support any claims with specific factual
allegations that if true would entitle him or her to relief. Hargrove v. State, 100 Nev. 498,
502, 686 P.2d 222, 225 (1984). The defendant is not entitled to an evidentiary hearing if the
factual allegations are belied or repelled by the record. Id. at 503, 686 P.2d at 225.
[Headnotes 4, 5]
Pangallo has alleged no facts other than that he spent time in jail from July 16 to August 2,
1993 and received no credit for that time in his sentence in this case. Even if these allegations
are true, they do not establish that Pangallo is entitled to relief given that he was sentenced in
other cases in which he may have received credit for the jail time at issue. This court
considers the sufficiency of a habeas claim not in the abstract but in the context of the record.
Although we should not hypothesize facts that are not in the record which would render a
claim insufficient, we also should not ignore facts that are in the record which do. The record
does not repel Pangallo's claim, but it includes pertinent facts which Pangallo's allegations do
not address. Therefore, under the circumstances of this case, his claim lacks sufficient
specific factual allegations that, if true, show he is entitled to relief.
We have scrutinized the record on appeal, but it provides no basis to determine the
merits of Pangallo's claim.
basis to determine the merits of Pangallo's claim. See Jacobs v. State, 91 Nev. 155, 158, 532
P.2d 1034, 1036 (1975) (appellant has responsibility to provide materials necessary for
appellate review). This is not to say that a habeas petition for jail time credits must include
documentary exhibits that support the petitioner's factual allegations. If a petitioner alleges
specific facts unbelied by the record and sufficient to state a claim for jail time credits, the
State as the custodian of the relevant records has the burden to provide such records to
rebutor confirmthe petitioner's allegations. We do not know what records, if any, were
presented to the district court in this case. If Pangallo had alleged a sufficient claim for relief,
we would reverse the district court's order because there is nothing in the record before us to
rebut such a claim. However, Pangallo never alleged a sufficient claim.
[Headnote 6]
To meet the requirements for a habeas petition relevant to this case, Pangallo's motion, at a
bare minimum, should have specified the crimes, case numbers, and sentences being served
for convictions other than the one for which he seeks jail time credit and would have alleged
that he did not receive any credit in his other sentences for any of the jail time at issue. If
Pangallo's motion for jail time credits had provided this statutorily required information, the
State would have had to provide the evidence to rebut or confirm Pangallo's claim. This court
would then have before it a record sufficient to determine whether or not Pangallo deserves
credit for eighteen days spent in jail or deserves further proceedings on the issue. As it stands,
such a determination is not possible, and we therefore affirm the district court's order and
dismiss this appeal without prejudice to Pangallo's right to file a habeas petition on this
matter,
3
properly supported by specific factual allegations.
__________

3
In Edwards, this court admonished the district courts for
often addressing the merits of issues regarding the validity of convictions or sentences when such issues
are presented in motions to modify or correct allegedly illegal sentences without regard for the procedural
bars the legislature has established. If a motion to correct an illegal sentence or to modify a sentence
raises issues outside of the very narrow scope of the inherent authority recognized in this Opinion, the
motion should be summarily denied.
Edwards, 112 Nev. at 709 n.2, 918 P.2d at 325 n.2. This admonishment does not apply here because Pangallo's
motion for jail time credits is a request for traditional habeas relief, not a collateral challenge to his conviction or
sentence. Therefore, the procedural bars set forth in NRS 34.800 and 34.820 are inapplicable.
____________
112 Nev. 1538, 1538 (1996) Prabhu v. Levine
R. D. PRABHU, M.D., Appellant, v. LINDA RANDOLPH LEVINE, now LINDA WEBER
aka LINDA FRANCO, Respondent.
No. 21270
December 31, 1996 930 P.2d 103
Appeal from a judgment of the district court, entered pursuant to a jury verdict, awarding
money damages to respondent in a medical malpractice action. Eighth Judicial District Court,
Clark County; J. Charles Thompson, Judge.
Patient who suffered facial paralysis, hearing loss, and other injuries as result of surgical
removal of acoustic neuroma brought suit against physician for failure to diagnose tumor
when she first complained to him of her symptoms. Following jury trial before the district
court judgment was entered in patient's favor. Physician appealed. Upon rehearing, the
supreme court held that: (1) evidence supported finding that physician breached standard of
care and that such breach reduced patient's substantial chance for more favorable recovery;
(2) expert's deposition was properly introduced, even though he was never identified as
expert; (3) textbook chapter written by that expert was admissible under exception to hearsay
rule for medical writings; and (4) award of damages and interest in total amount of $950,000,
following reduction for patient's contributory negligence, was not excessive.
Former opinion withdrawn; affirmed on rehearing.
Miles, Pico & Mitchell and James R. Rosenberger, Las Vegas, for Appellant.
Daniel Marks, Las Vegas, for Respondent.
Hamilton & Lynch, Reno, for NTLA Amicus Curiae.
To prevail in medical malpractice action, plaintiff must show that doctor's conduct departed from accepted standard of medical
care or practice, that doctor's conduct was both actual and proximate cause of plaintiff's injury, and that plaintiff suffered damages.
In general, jury's findings will be affirmed on appeal if they are based upon substantial evidence in record, i.e., evidence which
reasonable mind might accept as adequate to support conclusion. NRCP 52(a).
3. Evidence.
Evidence in medical malpractice case supported finding that physician's failure to diagnose patient's acoustic neuroma caused
injuries, such as facial paralysis, that patient suffered after another physician discovered tumor and it was
surgically removed.
such as facial paralysis, that patient suffered after another physician discovered tumor and it was surgically removed. Expert testimony
indicated that physician breached standard of care by failing to perform neurological examination of patient and by failing to consider
any further neurological workup, that tumor was significantly smaller when defendant examined patient than when it was discovered
nearly one and one-half years later, and that patients with small tumors who do suffer post-operative facial paralysis have better
prognosis for recovery than patients with medium or large tumors. NRS 41A.100(1).
4. Trial.
Jury instruction in medical malpractice case was not internally inconsistent by virtue of its statements that jury should not reach
conclusions from speculation, and that jury could draw upon human experience.
5. Trial.
Medical malpractice jury instruction informing jury to rely on experts did not conflict with instruction informing jurors to rely on
their own human experiences.
Physician's deposition testimony concerning standard of care and causation was admissible in medical malpractice case, even
though prior to deposition, which occurred only 12 days before trial, plaintiff had designated physician only as treating physician, and
even though plaintiff never supplemented her interrogatory responses to identify physician as expert witness. Physician was designated
as witness, albeit as treating physician and cross-examined physician regarding pertinent standard of care and causation. NRS 50.275.
7. Evidence.
Threshold test for admissibility of testimony by qualified expert is whether expert's specialized knowledge will assist trier of fact to
understand the evidence or determine fact in issue. Goal is to provide trier of fact resource for ascertaining truth in relevant areas
outside ken of ordinary laity. NRS 50.275.
8. Appeal and Error; Evidence.
Decision concerning competency of witness to offer opinion as expert is within sound discretion of trial court, and ruling will not
be disturbed unless clear abuse of court's discretion is shown. NRS 50.275.
9. Evidence.
Textbook chapter written by ophthalmologist regarding eye care after acoustic neuroma surgery fit within hearsay exception for
medical writings, for purposes of medical malpractice action alleging that physician's failure to diagnose patient's acoustic neuroma
increased harm that patient suffered after another physician diagnosed her tumor and it was removed. Textbook chapter was directly
related to ophthalmologist's deposition testimony, introduced at trial, in which he described procedures he employed to repair patient's
post-operative eye problems, and chapter included study that described in detail percentages of patients with various symptoms and
tumor sizes. NRS 51.255.
10. Trial.
District court enjoys broad discretion in determining whether evidence should be admitted. NRS 48.015, 48.025, 48.035(1).
11. Evidence.
In considering medical writings, as with other evidentiary issues, district court has discretion to determine whether proffered
materials should be admitted.
It is appellant's responsibility to ensure that record on appeal contains material to which exception is taken; if such material is not
contained in record on appeal, missing portions of record are presumed to support district court's decision, notwithstanding appellant's
bare allegations to contrary.
Award of damages and interest in total amount of $950,000, after reduction for patient's contributory negligence, was not
excessive in medical malpractice action against physician whose failure to diagnose patient's acoustic neuroma resulted in greater
damage to patient after tumor was eventually discovered and removed. After surgeries to remove tumor, patient was left with hearing
loss and facial palsy, and underwent five additional surgeries so that her eye could function.
14. Damages.
Juries are permitted wide latitude in awarding tort damages, so long as evidence of damages can be objectively observed by jury
and court.
Per Curiam:
On June 24, 1993, this court issued an opinion in the above-captioned matter and reversed the judgment of the district court. Prabhu v.
Levine, 109 Nev. 607, 855 P.2d 543 (1993). Respondent subsequently petitioned this court for rehearing, and, on September 20, 1995,
rehearing was granted. We have carefully reviewed the record on appeal, the briefs, and the oral argument recording and have determined
that our previous opinion must be withdrawn because it overlooked material matters in the record. See NRAP 40(c)(2). We now issue this
opinion in the place of our prior opinion. As we conclude that the district court did not err below, the judgment is affirmed.
FACTS
Respondent, Linda Levine Weber Franco, was a registered nurse at Valley Hospital in Las Vegas, where appellant, Dr. R. D. Prabhu,
also worked. On February 19, 1982, Ms. Franco went to see Dr. Prabhu and complained of weakness, fatigue, dizziness, light-headedness,
palpitations, headaches, and episodes where she lost or almost lost consciousness. She denied having any problems with her vision or
hearing. Dr. Prabhu initially believed that Ms. Franco could be suffering from mitral valve prolapse, cardiac arrhythmia, hypoglycemia, or
hyperthyroidism.
From February 23 through February 25, 1982, Ms. Franco underwent testing at Valley Hospital at Dr. Prabhu's direction. Dr. Prabhu
characterized this testing as a complete workup; according to Ms. Franco, however, Dr. Prabhu negligently failed to order any type of
neurological tests. At trial, Dr. Prabhu testified that he did conduct neurologic tests by examining Ms.
testified that he did conduct neurologic tests by examining Ms. Franco's eyes, glands and
membranes. According to Dr. Prabhu, he found no signs of a neurological disorder that would
warrant further testing. Dr. Prabhu also testified that Ms. Franco did not report any symptoms
of neurological dysfunction.
Ultimately, Dr. Prabhu found no source for Ms. Franco's symptoms and diagnosed the
problem as vasovagal attacks from low blood pressure. According to Ms. Franco, Dr. Prabhu
informed her that all of her tests were normal and that she should reduce her caffeine intake.
Dr. Prabhu testified that he instructed Ms. Franco to return if her symptoms worsened and
suggested that she see an ear, nose and throat specialist because she had a sinus problem. Ms.
Franco testified that Dr. Prabhu never suggested that she see another physician and never
followed up on her condition after his initial diagnosis. Ms. Franco did see an ear, nose and
throat specialist, who recommended that she have an X-ray study of her inner ear, but the
X-ray was never performed.
Prior to February 1982, Ms. Franco suffered sick headaches once every one or two
weeks. Over the next seventeen months, the frequency of these headaches increased to two or
three per week. In addition, during this time period, Ms. Franco suffered some hearing loss,
more frequent dizzy spells, a loss of coordination and a deterioration in her handwriting. Her
speech became so slurred that she was subjected to ridicule. In December 1982 or January
1983, Ms. Franco began developing severe vision problems at close distances.
In July 1983, Ms. Franco saw a neurologist, Dr. Gerald Dunn, who performed a CAT scan
and diagnosed the problem as an acoustic neuroma, a benign brain tumor. Ms. Franco then
underwent four surgeries in July and August 1983, during which the tumor was removed. A
neurosurgeon, Dr. Franco Erculei, performed the surgeries. After the surgeries, Ms. Franco
could not walk, sit up, feed or bathe herself for three months. In addition, the surgeries left
her with hearing loss and facial palsy, including the inability to close her left eyelid. From
October 1984 to May 1986, Ms. Franco saw Dr. Robert Levine, an ophthalmologist, who
performed five additional surgeries so that Ms. Franco's eye could function. These surgeries
included installing a spring to open and close the eyelid, a cornea transplant, and two laser
surgeries.
Ms. Franco subsequently filed an action against Dr. Prabhu. At trial, Dr. Levine, the
ophthalmologist, testified that, based upon his review of Dr. Prabhu's records, Dr. Prabhu
breached the standard of care because he should have found the tumor. In particular, Dr.
Levine opined that Dr. Prabhu's list of possible causes was not sufficient and that, based on
Ms.
causes was not sufficient and that, based on Ms. Franco's symptoms, Dr. Prabhu should have
performed a general neurologic examination and should have ordered a neurologic
consultation while Ms. Franco was undergoing her battery of tests. Additionally, another
physician, Dr. Scott Deppe, testified that Dr. Prabhu breached the standard of care because he
failed to perform a neurologic exam and did not consider any further neurologic workup.
Dr. Dunn, who found the tumor, and Dr. David Freeman, a neurosurgeon retained as an
expert by Dr. Prabhu, opined that Dr. Prabhu did not breach the standard of care. Both Dr.
Levine and Dr. Freeman testified that if Dr. Prabhu had ordered a CAT scan, he would have
found the tumor.
Dr. Erculei testified that the tumor he removed from Ms. Franco's brain was about 3.5
centimeters in diameter. The experts agreed that this was a medium-sized tumor, since a
tumor less than 2.0 centimeters in diameter is considered small, and a tumor greater than 4.0
centimeters in diameter is considered large. Dr. Levine testified that in general, the larger the
tumor, the greater the resulting damage will be upon the tumor's removal. He opined that if
the tumor had been small, Ms. Franco probably would have had less facial paralysis and
would not have needed the additional eye surgeries. According to Dr. Levine, acoustic
neuroma patients with tumors of approximately two centimeters or less rarely require
additional surgery after removal, and the vast majority of those patients suffer no
post-operative facial paralysis. In addition, Dr. Levine testified that those patients who suffer
post-operative facial paralysis from small tumors have a better chance for recovery than
patients with medium or large tumors. Dr. Freeman testified that if a tumor is caught very
early, facial nerve paralysis might be avoided. Dr. Erculei, however, testified that Ms. Franco
probably would have sustained the same nerve damage even if the surgery had been
performed in February 1982.
No doctor could give an opinion as to the probable size of the tumor when Ms. Franco
went to Dr. Prabhu in February 1982. Drs. Prabhu, Levine, Erculei and Freeman did testify
that tumors grow over time and produce increasing pressure on adjacent brain structures.
Additionally, Dr. Levine opined that the growth of acoustic neuroma tumors over time results
in blurred vision but that this blurred vision does not occur until tumors reach the medium
size rangetwo centimeters in diameteror larger. In a study performed by Dr. Levine, 34
percent of tumor patients suffering from vision problems had medium sized tumors, and 64.5
percent had large tumors. No patient with a small tumor suffered any vision problems.
At the conclusion of trial, the jury returned a verdict in Ms. Franco's favor and awarded her
$14,500 in medical expenses, $17,400 in loss of earnings, $400,000 in past pain and
suffering, and $900,000 in future pain and suffering. The jury also found that Ms. Franco's
contributory negligence was forty percent, and the final judgment was reduced by this
amount. Ms. Franco's final award was $798,600, plus interest, for a total judgment of
$950,000.
On appeal, Dr. Prabhu contends that (1) Ms. Franco did not present adequate evidence of
causation; (2) two of the jury instructions were contradictory and therefore confused the jury;
(3) Dr. Levine's testimony regarding matters other than his treatment of Ms. Franco should
have been excluded because he was not designated as an expert witness; (4) the court erred in
admitting a pamphlet and textbook chapter written by Dr. Levine because they were
inflammatory and prejudicial; and (5) the amount of the jury's award shocks the conscience.
We conclude that none of Dr. Prabhu's assignments of error has merit and accordingly affirm
the judgment.
DISCUSSION
The causation evidence
[Headnotes 1, 2]
To prevail in a medical malpractice action, the plaintiff must establish the following: (1)
that the doctor's conduct departed from the accepted standard of medical care or practice; (2)
that the doctor's conduct was both the actual and proximate cause of the plaintiff's injury; and
(3) that the plaintiff suffered damages. Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805
P.2d 589, 590-91 (1991); Orcutt v. Miller, 95 Nev. 408, 411, 595 P.2d 1191, 1193 (1979). In
general, the jury's findings will be affirmed on appeal if they are based upon substantial
evidence in the record. Keystone Realty v. Osterhus, 107 Nev. 173, 807 P.2d 1385 (1991);
see NRCP 52(a). Substantial evidence has been defined as that which a reasonable mind
might accept as adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels,
102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389
(1971)).
[Headnote 3]
On appeal, Dr. Prabhu maintains that Ms. Franco failed to establish that he proximately
caused her damages. According to him, the expert medical testimony introduced in support of
Ms. Franco's claim was insufficient to prove a causal connection between his allegedly
negligent failure to diagnose the tumor and Ms. Franco's injuries.
The relevant inquiry on appeal is whether Ms. Franco presented competent expert
testimony that tended to show, to a reasonable medical probability, that Dr. Prabhu's
negligent act or omission caused the injuries or reduced a substantial chance for a more
favorable recovery. Perez, 107 Nev. at 6, 805 P.2d at 592; see NRS 41A.100(1). We conclude
that Ms. Franco presented substantial evidence that Dr. Prabhu breached the relevant standard
of care and reduced her substantial chance for a more favorable recovery.
In a medical malpractice case, expert medical testimony may be used to establish the
accepted standard of care and any deviation therefrom. NRS 41A.100(1). At trial, Ms. Franco
introduced expert testimony that Dr. Prabhu breached the accepted standard of care. Dr.
Deppe pointed out that Dr. Prabhu failed to perform a neurologic examination of Ms. Franco
and failed to consider any further neurologic workup. Dr. Deppe testified that in light of these
omissions, Dr. Prabhu violated the applicable standard of care. Dr. Levine also testified that
Dr. Prabhu breached the accepted standard of care because he failed to focus on a neurologic
cause for Ms. Franco's symptoms. Although two doctors testified that Dr. Prabhu did not
breach the standard of care, it is the jury's province to weigh the experts' credibility. See
Robinson v. G.G.C., Inc., 107 Nev. 135, 143, 808 P.2d 522, 527 (1991).
Causation in a medical malpractice case may also be proved with expert medical
testimony. NRS 41A.100(1); see Perez, 107 Nev. at 6-7, 805 P.2d at 592. Although no direct
evidence regarding the tumor's size in February 1982 was available, circumstantial evidence
suggested that the tumor was significantly smaller at that time. As outlined above, the experts
testified that tumors grow over time and place increasing pressure on the adjoining brain
tissue. Dr. Levine testified that the growth of acoustic neuroma tumors over time results in
blurred vision and that significant interference with vision does not occur until the tumors are
medium sized or larger. Dr. Prabhu testified that Ms. Franco did not complain of vision
problems in February 1982, and both Ms. Franco and Dr. Freeman testified that in December
1982 or January 1983, Ms. Franco began developing severe vision problems at close
distances. Additionally, Ms. Franco testified that her symptoms grew dramatically worse
between February 1982 and July 1983.
Dr. Levine also explained that acoustic neuroma patients with tumors of two centimeters
or less rarely suffer post-operative paralysis and seldom need additional surgery after the
tumor is removed. Additionally, he stated that those patients with small tumors who do suffer
post-operative facial paralysis have a better prognosis for recovery than patients with
medium or large tumors.
prognosis for recovery than patients with medium or large tumors. During Dr. Levine's
testimony, a chapter that he wrote regarding eye care after acoustic neuroma surgery was
admitted into evidence. A portion of this chapter mirrored Dr. Levine's testimony about
vision problems and tumor size, as well as the prognosis for patients with small tumors and
larger tumors. Specifically, the chapter included a summary of statistics regarding acoustic
neuroma patients, their pre-operative and post-operative symptoms, and correlating tumor
sizes (small, medium or large). Dr. Freeman also testified that if a tumor is caught very early,
facial nerve paralysis might be avoided.
Based upon the information that was presented at trial, we conclude that the jury was
presented with substantial evidence from which it could find that Dr. Prabhu breached the
standard of care and that this breach reduced Ms. Franco's substantial chance for a more
favorable recovery.
The jury instructions
[Headnote 4]
Dr. Prabhu maintains that the district court erred by giving two of Ms. Franco's proffered
jury instructions. First, Dr. Prabhu contends that Instruction 26 is internally inconsistent
because in the last sentence of the first paragraph, the jury is instructed not to reach
conclusions from speculation, and in the last sentence of the second paragraph, the jury is told
that it may draw upon human experience.
1
Dr. Prabhu offers no explanation as to why these
concepts are inconsistent, and we conclude that they are not.
__________

1
Instruction 26 reads as follows:
The plaintiff is required to produce evidence that the conduct of the defendant has been a substantial
factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance
of the evidence. This means that he must make it appear that it is more likely than not that the conduct of
the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is
not enough; and when the matter remains one of pure speculation and conjecture, where the probabilities
are at best evenly balanced, you must find for the defendant.
The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He is not required to
eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he
introduces evidence from which you may conclude that it is more probable that the event was caused by
the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man
can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a
matter of ordinary experience, a particular act or omission might be expected to produce a particular
result, and if that result has in fact followed, the conclusion may be justified that the causal relation
exists. In drawing that conclusion you are permitted to draw upon ordinary human experience as to the
probabilities of the case.
these concepts are inconsistent, and we conclude that they are not. Jurors must always draw
upon their human experience in making findings.
[Headnote 5]
Dr. Prabhu also asserts that Instruction 7,
2
which tells the jury to rely on the experts,
conflicts with the last sentence of Instruction 26, which instructs the jurors to rely on their
own human experiences. As explained above, however, the jurors must use their own
experiences in making their findings. When several expert witnesses testify differently, the
jurors must necessarily rely on their human experiences in determining which experts to
believe. We are therefore unpersuaded by Dr. Prabhu's assertion.
Dr. Levine's testimony
[Headnote 6]
At trial, Dr. Levine did not testify in person. Instead, his deposition transcript was read
into the record. Dr. Prabhu contends that the district court erred in admitting Dr. Levine's
deposition testimony because his deposition was taken only twelve days before trial and
because prior to the deposition, Ms. Franco had designated him only as a treating physician.
In addition, Dr. Prabhu points out that Ms. Franco never supplemented her interrogatory
responses to identify Dr. Levine as an expert witness. According to Dr. Prabhu, his counsel
was forced to cross-examine Dr. Levine without prior knowledge that Dr. Levine would
answer questions regarding the standard of care and causation. Dr. Prabhu asserts that Ms.
Franco's failure to identify Dr. Levine at an earlier time violated NRCP 26 and that Dr.
Levine's testimony, in this regard, should have been excluded.
3

__________

2
Instruction 7 states as follows:
You must determine the standard of professional learning, skill and care required of the defendant only
from the opinions of the physicians and surgeons including that of the defendant who have testified as
expert witnesses as to such standard.
You should consider each such opinion and should weigh the qualifications of the witness and the reasons
given for his opinion. Give each opinion the weight to which you deem it entitled.
You must resolve any conflict in the testimony of the witnesses by weighing each of the opinions
expressed against the others, taking into consideration the reasons given for the opinion, the facts relied
upon by the witness, his relative credibility, and his special knowledge, skill, experience, training and
education.

3
NRCP 26(b)(4)(A)(i) provides as follows:
A party may through interrogatories require any other party to identify each person whom the other party
expects to call as an expert witness at trial, to state the subject matter on which the expert is
[Headnotes 7, 8]
NRS 50.275 provides that [i]f scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by special knowledge, skill, experience, training or education may
testify to matters within the scope of such knowledge. This court has previously determined
that
[t]he threshold test for the admissibility of testimony by a qualified expert is whether
the expert's specialized knowledge will assist the trier of fact to understand the
evidence or determine a fact in issue. The goal of course, is to provide the trier of fact a
resource for ascertaining truth in relevant areas outside the ken of ordinary laity.
Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987). In addition, we have
recognized that [a] decision concerning the competency of a witness to offer an opinion as
an expert is within the sound discretion of the trial court[,] and the ruling will not be
disturbed unless a clear abuse of the court's discretion is shown. Cheyenne Construction v.
Hozz, 102 Nev. 308, 311, 720 P.2d 1224, 1226 (1986). Here, Dr. Levine was not designated
as an expert witness. He was, however, designated as a witness, albeit as a treating physician.
In addition, Dr. Prabhu's counsel attended the deposition and cross-examined Dr. Levine
regarding the pertinent standard of care and causation. The district court determined that Dr.
Levine's testimony should be admitted, and we conclude that the district court did not abuse
its discretion in so ruling.
The textbook chapter and pamphlet written by Dr. Levine
[Headnote 9]
During trial, and over Dr. Prabhu's hearsay and relevance objections, the district court
admitted a textbook chapter and a pamphlet written by Dr. Levine regarding eye care after
acoustic neuroma surgery. Dr. Prabhu now complains that these materials were hearsay and
also prejudicial, as they included distasteful photographs and drawings of disfigured eyes.
__________
expected to testify, and to state the substance of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion.
Additionally, NRCP 26(b)(5)(G) states as follows:
Except as provided herein, upon objection of a party who has served his list of witnesses in compliance
with the provisions hereof, no party required to serve a list of expert witnesses on the objecting party may
call an expert witness to testify except for purposes of impeachment unless the requirements of 26(b)(5)
for that witness have been met.
[Headnote 10]
At trial, only relevant evidence is admissible. NRS 48.025. Relevant evidence is defined as
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.
NRS 48.015. Even if evidence is relevant, the district court must also determine whether its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury. NRS 48.035(1). The district court enjoys broad
discretion in determining whether evidence should be admitted. See, e.g., Kazalyn v. State,
108 Nev. 67, 71-72, 825 P.2d 578, 581 (1992).
[Headnote 11]
Hearsay, which is generally inadmissible, is defined as a statement offered in evidence to
prove the truth of the matter asserted. NRS 51.035. NRS 51.255 creates, under certain
circumstances, an exception to the hearsay rule for medical writings:
To the extent called to the attention of an expert witness upon cross-examination or
relied upon by him in direct examination, a statement contained in a published treatise,
periodical or pamphlet on a subject of history, medicine or other science or art, is not
inadmissible under the hearsay rule if such book is established as a reliable authority by
the testimony or admission of the witness or by other expert testimony or by judicial
notice.
In considering medical writings, as with other evidentiary issues, the district court has
discretion to determine whether the proffered materials should be admitted. See, e.g.,
Foreman v. Ver Brugghen, 81 Nev. 86, 398 P.2d 993 (1965) (discussing NRS 51.040, which
preceded NRS 51.255).
During his deposition, Dr. Levine described the procedures he employed to repair Ms.
Franco's post-operative eye problems. In particular, he discussed Ms. Franco's brow droop,
inability to close her left eye, and problems with her cornea. Dr. Levine explained that he
surgically opened her eyelids, which had been sewn together, revised the eyelid margins, and
implanted a palpebral spring to allow the lids to close. In addition, Dr. Levine performed
surgery on Ms. Franco's damaged cornea. Later in his testimony, Dr. Levine explained that
post-operative complications and recovery are directly related to tumor size and that
according to a statistical study that he performed, patients with small tumors rarely have
post-operative facial paralysis, but patients with larger tumors frequently suffer such
paralysis. In addition, Dr. Levine testified that patients with tumors smaller than two
centimeters generally do not suffer from pre-operative vision problems.
than two centimeters generally do not suffer from pre-operative vision problems.
This testimony was directly related to Dr. Levine's textbook chapter, which discusses
various problems related to post-operation neuroma patients, including brow droop, inability
to close the eye, and cornea problems. The textbook chapter also discusses the techniques
employed by Dr. Levine to improve Ms. Franco's problems, such as eyelid margin revisions
and palpebral springs. In addition, the chapter includes a statistical study of ocular problems
related to acoustic neuromas, including both pre-operative and post-operative signs and
symptoms. This study describes in detail the percentages of patients with various symptoms
and the correlating tumor sizes (small, medium or large).
We conclude that with regard to those portions of the chapter that mirrored and explained
Dr. Levine's testimony, the district court did not abuse its discretion in ruling that the
textbook chapter was both relevant and a reliable authority. With regard to the portions of the
textbook chapter that were not directly related to Dr. Levine's testimony, we conclude that
they were not hearsay because they were not offered for the truth of the matter asserted.
Specifically, they were not offered to prove that Dr. Prabhu's lack of diagnosis increased the
harm to Ms. Franco or to show the damages suffered by Ms. Franco as a result of the tumor's
size. As a consequence, the hearsay exception delineated in NRS 51.255 did not apply with
regard to these portions of the chapter. Further, we conclude that the district court did not
abuse its discretion in admitting these parts of the chapter as relevant evidence with a
probative value not substantially outweighed by the danger of unfair prejudice.
[Headnote 12]
Although in his designation of the record on appeal, Dr. Prabhu designated all pleadings,
papers and documents on file, the pamphlet about which he complains is not included in the
record on appeal. It is the appellant's responsibility to ensure that the record on appeal
contains the material to which exception is taken. If such material is not contained in the
record on appeal, the missing portions of the record are presumed to support the district
court's decision, notwithstanding an appellant's bare allegations to the contrary. Riggins v.
State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991), rev'd on other grounds, 504 U.S. 127
(1992). We therefore have no basis on which to review Dr. Prabhu's contention and must
assume that the district court was correct in its ruling. See Schouweiler v. Yancey Co., 101
Nev. 827, 831, 712 P.2d 786, 791 (1985) (concluding that absence of trial transcript in record
precluded review); Carson Ready Mix v. First Nat'l Bk., 97 Nev. 474, 476, 635 P.2d 276, 277
(1981) {recognizing that this court "cannot consider matters not properly appearing in the
record on appeal").
(recognizing that this court cannot consider matters not properly appearing in the record on
appeal). Moreover, if, as Dr. Prabhu alleges, the pamphlet did not pertain to Dr. Levine's
testimony, then it likely fell without the hearsay rule. As discussed above, the district court
has broad discretion in determining whether evidence is relevant and whether or not its
probative value is substantially outweighed by the danger of unfair prejudice.
The amount of the jury's award
[Headnotes 13, 14]
Finally, Dr. Prabhu contends that because Ms. Franco would have needed surgery in any
event, the damages awarded by the jury are too high. According to Dr. Prabhu, the damages
were improperly influenced by passion and prejudice. This court, however, has consistently
permitted juries wide latitude in awarding tort damages, so long as evidence of the damages
can be objectively observed by the jury and the court. See, e.g., Harris v. Zee, 87 Nev. 309,
486 P.2d 490 (1971); Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961). Here, the
jury viewed Ms. Franco's injuries during trial, and we are not convinced that the damages
awarded are inappropriately high.
For the foregoing reasons, we conclude that the district court did not err below.
Accordingly, the judgment is affirmed.
4, 5

__________

4
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.

5
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor to
sit in place of The Honorable Charles E. Springer, Justice. Nev. Const., art. 6, 4.
____________

Nevada Reports 1996 (112 Nev.) PDF

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