Nevada Reports 1992 (108 Nev.) PDF
Nevada Reports 1992 (108 Nev.) PDF
Nevada Reports 1992 (108 Nev.) PDF
1, 1 (1992)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 108
____________
108 Nev. 1, 1 (1992) Dickson v. State
KEVIN DICKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20972
January 2, 1992 822 P.2d 1122
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
possession of a controlled substance. Third Judicial District Court, Lyon County; Mario G.
Recanzone, Judge.
Defendant was convicted in the district court of possession of controlled substance.
Defendant appealed. The supreme court held that it was error to allow jury to see defendant in
chains and error was harmful.
Reversed.
Mowbray, C. J., dissented.
Hager & Mausert and Gordon E. Logan, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Keith Loomis, District Attorney
and Robert Estes, Deputy District Attorney, Lyon County, for Respondent.
108 Nev. 1, 2 (1992) Dickson v. State
1. Criminal Law.
It was error to allow jury to see defendant in chains and error was harmful; while not all jurors saw defendant in chains, incident
was discussed at length in front of all jurors in voir dire, at least one juror indicated it would be hard to weigh evidence fairly
because of that incident, other jurors indicated they felt sympathy for defendant because of seeing him in chains, and evidence against
defendant was extremely close.
2. Criminal Law.
When error in trial infringes on defendant's constitutional rights, error may be deemed harmless only if appellate tribunal is able to
declare belief that it was harmless beyond a reasonable doubt.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
possession of a controlled substance. NRS 453.336. The district court sentenced appellant to
eighteen months in the Nevada State Prison.
On April 26, 1989, Deputy Sheriff Jeroen Wynands went to a trailer with two other
deputies for the purpose of arresting appellant on an outstanding warrant. Officer Wynands
knocked on the door of the trailer, and appellant opened the door. Appellant gave a false
name to the deputies and falsely stated that the man they were looking for was not at the
trailer. Appellant consented to a search of the trailer. The deputies located a woman inside the
trailer who correctly identified appellant as Kevin. Appellant initially denied having any
identification, but when Officer Wynands noticed a wallet in appellant's pants, appellant
admitted that he was Kevin Dickson. Officer Wynands placed appellant under arrest, and
proceeded with a pat down search. As a result of that search, Officer Wynands found a
small plastic tube (a plastic pen barrel) in appellant's pocket. Based on his training, Officer
Wynands believed that the plastic tube was of the type typically used to inhale controlled
substances into the nose. Appellant did not exhibit any symptoms of being under the
influence of methamphetamine.
The owner of the trailer was John Montagano. In March of 1989, John's son Jeff had been
arrested on a drug charge at the very trailer where appellant was found. Jeff lived in the trailer
for about eight months in 1988 and 1989. Jeff had drug paraphernalia at the trailer which
included five or six pen barrels that Jeff had broken or cut in half to use for ingesting
methamphetamine. Jeff identified the plastic tube as a pen barrel that he had modified for the
ingestion of methamphetamine.
108 Nev. 1, 3 (1992) Dickson v. State
Richard A. Smith, a criminalist for the Washoe County Sheriff's Department, washed the
plastic tube with a dilute solution of sulfuric acid. An infrared test on the solution indicated
the presence of less than one one-hundredth of a gram of methamphetamine.
Appellant testified that on the day he was arrested he had been cleaning the trailer and had
picked up the pen barrel along with some loose change and screws so they would not be
sucked up in the vacuum cleaner.
As appellant was transported to the courthouse, at least one of the prospective jurors saw
him in chains. This fact was brought out during the district court's examination of the
prospective jurors, and was discussed in front of all of the prospective jurors. The prospective
jurors were admonished not to allow the incident to affect them. Counsel for appellant made
further inquiry of the jury regarding this incident and two jurors indicated that they felt sorry
for appellant because he had been brought to court in chains. One juror indicated that it would
be hard to weigh the evidence fairly because of this incident. Both sides passed the jury for
cause. Because the jurors answering questions are not identified in the transcript, it is not
possible to determine from the record whether any juror who saw appellant in chains was
excused as a result of a peremptory challenge. Appellant's motion for a mistrial was denied.
[Headnote 1]
Appellant contends, and the state concedes, that it was error to allow the jury to see
appellant in chains. We agree. A criminal defendant clearly has the right . . . to appear before
his jurors clad in the apparel of an innocent person. Grooms v. State, 96 Nev. 142, 144, 605
P.2d 1145, 1146 (1980) (citations omitted); see, generally, Illinois v. Allen, 397 U.S. 337
(1970) (the sight of shackles might have a significant effect on the jury's feelings about the
defendant, and requiring a defendant to appear in shackles could have an impact on the
defendant's Sixth Amendment rights).
[Headnote 2]
The state argues, however, that the error was harmless. When an error in a trial infringes
on a defendant's constitutional rights, the error may be deemed harmless only if the appellate
tribunal is able to declare a belief that it was harmless beyond a reasonable doubt. Chapman
v. California, 386 U.S. 18, 24 (1967).
Based on our review of the record on appeal, we cannot conclude that the error in this case
was harmless beyond a reasonable doubt. While the dissent cites cases from other
jurisdictions, we are bound to follow the law in Nevada. In Grooms, which governs this type
of case, this court was willing to conclude that the error was harmless based on a review
of the entire record.
108 Nev. 1, 4 (1992) Dickson v. State
which governs this type of case, this court was willing to conclude that the error was harmless
based on a review of the entire record. In the instant case, however, the error is more
egregious, and the case against appellant closer, than in Grooms.
First, all of the jurors were informed that appellant was seen by at least one juror in chains.
While not all of the jurors actually saw appellant in chains, the incident was discussed at
length in front of all the jurors in voir dire. As noted above, at least one juror indicated that it
would be hard to weigh the evidence fairly because of this incident. Other jurors indicated
that they felt sympathy for appellant because of seeing him in chains. Accordingly, we cannot
say that seeing appellant in chains had no effect on the jury.
Further, we note that the evidence against appellant was extremely close. The amount of
methamphetamine found in the pen barrel was minuscule. At oral argument, the state
conceded that it would have been impossible for anyone without scientific equipment to have
known that there was methamphetamine inside the pen barrel. The pen barrel was admittedly
the property of Montagano, a known drug user. Under these circumstances, we cannot
conclude that the error was harmless beyond a reasonable doubt. Accordingly, we reverse the
judgment of conviction.
1
Mowbray, C. J., dissenting:
Respectfully, I dissent.
Appellant Kevin Dickson was lawfully arrested at a house trailer on an outstanding
warrant. A pat down search revealed a small plastic tube containing a white powdery
residue. Laboratory analysis later identified the residue as methamphetamine.
In Watson v. State, 88 Nev. 196, 198, 495 P.2d 365, 366 (1972), this court concluded that
minute quantities of a narcotic could not support the intent element of the crime of possession
of a controlled substance. See also Beutler v. State, 88 Nev. 707, 709, 504 P.2d 699, 700
(1972). However, Watson was tried before the 1971 amendment to NRS ch. 453. Watson at
198 N.2, 495 P.2d at 366 n.2.
1
The current provisions of NRS 453.570 provide as follows:
Amount of controlled substance needed to sustain conviction for prohibited offense.
The amount of a controlled substance needed to sustain a conviction of a person for
an offense prohibited by the provisions of NRS 453.011 to 453.552, inclusive, is that
amount necessary for identification as a controlled substance by a witness qualified
to make such identification.
__________
1
In light of our disposition of this appeal, we decline to consider appellant's contention that there was
insufficient evidence to sustain the jury's verdict.
1
The case of Beutler v. State, 88 Nev. 707, 505 P.2d 699 (1972), followed the holding of Watson v. State,
88 Nev. 196, 495 P.2d 365 (1972); however, Beutler's conviction also preceded the 1971 amendment to NRS ch.
453.
108 Nev. 1, 5 (1992) Dickson v. State
substance needed to sustain a conviction of a person for an offense prohibited by the
provisions of NRS 453.011 to 453.552, inclusive, is that amount necessary for
identification as a controlled substance by a witness qualified to make such
identification.
In Sheriff v. Benson, 89 Nev. 160, 509 P.2d 554 (1973), this court interpreted NRS
453.570 in light of Watson and reasoned that [t]he quantity of controlled substance to
support the intent necessary to establish the crime of possession is vital only in the absence of
other evidence of intent. Id. at 163, 509 P.2d at 556. The Benson court then concluded:
When there is present in the record other evidence of intent to commit an offense
prohibited by NRS ch. 453, then all that is needed to sustain a conviction is that amount
of controlled substance necessary for identification. Where there is a total absence of
other evidence to establish the intent to commit an offense prohibited by NRS ch. 453
then the rule announced in Watson is controlling.
Id.
I conclude that the standard articulated in Benson is the standard that should be followed
in this case. I likewise believe that if Benson is followed, Dickson's conviction should be
affirmed by this court.
At trial, Dickson asserted that he did not intend to possess the methamphetamine. He
testified that he had picked up a small tubedescribed as a pen barrelwhile he was
vacuuming the floor, and that he had placed it in his pocket without knowledge of its
contents.
However, Dickson's friend testified on rebuttal that he had seen Dickson involved with
methamphetamine in Dickson's home. Further, Dickson admitted that he had seen the friend
use a pen barrel to ingest methamphetamine. Therefore, it was reasonable for the jury to
conclude that Dickson knew that the white powdery substance in the pen barrel was
methamphetamine.
Based on the above evidence, I strongly disagree with the majority's conclusion to reverse
this case simply because a prospective juror saw Dickson in chains outside the courtroom.
The incident occurred as Dickson was being brought into the courthouse, prior to trial. When
a juror later brought this to the attention of the court, the District Judge adequately
admonished the jury.
2
Dickson's counsel had an opportunity to question the jurors on voir
dire.
__________
2
The judge explained: Many times a defendant will be arrested and not able to make bail, and that's a fact
of finances. And if he can't make bail he's in jail, [sic] that has nothing to do with his guilt or innocence. At the
conclusion of the trial, the trial judge further admonished:
108 Nev. 1, 6 (1992) Dickson v. State
jurors on voir dire. Two jurors expressed sympathy for Dickson. One juror stated: I feel bad
for him if he's not guilty which he's already presumed not to be. . . . There was no evidence
indicating any prejudice against Dickson resulting from the incident. Consequently, I see no
reason to depart from this court's holding in Grooms v. State, 96 Nev. 142, 144-145, 605 P.2d
1145, 1147 (1980), wherein we concluded that any prejudice that resulted from the viewing
was cured by the scrupulous conduct of the district judge in ensuring that jurors were not
influenced by the error.
I firmly support the view that [i]t is a far-fetched conjecture that jurors under oath would
spontaneously harbor prejudice immediately upon seeing a defendant brought to court in
manacles. State v. Hashimoto, 377, P.2d 728, 734 (Haw. 1962). Furthermore, I believe my
honorable colleagues should adhere to the following counsel provided by the Washington
Supreme Court:
In addition, we must indulge some presumptions in favor of the integrity of the jury. It
is a branch of the judiciary, and if we assume that jurors are so quickly forgetful of the
duties of citizenship as to stand continually ready to violate their oath on the slightest
provocation, we must inevitably conclude that a trial by jury is a farce and our
government a failure.
State v. Grisby, 647 P.2d 6, 15 (1982), cert. denied, 459 U.S. 1211 (1983) (quoting State v.
Pepoon, 114 P. 449, 453 (Wash. 1911)).
An inadvertent incident where a juror sees a defendant outside a courtroom in handcuffs or
chains cannot be anything more than harmless error, absent a showing of prejudice. See
Hamrick v. People, 624 P.2d 1320, 1323 (Colo. 1981); State v. Pendergrass, 615 P.2d 201,
205 (Mont. 1980); Snyder v. State, 738 P.2d 548, 550 (Okla. 1987). As heretofore noted, the
jurors expressed sympathy for Dickson and the record does not provide any evidence of
prejudice. Furthermore, I cannot agree with my distinguished colleagues that the case against
Dickson was extremely close. Upon hearing the testimony of Dickson and other witnesses,
the jury returned a guilty verdict. The evidence is sufficient to support the jury's conclusion
that Dickson intentionally possessed methamphetamine.
__________
As jurors it is your exclusive duty to decide all questions of fact submitted to you for the purpose of
determining the effect and value of the evidence. In performing this duty, you must not be influenced by
pity for the defendant or by passion or prejudice against him. You must not be biased against the
defendant because he has been arrested for this offense or because he has been brought to trial.
108 Nev. 1, 7 (1992) Dickson v. State
tionally possessed methamphetamine. Therefore, I would conclude that the error by the State
was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967);
see also Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976); NRS 177.255.
Accordingly, I reject the majority's conclusion to the contrary.
____________
108 Nev. 7, 7 (1992) Nardozzi v. Clark Co. School Dist.
LINDA J. NARDOZZI, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, a Political
Subdivision of the State of Nevada, Clark County, Respondent
No. 21727
January 2, 1992 823 P.2d 285
Appeal from a district court order granting summary judgment in favor of respondent in a
personal injury action. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
Plaintiff who slipped and fell at entrance of elementary school brought personal injury
action against school district, alleging that it negligently failed to take safety precautions by
keeping floor dry on a rainy day. The district court granted district's motion for summary
judgment, and plaintiff appealed. The supreme court, Rose, J., held that: (1) fact that plaintiff
filed notice of appeal before district court entered order denying rehearing did not render
appeal void; (2) school district which lacked actual knowledge of hazardous condition was
entitled to immunity; (3) express knowledge exception to immunity statute does not extend to
situations in which governmental entity had only implied knowledge of hazardous condition;
and (4) county employee's knowledge of hazardous condition could not be imputed to school
district.
Affirmed.
Mowbray, C. J., dissented.
[Rehearing denied February 11, 1992]
Jimmerson, Davis & Santoro, Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy, Jemison & List and Greg W. Marsh and Daniel F.
Polsenberg, Las Vegas; Donald H. Haight, General Counsel, Clark County School District,
Las Vegas; Edwards, Hunt, Hale & Hansen and Trevor Atkin, Las Vegas, for Respondent.
108 Nev. 7, 8 (1992) Nardozzi v. Clark Co. School Dist.
1. Appeal and Error.
Filing notice of appeal before district court entered order denying rehearing did not render appeal void, on theory that motion for
rehearing is functional equivalent of motion to alter or amend judgment, and thus falls within NRCP providing that appeal is void
when notice is filed before formal disposition of timely postjudgment motion. NRCP 50(b), 52(b), 56(e), 59(e).
2. Municipal Corporations.
Immunity statute will not bar actions against a public entity based upon that entity's failure to act reasonably when it has express
knowledge of a hazard. NRS 41.033.
3. Schools.
Under statute, school district was immune from slip and fall claim, where district had no knowledge of alleged hazardous
condition caused by wet floor, notwithstanding contention that district had implied knowledge of the condition because any inspection
of premises would have led to immediate discovery of condition; express knowledge exception of immunity statute does not extend to
situations in which there is only implied knowledge of the condition. NRS 41.033.
4. Schools.
County employee's knowledge of hazardous condition caused by water on floor of entryway of elementary school could not be
imputed to school district for purposes of immunity statute, as district and county were separate entities with different governing
boards. NRS 41.033.
OPINION
By the Court, Rose, J.:
[Headnote 1]
Appellant Linda Nardozzi (Nardozzi) slipped and fell at the entrance of Tomiyasu
Elementary School, the property of respondent Clark County School District (CCSD). As a
result of the fall, Nardozzi broke her ankle in several places. She filed suit against CCSD,
alleging that it negligently failed to take safety precautions by keeping the floor dry on a rainy
day. CCSD denied any knowledge of the alleged hazardous condition and claimed total
immunity under NRS 41.033. The district court granted CCSD's motion for summary
judgment. Nardozzi argues that the court erred because there are disputed issues of material
fact and because implied knowledge is sufficient to circumvent the governmental immunity
established in NRS 41.033.
1
See NRCP 56(e).
__________
1
CCSD argues that this court does not have jurisdiction to consider this appeal because Nardozzi filed notice
of appeal before the district court entered its order denying rehearing. According to CCSD, a motion for
rehearing is the functional equivalent to a motion under NRCP 59, which provides that an appeal is void when
notice is filed before the formal disposition of any timely post-judgment motion filed under Rule 50(b), Rule
108 Nev. 7, 9 (1992) Nardozzi v. Clark Co. School Dist.
[Headnotes 2, 3]
Based on her contention that implied notice is sufficient to circumvent the governmental
immunity established by NRS 41.033, Nardozzi argues that material facts remain in dispute
as to whether CCSD had implied notice of the hazardous condition. NRS 41.033 provides:
Conditions and limitations on actions: Failure to inspect or discover. 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:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction
of any street, public highway or other public work to determine any hazards,
deficiencies or other matters, whether or not there is a duty to inspect; or
2. Failure to discover such hazard, deficiency or other matter, whether or not an
inspection is made.
This court has held that immunity will not bar actions based upon a public entity's failure to
act reasonably when the entity has express knowledge of a hazard. Lotter v. Clark Co. Bd. of
Commissioners, 106 Nev. 366, 368, 793 P.2d 1320, 1322 (1990) (where county inspectors
had knowledge of house's framing defects and approved framing despite those defects, NRS
41.033 providing immunity to county from liability to purchaser for negligent inspection or
failure to inspect did not apply). Nardozzi argues that the Lotter holding applies to implied
knowledge of the defect, because Mr. Lotter's complaint alleged that any inspection of the
premises would have led to the immediate discovery of the defects. Lotter is distinguishable
from the case at bar, however, because the basis of our decision was that there were sufficient
facts presented to show that the inspection was actually made, and in so doing, it would have
been impossible to have avoided actual knowledge of the defects. See also Crucil v. Carson
City, 95 Nev. 583, 585, 600 P.2d 216, 217 (1979) (where automobile accident victims alleged
that city had actual knowledge of downed condition of stop sign, complaint satisfied
requirements of NRCP 8). In Crucil, the complaint alleged that the city had either actual
and/or constructive knowledge of the hazardous condition. The court found that although
NRS 41.033 grants immunity when the State has failed to inspect or discover a hazard, the
statute does not apply in cases where the complaint alleges actual knowledge of the hazard.
__________
52(b) or Rule 59. A motion for rehearing cannot reasonably be construed as a motion to alter or amend the
judgment pursuant to Rule 59(e). Alvis v. State, Gaming Control Bd., 99 Nev. 184, 186 n.1, 660 P.2d 980, 981
n.1 (1983). We therefore conclude that CCSD's argument lacks merit.
108 Nev. 7, 10 (1992) Nardozzi v. Clark Co. School Dist.
alleges actual knowledge of the hazard. Despite Nardozzi's interpretations of the relevant
cases, the express knowledge exception to NRS 41.033 has not been extended to include
situations in which the government had only implied knowledge of the conditions. Therefore,
we conclude that Nardozzi's argument lacks merit.
[Headnote 4]
Nardozzi further argues that even if CCSD is immune from liability for implied
knowledge, CCSD had actual notice of the hazardous condition. She asserts that a Clark
County employee acknowledged that he had seen water on the floor of the entryway shortly
before Nardozzi fell. That individual, however, was employed by the Clark County Parks and
Recreation Program, not CCSD, and there is no evidence that he informed a CCSD employee
of the hazardous condition. The school district and the county are separate entities with
different governing boards. See Walsh v. Clark County School District, 82 Nev. 414, 419
P.2d 774 (1966). Therefore the knowledge of the Clark County employee cannot be imputed
to CCSD. We hereby affirm the decision of the district court.
Springer, Steffen and Young, JJ., concur.
Mowbray, C. J., dissenting:
Respectfully, I dissent.
One purpose of NRS 41.031, Nevada's waiver of immunity statute, is to compensate
victims of governmental negligence in circumstances like those in which victims of private
negligence would be compensated. Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94
(1970). Another purpose, often overlooked though equally important, is to encourage officers
and employees of the state, state agencies and political subdivisions of the state to perform
their duties using reasonable care. The majority today defeats both of these public policies.
Not only does the majority deny appellant the opportunity to obtain compensation from the
state for injuries that may well have resulted from governmental negligence, but in doing so,
the majority unwittingly promotes willful blindness as a means by which the state can
avoid tort liability. Officers and employees will now be encouraged to close their eyes to
hazardous conditions they confront while performing their duties.
Appellant has alleged that respondent school district had actual knowledge of the
hazardous pool of water inside the school building. Construing the pleadings and
documentary evidence in favor of appellant, I perceive a genuine issue of material fact
concerning the school district's knowledge of the pool of water.
108 Nev. 7, 11 (1992) Nardozzi v. Clark Co. School Dist.
concerning the school district's knowledge of the pool of water. See Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432 (1989). Moreover, a summary judgment motion should
not be granted if there is any possibility that the factual aspects of the case will look different
at trial from the evidence tendered in support of and against the motion. See Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970). Here, discovery and other pretrial procedures may well
disclose additional evidence sufficient to persuade a trier of fact of the truth of appellant's
allegation. Summary judgment was thus improper.
____________
108 Nev. 11, 11 (1992) Southwest Gas v. Woods
SOUTHWEST GAS CORPORATION, Appellant, v. BRUCE WOODS; AND THE
APPEALS OFFICE OF THE HEARINGS DIVISION OF THE DEPARTMENT OF
ADMINISTRATION, Respondents.
No. 21889
January 2, 1992 823 P.2d 288
Appeal from a district court order affirming an appeals officer's decision regarding a
contested industrial claim against Southwest Gas, a self-insured employer. First Judicial
District Court, Carson City; Michael R. Griffin, Judge.
Appeals officer modified claimant's permanent partial disability award under Industrial
Insurance Act, and employer sought judicial review. The district court affirmed, and employer
again appealed. The supreme court held that: (1) Industrial Insurance Act, prior to amendment
effective July 5, 1991, did not specifically provide claimants with authority to select rating
physician, but also did not specifically prohibit them from doing so, and (2) appeals officer
did not abuse his discretionary authority under the Act in choosing to accept substantive
testimony from a certified rating physician selected by the claimant.
Affirmed.
Jerry Collier Lane, Las Vegas, for Appellant.
Raymond Badger, Carson City, for Respondents.
1. Workers' Compensation.
Appeals officer renders final administrative decision on all questions of fact under the Industrial Insurance Act, including proper
percentage of permanent partial disability. NRS 616.010 et seq.
108 Nev. 11, 12 (1992) Southwest Gas v. Woods
2. Workers' Compensation.
Industrial Insurance Act, prior to amendment effective July 5, 1991, did not specifically provide claimants with authority to select
rating physician, but also did not specifically prohibit them from doing so. NRS 616.010 et seq., 616.5426, subd. 3.
3. Workers' Compensation.
Appeals officer, acting prior to effective date of amendment to Nevada Industrial Insurance Act, did not abuse his discretionary
authority under the Act in choosing to accept substantive testimony from a certified rating physician selected by the claimant. NRS
616.010 et seq., 616.5426, subd. 3.
OPINION
Per Curiam:
The sole issue on appeal is whether an appeals officer, acting prior to July 5, 1991, abused
his discretionary authority, as provided in NRS 616.5426(3) of the Nevada Industrial
Insurance Act, in choosing to accept substantive testimony from a certified rating physician
selected by a claimant.
1
We conclude that he did not.
THE FACTS
On January 31, 1989, Bruce Lee Woods (Woods) injured his lower back on the job
while he was employed by Southwest Gas Corporation (Southwest Gas). Following the
incident, Southwest Gas referred Woods to David Toeller, D.O., a certified rating physician
(rating physician),
2
to obtain a permanent partial disability (PPD) evaluation, pursuant
to NRS 616.605(2).
3
Based on Dr. Toeller's recommendation, Southwest Gas offered Woods
a three percent PPD award.
Woods subsequently sought a opinion from John M. Knutson, M.D., another rating
physician. Dr. Knutson determined that Woods' injuries were more severe and that his PPD
award should be fourteen percent.
__________
1
The Nevada Legislature recently amended the Nevada Industrial Insurance Act to allow for claimants to
choose their own rating physician to rebut the PPD award provided by the insurer's rating physician, See S.B. 7,
65th Sess., 37, Journal of the Senate
------
(July 5, 1991).
2
Rating physician refers to physicians certified by the Administrator of the Department of Industrial
Insurance Relations Act to evaluate injuries and offer opinions regarding the allowable percentage of PPD,
pursuant to NRS 616.605(2).
3
NRS 616.605(2) provides in pertinent part as follows:
The insurer shall select a physician from a group of rating physicians designated by the administrator,
to determine the percentage of disability in accordance with the American Medical Association's Guides
to the Evaluation of Permanent Impairment in the form most recently published and supplemented before
January 1, 1985.
108 Nev. 11, 13 (1992) Southwest Gas v. Woods
Woods' injuries were more severe and that his PPD award should be fourteen percent. Shortly
thereafter, Woods sought administrative review of a hearing officer, pursuant to NRS
616.5414.
4
The hearing officer determined that Dr. Knutson's evaluation was not legally
probative. Consequently, Dr. Knutson's recommendation was not considered and the hearing
officer affirmed the three percent PPD award. Woods then made one final administrative
appeal, as provided under NRS 616.5422(1).
5
Prior to his hearing before the appeals officer, Woods obtained a third evaluation from
another rating physician, James B. Golden, M.D., who recommended an eighteen percent
PPD award. The appeals officer admitted the evidence of all three rating physicians.
6
Dr.
Golden was the only physician to testify before the appeals officer. Dr. Golden testified, inter
alia, that Woods' spine had a deranged disc at L5-S1, which was worth seven percent PPD.
Dr. Golden's testimony was uncontroverted.
The appeals officer subsequently determined that Woods' PPD award should be modified,
because Dr. Golden persuasively established that Dr. Toeller did not recognize that
[Woods'] symptoms and signs were consistent with the distribution of the S1 nerve.
Consequently, the appeals officer added the additional seven percent PPD identified by Dr.
Golden to Woods' previous three percent award for a total PPD award of ten percent. Dr.
Toeller's evaluation was upheld in all other respects.
Southwest Gas sought judicial review from the district court on the grounds that the
appeals officer's decision was improperly influenced by Dr. Golden's testimony. On
December 29, 1990, the district court entered an order affirming the appeals officer's
decision. In so doing, the district court found that an Appeals Officer can properly rely upon
the opinion of a certified rating physician selected by a claimant in determining the proper
percentage of PPD. We agree.
__________
4
NRS 616.5414 provides as follows:
Contested claims: Employee of self-insurer may request hearing. If an employee of a self-insured
employer is dissatisfied with a decision of his employer, he may request a hearing before the hearing
officer.
5
NRS 616.5422(1) provides as follows:
Any party aggrieved by a decision of the hearing officer relating to a claim for compensation may
appeal from the decision by filing a notice of appeal with an appeals officer within 60 days after the date
of the decision.
6
Southwest Gas had filed a motion in limine to prevent the reports of Dr. Knutson and Dr. Golden from
being considered except for the limited purpose of attacking the validity of Dr. Toeller's evaluation. The
motion was denied.
108 Nev. 11, 14 (1992) Southwest Gas v. Woods
DISCUSSION
[Headnote 1]
The issue of this case was substantially decided in Georgeff v. Sahara Hotel, 103 Nev.
485, 745 P.2d 1142 (1987). There, we held that an appeals officer renders the final
administrative decision on all questions of fact, including the proper percentage of PPD. Id. at
489, 745 P.2d at 1144. In Georgeff, the claimant selected his own rating physician and we
upheld the appeals officer's decision to accept the rating physician's testimony as substantive
evidence. Georgeff, 103 Nev. at 489, 745 P.2d at 1145.
[Headnotes 2, 3]
Southwest Gas argues that no provision in the Nevada Industrial Insurance Act . . .
authorize[s] a claimant to select his own rating physician. However, NRS 616.5426(3)
provides an appeals officer with broad discretion to select another rating physician if he feels
doing so would resolve a medical question concerning an injured employee's condition. We
see nothing wrong with the appeals officer's decision to accept Dr. Golden's substantive
testimony since he had the authority to send Woods to Dr. Golden for an evaluation anyway.
Here, it is reasonable to conclude that the power of choice includes the power of ratification.
It would be a meaningless exercise for us to require the appeals officer to refer Woods to a
rating physician of his choice if he was satisfied with Dr. Golden's testimony.
The Administrative Procedure Act requires that all parties be provided the opportunity to
respond and present evidence and argument on all issues involved. NRS 233B.121(4).
Appeals officers are given quasi-judicial powers to the extent necessary to execute their
duties, pursuant to NRS 616.542, which include accepting and evaluating evidence, and
entering final administrative decisions in accordance therewith. See Nevada Industrial
Comm'n v. Reese, 93 Nev. 115, 120-21, 560 P.2d 1352, 1359 (1977) (citing Ormsby County
v. Kearney, 37 Nev. 314, 346, 142 P. 803, 808 (1914); Humboldt Land & Cattle Co. v. Sixth
Judicial Dist. Court, 47 Nev. 396, 224 P. 612 (1924)). Nevada law also provides: Each party
may call and examine witnesses . . . on any matter relevant to the issues . . . and rebut the
evidence against him. NRS 233B.123(4).
We have previously held:
It has been a long-standing policy of this Court to liberally construe such laws to protect
injured workers and their families. Unquestionably, compensation laws were enacted as
a humanitarian measure. The modern trend is to construe the industrial insurance acts
broadly and liberally, to protect the interest of the injured worker and his
dependents.
108 Nev. 11, 15 (1992) Southwest Gas v. Woods
the interest of the injured worker and his dependents. A reasonable, liberal and practical
construction is preferable to a narrow one, since these acts are enacted for the purpose
of giving compensation, not for the denial thereof.
Dep't Ind. Relations v. Circus Circus, 101 Nev. 405, 411, 705 P.2d 645, 649 (1985) (quoting
Hansen v. Harrah's, 100 Nev. 60, 63, 675 P.2d 394, 396 (1984), quoting Industrial
Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952)). Therefore, although the
Nevada Industrial Insurance Act, prior to July 5, 1991, did not specifically provide claimants
with authority to select a rating physician, we will not construe that to mean that claimants
were specifically prohibited from doing so. NRS 616.5426(2) requires an appeals officer to
hear any matter raised before him on its merits, including new evidence bearing on the
matter. We read this to include the acceptance of substantive testimony of a rating physician
selected by the claimant.
Administrative agencies may receive and weigh evidence and a reviewing court may not
substitute its judgment on questions of fact. NRS 233B.135(3). The findings of the appeals
officer will not be set aside absent a showing that they are against the manifest weight of the
evidence. See Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 51, 675 P.2d 401, 404
(1984) (citing Interlake Steel Corp. v. Industrial Comm'n, 326 N.E.2d 744, 747 (Ill. 1975)).
We conclude that the district court was correct in upholding Woods' ten percent PPD award.
Accordingly, we affirm the district court.
____________
108 Nev. 15, 15 (1992) S.N.E.A. v. Daines
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., A NEVADA
CORPORATION, JEANINE ELLIOTT, BONNIE ALLEC, CARL BARBEE,
HARRY GAMMIE, PAULA TLACHAC, NOVELLA WATSON-LEE AND FRED
SUWE, Petitioners, v. DARREL DAINES, IN HIS OFFICIAL CAPACITY AS
CONTROLLER OF THE STATE OF NEVADA, Respondent.
No. 22590
January 2, 1992 824 P.2d 276
Original petition for a writ of mandamus.
State employees petitioned for writ of mandamus compelling state controller to issue
warrants for salaries of state employees, including pay raise appropriated by legislature and
signed by governor. The supreme court held that: (1) state controller did not have discretion
to refuse to allocate the appropriated funds, and {2) governor's supreme executive power
did not permit him to defer disbursement of the salary increases.
108 Nev. 15, 16 (1992) S.N.E.A. v. Daines
have discretion to refuse to allocate the appropriated funds, and (2) governor's supreme
executive power did not permit him to defer disbursement of the salary increases.
Petition granted.
Norah Ann McCoy, Carson City, for Petitioners.
Frankie Sue Del Papa, Attorney General and Kateri Cavin and James T. Spencer, Deputy
Attorneys General, Carson City, for Respondent.
1. States.
State controller has nondiscretionary duty to pay salary increases enacted by legislature; unless act itself allows discretion in
payment of salary increases, controller has absolute duty to issue his warrants according to the legislative will. NRS 227.160.
2. States.
Board of examiners did not have discretion to fail to allocate sums appropriated for pay raises for public employees, even though
statute indicated that board may allocate such funds; legislature's use of the word may was conditional, not permissive.
3. States.
Board of examiners was required to disburse money appropriated by legislature to increase salaries of public employees, despite
contention that appropriation creates no duty that appropriated money actually be spent, where failure to spend appropriated funds
would defeat legislative purpose and essentially rewrite statute. NRS 353.260, subd. 1.
4. States.
The executive branch is not empowered to disregard the mandate of the legislature that certain salaries be paid.
5. States.
Governor's authority as supreme executive power did not permit him to order deferral of disbursement of salary increases for
public employees authorized by legislature; supreme executive power did not include power to disregard acts of legislature, and power
of controlling public purse lies within legislative, not executive authority. Const. art. 5, 1.
6. States.
Constitutional provision permitting board of examiners to examine claims against the state before the legislature passes upon such
claims did not permit board to defer payment of legislatively enacted salary increase after act had been signed into law by governor.
Const. art. 5, 21.
7. States.
Statute permitting chief of budget division of Department of Administration to require controller of heads of various agencies
within executive branch to set aside reserves to meet emergencies did not permit governor or chief of budget division to invalidate act
of legislature appropriating funds for increase in salary of public employees. NRS 353.225, 353.225, subd. 2.
108 Nev. 15, 17 (1992) S.N.E.A. v. Daines
OPINION
Per Curiam:
Petitioners in this original action seek a writ of mandamus compelling respondent Darrel
Daines, Controller of the State of Nevada, to issue warrants for petitioners' salaries, including
the four percent pay raise appropriated by the 1991 Nevada State Legislature to become
effective October 1, 1991. 1991 Nev. Stat. ch. 496 at 1515 (approved June 30, 1991).
On December 13, 1991, following the oral arguments in this matter, this court directed the
clerk of this court to issue a writ of mandamus compelling respondent forthwith to issue
warrants sufficient to pay the salary increases provided to the classified employees of the state
by the legislature. We specifically directed such salary increases to be paid retroactively from
October 1, 1991, and we indicated that a formal opinion setting forth the grounds for our
decision would be forthcoming. This opinion constitutes our final resolution of this
proceeding.
FACTS
On June 30, 1991, the Nevada State Legislature passed a bill appropriating funds for a four
percent salary increase for classified state employees. The salary increase was to become
effective October 1, 1991. 1991 Nev. Stat. ch. 496 at 1515 (Assembly Bill 815). The
governor signed the bill (hereinafter the act) into law.
On September 26, 1991, at a meeting of the Nevada State Board of Examiners, the clerk of
the board of examiners, based on projected revenue shortfalls, recommended that the Board
of Examiners defer allocation and disbursement of the funds appropriated for salary
adjustments for up to three months from the time the legislature contemplated their
enactment. The board of examiners unanimously adopted the clerk's recommendation.
As a result of the action of the board of examiners, the respondent state controller refused
to issue warrants sufficient to pay the authorized salary increases in the paychecks delivered
to state employees beginning on October 11, 1991. This petition followed.
DISCUSSION
[Headnote 1]
Petitioners contend that, pursuant to NRS 227.160, the state controller has a
non-discretionary duty resulting from his office to pay the salary increases enacted by the
legislature.1 We agree.
108 Nev. 15, 18 (1992) S.N.E.A. v. Daines
pay the salary increases enacted by the legislature.
1
We agree. This court has held that [a]n
appropriation of money to a specific object would be an authority to the proper officers to pay
the money, because the auditor is authorized to draw his warrant upon an appropriation, and
the treasurer is authorized to pay such warrant if he has appropriated money in the treasury.
State v. Eggers, 29 Nev. 469, 481, 91 P. 819, 823 (1907) (quoting Ristine v. State, 20 Ind.
339). Thus, unless the act itself allows the board or the governor discretion in the payment of
the salary increases, or the board or the governor are empowered by the constitution or by
statute to defer payment of legislatively authorized salary increases, the controller has an
absolute duty pursuant to NRS 227.160 to issue his warrants according to the legislative will.
[Headnote 2]
Respondent essentially concedes this point and argues correctly that the proper analysis of
this matter begins and ends with the classified pay bill. Section 1(2) of the act provides:
2. The state board of examiners, upon recommendation of the director of the
department of administration, may allocate and disburse to the various departments,
commissions and agencies of the State of Nevada, out of the money appropriated by
this section such sums of money as may from time to time be required, which when
added to the money otherwise appropriated or available equals the amount of money
required to pay the salaries of the classified employees of the respective
departments, commissions and agencies under the adjusted pay plan.
__________
1
NRS 227.160 (emphasis added) provides, in pertinent part:
1. The state controller shall:
(a) Audit all claims against the state, for the payment of which an appropriation or authorization has
been made but of which the amount has not been definitely fixed by law, which have been examined and
passed upon by the state board of examiners, or which have been presented to the board and not
examined and passed upon by it within 30 days from their presentation.
(b) Allow of those claims mentioned in paragraph (a) as not having been passed upon by the state
board of examiners within 30 days after presentation the whole, or such portion thereof as he deems just
and legal; and of claims examined and passed upon by the state board of examiners, such an amount as he
decrees just and legal not exceeding the amount allowed by the board.
. . . .
3. For the purpose of satisfying himself of the justness and legality of any claim, he may examine
witnesses under oath and receive and consider documentary evidence in addition to that furnished him by
the state board of examiners. He shall draw warrants on the state treasurer for such amounts as he
allows of the character above described, and also for all claims of which the amount has been definitely
fixed by law and for the payment of which an appropriation or authorization has been made.
108 Nev. 15, 19 (1992) S.N.E.A. v. Daines
money required to pay the salaries of the classified employees of the respective
departments, commissions and agencies under the adjusted pay plan.
1991 Nev. Stat. ch. 496, 1, at 1515 (emphasis added).
2
Respondent argues that the legislature's use of the word may rather than shall in
sections 1(2), 2(2) and 3(3) indicates that allocation and disbursement of the appropriated
amounts to pay salary increases is discretionary with the board of examiners and the Director
of the Department of Administration.
We disagree.
This court has stated that in statutes, may is permissive and shall is mandatory unless
the statute demands a different construction to carry out the clear intent of the legislature.
Givens v. State, 99 Nev. 50, 54, 657 P.2d 97, 100 (1983). This court has also held, however,
that the term may in a statute is conditional rather than permissive if the purpose of the
statute requires that construction. Nev. Real Est. Comm. v. Ressel, 72 Nev. 79, 82, 294 P.2d
1115, 1116 (1956) (may in a statute was not permissive; the statute created a duty to act
upon the occurrence of a specified condition, leaving no area for the exercise of discretion).
This construction of the word may has been recognized in numerous cases, especially
where used to define the duties of a public officer. Id.
Close examination of the language of the act in this case reveals that may in the act is
conditional rather than permissive. Section 2(3) of the act provides that the state board of
examiners may allocate and disburse . . . out of the money appropriated such sums of
money as may from time to time be required to pay the salaries of the classified employees
. . . under the adjusted pay plan.
The pay plan is the grade and step salary schedule for classified employees created by
the Department of Personnel pursuant to NRS 284.175. Clearly, the legislature intended that
the Department of Personnel would adjust the pay plan by approximately four percent.
3
The
language of the act requires the board of examiners to allocate additional funds to state
agencies to meet these pay increases upon the conditions set forth, i.e., when the funds
previously appropriated for salaries are insufficient to pay the salaries required under the
revised grade and step pay plan.4 We conclude, therefore, that the governor and the
board's decision to defer the legislatively enacted salary increases cannot be justified
under the language of the act.
__________
2
The language of sections 2(2) and 3(3) is identical to that of section 1(2) except that section 2(2) applies to
employees of the department of motor vehicles and public safety, the public service commission, and the
attorney general's office, and section 3(3) applies to the University of Nevada System.
3
The act refers to a raise of approximately four percent, rather than four percent, because the grade and step
pay schedule created by the Department of Personnel contains specific dollar figures derived by multiplying
present amounts by 1.04. The resulting figures must be rounded to the nearest whole dollar amounts.
108 Nev. 15, 20 (1992) S.N.E.A. v. Daines
board of examiners to allocate additional funds to state agencies to meet these pay increases
upon the conditions set forth, i.e., when the funds previously appropriated for salaries are
insufficient to pay the salaries required under the revised grade and step pay plan.
4
We
conclude, therefore, that the governor and the board's decision to defer the legislatively
enacted salary increases cannot be justified under the language of the act.
[Headnotes 3, 4]
Respondent asserts, nevertheless, that an appropriation creates no duty that the
appropriated money actually be spent. Respondent argues that because public officials are
specifically prohibited from spending more than the amount appropriated but not specifically
enjoined from spending less, it is permissible to spend less. See NRS 353.260(1). The instant
case is not, however, a case of a public official spending less than the amount appropriated by
the legislature. In this case, the legislature enacted a pay raise, designated a date on which the
raise would become effective, and appropriated funds to accomplish its purpose. The
executive branch has attempted to impound the funds specifically appropriated for this salary
increase in a manner that would defeat the legislative purpose and essentially rewrite the act.
The executive is not empowered to disregard the mandate of the legislature that certain
salaries be paid. See Ellis v. City of Valdez, 686 P.2d 700, 705 (Alaska 1984) (recognizing a
distinction between cases where the executive has attempted to impound funds and cases in
which an agency has exercised discretion with respect to the expenditure of funds authorized
for particular purposes within the expertise of the agency).
[Headnote 5]
Respondent contends that the governor could order deferral of disbursement of the salary
increases pursuant to the supreme executive power vested in him by Article 5, Section 1 of
the Nevada Constitution.5 Respondent has failed to cite any authority, however, for the
proposition that the supreme executive power of the State of Nevada includes the power
to disregard acts of the legislature.
__________
4
In sections 6 and 7 of the act, dealing with potential pay raises in the second biennium, the act sets forth
certain amounts that are contingently appropriated to provide additional salary increases depending on the
projected balance. These provisions do not purport to give the board of examiners discretion to disburse or not
disburse the amounts needed. Rather, they direct the board to implement certain pay raises if the projected
balances support the increases. Notably, the legislature did not make the payment of the October 1, 1991, pay
raises dependent on any revenue or state general fund projections. This supports our conclusion that the
legislature enacted salary increases and provided a fund from which to pay the increases; the legislature did not,
as contended by respondent, simply appropriate funds for discretionary distribution by the executive if it
determined a pay raise was warranted.
108 Nev. 15, 21 (1992) S.N.E.A. v. Daines
Nevada Constitution.
5
Respondent has failed to cite any authority, however, for the
proposition that the supreme executive power of the State of Nevada includes the power to
disregard acts of the legislature. Indeed, the governor has a constitutional duty to see that the
laws enacted by the legislature are faithfully executed. Nev. Const. art. 5, 7; Galloway v.
Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967) (executive power extends to carrying out
and enforcing laws enacted by the legislature).
Further, it is well established that the power of controlling the public purse lies within
legislative, not executive authority. See, e.g., State v. Fairbanks North Star Borough, 736 P.2d
1140 (Alaska 1987) (a statute purporting to give the governor the power to withhold or
reduce the budget of state agencies was struck down as an unconstitutional delegation of
legislative power); State v. State Board of Finance, 367 P.2d 925 (N.M. 1961) (statute
purporting to permit state board of finance to reduce annual operating budgets struck down as
violative of separation of powers doctrine); County of Oneida v. Berle, 404 N.E.2d 133 (N.Y.
1980) (governor could not reduce a lawfully enacted appropriation); see also House of
Representatives v. Martinez, 555 So.2d 839, 845 (Fla. 1990) (governor may not veto one of
several funding sources; he must veto all or none). Thus, the action of the governor was not
authorized by his supreme executive power.
[Headnote 6]
Similarly, the board of examiners had no constitutional authority to defer salary increases
enacted by the legislature and signed into law by the governor. Article 5, Section 21 of the
Nevada Constitution provides:
The Governor, Secretary of State and Attorney General . . . shall also constitute a
Board of Examiners, with power to examine all claims against the State (except salaries
or compensation of Officers fixed by law) and perform such other duties as may be
prescribed by law, and no claim against the State (except salaries or compensation of
Officers fixed by law) shall be passed upon by the Legislature without having been
considered and acted upon by said Board of Examiners.
This provision empowers the board of examiners to examine claims (except salaries or
compensation of officers) against the state before the legislature passes upon such claims;
there are no provisions in this section allowing the board to defer payment of a
legislatively enacted salary increase after the act has been signed into law by the
governor.
__________
5
Article 5, Section 1 of the Nevada Constitution provides that [t]he supreme executive power of this State,
shall be vested in a Chief Magistrate who shall be Governor of the State of Nevada.
108 Nev. 15, 22 (1992) S.N.E.A. v. Daines
provisions in this section allowing the board to defer payment of a legislatively enacted salary
increase after the act has been signed into law by the governor. Therefore, we conclude that
there is no constitutional authority for the action of the board.
[Headnote 7]
Respondent contends that the board's action was authorized by NRS 353.225, which
provides for a reserve to meet emergencies. NRS 353.225 (emphasis added) provides:
1. In order to provide some degree of flexibility to meet emergencies arising during
each fiscal year in the expenditures for the state distributive school account in the state
general fund and for operation and maintenance of the various departments, institutions
and agencies of the executive department of the state government, the chief, with the
approval in writing of the governor, may require the state controller or the head of each
such department, institution or agency to set aside a reserve in such amount as the chief
may determine, out of the total amount appropriated or out of other funds available
from any source whatever to the department, institution or agency.
2. At any time during the fiscal year this reserve or any portion of it may be returned
to the appropriation or other fund to which it belongs and may be added to any one or
more of the allotments, if the chief so orders in writing.
This statute authorizes the chief of the Budget Division of the Department of
Administration, with the approval of the governor, to require the controller of the heads of
various agencies within the executive branch of government to set aside reserves to meet
emergencies. We cannot conclude, however, that the legislature intended, when it enacted this
statute, to endow the chief of the Budget Division of the Department of Administration or the
governor with power to invalidate the acts of the legislature. Nor did the legislature intend
NRS 353.225(2) to be construed as an authorization for a blanket executive repeal of a pay
raise enacted by it. The provision was instead intended to provide a means for the executive
and the individual agencies to provide flexibility to meet emergencies by utilizing available
monies from the various budgets to fund a reserve for use at a later date. We conclude that
this statute, at best, is irrelevant to this case. Accordingly, we decline to consider the
constitutional challenges to the statute.
CONCLUSION
The governor and the board of examiners have no constitutional or statutory authority to
defer the salary increases enacted by the legislature.
108 Nev. 15, 23 (1992) S.N.E.A. v. Daines
by the legislature. Thus, the action of the board taken on September 26, 1991, was a nullity,
and the state controller has an absolute duty to issue his warrants pursuant to the legislative
mandate. A writ of mandamus may issue to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station and where there is no
plain, speedy and adequate remedy at law. See NRS 34.160; Choose Life Campaign 90' v.
Del Papa, 106 Nev. 802, 801 P.2d 1384 (1990). Accordingly, we grant this petition.
Mowbray, C. J., Springer, Steffen and Young, JJ., and Kosach, D. J.,
6
concur.
____________
108 Nev. 23, 23 (1992) Brannan v. Nevada Rock & Sand
DAVID F. BRANNAN, Appellant, v. NEVADA ROCK & SAND COMPANY, Respondent.
No. 20813
January 6, 1992 823 P.2d 291
Appeal from a judgment entered upon a jury verdict in favor of respondent. Eighth Judicial
District Court, Clark County; Myron E. Leavitt, Judge.
Motorcyclist brought action against rock and sand company for injuries sustained when his
motorcycle collided with company truck. The district court entered verdict in favor of
company, and motorcyclist appealed. The supreme court held that: (1) company did not
possess and control public road where collision occurred; (2) evidence that truck's brakes
were faulty at time of collision should have been admitted; and (3) refusal to give
motorcyclist's requested instructions on per se negligence was error.
Reversed and remanded.
Mowbray, C. J., dissented in part.
[Rehearing denied July 21, 1992]
Burris & Thomas, Las Vegas, for Appellant.
Rawlings, Olson & Cannon and John E. Gormley, Las Vegas, for Respondent.
__________
6
The Honorable Steven R. Kosach, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
108 Nev. 23, 24 (1992) Brannan v. Nevada Rock & Sand
1. Automobiles.
Rock and sand company was not possessor of public road, and therefore had no duty to maintain that road, even though company
periodically plowed portions of road, road was used extensively by company's trucks, and company had placed warning signs at
various points where road intersected with another street.
2. Automobiles.
Under statute which states that occupier of open land owes no duty to keep premises safe from entry or use by others for
recreational purposes, rock and sand company which allegedly possessed and controlled public road had no duty to protect
motorcyclist injured in collision with company's truck. NRS 41.510.
3. Automobiles.
Evidence that truck which collided with motorcyclist had faulty brakes was admissible where truck driver testified that it was
possible that he had hit his brakes 100 yards prior to impact, and motorcyclist's accident reconstruction expert testified that truck driver
could have stopped before actual point of impact, assuming minimum braking power and normal driver reaction time.
4. Automobiles.
In action by motorcyclist against rock and sand company for injuries sustained when his motorcycle collided with company's
truck, refusal to give motorcyclist's requested instructions on per se negligence was error; motorcyclist was member of class of persons
designed to be protected by statute which requires that all brakes on vehicles be maintained in good working order, and testimony of
truck driver and motorcyclist's accident reconstruction expert was sufficient to establish causal connection between truck's improperly
maintained brakes and collision. NRS 484.597.
OPINION
Per Curiam:
On December 28, 1982, appellant David Brannan (Brannan) and a friend were riding their
motorcycles in an uninhabited area of desert near the intersection of Hollywood Boulevard
and Pabco Road in the Las Vegas Valley. While traveling south on Pabco Road at an
excessive speed, Brannan collided with a Nevada Rock & Sand Company (Nevada Rock)
tandem trailer belly dump truck that was traveling west on Hollywood Boulevard. As a
result of the accident, Brannan suffered catastrophic injuries.
Brannan brought suit against Nevada Rock for negligently maintaining and possessing
Hollywood Boulevard, for negligently maintaining the brakes on the company's trucks, and
for the negligent driving of its truck driver. The jury returned a verdict in favor of Nevada
Rock, and the present appeal ensued.
[Headnotes 1, 2]
Brannan first contends that the district court erred in excluding evidence that Nevada Rock
possessed and controlled Hollywood Boulevard, because possession and control of land
gives rise to a duty to maintain that land.
108 Nev. 23, 25 (1992) Brannan v. Nevada Rock & Sand
Boulevard, because possession and control of land gives rise to a duty to maintain that land.
See Restatement (Second) of Torts 367 (1965).
1
To support his claim, Brannan presented
evidence that Nevada Rock periodically plowed portions of Hollywood Boulevard, that
Hollywood Boulevard was used extensively by Nevada Rock's trucks in going back and forth
between the rock quarry and the rock crushing plant, and that at some entrances to the
intersection, Nevada Rock had placed warning signs. We conclude that the facts cited by
Brannan are insufficient to establish that Nevada Rock was a possessor of the intersection in
question and that the district court did not abuse its discretion in excluding this evidence.
Moreover, even if Brannan had presented facts sufficient to establish Nevada Rock's
possession, Nevada law precludes the imposition of a duty upon Nevada Rock to protect
Brannan. NRS 41.510 states that an occupier of open land owes no duty to keep the premises
safe from entry or use by others for recreational purposes. Brannan's motorcycle-riding was
undisputedly a recreational use.
[Headnotes 3, 4]
Brannan next asserts that the district court erred in refusing to permit the introduction of
facts to establish that Nevada Rock's truck had faulty brakes and that Nevada Rock had a
policy of not maintaining its trucks' brakes. Brannan contends that had this evidence been
admitted, he also would be entitled to an instruction stating that the failure to maintain the
truck's brakes as required by NRS 484.597 established per se negligence. The district court
refused to admit the evidence of faulty brakes or faulty brake maintenance or give the
requested per se negligence instruction because it found that no causal connection between
the truck's faulty brakes and the accident had been shown. We conclude otherwise and hold
that the district court should have both admitted the evidence of faulty brakes and given the
requested jury instruction.
NRS 484.597 requires that all brakes on vehicles be maintained in good working order.
Brannan was prepared to present evidence to demonstrate that Nevada Rock violated this
statute. After the accident, an officer of the Nevada Motor Carrier Division inspected the
brakes on the truck. The inspection revealed that the brakes on two of the six axles were
nonfunctional, and the inspector characterized five of the six axle brakes as inoperable.
__________
1
The Restatement (Second) of Torts 367 (1965) states:
A possessor of land who so maintains a part thereof that he knows or should know that others will
reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while
using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe
condition for travel.
108 Nev. 23, 26 (1992) Brannan v. Nevada Rock & Sand
Even when the inspector began his inspection, the driver of the truck warned him that he
wasn't going to like what [he] found and that Nevada Rock put all of its bad trucks hauling
gravel on Hollywood Boulevard. Other truck drivers testified that when a driver brought a
truck in complaining about the brakes, Nevada Rock would send the truck out with another
driver. If a driver refused to drive a truck because it was unsafe, the complaining driver would
be sent home and another driver assigned to drive the truck. One driver testified that there
was no regular brake maintenance program and that the brakes on the trucks were not
properly maintained.
Nevada Rock contends that there was no causal connection between the faulty brakes and
the accident because Brannan failed to demonstrate that the accident could have been
prevented had the driver hit his brakes prior to the collision. Although the evidence
concerning this point was conflicting, we conclude that Brannan presented sufficient facts to
support his contention. At trial, the driver of the truck testified that he hit his brakes only after
the motorcycle hit the side of his vehicle. However, on cross-examination, it was brought out
that in his prior deposition, the truck driver had indicated that he hit his brakes substantially
before impact. He acknowledged his prior statement and admitted that it was possible that he
hit his brakes 100 yards prior to impact, but now he could not recall. Brannan's reconstruction
expert testified that if the truck was traveling at twenty-five miles per hour, as claimed, and
the truck driver observed the motorcyclist coming toward the intersection when the truck was
110 feet away, the truck driver could have stopped before the actual point of impact,
assuming a minimum braking power and a normal driver reaction time. While this expert
modified his conclusion somewhat during cross-examination, there was still sufficient expert
testimony to show that the driver could have stopped his truck when he first was able to see
Brannan, if the brakes were in good operating order, if he immediately hit his brakes 110 feet
from the point of impact. Because Brannan should have been permitted to present evidence as
to the truck driver's ability to stop his vehicle, the effectiveness of the brakes could also have
had a direct bearing on the jury's deliberation and should have been explored.
NRS 484.597 is designed to protect the traveling public and to ensure that all those
operating motor vehicles adequately maintain their brakes. Brannan is a member of a class of
persons designed to be protected by this statute and there was evidence to establish a causal
connection between the improperly maintained brakes and the accident. See Barnes v. Delta
Lines, Inc., 99 Nev. 688, 669 P.2d 709 (1983) (when defendant violates statute designed to
protect class of persons to which plaintiff belongs, and thereby proximately causes injury
to plaintiff, such violation constitutes negligence per se).
108 Nev. 23, 27 (1992) Brannan v. Nevada Rock & Sand
designed to protect class of persons to which plaintiff belongs, and thereby proximately
causes injury to plaintiff, such violation constitutes negligence per se). Therefore, the district
court also should have given the requested instruction stating that a violation of NRS 484.597
would be per se negligence. See Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271
(1983) (party is entitled to have jury instructed on its theory of the case if sufficient evidence
is presented to support it). The jury would then be in a position to determine whether the
brakes on the truck were improperly maintained in violation of NRS 484.517, and if so,
whether the faulty brakes were a proximate cause of the accident. Failure to admit this
evidence and to instruct the jury properly prevented Brannan from asserting an essential
portion of his case and mandates reversal.
Appellant's remaining contentions are without merit. Accordingly, we reverse the
judgment of the district court and remand this case with instructions that it be retried before a
different district court judge.
Springer, Rose and Young, JJ., and Griffin, D. J.,
2
concur.
Mowbray, C. J., concurring in part and dissenting in part:
I concur in the majority opinion insofar as it holds that Nevada Rock, as an occupier of
open land, had no duty to keep the premises safe from entry or use by David Brannan, whose
use was recreational. This holding is compelled by the plain meaning of the language
contained in NRS 41.150.
I cannot agree with the majority, however, that the district court erred in refusing to admit
evidence of faulty brakes and rejecting the corresponding per se negligence instruction
requested by Brannan. The majority's conclusion, though appealing in light of the dreadful
injuries suffered by Brannan, contravenes basic principles of tort law.
An essential element of the plaintiff's cause of action for negligence is that there be some
reasonable connection between the act or omission of the defendant and the harm which the
plaintiff has suffered. W. Page Keeton et al., Prosser and Keeton on the Law of Torts 41, at
263 (5th ed. 1984). This connection is dealt with by courts in terms of what usually is called
proximate cause. Id. In determining whether an act or omission proximately caused the
harm in question, our threshold inquiry is whether the act or omission constitutes a cause in
fact of the harm. Id. at 264.
__________
2
The Honorable Michael R. Griffin, Judge of the First Judicial District Court, was designated by the
Governor to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. 6, 4.
108 Nev. 23, 28 (1992) Brannan v. Nevada Rock & Sand
harm. Id. at 264. Under this inquiry, [a]n act or omission is not regarded as a cause of an
event if the particular event would have occurred without it. Id. at 265.
In the case before us, Nevada Rock was unquestionably negligent in operating its truck
without proper brakes, in violation of NRS 484.597. Yet, even if the brakes had been in the
best of condition, the driver of Nevada Rock's truck could not have stopped in time to avoid
colliding with Brannan. The evidence firmly established that Brannan was traveling at an
excessive speed and that he struck the rear side of the truck, some twenty-five feet from the
front of the vehicle. Reasonable minds could not escape the conclusion that the cause in
fact of the accident was not Nevada Rock's negligence, but Brannan's reckless operation of
his motorcycle. As a matter of law, then, Nevada Rock's negligence did not proximately cause
the harm suffered by Brannan.
Because of the lack of any causal connection whatsoever between the faulty brakes and the
accident, the evidence concerning Nevada Rock's brake maintenance and repair practices has
little probative value. See NRS 48.015. At the same time, this evidence is tremendously
prejudicial to Nevada Rock's defense. The trial court, recognizing that the scant probative
value of this evidence was vastly outweighed by the danger of unfair prejudice to Nevada
Rock, correctly refused to admit it at trial. See NRS 48.035.
With respect to the negligence per se instruction requested by Brannan, the district court
correctly rejected the instruction unless it can be shown that Brannan presented sufficient
evidence to establish that Nevada Rock's act or omission proximately caused the accident. See
Barnes v. Delta Lines, Inc., 99 Nev. 688, 669 P.2d 709 (1983). As noted above, Brannan
failed to demonstrate the required causal connection. Therefore, the trial court did not err in
refusing the instruction.
In my view, the judgment of the trial court should be affirmed.
____________
108 Nev. 29, 29 (1992) Hook v. Giuricich
SUSAN M. HOOK, Appellant, v. ROBERT ALLEN GIURICICH, and NEVADA STAR
CAB CORPORATION, Respondents.
No. 21819
January 6, 1992 823 P.2d 294
Appeal from a district court order granting summary judgment and awarding attorney's
fees to respondents. Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Taxi driver who was injured in collision with other cab brought tort action against driver
employed by another taxicab corporation and that driver's employer. The district court entered
summary judgment in favor of defendants pursuant to exclusive remedy provision of workers'
compensation statute, and appeal was taken. The supreme court held that evidence raised fact
issue as to whether two taxicab corporations were joint venturers, precluding summary
judgment.
Reversed and remanded.
Jason A. Awad and Associates and Michael V. Dentico, Las Vegas, for Appellant.
Wells, Kravitz, Schnitzer, Sloan & Lindsey, Las Vegas, 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.
2. Appeal and Error.
On appeal from grant of summary judgment, supreme court determines whether district court erred in concluding that there was
absence of genuine issues of material fact.
3. Joint Ventures.
Joint venture is less formal relationship than partnership and is typically association entered into to perform more limited
business objective for more brief period of time.
4. Joint Ventures.
Joint venture is less permanent than partnership and is usually limited to single business project.
5. Workers' Compensation.
Burden of proof is upon employer to prove joint venture where employer is seeking immunity from common-law tort action based
on other venturer's enrollment in State Industrial Insurance System (SIIS). NRS 616.270, 616.560.
6. Judgment.
Evidence raised fact issue as to whether two taxicab corporations were joint venturers, precluding summary judgment under
workers' compensation statute's exclusive remedy provision in common-law tort action brought by driver
employed by one corporation against other corporation and driver employed by it after the two drivers
were involved in collision; although SIIS maintained one account for both companies, there was no
evidence that companies shared profits or losses or entered into relationship for brief undertaking of single
business project.
108 Nev. 29, 30 (1992) Hook v. Giuricich
compensation statute's exclusive remedy provision in common-law tort action brought by driver employed by one corporation against
other corporation and driver employed by it after the two drivers were involved in collision; although SIIS maintained one account for
both companies, there was no evidence that companies shared profits or losses or entered into relationship for brief undertaking of
single business project. NRS 616.270, 616.560.
OPINION
Per Curiam:
The question on appeal is whether two closely related taxicab corporations are joint
venturers, thus sharing immunity for worker's compensation purposes. We hold that summary
judgment was inappropriate in light of the facts presented to the district court.
FACTS
On July 8, 1987, appellant Susan Hook (Hook) was driving a taxicab owned and operated
by Nevada Yellow Cab Corporation (Yellow Cab) in the course of her employment. Another
taxicab driven by respondent Robert Giuricich (Giuricich) and owned and operated by
respondent Star Cab Corporation (Star Cab) struck Hook's vehicle from the rear. Hook
brought suit against Star Cab and Giuricich under common law tort theories. Hook has
received $47,740.36 in compensation from the State Industrial Insurance System (SIIS) as of
April 30, 1989.
Star Cab filed a motion for summary judgment, seeking immunity provided to employers
and co-employees under NRS 616.270
1
and NRS 616.560,
2
respectively. Star Cab contends
that Yellow Cab and Star Cab are conducting business as a joint venture, and thus the
statutory immunity provided to Yellow Cab extends to Star Cab as an employer and
extends as well to Giuricich as a co-employee of Hook.
__________
1
NRS 616.270 provides in relevant part:
Employers to provide compensation; relief from liability.
1. Every employer within the provisions of this chapter, and those employers who shall accept the terms
of this chapter and be governed by its provisions, as in this chapter provided, shall provide and secure
compensation according to the terms, conditions and provisions of this chapter for any and all personal
injuries by accident sustained by an employee arising out of and in the course of employment.
. . . .
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.
2
NRS 616.560 provides in relevant part:
Liability of third parties for damages. . . .
1. When an employee coming under the provisions of this chapter
108 Nev. 29, 31 (1992) Hook v. Giuricich
venture, and thus the statutory immunity provided to Yellow Cab extends to Star Cab as an
employer and extends as well to Giuricich as a co-employee of Hook. The district court
granted summary judgment to Star Cab, finding that Yellow Cab and Star Cab are treated as a
single employer by SIIS and are therefore both employers of Hook. The court thereby limited
Hook's recovery to the sole benefits provided by SIIS.
Hook appeals the grant of summary judgment, contending that there is a substantial and
material issue of fact as to whether Star Cab and Yellow Cab are joint ventures. We agree.
DISCUSSION
[Headnotes 1, 2]
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. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). On appeal, this court determines
whether the district court erred in concluding that there was an absence of genuine issues of
material fact. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
[Headnotes 3, 4]
This court has defined a joint venture as a contractual relationship in the nature of an
informal partnership wherein two or more persons conduct some business enterprise, agreeing
to share jointly, or in proportion to capital contributed, in profits and losses. Bruttomesso v.
Las Vegas Met. Police, 95 Nev. 151, 154, 591 P.2d 254, 256 (1979). A joint venture is a less
formal relationship than a partnership and is typically an association entered into to perform a
more limited business objective for a more brief period of time. Fredrickson v. Kluever, 152
N.W.2d 346, 348 (S.D. 1967). A joint venture is less permanent than a partnership and is
usually limited to a single business project. Baker Farmers Co. v. Harter, 328 N.E.2d 369,
372 (Ill.App.Ct.).
[Headnote 5]
This court has held that where the evidence of a joint venture is uncontroverted and one
joint venturer is immune from suit by virtue of being enrolled in SIIS, the other joint
venturers are also immune from suit.
__________
receives an injury for which compensation is payable under this chapter and which injury was caused
under circumstances creating a legal liability in some person, other than the employer or a person in the
same employ, to pay damages in respect thereof . . . .
(Emphasis added.)
108 Nev. 29, 32 (1992) Hook v. Giuricich
immune from suit. Haertel v. Sonshine Carpet Co., 104 Nev. 331, 335, 757 P.2d 364, 366
(1988). The burden of proof is upon the employer to prove a joint venture where the employer
is seeking immunity from a common law tort action. Placing the burden of proof on the
employer is necessary in order to avoid self-serving claims of joint ventureship.
[Headnote 6]
In the case at hand, there was no evidence before the district court indicating whether
Yellow Cab and Star Cab shared profits or losses. The district court made no findings
regarding whether Yellow Cab and Star Cab entered into a relationship for a brief
undertaking of a single business project. Rather, the district court granted summary judgment
to the cab companies, finding a joint venture solely on the fact that SIIS maintains one
account for both Star Cab and Yellow Cab.
Summary judgment was unwarranted in this case as a joint venture was not established
from uncontroverted facts. With the evidence before the district court, there remained
substantial issues of material fact: whether Yellow Cab and Star Cab satisfied the criteria for
a joint venture as discussed in this opinion.
CONCLUSION
The judgment of the district court is reversed, along with the award of attorney's fees and
costs to respondents, and the case is remanded for further proceedings consistent with this
opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Huffaker, D. J.,
3
concur.
____________
108 Nev. 32, 32 (1992) Desert Cab v. Marino
DESERT CAB INC., Doing Business Under the Firm Name of DESERT CAB COMPANY
and JAMES EDWARDS, Appellants, v. MARIA MARINO, Respondent
No. 21377
January 6, 1992 823 P.2d 898
Appeal from a judgment entered against appellants following a jury verdict. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
__________
3
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
108 Nev. 32, 33 (1992) Desert Cab v. Marino
Taxicab driver who was assaulted by driver for another company brought personal injury
action against the other driver's employer. The district court entered judgment on jury verdict
in favor of taxicab driver, and employer appealed. The supreme court held that: (1) evidence
that State Industrial Insurance System had determined that cab driver was in the course of her
employment at the time of the assault was irrelevant; (2) error in admitting that evidence was
harmless; and (3) evidence that assaulting driver had been convicted of misdemeanor assault
and battery was relevant and admissible.
Affirmed.
Jeffrey R. Albregts, Las Vegas, for Appellants.
Denton & Denton, Ltd., Las Vegas, for Respondent.
1. Evidence.
Evidence that is not relevant is not admissible; relevant evidence is that which has a tendency to make the existence of any fact
of consequence to the determination of the action more or less probable than it would without the evidence. NRS 48.015, 48.025.
2. Master and Servant.
State Industrial Insurance System (SIIS) ruling that taxicab driver was acting within the course of her employment when she was
attacked by a driver for another company was not relevant to issue of the other company's liability for its cab driver's attack. NRS
48.015, 48.025.
3. Appeal and Error.
Error in admitting, in action brought by taxicab driver against employer of second driver who assaulted her, determination of SIIS
that taxicab driver was in the course of her employment at the time of the assault was harmless where the court instructed the jury that
evidence of the decision was admissible only to show that SIIS had accepted the claim for industrial compensation and where employer
of taxicab driver had agreed not to proffer the decision in return for employer's agreement not to introduce certain other evidence and
employer had breached that agreement during opening statement.
4. Master and Servant.
Finding that taxicab driver committed wrongful act by attacking driver of another company was a prerequisite to imposition of
liability on the employer of the driver who committed the assault.
5. Master and Servant.
Judgment of conviction for misdemeanor assault and battery of taxicab driver who assaulted driver for another company was
relevant in victim's action against the assaulting driver's employer to establish wrongfulness of assaulting driver's conduct. NRS
41.133, 48.015.
6. Evidence.
Probative value of evidence that taxicab driver who assaulted driver for another company had been convicted of misdemeanor
assault and battery outweighed potential for unfair prejudice in action against the assaulting cab driver's employer. NRS 41.133.
108 Nev. 32, 34 (1992) Desert Cab v. Marino
OPINION
Per Curiam:
THE FACTS
On October 6, 1986, respondent Maria Marino (Marino), a cab driver with
Yellow-Checker Cab Company (Yellow-Checker Cab), and appellant James Edwards
(Edwards), a cab driver with appellant Desert Cab Company (Desert Cab), parked their
cabs at the taxicab stand of the Sundance Hotel and Casino in Las Vegas to await fares.
Marino's cab occupied the first position in the line and Edwards occupied the third. As
Marino stood alongside her cab conversing with the driver of another taxi, Edwards began
verbally harassing her from inside his cab. When Marino approached Edwards to inquire as to
the reason for the harassment, he jumped from his cab, grabbed Marino by her neck and
shoulders, began choking her, and threw her onto the front of his taxicab. A bystander
intervened, pulled Edwards off of Marino and escorted her back to her cab.
Marino sustained injuries that rendered her unable to work for a time. Before she could
return to work, Yellow-Checker Cab terminated her. Marino subsequently filed a wrongful
termination suit against her former employer.
Edwards was convicted of misdemeanor assault and battery for his attack on Marino.
Marino brought this personal injury action against James Edwards and Desert Cab.
1
At
trial, the jury confronted two critical issues: (1) whether Edwards' tortious conduct arose out
of the course and scope of his employment with Desert Cab, and if so, (2) what damages did
Marino suffer as a result of this conduct. Concluding that Edwards' tortious conduct arose out
of the course and scope of his employment, the jury found Desert Cab liable for Marino's
injuries and awarded her $65,000.00 in compensatory damages.
Desert Cab appeals several of the district court's evidentiary rulings.
2
For reasons set forth
below, we conclude that the district judge's rulings were not erroneous.
1. The SIIS Hearing Officer's Decision
At trial, Marino introduced the written decision of a State Industrial Insurance System
(SIIS) hearing officer awarding Marino industrial compensation for the injuries she
sustained as a result of Edwards' attack.
__________
1
Edwards neither answered Marino's complaint nor appeared at the trial. Consequently, the district court
entered a default judgment against him on October 5, 1989.
2
Though listed as an appellant, Edwards raises no issues on this appeal.
108 Nev. 32, 35 (1992) Desert Cab v. Marino
Marino industrial compensation for the injuries she sustained as a result of Edwards' attack.
The critical prerequisite to this award was a finding by the hearing officer that Marino's
injuries arose out of the course and scope of her employment with Yellow-Checker Cab. The
written decision contained this finding. Over the objection of Desert Cab, the district court
admitted into evidence this decision, deeming it admissible to show that SIIS accepted
Marino's claim for industrial compensation. Desert Cab contends that the SIIS hearing
officer's decision is irrelevant and therefore should have been excluded from the trial. We
agree.
[Headnote 1]
Evidence that is not relevant is not admissible. NRS 48.025. Relevant evidence is
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; e.g., Land Resources Dev. v. Kaiser Aetna, 100 Nev. 29, 676 P.2d 235 (1984).
[Headnote 2]
The SIIS decision is not relevant to the issue of Desert Cab's liability for Edwards' attack.
The determination of whether Marino's injuries arose out of the course and scope of her
employment with Yellow-Checker Cab is separate and distinct from the determination of
whether Edwards' tortious conduct arose out of the course and scope of his employment with
Desert Cab. Moreover, while the phrase arising out of the course and scope of employment
has received a liberal interpretation by this court where the issue is entitlement to industrial
compensation, Molino v. Asher, 95 Nev. 33, 588 P.2d 1033 (1979); Provenzano v. Long, 64
Nev. 412, 183 P.2d 639 (1947); Nevada Ind. Com. v. Leonard, 58 Nev. 16, 68 P.2d 576
(1937), no similar interpretation has been utilized where the issue is the vicarious liability of
an employer for the tortious acts of an employee. Thus, the hearing officer's conclusion with
respect to Marino's injuries has no bearing whatsoever upon the issue of Desert Cab's
liability.
[Headnote 3]
Though we are convinced that the district court erred by admitting the SIIS decision, we
also conclude that this error was harmless. Realizing that the jury might improperly infer
from the SIIS decision that Edwards' conduct arose out of the course and scope of his
employment, the district court instructed the jury accordingly, emphasizing that the decision
was admissible only to show that SIIS had accepted Marino's claim for industrial
compensation. In addition, the parties negotiated a pretrial agreement before the trial court
whereby Marino agreed not to proffer the SIIS decision in return for Desert Cab's assurance
that it would not introduce evidence of the disciplinary citation Marino received from the
Taxicab Authority for "participating in verbal argument" with Edwards prior to the attack.
108 Nev. 32, 36 (1992) Desert Cab v. Marino
SIIS decision in return for Desert Cab's assurance that it would not introduce evidence of the
disciplinary citation Marino received from the Taxicab Authority for participating in verbal
argument with Edwards prior to the attack. Marino proffered the SIIS decision only after
Desert Cab's counsel abrogated this agreement in his opening statement. We are loathe to
disturb a jury verdict where the alleged error is seemingly invited by the complaining party.
Finally, Desert Cab has failed to show that the error complained of so substantially affected
its rights that it could be reasonably assumed that, if not for the alleged error, a different result
might reasonably have been expected. El Cortez Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484
P.2d 1089, 1091 (1971).
2. Edwards' Judgment of Conviction.
The district court admitted into evidence the judgment of Edwards' misdemeanor assault
and battery conviction. The court found this evidence admissible pursuant to NRS 41.133
and NRS 41.130 to conclusively prove Edwards' civil liability to Marino.
3
Desert Cab
argues that the judgment of conviction was irrelevant and should not have been admitted.
According to Desert Cab, the critical issue before the jury was whether or not Desert Cab
could be held liable for Edwards' tortious attack on Marino. Edwards' liability to Marino,
Desert Cab insists, was never an issue at trial.
[Headnotes 5, 6]
We are not persuaded by Desert Cab's argument. By the express language of NRS 41.133,
Edwards' judgment of conviction provides conclusive evidence of his civil liability to Marino.
A finding that Edwards committed a wrongful act by attacking Marino is a prerequisite to
imposing liability upon Desert Cab. The judgment of conviction establishes the wrongfulness
of Edwards' conduct. Therefore, the judgment is relevant evidence. See NRS 48.015.
[Headnote 7]
Desert Cab also contends that any probative value found in Edwards' judgment of
conviction pales in comparison to the unfairness this evidence injected into the trial.
__________
3
NRS 41.133 provides:
If an offender has been convicted of the crime which resulted in the injury to the victim, the judgment
of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury.
NRS 41.130 provides:
Whenever any person shall suffer personal injury by wrongful act, neglect or default of another, the
person causing the injury shall be liable to the person injured for damages; and where the person causing
such injury is employed by another person or corporation responsible for his conduct, such person or
corporation so responsible shall be liable to the person injured for damages.
108 Nev. 32, 37 (1992) Desert Cab v. Marino
Edwards' judgment of conviction pales in comparison to the unfairness this evidence injected
into the trial. Admission of the judgment pursuant to NRS 41.133, Desert Cab submits,
created an irrebuttable presumption that it was liable to Marino because of Edwards'
conviction for assault and battery. For this reason, Desert Cab concludes, the trial court
should not have admitted Edwards' judgment of conviction.
We disagree. Edwards' judgment of conviction does not by itself establish Desert Cab's
liability to Marino. In order to find Desert Cab liable, Marino still had to satisfy the terms of
NRS 41.130 by establishing that Desert Cab was responsible for Edwards' conduct. Desert
Cab could be found responsible only if Marino proved that the attack arose out of the
course and scope of Edwards' employment with Desert Cab. Thus, the trial court did not
abuse its discretion in finding that the prejudicial effect of Edwards' judgment of conviction
did not substantially outweigh its probative value.
CONCLUSION
We find any error in the trial court's evidentiary rulings to be harmless. Desert Cab's
remaining contentions lack merit. Therefore, we affirm the judgment of the district court.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Christensen, D. J.,
4
concur.
____________
108 Nev. 37, 37 (1992) Sports Form v. Leroy's Horse & Sports
SPORTS FORM, INC., Appellant, v. LEROY'S HORSE AND SPORTS PLACE, a Nevada
Corporation, Respondent.
No. 21574
January 16, 1992 823 P.2d 901
Appeal from a jury verdict in favor of respondent and from an award of attorney's fees.
Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Betting establishment brought action against gaming disseminator for failure to provide
equal access to gaming information. The district court entered jury verdict for the
establishment, and disseminator appealed. The supreme court held that statutes requiring fair
and equitable dissemination of gaming information did not provide gaming entities with
private cause of action.
__________
4
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
108 Nev. 37, 38 (1992) Sports Form v. Leroy's Horse & Sports
requiring fair and equitable dissemination of gaming information did not provide gaming
entities with private cause of action.
Reversed.
Young, J., dissented.
[Rehearing denied May 18, 1992]
Nitz, Walton & Hammer, Las Vegas, for Appellant.
Neil J. Beller, Las Vegas, for Respondent.
1. Gaming.
Gaming entities are intended beneficiaries of statutes requiring fair and equitable dissemination of gaming information. NRS
463.440, subd. 1(a), 463.460.
2. Action.
Though gaming entities are primary beneficiaries of statutes requiring fair and equitable dissemination of gaming information,
nothing in those statutes provides them with private cause of action; legislature intended that only Nevada Gaming Control Board or
Nevada Gaming Commission could bring enforcement actions. NRS 463.440, subd. 1(a), 463.460.
3. Administrative Law and Procedure.
Doctrine of primary jurisdiction requires that courts should sometimes refrain from exercising jurisdiction so that technical issues
can first be determined by administrative agency.
OPINION
Per Curiam:
LeRoy's Horse and Sports Place (LeRoy's) is a betting establishment which offers
wagering on sports and race events. In order to offer this service, LeRoy's must subscribe,
from a licensed disseminator, to either a live audio or visual signal which is transmitted from
the point of origin of the event to the race and sports place. Mr. Victor Salerno is the
president of LeRoy's.
Sports Form is a licensed disseminator of gaming information. Chuck DiRocco is a
principal of Sports Form, Inc.
In 1987, LeRoy's entered into a one-year contract with Sports Form for receipt of the
signal. Mr. Salerno failed to make timely payments on the contract, and the signal was
terminated. Sports Form subsequently sued LeRoy's for the full price of the contract and
prevailed.
On May 18, 1988, Mr. Salerno received a letter from Sports Form inviting him to
subscribe to the Chicago/Hawthorne/Arlington signal. The letter emphasized compliance with
the ten day requirement of the Nevada Gaming Commission. On June 13, 19SS, Mr.
108 Nev. 37, 39 (1992) Sports Form v. Leroy's Horse & Sports
13, 1988, Mr. Salerno contacted Mr. DeRenzo, a long-term employee of WINCO/Sports
Form, and said that he would like to have the service. He was told that he needed to get a
waiver from the Gaming Commission.
Mr. Salerno contacted Dennis Amerine, the designated representative of Mike Rumboltz
of the Gaming Control Board, and obtained an oral waiver of the ten day rule. He was
subsequently informed by Mr. DeRenzo that Mr. DiRocco required the waiver to be in
writing. Mr. Salerno obtained a letter from Mr. Amerine which he delivered to Mr. DeRenzo.
Despite obtaining a waiver, Sports Form declined to provide the signal, citing LeRoy's history
of slow payment.
LeRoy's filed suit in the district court for failure to provide equal access to gaming
information. See NRS 463.440(1)(a)
1
and NRS 463.460.
2
A jury awarded $13,969.00 in
damages. On appeal, appellant contests the existence of a private cause of action under NRS
Chapter 463.
In determining whether respondent has a private cause of action under NRS Chapter 463
and, specifically, NRS 463.440(1)(a) and NRS 463.460, it is helpful to look to the Supreme
Court case of Cort v. Ash, 422 U.S. 66 (1975).
In Ash, the Supreme Court articulated four general factors to be considered in determining
whether a private remedy is implicit in a federal statute. Those factors include the following:
(1) whether the plaintiff was one of the class for whose special benefit the statute was
enacted; (2) whether there was any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one; (3) whether the implication of such a remedy
was consistent with the underlying purposes of the legislative theme; and (4) whether the
cause of action was one traditionally relegated to state law, in an area basically that
concerned the State, so that it would be inappropriate to infer a cause of action based solely
on federal law. Ash, 422 U.S. at 78.
__________
1
NRS 463.440(1)(a) provides:
(a) All persons licensed to operate and maintain a sports pool or race book are entitled to receive on a
fair and equitable basis all information concerning such racing that is being disseminated into and within
this state.
2
NRS 463.460 provides:
463.460 Licensee to furnish information without discrimination. Any disseminator of such
information obtaining a license under NRS 463.430 to 463.480, inclusive, shall furnish such information
to any licensed race book or sports pool which applies to the disseminator therefor, and the information
must be furnished by the disseminator as adequately and efficiently as it is furnished to any other users of
the information furnished by the disseminator.
108 Nev. 37, 40 (1992) Sports Form v. Leroy's Horse & Sports
The first three of the Ash factors are applicable to this case. We will now consider each
factor in turn.
1. Protected class.
[Headnote 1]
Appellant contends that the Gaming Control Act, NRS Chapter 463, was not enacted for
the special benefit of gaming entities. Appellant cites the case of Dunn v. Tax Commission,
67 Nev. 173, 216 P.2d 985 (1950), which states: The contention that the purpose of the
[gaming licensing] act is to favor or benefit the race track books and not for the protection of
the public and in the public interest' as recited in section 2 of the act is not tenable. Id. at
184, 216 P.2d at 991.
We conclude that Dunn is inapplicable to the present case. In Dunn, the issue was whether
a statute (1949 Nev. Stats. ch. 152) providing for the licensing of the supplying and
dissemination of horse racing information was constitutional. Id. at 175-176, 216 P.2d at 997.
3
In contrast, the present issue is whether gaming entities are the intended beneficiaries of
statutes requiring the fair and equitable dissemination of gaming information. See NRS
463.440(1)(a); see also NRS 463.460.
While the overarching purpose behind the Gaming Control Act is to protect the public,
gaming entities are the primary beneficiaries of NRS 463.440(1)(a) and NRS 463.460. NRS
463.440(1)(a) specifically states that it is the public policy of the State that: All persons
licensed to operate and maintain a sports pool or race book are entitled to receive on a fair
and equitable basis all information concerning such racing that is being disseminated into and
within this state.
2. Legislative intent.
[Headnote 2]
Respondent argues that the legislature intended to enforce NRS 463.440(1)(a) and NRS
463.460 through private civil actions. We disagree. Though gaming entities are the primary
beneficiaries of these statutes, nothing in NRS 463.440(1)(a) or NRS 463.460 provides them
with a private cause of action. Instead, enforcement is governed by NRS 463.141, which
states: The commission or board shall initiate proceedings or actions appropriate to enforce
the provisions of this chapter. See also NRS 463.310.
4
Clearly, the legislature intended
that only the Nevada Gaming Control Board or the Nevada Gaming Commission may bring
enforcement actions for violations of NRS 463.440{1){a) and NRS 463.460.
__________
3
We determined that the licensing act was proper under the State's police power, since the interest in
protecting the public was manifest. Dunn, 67 Nev. at 184, 216 P.2d at 997.
4
NRS 463.310 states, in pertinent part, as follows:
Investigations; disciplinary proceedings; duties of board and commission; powers of commission.
1. The board shall make appropriate investigations:
108 Nev. 37, 41 (1992) Sports Form v. Leroy's Horse & Sports
Clearly, the legislature intended that only the Nevada Gaming Control Board or the Nevada
Gaming Commission may bring enforcement actions for violations of NRS 463.440(1)(a) and
NRS 463.460.
3. Legislative scheme.
Appellant suggests that the legislative scheme of Chapter 463 does not contemplate a
private cause of action. We agree.
[Headnote 3]
The doctrine of primary jurisdiction requires that courts should sometimes refrain from
exercising jurisdiction so that technical issues can first be determined by an administrative
agency. Kapplemann v. Delta Air Lines, 539 F.2d 165, 168-169 (1st Cir. 1976). In
Kapplemann, the court articulated two policies advanced by the traditional primary
jurisdiction doctrine: (1) the desire for uniformity of regulation and, (2) the need for an
initial consideration by a tribunal with specialized knowledge. Kapplemann, 539 F.2d at
169.
The continued growth and success of Nevada gaming is dependent upon public confidence
and trust that licensed gaming is conducted honestly and competitively. This confidence and
trust can only be maintained by strict and uniform regulation of all aspects of the gaming
industry. See NRS 463.0129. Recognizing this, the legislature vested authority for
enforcement of Chapter 463 in the Nevada Gaming Control Board and the Nevada Gaming
Commission. Therefore, absent express language to the contrary, the legislative scheme of
Chapter 463 precludes a private cause of action.
In sum, under the relevant factors enumerated in Ash, we conclude that a private cause of
action does not exist under NRS 463.440(1)(a) and NRS 463.460.
Because we find that no private cause of action exists, we need not address appellant's
other contentions.
Accordingly, we reverse the judgment of the district court.
Mowbray, C. J., Springer and Steffen, JJ., and Foley, D. J.,
5
concur.
Young, J., dissenting:
Respectfully, I dissent. I would hold that there is a private cause of action under NRS
Chapter 463.
__________
(a) To determine whether there has been any violation of this chapter or chapter 464 or 465 of NRS or
any regulations adopted thereunder.
5
The Honorable Thomas A. Foley, Judge of the Eighth Judicial District Court, was designated by the
Governor to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
108 Nev. 37, 42 (1992) Sports Form v. Leroy's Horse & Sports
The majority concedes that the purpose of NRS 463.440(1)(a) and NRS 463.460 is to
benefit gaming entities. Clearly, NRS 463.440(1)(a) and NRS 463.460 create a right in favor
of race books. Race books are entitled to receive all information concerning racing which is
being disseminated in Nevada. NRS 463.440(1)(a). The information is to be furnished to any
race book which applies for it, and the disseminator may not discriminate against any
applicant. NRS 463.460. In order to give NRS 463.460 meaning, a private cause of action
must be afforded to those gaming entities which are denied the rights granted to them by
statute.
The majority concedes that gaming entities are the primary beneficiaries of NRS
463.440(1)(a) and NRS 463.460, but goes on to say that nothing in those statutes provides
gaming entities with a private cause of action. Where a statute does not expressly create or
deny a private cause of action, the legislative history will typically be ambiguous or silent on
the issue. Cannon v. University of Chicago, 441 U.S. 677, 694 (1978). Therefore, in
situations such as the present one in which it is clear that [the statute] has granted a class of
persons certain rights, it is not necessary to show an intention to create a private cause of
action . . . .' Id. at 694 (quoting Cort v. Ash, 422 U.S. 66, 82 (1975)) (emphasis in original.)
No private remedy should be implied if it is contrary to the underlying purpose of the
legislation. Cannon, 441 U.S. at 703. However, when a private cause of action is helpful to
accomplish the statutory purpose, the court should be receptive to allowing the remedy. Id.
Affording LeRoy's a private cause of action furthers the legislative intent to protect gaming
entities from denial of racing information being disseminated in the State of Nevada.
The majority limits LeRoy's remedy to enforcement of the statute through the Nevada
Gaming Control Board and the Nevada Gaming Commission. Preclusion of a private cause of
action renders a hollow victory to LeRoy's, which was denied the rights afforded it by statute
but which is not entitled to damages for that denial. Sports Form is merely slapped on the
wrist for discriminating against LeRoy's in violation of NRS 463.460. If a private cause of
action were recognized, it would discourage Sports Form or others from discrimination in the
future.
I therefore dissent.
____________
108 Nev. 43, 43 (1992) Rice v. State
BRUCE ALLEN RICE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21150
January 24, 1992 824 P.2d 281
Appeal from a judgment of conviction upon jury verdict of one count of possession of
stolen property. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Defendant was convicted before the district court of possession of stolen property, and he
appealed. The supreme court held that: (1) error which occurred when two State witnesses
made references to Department of Parole and Probation, thus permitting jury to infer that
defendant had engaged in prior criminal activity, was not prejudicial; (2) it was not logically
inconsistent for jury to acquit defendant of grand larceny charge and to convict him for
possessing same property as stolen; and (3) evidence was sufficient to sustain conviction.
Affirmed.
Rose, J., dissented.
Morgan D. Harris, Public Defender and Patrick E. McDonald, Deputy, Clark County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and
James Tufteland, Deputy, Clark County, for Respondent.
1. Criminal Law.
Test for determining whether statement is an impermissible reference to criminal history is whether jury would reasonably infer
from the facts presented that accused had engaged in prior criminal activity.
2. Constitutional Law.
Because it affects the presumption of innocence, reference to criminal history, absent special conditions of admissibility, is a
violation of due process. U.S.C.A.Const. amend. 14.
3. Criminal Law.
Error in allowing two State witnesses to make references to the Department of Parole and Probation, from which jury could infer
that defendant had engaged in prior criminal activity, was harmless, considering that statements were unsolicited, or inadvertent, and
that defense counsel declined judge's offer to give jury a limiting instruction.
4. Criminal Law.
There was no inconsistency in jury verdict acquitting defendant of grand larceny but convicting him of possessing the same
property as stolen; fact that jury did not convict defendant of grand larceny did not mean that jury concluded that property was not
stolen. NRS 205.275, subd. 1.
108 Nev. 43, 44 (1992) Rice v. State
5. Receiving Stolen Goods.
Evidence was sufficient to sustain conviction for possession of stolen property; there was no question that defendant possessed the
property, and jury could have concluded that he possessed it for his own gain because he admitted to having sold some of the items.
NRS 205.275, subd. 1.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction upon jury verdict of one count of
possession of stolen property. NRS 205.275(1). The district court adjudicated appellant a
habitual criminal. Accordingly, appellant was sentenced to fifteen years in the Nevada State
Prison.
[Headnotes 1-3]
Appellant first contends that the district court violated his due process rights by denying
his motion for a mistrial after two state's witnesses made references to the department of
parole and probation, in violation of a motion in limine. The test for determining whether a
statement is a reference to criminal history is whether the jury could reasonably infer from the
facts presented that the accused had engaged in prior criminal activity. Manning v. Warden,
99 Nev. 82, 659 P.2d 847 (1983). Because it affects the presumption of innocence, a
reference to criminal history, absent special conditions of admissibility, is a violation of due
process. Id.; Courtney v. State, 104 Nev. 267, 756 P.2d 1182 (1988). Although a reasonable
juror could conclude from the references at issue that appellant had engaged in prior criminal
activity, we conclude that the error was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18 (1967). The statements were unsolicited, the references were
inadvertent, and defense counsel declined the judge's offer to give the jury a limiting
instruction. Under these circumstances, the error was not prejudicial. Cf. Stickney v. State, 93
Nev. 285, 564 P.2d 604 (1977).
[Headnote 4]
Appellant next contends that the evidence presented at trial was insufficient to support the
jury's finding of guilt. Specifically, appellant contends that it was logically inconsistent for
the jury to acquit him of the grand larceny charge and to convict him for possessing the same
property as stolen. Furthermore, appellant denies having the requisite intent.
Our review of the record on appeal, however, reveals sufficient evidence to establish guilt
beyond a reasonable doubt as determined by a rational trier of fact. See Wilkins v. State, 96
Nev.
108 Nev. 43, 45 (1992) Rice v. State
367, 609 P.2d 309 (1980). To begin, we note that there is no inherent illogic in the jury's
verdict. The fact that the jury did not convict appellant of grand larceny does not necessarily
mean that the jury concluded that the property was not stolen, but rather that the jury was not
convinced beyond a reasonable doubt that it was appellant who stole it. As the jury was
correctly instructed, an accused may not be convicted of both larceny and possession of stolen
property. Point v. State, 102 Nev. 143, 146-47, 717 P.2d 38, 40-41 (1986).
[Headnote 5]
Moreover, the record reveals sufficient evidence to support the jury's verdict. There is no
question that appellant possessed the property. The jury could have concluded that he
possessed it for his own gain because he admitted to having sold some of the items. The jury
could have also concluded that he possessed it to prevent the victim from again possessing it
because he moved it without telling her. In addition, as noted above, the jury could have
concluded that someone else stole the goods, but that appellant knew or should have known
that they were stolen. See NRS 205.275(1).
The jury could reasonably infer from the evidence presented that appellant possessed
stolen property. It is for the jury to determine the weight and credibility to give conflicting
testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Accordingly, we affirm the judgment of conviction.
Rose, J., dissenting:
The district court realized the impropriety and damage that evidence of appellant Rice's
prior criminal convictions would do to his defense. A motion in limine was granted
precluding the State from making any reference to the fact that Rice was on parole when the
alleged crimes were committed. This, of course, would include reference to parole and
probation officers supervising Rice.
Once such an order is entered, the prosecution has the obligation to admonish his law
enforcement witnesses not to mention that the defendant was being supervised by parole and
probation officers, as well as not referring to it himself or attempting to elicit such testimony.
Either the prosecutor in this case did not adequately warn the law enforcement witnesses, or
the law enforcement witnesses deliberately ignored the warning.
The officer that responded to the burglary call was asked on the stand if she relayed the
information over the radio about Rice's likely whereabouts. She answered, No, and then
volunteered that what had happened was that when she had completed the crime report,
"two Parole and Probation officers came to the apartment" and informed her of Rice's
probable location.
108 Nev. 43, 46 (1992) Rice v. State
that what had happened was that when she had completed the crime report, two Parole and
Probation officers came to the apartment and informed her of Rice's probable location. The
defense raised the appropriate objection and requested a mistrial, on the grounds that the
witness's response was a clear violation of the court's order. Later, a second officer stated that
he went to the scene where the furniture was found to assist the Parole and Probation
officers, and that he entered the residence when P&P invited [him] in. The defense
attorney again objected and moved for a mistrial, which the court denied.
These statements unquestionably violated the district court's order. Therefore, in order to
affirm this conviction, we must be convinced that these errors were harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).
Rice was charged with grand larceny and possession of stolen property. He was accused of
stealing and having in his possession furniture and personal items belonging to his roommate,
which Rice moved to another location while the roommate was out of town. Rice's defense
was that he was not stealing anything and that he had moved all of the furniture when he was
forced to move from the apartment. The jury convicted Rice of possession of stolen property
but acquitted him on the charge of grand larceny.
This was a reasonably close case, depending largely on the credibility of the accused. See
Big Pond v. State, 101 Nev. 1, 692 P.2d 1288 (1985). The fact that Rice was on parole and
obviously had committed other crimes may have undermined the credibility of his defense
and led some jurors to return a conviction on one of the two counts. Accordingly, I would
reverse and remand this case for a new trial.
____________
108 Nev. 46, 46 (1992) Damus v. Avis Rent A Car
CHARLES DAMUS, Appellant, v. AVIS RENT A CAR SYSTEM, INC., Respondent.
No. 21672
January 24, 1992 824 P.2d 283
Appeal from an order of the district court that vacated an order changing venue. Second
Judicial District Court, Washoe County; Charles M. McGee, Judge.
Plaintiff brought suit against defendant to recover for property damage. Defendant
obtained change of venue to transferee court. Plaintiff then brought motion in transferor court
to vacate order changing venue.
108 Nev. 46, 47 (1992) Damus v. Avis Rent A Car
changing venue. The district court vacated order changing venue, and defendant appealed.
The supreme court held that transferor court relinquished jurisdiction over all further
proceedings, including motion to vacate, by transferring venue to transferee court.
Vacated and remanded.
[Rehearing denied May 18, 1992]
Charles M. Damus and Joel M. Cooper, Las Vegas, for Appellant.
Paul J. Williams, Reno, for Respondent.
1. Venue.
Change of venue to county in which defendant resided at time of commencement of action was proper. NRS 13.040.
2. Venue.
Once court ordered entered venue transferred, it relinquished jurisdiction over all further proceedings, including subsequent
motion by plaintiff to vacate venue transfer order. NRS 13.050, subd. 3.
3. Venue.
Plaintiff should have directed motion to vacate change of venue to court of transferee county. NRS 13.050, subd. 3.
4. Venue.
In case in which party requesting change of venue failed to pay filing fee upon transfer, as required by rule, proper course of
conduct, when faced with opposing party's request to return file to transferor court, would have been for clerk of transferee court to
stamp file as received and to make formal demand upon party who commenced transfer to pay necessary fee, rather than acceding in
request to return file. NRS 13.050, subd. 3, 19.013, subds. 1, 2, 19.060.
OPINION
Per Curiam:
On May 8, 1990, respondent Avis Rent A Car System, Inc., filed in the Second Judicial
District Court for Washoe County a complaint for property damage against appellant Charles
Damus. Appellant allegedly caused an automobile accident in Las Vegas which resulted in
approximately $4,600.00 damage to a vehicle owned by respondent.
On May 21, 1990, appellant filed in the Second Judicial District Court for Washoe County
an unopposed demand and motion for change of venue on the ground that the accident
occurred in Clark County and that he resides in Clark County. On June 13, 1990, Second
Judicial District Court Judge Charles M. McGee entered an order granting appellant's motion
and changing venue to the Eighth Judicial District Court for Clark County. He ordered the
action transferred and the files forwarded to the Clerk of the Eighth Judicial District Court.
108 Nev. 46, 48 (1992) Damus v. Avis Rent A Car
ordered the action transferred and the files forwarded to the Clerk of the Eighth Judicial
District Court. Respondent did not appeal the order changing venue.
On September 20, 1990, respondent filed in the Second Judicial District Court a motion to
vacate or withdraw the order changing venue on the ground that appellant refused to pay a
filing fee to the Clerk of the Eighth Judicial District Court as required by NRS 19.013(1). The
Clerk of the Eighth Judicial District Court had, on August 13, 1990, returned the case file to
the Second Judicial District Court at the request of respondent's attorney.
On October 9, 1990, Judge McGee granted respondent's motion to vacate. Accordingly,
the court vacated its previous order changing venue to the Eighth Judicial District Court and
ordered the action returned to the Second Judicial District Court. This timely appeal followed.
[Headnote 1]
Preliminarily, we note that Clark County is the proper venue for commencement of this
action. Pursuant to NRS 13.040, an action shall be tried in the county in which the
defendants . . . may reside at the commencement of the action . . . . No one disputes that
appellant was and is a resident of Clark County. Thus, appellant properly moved for, and the
district court properly granted, a change of venue from Washoe County to Clark County. See
Halama v. Halama, 97 Nev. 628, 637 P.2d 1221 (1981) (NRS 13.040 does not permit
exercise of discretion by district court).
[Headnotes 2-4]
Appellant contends that once the Second Judicial District Court ordered venue changed, it
lost jurisdiction over the case because, [w]hen the place of trial is changed, all other
proceedings shall be had in the county to which the place of trial is changed . . . . NRS
13.050(3). We agree. Once venue was ordered transferred, the Second Judicial District Court
relinquished jurisdiction over all further proceedings, including respondent's motion to
vacate. From that point on, jurisdiction was in the transferee court. Therefore, respondent's
motion should have been directed to the Eighth Judicial District Court. Cf. Stocks v. Stocks,
64 Nev. 431, 183 P.2d 617 (1947) (once venue is transferred, only the transferee court has
jurisdiction over further proceedings); Williams v. Keller, 6 Nev. 141 (1870) (when the
movant is clearly entitled to a change of venue under the statute, any subsequent proceedings
should be had in the transferee court; motion for change of venue deprived original court of
all jurisdiction except to decide appellant's residence and to transfer the case).
108 Nev. 46, 49 (1992) Damus v. Avis Rent A Car
appellant's residence and to transfer the case). Because the Second Judicial District Court
lacked jurisdiction to entertain the motion to vacate its previous order changing venue, it
erred in granting respondent's motion.
1
We have considered appellant's remaining contentions and have determined that they are
without merit. In addition, we decline the parties' invitations to impose sanctions.
Accordingly, we vacate the order of the district court vacating its previous order changing
venue, and we remand this matter to the Second Judicial District Court with instruction to
transfer the matter to the Eighth Judicial District Court.
____________
108 Nev. 49, 49 (1992) State v. Gattuso
THE STATE OF NEVADA, Appellant, v. PETER GATTUSO, Respondent.
No. 21613
January 24, 1992 825 P.2d 569
Appeal from an order of the district court dismissing a criminal complaint charging
appellant with felony escape from lawful confinement. First Judicial District Court, Carson
City; Michael R. Griffin, Judge.
Eleven months after his recapture, prisoner was charged with felony escape from lawful
confinement. The district court dismissed criminal complaint, and state appealed. The
supreme court held that neither prisoner's Sixth Amendment right to speedy trial, nor
statutory right of arrested person to be brought before magistrate without unnecessary delay,
was violated by eleven-month delay between prisoner's recapture and filing of criminal
complaint.
Vacated and remanded.
Frankie Sue Del Papa, Attorney General and Stuart J. Newman, Deputy, Carson City, for
Appellant.
__________
1
Pursuant to NRS 19.013(1), appellant, as the party commencing the transfer, is responsible for paying the
fee upon transfer. We note, however, that the Clerk of the Eighth Judicial District Court acted improperly in
returning, at respondent's request, the case file to the county from which it was transferred. See NRS 13.050(3)
(upon change of venue, all other proceedings shall take place in transferee court and papers shall be filed or
transferred accordingly). Thus, the proper course of conduct would have been for the Clerk of the Eighth
Judicial District Court to stamp the file as received and to make formal demand upon appellant to pay the
necessary fee. NRS 19.013(2); 19.060.
108 Nev. 49, 50 (1992) State v. Gattuso
James J. Jackson, State Public Defender and James P. Logan, Deputy, Carson City, for
Respondent.
1. Arrest.
Prisoner's recapture was continuation of lawful custody in state penitentiary and not arrest.
2. Arrest.
Requirement in statute that arrested person be brought before magistrate without unnecessary delay was not applicable to
prisoner's recapture following escape from state penitentiary, inasmuch as prisoner's recapture was continuation of lawful custody and
not arrest. NRS 171.178.
3. Indictment and Information.
Eleven-month delay in charging prisoner with felony escape from lawful confinement did not violate statutory right to be brought
before magistrate without unnecessary delay. NRS 171.178.
4. Indictment and Information.
Prisoner's Sixth Amendment right to speedy trial was not violated by eleven-month delay between his recapture and filing of
criminal complaint charging him with felony escape from lawful confinement, inasmuch as prisoner's recapture was not arrest but
simply continuation of custody lawfully granted correctional institution by sentencing court, and delay occurring prior to formal charge
did not of itself constitute violation of Sixth Amendment right to speedy trial. U.S.C.A.Const. amend. 6.
5. Indictment and Information.
Even assuming that prisoner's Sixth Amendment right or statutory right to speedy trial was called into play by eleven-month delay
between his recapture and filing of criminal complaint charging him with felony escape from lawful confinement, prisoner failed to
show any prejudice, such as would have supported dismissal of complaint, where he did not show that he actually suffered any
detriment to his condition of incarceration, or that any such detriment resulted from delay in formally charging him with crime of
escape, rather than from appropriate prison discipline. NRS 171.178; U.S.C.A.Const. amend. 6.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing a criminal complaint
charging appellant with felony escape from lawful confinement.
On February 21, 1989, respondent Peter Gattuso, an inmate at the Nevada State Prison,
escaped from the custody of correctional officers transporting him to a medical office in
Carson City. After a chase involving gunshots in a residential area, Gattuso was recaptured in
the back yard of a residence in Carson City. On January 19, 1990, almost eleven months later,
a criminal complaint alleging escape and other charges was filed in the Justice's Court of
Carson City Township. A warrant for Gattuso's arrest was issued on January 24, 1990.
108 Nev. 49, 51 (1992) State v. Gattuso
was issued on January 24, 1990. Gattuso was brought before a magistrate on March 23, 1990,
about two months after the criminal complaint was filed and fourteen months after he escaped
and was apprehended. On April 5, 1990, at the preliminary hearing, counsel for Gattuso orally
moved to dismiss the complaint on the grounds of pre-accusation delay. A decision on the
motion was deferred to the district court.
On August 2, 1990, Gattuso filed in the district court a motion to dismiss. On September
14, 1990, the district court held a hearing on the motion, at which neither party presented
evidence. At the hearing the district court asked the deputy attorney general to explain the
eleven-month delay in filing a complaint against Gattuso. The deputy attorney general stated
that he had no evidence and could offer no excuse. He explained, however, that the delay
resulted from the slow referral of the case by prison officials to the attorney general's office
for prosecution. The district court noted that the offense had occurred in a Carson City
neighborhood, not at the prison. On September 26, 1990, the district court entered an order
granting the motion and dismissing the complaint. This appeal followed.
The district court dismissed the complaint based on its findings that the delay in
prosecuting Gattuso constituted a violation of Gattuso's constitutional right to a speedy trial
and of the statutory requirement that an arrested person be brought before a magistrate
without unnecessary delay. See U.S. Const. amend VI; NRS 171.178. The district court found
that Gattuso was prejudiced by the delay because he suffered more restrictive custody, his
ability to earn good time credits was abridged, the duration of his imprisonment may increase
and the conditions under which he must serve his sentence were greatly worsened. Further,
the district court found that the state had not shown good cause for the delay, and that the
delay was caused by the state's conscious indifference to Gattuso's speedy trial right.
[Headnotes 1-4]
The state contends that the district court erred in dismissing the criminal complaint filed
against Gattuso. We agree. This court has previously held that the apprehension of a prisoner
is not an arrest within the meaning of NRS 171.178. Rather, it is simply a continuation of the
custody granted to the correctional institution by the sentencing court. Bushnell v. State, 97
Nev. 591, 592-93, 637 P.2d 529, 530 (1981). Likewise, the United States Supreme Court has
held that delay which occurs before a person is arrested or formally charged does not of itself
constitute a violation of the Sixth Amendment right to a speedy trial. United States v.
Lovasco, 431 U.S. 783 (1976); United States v. Marion, 404 U.S. 307, 313-23 (1971). The
fact that Gattuso made good his escape and was recaptured while at large in the community
does not distinguish this case from Bushnell, where the defendants were apprehended in
an "off limits" area of the correctional institution.
108 Nev. 49, 52 (1992) State v. Gattuso
and was recaptured while at large in the community does not distinguish this case from
Bushnell, where the defendants were apprehended in an off limits area of the correctional
institution. The defendants in both Bushnell and this case were under an uninterrupted lawful
sentence of confinement at all relevant times.
Further, NRS 171.178 does not require reversal absent a showing that the delay caused the
defendant to suffer prejudice or deprived him of a fair trial. Bushnell, 97 Nev. at 593, 637
P.2d at 530 (citing Tellis v. Sheriff, 85 Nev. 557, 459 P.2d 364 (1969)). Similarly, the
Supreme Court has explained that a defendant can obtain relief from preaccusation delay that
does not exceed the applicable statute of limitations only if he can show that the delay
prejudiced his ability to obtain a fair trial or that prosecution was delayed to gain some
tactical advantage over him or to harass him. Marion, 404 U.S. at 325.
Because Gattuso's recapture was a continuation of lawful custody and not an arrest, the
requirement in NRS 171.178 that an arrested person be brought before a magistrate without
unnecessary delay was not applicable. Similarly, Gattuso's Sixth Amendment right to a
speedy trial was not violated. Thus, those provisions do not authorize dismissal of the
criminal complaint filed against Gattuso. See Marion, 464 U.S. at 323, Bushnell, 97 Nev. at
592-93, 627 P.2d at 530.
[Headnote 5]
Further, the district court's finding that Gattuso was prejudiced is not supported by any
evidence in the record on appeal. No evidence was presented to the district court at the
hearing on the motion to dismiss, and the district court noted in its order that its findings
were based on the arguments and briefs of counsel. Gattuso has not shown that he actually
suffered any detriment in his condition of incarceration, or that any such detriment resulted
from the delay in formally charging him with the crime of escape, rather than from
appropriate prison disciplinary action. The record does not contain any evidence that the
delay in filing formal charges diminished Gattuso's ability to obtain a fair trial, that the delay
was intended to oppress Gattuso or gain some advantage over him, or that Gattuso suffered
any actual prejudice caused by the delay. Therefore, the district court erred in dismissing the
criminal complaint. See Marion, 464 U.S. at 323, Bushnell, 97 Nev. at 592-93, 637 P.2d at
530.
Accordingly, we vacate the order of the district court dismissing the criminal complaint
filed against Gattuso and remand this matter for further proceedings.
____________
108 Nev. 53, 53 (1992) McNair v. State
KIMBLE McNAIR, II, M.D., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20127
January 24, 1992 825 P.2d 571
Appeal from judgment of conviction of six counts of sexual assault. Eighth Judicial
District Court, Clark County; Thomas A. Foley, Judge.
Defendant, licensed physician specializing in obstetrics and gynecology, was convicted in
the district court of six counts of sexual assault, committed against patients, and he appealed.
The supreme court held that there was sufficient evidence of patients' lack of consent to
support convictions.
Affirmed.
[Rehearing denied May 27, 1992]
William H. Smith and Annette R. Quintana, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and
John P. Lukens, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
It is jury's function, not that of court, to assess weight of evidence and determine credibility of witnesses.
2. Criminal Law.
In criminal case, verdict supported by substantial evidence will not be disturbed by reviewing court.
3. Rape.
Physical force is not necessary element in commission of crime of rape; statute requires only commission of act of sexual
penetration against will of victim. NRS 200.366(1).
4. Rape.
Rape victim is not required to do more than her age, strength, and surrounding facts and attending circumstances would
reasonably dictate as manifestation of her opposition; in other words, whether victim manifested opposition or did in fact consent
depends on facts of particular case. NRS 200.366(1).
5. Rape.
Submission is not equivalent of consent, for purposes of offense of rape; lack of protest by victim is simply one among totality of
circumstances to be considered by trier of fact. NRS 200.366(1).
6. Rape.
When physician succeeds in penile penetration of a patient under guise of performing medical examination, sexual assault is
committed by fraud and deceit and without victim's consent. NRS 200.366(1).
108 Nev. 53, 54 (1992) McNair v. State
7. Rape.
Sufficient evidence of sexual penetration against victim's will exists under Nevada's sexual assault statute when penetration is
accomplished under pretext of medical treatment and without victim's foreknowledge or consent; penetration occurs against victim's
will or without her consent when, for any reason, victim is not in position to exercise independent judgment concerning act of sexual
penetration. NRS 200.366(1).
8. Rape.
There was sufficient evidence of patient's lack of consent to support physician's conviction of sexual assault for penile penetrations
effected during gynecological examinations, despite patients' lack of protest, considering patients' trust and vulnerability, and similarity
in their testimony regarding assaults. NRS 200.366(1).
9. Jury.
Prosecutor may not purposefully discriminate on basis of race in selection of petit jury. U.S.C.A.Const. amend. 14.
10. Jury.
Prospective juror's connection with defendant's spouse through her church activity was facially neutral, nonpretextual reason for
exercise of peremptory challenge to exclude juror, so that exclusion was not Batson violation. U.S.C.A.Const. amend. 14.
11. Jury.
Jury's verdict was not improperly influenced by juror's suddenly remembering, during deliberations in sexual assault prosecution,
that her biological mother had been sexually molested thirty-seven years earlier, where jury simply noted fact in passing and did not
improperly dwell upon it.
12. Criminal Law.
Question determinative of claim of judicial bias is whether trial umpire's misadventures are so pervasive and of such magnitude
that trial ambiance is discernibly unfair to defendant when viewed from cold record on appeal.
13. Criminal Law.
Friction displayed during trial between judge and defense counsel, relating to attempts to bait judge, using disrespectful body
language toward judge, and reacting to adverse rulings from bench by use of profanity sotto voce, did not create impression of judicial
bias prejudicial to defendant; departures from strict judicial impartiality were brief episodes within context of entire six weeks of trial.
OPINION
Per Curiam:
Appellant, Kimble McNair, a licensed physician specializing in obstetrics and gynecology,
was convicted of six counts of sexual assault and sentenced to four consecutive and two
concurrent life sentences. His victims were also his patients. McNair raises several issues on
appeal, but most insistently contends that the evidence does not support a finding of lack of
consent, an element essential to his convictions. Our review indicates that McNair was fairly
tried and convicted. We therefore affirm.
108 Nev. 53, 55 (1992) McNair v. State
The Facts
McNair, a graduate of Stanford University School of Medicine, was a solo practitioner in
obstetrics and gynecology. Each of the assaults at issue occurred in McNair's medical offices
during a period extending from 1984 through 1988 and were strikingly similar in the methods
by which they were accomplished. The patients-victims testified that they were assaulted
during the routine course of medical examinations conducted in McNair's examining room.
The victims testified that McNair asked them to bend over a chair, or to squat in front of him,
or he would bend them over by exerting pressure on the small of their backs. Unfortunately,
the trusting patients discovered that they had unwittingly positioned themselves for an anal
penile penetration by their physician.
1
The patients testified that McNair inserted his penis,
or his finger and then his penis, into their recta while they were in the orchestrated positions
of vulnerability.
2
A more detailed review of the facts surrounding the victim who triggered McNair's arrests
is helpful to our legal analysis. On January 2, 1988, McNair completed a gynecological
examination of Elizabeth, which included a breast, pelvic and rectal examination. During the
latter exam, McNair wore a glove and used a lubricant. Elizabeth was dressed in a
hospital-type gown open in the back. She had asked for this particular appointment and
examination after noticing a dark discharge from her breast. McNair had been her trusted,
treating gynecologist for well over a year. After this examination, she was relieved to find out
that there was probably nothing seriously wrong. Impulsively, Elizabeth asked to hug her
doctor. According to Elizabeth's testimony, McNair suggested that he check her again to see
if I hurt you. He thereafter put on another glove, and proceeded to move his finger in and out
of her rectum. McNair then moved her to an examining table, positioned her over the table,
inserted his penis into her anus, and ejaculated. Elizabeth did not push him away.
Immediately after leaving McNair's offices, Elizabeth called her therapist. After some
reluctance, and repeated showers and baths, Elizabeth went to a rape crisis center and a
hospital emergency room. The physical examination revealed no trauma. After further
prodding, Elizabeth reported the assaults to the Las Vegas Metropolitan Police Department.
The police fitted her with a body wire for her next visit to McNair's offices.
__________
1
The patients testified that McNair's nurse, a defense witness, left the examination room shortly after
McNair had ostensibly concluded his examination. The assaults took place in the one examining room which had
a windowless door. McNair's wife also worked regularly in his front office and supervised his office records.
2
Eight of McNair's patients testified at trial. McNair was acquitted of five counts concerning four of the
patients. One count was dismissed.
108 Nev. 53, 56 (1992) McNair v. State
a body wire for her next visit to McNair's offices. During this visit, Elizabeth repeatedly
confronted McNair about the assault. The record reveals that he insisted to her that nothing
like this had happened before and that he was a happily married man of sixteen years. The
record also reveals that McNair apparently sought to soften Elizabeth's antagonism toward
him by emotionally suggesting that he was suicidal over the incident.
3
After McNair's arrest, other patients and victims voluntarily came forward to the police.
Elizabeth was the only victim involved in the instant appeal who reported McNair's criminal
conduct contemporaneously to law enforcement authorities. Two victims reported McNair's
crimes to their therapists, who corroborated the victims' testimony at trial.
Legal Discussion
[Headnotes 1, 2]
The standard of review in a criminal case 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. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). The established
rule is that it is the jury's function, not that of the court, to 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). In a criminal case, a verdict supported by substantial evidence will not be
disturbed by a reviewing court. Nix v. State, 91 Nev. 613, 614, 541 P.2d 1, 2 (1975); Sanders
v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
The primary issue raised on appeal is whether the State met its requisite burden of proving
that the sexual acts occurred without the consent of the victims. NRS 200.366.
4
McNair
insists that where the victim is capable of understanding or resisting the sexual advances,
there must be a demonstrable objective manifestation of protest which is reasonable under the
circumstances. Our legal inquiry into the issue of nonconsent, an essential element of sexual
assault, encompasses two aspects: {1) whether the circumstances surrounding the
incidents indicate that the victims had reasonably demonstrated their lack of consent and
{2) whether it was reasonable from the point of view of the perpetrator to conclude that
the victims had manifested consent.
__________
3
An enhanced audio tape of the entire conversation between Elizabeth and McNair was played to the jury.
4
NRS 200.366(1) provides 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.
108 Nev. 53, 57 (1992) McNair v. State
element of sexual assault, encompasses two aspects: (1) whether the circumstances
surrounding the incidents indicate that the victims had reasonably demonstrated their lack of
consent and (2) whether it was reasonable from the point of view of the perpetrator to
conclude that the victims had manifested consent.
[Headnote 3]
We initially note that Nevada's statute does not explicitly require the use of overt force as
an element of sexual assault. Physical force is not a necessary element in the commission of
the crime of rape. Dinkens v. State, 92 Nev. 74, 77, 546 P.2d 228, 230 (1976).
5
Our statute
only requires the commission of the act of sexual penetration against the will of the victim.
Id.
[Headnote 4]
A rape victim is not required to do more than her age, strength, and the surrounding facts
and attending circumstances would reasonably dictate as a manifestation of her opposition.
Id. at 78, 546 P.2d at 230. In other words, whether the victim manifested opposition or did in
fact consent, depends on the facts of the particular case.
[Headnote 5]
Submission is not the equivalent of consent. Tryon v. State, 567 P.2d 290, 293 (Wyo.
1977). While consent inevitably involves submission, submission does not inevitably involve
consent. Id. Lack of protest by a victim is simply one among the totality of circumstances to
be considered by the trier of fact. See State v. Thomas, 510 P.2d 1137, 1139 (Wash.Ct.App.
1973).
[Headnote 6]
The record in the instant case reveals that in almost every instance the victims had no
opportunity to voice their consent or objection to McNair's assaults. When a physician
succeeds in the penile penetration of a patient under the guise of performing a medical
examination, a sexual assault is committed by fraud and deceit and without the victim's
consent. See R. Perkins & R.
__________
5
The concept that a woman consents unless she resists to the limits of her strength was discarded long ago.
See State v. Thomas, 520 P.2d 1137, 1140 (Wash.Ct.App. 1973); see also People v. Bermudez, 157 Cal.App.3d
619-625 (Cal.Ct.App. 1984) (the legislature has shifted the statutory focus from the quality of physical resistance
to the overbearing of the victim's will). The law has good reason to require proof of physical force or threats of
bodily injury in ambiguous circumstances arising between acquaintances whose intentions can be misinterpreted.
Bermudez, 157 Cal.App.3d at 622. However, a criminal invasion of sexual privacy does not become a nonrape
merely because the victim is too fearful or hesitant to say something to the effect that I guess you know I don't
want you to do this.' Id.
108 Nev. 53, 58 (1992) McNair v. State
Boyce, Criminal Law 1080 (3rd ed. 1982). In such cases the unlawful intercourse is rape for
the very sufficient reason that it was without the woman's consent. She consented to one
thing, he did another materially different . . . .' Id. (quoting The Queen v. Flattery, 2 Q.B.D.
410, 413 (1887)). Accord, 3 C. Torcia, Wharton's Criminal Law 290 (14th ed. 1980). See,
e.g., Annot., Conviction of Rape or Related Sexual Offenses on Basis of Intercourse
Accomplished Under the Pretext of, or in the Course of, Medical Treatment, 65 A.L.R.4th
1064 (1988 & Supp. 1990).
We note approvingly that one court has persuasively stated that when a doctor has
obtained sexual intercourse by means of fraud, legally recognized consent is negated:
It would indeed be a reproach upon our statute if a physician, under the pretense that
it was necessary for a woman patient to submit to examination of her sexual organs in
order to assist him in the diagnosis of her ailment, and under the pretense that it was
necessary for her to expose her person and to assume a position which, at the same
time, incidently afforded ready opportunity for sexual attack, could safely take
advantage of her position and make an unexpected and uninvited sexual invasion of her
person. If, under such circumstances, a physician takes such an unconscionable
advantage of the woman's position, and, to her complete surprise, and without the
slightest ground to assume that he has her consent, violates the trust and confidence
imposed in him and perverts her position and his opportunity into an uninvited and
cowardly attempt to gratify his lust, the force merely incident to penetration should be
deemed sufficient force within the meaning of our rape statute.
People v. Borak, 301 N.E.2d 1, 4 (Ill.App.Ct. 1973) (quoting State v. Atkins, 292 S.W. 422,
426 (Mo. 1926)).
[Headnote 7]
We hold that sufficient evidence of sexual penetration against the victim's will exists under
Nevada's statute when the penetration is accomplished under a pretext of medical treatment
and without the victim's foreknowledge or consent. Id. at 5. Moreover, penetration occurs
against the victim's will or without her consent when, for any reason, the victim is not in a
position to exercise an independent judgment concerning the act of sexual penetration.
6
Wilson v. State, 655 P.2d 1246, 1258 (Wyo. 1982).
__________
6
We note further that mere gestures of affection should not be construed as invitations to an assault. A useful
analysis is found in State v. Myers, 606
108 Nev. 53, 59 (1992) McNair v. State
At oral argument, McNair contended vigorously that to find consent under the
circumstances would amount to judicial legislation. We disagree. The language of our statute
is sufficiently broad and explicit to encompass conduct involving an act of sexual penetration
occurring as a result of fraud and deceit in the course of a medical examination and without
the consent of the patient. The statute's reference to victims incapable of resisting or
understanding the nature of . . . [the perpetrator's] conduct
7
is also applicable to the conduct
occurring here, where the trusting patients were unable to resist because the sexual
penetration was initiated by subterfuge and without the foreknowledge of the victims.
[Headnote 8]
Moreover, under the totality of the circumstances present in McNair's case, it was
unreasonable for the trusted physician to believe that his patients had in fact consented to his
sudden sexual invasions. To the contrary, the record substantially reflects that McNair abused
his professional status and trust during medical examinations that were staged to exploit his
unsuspecting and vulnerable patients and gratify his personal sexual desires. The record
reveals that McNair's conduct was both repetitive and predatory.
As a gynecologist, McNair held a position of trust and respect reserved for members of the
medical community. His patients came to his office on the premise that they would receive
ethical, professional medical treatment for their ailments. These competent adult patients
approached their medical appointments in a compliant attitude of cooperation in order to
receive effective medical attention. They disrobed in good faith as patients, not as their
trusted physician's objects of sexual gratification. They followed the directions of their
physician in positioning their bodies for examination. In good faith they allowed themselves
to be alone with their doctor in an examining room. Their testimony is that of victims
criminally betrayed by McNair as he misused his professional status and trust to place his
patients in situations where they became his vulnerable and unsuspecting prey. Any belief by
McNair that his patients consented to his sexual behavior by not instantly resisting, would be,
on this record, patently unreasonable.
__________
P.2d 250 (Utah 1980). The law does not justify a conclusion that if a woman is friendly' in accepting the
proffered hospitality of a man for food and drink, and engages in necking,' . . . and that this persists over a
period of time, she loses her right to protest against further advances the man may decide to force upon her; and
thereby subjects herself to such advances and should be deemed to consent to intercourse if he, but not she, so
desires. Id. at 252.
7
See footnote 4.
108 Nev. 53, 60 (1992) McNair v. State
unreasonable. See Scadden v. State, 732 P.2d 1036, 1043 (Wyo. 1987) (a person of ordinary
sensibilities when occupying a position of authority clearly should have known that his
conduct was forbidden).
Experts for the State testified that patients become intensely confused when they are
sexually assaulted by a trusted health care professional. Ann Burgess, professor of psychiatric
mental health nursing at the University of Pennsylvania School of Nursing in Philadelphia,
described the type of assault at issue as the confidence style assault. Victims experience
feelings of betrayal and confusion which take a considerable time to sort out. According to
the witness, one of the characteristics of an assault of this nature is delayed reporting.
8
McNair testified extensively in his own defense. His insistence that Elizabeth had seduced
and aggressively pursued him was diametrically opposed to her own sworn testimony on the
witness stand. The demeanor and credibility of the complaining witnesses and McNair was
pivotal to the proceedings below.
Whether McNair's sexual advances occurred with the consent of his complaining patients
presented questions of fact for the jury to decide from all the evidence it had a right to
consider.
9
See Thomas, 510 P.2d at 1139. Under certain circumstances, a lack of protest may
properly be viewed as evidence of consent. In this case, the jury decided from all the
surrounding circumstances that the victims' lack of protest was not evidence of consent.
__________
8
See A. W. Burgess & C. Hartman, Sexual Exploitation of Patients by Health Professionals (1986). Victims
of sexual exploitation by a health professional will turn for help to professionals in psychiatry, social services
and the law. Id. at 43. Often, the inaction of individuals with knowledge of the exploitation allowed the
offending health professionals to continue their abusive behaviors at the expense of additional victims. Id.
Delayed reporting is a problem endemic to the crime of sexual assault. It is possible if not probable that the
prestige of McNair's position contributed to the victim's delay in reporting the sexual assaults. One
seventeen-year-old victim testified to the disbelief of one of her parents who thought she must have
misunderstood something. The parent returned her to McNair's care, accompanied by a sibling.
9
Only one victim had advance notice of appellant's predatory urges. After an initial assault, the victim
returned to McNair in order to secure a promised letter concerning her physical health which she needed in order
to seek reemployment with an employer which had recently terminated her. Assaulted a second time, she did not
push McNair away. She testified to being in great disarray at the time due to the influence of narcotics. The first
sexual assault by McNair had further entrenched her addiction. She testified that her reaction at the time of the
first assault was not to immediately report the assault to police but to attempt to obliterate the effect of the sexual
assault with an increased ingestion of cocaine. On the issue of lack of consent, it was for the jury to determine
the weight and credibility of such testimony. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981);
Hankins v. State, 91 Nev. 477, 477, 538 P.2d 167, 168 (1975).
108 Nev. 53, 61 (1992) McNair v. State
case, the jury decided from all the surrounding circumstances that the victims' lack of protest
was not evidence of consent. A sharp conflict in the evidence confronted the jury, and it was
within the jury's province to resolve the evidence against the physician. See People v.
Ogunmola, 193 Cal.App.3d 274, 281 (Cal.Ct.App. 1987) (the jury or judge may resolve
conflicting testimonial evidence that an obstetrician/gynecologist raped two patients although
the physician claimed that the configuration of the examining room made such events highly
unlikely); Story v. State, 721 P.2d 1020, 1026 (Wyo.), cert. denied, 479 U.S. 962 (1986) (it
was the function of the jury to resolve a testimonial dispute as to whether a patient had been
sexually assaulted in the course of medical examination); People v. Minkowski, 204
Cal.App.2d 832, 843 (Cal.Dist.Ct.App. 1962) (adverse inferences could be drawn from
evidence of the circumstances and methodology of the medical examination and the unusual
behavior of the doctor).
Persuasive corroborative evidence supports McNair's convictions. The victims did not
know each other. Yet they testified to similar sexual assaults accomplished under the guise of
medical examination at McNair's private offices and under similar circumstances.
Circumstantial evidence alone may sustain a conviction. Deveroux v. State, 96 Nev. 388, 391,
610 P.2d 722, 724 (1980); Crawford v. State, 92 Nev. 456, 457, 552 P.2d 1378, 1379 (1976).
The assaults all took place in the course of the physician-patient relationship. The jury was
free to determine that McNair had used the physician-patient relationship to find his victims
and to satisfy his predatory sexual desires. Our review of the record reveals substantial
evidence in support of the jury's verdicts.
10
See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981).
[Headnotes 9, 10]
McNair also contends that he was prejudiced by a constitutionally prohibited exercise of a
racially biased peremptory challenge by the prosecutor during the selection of the trial jury.
Under Batson v. Kentucky, 476 U.S. 79 (1986), a prosecutor may not purposefully
discriminate on the basis of race in the selection of the petit jury. Id. at 96-97. Here, the
prosecutor peremptorily removed one black juror and voiced no objection to the seating of
another.
__________
10
McNair also contends that his actions are simply of ethical concern suitable for resolution by the medical
society. Those who commit criminal acts risk criminal prosecution as a protective measure against further injury
to the public. Although some of the same concerns may overlap, professional disciplinary procedures have a
different purpose and are chiefly concerned with maintaining the integrity and standards of the profession.
108 Nev. 53, 62 (1992) McNair v. State
another. The prosecutor challenged the one black juror because he had a direct connection
with McNair's wife through her church activity. After careful review, we are persuaded that
the prosecutor offered facially neutral, nonpretextual reasons for the challenge. McNair did
not establish a prima facie Batson violation requiring an evidentiary hearing. See Clem v.
State, 104 Nev. 351, 355, 760 P.2d 103, 105 (1988), overruled on other grounds, 106 Nev.
571, 798 P.2d 548 (1990).
[Headnote 11]
McNair also claims that the trial court erred in failing to replace a juror who, during the
jury's deliberations, suddenly remembered that her biological mother had been sexually
molested. The record indicates that the juror had lived with her father from the age of nine;
that the incident occurred thirty-seven years previously; that the juror had not discussed the
incident in ten years; that the juror had never been apprised of the details; and that the
deliberating jury simply noted the fact in passing and did not improperly dwell upon this
extraneous matter. We conclude that the jury's verdict was not improperly influenced under
the circumstances. See Hale v. Riverboat Casino, Inc., 100 Nev. 299, 305, 628 P.2d 190, 193
(1984).
[Headnote 12]
Next, McNair contends that he was denied due process by a biased and hostile judge. We
have said that a trial judge must not only be totally indifferent as between the parties, but he
must also give the appearance of being so. Kinna v. State, 84 Nev. 643, 647, 447 P.2d 32, 35
(1968). However, it has also been recognized that few trials are totally devoid of inadvertent
remarks or actions by a trial judge which may seem inappropriate when later examined in
the calm cloisters of the appellate court. United States v. Polizzi, 500 F.2d 856, 892 (9th Cir.
1974), cert. denied, 419 U.S. 1120 (1975). The question is whether the trial umpire's
misadventures are so pervasive and of such a magnitude that the trial ambiance is discernibly
unfair to the defendant when viewed from the cold record on appeal. Id.
[Headnote 13]
At oral argument, the state noted that McNair's counsel attempted to bait the judge, a fact
also noted in the record by the trial judge himself. The state also apprised this court of the use
by defense counsel of assertedly disrespectful body language toward the district court judge.
The record indicates, in addition, that McNair's counsel reacted to adverse rulings from the
bench by the use of profanity sotto voce.11 Such courtroom comportment can never be
fully captured by the record.12
108 Nev. 53, 63 (1992) McNair v. State
the use of profanity sotto voce.
11
Such courtroom comportment can never be fully captured
by the record.
12
We note with commendation and approval, that following one incident in regard to
McNair's counsel, the trial judge apologized to the jury for his outburst and properly
cautioned the jury. The jury was properly instructed in its duty to follow the law and the
instructions as provided by the court.
The interaction between litigants, counsel and the district court judge should be properly
viewed against the entire trial background, in this case a lengthy and trying six weeks, rather
than the myopic perspective afforded by isolated incidents.
13
It appears conclusively from
the record that McNair was given full ventilation of his defense at trial. We are persuaded that
the friction displayed during the trial did not create an impression of judicial bias prejudicial
to McNair's defense. The record reflects that the departures from strict judicial impartiality
were brief episodes within the context of the entire trial. See United States v. Nazzaro, 472
F.2d 302, 312-313 (2nd Cir. 1973).
We have fully examined the remaining issues raised by McNair and conclude that they are
without merit. For the reasons stated above, we affirm the convictions and sentences entered
by the district court.
__________
11
As one court observed [t]he human tendency to blame a trial judge for the jury's verdict of guilt is a
frailty we often encounter . . . . United States v. Nazzaro, 472 F.2d 302, 303 (2d Cir. 1973).
12
If the representations concerning defense counsel's trial behavior are accurate, the trial judge should
unhesitatingly report such behavior to the appropriate bar discipline board for investigation and possible
imposition of discipline. This court does not condone disrespectful courtroom conduct by lawyers licensed to
practice in Nevada courts.
13
When McNair's counsel tediously questioned Elizabeth about the type and color of her automobile, the
trial judge asked to see counsel in chambers. The record indicates that the trial judge had strong concerns over
the slow pace of the trial, and warned counsel that the jury was falling asleep. After repeated warnings to
appellant's counsel about the improper use of leading questions, the court imposed fines which were
subsequently lifted.
____________
108 Nev. 64, 64 (1992) City of Las Vegas v. Int'l Assoc. Firefighters
CITY OF LAS VEGAS, NEVADA, a municipal corporation of the State of Nevada,
Appellant/Cross-Respondent, v. INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, LOCAL 1285, an unincorporated association,
Respondent/Cross-Appellant.
No. 21277
January 24, 1992 824 P.2d 285
Appeal and cross-appeal from an order of the district court vacating an arbitration award.
Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
City appealed from order of the district court, which vacated arbitrator's decision
upholding the motion of firefighter. The supreme court held that power of city under
collective bargaining agreement to discharge for discipline included the lesser power to
demote.
Reversed and remanded.
[Rehearing denied March 3, 1992]
Roy A. Woofter, City Attorney, and Richard Bortolin, Deputy City Attorney, Las Vegas,
for Appellant/Cross-Respondent.
Hilbrecht & Associates and Jeffrey E. Fisher, Las Vegas, for Respondent/Cross-Appellant.
1. Labor Relations.
Under Positive Discipline Manual, incorporated in collective bargaining agreement, allowing disciplinary actions consisting of
either oral reminder, written reminder, decision-making leave, or discharge, city had the authority to impose discipline of demotion;
power to discharge included the lesser power to demote.
2. Labor Relations.
Allegations of petty larceny could be considered by arbitrator in determining proper discipline for firefighter even though he was
not convicted because the store did not pursue the matter, where firefighter presented no exculpatory evidence.
OPINION
Per Curiam:
Scott Harris was a fire investigator with the Las Vegas Department of Fire Services (Fire
Department), a division of the City of Las Vegas (City), until October 16, 1988. On that day,
the Fire Department demoted Harris from fire investigator to firefighter. This disciplinary
action was prompted by three recent instances of misconduct.
108 Nev. 64, 65 (1992) City of Las Vegas v. Int'l Assoc. Firefighters
of misconduct. First, Harris was observed using a computer terminal in a restricted fire
services records room in violation of an existing order. Second, Harris used profane language
over a Fire Department communications channel. Third, the Fire Department learned that
Harris had received a misdemeanor citation for petty larceny in May, 1988, for taking a
cordless telephone antenna from a Montgomery Ward store. Montgomery Ward chose not to
pursue the charge, and it was dismissed before Harris was demoted. Prior to these incidents,
Harris had been an exemplary employee for seventeen years.
After receiving the demotion notice, Harris filed a grievance, and was represented by the
International Association of Firefighters, Local 1285 (Local 1285), respondent herein. Local
1285 is a labor organization representing firefighters and fire investigators employed by the
City. Local 1285 and the City had negotiated a collective bargaining agreement (CBA)
covering firefighters and fire investigators. The CBA incorporated two sets of documents
dealing with discipline: the Fire Department's Rules and Regulations and the Positive
Discipline Manual.
Local 1285 invoked binding arbitration to challenge Harris' demotion, contending that
demotion was not an available disciplinary option under the CBA. Local 1285 also argued
that no just cause for demotion existed. The arbitrator rejected these claims and sustained the
City's decision demoting Harris.
The district court vacated the arbitration award on the basis that the arbitrator lacked
authority under the CBA to sustain the City's disciplinary demotion of Harris. The City
thereafter appealed from the district court's order vacating the arbitrator's award, and Local
1285 cross-appealed from that part of the order which allows the City to impose other
discipline on Harris consistent with the negotiated agreement. Local 1285 also challenges the
propriety of the arbitrator's consideration of petty larceny allegations for which Harris was not
convicted.
[Headnote 1]
We are persuaded that the arbitrator did not exceed his authority by sustaining the City's
demotion of Harris. It is true that the Positive Discipline Manual specifies four disciplinary
actions: oral reminder, written reminder, decision-making leave,
1
and discharge. Demotion
is not mentioned as an option. However, article 9(C) of the collective bargaining agreement
states:
The City and the Union recognize and understand that the Fire Department Rules
and Regulations are general in nature and shall not be considered all inclusive.
__________
1
Decision-making leave is given to an employee to decide whether he or she wants to continue working for
the organization in compliance with its rules.
108 Nev. 64, 66 (1992) City of Las Vegas v. Int'l Assoc. Firefighters
Fire Department Rules and Regulations are general in nature and shall not be
considered all inclusive. No inference will be drawn from the absence of a rule in the
Fire Department Rules and Regulations.
It is thus seen that the established disciplinary framework was not inflexible. The City could
have discharged Harris for insubordination under the Positive Discipline Manual's provisions
for crisis discharge. In recognition of Harris' excellent record, the City chose to retain Harris
in a less sensitive position. Given the latitude recognized under article 9(C) of the CBA, we
must conclude that the power to discharge includes the lesser power to demote. We therefore
hold that the City acted within the purview of the CBA by choosing demotion over discharge.
See International Assoc. Firefighters v. City of Las Vegas, 107 Nev. 906, 823 P.2d 877
(1991).
Since demotion was an option available to the City, the arbitrator did not exceed his power
by sustaining Harris' demotion. Therefore, the district court erred in vacating the arbitration
award. NRS 38.145(1)(c).
[Headnote 2]
On cross-appeal, Local 1285 argues that the arbitrator improperly considered the
allegations of petty larceny against Harris in the absence of a conviction. At arbitration,
Harris denied that he intended to steal a cordless telephone antenna from Montgomery Ward.
However, the security manager of Montgomery Ward testified that she observed Harris, on
closed circuit TV, unscrew the telephone antenna and carry it off. The security manager
further testified that Harris signed a statement admitting he took the antenna after he was
confronted outside the store.
2
Harris presented no exculpatory evidence. The arbitrator
determined that the petty larceny incident was serious enough that preliminary discipline such
as a warning or reprimand was unnecessary.
Contrary to Local 1285's assertion, our decision in International Assoc. Firefighters v. City
of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988), does not prevent a public employee from
being disciplined for the underlying actions of a dismissed criminal charge.
__________
2
The security manager testified to the following conversation with Harris outside the store:
[Security manager]: I said I need to talk to you about the antenna you have in your hand. Would you
please give it back? He looked at me and he opened his hand up and the antenna was there and I took it
from him. I asked him to return to the store with us which he did, and as we were talking I said, Do you
have a cordless telephone that you own? And he said, Yes. I said, Is your antenna broken on your
phone? And he said, Yes. I said, That must be why you did this. And he said, Yes, it was stupid.
108 Nev. 64, 67 (1992) City of Las Vegas v. Int'l Assoc. Firefighters
being disciplined for the underlying actions of a dismissed criminal charge. In International
Assoc. Firefighters, firefighter Williams was suspended because he faced criminal charges of
larceny. The district attorney dropped the charges after a witness was unable to identify
Williams as the perpetrator of the crime. Since the authorities dropped the charges against
Williams, we felt compelled to conclude that he didn't commit the crime. Id. at 621, 764 P.2d
at 482. In the instant action, however, the charges were not dismissed for lack of evidence.
Montgomery Ward simply chose not to demand prosecution, despite convincing evidence that
Harris took the antenna. A conviction of petty larceny was an unnecessary prerequisite to a
determination that Harris violated Fire Department Rules and Regulations requiring
employees to obey the law and conduct themselves so as to reflect credit on the department.
Moreover, despite overwhelming evidence against Harris, we note that the degree of proof
required in a criminal action is of greater magnitude than that required in a disciplinary
proceeding. See Thangavelu v. Department of Licensing & Regulation, 386 N.W.2d 584, 589
(Mich.Ct.App. 1986) (acquittal of criminal charges does not preclude disciplinary action for
same conduct as administrative proceedings differ in purpose and degree of proof required);
Flynn v. Board of Fire & Police Comm'rs, 342 N.E.2d 298, 304 (Ill.App.Ct. 1975) (sufficient
evidence existed to discharge police officer for unlawful conduct despite state's voluntary
dismissal of criminal charges.) The petty larceny incident was properly considered by the
arbitrator.
In view of our disposition of this appeal and cross-appeal, we decline to address other
issues raised by the parties.
For the reasons specified above, the decision of the district court is reversed and the matter
is remanded for entry of an order confirming the arbitration award sustaining the City's
demotion of Harris.
____________
108 Nev. 67, 67 (1992) Kazalyn v. State
JOSEPH ROBERT KAZALYN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21429
January 24, 1992 825 P.2d 578
Appeal from a judgment of conviction of murder with the use of a deadly weapon. Eighth
Judicial District Court, Clark County; Earle W. White, Jr., Judge.
108 Nev. 67, 68 (1992) Kazalyn v. State
Defendant was convicted in the district court of murder, enhanced for use of deadly
weapon, for death of his wife caused when he left her incapacitated in roadway and watched
while another vehicle struck her helpless form. On appeal, the supreme court held that: (1)
evidence was sufficient to support conviction; (2) automobile was not deadly weapon for
purposes of sentence enhancement statute; and (3) error in holding separate penalty hearing
was harmless.
Affirmed in part, vacated in part.
Morgan D. Harris, Public Defender, and R. Michael Gardner, Deputy Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex A. Bell, District Attorney,
James Tufteland, Deputy District Attorney, and Thomas Carroll, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Standard of review for sufficiency of evidence upon appeal is whether jury, acting reasonably, could have been convinced of
defendant's guilt beyond reasonable doubt; when there is substantial evidence to support jury's verdict, it will not be disturbed on
appeal.
2. Homicide.
Evidence indicating that defendant deliberately left his spouse incapacitated in roadway and watched while another vehicle struck
her helpless form was sufficient to support defendant's conviction of murder.
3. Criminal Law.
Decision to admit or exclude evidence, after balancing prejudice to defendant with probative value, is within discretion of trial
judge, whose determination will not be reversed absent manifest error. NRS 48.035.
4. Criminal Law.
Error was harmless in admitting in homicide prosecution statements made by defendant to police wherein he offered to take
polygraph examination to prove that his version of circumstances surrounding his wife's death was the truth, considering that such
evidence enhanced defendant's credibility.
5. Criminal Law.
Generally, disclosure that defendant was willing or unwilling to take lie detector test is inadmissible because it tends to prejudice
jury for or against defendant.
6. Criminal Law.
Strength of evidence against defendant is one criterion for determining whether admission of defendant's willingness or
unwillingness to take polygraph examination is prejudicial error; where there is strong evidence of guilt, disclosure of whether
defendant was willing to take lie detector test tends to be less prejudicial.
7. Criminal Law.
It is harmless error to admit defendant's statements regarding his willingness to take polygraph examination, where defendant
cannot show he was prejudiced by admission of those statements.
108 Nev. 67, 69 (1992) Kazalyn v. State
8. Criminal Law.
Evidence of prior misconduct is not admissible if its only relevance is to show that accused most likely committed crime because
he is of criminal character. NRS 48.045, subd. 2.
9. Criminal Law.
Any error in admitting, in prosecution of defendant for murdering his wife, defendant's statements that he had struck his wife on
one occasion prior to their marriage was harmless, considering strength of evidence against defendant. NRS 48.045, subd. 2.
10. Criminal Law.
Evidence of defendant's prior imprisonment could be admitted in prosecution of defendant for murdering his wife as relevant to
what happened on night of wife's death, where evidence was contained in defendant's statements explaining that he had left wife on
road, where she was struck by another vehicle and killed, because he was concerned about violating his parole and being sent back to
prison after he had just finished serving ten years. NRS 48.045.
11. Constitutional Law; Criminal Law.
Instruction on statutory definition of reasonable doubt satisfied requirements of due process. NRS 175.211, subd. 1;
U.S.C.A.Const. amend. 14.
12. Homicide.
Instructions given in homicide prosecution adequately distinguished between premeditation and malice aforethought.
13. Criminal Law.
Automobile is not deadly weapon within meaning of sentence enhancement statute; automobile which is used in manner
contemplated by its construction and design is not inherently dangerous and likely to cause life threatening injury or death. NRS
193.165.
14. Criminal Law.
Separate penalty hearing is appropriate only where death penalty is sentencing option. NRS 175.552.
15. Homicide.
Error in holding separate penalty hearing in homicide prosecution, when death penalty was not sentencing option, was not
reversible error, absent any showing of prejudice. NRS 175.552.
16. Criminal Law.
Instruction advising jury that defendant would be eligible for parole in ten years was not misleading, though defendant would have
been eligible for parole in twenty years under sentence enhancement submitted to jury, where it was determined on appeal that
defendant was not subject to that enhancement.
OPINION
Per Curiam:
FACTS
At approximately midnight on March 20, 1989, appellant Joseph Robert Kazalyn
(Kazalyn) and his bride of one month, Judy Pain Kazalyn, argued on the way home from a
dinner party. Kazalyn contends they argued about Mrs. Kazalyn's use of cocaine and the fact
that he threw her cocaine out of the car window.
108 Nev. 67, 70 (1992) Kazalyn v. State
cocaine and the fact that he threw her cocaine out of the car window. The argument resulted
in Mrs. Kazalyn exiting the car on Industrial Road near Las Vegas.
Subsequently, Dennis Sweeney (Sweeney) was driving on Industrial Road when he struck
an object lying in the roadway. Sweeney stopped his truck and backed up, discovering that he
had hit a woman. He got out of his truck and began looking for a vehicle to flag down for
assistance. Both Sweeney and his passenger, Pamela Anderson, noticed a car on the
southbound shoulder of the road, approximately 150 yards away, when the car's headlights
came on and began to approach Sweeney and the victim. Sweeney asked the driver of the car,
Kazalyn, to call the police. Sweeney became suspicious when he noticed a woman's purse
sitting on the passenger seat next to Kazalyn. Sweeney said, She was with you, wasn't she?
whereupon Kazalyn smiled and said, What's happening? Sweeney then left to call the
police.
Shortly thereafter, Anthony Montoya was travelling on Industrial Road when he saw a
body lying in the road. He pulled his truck over so that his headlights illuminated the body.
He noticed Kazalyn's car about five or ten yards away and went over to find out if the police
had been called. He thought Kazalyn was a bystander because Kazalyn did not display any
emotion. Montoya got a creepy feeling from Kazalyn and went back to his truck because he
did not want to be near Kazalyn.
Upon arriving at the scene, the police learned that the woman Sweeney ran over was
Kazalyn's wife, and that she had been a passenger in Kazalyn's vehicle. Kazalyn gave a series
of three statements to the police, in which he recounted different versions of the events
leading to his wife's death.
At the scene of the accident, two pools of Mrs. Kazalyn's blood were found. One pool was
found at the point of initial impact by Sweeney's truck, which was connected to the second
pool of blood by drag marks of blood and flesh. During an examination of Mrs. Kazalyn's
body, the police found a tire track on her right thigh which bore the general characteristics of
Kazalyn's left rear tire. Mrs. Kazalyn's face also showed signs of bruising, which the medical
examiner testified occurred prior to being hit by Sweeney's truck. Mrs. Kazalyn did not have
bruises on her face earlier that evening at the dinner party.
Kazalyn stood trial and was convicted by a jury of murder with the use of a deadly
weapon. A penalty phase was conducted, whereupon the jury sentenced the defendant to life
without the possibility of parole. The sentence was enhanced by a consecutive term of life
imprisonment without the possibility of parole for the use of a deadly weapon.
108 Nev. 67, 71 (1992) Kazalyn v. State
Issues on Appeal
On appeal, Kazalyn asserts the following errors: (1) there was insufficient evidence to
convict him of first degree murder; (2) statements made to the police regarding a polygraph
examination and prior bad acts should not have been admitted into evidence; (3) the jury
instruction on reasonable doubt violated his due process rights; (4) the jury instructions did
not adequately define premeditation; (5) the enhanced penalty for use of a deadly weapon was
improper; (6) a separate penalty hearing should not have been held; and lastly, (7) the district
court erred in informing the jury that with a sentence of life imprisonment with the possibility
of parole, Kazalyn would be eligible for parole in ten years, when he actually would be
eligible in twenty years.
DISCUSSION
I. Sufficiency of the evidence.
Standard of Review
[Headnotes 1, 2]
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.
Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974). Where there is substantial
evidence to support the jury's verdict, it will not be disturbed on appeal. Cunningham v. State,
94 Nev. 128, 130, 575 P.2d 936, 937 (1978).
The State's theory at trial was that Kazalyn incapacitated his wife and left her lying in the
roadway to be hit by another vehicle. Kazalyn contends that any number of vehicles may have
struck the body and continued on without stopping.
While the case against Kazalyn is circumstantial, there was sufficient evidence for the jury
to find the defendant guilty of murder in the first degree. The uncontroverted physical and
testimonial evidence indicates that Kazalyn deliberately left his wife incapacitated in the
roadway and watched while another vehicle struck her helpless form. There was more than
sufficient evidence upon which a reasonable jury could find Kazalyn guilty beyond a
reasonable doubt.
II. Admissibility of certain statements by Kazalyn.
[Headnote 3]
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. Halbower v. State, 93 Nev.
212, 215, 562 P.2d 4S5, 4S6-S7 {1977); see also, NRS 4S.035.1 The trial court's
determination will not be reversed absent manifest error.
108 Nev. 67, 72 (1992) Kazalyn v. State
562 P.2d 485, 486-87 (1977); see also, NRS 48.035.
1
The trial court's determination will not
be reversed absent manifest error. Lucas v. State, 96 Nev. 428, 431-32, 610 P.2d 727, 730
(1980).
A. Kazalyn's statements regarding polygraph examinations.
[Headnote 4]
Kazalyn made three statements to the police wherein he offered several times to take a
polygraph examination to prove that his version of the circumstances regarding his wife's
death was the truth. Kazalyn initiated the offer to take a polygraph examination in each and
every instance. At trial, all three statements were admitted into evidence. Kazalyn argues that
the admission of his offers to take a polygraph examination is reversible error.
The case which articulates the standard in Nevada regarding polygraph evidence is
Santillanes v. State, 102 Nev. 48, 714 P.2d 184 (1986). There, we held that a defendant's
refusal or offer to submit to a polygraph examination is inadmissible and incompetent
evidence. Id. at 50, 714 P.2d at 186. However, in the recently decided Davis v. State, 107
Nev. 600, 817 P.2d 1169 (1991), this court held that the admission of the defendant's
videotaped statement wherein he offered to take a polygraph examination and subsequent
prosecutorial references to the offer was harmless error.
The case before us differs from both Santillanes and Davis; here, the prosecutor did not
refer to Kazalyn's offer to take a polygraph examination. There was no emphasis placed on
the polygraph offers. This case also differs from Santillanes in that Kazalyn's offers to take a
polygraph were not introduced into evidence in order to show consciousness of his guilt.
Rather, the offers came into evidence simply as part of the interviews between Kazalyn and a
police detective.
[Headnotes 5, 6]
Generally, a disclosure that a defendant was willing or unwilling to take a lie detector test
is inadmissible because it tends to prejudice the jury for or against the defendant. 95 A.L.R.2d
827 (1964). The strength of the evidence against a defendant is one criterion for determining
whether the admission of the defendant's willingness or unwillingness to take a
polygraph examination constitutes prejudicial error. Id. at S30.
__________
1
NRS 48.035 states in relevant part:
Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time.
1. Although relevant, evidence is not admissible if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
2. Although relevant, evidence may be excluded if its probative value is substantially outweighed by
considerations of undue delay, waste of time or needless presentation of cumulative evidence. . . .
108 Nev. 67, 73 (1992) Kazalyn v. State
criterion for determining whether the admission of the defendant's willingness or
unwillingness to take a polygraph examination constitutes prejudicial error. Id. at 830. Where
there is strong evidence of guilt, disclosure of whether the defendant was willing to take a lie
detector test tends to be less prejudicial. Id.
[Headnote 7]
A defendant's offer to take a polygraph examination tends to strengthen the credibility of
the defendant. State v. Freeman, 538 P.2d 1168, 1169 (Ariz.Ct.App. 1975); Coughran v.
State, 565 P.2d 688, 691 (Okla.Crim.App. 1977). Where the defendant cannot show he was
prejudiced by the admission of his willingness to take a polygraph examination, it is harmless
error to admit his statements. Freeman, 538 P.2d at 1169; People v. Skiles, 450 N.E.2d 1212,
1220 (Ill. 1983); Coughran 565 P.2d at 691. Kazalyn enhanced his credibility by
spontaneously offering to take a polygraph examination. He failed to show that the jury was
prejudiced against him by admission of the statements. Additionally, there is substantial
evidence of his guilt.
This court is not advocating that a defendant's offer to take a polygraph examination be
admitted into evidence. We affirm our holding in Santillanes that polygraph evidence in any
form (whether it be the defendant's offer or refusal to take a polygraph examination or results
of the examination) is not admissible unless the parties have stipulated to its admission in
writing. Santillanes v. State, 102 Nev. 48, 50, 714 P.2d 184, 186 (1986). However, in the case
before us, we hold that admission of Kazalyn's offers to take a polygraph examination was
harmless error.
B. Kazalyn's statements regarding striking his wife prior to their marriage.
[Headnote 8]
Evidence of prior misconduct is not admissible if its only relevancy is to show that the
accused most likely committed the crime because he is of a criminal character; the evidence
must be relevant for some other purpose. Daly v. State, 99 Nev. 564, 567, 665 P.2d 798, 801
(1983); see also, NRS 48.045(2).
2
This court has recognized that a defendant may be
prejudiced by evidence of past crimes; the jury may find guilt more easily when it is known
that the defendant has committed other acts of wrongdoing.
__________
2
NRS 48.045 states in relevant part:
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.
108 Nev. 67, 74 (1992) Kazalyn v. State
past crimes; the jury may find guilt more easily when it is known that the defendant has
committed other acts of wrongdoing. Nester v. State, 75 Nev. 41, 46, 334 P.2d 524, 527
(1959).
[Headnote 9]
Kazalyn argues that the district court erred when it admitted his statements that he had
struck his wife on one occasion prior to their marriage, approximately five weeks before Mrs.
Kazalyn's death. The State argues that the statements were highly relevant to the issue of how
Mrs. Kazalyn received the bruises on her face prior to her death, and that the evidence is
actually favorable to Kazalyn because it shows that he was not in the habit of beating his
wife.
The testimony regarding Kazalyn striking his wife is prejudicial, and the State does not
make an adequate argument as to how the probative value of the statements outweigh the
prejudicial value. However, the decision to admit evidence of prior bad acts is within the
discretion of the district court and we cannot say that the admission of the evidence is
manifest error. This is especially true given the strength of the evidence against Kazalyn. We
hold that the admission of evidence regarding Kazalyn striking his wife on one occasion prior
to their marriage is harmless error.
C. Evidence of Kazalyn's imprisonment.
[Headnote 10]
Kazalyn's statements to the police included evidence of prior incarceration. In the
interviews, Kazalyn brought up his prior imprisonment in explaining why he did not come to
the aid of his wife once she had exited the car. He stated that he left his wife on Industrial
Road because he was concerned about violating his parole and being sent back to prison after
he had just finished serving ten years. His concern about being sent back apparently stemmed
from his alcohol use and his wife's use of cocaine. The district court specifically found that
the probative value of establishing what happened on the night of Mrs. Kazalyn's death
outweighed the prejudice to the defendant. We agree.
Kazalyn's statement are highly probative of what occurred on the night of his wife's death.
His statements explain why he pulled his car off to the side of the road and waited, rather than
returning to his wife's aid.
Kazalyn also apparently, finds error in the admission of his second statement which
disclosed that the interview was held at Indian Springs Prison. This one mention of
imprisonment was not overwhelmingly prejudicial to Kazalyn. We therefore hold that it was
harmless error.
108 Nev. 67, 75 (1992) Kazalyn v. State
III. The jury instruction on reasonable doubt.
[Headnote 11]
The defendant argues that the instruction given to the jury on reasonable doubt is
unconstitutional.
In Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991), this court examined NRS 175.211(1),
3
and the exact same instruction as was given in this case, in comparison with Cage v.
Louisiana,
------
U.S
------
, 111 S.Ct. 328 (1990). This court held that the Cage holding is
limited to the interpretation of a single Louisiana instruction that is not similar to the
instruction on reasonable doubt given in Nevada . . . . [NRS 175.211] satis[fies] the due
process requirements of both the United States and the Nevada Constitution. Lord, 107 Nev.
40, 806 P.2d at 556.
Kazalyn's argument on this issue is without merit.
IV. The jury instruction on premeditation.
[Headnote 12]
Kazalyn argues that the jury instruction on premeditation is misleading because it does not
distinguish between premeditation and malice aforethought.
The instruction on premeditation given by the district court is as follows:
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. 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 wilful, deliberate and premeditated murder.
The court further instructed the jury on malice aforethought; the definition included the
following language: Malice aforethought does not imply deliberation or the lapse of any
considerable time between the malicious intention to injure another and the actual
execution of the intention but denotes rather an unlawful purpose and design in
contradistinction to accident and mischance.
__________
3
NRS 175.211, in its entirety, reads:
Reasonable doubt defined; no other definition to be given to juries.
1. 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 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 and substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in
this state.
108 Nev. 67, 76 (1992) Kazalyn v. State
Malice aforethought does not imply deliberation or the lapse of any considerable time
between the malicious intention to injure another and the actual execution of the
intention but denotes rather an unlawful purpose and design in contradistinction to
accident and mischance.
The premeditation instruction closely follows the definition this court has set forth:
To make a killing deliberate as well as premeditated, it is unnecessary that the intention
to kill shall have been entertained for any considerable length of time. It is enough if
there is time for the mind to think upon or consider the act, and then determine to do it.
If, therefore, the killing is not the instant effect of impulseif there is hesitation or
doubt to be overcome, a choice made as the result of thought, however short the
struggle between the intention and the actit is sufficient to characterize the crime as
deliberate and premeditated murder. In other words, one may be guilty of murder in the
first degree although the intent to commit such a homicide is formed at the very
moment the shot is fired.
Payne v. State, 81 Nev. 503, 508-09, 406 P.2d 922, 925-26 (1965) (citations omitted).
The jury instruction on premeditation meets the criteria set forth in Payne. We hold that
the instruction on malice aforethought was sufficiently distinct from the instruction on
premeditation, and thus, both instructions adequately informed the jury of the law.
V. Deadly weapon enhancement.
[Headnote 13]
Kazalyn asserts that his sentence was enhanced erroneously, because under the recently
decided Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), an automobile is not a deadly
weapon. We agree. An automobile which is used in the manner contemplated by its
construction and design is not inherently dangerous and likely to cause a life threatening
injury or death. As we said in Zgombic, the Legislature intended to curb the potential violence
inherent in the weapon itself and to deter injuries caused by weapons. Id. at 576, 798 P.2d at
551. An automobile clearly is not within the Legislature's contemplation of a deadly weapon.
We therefore vacate the consecutive life sentence without the possibility of parole which
was imposed on Kazalyn for use of a deadly weapon.
108 Nev. 67, 77 (1992) Kazalyn v. State
VI. The separate penalty hearing.
[Headnotes 14, 15]
Kazalyn moved the court to forego a separate penalty hearing on the grounds that a hearing
is only appropriate in death penalty cases. The court denied the motion, stating that in a first
degree murder case, the jury was entitled to know aggravating and mitigating circumstances
along with the defendant's criminal history.
Kazalyn argues that it was error for the district court to hold a separate penalty hearing.
The State argues that a district court is permitted to hold a separate penalty hearing in a first
degree murder case, even where the death penalty is not a sentencing option, because the
hearing is helpful to the jury.
A separate penalty hearing is mandated in death penalty cases by NRS 175.552, which
provides in relevant part:
Requirement; jury; panel of judges; evidence. Upon a finding that a defendant is
guilty of murder of the first degree, the court shall conduct a separate penalty hearing to
determine whether the defendant shall be sentenced to death or to life imprisonment
with or without possibility of parole. The hearing shall be conducted in the trial court
before the trial jury, or before a panel of three district judges if the trial was without a
jury . . . .
This court has held that a separate penalty hearing is not required in non-death penalty
cases. McCabe v. State, 98 Nev. 604, 655 P.2d 536 (1982). We now hold specifically that a
separate penalty hearing is appropriate only where the death penalty is a sentencing option.
The main purpose of the hearing is to determine whether a sentence of death or life
imprisonment should be imposed. Id. at 607, 655 P.2d at 538. Absent consideration of the
death sentence, a separate penalty hearing is simply not warranted.
While it was error in this case to hold a separate penalty hearing, we hold that it was not
reversible error. Kazalyn has failed to show how he was prejudiced by the separate penalty
hearing and jury sentencing.
VII. Eligibility of parole.
[Headnote 16]
The district court gave a jury instruction that a sentence of life imprisonment with the
possibility of parole would result in Kazalyn being eligible for parole after ten years. Kazalyn
requested that the jury be informed that he would be eligible for parole in twenty years
because of the sentencing enhancement mandated by NRS 193.165.4 He now argues that
the failure to accurately inform the jury of the correct parole date misled the jury and
deprived him of a fair penalty hearing.
108 Nev. 67, 78 (1992) Kazalyn v. State
twenty years because of the sentencing enhancement mandated by NRS 193.165.
4
He now
argues that the failure to accurately inform the jury of the correct parole date misled the jury
and deprived him of a fair penalty hearing.
The State argues that court's refusal to inform the jury of the date of possible parole is
harmless error, because the jury sentenced him to life without the possibility of parole.
This court explained in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), that a jury
instruction discussing parole in a murder case is proper as long as it does not mislead the jury,
and further, that it is not error to inform the jury when the defendant will be eligible for
parole. Id. at 57, 692 P.2d at 511.
If a trial court wishes to inform the jury of the possible date of parole, it must do so with
accuracy. However, without the penalty enhancement for use of a deadly weapon, Kazalyn
would have been eligible for parole in ten years if the jury had chosen to sentence him to life
imprisonment with the possibility of parole. We have explained that the enhancement does
not apply to this case. Therefore, the jury was not misled as to when Kazalyn would be
eligible for parole.
Conclusion
We find no reversible error in the guilt phase of the trial. However, we find that the
penalty enhancement for use of a deadly weapon was in error. Accordingly, we affirm the
conviction and vacate the consecutive life sentence imposed for the use of a deadly weapon.
__________
4
NRS 193.165 provides in relevant part:
Additional penalty when deadly weapon or tear gas used in commission of crime; restriction of
probation.
1. Any person who uses a firearm or other deadly weapon or a weapon containing or capable of
emitting tear gas, whether or not its possession is permitted by NRS 202.375, in the commission of a
crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term
of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run
consecutively with the sentence prescribed by statute for such crime.
____________
108 Nev. 79, 79 (1992) Leonard v. State
WILLIAM BRYON LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21742
January 24, 1992 824 P.2d 287
Appeal from judgment pursuant to jury verdict of first-degree murder and sentence of
death. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Inmate was convicted in the district court of first-degree murder and was sentenced to
death. Defendant appeal. The supreme court held that: (1) inmate's attorney had no conflict of
interest; (2) trial judge's statements did not demonstrate bias; and (3) evidence at penalty
hearing of inmate's escape attempt and other prior crimes did not unfairly prejudice inmate.
Affirmed.
[Rehearing denied March 3, 1992]
E. Sue Sanders, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and David Sarnowski, Chief Criminal Deputy
Attorney General, Carson City, for Respondent.
1. Criminal Law.
No actual conflict of interest existed between attorney's representation of inmate charged with capital murder and attorney's
representation of another inmate, who received favorable plea bargain in return for his deposition about defendant's attack on murder
victim and information regarding escape attempt by defendant; deposition testimony regarding murder was favorable to defendant and
supported defendant's theory of self-defense, and State did not use inmate's testimony affirmatively at trial. U.S.C.A.Const. amend 6.
2. Criminal Law.
Court did not demonstrate bias by stating that inmate who was capital murder defendant was dangerous person and had been
control and discipline problem; court's statements demonstrated realistic concern that defendant posed serious safety risk in court, as
defendant had killed three people, battered others, threatened his attorney, and was nearly successful in escaping from prison.
3. Constitutional Law; Criminal Law.
Inmate/capital murder defendant's due process rights were not violated by fact that several security officers guarded him at
courthouse and some jurors saw him being shackled and unshackled outside courtroom; jury knew defendant was inmate at Nevada
State Prison. U.S.C.A.Const. amend. 14.
4. Homicide.
Inmate/capital murder defendant was not unfairly prejudiced at penalty hearing by evidence of his escape attempt and other prior
crimes; inmate's history of violent behavior and attempted escape provided basis for fairly inferring that his
incarceration would not deter him from endangering lives of others.
108 Nev. 79, 80 (1992) Leonard v. State
crimes; inmate's history of violent behavior and attempted escape provided basis for fairly inferring that his incarceration would not
deter him from endangering lives of others. NRS 48.035, subd. 1.
5. Criminal Law.
Prosecutor's statement that capital murder defendant did what he did because he liked it was improper, but was harmless beyond
reasonable doubt; defense attorney did not object, overwhelming evidence of defendant's guilt existed, and prosecutor's inappropriate
comments did not contribute to verdict.
6. Homicide.
Sentence of death was properly imposed on inmate/capital murder defendant who murdered fellow inmate by stabbing him
twenty-one times and who had previously been convicted of two murders as well as other felonies. NRS 177.055, subd. 2(b), (c), (d).
OPINION
Per Curiam:
Appellant William Bryon Leonard challenges the judgment entered pursuant to jury
verdict of first-degree murder and the sentence of death that followed. Leonard contends that
both the individual and cumulative effect of specified trial error deprived him of a fair trial
both in the guilt and sentencing phases of trial. We disagree and affirm.
FACTS
On the evening of October 22, 1987, Leonard, a maximum security inmate in the Nevada
State Prison (NSP), killed another inmate, Joseph Wright, by stabbing him twenty-one times
with a steel shank. Although he received only superficial scratches on the inside of his arm
during his attack on Wright, Leonard nevertheless insists that Wright's death resulted from an
act of self-defense.
At trial, the jury found Leonard guilty of first-degree murder with the use of a deadly
weapon, battery with the use of a deadly weapon by a prisoner in lawful custody or
confinement, and possession of a dangerous weapon by a prisoner in lawful custody or
confinement.
At the penalty phase of the trial, the State established that Leonard was previously
convicted in Nevada for the stabbing murder of Russell Williams, and in Florida for the
stabbing murder of Lawrence Dunn. Leonard also had been previously convicted in Nevada
of battery with the use of a deadly weapon by a prisoner in lawful custody or confinement for
attacking Michael Simms, another inmate. Leonard's attack on Simms was similar to his
attack on Wright. Leonard's record also included a conviction of assault with the use of a
deadly weapon and battery with the use of a deadly weapon by an incarcerated person for
an assault on a correctional officer.
108 Nev. 79, 81 (1992) Leonard v. State
with the use of a deadly weapon by an incarcerated person for an assault on a correctional
officer.
At the conclusion of the penalty phase, the jury found two aggravating circumstances: (1)
the murder was committed while Leonard was under sentence of imprisonment; and (2) the
murder was committed by a person who had been previously convicted of other murders and
felonies. NRS 200.033. The jury found two mitigating factors: (1) Wright had been a
participant in Leonard's criminal conduct or consented to the act; and (2) Leonard's previous
crimes were committed while Leonard was under the influence of drugs or alcohol. NRS
200.035. The jury unanimously set the penalty at death.
DISCUSSION
[Headnote 1]
Leonard initially contends that his attorney, James Wessel, had a conflict of interest which
prejudiced Leonard's defense because Wessel represented another inmate, Don Hill, in a
different matter. Hill received a favorable plea bargain on two pending charges in return for
his deposition about Leonard's attack on Wright and information regarding an escape attempt
by Leonard. Hill's deposition testimony regarding the Wright homicide was favorable to
Leonard and supported Leonard's theory of self-defense. The State did not use Hill's
testimony affirmatively at trial. Leonard was aware of and did not object to Wessel's
representation of Hill, and no actual conflict between Leonard and Hill existed which would
have affected Wessel's efforts on behalf of Leonard. [T]he possibility of conflict is
insufficient to impugn a criminal conviction. . . . [A] defendant must establish that an actual
conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S.
335, 350 (1980). Because no actual conflict of interest existed, Leonard's argument is without
merit.
Leonard's next contention is that the district court judge was biased against him and erred
by not recusing himself. Specifically, Leonard contends that the judge demonstrated bias by
stating Mr. Leonard is a dangerous person . . . [and] has been a control and discipline
problem.
[Headnote 2]
We conclude that the judge's statements do not demonstrate bias. Rather, the judge's
statements demonstrate a realistic concern that Leonard posed a serious safety risk in court.
Leonard had killed three people, battered others, threatened his attorney, and was nearly
successful in escaping from prison. [T]he burden is on the party asserting the challenge to
establish sufficient factual grounds warranting disqualification. In re Petition to Recall
Dunleavy, 104 Nev. 7S4, 7SS
108 Nev. 79, 82 (1992) Leonard v. State
Recall Dunleavy, 104 Nev. 784, 788, 769 P.2d 1271, 1273-74 (1988) (citing Ritter v. Bd. of
Com'rs of Adam County, Etc., 637 P.2d 940, 946 (Wash. 1981)). We conclude that Leonard
failed to establish any grounds necessitating the judge's disqualification.
[Headnote 3]
Leonard also argues that his due process rights were violated because several security
officers guarded him at the courthouse, and some of the jurors saw him being shackled and
unshackled outside the courtroom. However, the record evidence demonstrated that the jury
knew Leonard was an inmate at Nevada State Prison. No prejudice can result from seeing
that which is already known.' Shuman v. State, 94 Nev. 265, 272, 578 P.2d 1183, 1187
(1987) (quoting Estelle v. Williams, 425 U.S. 501, 507 (1976)). Therefore, Leonard was not
unfairly prejudiced by the necessary security measures.
[Headnote 4]
Leonard maintains that he was unfairly prejudiced because the district court admitted
evidence of his escape attempt and other prior crimes at the penalty hearing. In determining
admissibility, the court often must weigh the probative value of proffered evidence against
the risk of unfair prejudice. See NRS 48.035(1). When evidence shows that incarceration
will not deter the defendant from endangering others' lives, a prosecutor is entitled to ask the
jury to draw that inference.' Riley v. State, 107 Nev. 205, 219, 808 P.2d 551, 560 (1991)
(quoting Haberstroh v. State, 105 Nev. 739, 741, 782 P.2d 1343, 1344 (1989)). Leonard's
history of violent behavior and attempted escape provides a basis for fairly inferring that his
incarceration will not deter him from endangering the lives of others. Therefore, Leonard was
not unfairly prejudiced because the trial court allowed evidence of his escape attempt and
prior crimes. Moreover, Nevada law allows a sentencing body to hear evidence of other
crimes and reliable background information that will provide enlightenment concerning the
defendant as a whole person in considering the imposition of sentence. Gallego v. State,
101 Nev. 782, 791, 711 P.2d 856, 862-63 (1985); NRS 175.552. There was no error.
[Headnote 5]
Leonard also contends his trial was tainted by prejudicial prosecutorial misconduct related
to characterizations, innuendos, and conclusions. The prosecutor's statement that Leonard did
what he did because he liked it was improper. However, we conclude that the statement
was harmless beyond a reasonable doubt. The defense attorney did not object, overwhelming
evidence of Leonard's guilt exists, and the prosecutor's inappropriate comments did not
contribute to the verdict. Under these circumstances, this court will not interfere with the
sentence because of prosecutorial misconduct.
108 Nev. 79, 83 (1992) Leonard v. State
circumstances, this court will not interfere with the sentence because of prosecutorial
misconduct. Pellegrini v. State, 104 Nev. 625, 628-29, 764 P.2d 484, 487 (1988). As to
Leonard's other assignments of misconduct, we conclude that they are without merit.
[Headnote 6]
Finally, Leonard argues that the cumulative impact of trial error mandates reversal and that
the evidence against him was not overwhelming. We disagree. The State presented an
overwhelming basis for the conviction and sentence through witnesses and medical and
physical evidence.
The record evidence also supports the finding of aggravating circumstances essential to a
sentence of death. NRS 177.055(2)(b). Additionally, the record supplies no basis for
concluding that the sentence was imposed under the influence of passion, prejudice or any
arbitrary factors. We also conclude that Leonard's sentence is not excessive when considering
both the crime and the defendant. NRS 177.055(2)(c-d).
For the reasons specified above, we are persuaded that Leonard was fairly tried and
sentenced. We therefore affirm the judgment of conviction entered pursuant to jury verdict,
and the sentence of death.
____________
108 Nev. 83, 83 (1992) Wellman v. Fox
DALTON WELLMAN, SR., DALTON E. WELLMAN, JR., WALLACE K. WELLMAN
AND EDGAR E. WELLMAN, Appellants, v. R.H. FOX, JR., EDWARD B. FOX,
THOMAS W. ERVIN, KENNETH WEEKS, ALGIGNON SMITH, ALTON
PALMER, L.H. STRONG AND DAVID BISHOP, Respondents.
No. 21966
January 24, 1992 825 P.2d 208
Appeal from an order of the district court granting judgment in favor of respondents in an
action for defamation and libel. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Unsuccessful union election candidate brought libel suit against incumbent business
manager for assertions made in election flyer. The district court entered summary judgment in
favor of business manager and members of union's executive board. Business manager
appealed. The supreme court held that: (1) actual assertions that unsuccessful candidate
was dishonest were not actionable; {2) exaggerations and over broad generalization were
not libel; and {3) unsuccessful candidate waived right to jury trial by failing to make
timely request.
108 Nev. 83, 84 (1992) Wellman v. Fox
actual assertions that unsuccessful candidate was dishonest were not actionable; (2)
exaggerations and over broad generalization were not libel; and (3) unsuccessful candidate
waived right to jury trial by failing to make timely request.
Affirmed.
Carl E. Lovell, Las Vegas, for Appellants.
Levy, Goldman & Levy, Los Angeles, California, for Respondents.
1. Libel and Slander.
To prevail on claim of libel, party must show publication of false statement of fact, as opposed to opinion; whether objectionable
statements constitute fact or opinion is question of law.
2. Appeal and Error.
Actions involving libel must be reviewed de novo on appeal, including examination of context in which statements were made, to
determine whether First Amendment protection applies. U.S.C.A.Const. amend. 1.
3. Libel and Slander.
Assertions by union business manager in election flyer, that identified opposing candidate and his family as dishonest, were
factual for purposes of libel suit by opposition candidate. U.S.C.A.Const. amend. 1.
4. Libel and Slander.
Factual assertion by union business manager in union election flyer, which claimed that opposition candidate and his family were
dishonest did not form basis of libel claim given that statements were shown to have been true. U.S.C.A.Const. amend. 1.
5. Libel and Slander.
Exaggerated statements are not libelous in context which statements would be interpreted by reasonable person as mere rhetorical
hyperbole. U.S.C.A.Const. amend. 1.
6. Libel and Slander.
Exaggeration by union business manager in election flyer which made reference to opposing candidate's family as Dalton Gang
was not libelous. U.S.C.A.Const. amend. 1.
7. Libel and Slander.
Even if union election flyer prepared by business manager was libelous, members of union's executive board could not be liable
given that Labor Management Reporting and Disclosure Act prohibits union officers from censoring campaign literature.
U.S.C.A.Const. amend. 1; Labor-Management Reporting and Disclosure Act of 1959, 401(c), 29 U.S.C.A. 481(c).
8. Jury.
Refusing to grant libel plaintiff's untimely request for jury trial was not abuse of discretion. Const. art. 1, 9; NRCP 38(b).
108 Nev. 83, 85 (1992) Wellman v. Fox
OPINION
Per Curiam:
In August, 1983, Operating Engineers Local 501, an organization comprised of building
maintenance engineers in the Southern Nevada and Southern California region, held elections
for officers. The organization's chief executive officer is accorded the title of Business
Manager. In the 1983 election, two of the candidates for Business Manager were incumbent
R.H. Fox (Bob Fox) and Dalton Wellman, Jr. (Dee Wellman).
Prior to the announcement of candidates for the 1983 election, appellants Dee and Dalton
Wellman, Sr. distributed a small card of introduction to union members at union meetings in
Las Vegas, Nevada, and Anaheim, California, describing the Wellman family's involvement
with the union. It described the employment and union backgrounds of Dee, Dalton, Wallace
and Edgar Wellman, and it urged members to vote in the upcoming election. The card did not
indicate that any of the Wellmans would be candidates in that election.
Incumbent business manager Fox distributed a flyer to all Local 501 members in response
to the Wellmans' card of introduction. The front side of the flyer contains a three-paragraph
letter from Bob Fox that warns against the danger that the Wellman gang presents to Local
501's members and assets. Furthermore, the flyer asserts that the leader of the gang was
thrown off of the union's executive board for obtaining funds fraudulently, and that the gang
is replete with nepotism and even includes a strikebreaker. On the reverse side of the
flyer, the Wellmans' card of introduction is reprinted and annotated. The annotations purport
to disprove factual assertions implied by the card, such as the assertion that the Wellmans are
a financially successful union family. The reverse flyer refers to the Wellmans as the Dalton
Gang, and implies that Barney Vardiman, who is a strikebreaker, is a member of the gang,
even though he was not mentioned on the card. The flyer also advises union voters not to be
conned. Finally, Dee Wellman's Chapter VII personal bankruptcy petition from 1980 is
reprinted on the reverse side of the flyer beneath the annotations.
The Wellmans object to the Fox flyer on the grounds that no one in their family has ever
been convicted of a crime or involved with a criminal group or gang. Similarly, they
complain that the statement that Dalton Wellman was expelled from the union's executive
board for misuse of funds overstated the truth. Dalton Wellman had in fact been
disqualified from the board by the membership in an internal union proceeding for double
dipping.
108 Nev. 83, 86 (1992) Wellman v. Fox
dipping.
1
However, Bob Fox testified that his flyer was mere election propaganda, and that
the threat posed by the Dalton Gang was merely that they were inept and inexperienced. He
also stated that his comment regarding nepotism merely referred to the fact that Dee
Wellman represented Dalton during his membership trial. Fox admitted that the Wellmans
had never been in a position where they could have hired each other. Fox also stated that he
knew when he sent out the flyer that Edgar and Wallace Wellman were not candidates in the
1983 election. Furthermore, he did not know the extent of strikebreaker Barney Vardiman's
connection to the Wellmans.
Bob Fox was re-elected by a large margin. In January of 1984, appellants commenced a
defamation and libel action against Bob Fox, union business representative Kenneth Weeks,
and members of the union's executive board who were in office when the flyer was
distributed and assisted in its distribution. All respondents except Bob Fox were subsequently
dismissed from the action without prejudice.
The Wellmans' complaint alleged that the statements contained in the Fox flyer were false
and malicious. It asserts that reference to the Wellmans as the Dalton Gang was a deliberate
attempt to associate the Wellman family with a notorious criminal gang from the early 1900's,
and that the flyer implies that the Wellmans are thieves. The Wellmans also alleged damage
to both their social and business reputations and requested compensatory damages to each of
them in excess of $10,000 and punitive damages in excess of $10,000.
At a bench trial, the judge found that the Wellmans were public figures, that the statements
occurred in the context of a labor dispute, and that both of these factors implicated the actual
malice standard. See New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). Because
the judge found that the statements contained in the Fox flyer were either opinion or
politically-motivated hyperbole, he concluded that appellants failed to satisfy the actual
malice standard. The judge also awarded attorney's fees to Fox amounting to $5,000 because
he found appellants' action frivolous. We affirm judgment.
[Headnotes 1, 2]
To prevail on a claim of libel, a party must show publication of a false statement of fact, as
opposed to opinion. Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 410, 664 P.2d 337, 341
(1983) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 {1974)).
__________
1
Dalton Wellman's double dipping consisted of submitting claims for compensation for time lost as a
result of attending union meetings while someone simultaneously was punching him in as present at his job.
108 Nev. 83, 87 (1992) Wellman v. Fox
(1974)). Whether the objectionable statements constitute fact or opinion is a question of law.
Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Consequently, actions
involving libel must be reviewed de novo on appeal. Milkovich v. Lorain Journal Co., 497
U.S. 1, 17, 110 S.Ct. 2695, 2705 (1990). Such a review also must examine the context in
which the statements are made to determine whether they are of a character which the First
Amendment protects. Id. See also Las Vegas Sun v. Franklin, 74 Nev. 282, 329 P.2d 867
(1958).
It is well-established that statements are libelous only if they are presented as fact rather
than opinion, and only if the facts asserted are false. See, e.g., Nevada Ind. Broadcasting, 99
Nev. at 410-13, 664 P.2d at 341-43. The distinction between fact and opinion is often a close
one, with some statements containing elements of both. Nevada Ind. Broadcasting v. Allen,
99 Nev. 404, 411, 664 P.2d 337, 342 (1983). The Wellmans assert that the statements
contained in the Fox flyer constitute actionable libel because they imply assertions that the
Wellmans are dishonest, crooked, and untrustworthy. Fox responds that his flyer is merely a
statement of opinion, and that to the extent it contains factual assertions, these assertions are
true.
2
The United States Supreme Court recently addressed the issue of how to distinguish fact
from opinion in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695 (1990).
Milkovich involved a libel action against the author of a newspaper column who implied that
a wrestling coach had lied under oath regarding an altercation that had occurred between his
team and another team during a wrestling match. Milkovich, 497 U.S. at 3, 110 S.Ct. at
2697-98. The Supreme Court concluded that the statements were libelous if false because a
fact finder could conclude that they implied the factual assertion that Milkovich committed
perjury in a judicial proceeding. Id. at 21, 110 S.Ct. at 2707.
[Headnotes 3, 4]
In the instant case, with respect to the first side of the Fox flyer, the assertions presented
therein appear to be factual. Fox asserts that the Wellmans are dishonest by stating: You will
discover as others have that the story they want you to believe and the truth of the
matter are two very different things.
__________
2
At trial, several witnesses testified as to the impressions they received from the flyer. Expert witness Dr.
Felicia Campbell of the Department of English at the University of Nevada testified that the flyer consisted
primarily of factual assertion, not opinion. In contract, expert Tony Cosola, a former Department of Labor
employee with experience investigating union election disputes, testified that the statements in the flyer were
primarily opinion. Union member Thomas Ervin, who had received the Fox flyer in the mail, testified that he
believed that the first side of the flyer contained fact, not opinion, and that he did not believe that any of the
statements contained therein were false. However, he also testified that he thought that the message of side one
was [j]ust to vote for Bob. Because this case requires de novo review, we have relied primarily on our own
interpretation of the flyer.
108 Nev. 83, 88 (1992) Wellman v. Fox
You will discover as others have that the story they want you to believe and the truth of
the matter are two very different things. This gang is led by a member who was thrown
off of the local union executive board for obtaining union funds fraudulently, the only
such blemish in our proud history. This gang is replete with nepotism, and the real
topper is it even includes a strikebreaker.
(Emphasis added.) We conclude that the underscored statements constitute factual assertions
under Milkovich. However, these factual assertions are not actionable unless they have no
basis in truth. Id. at 22, 110 S.Ct. at 2707-08. Dalton Wellman's expulsion from the union's
executive board for fraudulently submitting duplicative time sheets was affirmed by the Ninth
Circuit Court of Appeals. See Wellman v. Int. Union of Operating Engineers, 812 F.2d 1204,
1205 (9th Cir. 1987). In addition, Fox demonstrated that Barney Vardiman was a former
strikebreaker who was receiving at least nominal support from Dalton Wellman. Similarly,
the factual statements on the reverse side of the Fox flyer were proven at trial to be true.
Thus, we conclude that these statements do not form the basis for a claim of libel.
[Headnotes 5, 6]
Certain secondary statements in the Fox flyer suggest exaggeration or overbroad
generalization. These would include reference to the Wellmans as the Dalton Gang and the
reference to Vardiman as being an intimate of this group. However, such exaggerated
statements are permissible in contexts in which the statements would be interpreted by a
reasonable person as mere rhetorical hyperbole. See, e.g., Letter Carriers v. Austin, 418 U.S.
264, 283 (1974). We conclude that in the context of a union election, Fox's exaggerations and
overbroad generalizations were not libelous.
If the primary facts asserted in the Fox flyer had been false, we would have had to consider
whether the context of the statements as made against allegedly public figures would exempt
Fox from liability for statements made in good faith. Curtis Publishing Co. v. Butts, 388 U.S.
130 (1967); New York Times v. Sullivan, 376 U.S. 254, 271-73 (1964). However, because
we conclude that Fox's assertions are founded on truth, we need not address this issue.
[Headnote 7]
We also reject the Wellmans' argument that the district court should not have dismissed
their action against the other members of the union's executive board. Even if the Fox flyer
had been found to be libelous, dismissal of the other defendants was proper under the Labor
Management Reporting and Disclosure Act, which prohibits union officers from censoring
campaign literature and requires them to comply with all reasonable requests by a
candidate to distribute campaign literature.
108 Nev. 83, 89 (1992) Wellman v. Fox
which prohibits union officers from censoring campaign literature and requires them to
comply with all reasonable requests by a candidate to distribute campaign literature. 29
U.S.C.A. 481(c) (1985).
[Headnote 8]
Finally, the Wellmans object to the district court's ruling that they had waived their right to
a jury trial by failing to timely request one pursuant to NRCP 38.
3
They argue that even if
they did not comply with the procedure set forth in the statute, they have an inviolable right to
a jury trial under Article I, Section 9 of the Nevada Constitution. This section states in
pertinent part:
In all criminal prosecutions and civil actions for libels, the truth may be given in
evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous
is true and was published with good motives and for justifiable ends, the party shall be
acquitted or exonerated.
(Emphasis added.) From the plain language of this provision, we conclude that a jury trial is
not mandated for all libel actions irrespective of a party's compliance with the procedures for
requesting such trials. Because we also find that the Wellmans did not comply with NRCP
38, we hold that the district court judge acted within his discretion in refusing to grant a jury
trial.
We affirm the district court's ruling in favor of Fox. We also conclude, however, that
appellants' claim was not so meritless on appeal to warrant an award of attorney's fees to
respondents.
____________
108 Nev. 89, 89 (1992) Schoka v. Sheriff
ANDRE SCHOKA, Appellant, v. SHERIFF, WASHOE COUNTY, NEVADA, Respondent.
No. 22363
January 24, 1992 824 P.2d 290
Proper person appeal from and order of the district court forfeiting appellant's property.
Second Judicial District Court, Washoe County; Mark Handelsman, Judge.
Forfeiture action was brought against automobile and investment account of claimant
accused of real estate fraud. The district court entered order forfeiting car and account, and
claimant appealed.
__________
3
NRCP 38(b) states:
Any party may demand a trial by jury . . . by serving upon the other parties a demand therefor in
writing at any time after the commencement of the action and not later than the time of the entry of the
order first setting the case for trial.
108 Nev. 89, 90 (1992) Schoka v. Sheriff
court entered order forfeiting car and account, and claimant appealed. The supreme court held
that forfeiture of claimant's automobile and account was not supported by evidence.
Reversed.
[Rehearing denied March 3, 1992]
Andre Schoka, In Proper Person, Carson City, for Appellant.
Dorothy Nash Holmes, District Attorney and Arthur Noxon, Deputy District Attorney,
Washoe County, for Respondent.
Forfeitures.
Forfeiture of automobile and investment account was not supported by evidence that claimant had been involved in pattern of real
estate fraud, or by testimony of victims that claimant had driven car to meet with them; there was no evidence that claimant used either
his automobile or investment account to commit fraudulent acts.
OPINION
Per Curiam:
On August 29, 1989, the sheriff of Washoe County (state) filed in the district court a
complaint for forfeiture. That complaint named as respondents a 1985 Mercedes Benz
(car), and a Charles Schwab account (account) in the amount of $23,634.38. The
complaint charged that Schoka used the car and the account as instrumentalities in the
commission of various felonies.
On September 21, 1989, Schoka filed his answer to the complaint. Schoka denied the
state's allegations. On February 19, 1991, the state filed a trial statement which described the
car as an instrumentality of crime, but described the account as the proceeds of crime.
According to the state, Schoka was involved in a pattern of real estate fraud. Schoka would
buy properties with assumable loans, collect the rent on those properties, and then fail to
make the monthly mortgage payments.
On February 22, 1991, the district court commenced a hearing on the state's complaint for
forfeiture. On May 29, 1991, the district court entered its decision and order forfeiting the car
and the account. This appeal followed.
The district court found that forfeiture was proper under NRS 179.121.
1
Specifically, the
district court found that the state proved that Schoka used the car and the account as
instrumentalities in the commission of various felonies.
__________
1
NRS 179.121 reads in pertinent part as follows:
1. All personal property, including any tool, substance, weapon, machine, money or security, which
is used as an instrumentality in the
108 Nev. 89, 91 (1992) Schoka v. Sheriff
proved that Schoka used the car and the account as instrumentalities in the commission of
various felonies. Based on our review of the record on appeal, we conclude that the state
failed to present sufficient evidence to support the order of the district court forfeiting
Schoka's property. The state called several witnesses who testified to fraudulent conduct on
the part of Schoka. The testimony concerning the car and the account was, however, very
limited.
With regard to the car, two victims did see Schoka driving the car to meet with them. One
victim even testified that he was more impressed with Schoka because of the way Schoka
dressed and the car he drove. There was no evidence, however, that Schoka made any effort
to display his car to his victims, or that Schoka made any use of his car in the commission of
a crime other than the incidental use of transporting him to the scene of the crime. The result
of this case might be different if Schoka had used the car to transport stolen property, or as a
means of escape. The evidence presented, however, does not show that the car played any
role in the commission of a crime. This evidence is insufficient to establish that the car was
an instrumentality of a crime.
Likewise, there was no evidence at all that the account was an instrumentality of a crime.
Further, because there was no evidence which traced any of the funds in the account to any
criminal activity, we cannot conclude that the account was forfeitable as the proceeds of
crime.
Because the state failed to present sufficient evidence to support the forfeiture of either the
car or the account, we reverse the order of the district court forfeiting appellant's property.
2
__________
commission of or attempted commission of the crime of murder, robbery, kidnaping, burglary, invasion
of the home, grand larceny or pandering, or a violation of NRS 200.465, 202.265, 202.287 or 465.070 to
465.085, inclusive, is subject to forfeiture.
2. Except as otherwise provided for conveyances forfeitable pursuant to NRS 453.301 or 501.3857,
all conveyances, including aircraft, vehicles or vessels, which are used or intended for use during the
commission of a felony or a violation of NRS 202.287 or 465.070 to 465.085, inclusive, are subject to
forfeiture . . . .
2
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We deny as moot
appellant's motion to file an opening brief.
The Honorable Cliff Young, Justice, did not participate in the decision of this appeal.
____________
108 Nev. 92, 92 (1992) A-NLV Cab Co. v. State, Taxicab Authority
A-NLV CAB COMPANY, Appellant, v. THE STATE OF NEVADA, TAXICAB
AUTHORITY, an Agency of the State of Nevada, WHITTLESEA BLUE CAB
COMPANY; HENDERSON TAXI; NEVADA CHECKER CAB CORPORATION;
NEVADA YELLOW CAB CORPORATION and NEVADA STAR CAB
CORPORATION, Respondents.
No. 22084
January 24, 1992 825 P.2d 585
Motion to strike portions of appellant's opening brief. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Petition was filed for judicial review of administrative decision. The district court denied
petition. The supreme court held that: (1) citations to unpublished administrative decisions of
other jurisdictions in appellant's brief were improper; (2) attorney work-product doctrine did
not preclude appellant's attorney from divulging cognizable citations to those administrative
decisions; and (3) offer of affidavits of individual legislators in support of its argument
concerning legislature's intent in enacting particular statute was improper.
Motion granted in part.
Gordon & Silver and Scott Scherer and Elizabeth A. Kohnen, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City, Jean M. Mischel, Deputy Attorney
General, Las Vegas, for Respondent State of Nevada, Taxicab Authority.
Hilbrecht & Associates and Alaina Burtenshaw and Morgan D. Davis, Las Vegas, for
Respondents Whittlesea Blue Cab Company and Henderson Taxi.
Alverson, Taylor, Mortensen & Nelson and David R. Clayson and Gary C. Milne, Las
Vegas, for Respondents Nevada Checker Cab Corporation, Nevada Yellow Cab Corporation
and Nevada Star Cab Corporation.
1. Administrative Law and Procedure.
Citation in appellate brief to unpublished decisions of administrative agencies of other jurisdictions was improper where brief
failed to identify publication where decisions would be found, and, with one exception, failed to identify specific agencies which
issued those decisions. SCR 123.
2. Pretrial Procedure.
Attorney's refusal to provide opposing counsel with cognizable legal citations to administrative agency decisions cited in appellate
brief, on ground that providing that information would amount to unethical divulsion of attorney work
product, was erroneous; attorney work-product doctrine does not preclude attorneys from divulging
cognizable citations to legal authority.
108 Nev. 92, 93 (1992) A-NLV Cab Co. v. State, Taxicab Authority
ground that providing that information would amount to unethical divulsion of attorney work product, was erroneous; attorney
work-product doctrine does not preclude attorneys from divulging cognizable citations to legal authority.
3. Statutes.
Submission of affidavits of state legislators in appellate brief, in effort to establish legislature's intent in enacting particular statute,
was improper; legislator's statement of opinion may not be used as means of divining legislative intent.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for judicial
review. Respondents Whittlesea Blue Cab Company and Henderson Taxi have moved to
strike portions of appellant's opening brief. Respondents Nevada Checker Cab Corporation,
Nevada Yellow Cab Corporation and Nevada Star Cab Corporation have joined in the motion
to strike. Appellant opposes the motion.
In support of the motion, respondents contend that appellant improperly submitted to the
district court, and to this court, the affidavits of individual members of the Nevada State
Legislature in an effort to demonstrate the legislature's intent with regard to the enactment of
NRS 706.8827(2).
[Headnote 1]
Respondents further contend that appellant has improperly cited a number of unpublished
decisions of administrative agencies outside this jurisdiction. Four such decisions identified
by respondents are cited in appellant's opening brief as follows:
(1) Re California Transport Company, Decision No. 40473, California Application
No. 27220, June 28, 1947;
(2) Re S.B. Hamilton Trucking, New York Case MT-2850, May 26, 1958;
(3) Re Wright, Colorado Application No. 9405, Decision No. 31381, October 4,
1948; and
(4) Re Perricone, Colorado Application No. 11163, Decision No. 37123, July 23,
1951.
Our review of the opening brief reveals a fifth administrative agency decision
similarly cited by appellant as follows:
(5) Re Los Angeles Traffic Manager's Conference, Decision No. 44095, Case No.
4808, April 25, 1950.
Relying on SCR 123 and this court's opinion in State, Emp. Sec. Dep't v. Weber, 100 Nev.
121, 676 P.2d 1318 (1984), respondents contend that appellant's citations to these decisions
are deficient and do not provide a means of verifying the existence or contents of those
decisions.
108 Nev. 92, 94 (1992) A-NLV Cab Co. v. State, Taxicab Authority
are deficient and do not provide a means of verifying the existence or contents of those
decisions. In addition, respondents note that their request for assistance in locating these
administrative agency decisions was declined by attorney Elizabeth A. Kohnen, counsel for
appellant and a member of the Las Vegas, Nevada, law firm of Gordon & Silver, on the
asserted ground that such assistance would violate her ethical duty not to disclose her attorney
work product.
In opposition to respondents' motion to strike appellant's references to these administrative
agency decisions, appellant asserts that the Weber decision does not support respondents'
argument, that SCR 123 clearly does not prohibit A-NLV from citing administrative
decisions from other states, and that A Uniform System of Citation actually supports
A-NLV's position that the administrative decisions it cited are a recognized form of legal
authority. Appellant does not present any argument to support these conclusory assertions.
We agree with respondents' contention that the above citations are deficient. As
respondents correctly argue, appellant has failed to identify a publication, if any exist, where
these decisions can be found. Moreover, with the exception of appellant's reference to Re
Wright, which appellant indicates was decided by the Colorado Public Service Commission,
appellant's opening brief fails to identify the agency that issued those decisions.
Clearly, appellant has failed to provide either respondents or this court with a means of
verifying the existence or contents of the administrative agency decisions referenced in
appellant's opening brief. Such a failure to provide citations to legal authority in a cognizable
form has been expressly proscribed by this court in Weber, 100 Nev. at 123, 676 P.2d at
1319.
[Headnote 2]
In addition, attorney Kohnen's refusal to provide opposing counsel with cognizable legal
citations to these administrative agency decisions, and counsel's assertion that providing such
information would amount to assistance in researching certain authorities and an unethical
divulsion of her attorney work product, are unfounded. Attorney Kohnen's claim that the
attorney work-product doctrine precludes her from divulging cognizable citations to legal
authority is patently erroneous.
Accordingly, we grant respondents' motion to strike appellant's references to the above
administrative agency decisions and all arguments in the opening brief which relate to those
decisions. The clerk of this court shall strike the following from appellant's opening brief:
page 13, line 26; page 14, lines 1 through 16; page 15, lines 13 through 28; and page 16, lines
1 through 18.
108 Nev. 92, 95 (1992) A-NLV Cab Co. v. State, Taxicab Authority
[Headnote 3]
We also agree with respondents' contention that appellant has improperly offered the
affidavits of individual legislators to support its argument regarding the legislature's intent in
enacting NRS 706.8827(2).
In opposition to respondents' motion to strike these affidavits, appellant asserts that,
because the affidavits are not offered as evidence on any issue of fact, but are offered as a
means of assisting this court in resolving an issue of law, this court's consideration of the
affidavits is permissible. To support this argument, appellant cites this court to Cal. Tchrs.
Ass'n v. San Diego Com. College, 621 P.2d 856 (Cal. 1981).
We agree with the California Supreme Court's holding in Cal Tchrs. Ass'n, which
expressly proscribes the use of a legislator's statement of opinion as a means of divining
legislative intent. Specifically, the California Supreme Court noted that:
The district contends that the use of Senator Rodda's statement would violate
well-settled principles of statutory construction. We agree. In construing a statute we
do not consider the motives or understandings of individual legislators who cast their
votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply
because the legislator whose motives are proffered actually authored the bill in
controversy [citation]; no guarantee can issue that those who supported his proposal
shared his view of its compass. (In re Marriage of Bouquet (1976) 16 Cal.3d 583,
589-590, 128 Cal.Rptr. 427, 546 P.2d 1371.) A legislator's statement is entitled to
consideration, however, when it is a reiteration of legislative discussion and events
leading to adoption of proposed amendments rather than merely an expression of
personal opinion.
621 P.2d at 860 (citations omitted; emphasis added).
In the instant case, appellant's opening brief offers the affidavits of five members of the
Nevada State Legislature's Transportation Assembly Committee in an effort to establish the
legislature's intent in enacting NRS 706.8827(2). Each of those affidavits recites that it is
based on the affiant's opinion and belief. Consequently, those five affidavits have been
improperly submitted to this court, and appellant's submission to the district court of four
such affidavits was similarly improper. Accordingly, the clerk of the court shall strike the
following from appellant's opening brief: page 17, lines 25 through 28; page 18, lines 1
through 28; and page 19, lines 1 through 4.
We note, however, that the record on appeal contains the affidavits of four individual
legislators which are, in three instances, identical to the affidavits appended to appellant's
opening brief.
108 Nev. 92, 96 (1992) A-NLV Cab Co. v. State, Taxicab Authority
instances, identical to the affidavits appended to appellant's opening brief. Because we are
disinclined to excise portions of the record as made in the district court, we deny respondents'
motion to strike the affidavits which are appended to appellant's opening brief. This court
will, however, disregard those affidavits in resolving the merits of this appeal.
Finally, notwithstanding counsel's failure to heed the express directives set forth by this
court in Weber with regard to providing cognizable citations to legal authority, we have
determined that sanctions against appellant's counsel are not warranted at this time. We
admonish the law firm of Gordon & Silver, however, that this court will not hesitate to
impose sanctions in the future should similar unprofessional conduct come to this court's
attention.
____________
108 Nev. 96, 96 (1992) Beales v. Hillhaven, Inc.
NORMA BEALES, Appellant/Cross-Respondent, v. HILLHAVEN, INC.,
Respondent/Cross-Appellant.
No. 20668
January 24, 1992 825 P.2d 212
Appeal and cross-appeal from a judgment upon a jury verdict in favor of appellant. Second
Judicial District Court, Washoe County; Charles M. McGee, Judge.
Former employee brought wrongful discharge action against employer, seeking both past
and future damages, as well as damages for bad-faith discharge. The district court entered
verdict in favor of employee, and both employer and employee appealed. The supreme court,
Mowbray, C. J., held that: (1) employee was not entitled to pursue bad-faith discharge claim
against employer; (2) jury instruction on mitigation of damages was adequate; (3) refusal to
grant employer's motion for new trial on ground of juror misconduct was not error; (4) award
of future damages was supported by evidence; and (5) statements in employee handbook and
termination policy removed employee from scope of employment at-will doctrine.
Affirmed.
Young and Steffen, JJ., dissented in part.
Perry & Spann, Reno, for Appellant/Cross-Respondent.
Vargas & Bartlett, and Albert F. Pagni, Reno; Jackson, Lewis, Schnitzler & Krupman and
Gary R. Kessler, Atlanta, Georgia, for Respondent/Cross-Appellant.
108 Nev. 96, 97 (1992) Beales v. Hillhaven, Inc.
1. Master and Servant.
Employee was not entitled to pursue bad-faith discharge action against employer where, although employee's employment contract
provided that employee would be discharged only for dishonest or unethical conduct, employer discharged employee for poor job
performance.
2. Master and Servant.
For purposes of calculating damages in wrongful discharge case, employee is entitled to recover present value of difference, over
term of contract, between agreed-upon wages and amount which employee could have earned if he had, with reasonable diligence,
searched for similar employment.
3. Master and Servant.
In wrongful discharge action, jury instruction on mitigation of damages which provided that employee's affirmative duty to
mitigate her damages included the seeking and acceptance of alternative employment for the period covered by the agreement was
adequate; trial court was not required to instruct jury that employee's duty to mitigate damages included duty to maintain comparable
subsequent employment.
4. New Trial.
Refusal to grant employer new trial in wrongful discharge action, on ground of juror misconduct, was not error where, although
potentially prejudicial text was present in jury room during deliberations, text was consulted by just one juror, and trial court
subsequently disqualified and dismissed that juror from case, after determining that remaining jurors had not been prejudiced.
5. Master and Servant.
Award of future damages for wrongful discharge, in amount of $208,476, was supported by testimony of employee's expert
economist that employee's future wage loss could range from $49,152 to $315,791, depending upon variation in local employment rate
and upon whether employee chose to work to age sixty-five or seventy.
6. Master and Servant.
Designation of employee as permanent employee in and of itself and without further definition does not mean that employee is
no longer employee at will; permanent could be used to distinguish regular employee from temporary or probationary employee, with
neither party intending to change at-will status of employee.
7. Master and Servant.
Although designation of employee as temporary, probationary, or permanent should be considered as one factor in determining
whether employee is employee at will, this designation standing alone is insufficient to change presumption in favor of at-will
employment.
8. Master and Servant.
Employee's subjective expectation of long-term employment does not alter employee's at-will status; evidence to establish implied
or express contract between employee and employer must be presented to support assertion that employee can only be fired for cause
and to overcome rebuttable presumption of at-will employment.
9. Master and Servant.
Establishing discipline procedure, in and of itself, does not transform affected employee from employee who may be terminated at
will to employee who may be terminated only for cause.
10. Master and Servant.
Finding that employee was not subject to employment at-will doctrine, but could be discharged only for cause, was supported by
statements in employer's written termination policy that "the days of termination at will or at whim are
gone," and by section of employee handbook which detailed progressive discipline procedure consisting of
warnings, probation, suspension, and dismissal.
108 Nev. 96, 98 (1992) Beales v. Hillhaven, Inc.
ments in employer's written termination policy that the days of termination at will or at whim are gone, and by section of employee
handbook which detailed progressive discipline procedure consisting of warnings, probation, suspension, and dismissal.
11. Master and Servant.
Based upon evidence that employee was terminated less than three weeks after she negotiated job performance goals with
employer, that employee was fifty-nine years old at time of discharge, that due to discharge employee was forced to withdraw deferred
income from her retirement fund at loss, that employee was receiving less retirement benefits than she would have had she remained
employed until she was sixty-five years old, and that salary of new employee hired to replace employee was substantially less than
salary which employee had received, jury could have found that employer's established termination procedure was not followed or that
employee was terminated for reasons other than those specifically stated by employer, and in either case employee was entitled to
recover for wrongful discharge.
OPINION
By the Court, Mowbray, C. J.:
Norma Beales, sixty-two years old at the time of trial, was first hired at the Reno
Convalescent Center (RCC) on April 27, 1971, as office manager. Beales was hired, pursuant
to an employee handbook, as a permanent employee, subject to a ninety-day probationary
period. With respect to this matter, RCC and respondent Hillhaven, Inc. are the same entity.
To avoid confusion, Hillhaven will be used exclusively below.
On February 23, 1972, Beales became the acting administrator. After passing the state
licensing examination, Beales became the actual full administrator of Hillhaven, in which
position she remained until her termination of employment on June 16, 1986.
Alan Oppenheim became the district director of the Nevada District, and Beales'
immediate supervisor, on January 15, 1986. Beales reported directly to Oppenheim and
Oppenheim reported to Gary McGuire, the director of operations. Oppenheim testified that,
when he first became district director, McGuire told him that Hillhaven was having problems
with nursing hours per patient day and accounts receivable figures.
As the administrator of Hillhaven, Beales was responsible for keeping nursing hours per
patient day under 2.75 hours and the aged accounts receivable to under five percent. On
February 12, 1986, Oppenheim wrote Beales a memorandum critical of her handling of
nursing hours per patient day and accounts receivable. On March 5, 1986, Oppenheim sent
another critical memorandum to Beales regarding communication and management problems.
108 Nev. 96, 99 (1992) Beales v. Hillhaven, Inc.
On April 14, 1986, Oppenheim wrote two memoranda to Beales placing her on probation
and setting forth requirements as to accounts receivable and nursing hours per patient day.
During this same time period, in mid-April and early May, Beales received letters from Ed
Laskey (vice-president of operations), Oppenheim, and Neil Elliot (president, convalescent
division) congratulating her for fifteen years of dedicated service. Elliot's letter stated that the
residents are especially appreciative of her efforts because the continuity of a stable staff
means so much to them. In the beginning of May, Beales attended the monthly meeting of
administrators where she received a fifteen-year diamond pin and congratulations for her
services as a long-standing and loyal employee.
On May 7, 1986, Oppenheim wrote Beales a memorandum stating that although nursing
hours spent per patient day showed improvement, they remained short of the facility
objective. The memorandum extended the probationary period through May 31, 1986.
Each fiscal year the administrator and Hillhaven's management would agree on
performance objectives and state them in a Management Objective Form (MBO). Beales
negotiated the yearly MBO with Oppenheim (for fiscal year 86/87June 1, 1986, to May 31,
1987) and Oppenheim signed off on it on May 6, 1986. As to the accounts receivable, the
MBO stated that Hillhaven would attain 60 day receivable outstanding to $5,000.00 by 8/86
and maintain thereafter at fiscal year 1985-86 levels. On May 27, 1986, Beales and
Oppenheim renegotiated a new MBO forecast for 1986-87 in which the accounts receivable
goal and the goal for nursing hours per patient day were lowered. Oppenheim testified at trial
that the reason both the accounts receivable and nursing hours per patient day levels were
lowered in the second MBO was that McGuire felt that was totally unachieveable [sic] for
the history of Reno and he increased that percentage to help the facility make it more
realistic.
Mike Jacobs, the prior district director, testified that he considered the MBO a binding
agreement between himself and the administrator, and that it was part of the employment
contract. Jacobs further testified that, in his opinion, Beales followed established practice and
procedure and was aware of her accounts receivable and made an effort to collect them. In
apparent contradiction, Oppenheim testified that MBOs are not part of the contract for
performance, but rather guidelines.
On June 16, 1986, Oppenheim told Beales that she was to be terminated. He told her that
since she had been a good long-term employee, she could resign. Beales telephoned her
attorney and then turned in a written resignation.
108 Nev. 96, 100 (1992) Beales v. Hillhaven, Inc.
then turned in a written resignation. Subsequently, the jury would find that the resignation
was involuntary and of no legal effect.
About three months after Beales left Hillhaven, she obtained a position as a nursing home
administrator with ARA Convalescent in California for $36,000.00 per year. Beales left this
job because the facility burned down. On December 1, 1987, Beales took a position at the
Riverside Nursing Home (Riverside) in Reno. Beales had a written contract for $40,000.00
per year, which contained a provision for termination by either party with fifteen days notice.
The owner of Riverside terminated the contract on January 29, 1988.
Approximately three months later, Beales went to work as an administrator of the Mission
Terrace Nursing Home in Santa Barbara, California, at a salary of $50,000.00 per year. Soon
thereafter, however, she left Mission Terrace. According to Beales, she left after witnessing
numerous violations of patient and employee rights. Beales returned to Reno and sought
employment in her field until the trial of this action in 1989. She was unable to find
employment.
Eventually, Ms. Beales had her day in court. Both the facts recited above and substantial
additional evidence were presented at trial. The jury concluded that Ms. Beales had been
wronged and awarded her $32,821.42 in past damages and $208,476.00 in future damages.
The future damage award was considerably less than the maximum figure of $315,791.00
calculated by Dr. Cargill, an expert witness for Beales.
[Headnote 1]
Beales' contention on appeal is that the district court erred when it granted Hillhaven's
NRCP 41(b) motion to dismiss her bad faith discharge tort. See Bates v. Cottonwood Cove
Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968). Beales argues that her contract allowed
discharge only for dishonest or unethical conduct, and that her discharge for poor
performance gave rise to a bad faith tort.
1
See K Mart Corp. v. Ponsock, 103 Nev. 39, 49,
732 P.2d 1364, 1370 (1987).
Beales' argument lacks merit. We have previously restricted the bad faith discharge tort to
those rare and exceptional cases that the duty is of such a nature as to give rise to tort
liability. Id. at 49, 732 P.2d at 1370. See also Western States Minerals v. Jones, 107 Nev.
116, 819 P.2d 206 (1991). We cannot conclude that the facts of the present case are so
exceptional as to give rise to a bad faith discharge tort.
__________
1
Respondent's personnel manual contained no provision for discharge for job performance; it included only
a provision for discharge for cause with cause being defined as dishonest or unethical behavior.
108 Nev. 96, 101 (1992) Beales v. Hillhaven, Inc.
Hillhaven raises several issues by way of cross-appeal. Hillhaven's first contention is that
the jury was inadequately instructed as to the duty to mitigate damages.
[Headnotes 2, 3]
The usual damage formula in wrongful discharge cases is that the employee is entitled to
recover the present value of the difference, over the term of the contract, between the
agreed-upon wages and the amount which the employee could have earned if he had, with
reasonable diligence, searched for similar employment. 22 Am.Jur.2d Damages 111
(1988). In the present case, the trial court offered the following instruction to the jury:
The Plaintiff has a duty to mitigate her damages, that is an affirmative burden to act
in a manner that minimizes her damages. This includes the seeking and acceptance of
alternate employment for the period covered by the agreement.
Hillhaven contends that the above instruction was insufficient to properly instruct the jury
regarding Beales' duty to maintain comparable subsequent employment.
2
We disagree. We
conclude that the trial court's instruction adequately apprised the jury of Beales' duty to seek
and maintain subsequent employment.
[Headnote 4]
Hillhaven also contends that the district court erred in refusing to grant a new trial due to
juror misconduct. Specifically, Hillhaven cites the presence of a text entitled Fear of Firing
in the jury room. The text at issue was consulted solely by one juror whom the judge
disqualified and dismissed from the case. The court determined that the remaining jurors
were not prejudiced. We find no indication that the trial court abused its discretion in finding
no prejudice; therefore, denial of the motion for new trial motion was proper. See Stackiewicz
v. Nissan Motor Corp., 100 Nev. 443, 452, 686 P.2d 925, 931 (1984) (question of prejudice is
a question of fact for the trial court and will not be disturbed on appeal absent an abuse of
discretion).
[Headnote 5]
Hillhaven claims that there was insufficient evidence presented at trial to support the
award of future damages, and the dissent echoes this point.
__________
2
Respondent requested the following additional paragraph for clarification:
This also includes an obligation to maintain subsequent employment. Thus, if you find that plaintiff
either voluntarily quit suitable employment or was terminated for cause from her subsequent
employment, the earnings she would have earned from those subsequent jobs had they continued should
also be deducted from her claim for lost wages and benefits.
108 Nev. 96, 102 (1992) Beales v. Hillhaven, Inc.
echoes this point. The jury was instructed that Beales had the obligation to mitigate her
damages by seeking other employment. She testified she could not find employment in her
field once she returned to Reno in 1988. Apparently, the jury believed her. Dr. Cargill, Beales'
economist, made a series of projections concerning Beales' future economic loss which
included two principal variables: the chances of her finding comparable work in the Reno
area (with a pessimistic calculation of a twenty-five percent chance of finding employment
and an optimistic one of seventy-five percent) and whether she would work to age sixty-five
or seventy. The series of calculations ranged from a minimum wage loss of $49,152.00 to a
maximum of $315,791.00. Therefore, once the jury found that she was entitled to future
damages, it was entitled to weight the variables and award Beales the appropriate amount. Its
verdict of $208,476.00 in future damages was well within the parameters set by Dr. Cargill.
[Headnotes 6, 7]
Finally, Hillhaven contends that the evidence was insufficient to establish an employment
contract that provided that she could only be fired for cause. According to the terms of
Hillhaven's handbook, all employees are designated as permanent employees once they have
successfully completed the probationary period. But designation of an employee as a
permanent employee in and of itself and without further definition does not mean that the
employee status has been changed from at will. Permanent could be used to distinguish
from a temporary or probationary employee with no intent of either party to change the at will
status of an employee. See Smith v. Cladianos, 104 Nev. 67, 752 P.2d 233 (1988). Although
the designation of an employee (i.e., temporary, probationary, permanent) should be
considered as one fact in determining if the employee is something other than at will, this
designation standing alone is insufficient to change the presumption of at will employment.
Likewise, Beales' subjective expectation of long-term employment does not alter her at
will status. Vancheri v. GNLV Corp., 105 Nev. 417, 777 P.2d 366 (1989). Evidence to
establish an implied or express contract between employee and employer must be presented
to support the assertion that an employee can only be fired for cause and to overcome the
rebuttable presumption of at will employment.
[Headnotes 9, 10]
Nevertheless, this case does contain sufficient evidence in Hillhaven's employee handbook
and termination policy guidelines to support Beales' claim that she was a for cause employee.
The termination policy describes three categories of termination: resignation, termination
for cause and layoffs.
108 Nev. 96, 103 (1992) Beales v. Hillhaven, Inc.
resignation, termination for cause and layoffs. It further states that termination must be
carefully and professionally handled and that the days of termination at will' or at whim'
are gone. The handbook set up a progressive discipline procedure consisting of warnings,
probation, suspension and dismissal. Establishing such a discipline procedure, in and of itself,
does not change the employee's status from at will to for cause. Id. at 422, 777 P.2d at 369.
But when this written for cause discipline procedure is coupled with Hillhaven's termination
policy and Beales' testimony, a jury could reasonably conclude that the entire dismissal
procedure was referring to for cause employees, one of whom was Beales.
[Headnote 11]
Having concluded that there was sufficient objective evidence upon which to base the
jury's determination that Beales was a for cause employee, we must then determine if the
contractual procedures afforded a for cause employee at Hillhaven were adhered to in this
case.
3
Ample evidence was presented from which the jury could conclude that the
termination procedure was not followed or that Beales was terminated for reasons other than
those specifically stated. She was terminated less than three weeks after the MBO had been
revised to reflect more realistic goals, and this short period provided insufficient time for
either adequate performance feedback or improvement. Beales was fifty-nine years old at the
time of her discharge. Because of her termination, Beales was forced to withdraw the deferred
income from her retirement fund early and at a loss. She is consequently receiving less
retirement now than she would have if she had remained an employee of Hillhaven until she
was sixty-five years old. Furthermore, the salary of the employee hired to replace Beales was
$30,000.00; Beales was receiving $36,729.00 when she was terminated, in addition to
benefits for her disabled husband. Hillhaven saved a substantial amount of money by
terminating Beales, and the jury could have reasonably concluded that this was the real reason
behind termination.
All remaining contentions are meritless. Accordingly, we affirm the judgment of the
district court.
Springer and Rose, JJ., concur.
Young, J., with whom Steffen, J. joins, concurring in part and dissenting in part: I concur
generally with the court's conclusion that appellant's and cross-appellant's arguments on
appeal are without merit.
__________
3
Termination policy for performance-based termination requires: (1) providing adequate performance
feedback to the employee; (2) insuring that the employee has had adequate training to succeed; and (3) allowing
the employee sufficient time for improvement.
108 Nev. 96, 104 (1992) Beales v. Hillhaven, Inc.
I concur generally with the court's conclusion that appellant's and cross-appellant's
arguments on appeal are without merit. I dissent, however, from the majority's affirmance of
the award of future damages.
The jury awarded appellant $208,476.00 in future damages. We have previously held that
an appellant court will disallow or reduce the award if its judicial conscience is shocked;
otherwise it will not. Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824, 829 (1962). I am
troubled by the award of future damages in this case and particularly in view of the assertion
by respondent that appellant had begun working for a nursing home shortly after trial.
After leaving her position at Hillhaven, appellant had three jobs in the span of
approximately two and one-half years. The first position paid a salary comparable to what she
was earning at Hillhaven. Her next position paid approximately $3,000.00 per year more than
her salary at Hillhaven. Appellant's third position paid $50,000.00 per yearan annual
increase of more than $13,000.00 above her salary at Hillhaven. These facts alone suggest
that appellant was indeed capable of finding employment after her termination from
Hillhaven. Appellant's own expert witness testified at trial that, if appellant had been
employed at the time of trial, the measure of future damages would be zero. To award her
$208,476.00 in future damages, given these facts, seems to me to make Hillhaven the
indefinite insurer of appellant's employment, even after the age of sixty-five when most
employees retire.
Furthermore, after trial, Hillhaven moved to reopen discovery on the issue of future
damages and alleged that appellant had begun working for a nursing home almost
immediately after trial. In response, although appellant denied that she had begun working
the week after trial, appellant did not deny that she had begun working.
Appellant was fifty-nine years old when she was terminated by Hillhaven and sixty-two
years old at time of trial. She testified that nothing in her health would prevent her from
working to or beyond the age of seventy. She received $32,821.42 for compensatory damages
up to the time of trial. Presumably, the jury took into consideration the money earned by her
during the two and one-half years after termination and before trial. Her annual salary when at
Hillhaven was $36,729.00. The record does not reflect the net salary after taxes. It seems
questionable to affirm a future damages award equivalent to almost six years of her gross
salary at Hillhaven when appellant had obtained three comparable jobs after her Hillhaven
employment ended and was employed again shortly after trial. Under the circumstances, I
believe that respondent should have been able to determine when appellant was employed
and whether this employment was a reasonable prospect at the time of trial.
108 Nev. 96, 105 (1992) Beales v. Hillhaven, Inc.
respondent should have been able to determine when appellant was employed and whether
this employment was a reasonable prospect at the time of trial. I therefore dissent.
____________
108 Nev. 105, 105 (1992) Bulbman, Inc. v. Nevada Bell
BULBMAN, INC., Appellant/Cross-Respondent, v. NEVADA BELL,
Respondent/Cross-Appellant.
No. 21733
January 24, 1992 825 P.2d 588
Appeal and cross-appeal from orders of the district court partially granting respondent's
motion for summary judgment and entering final judgment.
1
Second Judicial District Court,
Washoe County; Charles M. McGee, Judge.
Customer of telephone company which purchased telephone system for his business sued
company alleging breach of contract, breach of warranty, and intentional misrepresentation.
The district court partially granted telephone company's motion for summary judgment
determining that tariff limitation on liability was valid and enforceable. Customer appealed.
The supreme court held that: (1) tariff limitation of liability applied to telephone system
purchased by customer; (2) tariff limitation of liability precluded customer's breach of
contract and breach of warranty claims; (3) tariff's liability protection did not extend to fraud
claims; and (4) customer failed to establish fraudulent intent on part of company or
inducement as result of alleged misrepresentations by company so as to be entitled to recover
on grounds of fraud.
Affirmed.
Kevin J. Mirch, Reno, for Appellant/Cross-Respondent.
Woodburn, Wedge & Jeppson and Shawn B. Meador and Suellen Fulstone, Reno, for
Respondent/Cross-Appellant.
1. Telecommunications.
Tariff limitation on liability was defense to customer's breach of contract and breach of warranty claims against telephone
company arising out of purchase of telephone system for business; exemption of telephone system from tariff regulation as to pricing
did not remove system from coverage of tariff's liability limitation. NRS 704.040, subd. 3.
__________
1
After the trial court entered its final judgment, Nevada Bell moved for an award of attorney's fees. The trial
court denied the motion, and Nevada Bell appealed this denial. In its appellate brief, however, Nevada Bell
abandons this appeal.
108 Nev. 105, 106 (1992) Bulbman, Inc. v. Nevada Bell
2. Telecommunications.
Tariff liability limitation did not apply to customer's fraud claim against telephone company alleging that company made
intentional misrepresentations as to cost and installation time, reliability and performance of telephone system purchased for customer's
business.
3. Fraud.
Telephone company's representations to customer about cost of telephone system and installation time were estimates and opinions
based on past experience with system, and thus, representations were not actionable in fraud.
4. Fraud.
Telephone company's representations as to reliability and performance of telephone system purchased by customer constituted
mere commendatory sales talk about product, i.e., puffing, and were not actionable in fraud.
5. Fraud.
Testimony of customer that he did not believe telephone company had intentionally lied to him about its telephone system but
rather that company might have been more careful in making representations about system, particularly with respect to how long it
would take to install system, established absence of fraudulent intent on part of telephone company.
6. Fraud.
Mere failure to fulfill promise or perform in future will not give rise to fraud claim absent evidence that promissor had no intention
to perform at time promise was made.
OPINION
Per Curiam:
THE FACTS
Appellant Bulbman, Inc. (Bulbman) is a Reno, Nevada, company that markets and
distributes light bulbs. Bulbman's business is primarily conducted through telephone and mail
orders. Respondent Nevada Bell (Nevada Bell) is a regulated public utility engaged in the
business of providing business and residential telephone services. Nevada Bell is governed by
tariffs promulgated and approved by the Nevada Public Service Commission. These tariffs
include Tariff No. A2, which limits Nevada Bell's liability arising out of or in any way
connected with any defect, error, omission, delay, interruption, suspension or other failure in
connection with furnishing service or facilities . . . .
In 1986, Bulbman concluded that its existing telephone system could not handle the
volume of calls being placed and that no more phone lines could be added to that system. As
a result, Gerald Roth, Jr. (Roth), a managerial employee of Bulbman and son of the
company's owner, contacted Bill McDonald (McDonald), an independent telephone
consultant, for advice on how best to expand Bulbman's telephone system.
108 Nev. 105, 107 (1992) Bulbman, Inc. v. Nevada Bell
how best to expand Bulbman's telephone system. After examining several expansion
alternatives, McDonald recommended the Centrex system, and Bulbman accepted this
recommendation.
Having made the decision to go with Centrex, Roth contacted Nevada Bell and was
referred to Nevada Bell salesman David Dehls (Dehls). According to Bulbman, Dehls stated
that the system took only thirty minutes to install and made additional representations
concerning the system's cost, performance and reliability. Bulbman also alleges that Dehls
failed to disclose problems in the Centrex system that were known to Nevada Bell.
On October 14, 1986, a Centrex system was installed at Bulbman's place of business. In
their affidavits, three Nevada Bell employees responsible for installing the system stated that
the actual cut-over took less than thirty minutes to complete. Bulbman contends that the
installation was not completed in thirty minutes because the system was not properly
operating after this thirty minute period.
Additional problems plagued Bulbman's Centrex system for several days after it was
installed. At one point, at least twenty percent of Bulbman's incoming 800 (WATS) line
calls were not being received. Not until October 21, 1986, one week after Nevada Bell
installed Bulbman's systemdid the system operate properly.
Bulbman filed suit against Nevada Bell, alleging (1) breach of contract, (2) breach of
warranty, and (3) intentional misrepresentation (fraud). Nevada Bell subsequently moved for
summary judgment, seeking to invoke Tariff No. A2 as a defense to Bulbman's breach of
contract and breach of warranty claims and to dismiss the fraud claim for lack of triable
issues of material fact. The trial court partially granted Nevada Bell's motion, determining
that the tariff limitation on liability was valid and enforceable and that there was no basis for
the claim in fraud, and ordered the parties to appear for a hearing on the issue of damages.
Prior to this hearing, the parties stipulated to damages of $1,000.00 and on June 4, 1990, the
trial court entered final judgment. Bulbman appeals both the final judgment and the order
partially granting summary judgment.
DISCUSSION
I. NEVADA BELL'S LIMITED LIABILITY.
[Headnote 1]
Bulbman contends that Tariff No. A2's limitation on liability does not apply to Nevada
Bell's Centrex system because the system is a competitive product. In support of this
contention, Bulbman cites the March 1988, decision of the Nevada Public Service
Commission {Docket S7-371) exempting the system from tariff regulation.
108 Nev. 105, 108 (1992) Bulbman, Inc. v. Nevada Bell
Service Commission (Docket 87-371) exempting the system from tariff regulation. This
argument lacks merit.
First, Bulbman purchased and installed Centrex in October of 1986 and Nevada Bell did
not apply to the Public Service Commission to have its Centrex product exempted from tariff
until March of 1987. It was not until March of 1988 that the Public Service Commission
entered its order directing that Nevada Bell's Centrex be exempted from tariff. Thus, when
Bulbman purchased and installed its Centrex system, Nevada Bell operated under the Public
Service Commission's tariffs, including Tariff No. A2.
Furthermore, Bulbman misunderstands the exemption from tariff granted Nevada Bell in
March of 1988. Under NRS 704.040(3), the Public Service Commission is authorized to
exempt to the extent it deems reasonable any services of a telecommunication or public
utility from any or all of the provisions [governing the regulation of public utilities] upon a
determination that the services are competitive and that further regulation is unnecessary.
Pursuant to this statute, the Public Service Commission exempted Nevada Bell's Centrex
from tariff regulation as to pricing so as to allow Centrex to compete in a competitive market.
The Public Service Commission did not remove the system from the coverage of Tariff No.
A2. Tariff No. A9, which describes the tariff exemption granted to Nevada Bell in March of
1988, expressly states that Tariff No. A2 is incorporated by reference as applicable to the
provisioning of those services [Centrex] exempt from tariff by Docket 87-371.
[Headnote 2]
We hold that Tariff No. A2's liability limitation applies to the Centrex system purchased
by Bulbman.
Tariff No. A2 provides in relevant part:
The liability, if any, of the Utility arising out of or in any way connected with any
defect, error, omission, delay, interruption, suspension or other failure in connection
with furnishing service or facilities shall, unless otherwise provided in the tariff
schedules, be in an amount not in excess of the charge for the service or facility
involved for the period during which the defect, error, omission, delay, interruption,
suspension or other failure continues.
The trial court found this tariff to be valid and enforceable as to Bulbman's breach of
warranty and breach of contract claims. In doing so, the trial court adopted the position held
by most jurisdictions; namely, upholding validly promulgated provisions of Public Service
Commission tariffs and holding that the liability limitations contained in such tariffs apply to
claims for simple negligence and breach of contract. See, e.g., Waters v. Pacific Telephone
Company, 523 P.2d 1161 {Cal.
108 Nev. 105, 109 (1992) Bulbman, Inc. v. Nevada Bell
negligence and breach of contract. See, e.g., Waters v. Pacific Telephone Company, 523 P.2d
1161 (Cal. 1974). Also consistent with this majority view is the trial court's conclusion that
tariff liability protection should not be accorded to willful, wanton conduct or gross
negligence. Thus Tariff No. A2 does not apply to Bulbman's fraud claim, and Nevada Bell
concedes as much.
Confronting this issue for the first time, we concur in the trial court's decision. As Nevada
Bell observes, absent liability limitations such as that contained in Tariff No. A2, the broad
liability exposure faced by utilities would create tremendous upward pressure on utility
service rates. For example, although Bulbman's claim concerns a minor defect in telephone
equipment, Bulbman claims to have suffered over $730,000 in damages from the disruption
in its telephone service. Defects and disruptions are inevitable when providing service to
hundreds of thousands of customers. If Nevada Bell were to be found liable for similar
business losses arising out of every telephone disruption, the potential liability would be
enormous. As a result, utilities would be forced to raise rates to cover the increased costs of
providing service.
In Waters, the plaintiff claimed that Pacific Telephone had, among other things,
improperly installed the telephone system, furnished inadequate telephone service, removed
phones without authorization and failed to provide maintenance. The plaintiff sought an
award of damages in the amount of $750,000. Id. at 1163. In affirming summary judgment in
favor of Pacific Telephone, the California Supreme Court held that the public service
commission has broad supervisory and regulatory powers, that the limitation of liability is a
proper subject of regulation and supervision and that the commission had properly approved
the liability limiting tariff. Id. at 1163-1167. In explaining the public policy considerations
that support enforcement of liability limiting tariffs, the court stated:
The theory underlying [enforcement of liability limitations] is that a public utility, being
strictly regulated in all operations with considerable curtailment of its rights and
privileges, shall likewise be regulated and limited as to its liabilities. In consideration of
its being peculiarly the subject of state control, its liability is and should be defined and
limited.' [citation omitted]. There is nothing harsh or inequitable in upholding such a
limitation of liability when it is thus considered that the rates as fixed by the
commission are established with the rule of limitation in mind. Reasonable rates are in
part dependent upon such a rule.
Id. at 1164 (quoting Cole v. Pacific Tel. & Tel. Co., 246 P.2d 686, 688 (1952)). We find the
Waters rationale persuasive and therefore affirm the trial court's endorsement of this
majority view.2
108 Nev. 105, 110 (1992) Bulbman, Inc. v. Nevada Bell
therefore affirm the trial court's endorsement of this majority view.
2
II. BULBMAN'S CLAIM IN FRAUD.
[Headnote 3]
Under NRCP 56(c), summary judgment should only be granted when there are no genuine
issues of material fact and one party is entitled to judgment as a matter of law. Wiltsie v.
Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). A genuine issue of material
fact exists 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, 1279 (1989)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
Orders granting summary judgment are reviewed 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
any genuine issues of material fact were created by the pleadings and proof offered below. Id.
While the pleadings and proof offered below must be construed in the light most favorable to
the non-moving party, Hoopes v. Hammergren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986),
the non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating
the existence of a genuine issue for trial or have summary judgment entered against him.
Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 294, 662 P.2d 610, 618-619 (1983). The
non-moving party is not entitled to build a case on the gossamer threads of whimsy,
speculation, and conjecture.' Id. at 302, 662 P.2d at 621 (quoting Hahn v. Sargent, 523 F.2d
461, 467 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976)).
In partially granting Nevada Bell's motion for summary judgment, the trial court concluded
that Bulbman had failed to demonstrate the existence of any triable issue of material fact with
respect to Bulbman's fraud claim. In particular, the trial court determined that there is a
paucity of evidence . . . from which a court could infer any intention on the part of [Nevada
Bell] to deliberately cause harm or to deliberately deceive [Bulbman]. On appeal, Bulbman
contends that the district court erred in granting summary judgment as to its fraud claim. We
agree with the trial court.
A plaintiff has the burden of proving each element of fraud claim by clear and convincing
evidence.
__________
2
Tariff A9 requires that all investments, expenses and revenues associated with [Centrex] services be
retained within Nevada Bell's regulated rate base. Thus, Bulbman is wrong to assert that upholding Tariff A2's
liability limitation allows Nevada Bell to have its cake and eat it too.
108 Nev. 105, 111 (1992) Bulbman, Inc. v. Nevada Bell
claim by clear and convincing evidence. Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115 (1975).
These elements are:
1. A false representation made by the defendant;
2. Defendant's knowledge or belief that the representation is false (or insufficient basis for
making the representation);
3. Defendant's intention to induce the plaintiff to act or to refrain from acting in reliance
upon the misrepresentation;
4. Plaintiff's justifiable reliance upon the misrepresentation; and
5. Damage to the plaintiff resulting from such reliance.
Id. at 599, 540 P.2d at 117.
[Headnotes 4, 5]
Summary judgment as to the fraud claim is proper. First, Bulbman fails to raise a genuine
issue concerning whether Nevada Bell either knowingly made false representations or lacked
sufficient basis for making the representations. Nevada Bell's representations to Bulbman
about the cost of Centrex and the installation time are estimates and opinions based on past
experience with the system. As such, these representations are not actionable in fraud. See
Clark Sanitation v. Sun Valley Disposal, 87 Nev. 338, 487 P.2d 337 (1971). Nevada Bell's
representations as to the reliability and performance of the system constitute mere
commendatory sales talk about the product (puffing), also not actionable in fraud. See e.g.,
Coy v. Starling, 630 P.2d 1323 (Or.App. 1981). Furthermore, in his deposition, Gerald Roth,
Jr., testified that he did not believe Nevada Bell had intentionally lied to him about its
Centrex system. Rather, Roth stated that Nevada Bell might have been more careful in
making certain representations, particularly with respect to how long it would take to install a
Centrex system. Roth's testimony establishes the absence of fraudulent intent on the part of
Nevada Bell.
Bulbman also fails to demonstrate a triable issue concerning whether Bulbman was
induced to purchase Centrex by the alleged misrepresentations of Nevada Bell. The
deposition testimony indicates that Bulbman based its decision to purchase Centrex solely on
the advice of the independent telephone consultant retained by Bulbman.
[Headnote 6]
Where an essential element of a claim for relief is absent, the facts, disputed or otherwise,
as to other elements are rendered immaterial and summary judgment is proper. See Sims v.
General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991). Bulbman fails to
demonstrate triable issues of material fact as to the essential elements of a fraud claim. At
most, Bulbman's evidence presents a question of fact concerning the discrepancy between
what Nevada Bell promised and what Nevada Bell actually performed.
108 Nev. 105, 112 (1992) Bulbman, Inc. v. Nevada Bell
evidence presents a question of fact concerning the discrepancy between what Nevada Bell
promised and what Nevada Bell actually performed. The mere failure to fulfill a promise or
perform in the future, however, will not give rise to a fraud claim absent evidence that the
promisor had no intention to perform at the time the promise was made. Webb v. Clark, 546
P.2d 1078 (Or. 1976). This case involves a routine commercial transaction, a purchase and
sale of services. The intentional wrongful conduct required to convert a contract case into a
fraud case cannot be found here. Or, as the trial court commented, the evidence in this case
is simply not the stuff of an intentional tort sounding in fraud.
CONCLUSION
The trial court correctly concluded that the liability limitation contained in Nevada Public
Service Commission Tariff No. A2 applies to Bulbman's claims in negligence and breach of
contract but does not cover the claim of intentional wrongdoing. In so concluding, the trial
court followed a majority of neighboring jurisdictions. As to Bulbman's claim of intentional
misrepresentation, the trial court committed no error in finding no material issues of genuine
fact existed for trial. Among other things, there is no evidence that Nevada Bell harbored the
requisite fraudulent intent.
For the reasons specified above, the partial summary judgment entered by the district court
is affirmed.
____________
108 Nev. 112, 112 (1992) Dawson v. State
HENRY DANIEL DAWSON, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21799
January 24, 1992 825 P.2d 593
Appeal from an order of the district court denying appellant's petition for post-conviction
relief. Eighth Judicial District Court, Clark County; Earle W. White, Jr., Judge.
Defendant was convicted of first degree murder and sentenced to death. After remand for a
new penalty determination, 103 Nev. 76, 734 P.2d 221, defendant was again sentenced to
death, and sentence was affirmed, 104 Nev. 855, 809 P.2d 601. Defendant's petition for
post-conviction relief was denied by the district court and he appealed. The supreme court
held that: (1) trial counsel's failure to impeach murder victim's husband's testimony about
color of his car did not prejudice defendant; {2) jury instruction indicating that jury "may
impose a sentence of death" if it finds that aggravating circumstances outweigh
mitigating circumstances properly informed jury that death sentence was not
compulsory; and {3) trial counsel's alleged failure to conduct sufficient voir dire of jury
when State peremptorily challenged only potential black juror was not ineffective
assistance.
108 Nev. 112, 113 (1992) Dawson v. State
color of his car did not prejudice defendant; (2) jury instruction indicating that jury may
impose a sentence of death if it finds that aggravating circumstances outweigh mitigating
circumstances properly informed jury that death sentence was not compulsory; and (3) trial
counsel's alleged failure to conduct sufficient voir dire of jury when State peremptorily
challenged only potential black juror was not ineffective assistance.
Affirmed.
[Rehearing denied May 18, 1992]
Cherry & Bailus, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James
Tufteland, Chief Deputy District Attorney, and William P. Henry, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Even if trial counsel was deficient in failing to impeach murder victim's husband's testimony about color of his car, which
allegedly was burgundy, the same color as defendant's car, defendant was not prejudiced, and thus was not denied effective assistance
of counsel; police searched defendant's car and found button identified as having characteristics identical to remaining buttons on
victim's blouse. U.S.C.A.Const. amend. 6.
2. Criminal Law.
Failure of trial counsel to further investigate possible defense that another black man, who had previously thrown beer can hitting
murder victim in back after she had turned him down for a date, committed charged murder was based on trial strategy focusing on the
husband-did-it theory, and thus was not ineffective assistance of counsel. U.S.C.A.Const. amend. 6.
3. Criminal Law.
Supreme Court's previous ruling on direct appeal rejecting defendant's contention about discrepancy in his blood type negating
evidence that it was murder victim's blood in his car was law of case, and thus, supreme court would not address defendant's renewal of
argument about discrepancy on appeal from denial of post-conviction relief.
4. Homicide.
Jury instruction indicating that jury may impose a sentence of death if it finds that aggravating circumstances outweigh
mitigating circumstances properly informed jury in capital murder prosecution that death sentence was not compulsory, even if
aggravating circumstances outweighed mitigating circumstances. NRS 200.030, subd. 4.
5. Homicide.
Statutory aggravating circumstance for first degree murder that murder was committed when defendant was engaged in
committing or attempting to commit robbery, sexual assault, burglary, or other offenses does not require that the aggravating
circumstance also be committed to avoid lawful arrest or to effect an escape from custody; rather, murder to avoid lawful arrest or to
effect an escape from custody is separate circumstance by which first degree murder can be aggravated.
108 Nev. 112, 114 (1992) Dawson v. State
circumstance by which first degree murder can be aggravated. NRS 200.033, 200.033, subds. 4, 5.
6. Criminal Law.
Failure of trial counsel to move to exclude prostitute's testimony, as evidence of other crime, that on day of charged capital murder
she was followed by defendant to her apartment, that he pretended to be police officer and that he raped her, did not fall below
reasonableness standard, and thus was not ineffective assistance of counsel; prostitute's testimony was at preliminary hearing and she
was unavailable at trial, and trial court excised reference to rape. U.S.C.A.Const. amend. 6.
7. Criminal Law.
Trial court's admission of preliminary hearing testimony by prostitute that defendant had followed her to her apartment on day of
charged capital murder and stated that he was going to do the same thing to me he did with a girl at Caesar's Palace with a Coke can,
excising prostitute's reference to defendant's alleged rape of her, was not abuse of discretion; prostitute was subpoenaed to appear at
trial but nonetheless skipped town and was unavailable.
8. Criminal Law.
Trial counsel's failure to move for jury instruction on voluntariness of defendant's post-arrest statements did not fall below
reasonableness standard, and thus was not ineffective assistance; after arrest, defendant was read his Miranda rights, acknowledged he
understood those rights, signed card, and made statement, and detective testified to that statement. U.S.C.A.Const. amend. 6.
9. Criminal Law.
Trial counsel's alleged failure to conduct sufficient voir dire of jury when State peremptorily challenged only potential black juror
was not ineffective assistance of counsel, where at time of trial United States Supreme Court had not yet decided Batson.
U.S.C.A.Const. amend. 6.
10. Criminal Law.
Defendant's claim that he was victim of discrimination and that his counsel was ineffective for not preventing State from imposing
death sentence because he was black and victim was white was not supported by record; defendant offered no evidence that death
sentence was given in discriminatory way or in manner that transgressed any of his constitutional rights. U.S.C.A.Const. amend. 6.
11. Homicide.
Information charging defendant with killing victim with malice aforethought, which information had heading indicating that
murder was with use of deadly weapon, was sufficient to apprise defendant of facts on which State based murder charge, and thereafter
it was jury's duty to assign degree of murder. NRS 179.375, 193.165, 200.010, 200.030.
OPINION
Per Curiam:
Appellant Henry Daniel Dawson (Dawson) was convicted of first degree murder and
sentenced to death. We affirmed the conviction and remanded for a new penalty
determination. See Dawson v. State, 103 Nev. 76, 734 P.2d 221 (1987). After his second
penalty hearing, Dawson was sentenced to death, and we affirmed the sentence.
108 Nev. 112, 115 (1992) Dawson v. State
affirmed the sentence. See Dawson v. State, Docket No. 18558, Order Dismissing Appeal,
October 21, 1988. Dawson filed a proper person petition for post-conviction relief, alleging
that he had received ineffective assistance of counsel and requesting the appointment of
counsel. The district court denied the request for counsel and dismissed the petition. We
directed the district court to hold an evidentiary hearing to resolve the factual issues raised in
Dawson's petition and to appoint counsel to represent him during those proceedings. See
Dawson v. State, Docket No. 20440, Order of Remand, November 17, 1989. After an
evidentiary hearing, the district court denied Dawson's petition for post-conviction relief. We
conclude that none of Dawson's claims of ineffective assistance of counsel warrant relief. We
therefore affirm the district court.
Discussion
Claims of ineffective assistance of counsel are reviewed under the reasonably effective
assistance standard articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See Bejarano v. State, 106 Nev. 840, 842, 801 P.2d 1388,
1389 (1990). This standard requires the defendant to show that counsel's assistance was
deficient and, secondly, that the deficient assistance prejudiced the defense. Strickland,
466 U.S. at 687.
More particularly, deficient assistance requires a showing that counsel's representation
fell below an objective standard of reasonableness. Id. at 688. In order to eliminate the
distorting effects of hindsight, courts indulge in a strong presumption that counsel's
representation falls within the broad range of reasonable assistance. If the defendant shows
that counsel's performance was deficient, the defendant must show that, but for counsel's
errors, the result of the trial would probably have been different. Id. at 694; Davis v. State of
Nevada, 107 Nev. 600, 601, 602, 817 P.2d 1169, 1170 (1991).
We now address, based on the above standards, the various claims of ineffective assistance
of counsel.
Failure to properly impeach Shepard's husband.
[Headnote 1]
On March 7, 1985, the body of Leslie Shepard (Shepard) was found behind Caesar's
Palace. She was almost nude and had been bludgeoned to death by a soft-drink canister. At
approximately 5:50 a.m. that morning, Shepard reported to work at a Stop 'N' Go market. She
disappeared shortly thereafter. At trial, Shepard's husband testified that he fought with his
wife the night before her death, and that after their fight, he went "bar hopping" with a
friend.
108 Nev. 112, 116 (1992) Dawson v. State
before her death, and that after their fight, he went bar hopping with a friend. He further
testified that he had physically injured Shepard several times during their marriage. Dawson's
counsel attempted to paint Shepard's husband as the murderer.
Dawson first contends that his counsel failed to properly impeach Shepard's husband as to
his heavy substance abuse and his propensity for violence based on his criminal history. The
record, however, reveals that Dawson makes unfounded statements about the husband's
substance abuse and that Mr. Shepard's criminal history (arrest reports) does not show a
propensity for violence.
1
Dawson secondly contends that his counsel failed to properly impeach Shepard's husband
when Mr. Shepard testified that his car was red. Dawson asserts that the police report
indicates that Mr. Shepard's car was burgundy, the same color as Dawson's car. At the
evidentiary hearing, however, Dawson stated his car was not burgundy but was a
white-over-maroon, 1971 two-door Lincoln Continental.
Even if counsel's failure to impeach Mr. Shepard's testimony about the color of his car
constitutes deficient performance, the overwhelming evidence in this case undermines any
showing by Dawson that he was prejudiced by such deficient performance. A trial witness
who knew Dawson placed him at the scene of the abduction around the time Shepard
disappeared. According to that testimony, Dawson was driving alone in his car as he pulled
into the Stop 'N' Go market. He pulled up to the gas booth which Shepard tended, stopped for
about five minutes, and drove away with a white passenger who had brownish,
shoulder-length hair and wore a blue shirt. Pictures of Shepard's body were introduced at trial.
Shepard was also identified as a white female with brownish-blond, shoulder-length hair.
Shepard wore a blue Stop 'N' Go shirt as part of her work uniform. After leaving the Stop 'N'
Go market, Dawson ran a red light and headed toward the back of Caesar's Palace. Another
witness, an employee of Caesar's Palace, testified at trial that she saw a two-toned car
speeding away from the back of Caesar's Palace at approximately the same time that Shepard
was killed.
Furthermore, the police searched Dawson's car and found two buttons, a small piece of
belt and some hair samples. A witness identified one of the buttons as having characteristics
identical to the remaining buttons on Shepard's blouse. The belt was identified as part of
Shepard's belt. The hair samples had similar characteristics as hair samples taken from
Shepard's body.
__________
1
The record indicates that Shepard's husband had been arrested for burglary and driving under the influence
of alcohol. However, the burglary charge was dismissed because there was insufficient evidence.
108 Nev. 112, 117 (1992) Dawson v. State
characteristics as hair samples taken from Shepard's body. Hence, we conclude that Dawson
has failed to show that he was prejudiced by counsel's failure to impeach Mr. Shepard when
he testified about the color of his car.
Accordingly, these impeachment contentions fail the standards set forth in Strickland.
Failure to conduct a proper investigation.
[Headnotes 2, 3]
Dawson next argues that his counsel failed to conduct a proper investigation into a
plausible line of defense, namely, that another black man named Warren Cowart murdered
Shepard. He contends that the charge against appellant was a case of mistaken identity.
Dawson's support for this argument is that approximately one month before Shepard's death,
Cowart asked Shepard out on a date. She declined. He got angry and threw a beer can which
hit her in the back. He later pled guilty to misdemeanor assault charges. At the evidentiary
hearing, counsel noted that he was aware of this altercation, but that his trial strategy
nevertheless focused on the husband-did-it theory. After review of the record, we conclude
that counsel conducted a reasonable investigation into the Cowart incident and thereafter
reasonably pursued another line of defense. Strategic choices made by counsel after
thoroughly investigating the plausible options are almost unchallengeable. Strickland, 466
U.S. at 690. Accordingly, we find that counsel's performance did not fall below the
reasonableness standard enunciated in Strickland.
2
Failure to object to a jury instruction.
[Headnote 4]
Dawson contends that during the penalty phase of his trial, counsel failed to properly argue
that NRS 200.030(4)
3
does not mandate that the jury impose the death penalty, even
when aggravating circumstances outweigh mitigating circumstances.
__________
2
Dawson also renews an argument about a discrepancy in his blood type, negating evidence that it was
Shepard's blood on his car. This court has previously rejected this argument as meritless. See Dawson v. State,
Docket No. 18558, Order Dismissing Appeal, October 21, 1988. Therefore, this is the law of the case, and we
will not address this issue. Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975).
3
NRS 200.030(4) provides:
4. 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 possibility of parole. If the
penalty is fixed at life imprisonment with possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.
108 Nev. 112, 118 (1992) Dawson v. State
mandate that the jury impose the death penalty, even when aggravating circumstances
outweigh mitigating circumstances. He further argues that his counsel failed to point out that
Dawson was not required to establish any mitigating circumstance in order to receive a
sentence less than death.
The jury instruction which Dawson now contends should have been objected to at the
penalty hearing provided:
The jury may impose a sentence of death if it finds at least one aggravating
circumstance has been established beyond a reasonable doubt and further finds that
there are not mitigating circumstances sufficient to outweigh the aggravating
circumstances found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for
life with or without the possibility of parole.
(Emphasis added.)
Recently, we discussed this exact instruction and found that the word may is commonly
understood by reasonable jurors as a permissive word that does not mandate a particular
action. Riley v. State, 107 Nev. 205, 217, 808 P.2d 551, 558-59 (1991). Thus the jury was
properly informed that the imposition of the death sentence was not compulsory, even if
aggravating circumstances outweighed mitigating circumstances. Id; see also Bennett v.
State, 106 Nev. 135, 144 787 P.2d 797, 803 (1990) (Nevada's statute does not require the
jury to impose the death penalty under any circumstances, even when the aggravating
circumstances outweigh the mitigating circumstances.), cert. denied, 111 S.Ct. 307 (1991).
[Headnote 5]
Dawson also alleges that his counsel was ineffective for failing to object to the following
aggravating circumstances instruction on the ground that it was unconstitutionally overbroad:
You are instructed that the following factors are circumstances by which murder of the
first degree may be aggravated:
1. The murder was committed while the defendant was engaged in the commission of
or an attempt to commit or flight after committing or attempting to commit
Kidnapping in the First Degree.
2. The murder was committed while the defendant was engaged in the commission of
or an attempt to commit or flight after committing or attempting to commit sexual
assault.
(Emphasis added.) Dawson argues that without a further definition, this instruction merely
repeats a crucial element of the underlying offense.
108 Nev. 112, 119 (1992) Dawson v. State
underlying offense. He contends that this aggravating circumstance actually refers to killings
that occur when an individual attempts to fend off an actual arrest and flee custody.
Apparently, Dawson is arguing that NRS 200.033(4)
4
must be coupled with NRS 200.033(5)
5
; otherwise, any murder committed during the crimes enunciated in NRS 200.033(4) will
always be aggravated.
We conclude, however, that the instruction reflected a proper reading of NRS 200.033.
NRS 200.033(4) is a separate circumstance by which murder of the first degree may be
aggravated. There is no requirement that the aggravating circumstance in NRS 200.033(4)
must also be committed to avoid a lawful arrest or to effect an escape from custody. Instead,
NRS 200.033 provides that a murder to avoid lawful arrest or to effect an escape from
custody is, pursuant to NRS 200.033(5), a separate circumstance by which a first degree
murder can be aggravated.
Accordingly, counsel did not have adequate grounds to object to these jury instructions,
and, consequently, Dawson's claims in regard to these jury instructions do not meet the
Strickland test.
Failure to move to exclude the prostitute's testimony.
[Headnote 6]
Yvonne Jackson (Jackson), a Las Vegas prostitute, testified at a preliminary hearing that
on the day of Shepard's death, she was followed by Dawson to her apartment; he pretended to
be a police officer and raped her. Jackson was warned that if she did not testify, the State
would get a material witness warrant to compel her appearance. Jackson was thereafter
subpoenaed to appear at trial; nonetheless, she skipped town and was unavailable at trial. Her
preliminary hearing testimony was therefore read into evidence.
Dawson argues that counsel was ineffective because he failed to move to exclude
Jackson's testimony, as prejudicial reference to a prior criminal act, namely, that Dawson
raped Jackson. The district court, however, excised the reference to rape.6 In regards to
this argument, we therefore find that counsel's performance was within the
reasonableness standard of Strickland.
__________
4
NRS 200.033(4) provides that a first degree murder may be aggravated when:
4. 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 kidnaping 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.
5
NRS 200.033(5) provides that first degree murder may be aggravated when [t]he murder was committed
to avoid or prevent a lawful arrest or to effect an escape from custody.
108 Nev. 112, 120 (1992) Dawson v. State
district court, however, excised the reference to rape.
6
In regards to this argument, we
therefore find that counsel's performance was within the reasonableness standard of
Strickland.
[Headnote 7]
Dawson also argues that counsel was ineffective for failing to object to the admission of
Jackson's testimony based on the fact Dawson was denied the right to cross-examine Jackson.
The decision to admit preliminary hearing testimony after balancing the prejudicial effect
against its probative value is one addressed to the sound discretion of the trial court.
Passarelli v. State, 93 Nev. 292, 294, 564 P.2d 608, 610 (1977). We conclude that the district
court did not abuse its discretion in admitting Jackson's testimony with the reference to rape
excised. Accordingly, Dawson's claim fails under Strickland.
Failure to move to suppress Dawson's statements and for a jury instruction on the
voluntariness of those statements.
[Headnote 8]
Dawson argues that counsel was ineffective for failing to move to suppress Dawson's
statements which he made to the police at his apartment. Because this argument was
previously raised and rejected on appeal, Dawson, 103 Nev. at 78, n.1, 734 P.2d at 221, n.1, it
is the law of the case. Hall, 91 Nev. at 315, 535 P.2d at 797. We therefore will not address
this contention.
Dawson also argues that the statements he gave at his apartment and his post-arrest
statements required a voluntariness jury instruction. After Dawson was arrested, he was read
his Miranda rights, acknowledged he understood those rights, signed the Miranda card, and
made a statement. A detective testified as to that statement. An instruction regarding the
voluntariness of a suspect's statement need be given only when voluntariness is at issue.
Laursen v. State, 97 Nev. 568, 570, 634 P.2d 1230, 1231 (1981). Here, voluntariness was
never raised as an issue. Hence, with respect to this claim, Dawson fails to show that
counsel's performance fell below the reasonableness standard of Strickland.
Failure to argue that jury selection and the infliction of the death penalty were racially
motivated.
[Headnote 9]
Dawson contends that counsel failed to conduct sufficient voir dire of the jury when the
State allegedly preempted the only potential black juror in violation of Batson v.
Kentucky, 476 U.S. 79 {19S6).
__________
6
Only the following parts of Jackson's testimony were read into the record: Dawson came into her
apartment, pretended he was a police officer, and stated that he was going to do the same thing to me he did
with the girl at Caesar's Palace with a coke can.
108 Nev. 112, 121 (1992) Dawson v. State
dire of the jury when the State allegedly preempted the only potential black juror in violation
of Batson v. Kentucky, 476 U.S. 79 (1986). At the time of trial, the United States Supreme
Court had not yet decided Batson. Dawson cannot now claim that a failure to object under
Batson was ineffective assistance even before Batson was decided.
[Headnote 10]
Next, Dawson contends that he was the victim of discrimination and that his counsel was
ineffective for not preventing the State from imposing the death sentence because he was
black and the victim was white. A review of the record does not support Dawson's contention.
Dawson offered no evidence that the death sentence was given in a discriminatory way or in a
manner that transgresses any of his constitutional rights. See Williams v. State, 103 Nev. 227,
232, 737 P.2d 508, 511 (1987) (appellant offered no evidence to show Nevada's death penalty
was unconstitutionally inflicted upon indigents and minorities). Therefore, Dawson has failed
to show that counsel's performance fell below an objective level of reasonable assistance.
Failure to assert that the information did not apprise Dawson of the acts he allegedly
committed.
[Headnote 11]
Finally, appellant alleges that his counsel failed to assert, by pre-trial writ, that the
information did not comply with Nevada law in that it did not sufficiently inform appellant
that he faced the charges of murder, sexual assault, and kidnapping. We reject this contention.
We first note that at the preliminary hearing, the State attempted to amend the criminal
complaint by adding the charges of rape and kidnapping. The district court denied the
proposed amendment, and the information charged Dawson only with murder. Because
Dawson was not charged with sexual assault or kidnapping, we need only address this issue
as to the murder charge. The information provided in part:
Robert J. Miller, District Attorney within and for the County of Clark, State of
Nevada, in the name and by the authority of the State of Nevada, informs the Court:
That HENRY DANIEL DAWSON, JR., the Defendant above named, on or about
the 7th day of March 1985, at and within the County of Clark, State of Nevada, contrary
to form, force and effect of statutes in such cases made and provided, and against the
peace and dignity of the State of Nevada, did then and there, without authority of law
and with malice aforethought, wilfully and feloniously kill LESLIE GAIL SHEPARD,
a human being, by striking the said LESLIE GAIL SHEPARD about the head with a
deadly weapon, to wit: a soft drink canister.
108 Nev. 112, 122 (1992) Dawson v. State
LESLIE GAIL SHEPARD about the head with a deadly weapon, to wit: a soft drink
canister.
The information heading provided MURDER WITH USE OF A DEADLY WEAPON
(FelonyNRS 200.010, 200.030, 193.165).
Under our law, the information must specify the acts of criminal conduct. Sheriff v.
Standal, 95 Nev. 914, 916, 604 P.2d 111, 112 (1979). An information charging murder is
sufficient to charge murder in the first degree. Thedford v. Sheriff, Clark County, 86 Nev.
741, 745, 476 P.2d 25, 29 (1970). The information essentially followed the suggested form
set forth in NRS 179.375.
7
The information properly charged Dawson with murder; it
specifically explained the means by which Dawson allegedly killed Shepard, apprising him of
the facts on which the State based the murder charge. Thereafter, it was the jury's duty to
assign the degree of murder. Therefore, this claim of ineffective assistance of counsel fails
under the Strickland test.
All of Dawson's contentions having failed to meet the test for ineffective assistance of
counsel established in Strickland, we hereby affirm the order of the district court denying
Dawson's petition for post-conviction relief.
__________
7
NRS 179.375 provides:
Information: An information may be in substantially the following form:
INFORMATION
STATE OF NEVADA }
} ss.
COUNTY
------------------------------
}
In the
------------
court. The State of Nevada against A. B., C. D. district attorney within and for the
county of
----------------
in the state aforesaid, in the name and by the authority of the State of Nevada,
informs the court that A. B. on the
--------
day of
-----------------------
, A.D. 19
------
, at the county
of
--------------------
, did (here state offense) against the peace and dignity of the State of Nevada.
C.D., District Attorney
or C.D., District Attorney, by H.M., Deputy.
____________
108 Nev. 123, 123 (1992) SIIS v. Khweiss
STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the State of Nevada,
Appellant, v. EMAD KHWEISS, Respondent.
No. 22120
January 24, 1992 825 P.2d 218
Appeal from an order of the district court reversing the determination of an appeals officer
in a worker's compensation case. Eighth Judicial District Court, Clark County; Gerard J.
Bongiovanni, Judge.
Workers' compensation claimant filed claim for emergency out-of-state surgery on venous
malformation of claimant's shoulder. State Industrial Insurance System (SIIS) denied request
for compensation and appeal was taken. The district court reversed. SIIS appealed. The
supreme court held that finding that additional emergency surgery was unrelated to industrial
accident was supported by evidence that previous surgery had restored claimant's shoulder to
preaccident condition.
Reversed.
R. Scott Young, General Counsel, Carson City; Arleen N. Kaizer, Associate General
Counsel, Las Vegas, for Appellant.
H. Douglas Clark, Las Vegas, for Respondent.
1. Workers' Compensation.
Claimant may be entitled to workers' compensation benefits for out-of-state surgery, even without preauthorization, where insurer
fails to object and does not dispute that particular surgical procedure was reasonable and necessary medical treatment.
2. Administrative Law and Procedure.
Although district court may decide pure legal questions without deference to agency determination, agency's conclusions of law
which are closely related to agency's view of facts are entitled to deference and should not be disturbed if they are supported by
substantial evidence. NRS. 233B.010 et seq., 233B.135, subds. 1-3.
3. Workers' Compensation.
State Industrial Insurance System, after paying for surgery which restored claimant's shoulder to pre-accident condition, was not
responsible for later out-of-state emergency surgery for venous malformation; finding that emergency surgery was unrelated to
industrial accident was compelling evidence that claimant failed to meet his burden of showing that industrial injury aggravated
pre-existing condition. NRS 233B.010 et seq., 233B.135, subds. 1-3.
OPINION
Per Curiam:
Around 1981, Emad Khweiss had a tumor surgically removed from his right shoulder.
108 Nev. 123, 124 (1992) SIIS v. Khweiss
from his right shoulder. His physician advised him of its potential for regrowth. In July, 1985,
while working at the Marrakech Restaurant, Khweiss fell and injured the same shoulder.
Khweiss filed a claim for worker's compensation in August of 1985, which SIIS denied on
the ground that the agency could not substantiate his assertion that he was working on the
date of the injury. Khweiss appealed, and SIIS reversed as to this ground. However, because
of a December 15, 1986 report from Jesse Perry, M.D., stating that Khweiss's proposed
surgery doesn't have any relationship to his fall other than trying to clear up the mass over his
right shoulder which apparently was aggravated by his fall, SIIS ultimately denied Khweiss's
request for compensation for his surgery. Khweiss appealed, and in April, 1987, a hearings
officer affirmed SIIS's determination to deny compensation for the surgery, finding that the
medical reporting does not establish a causal relationship between the proposed surgery and
any industrial causation, nor demonstrate where the condition of Mr. Khweiss is found to be a
compensable consequence of [the industrial injury]. Khweiss again appealed, and on
September 4, 1987, the appeals officer entered an interim order that a medical review board
be convened to determine whether the industrial injury precipitated the trauma and led to the
need for surgery.
In August of 1987, Khweiss underwent emergency surgery in Washington, D.C., which
was a second incision of the venous malformation of his right shoulder. The medical review
board's report of May, 1988, stated that the tumor predated the fall and also stated that:
[Khweiss] should have been covered under an Industrial basis for all his disability and
wound care up to the time of the definitive surgery at George Washington on August
7th, but that the definitive surgery should probably not be covered as it was a
pre-existing tumor that was present at the time of the fall, and that the tumor was not
caused by the fall.
(Emphasis added.) The medical review board also noted that that type of surgery is not
routinely performed in the Las Vegas area. In another medical report, Dr. Trout, the vascular
surgeon who performed the initial surgery four years prior to the industrial injury, stated:
[I]t is a pre-existing condition and . . . propensity for regrowth was always there, since
it is obvious that I did not completely excise it at the first operation. Whether it would
ever have regrown without the trauma is not possible to answer.
108 Nev. 123, 125 (1992) SIIS v. Khweiss
In December, 1988, an appeals officer affirmed that SIIS was not responsible for payment
for the shoulder surgery. She noted that the claimant's surgical procedure performed in
Washington, D.C., in August, 1987, is the same procedure accomplished on a non-industrial
basis in 1981. The instant procedure was performed out of state, was unauthorized, and its
denial by the State Industrial Insurance System was proper. Khweiss appealed to the district
court, which held on February 11, 1991, that the appeals officer had incorrectly relied upon
State Industrial Insurance System v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983). The district
court reversed the appeals officer's decision and remanded the case back to SIIS with
instructions to pay for the August, 1987 surgery.
[Headnote 1]
SIIS assumed responsibility for payment for the medical work required to return Mr.
Khweiss's shoulder to its condition prior to the industrial accident. It is undisputed that
Khweiss had a pre-existing condition that had required prior surgery. However, SIIS disputes
the district court's determination that SIIS must compensate Khweiss for the emergency
surgery on his shoulder.
1
SIIS argues that the district court should have affirmed the decision
of the appeals officer because Nevada law upholds the discretionary authority of
administrative hearing officers unless they misconstrue the applicable law.
2
SIIS argues that
the hearings officer correctly applied Kelly to the facts.
__________
1
The fact that Khweiss did not obtain authorization before his emergency surgery does not mean he is not
entitled to compensation. A claimant may be entitled to compensation for out-of-state surgery even without
pre-authorization where the insurer failed to object and did not dispute that the particular surgical procedure was
reasonable and necessary medical treatment. Day v. S & S Pizza Co., 714 P.2d 275 (Or.App. 1986). See also
Gullick v. Industrial Commission, 383 P.2d 123 (Ariz. 1963).
2
NRS 233B.135(2) and (3) provide:
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 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.
108 Nev. 123, 126 (1992) SIIS v. Khweiss
[Headnote 2]
Under the Administrative Procedure Act, district court review of any agency's decision is
to be conducted by the court without a jury and is restricted to the record. NRS 233B.135(1).
The question is whether the [administrative] board's decision was based on substantial
evidence; neither this court nor the district court may substitute its judgment for that of the
administrative agency. State, Emp. Sec. Dep't v. Weber, 100 Nev. 121, 124, 676 P.2d 1318,
1320 (1984) (citing McCracken v. Fancy, 98 Nev. 30, 639 P.2d 552 (1982)). Although the
district court may decide pure legal questions without deference to an agency determination,
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. See Barnum v. Williams, 84 Nev. 37, 42, 436 P.2d 219, 222 (1968).
[Headnote 3]
In State Industrial Insurance System v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983), the first
Nevada case to discuss whether industrial aggravation of a pre-existing condition is
compensable, this court stated that:
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.
Id. at 775-76, 671 P.2d at 30. In Kelly the claimant successfully demonstrated that the
industrial injury aggravated his medical condition. Thus, this court held that SIIS had to
compensate him for his surgery.
In SIIS v. Thomas, 101 Nev. 293, 701 P.2d 1012 (1985), however, restoring a claimant to
pre-injury condition was sufficient to preclude coverage. Thomas was a police officer with a
history of shoulder dislocations. When he dislocated his shoulder again during the course and
scope of employment, SIIS paid for his medical treatment; subsequently, his physician
recommended corrective surgery to prevent future dislocations. SIIS denied approval for the
operation because of his history of prior dislocations. Id. at 294, 701 P.2d at 1013. The
appeals officer also denied Thomas's request for coverage, finding that Thomas had suffered
multiple dislocations prior to his work-related injury, that he had been returned to his
pre-injury condition, and that the industrial injury had not caused his need for further surgery.
Id. at 296-97, 701 P.2d at 1015. This court upheld the appeals officer's finding and reversed
the district court because there was substantial evidence that Thomas had been restored to
his pre-injury condition. Id. at 297, 701 P.2d at 1015.
108 Nev. 123, 127 (1992) SIIS v. Khweiss
substantial evidence that Thomas had been restored to his pre-injury condition. Id. at 297, 701
P.2d at 1015.
We conclude that the instant case is more analogous to Thomas than Kelly. As in Thomas,
SIIS compensated a claimant for medical work that restored him to his pre-injury condition.
The finding of the medical review board that the additional surgery in Washington, D.C., was
unrelated to the industrial accident, as well as the appeals officer's ruling to the same effect,
are compelling evidence that SIIS should not be held responsible for the operation. The
substantial evidence against Khweiss convinces us that Khweiss has not met his burden of
showing that the industrial injury aggravated the condition. Thus, we conclude that the
district court's ruling was error.
Accordingly, we reverse the judgment of the district court.
____________
108 Nev. 127, 127 (1992) Homick v. State
STEVEN MICHAEL HOMICK, Appellant, v. THE STATE OF NEVADA, Respondent
No. 20447
January 27, 1992 825 P.2d 600
Appeal from judgment of conviction, pursuant to jury verdict, of three counts of
first-degree murder with use of a deadly weapon, robbery with use of a deadly weapon,
burglary, and a sentence of death. Eighth Judicial District Court, Clark County; Myron E.
Leavitt, Judge.
Defendant was convicted in the district court of three counts of first-degree murder with
use of a deadly weapon, robbery with use of a deadly weapon, and burglary, and was
sentenced to death. He appealed. The supreme court held that: (1) defendant's remarks in
allocution exceeded facts in mitigation or pleas for leniency permitted in allocution, and thus,
prosecutor's rhetorical questions to jury were proper rebuttable argument invited by
unauthorized remarks; (2) prosecutor's remarks regarding surviving members of victim's
family were not improper victim impact comments; and (3) Nevada statutory and case law
permits use of multiple underlying felonies, committed in continuous course of conduct, as
aggravating circumstances.
Affirmed.
[Rehearing denied May 18, 1992]
Schieck & Derke, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney; and
Melvyn T. Harmon, Deputy District Attorney, Clark County, for Respondent.
108 Nev. 127, 128 (1992) Homick v. State
1. Criminal Law.
Defendant's remarks in allocution in penalty phase of capital murder trial stating that prosecution witnesses during guilt phase
were liars and that he had never confessed to murder exceeded facts in mitigation or pleas for leniency permitted in allocation, and
thus, prosecutor's rhetorical questions to jury regarding whether defendant had told them what his long-time criminal confederate had
told defendant were proper rebuttal argument invited by unauthorized remarks.
2. Criminal Law.
Capital defendant has narrowly defined right to make brief unsworn statement in mitigation to jury or three judge panel at close of
presentation of penalty phase; before defendant speaks, he shall be instructed by a court, outside of presence of jury, of limited scope of
right, that his statement is subject to court's supervision, and that should statement go beyond boundaries permitted he will be subject
to corrective action by court, including either comment by court or prosecutor or in some cases possible reopening of case for
cross-examination.
3. Criminal Law.
Prosecutor's remarks regarding surviving members of victims' family, in penalty phase of capital murder prosecution, were not
improper victim impact comments.
4. Criminal Law; Homicide.
Nevada Constitution imposes no barrier to capital sentencing jury considering victim impact evidence as it relates to victim's
personal character or emotional impact of murder on victim's family, nor does it preclude prosecution from arguing such evidence.
5. Criminal Law.
Key to criminal sentencing in capital cases is ability of sentencer to focus upon and consider both individual characteristics of
defendant and nature and impact of crime he committed; only then can sentencer truly weigh evidence before it and determine
defendant's just deserts.
6. Homicide.
Nevada law permits use of multiple underlying felonies, committed in continuous course of conduct, as aggravating circumstances
in penalty phase of capital murder trial. NRS 200.033, subd. 4.
7. Homicide.
Evidence of California homicides, concerning which charges were pending, was neither impalpable nor highly suspect, and thus
could be admitted in penalty phase of Nevada murder trial; evidence was introduced through testimony of police officer based upon
investigations connected by California and Nevada law enforcement authorities. NRS 175.552.
8. Criminal Law.
Failure of detective to preserve his notes regarding informal interview of defendant's ex-girlfriend concerning alibi did not require
reversal of capital murder conviction; girlfriend formally recanted her earlier statements concerning alibi, girlfriend testified at trial
making it clear that event which allegedly provided alibi did not occur, and defendant did not allege bad faith on part of State in failing
to preserve notes of informal interview.
9. Criminal Law.
Evidence of subsequent shootings by third party with same gun allegedly used by defendant to commit charged capital murders
was properly admitted to connect weapon used in charged murders to defendant; same weapon had been used in each incident, and
testimony of shooter in uncharged incident explained why same weapon had been used in both incidents.
108 Nev. 127, 129 (1992) Homick v. State
shooter in uncharged incident explained why same weapon had been used in both incidents. NRS 48.045, subd. 2.
10. Criminal Law.
Testimony indicating that defendant had provided cocaine to his confederate was relevant to show motive of confederate in
accepting weapon defendant allegedly had used in charged capital murders to use in attempted murder by confederate. NRS 48.045,
subd. 2.
11. Criminal Law.
Evidence of defendant's threats against jeweler and his girlfriend concerning jewelry taken during charged capital murder and
shown to jeweler by defendant was admissible to tie defendant to charged murders and to explain why jeweler delayed disclosing to
police his knowledge of defendant's involvement in murders.
12. Criminal Law.
State's presentation of evidence at trial of involvement in two prior California homicides by defendant's confederate did not violate
trial court's in limine ruling that evidence concerning California homicides would be excluded as unduly prejudicial, or unduly
undermine such ruling; names of victims, surrounding circumstances of other murders, and defendant's personal involvement or
presence at scene of other murders occurring months before charged capital murders were not revealed directly or indirectly to jury,
and references to California murders were limited to testing confederate's credibility on stand.
13. Criminal Law.
Hearsay statement attributed to defendant's cohort, given at time when cohort had motive to lie in manner that would benefit
defendant, was inadmissible in capital murder prosecution under rule excluding statement which tends to expose declarant to criminal
liability and which is offered to exculpate defendant unless supported by clearly trustworthy corroborating circumstances; and
semblance of corroboration for hearsay was eliminated when informal statement by third party paralleling cohort's was recanted. NRS
51.345, subd. 1.
14. Homicide.
Defendant charged with capital murder is not entitled to requested special instructions listing residual doubt as mitigating
circumstance.
15. Homicide.
Evidence, including testimony concerning defendant's admissions to jeweler, to whom defendant allegedly had shown jewelry
stolen from victim, was sufficient to support defendant's convictions of first-degree murder of three unarmed victims with use of a
deadly weapon.
16. Homicide.
Sentence of death imposed on defendant, who was convicted of three counts of first-degree murder of unarmed victims with use of
deadly weapon was not result of passion, prejudice, or any arbitrary factor and was not excessive; among aggravating factors were that
murders were committed while defendant was committing burglary and robbery and that murders were committed to avoid or prevent
arrest.
OPINION
Per Curiam:
Appellant Steven Michael Homick was convicted by a jury of the first-degree murder of
three unarmed victims with the use of a deadly weapon and sentenced to death.
108 Nev. 127, 130 (1992) Homick v. State
the first-degree murder of three unarmed victims with the use of a deadly weapon and
sentenced to death. Homick was also convicted of robbery with the use of a deadly weapon,
and burglary. On appeal, Homick raises several assignments of error, including emphatic
claims of reversible error stemming from an alleged violation of the Fifth Amendment
judicial nuance precluding the State from commenting on an exercise of the right to remain
silent, and prosecutorial comment on the family of the victims. We conclude from our review
of the trial record that Homick was fairly tried, convicted, and sentenced. We therefore affirm
the judgment and sentence of death entered below.
FACTS
In the early afternoon of December 11, 1985, David Tipton, unsuccessful in contacting his
wife by telephone concerning their planned luncheon engagement for the day, drove
unsuspectingly to a horror scene awaiting him at his Las Vegas home. After entering his
residence and walking down the hall, he observed the body of a male sprawled across the
floor at the entrance to the master bedroom. Mr. Tipton also noticed that the bedroom had
been ransacked and that jewelry boxes were strewn about on the floor. Finally, the frantic
man saw the bodies of his wife, Bobbie Jean Tipton, and the Tipton's housekeeper, Marie
Bullock, on the floor of the walk-in closet containing a floor safe.
The trial evidence reflects that Homick had learned of the valuable jewelry owned by Mrs.
Tipton as a result of his employment as a security specialist with The Tower of Jewels, a Las
Vegas jewelry store where the victim had taken 50 to 60 pieces of her jewelry for appraisal
and cleaning. Timothy Catt, a jeweler employed at The Tower of Jewels, testified that
Homick told him that he had heard through his wife that Bobbie Jean Tipton was a very
wealthy lady with magnificent jewelry, and that only a portion of it had been taken to The
Tower of Jewels.
During the month following the murders, Homick twice showed Catt items of jewelry that
Catt recognized as part of a collection belonging to Bobbie Jean Tipton. Homick did not
indicate where he had obtained the jewelry, and warned both Catt and Catt's girlfriend, under
threat, to keep quiet about the jewelry. Catt, who on occasion had worked on various pieces
of the victim's jewelry, was familiar with many of the items because of their unique qualities.
Finally, after inquiring of Catt as to the value of a pear-shaped diamond ring owned by Mrs.
Tipton, Homick arranged to meet Catt at a commercial center. The meeting took place in
Catt's automobile. After complaining of money problems, Homick eventually told Catt about
the crimes he had committed in the Tipton residence.
108 Nev. 127, 131 (1992) Homick v. State
Catt's testimony concerning Homick's admissions was consistent with the evidence found
at the scene of the crimes. Homick stated to Catt that when Mrs. Tipton opened the floor safe,
he shot her in the head. Homick also declared that he also shot the nigger. As Homick
continued to search for money inside the house, the doorbell rang. Homick answered the
door, yanked the man inside and offed him. The latter victim, James Meyers, was a
deliveryman for a local steak and seafood business. Catt, fearful of Homick, did not reveal his
knowledge of Homick's criminal conduct to the police until after Homick was taken into
custody.
Autopsy examinations of the two female victims revealed that each had been shot in the
head three times, evincing wounds consistent with those made by .22 caliber bullets. An
autopsy on the body of James Meyers disclosed two bullet wounds to the head and one .38
caliber bullet wound to the anterior chest. The trial evidence revealed that Homick had
possessed handguns consistent with those used in killing the three victims.
We deem it unnecessary to recite in detail the full extent of the evidence adduced at trial in
support of the State's case against Homick. To characterize the evidence of his guilt as
overwhelming is an evaluation fully supported by the record. The evidence of record vividly
portrays the picture of what occurred in the Tipton residence on the morning of December 11,
1985. Homick's own daughter provided police with items of jewelry taken from the Tiptons
and given to her by her father. Other witnesses presented testimony clearly identifying
jewelry belonging to Mrs. Tipton in the possession of Homick. Indeed, a police surveillance
in California produced evidence obtained by binocular viewing of Homick and others passing
pieces of jewelry, and Homick placing the jewelry in plastic bags. A search of the surveilled
premises pursuant to a search warrant, produced, among other items, a stone later identified
as having been specially created for, and belonging to, Bobbie Jean Tipton.
Additional evidence of Homick's guilt included testimony by a long time friend and
criminal confederate of Homick's, Michael Dominguez, who, at Homick's behest, attempted
to murder a man by the name of Craig Maraldo to satisfy a drug debit owed to Homick. A
firearms expert, Richard Good, testified that the eight .22 caliber Remington long rifle
expended cartridge casings recovered from the Tipton house were fired from the same
weapon as six of the seven expended casings found at Maraldo's residence. Moreover,
Dominguez testified that on the afternoon of the day of the Tipton murders, he saw in
Homick's car the same .22 Ruger with silencer that Homick had loaned to Dominguez to kill
Maraldo.
108 Nev. 127, 132 (1992) Homick v. State
In January of 1986, Ronald Byrl, another of Homick's associates, was arrested and his
house examined pursuant to a warranted search. Among the items uncovered by the search
were a diamond ring and two handguns, a .38 and a .22, both equipped with silencers. Byrl
testified that Homick brought a number of pieces of jewelry to him in order to use his
portable grinder to clean the items and remove identifying markings. Homick explained to
Byrl that the jewelry came from a good job. Also included among the items taken to Byrl
were several rings, a lady's blue Piaget wristwatch, and a man's Rolex watch later identified
as belonging to David and Bobbie Jean Tipton, Byrl testified that Homick had also asked him
to store eight handguns.
As previously stated, it is unnecessary to recite fully the evidence of Homick's guilt. The
qualitative and quantitative magnitude of the evidence against Homick leaves slight room for
doubt concerning the verity of his guilt.
1
DISCUSSION
Homick strenuously contends that reversible error occurred in the penalty phase of his
trial. We will therefore address that phase of trial first and thereafter discuss issues relating to
assignments of error attributable to the guilt phase of trial.
THE PENALTY PHASE
[Headnote 1]
I. Whether constitutional error resulted from a prosecutorial comment on Homick's
exercise of his Fifth Amendment right to remain silent. Homick insists that the prosecutor
improperly commented on the exercise of his Fifth Amendment right to remain silent after he
had presented his unsworn testimony pursuant to his common law right of allocution. See
Griffin v. California, 380 U.S. 609, 615 (1965). During the guilt phase of the trial, Homick
had exercised his constitutional right not to testify. In order to analyze the propriety of the
prosecutor's conduct, it is helpful to explore the history and substance of the right of
allocution.
The right of allocution was recognized as early as 1689. See Green v. United States, 365
U.S. 301, 305 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B.).
Allocution constituted a formal address by the court to the defendant after he was convicted
but prior to the imposition of sentence, inquiring as to whether there were any reasons
why judgment should not be pronounced.
__________
1
A pen register device monitoring Homick's phone line had been secured by the FBI in connection with a
prior investigation. The device revealed that Homick had placed a call to the Tipton residence on December 2,
1985, and on the evening of the date of the murders. Homick had also asked a friend in the police department to
run a check on the registration of two vehicles; both vehicles were registered to the Tiptons.
108 Nev. 127, 133 (1992) Homick v. State
was convicted but prior to the imposition of sentence, inquiring as to whether there were any
reasons why judgment should not be pronounced. Barrett, Allocution, 9 Mo. L. Rev. 115
(1944).
More recently, allocution has been viewed as the right of the defendant 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. DeAngelo v.
Schiedler, 757 P.2d 1355, 1358 (Or. 1988). Although the United States Supreme Court has
declared that the right of allocution is not of constitutional derivation or dimension, it has
been aptly stated that it bespeaks our common humanity that a defendant not be sentenced to
death by a jury which never heard the sound of his voice.' State v. Zola, 548 A.2d 1022,
1045 (N.J. 1988) (quoting McGautha v. California, 402 U.S. 183, 220 (1971).
Importantly, however, the right of allocution is not without constraints. The New Jersey
Supreme Court focused on the concern of the prosecution that a defendant should not be
permitted to lie with impunity to a jury that is attempting to reach a rational fact-based
conclusion on whether he shall live or die. Zola, 548 A.2d at 1045. The Zola court wisely
determined that a defendant would not be permitted to rebut any facts in evidence, to deny
his guilt, or indeed, to voice an expression of remorse that contradicts evidentiary facts. Id.
See also State v. Mak, 718 P.2d 407 (Wash.), cert. denied, 479 U.S. 995 (1986) (allocution
rule does not contemplate the defendant presenting evidence on the issue before the jury that
would be unsworn, unrebuttable, uncross-examined and unanswerable by argument). The
reasoning of the Zola and Mak courts is persuasive. Prior to commencing the penalty phase of
trial and the imposition of sentence, issues of guilt and innocence have been considered and
decided adversely to the defendant. They should not be reintroducible through an unsworn
statement by the defendant under guise of the right of allocution.
[Headnote 2]
We conclude that capital defendants in the State of Nevada enjoy the common law right of
allocution.
2
However, if a defendant succeeds in abusing the right and extends his
remarks beyond acceptable expressions of remorse, pleas for leniency, and plans or hopes
for the future, into the realm of facts or circumstances relating to guilt or exculpation,
"[t]hese types of facts are subject to rebuttal and form the basis for disputed issues
which the trier of fact must resolve and, therefore, justify impeachment."
__________
2
In Hardison v. State, 104 Nev. 530, 763 P.2d 52 (1988), we concluded that statutory rights to allocution did
not apply in capital cases because of the more specific statutorily derived procedures for determining the
appropriate punishment in first-degree murder cases. We therefore concluded that after a jury has assessed a
penalty of death, the judge has no discretion and must enter judgment according to the verdict of the jury . . . .
Thus, a statement by [the defendant] in his own behalf would serve no function. Id. at 534-35, 763 P.2d at 55
(emphasis added). To the extent necessary, we clarify Hardison. As noted above, Hardison addressed the right
of a defendant to
108 Nev. 127, 134 (1992) Homick v. State
ant succeeds in abusing the right and extends his remarks beyond acceptable expressions of
remorse, pleas for leniency, and plans or hopes for the future, into the realm of facts or
circumstances relating to guilt or exculpation, [t]hese types of facts are subject to rebuttal
and form the basis for disputed issues which the trier of fact must resolve and, therefore,
justify impeachment. Sullivan, The Capital Defendant's Right to Make a Personal Plea for
Mercy: Common Law Allocution and Constitutional Mitigation, 15 N.M. L. Rev. 41, 63
(1985). We endorse and adopt the following ruling of the New Jersey Supreme Court in Zola:
[W]e shall permit the narrowly-defined right of a capital defendant to make a brief
unsworn statement in mitigation to the jury [or a three judge panel] at the close of the
presentation of evidence in the penalty phase. Before a defendant speaks, he shall be
instructed by the court, outside of the presence of the jury, of the limited scope of the
right; that his statement is subject to the court's supervision; and that should the
statement go beyond the boundaries permitted he will be subject to corrective action by
the court including either comment by the court or prosecutor or in some cases possible
reopening of the case for cross-examination.
Zola, 548 A.2d at 1046, See also State v. Bontempo, 406 A.2d 203, 213 (N.J.Super.Ct. Law
Div. 1979) (a defendant who undertakes to answer part of the evidence against him in an
unsworn statement is subject to comment as to factual thrusts he does not meet).
Having determined the proper latitude to be accorded defendants in the exercise of their
right of allocution, we turn now to the facts of the instant case. Homick utilized his moment
of allocution to stray far beyond facts in mitigation of sentencing or pleas for leniency;
instead, Homick proclaimed his innocence and revisited facts and testimony of relevance
only during the guilt phase of his trial.
__________
address the judge after sentence has been determined by the sentencing body (jury or three-judge panel) and
there remains no sentencing discretion. Our ruling in the instant case affirms the right of a capital defendant to
make an unsworn statement to the sentencing body prior to the determination of sentence.
In Hardison, the appellant also contended that the trial court had an affirmative duty to advise him of the
possibility of giving an unsworn statement to the jury. Our response to the contention basically indicated that
pursuant to NRS 175.552, Hardison had every opportunity to present any information in mitigation of
punishment. Although our use of the word information as opposed to evidence may reflect an indication that
Hardison would have been allowed to make an unsworn statement to the jury prior to the determination of
sentence, we now eliminate doubt on the point and again stress the right of a capital defendant to make such a
statement before the sentencing body reaches a determination concerning sentence. However, it is the obligation
of defense counsel to advise the defendant of the right of allocution rather than the trial court.
108 Nev. 127, 135 (1992) Homick v. State
for leniency; instead, Homick proclaimed his innocence and revisited facts and testimony of
relevance only during the guilt phase of his trial. During his comments, he stated that
Michael Dominguez told me of who and what happened regarding Tipton. Homick also
declared that I never confessed to Tim Catt and that the State's witnesses during the guilt
phase were liars. These are precisely the type of improper remarks that justify prosecutorial
impeachment if the trial judge fails to suppress their introduction by the defendant.
Here, the prosecutor responded to Homick's improper and unsworn comments by
rhetorically asking the jury: Did he tell you what Mike Dominguez told him? Has he told
anybody what Michael Dominguez told him? Far from constituting impermissible comment
on the defendant's post-arrest silence, the prosecutor properly posed the questions in the form
of rebuttal argument invited by Homick's unauthorized remarks. There was no error of
constitutional dimension or otherwise.
[Headnote 3]
II. Whether the State's comments concerning the impact of the murders on the surviving
members of the victims' families constituted reversible error. Homick complains about two
areas of comment made by the prosecutor in closing argument. The prosecutor stated:
That's the only reason Marie Bullock doesn't breathe to this day is because he didn't
want somebody looking at him and telling the police. Just like James Meyers, she was
in the wrong spot at the wrong time. It's the only reason her child is without a mother.
. . . .
I'll tell you quite honestly I grieve for the family of Steve Homick. I am sure they
have been traumatized by the charges and by these proceedings in a sense they're
victims just like Debbie Meyers and David Tipton and the family of Marie Bullock.
. . . .
It's interesting at this hearing how everything somehow gets turned upside down. It
was all right for the defense to call witness after witness . . . .
(Emphasis added.)
It is arguable that the underscored, passing remarks in the prosecutor's argument
constituted improper victim impact comments under the rulings of Booth v. Maryland, 482
U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989). Booth and Gathers both
proscribed victim impact evidence during the penalty phase of a capital trial on grounds
that such evidence was per se barred by the Eighth Amendment.
108 Nev. 127, 136 (1992) Homick v. State
evidence was per se barred by the Eighth Amendment. However, in the recent case of Payne
v. Tennessee, 111 S.Ct. 2597 (1991), the Booth and Gathers cases were reevaluated and
specifically overruled. The Court in Payne concluded that the Eighth Amendment posed no
barrier to a capital sentencing jury considering victim impact evidence as it relates to the
victim's personal character and the emotional impact of the murder on the victim's family nor
precluded the prosecution from arguing this type of evidence at the capital sentencing
hearing. The Supreme Court cited Booth for the proposition that the capital defendant must be
treated as a uniquely individual human being, Booth, 482 U.S. at 504, and that an
individualized determination must be made based upon the character of the individual and
the circumstances of the crime. 482 U.S. at 502. The defendant may offer any relevant
mitigating evidence in support of a sentence less than death. Eddings v. Oklahoma, 455 U.S.
104, 114 (1982). However, the Payne Court reasoned that a misreading of Booth has resulted
in virtually limitless admissions of mitigating evidence concerning a defendant's own
circumstances while the State has been barred from either offering a glimpse of the life
which the defendant chose to extinguish, Mills v. Maryland, 486 U.S. 367, 397 (1988)
(Rehnquist, C. J. dissenting), or demonstrating the losses to the victim's family and to society
which have resulted from the defendant's act of murder. Payne, 111 S.Ct. at 2607.
The Payne Court rectified the imbalance attributable to Booth and Gathers, as noted
above, by ruling that:
[T]he State has a legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual whose death
represents a unique loss to society and in particular to his family. Booth, 482 U.S., at
517 (White, J., dissenting) [citation omitted]. By turning the victim into a faceless
stranger at the penalty phase of a capital trial, Gathers, 490 U.S. at 821 (O'Connor, J.,
dissenting), Booth deprives the State of the full moral force of its evidence and may
prevent the jury from having before it all the information necessary to determine the
proper punishment for a first-degree murder.
Payne, 111 S.Ct. 2608. We applaud the decision in Payne as a positive contribution to capital
sentencing, and conclude that it fully comports with the intendment of the Nevada
Constitution.
[Headnotes 4, 5]
Homick urges us to disapprove of the ruling in Payne and search for loftier heights in our
constitution.
108 Nev. 127, 137 (1992) Homick v. State
search for loftier heights in our own constitution. We are cautioned that otherwise defendants
who murder more reputable and valued citizens will be more likely to suffer the imposition of
death than the murderer who kills citizens of lesser stature. We find the argument
unpersuasive. 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 deserts. 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.
We would have great difficulty finding reversible error in the passing references of the
prosecutor even under the Booth and Gathers standards. In any event, Payne is dispositive of
the issue, and we therefore conclude that error did not result from the comments of the
prosecutor regarding the surviving members of the victims' families. Homick created the
evidence portraying the immutably tragic consequences to his victims and their loved ones.
He is hardly in a position to complain that a jury of his peers was given a fair exposure to his
handiwork.
[Headnote 6]
III. Whether error resulted from using both robbery and burglary in support of separate
aggravating circumstances. Homick contends that the district court erred in permitting the
State to utilize both robbery and burglary as a basis for separate aggravating circumstances
despite the commonality of facts underlying both. He maintains that the result of such a
stacking practice is the arbitrary and capricious imposition of the death penalty. We are
aware that certain jurisdictions among our sister states do not permit the use of multiple
felonies occurring during an indivisible course of conduct as support for separate
aggravating circumstances. People v. Harris, 679 P.2d 433, 449-50 (Cal.), cert. denied, 469
U.S. 965 (1984). We do not agree with the reasoning of those courts that preclude the use of
multiple felonies committed in a continuous course of conduct, and have adopted a contrary
position in Nevada.
In Wilson v. State, 99 Nev. 362, 376, 664 P.2d 328, 336 (1983), we stated:
A logical reading of the statute [NRS 200.033(4)] requires that each felony be used as
an aggravating circumstance. First degree murder is aggravated when it is committed
during the course of one of the enumerated felonies contained in NRS 200.033{4).
108 Nev. 127, 138 (1992) Homick v. State
during the course of one of the enumerated felonies contained in NRS 200.033(4).
Therefore, when the murder is committed during the course of more than one of the
felonies listed, the murder is more aggravated and heinous than it would have been if
only one of the felonies were present.
More recently, in Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802, cert. denied, 111
S.Ct. 307 (1990), we stated that Nevada statutory and case law specifically authorize the use
of multiple underlying felonies as aggravating circumstances . . . . We reaffirm our rulings in
Wilson and Bennett which are dispositive of this issue. Therefore, Homick's claim of error is
without merit.
[Headnote 7]
IV. Whether uncorroborated evidence of homicides committed by Homick in California
were properly admissible. Homick claims that he was prejudiced by the introduction of
evidence concerning homicides which he allegedly committed in California. This issue is also
without merit. Under Nevada law, NRS 175.552, 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 as long as the questioned evidence is not supported solely by impalpable or highly
suspect evidence. Young v. State, 103 Nev. 233, 237, 737 P.2d 512, 515 (1987). In Crump v.
State, 102 Nev. 158, 716 P.2d 1387, cert. denied, 479 U.S. 871 (1986), we noted that our
decision in Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985), cert. denied, 479 U.S. 871
(1986), held that evidence that a defendant had committed an unrelated homicide for which
he had not been convicted may be admitted during the penalty phase of the defendant's trial,
not to establish the existence of an aggravating circumstance, but rather as other matter
which the court deems relevant to sentence.' Crump, 102 Nev. at 161, 716 P.2d at 1388
(citation omitted) (quoting NRS 175.552). The determination of whether to admit or exclude
such evidence is left to the sound discretion of the trial court. Gallego, 101 Nev. at 791, 711
P.2d at 863.
In Homick's case, the evidence of the California homicides, concerning which charges
were pending, was properly allowed by the district court. Evidence of the homicides was
introduced through the testimony of a police officer based upon investigations conducted by
California and Nevada law enforcement authorities. The evidence was neither impalpable nor
highly suspect. There was no error.
THE GUILT PHASE
[Headnote 8]
I. Whether the failure of the police to preserve notes of an interview allegedly indicating
an alibi for Homick constituted reversible error.
108 Nev. 127, 139 (1992) Homick v. State
interview allegedly indicating an alibi for Homick constituted reversible error. Homick
insists that because a police detective failed to preserve his notes regarding an informal
interview with Homick's ex-girlfriend concerning an alibi, his conviction must be reversed.
The claim is meritless.
In Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988), we determined that lost evidence
attributable to the State may constitute a basis for overturning a conviction when (1) the
defendant is prejudiced by the loss or, (2) the evidence was lost' in bad faith by the
government. Id. at 319, 759 P.2d at 182. It is clear from the record that any prospect of
advantage from having access to the lost notes was basically nullified when the interviewee
formally recanted her earlier statements concerning an alibi for Homick. Moreover, the
interviewee also testified at trial, making it clear that a luncheon involving Homick, and
concerning which some alibi potential may have existed, did not occur.
Finally, Homick has not alleged bad faith on the part of the State in the failure to preserve
the notes of the informal interview, and has not shown that the notes, even if they existed,
would have been exculpatory and material to his defense. See Boggs v. State, 95 Nev. 911,
604 P.2d 107 (1979). Homick's assignment of error must fail.
[Headnotes 9-11]
II. Whether prejudicial error occurred in the admission of evidence of prior bad acts.
Homick contends that he was prejudiced by error resulting from the admission of evidence
concerning prior bad acts. We disagree. In no instance was such evidence admitted in
violation of NRS 48.045(2), which prohibits the introduction of evidence of prior bad acts for
purposes of showing character consistency. Evidence of the Maraldo and McDowell
shootings was properly admitted to connect the Tipton murder weapon to Homick. The same
weapon had been used in each instance, and the testimony of Dominguez concerning the
Maraldo and McDowell incidents was essential to understanding why the same weapon used
in those shootings was also used in the Tipton murders. Moreover, the testimony indicating
that Homick provided cocaine to Dominguez was also relevant in showing the motive for
Dominguez accepting the weapon from Homick to use in the attempted murder of Maraldo.
See Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976) (where motive otherwise not
established, evidence of defendant's drug use was permissible to show motive and identity).
We need not consider evidence of the Godfrey murder because it was introduced by defense
counsel in an attempt to shift blame for the Tipton murders to Michael Dominguez. Finally, it
is apparent why there was no error in admitting evidence of Homick's threats against Catt and
his girlfriend concerning the Tipton jewelry shown to Catt by Homick.
108 Nev. 127, 140 (1992) Homick v. State
Homick. The evidence tied Homick to the Tipton crimes and explained why Catt delayed
disclosing to the police his knowledge of Homick's involvement in the Tipton murders.
Our review of the record persuades us that evidence of the prior bad acts admitted by the
district court, and now challenged by Homick on appeal, satisfied the criteria set forth by this
court in Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988). Homick's claim of error is
without merit.
[Headnote 12]
III. Whether an order in limine was violated by testimony elicited by the State. Homick
objects to references at trial to Dominguez' involvement in two California homicides. Homick
suggests that the jury might have inferred from such references that Homick had a criminal
past. The district court had ruled in limine that evidence concerning the double homicide
would be excluded as unduly prejudicial. This court has determined that the test for
determining a reference to criminal history is whether a juror could reasonably infer from the
facts presented that the accused had engaged in prior criminal activity.' Manning v. Warden,
99 Nev. 82, 86, 659 P.2d 847, 850 (1983) (quoting Commonwealth v. Allen, 292 A.2d 373,
375 (Pa. 1972)). The names of victims, the surrounding circumstances of other murders, and
Homick's personal involvement or presence at the scene of another multiple slaying occurring
months before the Tipton murders, were not revealed directly or indirectly to the jury. The
references to the California slayings were limited to testing Dominguez' credibility on the
stand. Therefore, the trial court's ruling on the Motion in Limine was not violated or
undermined by the State.
[Headnote 13]
IV. Whether it was reversible error to disallow alibi testimony attributable to Lawrence
Ettinger. Homick challenges the trial court's ruling disallowing testimony by Detective
Dillard concerning alleged alibi evidence in the form of a hearsay statement attributable to
Homick's cohort, Lawrence Ettinger. The statement, given at a time when Ettinger had a
motive to lie in a manner that would benefit Homick, was unreliable. Moreover, any
semblance of corroboration for the hearsay was eliminated when Susan Hines recanted her
informal statement paralleling Ettinger's. The hearsay statement was properly excluded by the
trial court pursuant to NRS 51.345(1), which makes inadmissible any statement which tends
to expose the declarant to criminal liability and is offered to exculpate the accused without
support in the form of clearly trustworthy corroborating circumstances.
[Headnote 14]
V. Whether the trial court erred in refusing Homick's instruction listing residual doubt
as a mitigating circumstance.
108 Nev. 127, 141 (1992) Homick v. State
tion listing residual doubt as a mitigating circumstance. Homick contends that he was
entitled to a special jury instruction listing residual doubt as a mitigating circumstance. He is
wrong. We are in accord with the 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 district court was correct in refusing such an
instruction.
[Headnote 15]
VI. Whether there was sufficient evidence to prove Homick's guilt beyond a reasonable
doubt. We are urged to reverse Homick's judgment of conviction on the ground that there was
insufficient admissible evidence to prove his guilt beyond a reasonable doubt. Our review of
the record persuades us to the contrary. The State's case against Homick was extremely
strong.
Although we have found no basis in this record for doubting the accuracy of the jury's
conclusions, we nevertheless note that our review is based upon the standard that it is not
whether this Court is convinced of the defendant's guilt beyond a reasonable doubt, but
whether the jury, acting reasonably, could have been convinced to that certitude by the
evidence it had a right to consider. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
(1980). Based upon our review of the evidence, we must conclude that the jury, acting
reasonably, had more than substantial evidence upon which to determine, with the requisite
degree of certitude, that Homick was guilty of the crimes charged against him.
[Headnote 16]
We have carefully considered Homick's other assignments of error and conclude that they
are without merit. Additionally, we note that the jury found four aggravating circumstances
and no mitigating circumstances. The evidence fully supports the jury's finding, beyond a
reasonable doubt, that Homick's crimes were aggravated by: (1) the murder of the three
victims 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; (2) the three murders were committed while the person was
engaged in the commission of or an attempt to commit any burglary; (3) the three murders
were committed while the person was engaged in the commission of or an attempt to commit
any robbery; and (4) the three murders were committed to avoid or prevent a lawful arrest.
In reviewing the overall record, we conclude that the sentence of death imposed on
Homick by the jury was not the result of passion, prejudice or any arbitrary factor and that the
sentence was not excessive, considering both the extremely serious nature of Homick's
crimes and the individual characteristics and background of the defendant.
108 Nev. 127, 142 (1992) Homick v. State
was not excessive, considering both the extremely serious nature of Homick's crimes and the
individual characteristics and background of the defendant.
Having determined that Homick was fairly tried, convicted, and sentenced, we affirm in all
respects the judgment of conviction and the sentences imposed thereon, including the
sentence of death.
____________
108 Nev. 142, 142 (1992) Verreaux v. D'Onofrio
VIOLET S. VERREAUX, VALORIE CARLIN VERREAUX, and EDWARD SCOTT
VERREAUX, III, Appellants, v. SUSAN D'ONOFRIO, Respondent.
No. 21472
January 30, 1992 824 P.2d 1021
Appeal from order dismissing complaint for deficiency judgment. Eighth Judicial District
Court, Clark County; J. Charles Thompson, Judge.
Vendors of residential apartment building in Nevada sought to recover principal and
interest due on note received as partial payment after purchaser sold property pursuant to
trustee's sale which destroyed security interest. The district court granted purchaser's motion
to dismiss based on application of California's antideficiency law. Appeal was taken. The
supreme court held that Nevada's interest in applying Nevada law with respect to out-of-state
owners of Nevada real property outweighed California's interest in having its antideficiency
legislation applied.
Reversed and remanded.
Graziadei & Cantor, Las Vegas, for Appellants.
Compton & Kemp, Las Vegas, for Respondent.
1. Courts.
Purchaser had sufficient contacts with Nevada concerning both purchase transaction and breach of its terms to render unavailing
any complaints of unfairness in application of Nevada law where purchaser assumed notes secured by Nevada deed of trust in
conjunction with purchase, agreed to make payments under secured note in Nevada or as directed, and operated apartment complex in
Nevada that was subject of controversy. U.S.C.A.Const. art. 4, 1; amends. 5, 14.
2. Mortgages.
Nevada's interest in applying Nevada law with respect to out-of-state owners of Nevada real property outweighed California's
interest in having its antideficiency legislation applied. NRS 40.455, 40.455, subd. 1; Const art. 6, 4.
108 Nev. 142, 143 (1992) Verreaux v. D'Onofrio
OPINION
Per Curiam:
Facts
On April 21, 1983, appellants Violet, Valorie, and Edward Verreaux (the Verreauxes) sold
a residential apartment building located in Clark County, Nevada, for a consideration which
included, as partial payment, a note in the amount of $20,000. The note was payable in Las
Vegas, Nevada, and secured by a second deed of trust on the apartment building.
Subsequently, on September 16, 1985, respondent, Susan D'Onofrio, purchased the apartment
building and assumed the note. On the same date, the Verreauxes and D'Onofrio executed an
amendment to the note which expressly provided that the Verreauxes did not waive their
rights to secure redress on the note and deed of trust. Both the Verreauxes and D'Onofrio
were residents of California. The Verreauxes' security interest was destroyed on June 18,
1986, when the property was conveyed pursuant to a trustee's sale.
The Verreauxes filed a complaint in Nevada to recover the principal and interest due on
the note. D'Onofrio filed a motion to dismiss that was granted by the district court on the
theory that California's anti-deficiency law
1
applied, barring Verreauxes' claim. For the
reasons set forth below, we reverse.
Discussion
[Headnote 1]
Choice of law considerations implicate the Due Process Clause (fairness to the litigants)
and the Full Faith and Credit Clause (respect for another sovereign). Allstate Insurance Co. v.
Hague, 449 U.S. 302, 308 (1981). D'Onofrio had sufficient contacts with Nevada concerning
both the transaction and the breach of its terms to render unavailing complaints of unfairness
in the application of Nevada Law. D'Onofrio assumed a note secured by a Nevada deed of
trust in conjunction with the purchase of Nevada real estate. Moreover, D'Onofrio agreed to
make payments under the secured note in Las Vegas, Nevada, or as directed. Finally,
D'Onofrio operated the apartment complex in Nevada that was the subject of the controversy.
These facts reflect sufficient contacts with Nevada, and a sufficient state interest in applying
Nevada's own law, to warrant the conclusion that the choice of Nevada law is constitutional
and not arbitrary or fundamentally unfair. See Hague, 449 U.S. at 312-13.
D'Onofrio's significant aggregation of contacts with Nevada created in Nevada a
substantial interest in upholding its own law and policies. "NRS Chapter 40 'provides a
comprehensive scheme of creditor and debtor protection with respect to the foreclosure
and sale of real property subject to security interests.'" Welburn v.
__________
1
Cal. Civ. Proc. Code 580(b) (West Ann. 1976 and Supp. 1991).
108 Nev. 142, 144 (1992) Verreaux v. D'Onofrio
created in Nevada a substantial interest in upholding its own law and policies. NRS Chapter
40 provides a comprehensive scheme of creditor and debtor protection with respect to the
foreclosure and sale of real property subject to security interests.' Welburn v. District Court,
107 Nev. 105, 108, 806 P.2d 1045, 1047 (1991) (quoting Component Systems v. District
Court, 101 Nev. 76, 82, 692 P.2d 1296, 1301 (1980)); see NRS 40.455 (deficiency judgment);
cf. Key Bank v. Donnels, 106 Nev. 49, 51-52, 787 P.2d 382, 384 (1991); Sievers v.
Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270, 273 (1979); Kish v. Bay
Counties Title Guaranty Co., 254 Cal.App.2d 725 (Cal.Ct.App. 1967). This court stated in
Welburn that Nevada deficiency actions do not significantly conflict with California's
sovereignty and Nevada has a strong interest in protecting the efficacy of the deficiency
statute with respect to out of state owners of Nevada real property.
2
Welburn, 107 Nev. at
107, 806 P.2d at 1047.
[Headnote 2]
Accordingly, we conclude that Nevada's interest in applying Nevada law outweighs
California's interest in having its antideficiency legislation applied in the instant case.
Following the trustee's sale, the Verreauxes were entitled to apply to the district court for a
deficiency judgment pursuant to NRS 40.455(1). We therefore reverse the district court's
order dismissing appellants' complaint and remand this matter for further proceedings in
accordance with this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Huffaker, D. J.,
3
concur.
__________
2
California's anti-deficiency statute derogates from the common law. Key Bank v. Donnels, 106 Nev. 49,
787 P.2d 382 (1990) (citing 3 Sutherland, Statutory Construction 61.01 (4th ed. 1986)).
3
The Honorable Stephen L. Huffaker, Judge of the Eighth Judicial District, was designated by the Governor
to sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
____________
108 Nev. 145, 145 (1992) Davidsohn v. Doyle
LUIS DAVIDSOHN, Appellant/Cross-Respondent, v. HELEN DOYLE,
Respondent/Cross-Appellant.
No. 21481
January 30, 1992 825 P.2d 1227
Appeal and cross-appeal from summary judgment. Eighth Judicial District Court, Clark
County; Thomas A. Foley, Judge.
Landlord filed complaint for declaratory relief to terminate commercial lease. The district
court entered judgment in favor of tenant, and landlord appealed. The supreme court held
that: (1) landlord did not waive his right to terminate commercial lease by accepting rent from
tenant after informing tenant that she had breached lease by failing to keep property in good
repair, and (2) landlord was not required to comply with notice requirements of unlawful
detainer statutes.
Reversed and remanded.
Michael R. Mushkin & Associates and Mark C. Hafer, Las Vegas, for
Appellant/Cross-Respondent.
Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for
Respondent/Cross-Appellant.
1. Landlord and Tenant.
Landlord did not waive his right to terminate commercial lease by accepting rent from tenant after informing tenant that she had
breached lease by failing to keep property in good repair; landlord timely pursued his action to terminate lease, and tenant was aware of
landlord's intentions to terminate if repairs were not timely made.
2. Landlord and Tenant.
Lessor has right to accept rent after breach by lessee when lessor timely expresses his or her intent to terminate lease and lessee
nevertheless remains in possession.
3. Landlord and Tenant.
Landlord who sought to terminate commercial lease based on tenant's alleged violation of lease term requiring tenant to keep
premises in good repair was not required to comply with notice requirements of unlawful detainer statute. NRS 40.2516.
4. Landlord and Tenant.
Lessor who seeks termination under lease provision is not obligated to meet notice requirements of unlawful detainer statute. NRS
40.2516.
5. Forcible Entry and Detainer.
In unlawful detainer action, strict compliance with statutory notice provision is jurisdictional prerequisite.
108 Nev. 145, 146 (1992) Davidsohn v. Doyle
OPINION
Per Curiam:
Facts
Appellant Luis Davidsohn leased land and commercial warehouses to the respondent,
Helen Doyle. Doyle, in turn, subleased space to various parties. The Davidsohn-Doyle lease
requires Doyle, at her own cost to keep the entire demised premises in good condition and
repair.
1
Paragraph 7(h) of the lease permits the lessor to reenter the property and terminate
the lease upon the lessee's breach.
2
In February 1988, Davidsohn hired Ivan Tippetts, a real estate appraiser and licensed
contractor, to inspect the condition of the leased premises. Tippetts' inspection revealed a
complete disregard for the maintenance, health, safety and code requirements. Consequently,
Davidsohn's attorney sent a letter to Doyle and her attorney. The first three paragraphs of the
letter discuss the Tippetts report. The fourth paragraph of the letter states:
THIS LETTER IS NOTICE OF TERMINATION OF THE LEASE TENANCY.
Pursuant to the Lease, you have thirty (30) days within which to institute significant
repair efforts. I am well aware that it is virtually impossible to accomplish what is
needed to bring this property up to the very minimum standard within thirty (30) days.
This notice is sent pursuant to the Lease and the requirements within the State of
Nevada.
The remainder of the letter expresses concern over the condition of the leased property, and
suggests that the parties' attorneys sit down to devise a plan of action.
Tippetts reinspected the property in April after Doyle made some repairs, but found that
the work was not done in a professional manner, and that it failed to cure the major
problems.
__________
1
The lease provision reads:
4. MAINTENANCE: Lessee shall at their own cost and expense keep the entire demised premises,
including any building or buildings constructed by Lessee, in good condition and repair at all times.
Lessor shall be under no obligation whatsoever to make any repairs to any portion of the demised
premises nor shall Lessor at any time be called upon or obligated to remodel, redecorate or perform
pertaining to the demised premises or any building or buildings thereon.
2
Paragraph 7(h), in pertinent part, states:
If any default be made by the Lessee in the observance or performance of any of the terms, conditions
or covenants hereof, the Lessor shall have the right, after first having given the Leessee at least fifteen
days written notice of such default, and the Lessee not having cured the same within such fifteen days, to
enter into possession of the demised premises and to remove all persons and property therefrom and, at
Lessor's option to terminate this lease.
108 Nev. 145, 147 (1992) Davidsohn v. Doyle
some repairs, but found that the work was not done in a professional manner, and that it failed
to cure the major problems. Thereafter, Davidsohn's attorney sent a second letter to Doyle,
dated April 25, 1988. This letter stated that Doyle's lease was terminated because she failed to
remedy the breach charged in the March 14th letter.
Davidsohn filed a complaint for declaratory relief to terminate the lease on May 3, 1988.
Doyle continued to pay rent through August 1989 by depositing checks in a Los Angeles bank
under an account maintained in the name of Davidsohn's wife. On June 1, 1988, Davidsohn
sought a temporary restraining order, enjoining Doyle from (1) collecting rent from her
sublessees, (2) interfering with Davidsohn's access to the property and tenants, and (3) doing
further work on the property without prior approval. The district court denied this motion, but
ordered Doyle to give Davidsohn reasonable access to the property. Tippetts inspected the
property again on July 21, 1988, and found the repair work still inadequate and
unprofessional. That day Tippetts filed a complaint with the Las Vegas Police Department
stating that his life had been threatened by Doyle's property manager during the inspection.
Davidsohn moved for summary judgment on August 10, 1988. After being granted time
for discovery, Doyle also moved for summary judgment. The court denied Davidsohn's
motion and granted Doyle's on the basis that Davidsohn had waived his right to terminate the
lease by accepting rent from Doyle despite knowledge of the breach. Additionally, the court
determined that the March 14, 1988 letter did not comply with NRS 40.2516, which requires
that written notice in an unlawful detainer action give the tenant the option to comply with
the lease terms or vacate the premises.
Doyle filed a motion to amend the court's findings of fact and conclusions of law and
judgment, seeking attorney's fees and costs of $36,917.36 under the lease. After oral
argument, the court denied Doyle's motion, finding that the lease provision regarding
attorney's fees did not apply under the facts of the case.
Davidsohn appealed from the grant of summary judgment in favor of Doyle, and Doyle
cross-appealed from the denial of her motion requesting attorney's fees and costs. We are
convinced that under the facts of this case, Davidsohn did not waive his right to terminate the
lease by accepting rent from Doyle. We are also persuaded that Davidsohn gave Doyle
adequate notice of his intent to terminate the lease. Therefore, we reverse the summary
judgment and remand the matter to the district court for further proceedings.
108 Nev. 145, 148 (1992) Davidsohn v. Doyle
Discussion
A party is entitled to summary judgment when there are no material issues of fact to be
resolved, and the moving party is entitled to judgment as a matter of law. NRCP 56(c).
Neither party contends that there are any disputed material factual issues. Therefore, our
analysis centers on whether the district court correctly perceived and applied the law. Mullis
v. Nevada Nat'l Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
A. Acceptance of rent as a waiver of breach.
[Headnote 1]
In ruling as it did, the district court relied on the general rule that when a lessor accepts
rent, with full knowledge of a breach by his lessee, the lessor waives his right to terminate the
lease based upon that breach. Reno Realty v. Hornstein, 72 Nev. 219, 301 P.2d 1051 (1956);
Sharp v. Twin Lakes Corp., 71 Nev. 162, 283 P.2d 611 (1955).
Davidsohn urges this court to recognize an exception to the general rule based upon the
protracted pendency of the action between the parties, the commercial nature of the subject
lease, and the March 14, 1988 notice of default communicated to Doyle. The principal
Nevada case holding that a lessor waives his right to terminate a lease by accepting rent from
the lessee is Sharp v. Twin Lakes Corp., 71 Nev. 162, 283 P.2d 611 (1955). In Sharp, a lessee
sued its lessor for the return of deposit money which was held in escrow to ensure
performance of the lease terms. The lessor counterclaimed for forfeiture of the lease based on
numerous breaches by the lessee. We held that the lessor had waived his right to terminate the
lease for breach by accepting rent without giving the lessee any intimation that he regarded
the lease as forfeited. 71 Nev. at 167, 283 P.2d at 613. Until filing the counterclaim, the
lessor's actions affirmed the existence of the lease and recognized the lessee as his tenant.
Id.
In Sharp, we were concerned about the lessor seeking to terminate the lease after lulling
the lessee into believing that its breach of the terms of the lease would be overlooked. In the
present case, Doyle cannot reasonably contend that Davidsohn's actions led her to believe that
any failure to properly maintain the leased premises would be excused. Davidsohn acted
promptly after learning of the deteriorated condition of the buildings. After giving Doyle an
opportunity to repair the property, Davidsohn pressed for termination of the lease. Doyle was
aware of these efforts as she continued to pay rent for well over a year after Davidsohn
brought suit. Thus, Davidsohn did not induce Doyle into believing the breach would be
excused.
Additionally, the lease involves commercial property. Doyle is a businesswoman
subleasing the property for profit, not an unsophisticated residential tenant in need of a
roof over her head.
108 Nev. 145, 149 (1992) Davidsohn v. Doyle
a businesswoman subleasing the property for profit, not an unsophisticated residential tenant
in need of a roof over her head. Doyle was in need of no special protection from Davidsohn.
Several neighboring jurisdictions permit a lessor in certain instances to accept rent without
waiving the right to terminate the lease. See DMV Co. v. Bricker, 672 P.2d 933, 935 (Ariz.
1983); Riverside Development Co. v. Ritchie, 650 P.2d 657, 662-63 (Idaho 1982); Fogel v.
Hogan, 496 P.2d 322, 324 (Colo.Ct.App. 1972). These states recognize the general rule that a
landlord's acceptance of rent after notice of a breach waives the right to terminate the lease
based on that breach. However, when a lessor takes definite action to terminate a lease, and
the lessee opposes the action and remains in possession, these jurisdictions allow the lessor to
continue accepting rent from the lessee while pursuing termination. But see Woodland
Theatres v. ABC Intermountain Theatres, 560 P.2d 700 (Utah 1977) (finding a waiver even
though lessor initiated two actions to terminate lease).
[Headnote 2]
We agree with the reasoning of those cases that recognize as an exception to the general
rule, a lessor's right to accept rent after a breach by the lessee when the lessor timely
expresses his intent to terminate the lease and the lessee nevertheless remains in possession.
3
Irrespective of who prevails in litigation, the lessee will be liable for rent incurred during the
period of possession of the demised premises. The issue is simply one of timing, not of
entitlement. Requiring a lessor to forego rental payments until resolution of a dispute may be
unduly burdensome, as in the instant case involving a commercial lease with a substantial
monthly rental. To recognize a waiver in the present case would be tantamount to sanctioning
the breach by allowing Doyle to continue collecting rent from her sublessees without paying
Davidsohn or curing the breach. As stated in Riverside Development:
The doctrine of waiver is an equitable doctrine based upon fairness and justice.
However, the lessor, who has mortgages, taxes and other expenses to pay, cannot fairly
be said to be a beneficiary of such fairness and justice as long as he is forced to avoid
the acceptance of any compensation for a tenant's unlawful possession of the property
(which may extend for periods of months or years due to litigation), because of the
threat that as soon as he does the tenant will cry waiver.
650 P.2d at 662.
__________
3
Cf. Wecht v. Anderson, 84 Nev. 500, 506, 444 P.2d 501, 505 (1968) (lessor did not waive breach by
accepting rent during a grace period given to the lessee to either cure the default or purchase the property).
108 Nev. 145, 150 (1992) Davidsohn v. Doyle
Based upon our adoption of the exception to the general rule, as discussed above, we hold
that Davidsohn did not waive his right to terminate the lease by accepting rental payments
from Doyle after knowledge of the breach. Davidsohn timely pursued his action, and we
cannot seriously doubt that Doyle was aware of Davidsohn's intention to terminate the lease if
repairs were not timely made. Although the first letter sent to Doyle was somewhat equivocal,
the second letter and the initiation of the declaratory judgment action adequately notified
Doyle that Davidsohn was seeking to terminate the lease because of the state of disrepair of
the leased property. Davidsohn's complaint about the condition of the premises appears well
supported in the record. Therefore, Davidsohn may pursue his action for termination despite
his acceptance of the rent tendered by Doyle.
B. Sufficiency of the notice.
[Headnotes 3, 4]
The district court determined that Davidsohn failed to give adequate notice of his intent to
terminate the lease, because the March 14, 1988 letter did not satisfy the statutory notice
requirements for unlawful detainer actions. Davidsohn contends, however, that the unlawful
detainer statute was inapplicable because he sought to terminate Doyle's tenancy under the
terms of the lease. We agree and hold that a lessor who seeks termination under a lease
provision is not obligated to meet the notice requirements of NRS 40.2516.
[Headnote 5]
NRS 40.2516 outlines the procedures for regaining possession of real property from a
tenant in unlawful detainer.
4
In an unlawful detainer action, strict compliance with the
statutory notice provision is a jurisdictional prerequisite. Roberts v. District Court, 43 Nev.
332, 340, 185 P. 1067, 1069 (1920); Paul v. Armstrong, 1 Nev. 70, 76 (1865). Here,
Davidsohn did not institute an unlawful detainer action; he sought a declaratory judgment
terminating the lease pursuant to a provision of the lease.
__________
4
NRS 40.2516, in pertinent part, is set forth below:
A tenant of real property or a mobile home for a term less than life is guilty of an unlawful detainer
when he continues in possession, in person or by subtenant, after a neglect or failure to perform any
condition or covenant of the lease or agreement under which the property or mobile home is held, other
than those mentioned in NRS 40.250 to 40.252, inclusive, and NRS 40.254, and after notice in writing,
requiring in the alternative the performance of the condition or covenant or the surrender of the
property, served upon him, and, if there is a subtenant in actual occupation of the premises, also upon the
subtenant, remains uncomplied with for 5 days after the service thereof.
(Emphasis added.)
108 Nev. 145, 151 (1992) Davidsohn v. Doyle
judgment terminating the lease pursuant to a provision of the lease. When a lessor seeks
termination under a lease provision, the notice requirements for an unlawful detainer action
are inapplicable.
5
Thus, the district court improperly found that Davidsohn was required to
comply with NRS 40.2516.
6
Because of our disposition of this appeal, it is unnecessary to discuss Doyle's cross-appeal
from the district court's ruling denying her attorney's fees.
For the reasons specified above, we reverse the district court's summary judgment in favor
of Doyle and remand the case for further proceedings consistent with this opinion.
Mowbray, C. J., Rose, Steffen and Young, JJ., and Lehman, D. J.,
7
concur.
____________
108 Nev. 151, 151 (1992) Nevada National Bank v. Snyder
NEVADA NATIONAL BANK, Currently Known as SECURITY PACIFIC BANK
NEVADA, Appellant, v. PAUL SNYDER, Trustee in Bankruptcy for Collins and
Ryder Consulting Engineers, Inc., and ROBERT K. DEPNER dba THE DEPNER
ASSOCIATION, Respondents.
No. 21678
February 20, 1992 826 P.2d 560
Appeal from a judgment granting priority to mechanic's liens of respondents. Second
Judicial District Court, Washoe County; Robert L. Schouweiler, Judge.
Mortgagee nonjudicially foreclosed on its deed of trust. At trial, the district court granted
priority to contractor and subcontractor on mechanic's liens, and mortgagee appealed. The
supreme court held that: (1) contractor, foreign corporation, did not have capacity to commit
suit; (2) trial court abused its discretion in permitting an individual to substitute himself for
the contractor; and (3) mortgagee could not be held personally liable.
Reversed.
__________
5
However, under NRS 40.252, a contractual provision which attempts to shorten the notice period required in
NRS 40.2516 is void.
6
Since we have determined that the notice given was sufficient, Davidsohn may be entitled, under the lease, to
expenses incurred in drafting and serving the notice of termination to Doyle. The district court, determining that
no notice was served, denied such expenses.
7
The Honorable Jack Lehman, Judge of the Eighth Judicial District, was designated by the Governor to sit in
the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
108 Nev. 151, 152 (1992) Nevada National Bank v. Snyder
[Rehearing denied May 18, 1992]
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Joan C. Wright, Carson City;
and Tobin & Tobin and Keith Kandarian and Scott Arthur Sommer, San Francisco,
California, for Appellant.
James C. VanWinkle, and Beckley, Singleton, DeLanoy, Jemison & List, Reno; and Heller,
Ehrman, White & McAuliffe, Michael R. Wrenn, and Wendy F. Liebow, Seattle, Washington,
for Respondents.
1. Banks and Banking.
Legal successor in interest to foreign corporation which was authorized to do business in Nevada had no capacity to commence
suit in Nevada, where the successor did not inform the Nevada Secretary of State of its name change and corporate dissolution. NRS
80.030, 80.210.
2. Parties.
Trial court abused its discretion in permitting an individual to substitute himself for a plaintiff foreign corporation; the individual
conducted business in Nevada in corporate name, and the foreign corporation was not qualified to do business in Nevada. NRS 80.010.
3. Mortgages.
Mechanics' liens of contractor and subcontractor, who performed work on premises prior to construction, did not have priority
over bank's mortgage; the contractor and subcontractor failed to establish the something more required for accrual of mechanics'
liens prior to commencement of construction, in that testimony indicated that work performed was preliminary to further planning and
construction, soil and engineering studies by contractor were not sufficient to establish work done, and further work was subject to
many governmental approvals. NRS 108.225.
4. Implied and Constructive Contracts; Mechanics' Liens.
Mortgagee that foreclosed its deed of trust on property was not unjustly enriched by work performed on property by contractor and
subcontractor, and, thus, mortgagee could not be held personally liable for deficiency following forced sale, even if work performed by
contractor and subcontractor increased value of property; mortgagee was not a party to contract between mortgagor and contractor, and
mortgagee, a bank, was not person liable for debt under mechanics' liens statutes. NRS 108.238.
OPINION
Per Curiam:
The question on appeal is whether respondents have capacity to commence or maintain
suit in Nevada courts. We hold they do not.
FACTS
On or about April 2, 1980, George Benny (Benny) entered into an option agreement to
purchase the Double Diamond Ranch, which he intended to develop into a subdivision with
many amenities.
108 Nev. 151, 153 (1992) Nevada National Bank v. Snyder
which he intended to develop into a subdivision with many amenities. That same month,
Benny retained Collins, Ryder & Watkins Consulting Engineers, Inc. (CR&W), to plan and
design the development of the ranch. Soon thereafter, CR&W hired Depner Architects &
Planners, Inc., P.S., (Depner) to provide planning and architectural services. Over the next
two years, Depner and CR&W engaged in many planning and surveying activities on the
property. On March 24, 1981, Benny received a $3,000,000 loan from Nevada National Bank
(Bank) in order to acquire the ranch; the loan was secured by a deed of trust against the
property. The Bank recorded the deed of trust on March 24, 1981. Depner recorded a
mechanic's lien of $77,340.25 on February 19, 1982. Collins and Ryder Consulting
Engineers, Inc., (C&R) (corporate successor to CR&W) recorded two mechanic's liens: one
on April 28, 1982, for $620,000 and another on January 31, 1983, for $130,000. Benny
eventually declared bankruptcy, owing C&R money. The Bank nonjudicially foreclosed on its
deed of trust on June 18, 1985. At trial, the court granted priority to the mechanic's liens of
C&R and Depner. The Bank appeals.
The Bank argues that the district court erred in: (1) finding C&R and Depner had capacity
to commence suit, (2) granting priority to the mechanic's liens, and (3) declaring the Bank
personally liable to C&R and Depner.
DISCUSSION
C&R'S CAPACITY TO COMMENCE SUIT
[Headnote 1]
In C&R's complaint and first amended complaint, it describes itself as a legal successor in
interest to CR&W and as being authorized to do business in Nevada. In the amended
complaint, it also describes itself as a Nevada corporation. On June 29, 1981, CR&W filed
articles of amendment in Washington State to change its name to Collins and Ryder
Consulting Engineers, Inc. CR&W was authorized to do business in Nevada on June 6, 1980,
until that authorization was revoked on March 1, 1986, for failure to file its Annual List of
Officers, Directors and Resident Agent. However, C&R (as opposed to CR&W) has never
been a Nevada corporation and was never authorized to do business in this state. On April 19,
1985, C&R was administratively dissolved in Washington State. C&R did not inform the
Nevada Secretary of State of its name change, nor did it inform the Nevada Secretary of State
of its corporate dissolution, as required by NRS 80.030.
1
Because of these violations of
NRS S0.030, the Bank argues that C&R is barred from maintaining suit in Nevada courts
by NRS S0.210.2
__________
1
NRS 80.030 provides in relevant part:
1. Each foreign corporation admitted to do business in this state shall, within 30 days after the filing
of any document amendatory or
108 Nev. 151, 154 (1992) Nevada National Bank v. Snyder
Because of these violations of NRS 80.030, the Bank argues that C&R is barred from
maintaining suit in Nevada courts by NRS 80.210.
2
In Bader Enterprises, Inc. v. Olsen, 98 Nev. 381, 649 P.2d 1369 (1982), we upheld the
dismissal of a suit under NRS 80.210 when the corporate charter of a Delaware corporation
was revoked during trial. In Bader, this court specifically stated that the failure to follow the
provisions of NRS 80.030 bars a foreign corporation from maintaining any proceeding in
Nevada courts. Id. at 384, 649 P.2d at 1370-71.
C&R claims it complied with NRS 80.030, arguing that it informed the Nevada Secretary
of State of its corporate name change when it filed a change of address of resident agent with
the Nevada Secretary of State on May 14, 1982. The filing reflected C&R's new corporate
name. This argument cannot prevail. Clearly, C&R did not meet the requirements for
informing the Nevada Secretary of State as set forth in NRS 80.030(1)(a).
Because C&R did not inform the Nevada Secretary of State of its name change and
corporate dissolution, in violation of NRS 80.030, it is precluded by NRS 80.210 from
maintaining this action in Nevada courts.
DEPNER'S CAPACITY TO COMMENCE SUIT
[Headnote 2]
Depner brought suit on behalf of Depner Architects & Planners, Inc., P.S. After the Bank
had moved to dismiss the case, based on Depner's lack of capacity, Depner moved the district
court to amend his complaint and substitute himself in an individual capacity as plaintiff. The
court allowed the amendment, finding that Depner transacted business in Nevada as a sole
proprietorship call The Depner Association.
Depner argues that the decision to substitute himself as an individual for the corporation
was within the sound discretion of the trial court under NRCP 15{a).3
__________
otherwise relating to the original articles in the place of its creation, file in the office of the secretary of
state:
(a) A copy of the document certified by an authorized officer of the place of its creation, or a
certificate evidencing the filing, issued by the authorized officer of the place of its creation with whom
the document was filed; . . . .
2
NRS 80.210 provides in relevant part:
1. Every corporation which fails or neglects to comply with provisions of NRS 80.010 to 80.040,
inclusive:
. . . .
(b) [M]ay not commence or maintain any action or proceeding in any court of this state until it has
fully complied with the provisions of NRS 80.010 to 80.040, inclusive. . . .
(Emphasis added.)
108 Nev. 151, 155 (1992) Nevada National Bank v. Snyder
individual for the corporation was within the sound discretion of the trial court under NRCP
15(a).
3
The Bank claims the district court erred in finding that Depner worked on the Double
Diamond Ranch project as a sole proprietorship, pointing out the following facts: (1) After
Depner incorporated in Washington on December 8, 1980, all invoices were submitted to
C&R on behalf of the corporation; (2) the construction drawings for the proposed project
were prepared by the corporation; (3) the individuals who worked on the drawings were
employees of the corporation; (4) Depner had a prior appeal in this case, which is in the name
of the corporation (Depner Architects v. Nevada Nat. Bank, 104 Nev. 560, 763 P.2d 1141
(1988)); and (5) this action was brought on behalf of the corporation, purporting that it was
authorized to do business in Nevada. We agree that the district court erred in substituting
Depner in an individual capacity as plaintiff.
In League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93 Nev. 270, 563 P.2d
582 (1977), this court found that dismissal of suit with prejudice under NRS 80.210 was
proper where the plaintiff foreign corporation was not qualified to do business in Nevada,
even though the plaintiff qualified to do business in Nevada approximately nine months later.
Id. at 273, 563 P.2d at 584-585. The dismissal with prejudice was upheld because the statute
of limitations would have expired upon a re-filing of the suit. Id.
We hold that the district court abused its discretion in allowing Depner to substitute
himself as an individual for the corporate entity in this case. The evidence is clear that Depner
conducted business in Nevada in the corporate name. In order to become authorized to do
business in Nevada, Depner must have complied with NRS 80.010.
4
He did not.
__________
3
NRCP 15(a) provides in relevant part:
(a) Amendments. A party may amend his pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and
the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after
it is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when justice so requires.
. . .
4
NRS 80.010 provides in relevant part:
1. Before commencing or doing any business in this state, every corporation organized under the
laws of another state, territory, the District of Columbia, a dependency of the United States or a foreign
country, that enters this state to do business must file:
(a) In the office of the secretary of state of Nevada;
(1) A certificate of corporate existence issued not more than 90
108 Nev. 151, 156 (1992) Nevada National Bank v. Snyder
As a foreign corporation which is not in compliance with NRS 80.010, Depner Architects
& Planners, Inc., P.S., is barred from commencing or maintaining a suit in Nevada courts by
NRS 80.210.
PRIORITY OF MECHANIC'S LIENS
[Headnote 3]
Assuming, arguendo, that C&R and Depner had capacity to commence suit, the district
court erred in granting priority to their mechanic's liens. We considered the issue of priority to
their mechanic's liens in Aladdin Heating v. Trustees, Cent. States, 93 Nev. 257, 563 P.2d 82
(1977). There, this court held that surveying the land, drafting architectural plans and soil
testing did not constitute work done within the meaning of NRS 108.225. This court stated:
[A]ctual on-site construction had not yet started and the architectural, soil testing, and
survey work appellants rely on for their priority is insufficient to constitute the
commencement of a building or improvement; something more is required. Were we to
hold otherwise and permit mechanics' liens to accrue based on this work done prior to
the commencement of construction, mechanics' liens could relate back to a time long
before there were any visible signs of construction to inform prospective lenders
inspecting the premises that liens had attached. Under such circumstances, no prudent
businessman would be willing to lend construction money.
Id. at 260, 563 P.2d at 84 (citations omitted).
The Bank argues that C&R and Depner never performed the something more required
by Aladdin. We agree. C&R's project coordinator testified that the work performed was
preliminary to actually proceed[ing] with the further planning and construction of the site
improvements. The soil and engineering studies by C&R are insufficient to establish work
done within the holding of Aladdin. Further work on the ranch was subject to many
governmental agency approvals. What little work was visible on the 2,300 acre ranch (wells
and trenching) does not constitute notice that actual development of the property had begun;
indeed, the ranch was a working cattle ranch in 1981 and throughout the 1980's.
__________
days before the date of filing by an authorized officer of the jurisdiction of its incorporation setting forth
the filing of documents and instruments related to the articles of incorporation. . . .
108 Nev. 151, 157 (1992) Nevada National Bank v. Snyder
PERSONAL LIABILITY OF THE BANK
[Headnote 4]
The district court judgment stated that C&R and Depner were entitled to a personal
judgment for the residue against the Bank. The Bank asserts that the remedy to enforce a
mechanic's lien is to force a sale of the property and that it is not liable for any deficiency if
the monies from the sale do not cover the amount of Depner's and C&R's liens. We agree.
In Milner Et Al. v. Shuey, 57 Nev. 174, 69 P.2d 771 (1937), this court stated that there
must be a contractual relationship regarding the furnishing of labor and materials between the
party foreclosing the lien and the party against whom personal liability is sought. This court
stated: [S]uch a relation is essential to establish a personal liability against the owner of the
property in addition to a judgment foreclosing a lien . . . . Id. at 179, 69 P.2d at 772. Further,
the statutory language regarding deficiencies and personal actions is illuminating here. NRS
108.238 provides:
Right to maintain personal action for debt not impaired. Nothing contained in NRS
108.221 to 108.246, inclusive, shall be construed to impair or affect the right of any
person to whom any debt may be due for work done or material furnished to maintain a
personal action to recover such debt against the person liable therefor.
(Emphasis added.)
It is unjust to hold the Bank personally liable for a deficiency when it was not a party to
the C&R/Benny contract, and because the Bank is not the person liable for the debt under
NRS 108.238.
C&R and Depner argue that the Bank was unjustly enriched, because the work they
performed increased the value of the property, and the Bank should be held personally liable
for any deficiency. C&R and Depner contend that the Bank relied on their work to increase
the value of the land and therefore the principle of unjust enrichment is applicable.
While there was a benefit conferred on the Bank, it does not rise to unjust enrichment.
California has considered this question in Kossian v. American Nat. Ins. Co., 254 Cal.App.2d
647 (Cal.Ct.App. 1967). There, a building was destroyed by fire. Kossian provided services to
the owner for debris removal and was never compensated for his services. American National
Insurance Company obtained the property when the owner assigned his interest to the
insurance company. Kossian sued the insurance company on a theory of unjust enrichment.
After noting that there was no privity of contract between Kossian and the insurance company
for work performed, the court stated that there was no unjust enrichment even though a
benefit had been conferred on the insurance company. Id. at 64S-49.
108 Nev. 151, 158 (1992) Nevada National Bank v. Snyder
there was no unjust enrichment even though a benefit had been conferred on the insurance
company. Id. at 648-49.
Any prudent lender evaluates a loan and hopes that the land will increase in value. There is
simply no basis in this case to find that the Bank was unjustly enriched by the work C&R and
Depner performed on the ranch, pursuant to their contract with Benny.
CONCLUSION
The district court erred in finding that C&R had capacity to maintain suit in Nevada courts
and in substituting Depner as an individual as plaintiff in place of the corporate entity. The
district court further erred in granting priority to C&R's and Depner's mechanic's liens and
again in imposing personal liability upon the Bank. Because C&R and Depner did not have
capacity to commence or maintain suit, it is unnecessary for us to reach the Bank's other
arguments.
We therefore reverse the judgment of the district court.
____________
108 Nev. 158, 158 (1992) Sechrest v. State
RICKY DAVID SECHREST, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21827
February 20, 1992 826 P.2d 564
Appeal from a denial of post-conviction relief from two sentences of death. Second
Judicial District Court, Washoe County; Charles M. McGee, Judge.
Following affirmance of murder convictions and death sentence, 101 Nev. 360, 705 P.2d
626, defendant sought post-conviction relief. The district court denied relief, and defendant
appealed. The supreme court held that defendant was not denied effective assistance of
counsel during penalty stage.
Affirmed.
Robert Bruce Lindsay, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Dorothy Nash Holmes, District
Attorney; and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant raising issue of ineffective assistance counsel must establish that counsel's performance was deficient and that
deficiency prejudiced defense. U.S.C.A.Const. amend. 6.
108 Nev. 158, 159 (1992) Sechrest v. State
2. Constitutional Law; Criminal Law.
State risks violating Fifth Amendment rights by seeking to enhance its prospects for death verdict through introduction of
statements made by defendant during course of court-ordered psychiatric examination; when such statements are wrongfully used,
State is required to prove beyond reasonable doubt that error was harmless. U.S.C.A.Const. amend. 5.
3. Constitutional Law; Criminal Law.
State did not violate defendant's Fifth Amendment rights by seeking to enhance its prospects for death verdict through introduction
of statements made by defendant during psychiatric examination and psychiatrist's opinion that defendant was an incurable sociopath,
where examination had been ordered at request of defense, and future dangerousness was not an aggravating circumstance upon which
death penalty could be considered. U.S.C.A.Const. amend. 5; NRS 200.033.
4. Criminal Law.
Defendant was not prejudiced by defense counsel's failure to interview psychiatrist before penalty phase in order to evaluate
possibly damaging effect of his testimony, where psychiatrist's testimony regarding defendant's criminal history and dim prospects for
change was unrelated to any of the aggravating circumstances found by the jury for each murder. U.S.C.A.Const. amend. 6.
5. Criminal Law.
When defendant challenges death sentence, question is whether there is reasonable probability that, absent errors, the sentencer,
including an appellate court, to the extent it independently reweighs evidence, would have concluded that balance of aggravating and
mitigating circumstances did not warrant death. U.S.C.A.Const. amend 6.
OPINION
Per Curiam:
Ricky David Sechrest was convicted of the brutal 1983 slayings of two young girls and
sentenced to death. We affirmed Sechrest's judgment of conviction and sentences in Sechrest
v. State, 101 Nev. 360, 705 P.2d 626 (1985). Sechrest now seeks to overturn his death
sentences through post-conviction relief by asserting that he received ineffective assistance of
counsel at the penalty phase of his trial. The district court determined that Sechrest's counsel
had indeed performed deficiently, but denied relief because Sechrest had failed to show any
prejudice resulting from his counsel's performance. After careful consideration, we affirm the
decision of the district court.
Background
The primary witness for the State at the penalty phase of Sechrest's trial was Lynn M.
Gerow, a psychiatrist. Gerow had originally been appointed as an expert by the court at the
request of defense counsel. Gerow had examined Sechrest and submitted a report of his
findings to defense counsel. The defense decided not to call Gerow as a witness in the
penalty phase, but acquiesced to the State's request to call Gerow.
108 Nev. 158, 160 (1992) Sechrest v. State
not to call Gerow as a witness in the penalty phase, but acquiesced to the State's request to
call Gerow. Among other things, Gerow's testimony indicated that Sechrest was an incurable
sociopath, who had an extensive history of criminal activity and drug use.
In a hearing before the district court, Sechrest sought to establish that he was denied his
sixth amendment right to effective counsel because of his attorney's failure to prevent Gerow
from testifying for the State. This district court determined that defense counsel's
performance was substandard in that he failed to interview Gerow before the penalty phase in
order to evaluate the possibly damaging effect of Gerow's testimony (defense counsel did
communicate with Gerow several times before the State indicated its desire to use Gerow as a
witness). Despite its determination that defense counsel's representation was deficient, the
district court denied relief because Sechrest had failed to demonstrate that he had been
prejudiced by his attorney's performance. This appeal followed.
Discussion
[Headnote 1]
Sechrest contends that the district court erred by requiring him to show that he was
prejudiced by his counsel's derelictions. Sechrest nevertheless concedes that sixth amendment
ineffective assistance of counsel claims are generally governed by the standard announced in
Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this court in Warden v.
Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Under Strickland standards, a defendant raising a
claim of ineffective assistance of counsel must establish that counsel's performance was
deficient, and that the deficiency prejudiced the defense. 466 U.S. at 687. However, Sechrest
contends that his claim warrants a fifth amendment analysis because defense counsel
facilitated the violation of Sechrest's fifth amendment right against self-incrimination by
permitting Gerow to testify about his psychiatric examination of Sechrest. A fifth amendment
analysis would shift the burden to the State to prove beyond a reasonable doubt that any
constitutional errors were harmless. Satterwhite v. Texas, 486 U.S. 249 (1988); Chapman v.
California, 386 U.S. 18 (1967).
[Headnote 2]
A state risks violating fifth amendment rights by seeking to enhance its prospects for a
death verdict through the introduction of statements made by the defendant during the course
of a court-ordered psychiatric examination. Estelle v. Smith, 451 U.S. 454 (1981). When such
statements are wrongfully used, the state is required to prove beyond a reasonable doubt
that the error was harmless.
108 Nev. 158, 161 (1992) Sechrest v. State
required to prove beyond a reasonable doubt that the error was harmless. Satterwhite;
Chapman.
[Headnote 3]
In the instant case, however, the defendant's statements were not improperly obtained or
used. Dr. Gerow's psychiatric examination of Sechrest was ordered at the request of the
defense. The State later sought and obtained permission to use Gerow's testimony during the
penalty hearing. In contrast, Satterwhite and Estelle involved situations where defense
counsel was not the moving force behind the psychiatric examination that was introduced
over the objection of counsel. Additionally, the trial courts in Satterwhite and Estelle were
required by Texas law to impose the death penalty if the jury answered certain questions
affirmatively, including the question of whether the defendant posed a continuing threat to
society. The psychiatric testimony in those cases addressed the latter question, and thus
impacted a crucial issue. In contrast here, although Gerow opined that Sechrest would not
change, Nevada has not designated future dangerousness as an aggravating circumstance
upon which the death penalty may be considered. NRS 200.033.
Gerow's testimony did not implicate any of the aggravating circumstances which were
found by the jury as a basis for the imposition of the death penalty. Sechrest's statements were
properly communicated to Gerow, and introduced with the consent of defense counsel.
Neither federal nor state law supports an assertion that Sechrest's fifth amendment rights were
violated. Thus, the issue is one of ineffective assistance of counsel to which the Strickland
test applies.
[Headnote 4]
As noted above, the Strickland standard involves a two-pronged inquiry: was defense
counsel's performance deficient, and, if so, was the defendant prejudiced as a result. We need
not determine whether the district court was correct in finding counsel's performance
deficient because Sechrest has clearly failed to show prejudice. See Strickland, 466 U.S. at
697; Bejarano v. State, 106 Nev. 840, 801 P.2d 1388 (1990).
[Headnote 5]
When a defendant challenges a death sentence . . . the question is whether there is a
reasonable probability that, absent the errors, the sentencerincluding an appellate court, to
the extent it independently reweighs the evidencewould have concluded that the balance of
aggravating and mitigating circumstances did not warrant death. Strickland at 695. See also
Howard v. State, 106 Nev. 713, 800 P.2d 175 (1990).
108 Nev. 158, 162 (1992) Sechrest v. State
In the penalty phase, the jury found four aggravating circumstances for each murder.
Specifically, the jury found that the murders were committed: (1) during the course of a
kidnapping;
1
(2) during the commission or attempted commission of sexual assault; (3) for
the purpose of avoiding or preventing a lawful arrest; and (4) in a manner involving torture,
depravity of mind or the mutilation of the victim. No mitigating circumstances were found.
Gerow's testimony regarding Sechrest's criminal history and dim prospects for change was
unrelated to any of the above aggravating factors. Therefore, Sechrest can only show
prejudice by establishing that Gerow's testimony negated mitigating circumstances that would
have been sufficiently strong to overcome the aggravating circumstances.
The only mitigating factor argued by the defense which may have been affected by
Gerow's testimony concerned the jurors' failure to find that Sechrest lacked a significant
history of prior criminal activity. NRS 200.035(1). Dr. Gerow testified that Sechrest had
admitted to an extensive history of criminal involvement. However, other witnesses also
testified about Sechrest's prior involvement with the law. During closing argument, defense
counsel recounted Sechrest's previous crimes,
2
but emphasized Sechrest's lack of previous
involvement in crimes of violence. Thus, the jury heard testimony other than Gerow's from
which to reject this mitigating factor. In any event, even if Gerow's testimony were viewed as
having the potential to dissuade the jurors from finding this one mitigating factor, it is clear
beyond a reasonable doubt that no error occurred that would have caused the jury to conclude
that the four aggravating circumstances were outweighed by the arguably mitigating factor no
matter how strongly it may have been established.
The evidence at trial exposed the heinous nature of Sechrest's brutal crimes. Nothing short
of the most compelling mitigating circumstances would have offered the potential of a
sentence other than death. None were shown to exist. Although Gerow's testimony was not
flattering to Sechrest, it revealed little that the jurors would not have surmised from the
brutality and lack of humanity associated with Sechrest's destruction of two innocent young
lives. As the district court observed, Gerow's testimony was little more than cumulative. We
agree, and are unable to conclude or remotely perceive that absent Gerow's testimony, there is
a reasonable probability that the result would have been different.
__________
1
The jury had already found Sechrest guilty of two counts of first-degree kidnapping in connection with the
murders.
2
These included burglary, possession of stolen property, possession of controlled substances and curfew
violation.
108 Nev. 158, 163 (1992) Sechrest v. State
Accordingly, we conclude that Sechrest was not denied the effective assistance of counsel
during the penalty stage of his trial, and affirm as being fully justified the district court's
denial of post-conviction relief from Sechrest's sentences of death.
____________
108 Nev. 163, 163 (1992) Town of Eureka v. State Engineer
TOWN OF EUREKA, an Unincorporated Town, Appellant, v. THE OFFICE OF THE
STATE ENGINEER OF THE STATE OF NEVADA, DIVISION OF WATER
RESOURCES, PETER G. MORROS, State Engineer, Respondent.
No. 21908
February 20, 1992 826 P.2d 948
Appeal from a district court order affirming the State Engineer's decision to forfeit a
portion of the water rights held by appellant. Seventh Judicial District Court, Eureka County;
Merlyn H. Hoyt, Judge.
Town sought review of state engineer's decision to forfeit portion of its water rights. The
district court affirmed, and town appealed. The supreme court held that: (1) statute working
forfeiture of water rights for five consecutive years of nonuse is constitutional insofar as it
applies retroactively, but (2) substantial use of water rights after statutory period of nonuse
cures claims to forfeiture, so long as no claim or proceeding of forfeiture has begun.
Reversed and remanded.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Dan Saxon and Karen
Peterson, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, and Margaret A. Twedt, Deputy Attorney
General, Carson City, for Respondent.
Woodburn, Wedge & Jeppson and Gordon H. DePaoli, Reno, for Amicus Curiae Sierra
Pacific Power Company.
1. Administrative Law and Procedure; Waters and Water Courses.
In reviewing state engineer's decision on question of fact, court must limit itself to determining whether substantial evidence
supports state engineer's decision.
2. Administrative Law and Procedure.
District court is free to decide purely legal questions without deference to agency's decision.
108 Nev. 163, 164 (1992) Town of Eureka v. State Engineer
3. Statutes.
While state engineer's interpretation of statute is persuasive, it is not controlling.
4. Constitutional Law; Waters and Water Courses.
Water rights are subject to regulation under police power as is necessary for general welfare.
5. Waters and Water Courses.
As owner of all water in state, state has right to prescribe how water will be used.
6. Constitutional Law.
Due process clause prevents retrospective laws from divesting vested rights. U.S.C.A.Const. amend. 14.
7. Waters and Water Courses.
Vested water rights are those already established through diversion and beneficial use or through state permit.
8. Constitutional Law; Water and Water Courses.
Statute enacted after statute governing forfeiture of water rights cannot be applied retroactively to impair vested water rights when,
prior to enactment of forfeiture statute, those rights could have been lost only through abandonment. NRS 534.090.
9. Constitutional Law; Waters and Water Courses.
Retroactive application of statute working forfeiture of water rights after five consecutive years of nonuse was constitutional. NRS
534.090, subd. 1; U.S.C.A.Const. amend 14.
10. Waters and Water Courses.
Substantial use of water rights after statutory period of nonuse cures claims to forfeiture, so long as no claim or proceeding of
forfeiture has begun. NRS 534.090.
11. Waters and Water Courses.
When state alleges that water rights have been forfeited because of nonuse, state has burden of proving statutory period of nonuse
by clear and convincing evidence. NRS 534.090.
OPINION
Per Curiam:
During the past few years, the town of Eureka (the Town) has undergone a decline in the
yield of water from its springs and wells. In January, 1988, because the Town's need for
municipal water had increased, Eureka County purchased water rights from the Farmers
Home Administration and drilled test wells. One of the test wells indicated enough water was
available to satisfy the Town's needs. In July, 1989, Eureka County transferred the water
rights to the Town.
In January, 1989,
1
the Town filed an Application for Permission to Change the Point of
Diversion, Place of Use and Manner of Use, requesting approval to use another well which
was less degraded to minimize the impact on the groundwater table in Diamond Valley.
__________
1
The record reflects that the Town made its application for diversion prior to its ownership of those same
rights. The question naturally arises as to how the Town could make an application with respect to rights it did
not have.
108 Nev. 163, 165 (1992) Town of Eureka v. State Engineer
degraded to minimize the impact on the groundwater table in Diamond Valley. Two residents
of Eureka County protested the application, claiming that the purchased water rights had been
forfeited by a failure to use for five consecutive years, 1983-1988. In July, 1989, the State
Engineer held a public hearing regarding the application and concluded that only 200.0
acre-feet of water had beneficial use in 1984, and no use had occurred during the other four
years. He approved the application as to 200.0 acre-feet annually, but ruled that the Town's
predecessor had forfeited the remaining 440.0 acre-feet of water because of non-use for a
period of five consecutive years.
Later in July, 1989, the Town requested that the State Engineer grant a diversion rate of at
least 1.78 c.f.s because of the design of the Town's pumping system. In August, 1989, the
State Engineer ruled that the protests to the granting of the application were upheld in part
and overruled in part. The State Engineer declared 440.0 acre-feet of water rights forfeited
and also overruled the protests to the granting of the application to the extent that the
application was approved in the amount of a diversion rate of 1.78 c.f.s., not to exceed an
annual duty of 200.0 acre-feet. The State Engineer also held that the approval would not
impair existing rights or be detrimental to the public interest.
In August, 1989, the Town filed a petition for judicial review pursuant to NRS 533.450,
arguing that the State Engineer erred in forfeiting that portion of the Town's water rights. In
January, 1991, the district court affirmed the State Engineer's decision, finding that Nevada's
forfeiture and abandonment statute, NRS 534.090, was constitutional and could be applied
retroactively to forfeit the Town's water rights. We conclude that the statute is constitutional,
but we reverse on the grounds that the Town's resumption of substantial use cures the
forfeiture.
[Headnotes 1-3]
NRS 533.450(1) provides that a party aggrieved by any order or decision of the State
Engineer may have the order reviewed on appeal. The decision of the State Engineer shall be
presumed correct, and the party challenging the decision will have the burden of proving
error. NRS 533.450(9). With questions of fact, the reviewing court must limit itself to a
determination of whether substantial evidence in the record supports the State Engineer's
decision. Revert v. Ray, 95 Nev. 782, 786, 603 P.2d 262, 264 (1979). The district court is free
to decide purely legal questions, however, without deference to the agency's decision. Jones
v. Rosner, 102 Nev. 215, 217, 719 P.2d 805, 806 (1986). Accordingly, the reviewing court
may undertake independent review of the construction of a statute. Nevada Emp. Sec. Dep't v.
Capri Resorts, 104 Nev. 527, 528, 763 P.2d 50, 51 (1988). While the State Engineer's
interpretation of a statute is persuasive, it is not controlling.
108 Nev. 163, 166 (1992) Town of Eureka v. State Engineer
controlling. State v. State Engineer, 104 Nev. 709, 713, 766 P.2d 263, 266 (1988).
The Town argues that the State Engineer erred as a matter of law in retroactive application
of NRS 534.090, asserting that at the time its water rights vested, the sole means by which a
party could lose such rights was by abandonment. The Town also argues that because it has
put these water rights to beneficial use since the time of purchase, it has not abandoned them
and the district court's decision to uphold the forfeiture was in error. The State responds that
because NRS 534.090(1) mandates the forfeiture of any portion of water rights not used
during five consecutive years, the district court's decision should be affirmed.
Nevada enacted its first comprehensive water law in 1913. N.C.L. 7890-8254. Section
7891 provided that, subject to existing rights, all water may be appropriated for beneficial
use. Section 7897 declared that if an owner of water rights ever failed to use his or her water
for beneficial purposes during five successive years, the State would consider the rights
abandoned, and the owner would forfeit the rights. In 1939, the legislature enacted the
Conservation and Distribution of Underground Waters Act. N.C.L. 7987-7993. Section
7993.13 allowed appropriation of underground water systems constructed subsequent to the
1913 Water Act.
In 1947 the legislature amended the prior two acts. N.C.L. 7993.18a, entitled
Forfeiture-Abandonment, provided in part:
Failure for five successive years on the part of the holder of any right, whether it be
an adjudicated right, an unadjudicated right, or permitted right, and further whether
such right be initiated after or before the passage of this act, to use beneficially all or
any part of the underground water for the purpose for which such right shall be acquired
or claimed, shall work a forfeiture of undetermined rights and an abandonment of
determined rights of the right to the use of such water to the extent of such nonuse.
Upon forfeiture of a right to the use of ground water, such water shall revert to the
public and shall be available for further appropriation, subject to existing rights.
(Emphasis added.) Section 7993.18a was renamed NRS 534.090(1). In 1967, NRS
534.090(1) was amended to provide:
Failure for 5 successive years on the part of the holder of any right, whether it be an
adjudicated right, an unadjudicated right, or permitted right, and further whether such
right be initiated after or before March 25, 1939, to use beneficially all or any part of
the underground water for the purpose for which such right shall be acquired or
claimed, shall work a forfeiture of both undetermined rights and determined rights
of the right to the use of such water to the extent of such nonuse.
108 Nev. 163, 167 (1992) Town of Eureka v. State Engineer
shall work a forfeiture of both undetermined rights and determined rights of the right to
the use of such water to the extent of such nonuse.
(Emphasis added.) In 1981, NRS 534.090 was further amended to provide that in order to
effect a forfeiture, the require five years of non-use had to begin after April 15, 1967. The
language of NRS 534.090(1) expresses the legislature's intent that the statute apply
retroactively to water rights present on April 15, 1967.
2
When the State proves five
successive years of non-use after April 15, 1967, the water reverts to the public.
[Headnotes 4-6]
The constitutionality of NRS 534.090(1) depends on a balance between vested property
rights and the police power of the State. Water rights are subject to regulation under the
police power as is necessary for the general welfare. See V. L. & S. Co. v. District Court, 42
Nev. 1, 171 P. 166 (1918). As the owner of all water in Nevada, the State has the right to
prescribe how water may be used. In Re Waters of Manse Spring, 60 Nev. 280, 287, 108 P.2d
311, 315 (1940). However, the protection afforded by the due process clause of the
Fourteenth Amendment to the United States Constitution extends to prevent retrospective
laws from divesting vested rights. Ettor v. Tacoma, 228 U.S. 148, 155-56 (1913); Public
Emp. Ret. v. Washoe Co., 96 Nev. 718, 721-23, 615 P.2d 972, 974 (1980). Therefore, absent
clear legislative intent to make a statute retroactive, this court will interpret it as having only a
prospective effect. Nevada Power Co. v. Metropolitan Dev. Co., 104 Nev. 684, 686, 765 P.2d
1162, 1163 (1988).
[Headnote 7]
Vested water rights are those already established either through diversion and beneficial
use or through a state permit. Application of Filippini, 66 Nev. 17, 22, 202 P.2d 535, 541
(1949). A water right is regarded and protected as real property. Carson City v. Estate of
Lompa, 88 Nev. 541, 542, 501 P.2d 662 (1972). This court has, however, upheld retroactive
statutes under due process analysis when the legislative action is a permissible exercise of
police power. SIIS v. Surman, 103 Nev. 366, 741 P.2d 1357 (1987); Koscot Interplanetary,
Inc. v. Draney, 90 Nev. 450, 457-58, 530 P.2d 108, 112 (1974).
Sixteen out of nineteen western states have forfeiture statutes applicable to the
appropriation of water rights. 1 W. Hutchins, Water Rights in the Nineteen Western States
290-98 (1974).
3
Courts considering this issue have upheld the retroactive application of
their forfeiture statutes. See, e.g., In re Birdwood Irrigation Dist.,
__________
2
The exceptions in NRS 534.090(2) and (3) do not apply to these facts.
3
Although Colorado, Hawaii, and Montana have no statutory forfeiture provisions, under the abandonment
statutes in Colorado and Montana, a ten-
108 Nev. 163, 168 (1992) Town of Eureka v. State Engineer
Courts considering this issue have upheld the retroactive application of their forfeiture
statutes. See, e.g., In re Birdwood Irrigation Dist., Water Division No. 1-A, 46 N.W.2d 884,
888 (Neb. 1951) (court upheld retroactive law as an implied condition subsequent to the
limited water rights originally granted by the state); Texas Water Rights Commission v.
Wright, 464 S.W.2d 642, 648-50 (Tex. 1971) (retroactive application of forfeiture statute
held constitutional because water permits are limited rights).
[Headnotes 8, 9]
A statute enacted after a forfeiture statute cannot be applied retroactively to impair vested
water rights when, prior to the enactment of the forfeiture statute, those rights could have
been lost only through abandonment. In Re Waters of Manse Spring, 60 Nev. 280, 289, 108
P.2d 311, 315 (1940). The district court distinguished Manse Spring from the case at bar
because Manse Spring concerned the non-use of pre-statutory surface water rights, while this
case involves permitted groundwater rights. Also, under the 1913 water law discussed in
Manse Spring, the legislature specifically included a provision that the act would not impair
vested rights created prior to 1913, while current Nevada water law lacks a similar provision.
4
Finally, contrary to the 1913 water law, the legislature has affirmatively stated that the
forfeiture provision enacted in 1967 applies to all groundwater rights, even those in existence
at the time of enactment. We agree with the district court that the legislature's affirmative
statement that the law shall be retroactive is constitutional. We conclude that forfeiture
applies when the State proves non-use over the statutory period, unless resumed use has
cured or resuscitated the defect in the water rights.
Jurisdictions are divided on whether, after the statutory period of non-use, the resumed use
of water cures the forfeiture and revitalizes the right. Oregon and South Dakota strictly apply
the forfeiture laws. See Bausch v. Myers, 541 P.2d 817, 819 (Or. 1975) (en banc) (five years
of non-use conclusively works an abandonment and loss of water rights where the statute
provides for a conclusive presumption of abandonment). See also Rencken v. Young, 711
P.2d 954, 958-59 (Or. 1985) (although Bausch court used the term abandonment, Rencken
court clarified relevant statute as a forfeiture statute); In re Cancel. of Stabio Ditch Water
Right, 417 N.W.2d 391, 395 (S.D. 1987) (three-year forfeiture statutes did not allow revival
of water rights).
__________
year period of non-use creates a rebuttable presumption of abandonment. Colo. Rev. Stat. 37-92-402(11)
(1990); Mont. Code Ann. 85-2-404(2) (1989).
4
See NRS Chapter 534.
108 Nev. 163, 169 (1992) Town of Eureka v. State Engineer
Idaho and Wyoming, however, provide for amelioration of the harsh effects of a forfeiture
where the holder of water rights resumes use after the statutory period of non-use. See
Carrington v. Crandall, 147 P.2d 1009, 1011 (Idaho 1944) (forfeiture is not effective if, after
the statutory period of non-use, the original owner or appropriator resumes use of water prior
to a third party's claim of right). Under forfeiture statutes similar to those of Nevada, the
Idaho and Wyoming courts have held that reuse of water rights prior to a formal declaration
of forfeiture constitutes a cure to the forfeiture. See e.g., Application of Boyer, 248 P.2d
540, 544 (Idaho 1952) (an appropriator may resume use any time prior to a third party's claim
of right); Sturgeon v. Brooks, 281 P.2d 675, 683 (Wyo. 1955) (forfeiture did not apply where
user had recommenced use and claimant brought forfeiture action sixteen years after period of
non-use).
[Headnote 10]
The Town argues that this court should interpret NRS 534.090 in accord with the Idaho
and Wyoming decisions that interpret similar statutes. We agree. This approach protects
vested rights and follows the general rule that statutes should not be construed to work a
forfeiture where a forfeiture is not clearly required, NRS 533.085; Humphrey v. Sagouspe, 50
Nev. 157, 171, 254 P. 1074, 1079 (1927). Under the rule we adopt, substantial use of water
rights after the statutory period of non-use cures claims to forfeiture so long as no claim or
proceeding of forfeiture has begun.
Due to the need to protect against the waste of water when it is used solely to protect water
rights, permitting a procedure of filing for non-use with the State Engineer may be an
alternative procedure the legislature may wish to consider. Also, the status of water rights
should be readily determinable from the public record. The legislature, with its fact-finding
capabilities, is better qualified than this court to specify the details of such procedures. The
legislature may also need to consider whether a partial forfeiture is suitable when the owner's
motivation for filing or resumption of use is to protect rights to water that is not otherwise
used beneficially.
[Headnote 11]
Because the law disfavors a forfeiture, the State bears the burden of proving, by clear and
convincing evidence, a statutory period of non-use. Since the State Engineer did not
determine how much use the Town or its predecessors made of the water rights after the
period of non-use, and the record contains little evidence on this point, we reverse and
remand to the district court for referral to the State Engineer to conduct further proceedings
consistent with this opinion to determine whether the Town "cured" the forfeiture by
substantial use of the water after the non-use period.
108 Nev. 163, 170 (1992) Town of Eureka v. State Engineer
ceedings consistent with this opinion to determine whether the Town cured the forfeiture
by substantial use of the water after the non-use period.
____________
108 Nev. 170, 170 (1992) Board of Co. Comm'rs v. Del Papa
BOARD OF COUNTY COMMISSIONERS OF NYE COUNTY, BARBARA RAPER, in
Her Official Capacity, and RICHARD CARVER, in His Official Capacity,
Appellants, v. FRANKIE SUE DEL PAPA, Attorney General of the State of Nevada,
Respondent.
No. 22336
February 20, 1992 825 P.2d 1231
Appeal from an order of the district court denying appellants' motion for a change of
venue. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Attorney General filed complaint for declaratory relief against board of county
commissioners and two commissioners, alleging that commissioners held special closed-door
meeting in violation of open meeting law. The district court denied commissioners' motion
for change of venue, and board and commissioners appealed. The supreme court held that
venue statute, rather than jurisdictional provision of open meeting law, controlled in
determining proper venue in case.
Reversed and remanded.
Arthur F. Wehrmeister, District Attorney and Les W. Bradshaw, Deputy District Attorney,
Nye County, for Appellants.
Frankie Sue Del Papa, Attorney General, and Robert Auer, Deputy Attorney General,
Carson City, for Respondent.
Declaratory Judgment.
Venue statute, requiring that actions against public officers for acts done by virtue of their office shall be tried in county where
cause or some part thereof arose, rather than open meeting law, setting forth jurisdictions in which county attorney may bring suit for
violations of open meeting law, controlled in determining proper venue of declaratory relief complaint brought by Attorney General
against board of county commissioners and two commissioners, alleging that commissioners held special closed-door meeting in
violation of open meeting law. NRS 13.020, subd. 2, 13.050, subd. 1, 241.037, subd. 1.
108 Nev. 170, 171 (1992) Board of Co. Comm'rs v. Del Papa
OPINION
Per Curiam:
On March 28, 1991, the attorney general filed in the First Judicial District Court
1
a
complaint for declaratory relief against the Board of County Commissioners of Nye County
and two of the commissioners in particular (commissioners). The complaint alleged that on
January 24, 1991, the commissioners held a special closed-door meeting in Las Vegas in
violation of Nevada's open meeting laws.
On April 12, 1991, the commissioners filed a motion seeking a change of venue to the
Fifth Judicial District Court.
2
The attorney general opposed the motion. On April 22, 1991,
the district court denied the motion. This timely appeal followed.
Appellants contend that the district court erred in denying their motion for a change of
venue because the venue statute, NRS 13.020, rather than the open meeting law, NRS
241.037, controls in determining proper venue in this case. We agree.
Pursuant to NRS 13.020(2), actions against public officers for acts done by virtue of their
office shall be tried in the county where the cause, or some part thereof, arose . . . . By
contrast, NRS 241.037(1) simply sets forth the jurisdictions in which the attorney general
may bring suit for violations of the open meeting laws. Unlike NRS 13.020, NRS 241.037(1)
does not specify where the suit must be brought. Thus, the attorney general can maintain suit
in Carson City only if the commissioners do not challenge that choice of venue. See NRS
13.050(1).
3
In this case, the commissioners are public officers alleged to have engaged in improper
acts done by virtue of their office. In addition, the cause arguably arose in Nye County,
because that is where the commissioners ordinarily sit and where the allegedly illegal
meeting, though actually held in Clark County, was publicized. Under such circumstances,
NRS 13.020 mandates that the action be brought in Nye County, or, at the very least, in Clark
County. Nowhere does the complaint allege any connection whatsoever between the
commissioners' actions and Carson City.
__________
1
The First Judicial District Court encompasses Carson City, which is where the attorney general's principal
office is located.
2
The Fifth Judicial District Court encompasses Nye County, which is the county in which the commissioners
ordinarily sit.
3
NRS 13.050(1) provides: If the county designated for that purpose in the complaint be not the proper
county, the action may, notwithstanding, be tried therein, unless the defendant . . . demand in writing that the
trial be had in the proper county . . . . See also NRS 13.050(2)(a) (court may, on motion, change the place of
trial . . . [w]hen the county designated in the complaint is not the proper county).
108 Nev. 170, 172 (1992) Board of Co. Comm'rs v. Del Papa
soever between the commissioners' actions and Carson City. Thus, Carson City appears to be
a patently improper venue. Consequently, the commissioners were justified in seeking a
change of venue pursuant to NRS 13.050. Because NRS 13.020 clearly governs, we hold that
the district court erred in denying the commissioners' motion for a change of venue. Cf. Lyon
County v. Washoe Medical Center, 104 Nev. 765, 766 P.2d 902 (1988).
Accordingly, we reverse the order of the district court denying appellants' motion for a
change of venue, and we remand this case to the district court for further proceedings
consistent with this opinion.
____________
108 Nev. 172, 172 (1992) State, Dep't of Mtr. Vehicles v. Blair
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY,
Appellant, v. ELLEN BLAIR aka CLAYTON, Respondent.
No. 22158
February 20, 1992 825 P.2d 1232
Appeal from an order of the district court reinstating respondent's driving privileges.
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Motorist sought judicial review of revocation of her driving privileges based on blood test
results. Driving privileges were reinstated by the district court and Department of Motor
Vehicles and Public Safety appealed. The supreme court held that finding that nurse who
drew blood sample was an authorized person was supported by substantial evidence even
though her title appeared on affidavit only after her signature.
Reversed and remanded.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville Thomas Pridham,
Deputy Attorney General and Laurie B. Foremaster, Deputy Attorney General, Las Vegas,
for Appellant.
Alan B. Andrews, Las Vegas, for Respondent.
Automobiles.
Substantial evidence, in proceeding to revoke driving privileges based on blood test results, supported finding that blood sample
was drawn by authorized person, regardless of whether nurse who drew the blood swore that she was a licensed practical nurse when
her title appeared on affidavit only after her signature, where nurse swore in her affidavit that she was a nurse and was authorized to
draw blood by the State Board of Nursing. NRS 233B.121, subd. 8, 484.393, 484.393, subd. 1.
108 Nev. 172, 173 (1992) State, Dep't of Mtr. Vehicles v. Blair
OPINION
Per Curiam:
On May 18, 1990, respondent Ellen Blair was arrested for driving under the influence of
alcohol and taken to the city jail, where she was given the implied consent admonition.
Respondent consented to a blood test, and her blood was drawn by Marian Berg, the nurse on
duty at the jail.
The test result revealed a blood alcohol level of .25 percent by weight, and appellant, the
Department of Motor Vehicles and Public Safety (DMV), revoked respondent's driving
privileges. Respondent requested an administrative hearing, at which the hearing examiner
accepted into evidence the affidavit of Nurse Berg attesting that she was a nurse, that she had
drawn respondent's blood, and that she was certified to do so by the NSB-N. In the
affidavit, Nurse Berg did not identify herself as a licensed practical nurse until the title line
below her signature at the bottom of the page, where she wrote the letters LPN. The hearing
examiner understood LPN to mean licensed practical nurse, and NSB-N to mean
Nevada State Board of Nursing. Based on the police officer's testimony, the affidavit of
Nurse Berg, and the affidavit of the chemist who performed the blood test, the examiner
admitted the blood test result and affirmed the order of revocation.
Respondent then instituted proceedings in the district court for judicial review. The district
court reversed the DMV's revocation order, finding that Nurse Berg's affidavit was deficient
and should not have been admitted. The district court reasoned that because NRS
484.393(1)(a) allows blood to be drawn only by specifically authorized persons, among others
a registered nurse or a licensed practical nurse, an affidavit stating only that a nurse
drew the blood is insufficient to satisfy the statute. The district court agreed with respondent
that, because the letters LPN do not appear in the body of the affidavit, they do not
establish that the blood was drawn in compliance with the statute. The district court
concluded that the DMV should not have admitted the blood test result, and therefore the
revocation was improper. This appeal by the DMV followed.
DISCUSSION
Respondent does not dispute the hearing examiner's factual finding that the initials LPN
stand for licensed practical nurse. The sole issue before this court, therefore, is whether the
fact that Nurse Berg's title follows, rather than precedes, her signature invalidated her
affidavit for the purpose of proving at the DMV hearing that a person authorized under NRS
4S4.393 drew respondent's blood.1
108 Nev. 172, 174 (1992) State, Dep't of Mtr. Vehicles v. Blair
the DMV hearing that a person authorized under NRS 484.393 drew respondent's blood.
1
The DMV argues that the district court erred in finding Nurse Berg's affidavit insufficient
to prove that she was statutorily authorized to draw respondent's blood. Respondent argues,
on the other hand, that because of its position in the affidavit, Nurse Berg's status as a
licensed practical nurse is not a fact sworn to in the body of the affidavit and cannot establish
Nurse Berg's credentials for evidentiary purposes. We conclude, however, that the location of
Nurse Berg's title does not invalidate the factual finding of the hearing examiner that a
statutorily authorized person drew respondent's blood, and we reverse the decision of the
district court.
Findings of fact at administrative hearings must be based on substantial evidence. NRS
233B.121(8). Nurse Berg swears in her affidavit that she is a nurse and is authorized to draw
blood by the Nevada State Board of Nursing. The title line below the signature clearly
indicated to the hearing examiner that Nurse Berg is a licensed practical nurse. Accordingly,
the hearing examiner found, based on Nurse Berg's affidavit, that a statutorily authorized
person drew respondent's blood. Respondent did not challenge or otherwise present any
evidence to contradict the hearing examiner's factual finding.
The obvious purpose of NRS 484.393(1) is to assure that a medically trained and
competent individual will withdraw blood in a acceptable manner. State v. Webster, 102
Nev. 450, 454, 726 P.2d 831, 833 (1986). This court has held that NRS 484.393 should be
liberally construed to avoid an absurd result. Id. at 455, 726 P.2d at 834. Without deciding
whether Nurse Berg swore she was a licensed practical nurse, we conclude that the affidavit
presents substantial and uncontroverted evidence that a licensed practical nurse, certified by
the Nevada State Board of Nursing, drew respondent's blood. Therefore, the hearing examiner
properly revoked respondent's driving privileges. See NRS 4S4.393{1).
__________
1
NRS 484.393 provides, in pertinent part:
1. The results of any blood test administered under the provisions of NRS 484.383 or 484.391 are not
admissible in any hearing or criminal action arising out of the acts alleged to have been committed while
a person was under the influence of intoxicating liquor or a controlled substance unless:
(a) The blood tested was withdrawn by a physician, physician's assistant, registered nurse, licensed
practical nurse, emergency medical technician or a technician, technologist or assistant employed in a
medical laboratory;
. . . .
(c) The person who withdrew the blood was authorized to do so by the appropriate medical licensing
or certifying agency.
(Emphasis added.)
108 Nev. 172, 175 (1992) State, Dep't of Mtr. Vehicles v. Blair
484.393(1). Any other conclusion would lead to an absurd result. Accordingly, we reverse the
decision of the district court and remand for further proceedings consistent with this opinion.
____________
108 Nev. 175, 175 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
STATE OF NEVADA, DEPARTMENT OF EMPLOYMENT SECURITY, and STANLEY
P. JONES, Executive Director of Employment Security Department, Appellants, v.
HARICH TAHOE DEVELOPMENTS, Respondent.
No. 21764
February 20, 1992 825 P.2d 1234
Appeal from district court order reversing, in part, an administrative determination
regarding the status of time-share representatives. Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Developer and owner of time share resort sought review of Employment Security
Department referee's decision that time-share representatives were employees reportable for
unemployment tax purposes. The Board of Review declined to review case. Employer
petitioned for judicial review. The district court, reversed ruling with respect to time-share
representatives paid solely by commission. State appealed. The supreme court held that
time-share representatives were not sales agents or licensed real estate salespersons within
meaning of unemployment compensation statute, and thus, time-share representatives were
employees reportable for unemployment compensation tax purposes.
Reversed and remanded with instructions.
Crowell, Susich, Owen & Tackes, Carson City, for Appellants.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Karen A. Peterson, Carson
City, for Respondent.
1. Administrative Law and Procedure; Social Security and Public Welfare.
In reviewing decision of Employment Security Department's Board of Review, supreme court's prerogatives are same as those of
district court, i.e., to determine from agency record whether Board's decision was supported by substantial evidence.
2. Administrative Law and Procedure; Social Security and Public Welfare.
On review, neither supreme court nor district court may substitute its judgment or evaluation of record developed at agency level
for that of Employment Security Department's Board of Review; judicial review of Board's decision is limited
to issues of law.
108 Nev. 175, 176 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
Employment Security Department's Board of Review; judicial review of Board's decision is limited to issues of law.
3. Taxation.
Time-share representatives were not sales agents or licensed real estate salespersons, within meaning of unemployment
compensation statute, and thus, time-share representatives were employees reportable for purpose of unemployment compensation
taxes. NRS 119A.120, 119A.240, 612.085, 612.133.
4. Social Security and Public Welfare.
For purposes of unemployment compensation law, licensed real estate salespersons includes licensed time-share agents. NRS
119A.120, 119A.240, 612.085, 612.133.
OPINION
Per Curiam:
Facts
Respondent, Harich Tahoe Developments (Harich), is a developer and owner of a
time-share resort in Nevada known as The Ridge Tahoe. Harich's time-share representatives
attempt to induce potential buyers to visit The Ridge Tahoe where licensed real estate
salespeople attempt to sell time shares in the resort. The time-share representatives work in
booths leased by Harich and located in various casinos in the Tahoe area.
During the first two weeks of work, time-share representatives are paid $7.50 per hour or
the commissions they earn, whichever is the greater amount. After the first two weeks,
time-share representatives are paid on a commission basis only. The time-share
representatives receive a $100.00 commission from Harich for each solicited contact who
visits the resort and purchases a time share. Moreover, Harich authorizes the time-share
representative to solicit and retain, from the prospective purchaser, a $5.00 reservation fee.
In November, 1987, appellant Nevada Employment Security Department (NESD) advised
Harich of NESD's determination that Harich's time-share representatives were Harich's
employees and therefore reportable for unemployment purposes. Harich unsuccessfully
appealed NESD's determination to the NESD referee who sustained the agency's position
concerning the status of the time-share representatives and the fact that taxes were owed by
Harich. Thereafter Harich sought review of the referee's decision by the NESD Board of
Review. The Board of Review left the referee's decision intact by declining to review the
case. Harich then filed a petition for judicial review in the district court and succeeded in
obtaining a reversal of the Board's decision with respect to time-share representatives paid
solely by commission.
108 Nev. 175, 177 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
Discussion
[Headnotes 1, 2]
In reviewing the decision of NESD's Board of Review, this court's prerogatives are the
same as those of the district court, i.e., to determine from the agency record whether the
Board's decision was supported by substantial evidence. Lellis v. Archie, 89 Nev. 550, 516
P.2d 469 (1973). On review, neither this court nor the district court may substitute its
judgment or evaluation of the record developed at the agency level for that of the Board;
judicial review of the Board's decision is limited to issues of law. State, Emp. Sec. Dep't v.
Weber, 100 Nev. 121, 676 P.2d 1318 (1984).
[Headnote 3]
In resolving the issue of the status of time-share representatives it is necessary to refer to
Nevada statutory law concerning the meaning of employment as it relates to entitlements
and exemptions under our unemployment compensation scheme. The pertinent statute, NRS
612.085, adopts a general presumption of covered employment subject to three areas of
exception:
Employment: Services deemed employment unless specific facts shown. Services
performed by an individual for wages shall be deemed to be employment subject to this
chapter unless and until it is shown to the satisfaction of the executive director that:
1. Such individual has been and will continue to be free from control or direction
over the performance of such services, both under this contract of service and in fact;
2. Such service is either outside the usual course of business for which such service
is performed or that such service is performed outside of all the places of business of
the enterprises for which such service is performed; and
3. Such service is performed in the course of an independently established trade,
occupation, profession or business in which the individual is customarily engaged, of
the same nature as that involved in the contract of service.
The evidence of record before the Board supports the Board's decision concluding, by its
denial of review of the referee's findings, that the time-share representatives are employees
covered by NRS chapter 612. The time-share representatives perform their services on
premises owned or leased by Harich, and are subject to termination for failure to produce.
Moreover, Harich tells the representatives, where, when and how to work, even to the extent
of requiring them to follow a written script prepared by Harich as a means of inducing
contacts to tour Harich's time-share resort property.
108 Nev. 175, 178 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
Harich's time-share resort property. Finally, the time-share representatives perform their
services in the usual course of Harich's business, without benefit of an independently
established trade, occupation, business, profession or other attributes or typifications of
independence.
[Headnote 4]
Harich nevertheless contends, and the district court agreed, that time-share representatives
are exempt under the provisions of NRS 612.133. We disagree. The statutory definition of
employment in NRS 612.133 excludes services performed by licensed real estate
salesman. For purposes of the unemployment compensation law licensed real estate
salespersons includes licensed time-share sales agents. Nevada Emp. Sec. Dep't v. Capri
Resorts, 104 Nev. 527, 528, 763 P.2d 50, 51-52 (1988). Sales agents who sell time shares in
real property are treated the same as other licensed real estate salespersons. Capri, 104 Nev.
at 529, 763 P.2d at 52. However, a time-share representative is not a sales agent or a
licensed real estate salesperson. NRS 119A.120. A representative does not sell time shares
in real estate, and may not sell any real estate. NRS 119A.120. A representative merely
induces others to attend sales presentations. NRS 119A.120. Although time-share
representatives must register and pay a registration fee, they are not licensed and specially
educated as a prerequisite to the performance of their services. NRS 119A.240. The fact that
time-share representatives may earn their remuneration by commission only is of no
relevance.
Because a time-share representative is not a time-share sales agent or a licensed real estate
salesperson, time-share representatives' services constitute employment and are not exempt
under NRS 612.133. It follows, therefore, that time-share representatives are employees for
purposes of the unemployment compensation law, and are not exempt from employment
status under either NRS 612.085 or NRS 612.133.
Unlike such professionals as doctors, lawyers, accountants, and real estate specialists,
time-share representatives are not members of an established profession. Time-share
representatives are part of a class of non-professional Nevada citizens who are entitled to the
protection of the unemployment compensation laws. The legislature enacted these laws to
provide temporary assistance and a measure of economic security for individuals who become
involuntarily unemployed. Airport Casino v. Jones, 103 Nev. 387, 390, 741 P.2d 814, 816
(1987). The public policy underlying Nevada's unemployment compensation laws coupled
with the language of NRS Chapters 119A and 612 reflect a legislative intent to include the
activities of time-share representatives within the definition of "employment" for purposes
of unemployment compensation law.
108 Nev. 175, 179 (1992) State, Emp. Sec. Dep't v. Harich Tahoe
sentatives within the definition of employment for purposes of unemployment
compensation law.
Conclusion
For reasons specified above, we reverse the district court order holding that time-share
representatives fall within the exception to the definition of employment set forth in NRS
612.133, and remand with instructions to reinstate NESD's administrative decision.
____________
108 Nev. 179, 179 (1992) McAnulty v. State
KENNETH RAY McANULTY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 22315
February 26, 1992 826 P.2d 567
Proper person appeal from an order of the district court denying appellant's petition for
post-conviction relief. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Defendant who had been sentenced as an habitual criminal filed post-conviction petition.
Petition was denied by the district court and defendant appealed. The supreme court held that
habitual criminal determination could not be based on defendant's stipulation that he had two
prior felony convictions.
Vacated and Remanded.
Steffen, J., dissented.
Kenneth Ray McAnulty, in Proper Person, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Defendant could be adjudicated an habitual criminal on the basis of stipulation that he had two prior felony convictions;
constitutional validity of the prior convictions was a legal status to which defendant could not stipulate. NRS 207.010, subds. 1, 8.
2. Criminal Law.
In order to use prior convictions for enhancement purposes, it is essential that those convictions be constitutionally valid, but once
State produces certified copies of prior judgments of conviction which do not, on their face, raise presumption of constitutional
infirmity, district court is entitled to rely on those prior convictions for enhancement purposes unless defendant is able to prove by
preponderance of the evidence that the prior convictions are constitutionally infirm. NRS. 207.010, subd. 8.
108 Nev. 179, 180 (1992) McAnulty v. State
OPINION
Per Curiam:
On April 3, 1990, the district court convicted appellant, pursuant to a negotiated guilty
plea, of one count of grand larceny. The plea negotiations called for appellant to stipulate that
he was a habitual criminal under the little habitual criminal statute. NRS 207.010(1).
At sentencing, the state noted that this court had recently held that it was impermissible for
a district court to rely solely on a defendant's stipulation in determining whether a defendant
was a habitual criminal. Staley v. State, 106 Nev. 75, 787 P.2d 396 (1990). The state
suggested that instead of stipulating that he was a habitual criminal, appellant could stipulate
that he had two prior felony convictions. Appellant stipulated that he had two prior felony
convictions, and appellant's counsel agreed. No inquiry into the nature or validity of those
convictions was made. It does not appear that any record of the prior convictions was
submitted to the district court. Based solely on the stipulation of appellant that he had two
prior felony convictions, the district court found that appellant had the status of a habitual
criminal. In spite of this finding, appellant argued that he felt that he should not be treated as
a habitual criminal, and argued for leniency in sentencing. The district court rebuffed
appellant's argument for leniency and sentenced appellant to a term of eighteen years in the
Nevada State Prison, as called for in the plea agreement. No direct appeal was taken.
On March 23, 1991, appellant filed in the district court, in proper person, a petition for
post-conviction relief. In that petition, appellant alleged that his adjudication as a habitual
criminal was improper, and that his attorney was ineffective for failing to point out problems
with his prior convictions. Specifically, appellant contended that two of his prior convictions
should have merged for purposes of determining habitual criminality. See Rezin v. State, 95
Nev. 461, 596 P.2d 226 (1979); Halbower v. State, 96 Nev. 210, 606 P.2d 536 (1980).
Appellant also contended that it was an abuse of discretion for the district court to consider a
1972 conviction in Ohio for larceny by trick because that conviction was remote in time and
for a nonviolent offense. See Sessions v. State, 106 Nev. 186, 789 P.2d 1242 (1990). No
counsel was appointed for appellant, and no evidentiary hearing was held on his claims. On
May 13, 1991, the district court entered its order denying appellant's petition. This appeal
followed.
In Staley v. State, 106 Nev. 75, 78, 787 P.2d 396, 397 (1990), this court held that [a]
person cannot stipulate to a status. The question of the validity of the prior convictions must
be determined by the district court as a matter of law; the punishment which follows is
dependent on the number of valid prior convictions."
108 Nev. 179, 181 (1992) McAnulty v. State
question of the validity of the prior convictions must be determined by the district court as a
matter of law; the punishment which follows is dependent on the number of valid prior
convictions.
[Headnotes 1, 2]
The procedure used by the district court in sentencing appellant was clearly in violation of
our express holding in Staley. The district court made no inquiry whatever concerning
appellant's prior convictions, despite appellant's assertion that he did not feel that he should
be adjudicated a habitual criminal. On the mere, naked admission by appellant and his
attorney that appellant had two prior felony convictions, the district court determined that
appellant was a habitual criminal. While the existence of a prior conviction may be a factual
matter within the knowledge of a defendant, this is not the end of the inquiry. In order to use
prior convictions for enhancement purposes, it is essential that those convictions be
constitutionally valid. See Baldasar v. Illinois, 446 U.S. 222 (1980); Burgett v. Texas, 389
U.S. 109 (1967); Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983); Anglin v. State, 86 Nev.
70, 464 P.2d 504 (1970).
The constitutional validity of prior convictions is a legal status to which a defendant may
not stipulate. No matter what the plea bargain, the district court must make its own
determination as to the constitutional validity of a prior conviction. NRS 207.010(8) provides
that [a] certified copy of a felony conviction is prima facie evidence of conviction of a prior
felony. Accordingly, once the state produces certified copies of prior judgments of
conviction which do not, on their face, raise a presumption of constitutional infirmity, the
district court is entitled to rely on those prior convictions for enhancement purposes unless
the defendant is able to prove by a preponderance of the evidence that the prior convictions
are constitutionally infirm. See Dressler v. State, 107 Nev. 686, 819 P.2d 1288 (1991).
Accordingly, we vacate the order of the district court denying appellant's petition for
post-conviction relief. Further, we vacate appellant's sentence. We remand this matter to the
district court for resentencing. On remand, the district court shall independently determine the
validity of appellant's prior judgments of conviction.
Steffen, J., dissenting:
For reasons expressed in my dissent in Staley v. State, 106 Nev. 75, 787 P.2d 396 (1990), I
respectfully dissent.
____________
108 Nev. 182, 182 (1992) State, Dep't of Mtr. Vehicles v. McGuire
STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Appellant, v. MICHAEL
McGUIRE, Respondent.
No. 21878
March 5, 1992 827 P.2d 821
Appeal from district court order denying petition for judicial review, and reinstating
driving privileges. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Department of Motor Vehicles sought judicial review of decision by administrative
hearing officer granting temporary license to driver whose driving privileges were revoked as
a result of his driving under the influence where driver had only out-of-state license at time of
arrest. The district court denied petition and reinstated driving privileges. Appeal was taken.
The supreme court held that: (1) agency had right to seek judicial review of administrative
decision, and (2) because driver had no driving privileges in state at time of his arrest, district
court lacked authority to order reinstatement of non-existent driving privileges.
Reversed and remanded with instructions.
Frankie Sue Del Papa, Attorney General, Carson City; Grenville Thomas Pridham,
Deputy Attorney General, and Laurie B. Foremaster, Deputy Attorney General, Las Vegas,
for Appellant.
John Watkins, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
Amendment to statute which allowed only person and not agency to seek judicial review of administrative decision to reinstate
party or person thereby allowing agency to appeal, applied retroactively. NRS 233B.130.
2. Statutes.
If language of statute is plain, intention must be deduced from its language and court has no right to go beyond that language.
3. Appeal and Error.
Right of appeal should not be taken away unless clearly intended by statute; any doubt about construction of statutes regulating
right of appeal is to be resolved in favor of allowing appeal.
4. Automobiles.
Because driver arrested for driving while intoxicated lacked in-state driving privileges where he had not obtained Nevada license
within 45 days of moving into state, driver was not entitled to seven-day temporary license after his arrest; Nevada did not revoke
driver's privilege to drive under old Kansas license. NRS 482.103, subd. 1(c), 483.245, 483.245, subds. 1, 2; U.S.C.A.Const. amends.
5, 14.
5. Automobiles.
Driver who did not apply for state driver's license within required time of moving into state did not have driving privileges at time
of his arrest and thus had no driving privileges to revoke, so that driver, who had no right to drive at time of
his arrest, could not by virtue of unlawful driving while intoxicated become entitled to temporary
seven-day license issued to licensed drivers who licenses are revoked.
108 Nev. 182, 183 (1992) State, Dep't of Mtr. Vehicles v. McGuire
arrest and thus had no driving privileges to revoke, so that driver, who had no right to drive at time of his arrest, could not by virtue of
unlawful driving while intoxicated become entitled to temporary seven-day license issued to licensed drivers whose licenses are
revoked. NRS 482.103, subd. 1(c), 483.245, 483.245, subds. 1, 2; U.S.C.A.Const. amends. 5, 14.
OPINION
Per Curiam:
Facts
On November 1, 1988, respondent Michael M. McGuire caused a four-car accident while
driving under the influence of intoxicating liquor (DUI). McGuire was arrested and told by
the arresting officer that his driving privileges were revoked pursuant to NRS 484.385. The
officer declined to issue a seven-day temporary license to McGuire because the officer's
review of the official records indicated that the Nevada Highway Patrol had previously
revoked McGuire's driving privileges for a DUI occurring in July, 1988.
McGuire requested an administrative hearing, and the officer affirmed the revocation of
McGuire's driving privileges by the Department of Motor Vehicles (DMV). However, upon a
petition of judicial review to the district court, the matter was remanded back to the
administrative hearing officer to reconsider whether NRS 484.385 entitled McGuire to a
temporary license at the time of his arrest.
On remand, the hearing officer reasoned that because McGuire had a valid Kansas license
and his driving privileges had not been revoked prior to his November 1, 1988 arrest, he was
entitled to a temporary seven-day license pursuant to NRS 484.385. The hearing officer
therefore rescinded the revocation of McGuire's driving privileges. The hearing officer also
found that McGuire had an obligation to obtain a Nevada driver's license. Although McGuire
was a ten-month resident of Nevada, he failed to obtain a Nevada driver's license as required
by NRS 483.245.
On May 7, 1990, the DMV petitioned the district court for judicial review. The district
court denied the DMV's petition on November 8, 1990, and reinstated McGuire's driving
privileges. This appeal followed.
Discussion
[Headnote 1]
McGuire claims this appeal is barred by NRS 233B.130 (1989) which allows only a
person, not an agency, to seek judicial review of an administrative decision. From 1981
to 1989, NRS allowed a "party" to seek review.
108 Nev. 182, 184 (1992) State, Dep't of Mtr. Vehicles v. McGuire
233B.130 allowed a party to seek review. In 1989, NRS 233B.130 was amended to allow
only a person to seek review. NRS 233B.037 excludes an agency from the definition of
person.
However, Assembly Bill 422 17.7 (1991) rectified the wording in NRS 233B.130(1) by
reinstating the word party for person, thereby causing NRS 233B.130 to read as it had
prior to 1989. Although statutes generally apply prospectively unless the legislature expresses
an intention of retroactive application, Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 776, 766
P.2d 904, 907 (1988), the legislature declared in AB 422 73(2) (1991) that the referenced
change constituted a clarification of existing law and that AB 422 17.7 applied
retroactively. Additionally, the legislature specified that it did not intend to limit the right of
a state agency to appeal an adverse decision in an administrative proceeding. AB 422 73(2)
(1991).
[Headnote 2]
When presented with a question of statutory interpretation, the intent of the legislature is
the controlling factor. . . . Robert E. v. Justice Court, 99 Nev. 443, 445, 664 P.2d 957, 959
(1983). Moreover, [w]hen the language of a statute is plain, its intention must be deduced
from such language, and the court has no right to go beyond it. Cirac v. Lander County, 95
Nev. 723, 729, 602 P.2d 1012, 1015 (1979) (quoting State ex rel. Hess v. Washoe County, 6
Nev. 104, 107 (1870)). The clear language of AB 422 indicates that the legislature intended
that an agency has the right to appeal an adverse decision.
[Headnote 3]
Finally, [t]he right of appeal . . . should not be taken away unless clearly intended by the
statute. Thompson v. District Court, 100 Nev. 352, 355, 683 P.2d 17, 19 (1984). Any doubt
about the construction of statutes regulating the right of appeal should be resolved in favor of
allowing an appeal. Id.
For all of the above reasons, the DMV's appeal is not barred.
Turning to the merits of this appeal, the DMV argues that when McGuire was arrested he
did not have Nevada driving privileges because he failed to comply with NRS 483.245.
1
DMV reasons that because McGuire had no driving privileges in Nevada, he was not
entitled to a seven-day temporary license.
__________
1
NRS 483.245(1) and (2) provide as follows:
1. When a person becomes a resident of Nevada as defined in this chapter and chapter 482 of NRS he
must, within 45 days, obtain a Nevada driver's license as a prerequisite to driving any motor vehicle in
the State of Nevada.
2. Where a person who applies for a license has a valid driver's license from a state which has
requirements for issuance of drivers' licenses comparable to those of the State of Nevada, the department
may issue a Nevada license under the same terms and conditions applicable to a renewal of a license in
this state.
108 Nev. 182, 185 (1992) State, Dep't of Mtr. Vehicles v. McGuire
reasons that because McGuire had no driving privileges in Nevada, he was not entitled to a
seven-day temporary license.
McGuire contends that his constitutional due process rights were violated when the officer
failed to issue him a seven-day license. He further asserts that this failure was a government
trespass upon his right to a pre-termination hearing. McGuire finally argues that the United
States Supreme Court has recognized a universal obligation of due process that no person be
deprived of his constitutionally protected property interest in his or her driver's licence
without an opportunity to defend his or her rights. Bell v. Burson, 402 U.S. 535, 539 (1971).
McGuire's arguments lack merit. Nevada did not revoke McGuire's privilege to drive in
Kansas. Moreover, McGuire did not having driving privileges in Nevada because he failed to
comply with Nevada law requisite to obtaining that privilege.
[Headnotes 4, 5]
When a person becomes a resident of Nevada, he or she must obtain a Nevada driver's
license within 45 days. NRS 483.245(1). A resident includes a person who physically resides
and works in Nevada. NRS 482.103(1)(c). McGuire lived and worked in Nevada beginning in
January of 1988 and was therefore a Nevada resident for a period of over 45 days when he
was arrested for DUI on November 1, 1988. Because McGuire never did apply for a Nevada
driver's license within or without the time period specified in NRS 483.245, he did not enjoy
driving privileges in Nevada at the time of his arrest; ergo, McGuire had no Nevada driving
privilege to revoke. It would be absurd, therefor, to conclude that McGuire, who had no right
to drive in Nevada at the time of his arrest, was, by virtue of his unlawful driving while
intoxicated, and causing an accident, entitled to be issued a temporary, seven-day license.
We also note that because McGuire had no driving privileges in Nevada at the time of his
arrest and subsequent thereto, the district court could hardly order that McGuire's
non-existent driving privileges be reinstated. It is clear, however, that McGuire did have a
colorable claim to driving privileges at the time of his arrest because of the unexpired,
facially valid Kansas driver's license in his possession. In effect, McGuire sought to validate
his Nevada driving privileges through use of a Kansas permit that had ceased to provide a
basis for lawful driving in Nevada 45 days after McGuire become a Nevada resident. Since
McGuire's colorable privilege to drive by virtue of the Kansas license was in effect revoked
by the DMV, McGuire is required to surrender his Kansas driver's permit to the DMV. NRS
483.500.
Accordingly, the order reinstating McGuire's Nevada driving privileges is reversed, and
this matter is remanded to the district court with instructions to direct the DMV to take such
measures as are necessary to assure that McGuire's Kansas license is surrendered.2
108 Nev. 182, 186 (1992) State, Dep't of Mtr. Vehicles v. McGuire
court with instructions to direct the DMV to take such measures as are necessary to assure
that McGuire's Kansas license is surrendered.
2
Mowbray, C. J., Rose, Steffen and Young, JJ., and Christensen, D. J.,
3
concur.
____________
108 Nev. 186, 186 (1992) Walters v. State
WAYNE EDWARD WALTERS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20028
March 5, 1992 825 P.2d 1237
Appeal from denial of petition for post-conviction relief. Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
Petitioner sought post-conviction relief from conviction for second degree murder. The
district court denied relief, and appeal was taken. The supreme court held that exclusionary
rule did not apply to defendant's statements made outside his home following warrantless
arrest in home.
Vacated in part and affirmed in part.
Beury & Schubel, Carlsbad, California; Frank J. Cremen, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and
James Tufteland, Chief Deputy and Vicki Monroe, Deputy, Clark County, for Respondent.
__________
2
We are not here concerned with the issue of whether the Kansas driver's permit is subject to surrender to
Kansas authorities. Until such time as the State of Kansas evinces an interest in McGuire's license, we are
confident that Nevada has the power to require that the license be surrendered to Nevada authorities since
McGuire has elected to become a Nevada resident, and has also seen fit to disregard Nevada law in failing to
obtain a Nevada license as required by law, and in driving on Nevada highways under the influence of
intoxicants thus jeopardizing the lives and property of persons within this state.
In the event McGuire has obtained a Nevada license as a result of the district court's erroneous ruling, the
DMV may, if it so elects, revoke any current Nevada license issued to McGuire because of the erroneous ruling,
and impose a period of revocation consistent with that which McGuire would have suffered if the original
revocation or denial of driving privileges had been enforced.
3
The Honorable Carl J. Christensen, Judge of the Eighth Judicial District, was designated by the Governor
to sit in the place of The Honorable Charles E. Springer, Justice. Nev. Const. art. 6, 4.
108 Nev. 186, 187 (1992) Walters v. State
1. Criminal Law.
Exclusionary rule did not apply to defendant's statements made outside his home following warrantless arrest in home.
U.S.C.A.Const. amend. 4.
2. Criminal Law.
Sentence for second degree murder could not be enhanced for use of deadly weapon, where nothing indicated that defendant could
have exercised control over knife used to kill victim and that he had actual or constructive possession of it.
OPINION ON REHEARING
Per Curiam:
This is an appeal from an order of the district court denying appellant's petition for
post-conviction relief.
Appellant Wayne Edward Walters was convicted following a jury trial of one count of
second degree murder with use of a deadly weapon. Walters was sentenced to serve a prison
term of life with the possibility of parole, enhanced by a consecutive term of life with the
possibility of parole for use of a deadly weapon.
Following the dismissal by this court of Walters' direct appeal, Walters petitioned the
district court for post-conviction relief. Following an evidentiary hearing, the district court
denied the petition. This appeal followed.
On February 20, 1990, this court issued an opinion in this matter reversing the decision of
the district court. Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). On May 9, 1990, the
state filed in this court a motion to recall the remittitur and a petition for rehearing. Walters
opposed the motion and petition. On June 21, 1990, this court issued an order staying the
proceedings against appellant in the district court. On October 25, 1990, we recalled our
remittitur in this matter, and granted the state's petition for rehearing. We now issue this
opinion in the place of our prior opinion.
FACTS
The evidence at trial showed that on the night of May 12, 1985, Walters and his
companion, Gregory Samson, had a heated argument with the victim, Douglas Ueckert, at the
Tumbleweed Inn, a bar in Sandy Valley, Nevada. The three men and several companions left
the bar to settle the dispute outside, at which time Samson displayed a knife. Eventually, the
men returned to the bar, after apparently settling their differences. Soon, however, the
argument flared up again. This time only Walters, Samson and Ueckert left the bar. A short
time later, the victim's wife, Diane Ueckert, found her husband in the parking lot bleeding
from several stab wounds.
108 Nev. 186, 188 (1992) Walters v. State
wife, Diane Ueckert, found her husband in the parking lot bleeding from several stab wounds.
Just prior to seeing her mortally wounded husband, Mrs. Ueckert encountered Samson on his
motorcycle. Samson indicated that Ueckert had hit him in the head and hurt him. At the same
time, Walters pulled up in a car and yelled to Samson, let's go.
The next morning, without first obtaining a warrant, police officers from both Nevada and
California converged on Walters' ranch, located on the California side of Sandy Valley, and
arrested him. In accomplishing the arrest, the officers used a helicopter and, while circling
Walters' home, used a bullhorn to order Walters and Samson to leave the house and walk to
where other officers were waiting. Walters and his companion complied with the police
directives, were given their Miranda warnings and were placed under arrest. Thereafter,
Walters was transported to Barstow, California, by a police officer. During the course of that
ride, which was approximately 100 miles, Walters made a statement to the effect, How many
times did I have to let him hit me in the back?
Following a jury trial, Walters was found guilty of second degree murder and sentenced to
life with the possibility of parole. He also received an identical consecutive sentence as an
enhancement for using a deadly weapon. Walters challenges the district court's denial of his
petition for post-conviction relief.
DISCUSSION
[Headnote 1]
In our previous opinion we concluded that two of the issues Walters raised in his petition
for post-conviction relief had merit. First, we concluded that because Walters emerged from
his home under circumstances of coercion, Walters was in effect arrested within his home.
See United States v. Maez, 872 F.2d 1444, 1449-51 (10th Cir. 1989). Consequently, we
concluded that Walters' inculpatory statement made in the police car as he was being
transported to Barstow was the product of an arrest in his home without a warrant or exigent
circumstances and should have been excluded from evidence under the holding of the United
States Supreme Court in Payton v. New York, 445 U.S. 573 (1980). See Maez, 872 F.2d at
1456-57.
In Payton the Supreme Court held that the Fourth Amendment prohibits the police from
effecting a warrantless and nonconsensual entry into a suspect's home in order to make a
routine felony arrest. Payton, 445 U.S. at 602-03. On April 18, 1990, however, the Supreme
Court issued a decision declining to apply the exclusionary rule to statements made outside a
suspect's home following a warrantless arrest in the home. New York v. Harris, 495 U.S. 14,
110 S.Ct. 1640 (1990). The Supreme Court explained that the rule in Payton was designed
to protect the physical integrity of the home and not to grant criminal suspects protection
from statements made outside their premises where the police have probable cause of
arresting the suspect for committing a crime. Id. at______, 110 S.Ct. at 1643.
108 Nev. 186, 189 (1992) Walters v. State
explained that the rule in Payton was designed to protect the physical integrity of the home
and not to grant criminal suspects protection from statements made outside their premises
where the police have probable cause for arresting the suspect for committing a crime. Id. at
------
, 110 S.Ct. at 1643.
The Supreme Court's decision in Harris prompted us to withdraw our earlier opinion in
this matter. Because the facts of Harris are legally indistinguishable from the facts in this
case, we now hold that the district court did not err in denying Walters' claim for
post-conviction relief based on admission of the inculpatory statement.
[Headnote 2]
Our second previous determination, that Walters' sentence was improperly enhanced,
remains unchanged. The controlling case law is found in Anderson v. State, 95 Nev. 625, 600
P.2d 241 (1979), in which we determined that the participation of a defendant not actually in
possession of the weapon by aiding and abetting the actual user in the unlawful use of the
weapon, makes the former equally subject to the added penalty inflicted upon defendants who
actually commit crimes through the use of deadly weapons. Id. at 629, 600 P.2d at 243.
In Anderson, we defined the requirements necessary to subject a defendant who aids and
abets to the enhanced penalty resulting from use of a deadly weapon as follows:
[T]he possession necessary to justify statutory enhancement may be actual or
constructive; it may be exclusive or joint. Constructive or joint possession may occur
only where the unarmed participant has knowledge of the other offender's being armed,
and where the unarmed offender has . . . the ability to exercise control over the
[weapon].
Id. at 630, 600 P.2d at 244.
The evidence strongly indicates that Walters did not have the possession necessary to
justify the enhancement of his sentence. There was no evidence suggesting that Walters had
any kind of constructive possession of the knife used to kill Ueckert. Moreover, the record
does not supply a basis for inferring that Walters could have exercised control over the
weapon. Therefore, it was clear error to statutorily enhance Walters' sentence. Walters'
remaining contentions lack merit.
Accordingly, we vacate appellant's consecutive life sentence for use of a deadly weapon.
We affirm in all other respects the decision of the district court denying appellant's petition
for post-conviction relief.
1
__________
1
We lift the stay of proceedings in the district court imposed by our order of June 21, 1990.
____________
108 Nev. 190, 190 (1992) Schryver v. Schryver
VIRGINIA A. SCHRYVER, Appellant, v. JAMES B. SCHRYVER, Respondent.
No. 21888
March 5, 1992 826 P.2d 569
Appeal from an order of the district court dismissing a motion for modification of spousal
support. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Former wife moved for modification of spousal support. The district court dismissed
motion, and former wife appealed. The supreme court held that motion to modify alimony
was timely filed on thirteenth day of last month of payment of alimony, even though former
husband had already made final payment.
Reversed and remanded.
Silverman & DeCaria and Jarold Young, Reno, for Appellant.
Dyer & McDonald, and Valerie J. Cooney, Carson City, for Respondent.
Divorce.
Motion to modify alimony was timely filed on thirteenth day of last month for payment of alimony, even though former husband
had already made final payment; holding otherwise would allow former husband to deprive court of jurisdiction simply by making
advance payment.
OPINION
Per Curiam:
This is an appeal from an order of the district court dismissing a motion for modification
of spousal support. On May 3, 1983, Virginia and James Schryver were divorced. The district
court approved a written settlement agreement between Virginia and James, and incorporated
the agreement into the decree of divorce. The agreement provided that James was to pay
Virginia $1,200 a month in alimony beginning on October 1, 1982, and continuing for a
period of eight years.
September of 1990 was to be the last month that James was required to make payments
under the decree. At the beginning of the month, James sent Virginia a check in the amount
of $1,000. A few days later he sent her a check in the amount of $200. Subsequently, on
September 13, 1990, Virginia filed a motion pursuant to NRS 125.150(7)
1
to modify the
alimony payments.
__________
1
NRS 125.150(7) provides that:
If a decree of divorce, or an agreement between the parties which was ratified, adopted or approved in
a decree of divorce, provides for
108 Nev. 190, 191 (1992) Schryver v. Schryver
She requested that the payments be increased and extended for the remainder of her life.
On December 12, 1990, the district court entered an order dismissing Virginia's motion for
modification. Although the district court did not specify its reasons for the dismissal, both
parties to this appeal assume that the district court concluded that it lacked jurisdiction to
consider Virginia's motion.
Virginia contends in this appeal that although James may have made his final alimony
payment at the beginning of the month, the actual term of support did not end until September
30, 1990. Therefore, because she filed her motion on September 13, 1990, she asserts that the
district court had jurisdiction to consider it.
The issue presented is one of first impression in Nevada. We have considered the
conflicting authorities from other jurisdictions and have concluded that Virginia's argument
has merit. Because Virginia's motion was filed within the period of support as contemplated
by the divorce decree, it was timely. See Pujals v. Pujals, 414 So.2d 228 (Fla.Dist.Ct.App.
1982) (motion to extend alimony was timely even though it was filed on the last day of the
period of support, after the final payment had been made). To hold otherwise would allow a
payor spouse to deprive the court of jurisdiction simply by making advance payments.
Accordingly, we reverse the order of the district court dismissing the motion for
modification, and we remand for further proceedings.
____________
108 Nev. 191, 191 (1992) Lickey v. State
AUSTIN E. LICKEY, aka AUSTIN ORR, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 20308
March 5, 1992 827 P.2d 824
Appeal from judgment of conviction of four counts of sexual assault on child under the
age of fourteen years. Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt,
Judge.
Defendant was convicted in the district court of sexual assault on child under age of
fourteen years, and he appealed. The supreme court held that defendant was denied fair trial
as result of failure to provide him with assistance of expert psychiatric witness to interview
child victim, where state was provided with that resource and evidence consisted almost
entirely of child victim's testimony.
__________
specified periodic payments of alimony, the decree or agreement is not subject to modification by the
court as to accrued payments. Payments pursuant to a decree entered on or after July 1, 1975, which have
not accrued at the time a motion for modification is filed may be modified upon a showing of changed
circumstances, whether or not the court has expressly retained jurisdiction for the modification.
108 Nev. 191, 192 (1992) Lickey v. State
witness to interview child victim, where state was provided with that resource and evidence
consisted almost entirely of child victim's testimony.
Reversed and remanded.
Mowbray, C. J., dissented.
[Rehearing denied May 18, 1992]
James J. Jackson, State Public Defender, Janet S. Bessemer, Deputy Public Defender,
Patrick Gilbert, Deputy Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Mariah Sugden, District Attorney,
Dan L. Papez, Deputy District Attorney, White Pine County, for Respondent.
1. Criminal Law.
In prosecution for sexual abuse, defense is entitled to same opportunity to present expert testimony concerning victim's
psychological state as is prosecution, unless competent evidence presents compelling reason to protect child victim from repeated
examination.
2. Criminal Law.
Where police officers and state's experts were permitted to conduct over a dozen interviews with victim of child sexual abuse,
defendant was entitled to conduct at least one such interview; determination that multiple psychiatric examinations might intimidate
child was not supported by evidence.
3. Criminal Law.
State is not entitled to have psychologist testify as to veracity of victim of child sexual abuse, although treating health professional
may testify that victim's behavior is consistent with that of assault victim.
4. Criminal Law.
Expert witness may not comment on veracity of another witness.
5. Costs.
Failure to accord defendant assistance of expert psychiatric witness in prosecution for child sexual abuse, while state was provided
with expert witness, resulted in lack of fair trial where evidence consisted almost entirely of child victim's testimony which defendant
disputed.
OPINION
Per Curiam:
Appellant Austin Lickey (Lickey) was tried by a jury and convicted for sexually assaulting
his granddaughter, who was seven years old at the time of the assaults. Lickey was sentenced
to four consecutive life terms in the Nevada State Prison.
Prior to trial, Lickey filed a motion to have the victim and her mother examined by a
defense psychiatrist. The purpose of the proposed examination was to refute the testimony of
the State's witness, a doctor of clinical psychology who, after interviewing the child six
times, opined that the victim had "Post Traumatic Stress Disorder-Secondary to Child
Sexual Abuse."
108 Nev. 191, 193 (1992) Lickey v. State
the child six times, opined that the victim had Post Traumatic Stress Disorder-Secondary to
Child Sexual Abuse. The defense also wished to show that the victim's mother, Barbara, had
a long-standing enmity toward her father, Austin Lickey. In the motion to allow the defense a
psychiatric examination and testimony, Lickey asserted that it was unfair to allow the State to
rely on an examination conducted by its own expert and then deny the defense the
opportunity to have the same benefit. On April 28, 1989, a hearing was held and the district
court denied the motion. Relying on Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987),
the court concluded that the veracity of the victim and her mother should be decided by the
jury because multiple psychiatric examinations might intimidate the child. No evidence was
introduced to show that another psychiatric interview would affect the child in any way. The
court also found that other evidence supported the victim's testimony.
At trial, the court admitted testimony regarding a prior bad act committed by Lickey. The
court ruled that this evidence was admissible to show intent under McMichael v. State, 94
Nev. 184, 577 P.2d 398 (1978). Barbara testified that in 1983 or 1984, when she was living
with her parents in Ruth, Nevada, she was sleeping on the couch when her father put his
hand underneath the blanket and went towards my bottom half and told me that's how I could
pay him back the twenty dollars.
The primary evidence presented against Lickey at trial was the testimony of the victim,
who was then eight years old. At the time of the alleged assaults, she was living with her
grandparents in Ruth. She testified that the first incident occurred while she was playing with
her Barbie doll in the living room of Lickey's home. Lickey put his finger up her private
part and started wiggling his finger, which hurt. A second incident occurred while she was
standing on a chair in the kitchen stirring a pot of spaghetti on the stove. Lickey approached
her, stuck his finger in her vagina, and began wiggling his finger. The third incident occurred
one night wile the victim was in bed. Lickey came into her bedroom and stuck some kind of
silverware in her private part.
The final incident occurred in a car while traveling from Ely to Ruth. The victim testified
that her grandmother was driving, and she was seated on the front seat between her
grandmother and Lickey. Lickey was drunk and he struck his finger in her vagina and wiggled
his finger. She told her grandmother, who became angry, pulled the car to the side of the road,
and began slugging Lickey. A police car then pulled in front of the vehicle, and both the
victim's grandmother and the police officer exited their vehicles and had a conversation in
front of Lickey's vehicle. At trial, through the use of an anatomically correct doll, the
victim identified the vagina as the place Lickey touched her in each incident.
108 Nev. 191, 194 (1992) Lickey v. State
through the use of an anatomically correct doll, the victim identified the vagina as the place
Lickey touched her in each incident.
Lickey claims the trial court erred in denying his motion to have a defense psychiatrist
examine the victim and testify at trial. Lickey argues that because the prosecution raised the
issue of the effect of the victim's mental well-being on her veracity, he should have been
permitted to have a psychiatrist testify to support the defense's theory that the victim lied
about the cause of her injuries. We are convinced by this argument.
The district court permitted the prosecution to call a clinical psychologist specializing in
child sexual abuse, who reiterated what the minor victim had told her during their interviews.
The psychologist stated her expert conclusion that the victim had been sexually molested, and
she opined that the victim was truthful. The prosecution had two evidentiary advantages over
the defense. First, it was able to provide expert testimony that the victim was assaulted
sexually and had post traumatic stress disorder as a result of these assaults, a conclusion the
defense was not given the opportunity to controvert with its own expert. Second, the
prosecution's expert was permitted to testify as to the veracity of the victim-witness.
Numerous jurisdictions, as well as general notions of fairness, dictate that failure to provide
equal access to expert psychiatric witnesses prejudices the defense.
In determining that Lickey had no right to have a psychiatrist examine the victim and
testify at trial, the district court relied upon Washington v. State, 96 Nev. 305, 608 P.2d 1101
(1980). In Washington, the defendant requested a psychiatric examination of the victim after
trial, to support his motion for a new trial based on his contention that the victim was lying.
This court concluded that the prosecution's case was not so void of corroboration that an
exam was warranted, and that in any event the decision to appoint a psychiatrist for the
defense post-trial was within the discretion of the trial court. Id. at 307-308, 608 P.2d at
1102-03. In Washington, however, the prosecution had no expert of its own. Moreover, we
did not address the issue presented in this case: to wit, whether the same standard applies if
the trial court permits the prosecution's expert to testify at trial but denies the defendant the
same opportunity. The dissent opines that we misunderstand the issue. We suggest that the
contrary is true and that the dissenting justice refuses to acknowledge the obvious differences
between the Washington case and the one at issue here.
[Headnotes 1, 2]
The assistance a psychologist offers a defendant is very important in sexual assault cases.
See Warner v. State, 102 Nev. 635, 729 P.2d 1359 (1986). In Warner, we reversed a
conviction for sexual assault because of ineffective counsel.
108 Nev. 191, 195 (1992) Lickey v. State
sexual assault because of ineffective counsel. We held that defense counsel was ineffective in
part because he failed to interview the complaining minor or request a court order requiring
her to undergo a physical or psychological examination. If failure to request a psychological
examination constitutes grounds for a finding of ineffective counsel, it logically follows that a
defendant facing charges of sexual assault of a minor should be afforded an expert psychiatric
witness.
The few jurisdictions which have examined this issue have agreed that in sexual abuse
cases, the defense should have the same opportunity to present expert testimony as the
prosecution. Cox v. State, 805 P.2d 374 (Alaska App. 1991) (court abused its discretion by
denying defense opportunity to present expert to testify that children lie about sexual abuse);
State v. Zeh, 509 N.E.2d 414 (Ohio 1987) (evidence from prosecutor's interview is
inadmissible unless witness consents to court-appointed, independent examination by the
defense). In Zeh, the court focused on the concept of judicial courtesy to both sides and
decided that since the victim's veracity was at issue, it could only have been fair to have
either permitted defendant to develop such evidence for his defense, or to have denied the
prosecution any use of that expert testimony applicable to the contested and essential element
of the crime. Zeh, 509 N.E.2d at 418. In Cox, the trial court excluded the defense expert's
testimony on the grounds that the defendant had ample opportunity to cross-examine the
prosecution's expert. Concluding that cross-examination was an inadequate substitute for
surrebuttal, the appellate court stated that the trial court was under a duty to give [defense]
counsel every opportunity to combat the improper testimony. Cox, 805 P.2d at 379. We
conclude that unless competent evidence presents a compelling reason to protect the victim, it
is error to deny a defendant the assistance of a defense psychologist or psychiatrist to examine
the child-victim and testify at trial when the State is provided such assistance. Because police
officers and the State's experts were permitted to conduct over a dozen interviews with the
child-victim, the defendant should have been afforded at least one.
The dissent cites Colley v. State, 98 Nev. 14, 639 P.2d 530 (1982), in support of the
contention that the denial of a defense motion for a psychiatric examination of the victim was
not an abuse of discretion. We conclude that Colley is not controlling. In Colley, the State did
not call a psychiatric witness at trial, nor was the issue here presented argued in that appeal.
Moreover, unlike the case at bar, the victim's testimony was amply corroborated, and her
emotional state was not subject to serious attack. Id. at 17, 639 P.2d at 532.
108 Nev. 191, 196 (1992) Lickey v. State
[Headnote 3]
We also conclude that it is error to permit the State to have a psychologist testify as to the
veracity of a victim. The testimony the Cox court called improper was testimony of the
prosecution's expert psychiatrist verifying a child's detailed reports of sexual abuse. In the
case at bar, the State's psychologist testified positively about both (1) the veracity of the
victim, and (2) her opinion that the victim's mental condition was consistent with someone
who had been sexually abused. In child sexual assault cases, NRS 50.345 permits a treating
health professional to testify that the victim's behavior or condition is consistent with that of a
sexual assault victim. In the case at bar, however, the State's psychologist went beyond that
which is allowed by the statute.
[Headnote 4]
An expert may not comment on the veracity of a witness. See Townsend v. State, 103 Nev.
113, 734 P.2d 705 (1987). In Townsend, we allowed expert testimony concerning post
traumatic stress disorder, because the testimony was highly probative. We unequivocally
stated that it was improper for an expert to comment directly on whether the victim's
testimony was truthful, because that would invade the prerogative of the jury.
Other jurisdictions are in accordance with our Townsend holding. See, e.g., State v.
Bressman, 689 P.2d 901 (Kan. 1984) (expert opinion becomes inadmissible as soon as it
passes on credibility of the witness); State v. Logue, 372 N.W.2d 151 (S.D. 1985) (social
worker's testimony that victim probably gained his sexual knowledge from sex with
defendant was reversible error); Gale v. State 792 P.2d 570 (Wyo. 1990) (expert commentary
on child's veracity is plain error). In Logue, the court reversed the conviction based on expert
testimony similar to that proffered in the instant case because it lent a stamp of undue
legitimacy to [the victim's] testimony. Logue, 372. N.W.2d at 157. We find it persuasive that
even in South Dakota, a state so tough on crime that it has the most severe recidivism
penalties in the nation, this evidence was too prejudicial to permit a conviction to stand.
1
[Headnote 5]
Finally, the evidence used to establish that Lickey committed the four acts of sexual
assault consisted almost entirely of the child-victim's testimony, which Lickey disputed.
There was no direct evidence corroborating the allegations of sexual assault.
__________
1
See Solem v. Helm, 463 U.S. 277 (1983) (Supreme Court held that indeterminate life sentence imposed by
South Dakota Supreme Court was excessive punishment for habitual criminal convicted of uttering $100 no
account check).
108 Nev. 191, 197 (1992) Lickey v. State
Contrary to the dissent's contention, the evidence supporting each of the four charges was not
overwhelming. For example, other than the victim's testimony, all of the evidence regarding
the allegations of the fourth count concerning an assault in the vehicle supported Lickey's
version of the facts. Lickey's wife testified that the event never occurred, and that she did not
scold or hit Lickey or have a conversation with a police officer. Moreover, no law
enforcement officer was called to testify about the incident. Given the character of the
evidence, the assistance and testimony of a psychiatrist for Lickey could have had a
significant effect on the outcome of the trial. Such expert testimony could have created a
reasonable doubt as to the validity of some, if not all, of the counts charged against Lickey.
The dissent notes that the minor victim has endured a preliminary hearing and jury trial.
We fully share our dissenting colleague's sympathy and concern for the minor victim in this
case, and agree that she has done everything asked of her. We are also cognizant of the
additional work and trauma often caused by a retrial, and are most reluctant to compel any
victim, especially a child, to endure future anguish unless truly necessary. However, our
constitutional responsibility demands far more than an inquiry into the impact of the crime on
the victim. We are under a sworn duty to consider forthrightly and unemotionally whether the
trial, resulting in a conviction, was fundamentally fair under standards of due process.
It is hardly necessary to emphasize that this court exercises substantial caution in
overturning jury verdicts in any criminal case. Fewer than four percent of the convictions
appealed from are sent back to the trial court for retrial, and the vast majority of these
reversed cases are successfully retried by the State upon remand. We reverse for retrial only
when a majority of the court considers it necessary to do so because of prejudicial error
revealed by the record.
After considering the claims made in the dissent, we again re-examined the record, the
briefs, and our conclusions. We were again left with the abiding conviction that justice,
fairness, and the law of this jurisdiction require that appellant Lickey be given another trial.
Under the circumstances of this case, because Lickey was denied the assistance of an
expert psychiatric witness, when the State was provided such a resource, we conclude that
Lickey did not receive a fair trial. And, because the case must be reversed on this ground, we
need not reach the issue of whether the prior bad act was wrongly admitted. Accordingly, we
reverse and remand this case for a new trial.
108 Nev. 191, 198 (1992) Lickey v. State
Mowbray, C. J., dissenting:
Respectfully, I dissent.
The decision whether to order a psychiatric examination of a sexual assault victim is a
matter left to the sound discretion of the trial court. Washington v. State, 96 Nev. 305, 307,
608 P.2d 1101, 1102, (1980) (citations omitted). I see no reason to depart from this policy,
especially when the victim is a child of tender years. Here, after determining that multiple
psychiatric examinations might adversely affect the young victim, the trial judge wisely
refused to permit an additional psychiatric examination. The majority wrongly disagrees with
the learned judge's decision.
The issue presented, pursuant to our decision in Washington, is whether Mr. Lickey
demonstrated a compelling reason for an additional psychiatric examination. He did not.
Compelling reasons do not exist unless there is little or no corroboration of the victim's
allegations and the defense has questioned the effect of the victim's emotional or mental
condition upon her veracity. Washington, 96 Nev. at 307, 608 P.2d at 1102. In Washington,
the victim's testimony was corroborated and the defendant engaged in extensive
cross-examination. As a result, we held that the defendant failed to demonstrate a compelling
reason for a psychiatric examination and that, therefore, the trial court did not abuse its
discretion by refusing to order such an examination.
In the case before us, the young victim's testimony was corroborated by several witnesses:
1. Dr. Kathie Coopersmith, an Ely pediatrician, examined the victim on October 5,
1988. Dr. Coopersmith testified that the victim had sustained trauma to her vagina
consistent with penetration by a finger and/or a foreign object. Moreover, Dr.
Coopersmith determined that the injuries had occurred within the previous two weeks.
2. The victim was also examined by Kathleen Peele, a pediatric nurse and clinic
director for the Washoe County Child Sexual Abuse Investigative Team, on October
26, 1988. In conjunction with her testimony, Ms. Peele presented photographs of the
victim's vaginal area which illustrated injuries consistent with those found by Dr.
Coopersmith. Ms. Peele also testified that the injuries sustained by the victim were
consistent with vaginal penetration by a finger and/or foreign object.
3. Detective Martin Sorenson of the White Pine County Sheriff's Office testified
that he had videotaped an interview with the victim on October 5, 1988, approximately
six months before the trial, during which she recalled the four incidents of abuse giving
rise to this prosecution. The victim's statements at that time were consistent with
her subsequent testimony at trial.
108 Nev. 191, 199 (1992) Lickey v. State
tim's statements at that time were consistent with her subsequent testimony at trial. The
videotaped interview was played for the jury.
4. Dr. Joann Behrman-Lippert, Ph.D., an expert in child abuse, interviewed the
victim six times. Videotapes were made of the interviews on October 12 and 13, 1988,
which were also played for the jury. Dr. Behrman-Lippert opined that the victim had in
fact been sexually abused.
Finally, the victim's testimony was corroborated by Mr. Lickey's neighbor, who testified that
the victim told her that Mr. Lickey had penetrated her vagina with silverware.
The record also shows that Mr. Lickey's counsel extensively cross-examined the victim.
Yet, despite being subjected to cross-examination during both the preliminary hearing and the
trial, the young victim's testimony was remarkably consistent. Because of this substantial
corroborating evidence and extensive cross-examination, I cannot agree that the decision in
this case should differ from the one reached in Washington.
In Colley v. State, 98 Nev. 14, 639 P.2d 530 (1982), cert. denied, 479 U.S. 839 (1986), we
again held that the denial of a defense motion for a psychiatric examination of a victim was
not an abuse of discretion, reasoning that the victim's testimony was amply corroborated and
her emotional state was not subject to serious attack. Id. at 17, 639 P.2d at 532 (citing
Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980)). The majority states that Colley is
not controlling. I disagree.
In Colley, we held that even where the testimony of a prosecution witness was not
substantially corroborated, the trial court could properly refuse to subject the witness to a
psychiatric examination where the jury was able to observe and evaluate [the victim's]
emotional condition during her testimony on cross-examination. Colley, 98 Nev. at 17, 639
P.2d at 532. In the case at bar, the victim's testimony was substantially corroborated, and the
jury was likewise able to observe and evaluate her testimony on cross-examination.
Therefore, I see no reason to depart from our general policy of leaving this issue in the able
hands of the trial judge.
The majority relies upon State v. Zeh, 509 N.E.2d 414 (Ohio 1987), and Cox v. State, 805
P.2d 374 (Alaska App. 1991). Both cases, however, are readily distinguished from the matter
before us today, and neither case provides the defense with the right to a second psychiatric
examination of a minor child performed by an expert of the defendant's choosing.
The decision in Zeh, which required an independent psychiatric examination of a
victim-witness, was expressly limited to those circumstances where the victim's mental
impairment is an essential issue.1 It did not involve submitting a child-victim to a
psychiatric examination.
108 Nev. 191, 200 (1992) Lickey v. State
essential issue.
1
It did not involve submitting a child-victim to a psychiatric examination. In
Cox, a child abuse conviction was reversed solely because a clinical psychologist testified as
to the child-victim's veracity in rebuttal for the state and the defense was denied surrebuttal.
The corroborating evidence in Cox did not approach the magnitude of that before us today.
Moreover, the majority incorrectly states that Dr. Behrman-Lippert testified as to the victim's
veracity. The fact that such testimony did not occur further distinguishes this case from Cox.
This young victim has bravely endured an investigation, a preliminary hearing and a jury
trial. After carefully considering the due process issue addressed by the majority, I am
convinced that common sense and reasonableness should prevail. Mr. Lickey received a fair
trial and was convicted because of the overwhelming evidence presented against him, not
because he was denied a second psychiatric evaluation. I cannot endorse sending this case
back to the trial court when the evidence speaks so loudly to the guilt of the accused.
____________
108 Nev. 200, 200 (1992) Sheriff v. Schwarz
JOHN MORAN, Sheriff of Clark County, Nevada and STATE OF NEVADA, Appellant, v.
CHARLES ROBERT SCHWARTZ, Respondent.
No. 22886
March 5, 1992 826 P.2d 952
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; Joseph S. Pavlikowski, Judge.
Pretrial petition for writ of habeas corpus was filed seeking to have indictment charging
solicitation to commit murder dismissed. The district court granted petition. Appeal was
taken. The supreme court held that: (1) subsequent renunciation or withdrawal is not defense
to crime of solicitation, and (2) district attorney was under no obligation to present to grand
jury taped conversation in which petitioner renounced his intention to have murder
committed.
__________
1
In Zeh, a defendant was on trial for violating an Ohio statute prohibiting an unmarried person from
engaging in sexual conduct with a partner whose ability to appraise the nature of or control his or her own
conduct is substantially impaired. Zeh, 509 N.E.2d at 417 (quoting Ohio Rev. Code Ann. 2907.03 (Anderson
1987)). The victim was a male adult afflicted with slight mental retardation. The Ohio Court of Appeals has
since held that Zeh does not apply to juvenile rape situations unless a defendant is charged with substantially
impairing his victim's judgment or control through drugs or narcotics. In re Johnson, 573 N.E.2d 184 (Ohio Ct.
App. 1989) (emphasis added).
108 Nev. 200, 201 (1992) Sheriff v. Schwarz
conversation in which petitioner renounced his intention to have murder committed.
Reversed and remanded.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, Clark
County, for Appellant.
John Manzonie, Las Vegas, for Respondent.
1. Indictment and Information.
Sufficient evidence was presented to grand jury to establish probable cause to support two counts of solicitation as charged in
indictment; two witnesses testified before grand jury that target of grand jury investigation offered them remuneration to commit
murder. NRS 199.500, subd. 2.
2. Grand Jury.
In grand jury proceeding on indictment charging solicitation, district attorney was under no obligation to present to grand jury
taped conversation in which target of proceedings renounced his intention to have murder committed; this conversation was held
several days after original solicitation, and evidence that target subsequently changed his mind did not alter testimony that target had
earlier solicited two men to commit murder. NRS 172.145, subd. 2, 199.500, subd. 2.
3. Criminal Law.
Subsequent renunciation or withdrawal is not defense to crime of solicitation. NRS 199.500.
OPINION
Per Curiam:
[Headnote 1]
On April 19, 1990, a grand jury convened to consider whether to charge respondent
Charles Robert Schwarz with solicitation to commit murder and attempted murder.
Respondent was accused of having solicited two men to kill Thomas Susman in exchange for
money and jewelry, and of having provided them with information about Susman so that they
could carry out the murder. Both men testified before the grand jury that on April 6, 1990,
respondent offered them remuneration to murder Susman. No criminal act was committed as
a result of that solicitation. This was sufficient evidence to establish probable cause that
respondent committed two counts of solicitation in violation of NRS 199.500(2).
1
Respondent filed a petition for a writ of habeas corpus seeking to have the indictment
dismissed.
__________
1
Of course, we draw no conclusions regarding respondent's guilt or innocence. We simply conclude that
sufficient evidence was presented to the grand jury to establish probable cause to support two counts of
solicitation against respondent as charged in the indictment.
108 Nev. 200, 202 (1992) Sheriff v. Schwarz
Respondent filed a petition for a writ of habeas corpus seeking to have the indictment
dismissed. He contended, inter alia, that in a subsequent conversation with one of the
solicitees, he renounced his intention to have Susman killed; that the conversation had been
tape recorded by the police; and that the district attorney violated NRS 172.145(2) by failing
to play the tape for the grand jury because the tape would explain away the charge. The
district court agreed and granted the petition without prejudice. This appeal followed.
[Headnote 2]
NRS 172.145 requires the grand jury to hear, and the district attorney to submit, known
evidence which will explain away the charge. Specifically, NRS 172.145(2) states: If the
district attorney is aware of any evidence which will explain away the charge, he shall submit
it to the grand jury. In Sheriff v. Frank, 103 Nev. 160, 165, 734 P.2d 1241, 1245 (1987), we
held that a district attorney's refusal to fulfill this duty, combined with the presentation of
inadmissible hearsay, irreparably impaired the proper performance of the grand jury's
mission to pursue its investigation independently, and thus justified granting a pretrial
petition for a writ of habeas corpus. Accordingly, we will reverse in this case only if the
evidence at issue does not tend to explain away the charge. Preliminarily, we note that, by
presenting evidence that respondent recanted, the district attorney fulfilled the duty imposed
by NRS 172.145(2). The district attorney was not under a further duty to reveal all of the
investigatory steps taken by the police in developing the case. Moreover, as explained below,
we hold that in this case the tape does not explain away the solicitation charges; accordingly,
the district attorney was under no obligation to present the tape to the grand jury.
[Headnote 3]
Although we have never before reached this issue, we now expressly hold that a
subsequent renunciation or withdrawal is not a defense to the crime of solicitation. Other
jurisdictions have so held. See, e.g., State v. Boehm, 379 N.W.2d 874 (Wis.Ct.App. 1985);
People v. Miley, 158 Cal. App. 3d 25 (Ct.App. 1984). One of the purposes of the statute
making solicitation a crime is to avoid citizen exposure to inducements to commit crime.
Miley, 158 Cal. App. 3d at 34 (emphasis omitted). Unlike other criminal offenses, in the
crime of solicitation, the harm is the askingnothing more need be proven. Id. (emphasis
in original). Because renunciation or withdrawal cannot undo that which has already been
done, it has no effect on the elements of solicitation. Boehm, 379 N.W.2d at 876.
108 Nev. 200, 203 (1992) Sheriff v. Schwarz
NRS 199.500 does not make renunciation or withdrawal a defense to the crime of
solicitation. The crime is complete once the request is made. In this case, the taped
conversation in which respondent renounced his intention to have Susman killed was held
several days after the original solicitation. Thus, evidence that respondent subsequently
changed his mind does not alter the testimony that on April 6, 1990, respondent solicited two
men to commit murder. Therefore, the taped conversation did not tend to explain away the
charge of solicitation of murder and the district attorney was under no obligation to present
it to the grand jury.
Accordingly, we reverse the order of the district court granting respondent's pretrial
petition for a writ of habeas corpus. We remand this matter to the district court with
instructions to reinstate the indictment, and for further proceedings consistent with this
opinion.
2
____________
108 Nev. 203, 203 (1992) Rutar v. Rutar
CVETKA RUTAR, Appellant, v. MARJAN RUTAR, Respondent.
No. 21993
March 5, 1992 827 P.2d 829
Appeal from an award of spousal support. Eighth Judicial District Court, Clark County;
Donald M. Mosley, Judge.
Divorce was granted by district court. Wife appealed. The supreme court held that: (1)
rehabilitative alimony award of $1,000 per month was inadequate, and wife was entitled to
$1,700 per month for eight years, and (2) need for award of attorney fees to wife was obviated
by increase in alimony awarded.
Reversed and remanded.
Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for Appellant.
Darrel Lincoln Clark, Las Vegas, for Respondent.
1. Divorce.
Award of $1,000 per month in rehabilitative alimony for period of three and one-half years was inadequate given respective
circumstances in which parties had been left by divorce, and award of $1,700 per month for eight years was
proper.
__________
2
The state has conceded that insufficient evidence was presented to the grand jury to establish probable
cause that respondent committed attempted murder. Accordingly, the indictment should be amended to omit
count III, attempted murder.
108 Nev. 203, 204 (1992) Rutar v. Rutar
in which parties had been left by divorce, and award of $1,700 per month for eight years was proper.
2. Divorce.
Need for award of attorney fees to wife was obviated by increase in alimony award which would provide adequate available
resources upon which wife could draw to pay fees.
OPINION
Per Curiam:
Mrs. Rutar (Cvetka) and Mr. Rutar (Marjan) met in Ravne, Yugoslavia, in 1965. At the
time, Cvetka was nineteen years old and Marjan was twenty-seven. Both had completed
dental technician school, which is the Yugoslavian equivalent of a four-year technical high
school in the United States. Marjan worked for eight years as a dental technician in
Yugoslavia and then went to Switzerland to receive specialized training. After Cvetka
graduated, she worked in Yugoslavia for two years in the same laboratory that employed
Marjan before he left for Switzerland.
In 1969, while Marjan was in Switzerland, Cvetka answered an advertisement for a dental
technician in Yonkers, New York, and moved to the United States. In 1970, she arranged a
position for Marjan with her employer, and he joined her in Yonkers. They married in 1971.
They worked together in several laboratories before moving to Las Vegas, Nevada, where
they started their own dental laboratory, Emona Dental Studios (EDS Corporation).
Cvetka worked full-time in the laboratory for approximately five years, from the time it
opened until after their second child, Michelle, was born in 1976. She then became a full-time
homemaker, caring for her and Marjan's two children and the two children from Marjan's
previous marriage. The couple put both of Marjan's children through college and graduate
school.
After quitting her full-time work to be a homemaker, Cvetka continued to do some of the
routine bookkeeping work for the laboratory. For the most part, however, Cvetka had not
worked outside the home for approximately fifteen years prior to the divorce. Furthermore,
she testified that even when she was working as a technician, she was never able to work
without supervision, because she lacked Marjan's specialized skill. She is currently forty-five
years old and is pursuing an undergraduate degree in accounting, with the hope of someday
attending law school.
Marjan, on the other hand, has worked long hours in his dental laboratory since its
commencement. EDS Corporation currently grosses over $300,000 per year, and in 1988,
Marjan's personal income amounted to $154,700.
108 Nev. 203, 205 (1992) Rutar v. Rutar
income amounted to $154,700. The corporation also pays Marjan's automobile expenses,
automobile insurance, and medical insurance. Marjan is fifty-three years old and, in the
future, would like to reduce the number of hours he works each day.
Marjan filed for divorce in February of 1988. The district court granted the divorce in
January of 1990 and awarded Cvetka $1,000 per month in rehabilitative alimony for a period
of three and one-half years. In addition, Cvetka received child support for both children
totaling $1,000 per month. The court ordered an equal division of the couple's property,
which consisted primarily of a house valued at $550,000 less an $80,000 mortgage, a
condominium valued at $225,000 less an $80,000 mortgage, the dental laboratory valued at
approximately $140,000, a retirement fund valued at approximately $700,000, and several
automobiles. The district court also ruled that Cvetka and the children may continue to live in
the house until it is sold. Marjan was ordered to continue paying the upkeep expenses on the
house and condominium, amounting to approximately $3,500 per month, with Cvetka
reimbursing him for her half of these expenses upon sale of the properties.
Cvetka appeals the award of spousal support, requesting an increase in the $1,000 awarded
to $3,500 per month, out of which she would pay her half of the property upkeep expenses as
they are incurred. She also requests that spousal support continue for longer than three and
one-half years, and that the district court retain jurisdiction to modify the spousal support
award following sale of the house and condominium. Finally, she requests that the court
award her attorney's fees for this appeal.
[Headnote 1]
The primary issue is the reasonableness of the rehabilitative alimony award. The amount
of alimony awarded is within the sound discretion of the district court. See, e.g., Winn v.
Winn, 86 Nev. 18, 467 P.2d 601 (1970). However, this discretion is limited by the dictates of
NRS 125.150.
1
In Heim v. Heim, 104 Nev. 605, 60S, 763 P.2d 67S, 679-S0 {19SS), this
court referred to NRS 125.150, which requires that in awarding alimony the court must
award an amount that is "just and equitable," having regard to the "respective merits of
the parties and to the condition in which they will be left [after] divorce."2
This case presents a situation in which both parties contributed substantially to the
marriage but are left with vastly disparate earning capacities after the divorce.
__________
1
NRS 125.150(1) states:
1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified
periodic payments; and
(b) Shall make such disposition of:
(1) The community property of the parties; and
(2) Any property placed in joint tenancy by the parties on or after July 1, 1979,
as appears just and equitable, having regard to the respective merits of the parties and to the condition in
which they will be left by the divorce, and to the party through whom the property was acquired, and to
the burdens, if any, imposed upon it, for the benefit of the children.
108 Nev. 203, 206 (1992) Rutar v. Rutar
Nev. 605, 608, 763 P.2d 678, 679-80 (1988), this court referred to NRS 125.150, which
requires that in awarding alimony the court must award an amount that is just and
equitable, having regard to the respective merits of the parties and to the condition in which
they will be left [after] divorce.
2
This case presents a situation in which both parties contributed substantially to the
marriage but are left with vastly disparate earning capacities after the divorce. Similar
circumstances were considered in Johnson v. Steel Incorporated, 94 Nev. 483, 489-90, 581
P.2d 860, 864 (1978). In Johnson, this court held that the district court had abused its
discretion in limiting the wife's alimony award to $1,200 per month for a period of two years.
3
In that case, the parties had been married for twenty years, and the wife retained custody of
their two children. Id. at 484, 581 P.2d at 861. She had never worked outside the home and
had developed no marketable skills, while her husband had built up a profitable business by
practicing a trade throughout their twenty-year marriage. His personal gross income was
$83,000 per year. Id. at 487, 581 P.2d at 863. In the property division, both parties received
assets valued at approximately $350,000. Id. at 486, 581 P.2d at 862.
This court classified the two year alimony award in Johnson as rehabilitative alimony.
Id. As such, the court held that the alimony award was unjust. Applying the guidelines
established in Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974),
4
the court
held that, given Mrs. Johnson's educational background and lack of work experience, there
was no evidence in the record to suggest that she actually would be able to earn enough to
meet her expenses after only two years of training. Johnson, 94 Nev. at 489, 581 P.2d at 864.
Furthermore, this court noted the injustice inherent in denying a wife reasonable alimony
where she has
__________
2
We have not, and do not now express any opinion as to the meaning of the term respective merits of the
parties, which by the express language of the statute must be considered in all cases involving judicial awards
of alimony and marital property distribution.
3
The court also awarded child support totalling $500 per month. Johnson v. Steel Incorporated, 94 Nev.
483, 484, 581 P.2d 860, 861 (1978).
4
The guidelines for determining the amount of alimony to be awarded have been set forth as follows:
[T]he financial condition of the parties; the nature and value of their respective property; the contribution
of each to any property held by them as tenants by the entirety; the duration of the marriage; the
husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health,
station and ability to earn a living.
Johnson, 94 Nev. at 486-87, 581 P.2d at 862 (quoting Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5
(1974)).
108 Nev. 203, 207 (1992) Rutar v. Rutar
been a full-time homemaker and caretaker of the children with her husband's agreement and
to the parties' mutual benefit. See Johnson at 487-89, 581 P.2d at 862-64.
Similarly, in Heim v. Heim, 104 Nev. 605, 606-08, 763 P.2d 678-81 (1988), this court
held that an alimony award in the amount of $500 per month was unjust and inequitable as a
matter of law where the parties had been married thirty-five years, the wife had raised the
couple's six children, and the husband, who had earned his doctorate degree during the
marriage, had a gross income of $6,500 per month. The court noted that even if the wife were
able to earn the highest salary she had ever earned$600 per monththis amount combined
with alimony awarded would equal only one-fifth of her husband's income. Id. at 609, 763
P.2d at 681. In reversing the district court's alimony award, this court stated that the
Buchanan guidelines provide a useful but inexhaustive list, and that the judge's primary
focus must be upon the justness and equity of the situation with regard to the condition in
which the parties will be left after the divorce. Id. at 608, 763 P.2d at 680.
The instant case approximates Johnson and Heim with respect to the relative condition in
which the parties will be left following the divorce. Cvetka and Marjan were married for
eighteen years prior to their divorce. She was the primary caretaker of their two children and
his two children from his previous marriage. In addition, Cvetka had been out of the work
force for twelve years, and none of the property she received as a result of the divorce was
income-producing. Although she worked full-time to help build the family business until
1976, the records suggests that she was unable to earn what Marjan earns as a dental
technician. Although both parties graduated from dental technician school in Yugoslavia,
their educational backgrounds are distinguishable because Marjan apprenticed with a skilled
technician in Switzerland. Consequently, he was able to do highly-skilled porcelain work.
Cvetka, on the other hand, was less skilled as a dental technician, as evidenced by the
disparity in their salaries when they both were working for the same laboratory. Cvetka
testified that she is capable of doing only one phase of the tooth and that she has never
worked independently. Furthermore, Cvetka's testimony that her bookkeeping work was
limited to sending bills and recording receipts contradicts Marjan's claim that she is a skilled
financial manager.
Finally, Cvetka's current educational pursuits will not necessarily enable her to support
herself in the manner to which she had been accustomed. Cvetka is forty-five years old and
has significant difficulties with the English language. Moreover, she still is raising the parties'
two minor children. Therefore, it will be difficult for her to complete an undergraduate
degree before her three and one-half year alimony award terminates.
108 Nev. 203, 208 (1992) Rutar v. Rutar
difficult for her to complete an undergraduate degree before her three and one-half year
alimony award terminates. She estimates she will be about fifty years old when she receives
her undergraduate degree.
Under the district court's ruling, Marjan must pay Cvetka only $2,000 per month in
alimony and child support out of the over $12,800 per month he receives in gross income. Of
this amount, the alimony is tax deductible. Heim v. Heim, 104 Nev. 605, 609, 763 P.2d 678,
681 (1988).
Cvetka, on the other hand, still must pay half of the upkeep on the house and
condominium when the properties are sold, and in the meantime, she receives no tax break
for these payments. Furthermore, her $1,000 per month in alimony is taxed. Id. at 609, 763
P.2d at 681. Thus, Cvetka and the children will be living on less than $24,000 per year during
the duration of the alimony award, a standard of living far below that to which they have been
accustomed. Meanwhile, Marjan will have a gross income of approximately $150,000 per
year which, subtracting alimony and child support, would leave him with approximately
$130,000 per year.
[Headnote 2]
Given the respective circumstances in which the parties have been left by the divorce, we
conclude that the district court's award of alimony was inadequate. Cvetka requests an
increase in the alimony award to $3,500 per month, out of which she would pay her half of
the maintenance expenses on the house and condominium as they are incurred, with the court
retaining jurisdiction to modify this award after the sale of these properties. In the interest of
simplicity, we hold that the alimony award should be increased by $700 per month to a total
of $1,700 per month, which is approximately what Cvetka would have been left with after
property upkeep payments under the plan she proposed. Marjan is still required to pay the
upkeep on the house and condominium, with Cvetka reimbursing him one-half of the
expenses upon sale of these properties. Furthermore, we extend the duration of the alimony
award to eight years, and we direct the district court to retain jurisdiction over the alimony
award and the property division. Finally, we hold the need for an award of attorney's fees to
be obviated by the increase in the alimony awarded, which should provide adequate available
resources upon which Cvetka may draw.
Accordingly, we reverse the alimony award made by the district court, increase it as
indicated, and remand this case to the district court for any further proceedings consistent
with this opinion.
____________
108 Nev. 209, 209 (1992) Stapp v. Hilton Hotels Corp.
TRISH STAPP, as Special Administratrix of the Estate of HELEN CAUDILL, Deceased, and
DONNIE CAUDILL, Appellants, v. HILTON HOTELS CORPORATION; and LAS
VEGAS HILTON CORPORATION, Respondents.
No. 22174
March 5, 1992 826 P.2d 954
Appeal from judgment for personal injuries and subsequent order amending and
decreasing judgment as a result of an offset. Eighth Judicial District Court, Clark County;
Thomas A. Foley, Judge.
Personal injury action was brought against hotel in whose parking lot plaintiffs' decedent
was struck by car. Following verdict for plaintiffs, the district court granted motion to amend
judgment by offsetting amount of prior settlements, and plaintiffs appealed. The supreme
court held that grant of motion to stay execution did not suspend time for filing motion to
amend judgment, and absent timely motion to amend, amended judgment was void.
Reversed and remanded with instructions.
[Rehearing denied May 19, 1992]
Brent E. Leavitt, Las Vegas, for Appellants.
Rawlings, Olson & Cannon, and Melissa R. Crenshaw, Las Vegas, for Respondents.
1. Judgment.
Grant of motion for stay of execution does not provide basis for district court to suspend the time for filing motion to alter or
amend judgment. NRCP 59(e), 62(b).
2. Judgment.
District court was without jurisdiction to consider untimely motion to amend judgment, and thus amended judgment entered
pursuant thereto was void. NRCP 59(e).
OPINION
Per Curiam:
Helen Caudill was hit by a car and seriously injured as she and her husband, Donnie
Caudill, walked in the parking lot of the Las Vegas Hilton Hotel. Approximately eighteen
months later, Helen died from cancer unrelated to her injuries.
Appellants, Trish Stapp as special administratrix of the estate of Helen Caudill, deceased,
and Donnie Caudill (the Caudills), filed a complaint seeking damages against respondents,
Hilton Hotels Corporation and Las Vegas Hilton Corporation {Hilton).
108 Nev. 209, 210 (1992) Stapp v. Hilton Hotels Corp.
Hotels Corporation and Las Vegas Hilton Corporation (Hilton). Prior to trial, Constance
Urban, the driver of the vehicle which hit Helen Caudill, settled with the Helen Caudill estate
for $115,000, and with Donnie Caudill for $50,000. After a jury trial, the Caudills received an
award of damages that the trial court subsequently reduced by an offset in the total sum of
$165,000, the amount of the settlements with Urban. The offset resulted from the granting of
a motion filed pursuant to NRCP 59(e). The Caudills contend on appeal that the motion was
untimely, and the offset improper. We agree and reverse.
FACTS
A Hilton valet assisted the Caudills in parking their car while they were in the hotel. When
the Caudills left the hotel on August 24, 1988, Donnie handed the parking ticket to the Hilton
attendant in the valet parking cage next to the front door. The Hilton employee told the
Caudills to take the ticket to a uniformed valet who was directing traffic and standing in the
second of several lanes of traffic in Hilton's driveway. Donnie and Helen walked, hand in
hand, out to the second lane of traffic and handed the valet the ticket. The valet ran ahead
between the cars, and the Caudills followed. Helen walked in front of Donnie.
Unfortunately, Helen was seriously injured when she was hit by a car driven by Urban and
crushed between the moving car and a parked vehicle.
1
Donnie was also brushed by the
Urban vehicle but was not seriously injured. No crosswalks or traffic control devices existed
for the protection of pedestrians attempting to cross the roadway to the valet parking area.
The Caudills proceeded to trial against Hilton to recover damages for personal injuries,
loss of consortium, and emotional distress. The jury returned a verdict in favor of the estate of
Helen Caudill for $225,000, and awarded Donnie Caudill $32,000 for loss of consortium, and
$20,000 for emotional distress. Judgment on the jury verdict was entered December 17, 1990,
and notice of entry of judgment was filed and served by mail to Hilton's counsel on December
21, 1990. On the latter date, Hilton filed a motion to stay execution of the judgment.
On January 9, 1991, the district court heard and granted Hilton's motion to stay execution
of the judgment. The court also ordered Hilton's counsel to prepare a motion to alter or amend
the judgment. On the same day, January 9, 1991, Hilton filed an NRCP 59(e) motion to
amend the judgment.
2
The district court granted the motion on March 1S, 1991, and an
amended judgment was filed on March 27, 1991, offsetting the jury's verdict of $277,000
by $165,000, the amount of the Urban settlements.
__________
1
Helen suffered a shattered pelvis, vascular, neurological, and muscular injuries that required several
surgeries and a lengthy hospitalization.
2
NRCP 59(e) provides: Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment
shall be served not later than 10 days after service of written notice of entry of judgment.
108 Nev. 209, 211 (1992) Stapp v. Hilton Hotels Corp.
granted the motion on March 18, 1991, and an amended judgment was filed on March 27,
1991, offsetting the jury's verdict of $277,000 by $165,000, the amount of the Urban
settlements. The Caudills thereafter appealed.
DISCUSSION
[Headnote 1]
The Caudills insist that the trial court erred in offsetting their judgments by the amount of
the out-of-court Urban settlements because the NRCP 59(e) motion was untimely and
therefore ineffectual as a means of jurisdictional support for the court's amendment of the
judgment. Hilton counters with the proposition that the NRCP 62(b) motion to stay execution
of judgment filed on December 21, 1990, excused Hilton from filing a timely 59(e) motion to
amend the judgment.
3
In its December 21, 1990, motion for a stay of execution, Hilton acknowledged that it
believed service of the notice of entry of judgment was imminent. Nevertheless, Hilton's
attorneys went on vacation after filing the NRCP 62(b) motion to stay execution of judgment.
4
NRCP 62(b) allows the district court to stay the execution of a judgment pending the
disposition of a motion to alter or amend a judgment pursuant to NRCP 59. However, NRCP
62 does not provide a basis for the district court to suspend the time for filing an NRCP 59(e)
motion.
__________
3
Hilton's January 9, 1991 motion to alter the judgment also cited NRS 41.141 as a source of relief. NRS
41.141(3) directs the trial court to deduct the amount recovered from a settling co-defendant from the net sum
otherwise recoverable by the plaintiff against a remaining defendant found liable pursuant to general and special
verdicts in cases where comparative negligence is asserted as a defense. However, Hilton now acknowledges that
NRS 41.141 does not apply to the instant case because the comparative negligence of the Caudills was not an
issue. See Buck v. Greyhound Lines, Inc., 105 Nev. 756, 764, 783 P.2d 437, 442 (1989) (NRS 41.141 applies
only to situations where the plaintiff's contributory negligence may be properly asserted as a bona fide issue in
the case).
4
NRCP 62(a) and (b) provide as follows:
(a) Stay Upon Entry of Judgment. Execution or other proceedings to enforce a judgment may issue
immediately upon the entry of the judgment, unless the court in its discretion and on such conditions for
the security of the adverse party as are proper, otherwise directs.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the
security of the adverse party as are proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment
made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60,
or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50,
or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).
108 Nev. 209, 212 (1992) Stapp v. Hilton Hotels Corp.
[Headnote 2]
An NRCP 59(e) motion to amend a judgment shall be served not later than 10 days after
service of written notice of entry of the judgment. Hilton filed its motion on January 9, 1991,
nineteen days after the Caudills served notice of entry of judgment. It is well established that
a district court is without jurisdiction to consider an untimely NRCP 59(e) motion. Oelsner v.
Charles C. Meek Lumber Co., 92 Nev. 576, 577, 555 P.2d 217, 217 (1976). Because the
motion to amend was not filed within the statutorily prescribed ten-day period, the amended
judgment was entered without a jurisdictional foundation and is therefore void. Id. Therefore,
the district court's order amending and offsetting the judgment must be reversed.
Having concluded that the district court lacked jurisdiction to entertain respondents'
untimely motion to amend the judgment entered pursuant to jury verdict and that the jury's
award of damages is sufficiently supported without the necessity of a new trial on the issue of
damages, it is unnecessary to consider the Caudills' remaining contentions.
The amended judgment entered below is reversed, and the matter remanded with
instructions to reinstate the judgment entered pursuant to jury verdict.
____________
108 Nev. 212, 212 (1992) Fyssakis v. Knight Equipment Corp.
PAUL FYSSAKIS, Appellant/Cross-Respondent, v. KNIGHT EQUIPMENT
CORPORATION, Respondent/Cross-Appellant, U.N.X. CHEMICALS, INC., a North
Carolina Corporation, Respondent.
No. 22215
March 5, 1992 826 P.2d 570
Appeal from a district court order granting partial summary judgment. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Dishwasher blinded by dishwashing soap brought products liability action against
manufacturer of soap and manufacturer of soap dispenser. The district court entered summary
judgment for manufacturers, and dishwasher appealed. The supreme court held that: (1)
genuine issue of material fact existed as to whether soap's warning adequately communicated
that soap could cause blindness, and (2) genuine issue of material fact existed as to whether
soap dispenser was defective.
Reversed.
108 Nev. 212, 213 (1992) Fyssakis v. Knight Equipment Corp.
Jonathan C. Reed, Xavier Gonzales, Las Vegas, for Appellant/Cross-Respondent.
Rawlings, Olson & Cannon and Yvette Robichaud, Las Vegas, for
Respondent/Cross-Appellant Knight Equipment.
Thorndal, Backus, Maupin & Armstrong and William R. Killip, Jr., Las Vegas, for
Respondent U.N.X. Chemicals.
1. Products Liability.
To successfully bring strict products liability claim, plaintiff must show that: product had defect which rendered it unreasonably
dangerous, defect existed at time product left manufacturer, and defect caused plaintiff's injury.
2. Judgment.
Genuine issue of material fact as to whether soap's warning adequately communicated that soap could cause blindness precluded
summary judgment against products liability plaintiff; neither soap nor dispenser warned that protective eyewear should be worn or
that soap could cause blindness but, instead, soap carried universal symbol for corrosiveness.
3. Products Liability.
Product must include warning that adequately communicates dangers that may result from its use or foreseeable misuse, or if
product is defective.
4. Judgment.
Genuine issue of material fact as to whether soap dispenser was defective precluded summary judgment against products liability
plaintiff blinded by soap; expert stated that safety switch on dispenser could be bypassed by tilting dispenser at certain angle and that
dispenser could have been designed with safer shrouding mechanism.
5. Products Liability.
Evidence that product lacked adequate safety features or that safer alternative design was feasible at time of manufacture will
support strict liability claim.
OPINION
Per Curiam:
Appellant, Paul Fyssakis, a dishwasher at the Sahara Hotel and Casino in Las Vegas, got
dishwashing soap in his eye and, as a result, was blinded. Consequently, Fyssakis brought
strict products liability and negligence claims against respondent U.N.X. Chemicals, Inc.
(UNX), the manufacturer of the soap, and respondent Knight Equipment Corporation
(Knight), the manufacturer of the soap dispenser. Both UNX and Knight moved for summary
judgment, and the district court granted their motions with respect to the strict liability
claims.
108 Nev. 212, 214 (1992) Fyssakis v. Knight Equipment Corp.
On appeal, Fyssakis contends that the district court erred when it granted summary
judgment. We agree. Summary judgment is appropriate only when no genuine issue of fact
remains for trial and one party is entitled to judgment as a matter of law. In determining
whether summary judgment is proper, a court must view the evidence in the light most
favorable to the party against whom summary judgment is sought. Wiltsie v. Baby Grand
Corp., 105 Nev. 291, 774 P.2d 432 (1989). Thus, all disputed factual allegations must be
construed in favor of Fyssakis.
[Headnote 1]
To bring successfully a strict products liability claim, a plaintiff must show that: (1) the
product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the
time the product left the manufacturer, and (3) the defect caused the plaintiff's injury. Ginnis
v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Respondents contend that Fyssakis
has failed to set forth facts that tend to show that either the soap or the dispenser was
defective.
[Headnotes 2, 3]
First, we note that it is undisputed that the commercial dishwashing soap caused Fyssakis'
blindness. Neither the soap nor the dispenser, however, carried a warning that protective
eyewear should be worn or that the soap could cause blindness. Instead, the soap carried the
universal symbol for corrosiveness. Under Nevada law, a product must include a warning that
adequately communicates the dangers that may result from its use or foreseeable misuse;
otherwise, the product is defective. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668
P.2d 1075 (1983). Since it is not clear that the soap's warning adequately communicated that
the soap could cause blindness, we conclude that Fyssakis has raised a genuine issue of fact
as to whether the soap was defective.
[Headnotes 4, 5]
Second, we conclude that Fyssakis has raised a genuine issue of fact regarding an alleged
defect in the dispenser. Specifically, Fyssakis presented a safety expert's affidavit stating that
the safety switch on the dispenser could be bypassed by tilting the dispenser at a certain angle.
Additionally, the expert stated that the dispenser could have been designed with a safer
shrouding mechanism. Under Nevada law, evidence that a product lacked adequate safety
features or that a safer alternative design was feasible at the time of manufacture will support
a strict liabilities claim. Robinson v. G.G.C. Inc., 107 Nev. 135, 808 P.2d 522 (1991);
McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987). The affidavit of Fyssakis'
safety expert has thus raised a genuine issue of fact regarding a defect in the dispenser.
108 Nev. 212, 215 (1992) Fyssakis v. Knight Equipment Corp.
raised a genuine issue of fact regarding a defect in the dispenser. Hence, we conclude that the
district court erred when it granted summary judgment to UNX and Knight on Fyssakis' strict
liability claims.
We therefore reverse the judgement of the district court.
____________
108 Nev. 215, 215 (1992) Campbell v. State, Dep't of Taxation
GEORGE R. CAMPBELL and ELEANOR L. CAMPBELL, Appellants, v. THE STATE OF
NEVADA, DEPARTMENT OF TAXATION and NEVADA TAX COMMISSION,
Respondents.
No. 22495
March 5, 1992 827 P.2d 833
An appeal from a summary judgment granted on the grounds of administrative res judicata
in an action involving taxes due on a new automobile purchased in Nevada. First Judicial
District Court, Carson City; Michael E. Fondi, Judge.
Taxpayers sued Tax Department for refund of penalty and interest portion of sales taxes
paid under protest. The district court granted summary judgment in favor of Tax Department
on ground that administrative res judicata barred action due to taxpayers' prior administrative
appeal of deficiency judgment. Taxpayers appealed. The supreme court held that: (1)
administrative res judicata doctrine did not apply inasmuch as Tax Department failed to
apprise taxpayers of their right to pay taxes under protest pending an appeal of assessment
and then demand refund, and (2) on remand, as matter of equity, if district court determined
that taxpayers were entitled to any refund of taxes paid under protest, district court could
enter judgment to that effect notwithstanding any failure of taxpayers to comply with statute
governing refunds of taxes paid under protest.
Reversed and remanded.
D. G. Menchetti, Tudor Chirila, Incline Village, for Appellants.
Frankie Sue Del Papa, Attorney General, John Bartlett, Deputy Attorney General, Carson
City, for Respondents.
1. Administrative Law and Procedure; Taxation.
Doctrine of administrative res judicata did not apply to bar judicial review of taxpayers' demand for refund of penalty and interest
portion of sales tax paid under protest, even though taxpayers had already had administrative appeal of deficiency assessment,
however, taxpayers were not entitled to second evidentiary hearing; Tax Department's letter apprising taxpayers of their right
to
108 Nev. 215, 216 (1992) Campbell v. State, Dep't of Taxation
apprising taxpayers of their right to administrative appeal of deficiency assessment failed to notify taxpayers of their right to pay tax
under protest and file claim for overpayment, and subsequently, taxpayers paid tax in reliance on Attorney General's letter giving such
advice leaving taxpayers without means, under Administrative Procedure Act, to reclaim taxes they believed to be improperly
collected. NRS 233B.130, subd. 2(c), 372.420, 372.630-372.720, 372.635, subd. 1, 372.680.
2. Taxation.
On remand, as matter of equity, if district court should determine that taxpayers were entitled to any refund of sales taxes they paid
under protest, district court could enter judgment to that effect notwithstanding any failure of taxpayers to comply with statute
governing claims for refunds of taxes paid under protest. NRS 233B.135, 372.630-372.720.
OPINION
Per Curiam:
This is a case of first impression. The appellants were charged with attempting to evade
the payment of Nevada sales tax on the purchase of a 1990 Mercedes Benz in Reno, Nevada.
Following unsuccessful appeals before an administrative hearing officer and the Nevada Tax
Commission, the appellants paid the tax deficiency and brought a separate action against the
State of Nevada in district court. The district court held that the appellants were barred from a
second hearing on the merits, pursuant to the doctrine of administrative res judicata. For
reasons stated herein, we reverse and remand to the district court for judicial review of the
administrative proceedings pursuant to NRS 233B.135.
1
THE FACTS
On or about January 21, 1990, George and Eleanor Campbell purchased a 1990 Mercedes
Benz from Reno Imports. The Campbells obtained a special drive-away permit by signing an
affidavit stating that the vehicle would not be used or stored in Nevada beyond fifteen days of
the purchase. The Campbells were clearly Nevada residents at the time of the purchase;
however, the affidavit reveals that the Campbells misrepresented themselves as residents
of Oregon.
__________
1
NRS 233B.135(3) provides:
3. The court shall not substitute its judgment for that of the agency as to the weight of 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.
108 Nev. 215, 217 (1992) Campbell v. State, Dep't of Taxation
clearly Nevada residents at the time of the purchase; however, the affidavit reveals that the
Campbells misrepresented themselves as residents of Oregon.
The Nevada Department of Taxation (Tax Department) sent a letter to the Campbells,
dated May 31, 1990, stating that the Campbells owed $13,505.71 in taxes, if paid by
6/30/90,
2
which included a penalty of $9,704.70 for acting with intent to evade taxes.
3
In
addition, the letter advised the Campbells of their right to an administrative appeal. The letter
did not, however, inform the Campbells of their right to pay the tax under protest and file an
action in district court, pursuant to NRS 372.630-720.
4
The Campbells notified the Tax
Department of their intention to appeal the tax assessment through the administrative process.
Following an administrative hearing on June 22, 1990, a hearing officer determined that
the Campbells were liable to pay the tax assessment. The Campbells appealed to the Nevada
Tax Commission (Tax Commission). Shortly thereafter, the Attorney General's Office sent
a letter to the Campbells' attorney suggesting that the deficiency judgment of $13,602.76 be
paid in order to cut off the accrual of additional penalties and interest on the tax liability
while [the Campbells] pursue their administrative and judicial appeals. The Campbells then
paid the assessment.
__________
2
The total tax assessment of $13,505.71 was broken down as follows:
Tax (six percent x $53,915.00) $ 3,234.90
Penalty (ten percent failure to file) $ 323.49
Penalty (300 percent intent to evade) $ 9,704.70
Interest (1.5 percent per month) $ 242.62
3
NRS 372.420 provides:
Penalty for deficiency resulting from fraud or intent to evade. If any part of the deficiency for which a
deficiency determination is made is due to fraud or intent to evade this chapter or authorized regulations,
a penalty of:
1. Three times the amount of the determination must be added to it if the determination was made
with respect to the tax imposed by this chapter on the sale, storage, use or other consumption of any
vehicle, vessel or aircraft.
2. Twenty-five percent of the amount of the determination must be added to it in all other cases.
4
NRS 372.635(1) allows a party to file a claim for overpayment of taxes within three years of the
overpayment. If a party fails to file within the prescribed time period, the party effectively waives the right to
make a claim for overpayment. NRS 372.650. Pursuant to NRS 372.675, as a condition precedent to maintaining
an action for a refund, a party must file a formal written demand for repayment with the Tax Department. Once
the demand has been served upon the Tax Department, the claimant has 90 days to bring an action for recovery
in district court. NRS 372.680. Thereafter, if judgment is in favor of the plaintiff, the Tax Department must
refund the excess taxes paid. NRS 372.690.
108 Nev. 215, 218 (1992) Campbell v. State, Dep't of Taxation
ment. Subsequently, in a letter dated August 9, 1990, the Campbells demanded a refund of
the penalty and interest portion of the tax, pursuant to NRS 372.630 et seq. and all other
pertinent tax refund statutes . . . . The refund was denied.
The Campbells' administrative appeal to the Tax Commission was denied on October 3,
1990. On November 2, 1990, the Campbells filed a separate action against the Tax
Department, Tax Commission, and State of Nevada (collectively State) in district court
pursuant to NRS 372.680.
5
The district court held that administrative res judicata barred the
Campbells from a judicial evidentiary hearing on the propriety of the tax assessment.
DISCUSSION
This court adopted the doctrine of administrative res judicata in Britton v. City of North
Las Vegas, 106 Nev. 690, 799 P.2d 568 (1990), recognizing it as a well-settled rule of law . .
. . Id. at 692, 799 P.2d at 569 (citing U.S. v. Utah Construction and Mining Co., 384 U.S.
394, 422 (1966); University of Tennessee v. Elliot, 478 U.S. 788, 797 (1986)). In the case
before us, the district court granted the State's motion for summary judgment against the
Campbells because all of the elements necessary to apply the doctrine of res judicata to the
decision of the administrative tribunal . . . exist in this case.
[Headnote 1]
It appears on the surface that the Campbells previously litigated the same issues, involving
the same parties, after which a final written decision was reached by a hearing officer. See
Britton, 106 Nev. at 693, 799 P.2d 570 (three elements of res judicata, citing Horvath v.
Gladstone, 97 Nev. 595, 596, 637 P.2d 531, 533 (1981)). However, while reaffirming the
doctrine of administrative res judicata as pronounced in Britton, we conclude that the unique
circumstances involved here justify a result different from that in Britton.
The initial letter sent by the Tax Department apprising the Campbells of their assessment
is troublesome. While the letter notified the Campbells of their right to an administrative
appeal, it completely failed to inform them of their alternative remedy.
__________
5
NRS 372.680 provides:
Action for refund: Time to sue; venue of action; waiver.
1. Within 90 days after the mailing of the notice of the department's action upon a claim filed
pursuant to this chapter, the claimant may bring an action against the department on the grounds set forth
in the claim in a court of competent jurisdiction in Carson City for the recovery of the whole or any part
of the amount with respect to which the claim has been disallowed.
2. Failure to bring action within the time specified constitutes a waiver of any demand against the
state on account of alleged overpayments.
108 Nev. 215, 219 (1992) Campbell v. State, Dep't of Taxation
notified the Campbells of their right to an administrative appeal, it completely failed to
inform them of their alternative remedy. Not surprisingly, the Campbells took the
administrative avenue to relief. The subsequent letter from the Attorney General's Office
advising the Campbells to pay the tax is likewise disturbing. In reliance on the letter, the
Campbells paid the tax assessment. Once paid, however, the only statutory means provided
for demanding and obtaining a refund of any excess taxes paid are set forth in NRS
372.630-720. Therefore, the Campbells were left without means, under the Administrative
Procedure Act, to reclaim the taxes they believed to be improperly collected.
[Headnote 2]
The Campbells filed their claim in district court within the time period provided in NRS
233B.130(2)(c).
6
We agree that, pursuant to Britton, the Campbells do not have a right to a
second evidentiary hearing. However, this case does merit judicial review. Accordingly, we
reverse the district court and remand this case for judicial review pursuant to NRS 233B.135.
In addition, as a matter of equity, if the district court should determine that the Campbells are
entitled to any refund of the taxes they paid under protest, the district court may enter
judgment to that effect notwithstanding any failure of the Campbells to comply with NRS
372.630-720.
We have carefully considered all remaining issues on appeal and conclude that they lack
merit.
____________
108 Nev. 219, 219 (1992) Beury v. District Court
DONALD BEURY, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE
CARL J. CHRISTENSEN, District Judge, Respondents.
No. 22292
March 5, 1992 826 P.2d 956
Petition for a writ of mandamus compelling the district court to authorized payment of
excess attorney's fees. Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Attorney filed motion seeking fees in excess of statutory maximum for representing
prisoner on appeal of denial of petition for post-conviction relief.
__________
6
NRS 233B.130(2)(c) provides:
2. Petitions for judicial review must:
. . .
(c) Be filed within 30 days after service of the final decision of the agency.
108 Nev. 219, 220 (1992) Beury v. District Court
post-conviction relief. The district court denied motion and awarded $2,500 in fees, and
appeal was taken. The supreme court, 107 Nev. 363, 812 P.2d 774 dismissed the appeal.
Attorney petitioned for mandamus. The supreme court held that the attorney's request for
excess fees was both reasonable and necessary.
Writ granted.
Donald Beury, in Proper Person, Vista, California, for Petitioner.
Rex Bell, District Attorney, Charles A. Paine, Chief Deputy District Attorney, Clark
County, for Respondents.
1. Attorney and Client.
Attorney's application for fees in excess of statutory maximum for representing prisoner on appeal of denial of petition for
post-conviction relief did not comply with statutory requirements, where attorney represented defendant before the supreme court and
his entitlement to the excess fees was not certified to by the supreme court. NRS 7.125, subd.4.
2. Attorney and Client.
Ultimate decision on whether to grant, deny or modify an attorney's excess fee request rested with court who appointed the
attorney and the chief judge in the appointing court's district or his or her statutory alternative, even if the attorney's entitlement to
excess fees was certified to by a different court. NRS 7.125, subd. 4.
3. Attorney and Client.
Even though district court had evaluated and certified an attorney's entitlement to excess fees, the appointing and presiding judges
could also evaluate the statutory factors in process of determining whether to approve the amount or any amount of excess fees
certified by the supreme court. NRS 7.125, subds. 4, 4(a)-(d).
4. Attorney and Client.
Appointed attorneys who consider themselves entitled to excess fees after careful analysis of character of their work on appeal, as
assessed in part by statutory factors, should apply for certification from supreme court in conjunction with appeal or petition being
pursued in supreme court. NRS 7.125, subds. 4, 4(a)-(d).
OPINION
Per Curiam:
On March 2, 1989, the district court appointed petitioner Donald Beury to represent
Wayne Walters on his appeal from the district court's denial of Walters' post-conviction relief
petition. Beury successfully prosecuted the appeal and this court reversed Walters' conviction.
See Walters v. State, 106 Nev. 45, 786 P.2d 1202 (1990). Thereafter, Beury moved the
district court, pursuant to NRS 7.125, for $4,230 in attorney's fees for the work performed
on Walters' appeal.
108 Nev. 219, 221 (1992) Beury v. District Court
ant to NRS 7.125, for $4,230 in attorney's fees for the work performed on Walters' appeal.
Beury expended 105.5 hours of unquestioned effort in handling the appeal.
After hearing arguments on Beury's motion for fees in excess of the statutory maximums,
the district court denied the motion and awarded Beury $2,500. Beury appealed to this court
for the $1,730 difference. We dismissed Beury's appeal for lack of jurisdiction. Beury v.
State, 107 Nev. 363, 812 P.2d 774 (1991). Beury thereafter filed the instant petition for a writ
of mandamus directing the district court to award him the excess fees in the amount of
$1,730.
Discussion
Beury contends that the district court erroneously applied NRS 7.125 in denying his
motion for attorney's fees in excess of the applicable statutory maximum. Specifically, Beury
argues that the district court failed to properly consider NRS 7.125(4) in denying his motion
for excess fees. We note, however, that Beury's application for excess attorney's fees did not
comply with NRS 7.125(4) because no statutory certification had been obtained from this
court. NRS 7.125(4) provides in part that a district court judge may award excess fees only if
the court in which the representation was rendered certifies that the amount of the excess
payment is both reasonable and necessary.
Both parties agree that since Beury's representation occurred in the Nevada Supreme
Court, NRS 7.125(4) allows only this court to certify whether Beury is entitled to fees in
excess of those mandated by statute.
1
Thus, because Beury represented Walters before this
court, his entitlement to excess fees, if any, must be certified by this court.
2
The factors
considered in determining the propriety of such fees are provided in NRS 7.125{4){a)-{d)
and include, "the amount, character and complexity of the work required; the
responsibilities involved; the manner in which the necessary duties were performed, the
amount of knowledge, skill, and judgment displayed by counsel; and the professional
standing of counsel."
__________
1
NRS 7.125(4) provides as follows:
4. If the appointing court because of:
(a) The complexity of a case or the number of its factual or legal issues;
(b) The severity of the offense;
(c) The time necessary to provide an adequate defense; or
(d) Other special circumstances, deems it appropriate to grant a fee in excess of the applicable
maximum, the payment must be made, but only if the court in which the representation was rendered
certifies that the amount of the excess payments is both reasonable and necessary and the payment is
approved by the presiding judge of the judicial district in which the attorney was appointed, or if there is
no such presiding judge or if he presided over the court in which the representation was rendered, then by
the district judge who holds seniority in years of service in office.
2
As in all cases where excess attorney fees are awarded, the trial judge, who hears the defense presented
and can assess the difficulty of the case, is in the best position to gauge the reasonableness of the fees claimed.
County of
108 Nev. 219, 222 (1992) Beury v. District Court
propriety of such fees are provided in NRS 7.125(4)(a)-(d) and include, the amount,
character and complexity of the work required; the responsibilities involved; the manner in
which the necessary duties were performed, the amount of knowledge, skill, and judgment
displayed by counsel; and the professional standing of counsel. Lueck v. State, 99 Nev. 717,
720, 669 P.2d 719, 721 (1983).
[Headnote 1]
Because we had not received and certified Beury's application for excess fees on appeal,
his request for such fees in the court below did not comply with the requirements of NRS
7.125(4). However, having now received and reviewed his petition, we now certify to the
district court that, in our view, Beury's request for excess fees is both reasonable and
necessary. Fees in excess of those statutorily mandated encourage competent counsel to
provide representation to indigent defendants in complex cases.
[Headnotes 2, 3]
Although we have provided the necessary NRS 7.125(4) certification, we nevertheless
recognize that under the statutory scheme, the ultimate decision on whether to grant, deny or
modify Beury's excess fee request rests with the court who appointed him and the chief judge
in the appointing court's district or his or her statutory alternate. See NRS 7.125(4) (If the
appointing court . . . deems it appropriate to grant a fee in excess of the applicable maximum,
the payment must be made, but only if . . . the payment is approved by the presiding judge of
the judicial district in which the attorney was appointed, or if there is no such presiding judge
. . . then by the district judge who holds seniority in years of service in office). Despite this
court's evaluation and certification of an attorney's entitlement to excess fees under the four
factors specified under NRS 7.125(4)(a)-(d), we conclude that the appointing and presiding
judges may also evaluate the referenced factors in the process of determining whether to
approve the amount or any amount of excess fees certified by this court.
[Headnote 4]
Finally, for the future benefit of the bar, we have determined that appointed attorneys
who consider themselves entitled to excess fees after careful analysis of the character of
their work on appeal, as assessed in part by the four statutory factors enumerated above,
should apply for a certification from this court in conjunction with the appeal or petition
being pursued in this court.
__________
Clark v. Smith, 96 Nev. 854, 856, 619 P.2d 1217 (1980). By a parity of reasoning, when excess fees are
requested for appellate representation, the appellate court is in the best position to gauge the reasonableness of
such fees in accordance with the factors identified in NRS 7.125(4)(a)-(d). We nevertheless leave to the district
court authorities who must make the ultimate decision under the statute the extent to which they will extend
deference to this court's certification. It is clear, however, that the district court has no authority to award excess
fees for representation in this court without first having received the required certification.
108 Nev. 219, 223 (1992) Beury v. District Court
that appointed attorneys who consider themselves entitled to excess fees after careful analysis
of the character of their work on appeal, as assessed in part by the four statutory factors
enumerated above, should apply for a certification from this court in conjunction with the
appeal or petition being pursued in this court.
For the reasons specified above, we grant Beury's petition for an original writ of
mandamus for the limited purpose of providing a vehicle for this court's certification of his
excess fees, and directing the district court to exercise its discretion in accordance with the
mandate of the statute.
____________
108 Nev. 223, 223 (1992) State Engineer v. Sustacha
THE STATE OF NEVADA, STATE ENGINEER, and WATER COMMISSIONERS OF
THE HUMBOLDT WATER DISTRIBUTION DISTRICT, Appellants, v. JOHN
SUSTACHA and JOAN SUSTACHA, Respondents.
No. 22361
March 5, 1992 826 P.2d 959
Appeal from that portion of an order voiding two previous orders of the Sixth Judicial
District Court. Fourth Judicial District Court, Elko County; Jack B. Ames, Judge.
Order determining that orders of the Sixth Judicial District Court terminating water rights
in contempt proceeding were void was entered by the Fourth Judicial District Court and the
State appealed. The supreme court held that Fourth Judicial District Court lacked authority to
review the orders of the Sixth Judicial District Court, in that the latter court had personal and
subject matter jurisdiction, so that its orders were not void even though they allegedly
exceeded the statutory limits on contempt penalties.
Vacated.
Frankie Sue Del Papa, Attorney General, Margaret A. Twedt, Deputy Attorney General,
Carson City, for Appellants.
Marvel & Hansen, Elko, for Respondents.
1. Courts; Judgment.
Fourth Judicial District Court lacked authority to review orders of Sixth Judicial District Court terminating water rights in
contempt proceeding, despite theory that orders were void because they exceeded statutory limits on contempt penalties; orders were
not subject to collateral attack as void since the Sixth Judicial District Court had personal and subject matter jurisdiction. NRS 3.220.
108 Nev. 223, 224 (1992) State Engineer v. Sustacha
2. Courts.
District courts have equal and coextensive jurisdiction, and thus various district courts lack jurisdiction to review the acts of other
district courts. NRS 3.220.
3. Judgment.
Only a void judgment is subject to collateral attack, and judgment is void only if issuing court lacked personal jurisdiction or
subject matter jurisdiction.
4. Courts.
Only the supreme court is given general appellate jurisdiction. Const. art. 6, 4, 6.
OPINION
Per Curiam:
In 1930 and 1935, the Sixth Judicial District Court entered two decrees that adjudicated
rights to the water in the Humboldt River and its tributaries (the Humboldt Stream System).
These decrees are collectively referred to as the Humboldt Decree. The respondents, Joan
and John Sustacha (Sustachas) own water rights adjudicated by this decree.
In 1956, the Fourth Judicial District Court entered a judgment requiring the Humboldt
Water Distribution District Supervising Water Commissioner to measure the total water flow
into a section of the Humboldt Stream System and the particular flow assigned to each user of
this section during the irrigation season. This particular section of the Humboldt Stream
System crosses the Sustachas' property. In addition, the Sustachas' adjudicated water rights
involve this section of the Humboldt Stream System.
In 1988, the Sixth Judicial District Court entered an order holding the Sustachas in
indirect civil contempt of the Humboldt Decree.
1
The court gave the Sustachas the choice
of complying with one of three remedial alternatives; otherwise, the Sustachas' water rights
would be terminated forever. The Sustachas chose an alternative that required them to submit
a preliminary plan for repairs and construction on their water delivery system so that it would
be sufficiently tamper-proof. The Sustachas then submitted this preliminary plan.
In 1989, the Sixth Judicial District Court issued an order clarifying its 1988 order; in this
1989 order, the court described the specific repairs and changes that the Sustachas needed to
make in order to improve their water delivery system. This order gave the Sustachas
forty-five days to complete their changes, otherwise "the officers of [the court] . . .
[would] shut off any and all water adjudicated for the benefit of the [Sustachas]."
__________
1
Specifically, the district court found that the Sustachas had done the following: (1) used water from the
Humboldt Stream System in a manner and time not prescribed; (2) used more than their appropriated amount of
water; and/or (3) diverted water in excess of their allotment; and (4) interfered with the water delivery system.
108 Nev. 223, 225 (1992) State Engineer v. Sustacha
gave the Sustachas forty-five days to complete their changes, otherwise the officers of [the
court] . . . [would] shut off any and all water adjudicated for the benefit of the [Sustachas].
The Sustachas did not complete these required changes within the forty-five day period.
In 1991, the appellants, Humboldt Water Distribution District Commissioners and the
State Engineer (State), filed a complaint against the Sustachas in the Fourth Judicial
District Court. The State alleged that the Sustachas had wrongly interfered with its water
distribution duties under the 1956 Fourth Judicial District Court judgment (to measure the
total water flow into a section of the Humboldt Stream System and the particular flow
assigned to each user during the irrigation season) and under the 1988 and 1989 Sixth Judicial
District Court orders.
2
The State also filed a motion for a preliminary injunction.
Subsequently, the Fourth Judicial District Court entered an order; in this order, the Fourth
Judicial District Court concluded that the water commissioners should have reasonable
ingress and egrees (including vehicular access) over the Sustachas' property to carry out their
duties under the 1956 Fourth Judicial District Court judgment. In addition, the Fourth Judicial
District Court determined that the Sixth Judicial District Court's 1988 and 1989 orders are
void because they exceed the statutory limits on contempt penalties.
[Headnotes 1, 2]
On appeal, the State asserts that the Fourth Judicial District Court erred in voiding the
Sixth Judicial District Court's orders because it lacked authority to review these orders. We
agree. In Rohlfing v. District Court, 106 Nev. 902, 906, 803 P.2d 659, 662 (1990), we
recognized that [t]he district courts of this state have equal and coextensive jurisdiction;
therefore, the various district courts lack jurisdiction to review the acts of other district
courts. See NRS 3.220 (district judges possess equal coextensive and concurrent
jurisdiction and power). We thus concluded in Rohlfing that a district judge had exceed his
jurisdiction when he, sua sponte, entered an order declaring another judge's order void.
Similarly, in Warden v. Owens, 93 Nev. 255, 563 P.2d 81 (1977), we reversed a district
court order granting relief from another district court's order.
__________
2
Specifically, the State asserted that the Sustachas had refused to allow the water commissioners to drive
across their land to access the relevant section of the Humboldt Stream System, and that the water
commissioners were thus forced to walk one mile across the Sustachas' property. In addition, the State asserted
that the Sustachas had interfered with the water commissioners' duty to shut off the Sustachas' water supply
pursuant to the 1988 and 1989 Sixth Judicial District Court orders.
108 Nev. 223, 226 (1992) State Engineer v. Sustacha
another district court's order. The respondent had been convicted by a jury and sentenced by
the Eighth Judicial District Court. Thereafter, the respondent did not pursue a direct appeal,
but filed a petition for writ of habeas corpus in the First Judicial District Court; the First
Judicial District Court granted habeas corpus relief. In reversing the First Judicial District
Court, we stated that [t]he First Judicial District Court had no jurisdiction to vacate the other
court's valid judgment of conviction and sentence. Id. at 256, 563 P.2d at 82.
[Headnotes 3, 4]
Thus, under the above cases, one district court generally cannot set aside another district
court's order.
3
In addition, the Nevada Constitution provides that the district courts have
appellate jurisdiction only in cases arising in justices' courts and other inferior tribunals.
Nev. Const. art. 6, 6. Only this court is given general appellate jurisdiction: The supreme
court shall have appellate jurisdiction in all civil cases arising in district courts, and also on
questions of law alone in . . . criminal cases . . . . Nev. Const. art. 6, 4. Thus, only this
court has jurisdiction to review the Sixth Judicial District Court's orders.
Because the Humboldt Decree adjudicates Humboldt Stream System water rights and was
issued by the Sixth Judicial District Court, we conclude that litigation concerning Humboldt
Stream System water rights should be carried out and resolved only in the Sixth Judicial
District Court. For the reasons stated above, we hereby vacate the portion of the Fourth
Judicial District Court's order that voids the Sixth Judicial District Court's 1988 and 1989
orders.
4
__________
3
The Sustachas contend that the Fourth Judicial District Court had authority to review the Sixth Judicial
District Court's orders under the doctrine of collateral attack because the Sixth Judicial District Court's orders
are void.
In Smith v. District Court, 63 Nev. 249, 256-57, 167 P.2d 648, 651 (1946), we explained that a judgment is
generally not subject to collateral attack if the court which rendered it had jurisdiction of the subject matter and
of the parties. Thus, only a void judgment is subject to collateral attack; a judgment is void only if the issuing
court lacked personal jurisdiction or subject matter jurisdiction; otherwise the judgment is, at most, voidable and
not subject to a collateral attack. See 49 C.J.S. Judgments 401, at 792 (1947 & supp. 1991); 46 Am.Jur.2d
Judgments 621-56 (1969 & supp. 1991). In the present case, the Sixth Judicial District Court had both
personal and subject matter jurisdiction when it entered its 1988 and 1989 orders. Therefore, the orders are not
void and the doctrine of collateral attack does not apply.
4
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
____________
108 Nev. 227, 227 (1992) Redmen v. State
TIMOTHY LEE REDMEN, Appellant, v. THE STATE OF NEVADA
No. 21729
March 13, 1992 828 P.2d 395
Appeal from a judgment of conviction for robbery with the use of a deadly weapon and
first degree murder with the use of a deadly weapon and a sentence of death imposed by a
three-judge panel. Eighth Judicial District Court, Clark County; Jack Lehman, Judge; Second
Judicial District Court, Washoe County; Robin Anne Wright, Judge; Fifth Judicial District
Court, Esmeralda, Mineral and Nye Counties; Paul C. Parraguirre, Judge.
The supreme court Mowbray, C. J., held that: (1) good cause existed for continuing trial
and resetting trial date, and thus, defendant was not denied his right to speedy trial; (2)
photographs of victim's mutilated body were admissible at penalty phase to prove aggravating
circumstance of mutilation; (3) psychiatric evidence purporting to predict future
dangerousness of defendant was highly unreliable and inadmissible at death penalty
sentencing hearing; (4) error in admitting psychiatric evidence purporting to predict future
dangerousness of defendant was harmless; (5) prosecutors are allowed to argue future
dangerousness of defendant in capital murder case, even when there was no evidence of
violence independent of murder in questions; and (6) use of three-judge panel during
sentencing phase of capital case when jury is unable to reach unanimous verdict upon
sentence does not violate equal protection or due process clauses.
Affirmed.
Young, J., dissented in part.
Morgan Harris, Public Defender, and Mark S. Blaskey and Stephen J. Dahl, Deputy Public
Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and
James Tufteland, Chief Deputy District Attorney, and Daniel M. Seaton, Deputy District
Attorney, for Respondent.
1. Criminal Law.
Good cause existed to continue trial and reset trial date, and thus, defendant was not denied right to speedy trial as result of
postponement of trial date, where neither prosecution nor defense was prepared to go to trial. NRS 178.556.
2. Homicide.
Photographs of victim's mutilated body were admissible at penalty phase of capital murder trial to prove aggravating
circumstances of mutilation.
108 Nev. 227, 228 (1992) Redmen v. State
phase of capital murder trial to prove aggravating circumstances of mutilation.
3. Homicide.
Prejudicial effect of photographs of victim's mutilated body did not substantially outweigh their probative value so as to be
inadmissible at sentencing phase of capital murder trial. NRS 48.035.
4. Homicide.
To obtain conviction for felony murder, indictment did not have to allege that killing was perpetrated in commission of felony.
5. Homicide.
Instruction that murder committed in perpetration of felony carries conclusive presumption of malice aforethought was proper in
capital murder trial; instruction did not foreclose independent jury consideration of whether predicate facts established all elements of
offense.
6. Homicide.
State was not required to endorse witness on information in order to call witness at penalty phase of capital murder trial, where
witness was called to rebut testimony of defendant's psychiatrist and state was not made aware of defense's intention to present
psychiatrist until day before penalty hearing began. NRS 173.045, subd. 2.
7. Criminal Law.
Unendorsed witness is presumed to have been unknown to district attorney at time of filing of information, absent evidence to
contrary. NRS 173.045, subd. 2.
8. Homicide.
Defendant failed to establish lack of due diligence on part of state in discovering unendorsed witnesses prior to trial so as to
preclude state's use of unendorsed witnesses during penalty phase of capital murder trial. NRS 173.045, subd. 2.
9. Criminal Law.
Three week continuance granted by trial court cured any prejudice to defendant that would have accrued as a result of state's
calling of unendorsed witnesses during penalty phase of capital murder trial. NRS 173.045, subd. 2.
10. Homicide.
Psychiatric evidence purporting to predict future dangerousness of defendant was highly unreliable and was inadmissible at death
penalty sentencing hearing.
11. Homicide.
Error in admitting psychiatrist's testimony purporting to predict future dangerousness of defendant at death penalty sentencing
hearing was harmless beyond reasonable doubt, where record contained plentiful other evidence from which three-judge panel deciding
on sentence could reasonably infer defendant's future dangerousness.
12. Criminal Law.
Prosecutors are allowed to argue future dangerousness of defendant in capital murder trial, even when there is no evidence of
violence independent of murder in question.
13. Constitutional Law; Homicide.
Sentencing scheme whereby three-judge panel is used in cases where jury is unable to reach unanimous verdict upon sentence did
not violate equal protection and due process clauses on ground that jury should be responsible for deciding whether death penalty
should be imposed. NRS 175.556; U.S.C.A.Const. amends. 6, 14.
108 Nev. 227, 229 (1992) Redmen v. State
14. Homicide.
Use of three-judge panel during sentencing phase of capital murder trial in case where jury is unable to reach unanimous verdict
upon sentence was not arbitrary and capricious on ground that three-judge panel invariably returned sentence of death, absent any
empirical evidence supporting argument. NRS 175.556.
15. Constitutional Law; Criminal Law; Homicide.
Distinction between capital murder case and case of sexual assault was constitutionally proper for purposes of justifying use of
three-judge panel to determine sentence in capital murder case in event of hung jury, but not in sexual assault case, and thus,
three-judge panel sentencing scheme did not violate equal protection clause. NRS 175.556, 200.366, 200.366, subd. 3; U.S.C.A.Const.
amend. 14.
16. Constitutional Law.
Distinctions between classes are constitutionally improper under equal protection clause if basic distinction between classes is
insupportable. U.S.C.A.Const. amend. 14.
OPINION
By the Court, Mowbray, C. J.:
On February 8, 1990, while traveling to San Diego, appellant and his girlfriend, Melissa
Rial, entered Las Vegas. That night, while waiting at a stoplight, they met Max Biederman.
The three of them arranged to meet for dinner at a place call Tramps. Appellant and Ms. Rial
met Mr. Biederman for dinner and, afterwards, they all went to the Rio Hotel. Later that
evening, Ms. Rial and appellant left Mr. Biederman to find a hotel and get some sleep.
The next day, while Ms. Rial remained at the hotel, appellant took Ms. Rial's car and met
Mr. Biederman at Tramps. Mr. Biederman offered to introduce appellant to a friend who
might offer him a job. Appellant and Mr. Biederman went to the King 8 Motel where the
friend was staying. The friend never showed up, so appellant and Mr. Biederman left for the
Rio Hotel to see a show.
At the Rio, while Mr. Biederman was inside the hotel, appellant went back to the van to
get Mr. Biederman's gun. Appellant testified that, I think somewhere in the back of my mind
I was planning to do what I did. Appellant stated that he thought the scenario about the job
was a scam.
Appellant and Mr. Biederman returned back to the King 8 Motel. Appellant struck
Biederman one to four times with the revolver and then shot him in the jaw. Appellant then
moved Ms. Rial's car to a truck stop. Appellant returned to the motel, because his fingerprints
were all over Biederman's van. When he returned, Mr. Biederman was on the sidewalk about
to knock on someone's door.
108 Nev. 227, 230 (1992) Redmen v. State
someone's door. Appellant told him to get behind the van and Biederman complied.
Appellant then shot Mr. Biederman two more times.
Appellant took Mr. Biederman's van and returned to his motel with blood on his clothes.
He told Ms. Rial that he and Mr. Biederman had gotten into a fight. Ms. Rial helped him
clean up, and the two got in the van and returned to pick up Ms. Rial's car. Appellant told Ms.
Rial to wait in the car. Appellant walked back to the King 8 Motel. Appellant mutilated Mr.
Biederman's face with a wrought iron railing. Appellant also cut Mr. Biederman's hands off
and wrapped them in a brown paper bag.
Appellant drove back to his motel in the van. Ms. Rial followed him in her car. She left the
car there, and got into the van. Appellant and Ms. Rial drove out to the desert to dump the
hands and clothing. The two returned to the motel, got Ms. Rial's car, and left for Idaho.
Mr. Biederman's body was discovered on February 10, 1990, behind a Dipsy Dumpster
at the King 8 Motel. Las Vegas Metropolitan Police Officer Joe Schmitt and identification
specialist Nancy Kingsbury responded to the scene. Pictures were taken and the victim's
wallet was retrieved from his pants.
1
On February 11, 1990, appellant was apprehended by Corporal Ron Pumphrey of the
Idaho State Police Department.
2
On February 13, 1990, Detective Tom Dillard of the Las
Vegas Metropolitan Police Department met with appellant in the Bannock County jail in
Pocatello, Idaho. Detective Dillard took a statement from appellant. Appellant was then
transferred to Clark County, Nevada, where he stood trial for robbery with the use of a deadly
weapon and murder in the first degree with the use of a deadly weapon. At the conclusion of
the guilt phase, the jury returned a verdict of guilty on both counts.
The jury was unable to reach a determination during the penalty phase. Pursuant to NRS
175.556, a three-judge panel was convened to determine the sentence. The three-judge panel
found four aggravating circumstances and one mitigating circumstance.
3
In weighing the
mitigating circumstance against the aggravating circumstances, the panel found that the
mitigating circumstances did not outweigh the aggravating circumstances.
__________
1
The body was found wrapped in a blanket under a piece of carpet. Found on the ground was a live .22
caliber cartridge. Three metal fragments were recovered from inside the body.
2
Appellant had been traveling in excess of 100 miles per hour. The police determined that the driving status
of appellant had been revoked, and that the vehicle was registered to Max Biederman. A search of appellant's
vehicle revealed two pairs of handcuffs, a stun gun with dried blood on it, a survival sheath knife, and a .22
caliber Ruger revolver with the cylinder pin missing. A search of appellant revealed a money clip with $588 and
four fired .22 caliber shells.
3
The three-judge panel found the following aggravating circumstances beyond a reasonable doubt:
1. The murder was committed by a person who was previously convicted
108 Nev. 227, 231 (1992) Redmen v. State
In weighing the mitigating circumstance against the aggravating circumstances, the panel
found that the mitigating circumstances did not outweigh the aggravating circumstances. It
was the unanimous judgment of the court that appellant be sentenced to death.
[Headnote 1]
Appellant raises several issues by way of appeal. Appellant's first contention is that he was
denied his right to a speedy trial.
NRS 178.556 states in part: If a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the finding of the indictment or filing of
the information, the court may dismiss the indictment or information. Dismissal is
mandatory only absent good cause for the delay. Huebner v. State, 103 Nev. 29, 731 P.2d
1330 (1987); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970).
In the present case, appellant invoked his right to a speedy trial, and the trial was set for
May 14, 1990. On May 2, 1990, the prosecutor requested that the district court reset the trial
date, since he was scheduled to try another death penalty case beginning on May 7th. Defense
counsel formally opposed the motion, but informed the court that they could not be prepared
to go to trial on May 14th.
The trial court found good cause to continue and reset the trial date for June 18, 1990. We
conclude that the court was correct in finding good cause. Neither the prosecution nor the
defense was prepared to go to trial. Appellant cannot force the court to begin a trial when
neither party is prepared to litigate.
[Headnote 2]
Appellant next contends that the court erred in admitting photographs of the victim's
mutilated body at the penalty phase of the trial. During the sentencing phase of the trial, the
court admitted five photographs of the victim's mutilated body for the purpose of establishing
the aggravating circumstance of mutilation. Defense counsel objected to the admission of the
photographs on the grounds that they were more prejudicial than probative.
[Headnote 3]
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.
__________
of a felony involving the use of violence to another, to-wit: felonious jailbreaking and assault during the
commission of a felony;
2. The murder was committed by a person under sentence of imprisonment for breaking and entering and for
assault during the commission of a felony;
3. The murder was committed while the person was engaged in the commission of a robbery with use of a
deadly weapon; and
4. The murder involved the torture and mutilation of the victim.
The three-judge panel also found the following mitigating circumstance: The defendant was severely abused
at an early age.
108 Nev. 227, 232 (1992) Redmen v. State
decision will not be overturned. Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800
(1984), cert. denied, 470 U.S. 1009 (1984); Turpen v. State, 94 Nev. 576, 577, 583 P.2d
1083, 1084 (1978), cert. denied, 439 U.S. 968 (1978). Having examined the photographs, we
conclude that they were admissible to prove the aggravating circumstances of mutilation. See
Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 111 S.Ct. 1608 (1991). We
further conclude that the prejudicial effect of the photographs did not substantially outweigh
their probative value. See NRS 48.035. Accordingly, we conclude that the trial court properly
exercised its discretion.
[Headnote 4]
Appellant alleges that it was error to instruct jury regarding the felony murder rule.
4
Appellant alleges that a conviction of felony murder cannot stand since the indictment failed
to allege that the killing was perpetrated in the commission of a felony. We have previously
held that the indictment in a felony murder case need not allege that the killing was
perpetrated in the commission of a felony. Theriault v. State, 92 Nev. 185, 191, 547 P.2d
668, 672 (1976) (citing Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967)).
[Headnote 5]
Appellant also alleges that the court erred in instructing the jury that murder committed in
the perpetration of a felony carries a conclusive presumption of malice aforethought.
5
Appellant relies on Carella v. California, 491 U.S. 263 (1989) (due process requires
prosecution to prove every element of offense beyond a reasonable doubt), reh'g denied, 492
U.S. 937 (1989).
The present instruction does not violate Carella. In Carella, two instructions were given
mandating conclusive presumptions as to fraud and embezzlement based upon failure to
return a rental vehicle within an arbitrary time limit.
6
Id. at 264. The instructions foreclosed
independent jury consideration of whether the facts established all the elements of the
offenses. Id. This is to be distinguished from an instruction which informs a jury as to the
findings of fact required to establish a particular elementin this case malice.
__________
4
Jury Instruction No. 11 stated the following: Murder of the First Degree is murder which is (a) perpetrated
by any kind of willful, deliberate and premeditated killing, or (b) committed in the perpetration or attempted
perpetration of a robbery.
5
Jury Instruction No. 13 stated the following:
There is a kind of murder which carries with it conclusive evidence of premeditation and malice
aforethought. This class of murder is murder committed in the perpetration or attempted perpetration of
robbery. Therefore, a killing which is committed in the perpetration of the felony of robbery is deemed to
be murder in the first degree, whether the killing was intentional, unintentional or accidental. This is
called the felony murder rule.
6
The two instructions appear below:
(1) Presumption Respecting Theft by Fraud:
Intent to commit theft by fraud is presumed if one who has leased or
108 Nev. 227, 233 (1992) Redmen v. State
tions foreclosed independent jury consideration of whether the facts established all the
elements of the offenses. Id. This is to be distinguished from an instruction which informs a
jury as to the findings of fact required to establish a particular elementin this case malice.
See Carella, 491 U.S. at 266 (when a jury is instructed to presume malice from predicate
facts, it still must find the existence of those facts beyond a reasonable doubt).
[Headnote 6]
Appellant next contends that the trial court erred by allowing the State to call three
witnesses during the penalty phase who were not endorsed as witnesses on the information.
Appellant contends that he was prejudiced by this error.
[Headnote 7]
NRS 173.045(2) requires the district attorney to endorse such witnesses as are known to
him at the time of the filing of the information.
7
Absent evidence to the contrary, an
unendorsed witness is presumed to have been unknown to the district attorney. Dalby v.
State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965).
In the present case, three unendorsed witnesses were called at the penalty hearing. One of
these witnesses, Dr. Clay Griffith, was called to rebut the testimony of Dr. Masters, a
psychiatrist testifying for the defense. The State was only made aware of the defense's
intention to present Dr. Masters on the day before the penalty hearing began. Therefore,
pursuant to NRS 173.045(2), the State was not required to endorse Dr. Griffith on the
information.
__________
rented the personal property of another pursuant to a written contract fails to return the personal property
to its owner within 20 days after the owner has made written demand by certified or registered mail
following the expiration of the lease or rental agreement for return of the property so leased or rented.
(2) Presumption Respecting Embezzlement of a Leased or Rented Vehicle:
Whenever any person who has leased or rented a vehicle wilfully and intentionally fails to return the
vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be
presumed to have embezzled the vehicle.
Carella, 491 U.S. at 264.
7
NRS 173.045(2) states:
The district attorney or the attorney general shall endorse thereon the names of such witnesses as are
known to him at the time of filing the information, and shall also endorse upon the information the names
of such other witnesses as may become known to him before the trial at such time as the court may, by
rule or otherwise, prescribe; but this does not preclude the calling of witnesses whose names, or the
materiality of whose testimony, are first learned by the district attorney or the attorney general upon the
trial. He shall include with each name the address of the witness if known to him. He shall not endorse
the name of any witness whom he does not reasonably expect to call.
108 Nev. 227, 234 (1992) Redmen v. State
[Headnote 8]
Paul Clark and Kelly Neff were also called as unendorsed witnesses during the penalty
hearing. Paul Clark was a correctional officer who testified regarding a fight he had with
appellant while appellant was serving a sentence of imprisonment. Kelly Neff testified
regarding a fight which appellant had with a Mr. Coiner in which appellant pulled a gun.
8
Neither witness was known to the State prior to trial.
[Headnote 9]
Appellant contends that he was prejudiced by the State's failure to use due diligence in
discovering Paul Clark and Kelly Neff before trial. We agree that due diligence is a
requirement of NRS 173.045(2). We do not agree, however, that the record establishes a lack
of due diligence in the present case. We also cannot agree that appellant suffered prejudice;
the three week continuance granted by the trial court cured any prejudice that would have
accrued.
[Headnotes 10, 11]
Appellant next contends that the trial court improperly allowed testimony from Dr.
Griffith, a psychiatrist retained by the prosecution, regarding the future dangerousness of
appellant.
9
We agree with appellant. In our view, psychiatric evidence purporting to predict
the future dangerousness of a defendant is highly unreliable and, therefore, inadmissible at
death penalty sentencing hearings. Thus, the trial court erred in allowing Dr. Griffith's
testimony. But because the record contains plentiful other evidence from which the
three-judge panel could reasonably infer appellant's future dangerousness, we conclude that
this error was harmless beyond a reasonable doubt. See Manning v. Warden, 99 Nev. 82, 659
P.2d 847 (1983) (citing Chapman v. California, 386 U.S. 18 (1967)).
[Headnote 12]
We also take this opportunity to re-examine our previous decisions concerning whether a
prosecutor may argue the future dangerousness of a defendant and the need to impose the
death penalty to protect against future violence. In Riley v. State, 107 Nev. 205, 808 P.2d 551
(1991), we held that [w]hen there is evidence . . . of a defendant's past conduct which
supports a reasonable inference that even incarceration will not deter the defendant from
endangering others' lives, a prosecutor is entitled to ask the jury to draw that inference.'"
Id. at 209, S0S P.2d at 560 {quoting Haberstroh v.
__________
8
During the course of this fight, appellant placed a gun between Ms. Neff's eyes and stated, I ought to blow
your brains out slut.
9
Dr. Masters, a psychiatrist for the defense, testified that appellant had a basic sense of decency and the
potential to do good for society. In response to this conclusion, Dr. Griffith gave his own opinion that
appellant was dangerous and would be a danger in any society that he is in.
108 Nev. 227, 235 (1992) Redmen v. State
defendant from endangering others' lives, a prosecutor is entitled to ask the jury to draw that
inference.' Id. at 209, 808 P.2d at 560 (quoting Haberstroh v. State, 105 Nev. 739, 741, 782
P.2d 1343, 1344 (1989)). Today, we expand 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. In doing so, we align our jurisdiction with the
majority of other jurisdictions which have considered this issue. Unlike psychiatric testimony,
which jurors often readily accept as reliable expert medical evidence, the predictions of a
prosecutor are understood by a jury to be nothing more than the argument of counsel.
[Headnote 13]
Appellant next challenges the constitutionality of NRS 175.556 which authorizes the use
of a three-judge panel during the sentencing phase of a capital case in cases where the jury is
unable to reach a unanimous verdict upon the sentence.
10
Appellant contends that Nevada's
default sentencing scheme violates the equal protection and due process clauses of the United
States Constitution.
The United States Supreme Court has previously held that there is no constitutional
imperative that a jury have the responsibility of deciding whether the death penalty should be
imposed. Spaziano v. Florida, 468 U.S. 447 (1984) (holding that neither the Sixth
Amendment nor the due process clause of the Fourteenth Amendment creates a constitutional
right to sentencing by a jury in a capital case). In Spaziano, a Florida judge disregarded a
jury's recommendation of life and imposed a sentence of death. The Supreme Court found
that Florida's procedure of allowing a trial court to override a jury recommendation was
proper as it was neither arbitrary nor capricious. Id. at 466.
[Headnote 14]
Appellant contends that the sentencing scheme provided by NRS 175.556 is arbitrary and
capricious. See Godfrey v. Georgia, 446 U.S. 420, 427 (1980) (capital sentencing scheme
must provide meaningful basis for distinguishing cases where the death penalty is
imposed from cases where it is not).
__________
10
NRS 175.556 provides as follows:
Procedure when jury unable to reach unanimous verdict. If a jury is unable to reach a unanimous
verdict upon the sentence to be imposed, the supreme court shall appoint two district judges from judicial
district other than the district in which the plea is made, who shall with the district judge who conducted
the trial, or his successor in office, conduct the required penalty hearing to determine the presence of
aggravating and mitigating circumstances, and give sentence accordingly. A sentence of death may be
given only by unanimous vote of the three judges, but any other sentence may be given by the vote of a
majority.
108 Nev. 227, 236 (1992) Redmen v. State
provide meaningful basis for distinguishing cases where the death penalty is imposed from
cases where it is not). Appellant's contention is based primarily on his assertion, unsupported
by any evidence in the record, that a three-judge panel invariably returns a sentence of death.
This court has previously addressed this exact issue. In Baal v. State, 106 Nev. 69, 787
P.2d 391 (1990), the appellant claimed that sentencing by a three-judge panel resulted in
arbitrary and capricious imposition of death sentences. Id. at 74, 787 P.2d at 395. In support
of that contention, appellant Baal argued that three-judge panels invariably return a sentence
of death. This court noted that appellant Baal cited no empirical evidence for his argument
and concluded that the use of a three-judge panel could withstand constitutional scrutiny. Id.;
see also Hill v. State, 102 Nev. 377, 724 P.2d 734 (1986), cert. denied, 479 U.S. 1101 (1987).
[Headnote 15]
Appellant also contends that application of NRS 175.556 denied him equal protection
under the law. Appellant contrasts NRS 175.556 with NRS 200.366. NRS 200.366(3) states:
The trier of fact in a trial for sexual assault shall determine whether substantial bodily harm
has been inflicted on the victim and if so, the sentence to be imposed upon the perpetrator.
NRS 200.366 does not provide for a three-judge panel to determine the sentence in the event
of a hung jury.
[Headnote 16]
Distinctions between classes are constitutionally improper if the basic distinction between
the classes is insupportable. Goldstein v. Pavlikowski, 87 Nev. 512, 516, 489 P.2d 1159,
1162 (1971).
11
Appellant argues that there is no supportable distinction between a capital
homicide case and a case of sexual assault. We conclude otherwise.
A capital homicide is a unique kind of case. The gravity of a capital case may render a jury
unable to reach a unanimous determination as to sentence. Because juries may frequently be
unable to agree upon a sentence, a default sentencing scheme is required.
__________
11
In Goldstein, appellant wanted to have his capital murder trial judged by the trial judge rather than a jury.
Capital murders require a jury, so appellant Goldstein's request was denied by the district court. Goldstein
appealed, stating that it was an impermissible class distinction to have different procedures at capital murder
trials than at non-capital trials. Goldstein, 87 Nev. at 516, 489 P.2d at 1162.
On appeal, we determined that appellant Goldstein was not denied equal protection. Id. at 516, 489 P.2d at
1162. We concluded that the distinction between capital and non-capital offenses was supportable because of the
heavy burden borne by the judge in a capital case. Id.
108 Nev. 227, 237 (1992) Redmen v. State
The same problems do not arise in the case of a sexual assault. The jury must choose
between two possible penalties, neither one of which is morally troublesome. See NRS
200.366.
12
A unanimous determination as to sentence will therefore be possible in most
cases. We therefore conclude that a three-judge panel default sentencing scheme is necessary
only in the case of a capital homicide.
In accordance with NRS 177.055, we have considered the remaining errors alleged by
appellant. We conclude that appellant's contentions are meritless. Also pursuant to NRS
177.055, we have examined the record and determined that the evidence supports the findings
of aggravating circumstances, that appellant's sentence was not imposed under the influence
of passion, prejudice or any arbitrary factor and that appellant's sentence of death is not
excessive, considering both the crime and the appellant. We therefore affirm appellant's
conviction and sentence of death.
Steffen, J., and Breen, D. J.,
13
concur.
Rose, J., concurring:
Although I wholeheartedly concur with the majority's opinion, I want to elaborate on why
psychiatric predictions of a defendant's future dangerousness are unreliable, and thus should
be inadmissible as trial evidence. The testimony of the State's psychiatrist in this case is
illustrative of the problem presented by such testimony.
At trial, the court permitted the testimony of Dr. Clay Griffith, a Texas physician
specializing in forensic psychiatry.
1
Dr. Griffith testified to his impressive medical
credentials in court. He also stated that over the past twenty-five years, he has examined over
8,000 people charged with offenses and has testified in approximately half of those cases.
__________
12
Under NRS 200.366(2)(a)(1)-(2), the jury may sentence a defendant convicted of sexual assault with
substantial bodily harm, as follows:
(1) By imprisonment in the state prison for life, without possibility of parole; or
(2) By imprisonment in the state prison for life with possibility of parole, eligibility for which begins
when a minimum of 10 years has been served.
13
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.
1
Griffith's testimony was undoubtedly influenced by his Texas practice. Death penalty sentencing in Texas is
a two-step process. Eligibility for the death penalty is determined by the jurors during the guilt-innocence phase
of a capital murder trial. Note, A Reasoned Moral Response: Rethinking Texas's Capital Sentencing Statute
After Penry v. Lynaugh, 69 Tex.L.Rev. 407, 436 (1990). If a unanimous jury responds affirmatively to three
questions, the
108 Nev. 227, 238 (1992) Redmen v. State
mately half of those cases. Of the over one hundred and fifty death penalty-eligible
defendants Dr. Griffith has examined, he has testified ninety-seven times for the prosecution
and two times for the defense. Based upon his experience, Dr. Griffith informed the jury that
he is one hundred percent accurate on death penalty cases.
2
Dr. Griffith did not examine Timothy Redmen in person. Rather, he based his opinion on
tapes of Redmen's confession, Redmen's testimony at trial,
3
and approximately one hundred
photographs not admitted into evidence.
4
Based upon this evidence, Dr. Griffith concluded
that Redmen is a sociopath within the upper limits of this personality disorder, and that he has
no feelings and no conscience. He also stated that sociopaths are untreatable and are in
continuous conflict with society, and that Redmen will continue to be a danger to society.
__________
trial judge has no discretion in sentencing the defendant to death. Id. at 438. The second of these questions is:
(2) whether there is a probability that the defendant would commit criminal acts of violence that
would constitute a continuing threat to society . . . .
Tex. Crim. Proc. Code Ann. 37.071(b) (Vernon Supp. 1991) (emphasis added).
Because Texas cannot obtain a death penalty conviction without convincing jurors that the element of
probable future dangerousness has been satisfied, and industry has developed supporting psychiatrists who
specialize at this task. Dr. James Grigson, also of Texas, claims to have examined more than 12,000 prisoners
during his career and earns approximately $200,000 a year from court-ordered examinations. See 20/20: Dr.
Death (ABC television broadcast, November 25, 1988) (transcript on file at Journal Graphics) (hereinafter Dr.
Death).
2
Griffith was less certain as to whether he is always accurate in non-death penalty cases.
3
On cross-examination, Dr. Griffith stated that his opinions were formed when he watched [Redmen]
testify, the manner in which he testified, and the manner in which he answered questions, he was very
controlled. In particular, he stated that his conclusion that Redmen had neither a conscience nor feelings
derived from Redmen's failure to use the word anger or the term excitement when he testified. Dr. Griffith
subsequently admitted that nothing Redmen said or did on the stand could have swayed his opinion of him, given
all the material he had.
4
I also am troubled by the fact that an expert witness offering opinion testimony was given access to
photographs considered too prejudicial to be seen by the jury. As Dr. Griffith has denied relying upon Redmen's
trial testimony in forming his opinion, and as no psychological examination was conducted by him, it appears
that Dr. Griffith's conclusions were based primarily upon this inadmissible evidence and Redmen's confession.
Furthermore, Dr. Griffith told the three-judge panel that his opinion was based in part upon these one hundred
photographs that they were not allowed to see. If this had been a jury, its logical conclusion would have been
that Dr. Griffith possessed not only superior scientific knowledge but also better factual knowledge of the case
than was presented to the jury.
108 Nev. 227, 239 (1992) Redmen v. State
untreatable and are in continuous conflict with society, and that Redmen will continue to be a
danger to society.
The seminal case addressing expert testimony by psychiatrists in death penalty cases is
Barefoot v. Estelle, 463 U.S. 880 (1983). Barefoot was a Texas case involving the murder of
a police officer by a man with prior possession offenses but no history of violent crimes. Id. at
883-84, 917. The trial court heard testimony from two psychiatrists, neither of whom had
examined or requested to examine the defendant. Both recited their impressive credentials to
the jury. Id. at 917 (Blackmun, J., dissenting). In addition, as in the instant case, one of the
psychiatrists, Dr. James Grigson, stated that Barefoot ranked above 10 on a scale of one to
ten for sociopaths. Id. at 919. The defense in Barefoot argued that admission of the
psychiatrists' testimonies was unconstitutional because psychiatrists are not competent to
predict the future and because their error rate is extremely high. Id. at 884-85. The majority
concluded that the effect of such testimony could be adequately assuaged through
impeachment of the witness and through the introduction of opposing witnesses.
5
Id. at
899-901.
I find the dissent of Justice Blackmun instructive. He argues that psychiatric predictions of
future dangerousness are unreliable, that it is extremely difficult to attack the credibility of a
psychiatrist's opinion on this subject, and that the need for reliable evidence in a death penalty
case mandates the exclusion of expert evidence of questionable reliability. Concerning the
accuracy of psychiatric predictions, he states:
The American Psychiatric Association (APA), participating in this case as amicus
curiae, informs us that [t]he unreliability of psychiatric predictions of long-term future
dangerousness is by now an established fact within the profession. Brief for American
Psychiatric Association as Amicus Curiae 12 (APA Brief). The APA's best estimate is
that two out of three predictions of long-term future violence made by psychiatrists are
wrong. Id., at 9, 13. The Court does not dispute this proposition, see ante, at 899-901,
n. 7, and indeed it could not do so; the evidence is overwhelming. For example, the
APA's Draft Report of the Task Force on the Role of Psychiatry in the Sentencing
Process (1983) (Draft Report) states that [c]onsiderable evidence has been
accumulated by now to demonstrate that long-term prediction by psychiatrists of
future violence is an extremely inaccurate process." Id., at 29.
__________
5
The majority in Barefoot v. Estelle, 463 U.S. 880, 901 (1983), went so far as to say that [n]either the
petitioner nor the [American Psychiatric Association] suggests that psychiatrists are always wrong with respect
to future dangerousness, only most of the time. (Emphasis added.)
108 Nev. 227, 240 (1992) Redmen v. State
tion by psychiatrists of future violence is an extremely inaccurate process. Id., at 29.
John Monahan, recognized as the leading thinker on this issue even by the State's
expert witness at Barefoot's federal habeas corpus hearing, Hearing Tr. 195, conclude
that the best' clinical research currently in existence indicates that psychiatrists and
psychologists are accurate in no more than one out of three predictions of violent
behavior, even among populations of individuals who are mentally ill and have
committed violence in the past. J. Monahan, The Clinical Prediction of Violent
Behavior 47-49 (1981) (emphasis deleted) (J. Monahan, Clinical Prediction); see also
id., at 6-7, 44-50. Another study has found it impossible to identify any sub-class of
offenders whose members have a greater-than-even chance of engaging again in an
assaultive act. Wenk, Robison, & Smith, Can Violence be Predicted?, 18 Crime &
Delinquency 393, 394 (1972). Yet another commentator observes: In general, mental
health professionals . . . are more likely to be wrong than right when they predict legally
relevant behavior. When predicting violence, dangerousness, and suicide, they are far
more likely to be wrong than right. Morse, Crazy Behavior, Morals and Science: An
Analysis of Mental Health Law, 51 S. Cal. L. Rev. 527, 600 (1978) (Morse, Analysis of
Mental Health Law). Neither the Court nor the State of Texas has cited a single
reputable scientific source contradicting the unanimous conclusion of professionals in
this field that psychiatric predictions of long-term future violence are wrong more often
than they are right.
Id. at 920-921 (Blackmun, J., dissenting) (emphasis in original; footnote omitted).
Evidence is only admissible if it is relevant. NRS 48.025(2). To be relevant, the evidence
must have a tendency to make the existence of a material fact more or less probable than it
would be without the evidence. NRS 48.015. If the American Psychiatric Association and
other scholarly studies are correct, expert psychiatric testimony concerning an individual's
future dangerousness does not make the existence of that dangerousness more or less
probable. Thus, such evidence should be disallowed because it is not relevant.
Furthermore, Justice Blackmun notes that the insidious nature of the psychiatrists' mostly
inaccurate testimony is compounded by the fact the jurors readily accept as factual opinion
testimony by qualified experts in scientific fields.
6
Id. at 926. Where highly credentialed
scientific experts swear to their one hundred percent accuracy, impeachment provides an
ineffectual remedy. Id. at 929-30.
__________
6
For example, Blackmun notes that polygraph evidence is generally excluded because of concerns that the
jury will be unduly influenced by it,
108 Nev. 227, 241 (1992) Redmen v. State
credentialed scientific experts swear to their one hundred percent accuracy, impeachment
provides an ineffectual remedy. Id. at 929-30.
The practical effect of permitting psychiatric testimony on a defendant's future
dangerousness in the trial of death penalty cases would be more expert testimony and
additional costs. If the State is permitted to present such evidence, the defense will want, and
indeed should be entitled to, a psychiatrist to testify and rebut the State's expert. Both
psychiatrists will be paid by the State. The end result would be that in death penalty cases we
would extend the time of trials, have additional expert witnesses giving their speculation on a
defendant's future dangerousness, and increase costs, all without any clear benefit to our
understanding of the case.
The answer is simple and it is the one we announce today. Prohibit the admission of this
unreliable expert testimony and let the juries in Nevada make decisions on the death penalty
as they have for yearsbased upon the facts of the case and the arguments of counsel.
Young, J., concurring in part and dissenting in part:
Appellant challenges the constitutionality of NRS 175.556 which provides for the
appointment of a three-judge panel to sentence a defendant convicted of first degree murder
when the jury is unable to reach a unanimous verdict. For the reasons I set forth in my dissent
in Beets v. State, 107 Nev. 957, 821 P.2d 1044 (1991), I am unable to conclude that the
sentencing procedure is constitutional under Godfrey v. Georgia, 446 U.S. 420 (1980).
I therefore dissent from the portion of the majority opinion which concludes that NRS
175.556 is constitutional. I concur with the remainder of the majority opinion.
__________
even though the reliability of polygraph tests (eighty to ninety percent accuracy) greatly exceeds that of
psychiatric testimony. Barefoot v. Estelle, 463 U.S. 880, 930 (1983) (Blackmun, J., dissenting).
____________
108 Nev. 242, 242 (1992) First Interstate Bank v. H.C.T., Inc.
FIRST INTERSTATE BANK OF CALIFORNIA, a California Banking Corporation,
Appellant/Cross-Respondent, v. H.C.T., INC., a California Corporation, aka H.C.T.,
INCORPORATED, a California Corporation, Respondent/Cross-Appellant, and
INDEPENDENCE BANK, a California State Banking Corporation, Respondent.
No. 22165
March 13, 1992 828 P.2d 405
Appeal from a grant of summary judgment entitling Independence Bank to interpleader
funds and cross-appeal from an order denying motion to dismiss or, in the alternative, motion
for summary judgment. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure,
Judge.
Judgment creditor sued to enforce foreign judgment against judgment debtor and applied
for writ of garnishment on certificate of deposit (CD). Holder of cretificate of deposit filed
complaint for interpleader to determine ownership of CD. On consolidation, the district court
denied judgment debtor's motion to dismiss suit to enforce foreign judgment and directed CD
funds to be delivered to bank to which judgment debtor had assigned CD prior to application
for writ of garnishment. Judgment creditor and judgment debtor appealed. The supreme court
held that: (1) judgment debtor acquired its interest in CD when it was awarded funds in
arbitration, and not upon judicial confirmation of award; (2) assignee bank had priority in CD
to extent of antecedent debt owed by judgment debtor to bank; (3) marshaling of assets was
not appropriate against debtor's guarantor; and (4) judgment debtor could not challenge order
denying motion to dismiss enforcement action brought by judgment creditor inasmuch as
summary judgment which was certified for appeal did not resolve issue.
Affirmed; cross-appeal dismissed.
Gordon & Silver and Candi Carlyon, Las Vegas, for Appellant/Cross-Respondent.
Lefebvre, Barron & Oakes, Las Vegas, for Respondent/Cross-Appellant H.C.T.
Miles & Tierney, Las Vegas, for Respondent Independence Bank.
1. Arbitration.
Party's rights in certificate of deposit (CD) vested upon declaration of arbitration award, not upon judicial
confirmation of award, NRS 3S.135.
108 Nev. 242, 243 (1992) First Interstate Bank v. H.C.T., Inc.
of arbitration award, not upon judicial confirmation of award, NRS 38.135.
2. Garnishment.
Bank's interest in certificate of deposit (CD) by assignment from judgment debtor was prior in time to judgment creditor's interest
which vested when judgment creditor served writ of garnishment against CD, and thus, CD was not subject to garnishment by
judgment creditor, where interest in CD was assigned for antecedent debt owed by judgment debtor to bank, and bank gave
consideration for assignment. NRS 112.170; NRS 112.040 (Repealed).
3. Garnishment.
Priority between garnishment and assignment depends on which interest is first in time; however, assignment takes priority over
writ of garnishment only to extent that consideration given for assignment represents antecedent debt or present advance. NRS
112.170; NRS 112.040 (Repealed).
4. Garnishment.
Assignor's actions in pursuing litigation to determine priority between garnishment and assignment of certificate of deposit (CD)
were not inconsistent with its assertion that it made valid assignment of CD to bank, even though assignor was not real party in interest
after it assigned its interest in CD to bank; assignor needed to prove its initial interest in CD in order to enable bank to prevail in
lawsuit. NRS 112.170; NRS 112.040 (Repealed).
5. Debtor and Creditor.
Marshaling of assets was not appropriate in garnishment action to require creditor with priority interest in certificate of deposit to
satisfy its debt from guarantors of debtor before resorting to certificate of deposit; marshaling was barred since one fund was in hands
of surety of debtor; rather than in hands of debtor, himself. NRS 100.040.
6. Debtor and Creditor.
Surety is not fund or security in sense which those terms are used in connection with principles of marshaling of assets; creditor
cannot be compelled to satisfy its debt from sureties of his debtor before resorting to fund or collateral security on which he has lien.
NRS 100.040.
7. Debtor and Creditor.
Where fund is held by surety or guarantor, marshaling of assets is barred because debtor does not hold funds which are in hands
of surety or guarantor. NRS 100.040.
8. Debtor and Creditor.
For marshaling of assets doctrine to apply, both funds must be within jurisdiction and control of court. NRS 100.040.
9. Debtor and Creditor.
Marshaling of assets with respect to guarantors of debtor was improper, where guarantors were not party to suit and had no notice
of marshaling proceedings against their assets. NRS 100.040.
10. Debtor and Creditor.
Marshaling of assets cannot be invoked if it will compel senior creditor to proceed with independent action to obtain judgment.
NRS 100.040.
11. Appeal and Error.
Where appeal is not granted by statutory authority, no right to appeal exists.
12. Appeal and Error.
Order denying judgment debtor's motion to dismiss judgment creditor's action seeking to enforce foreign judgment,
or in alternative, for summary judgment, was not appealable, where order was not listed as appealable
order in NRAP.
108 Nev. 242, 244 (1992) First Interstate Bank v. H.C.T., Inc.
tor's action seeking to enforce foreign judgment, or in alternative, for summary judgment, was not appealable, where order was not
listed as appealable order in NRAP. NRAP 3A(b).
13. Appeal and Error.
Because summary judgment which was certified for appeal did not resolve issue of whether judgment creditor could enforce its
foreign judgment, judgment debtor could not challenge order on appeal; in consolidated case, only claim which was certified for appeal
was final and appealable. NRCP 54(b).
OPINION
Per Curiam:
Facts
First Interstate Bank of California (FICAL) and Independence Bank both assert a claim to
a Certificate of Deposit (CD) in the approximate amount of $322,000. The district court
awarded the CD to Independence Bank on summary judgment. FICAL appealed.
In 1988, H.C.T., Inc., (HCT) borrowed $350,000 from Independence Bank; the loan was
guaranteed by two of HCT's principals.
Shortly thereafter, HCT purchased a CD from First Interstate Bank of Nevada (FINEV) for
$321,444.32 in the name of Sunrise Development Co. (Sunrise) and Clark County Public
Works.
1
The CD was in lieu of an off-site improvement bond by HCT. In May 1990, HCT
assigned its entire interest, rights and title in the CD to Independence Bank.
Also in May of 1990, FICAL obtained a judgment against HCT for $314,059.65 in a
California superior court. HCT appealed the California judgment and FICAL cross-appealed.
Meanwhile, HCT and Sunrise entered into arbitration proceedings to determine ownership
of the CD. On July 24, 1990, HCT was awarded the funds by the American Arbitration
Association. On August 21, 1990, the arbitrator's award was judicially confirmed.
In August of 1990, FICAL filed suit in Nevada district court to enforce the California
foreign judgment against HCT and applied for, inter alia, a writ of garnishment on the CD.
The district court issued the writ. On August 20, 1990, FICAL served the writ of garnishment
on the CD to FINEV, which held the CD. HCT moved to dismiss FICAL's action seeking to
enforce the California judgment, or in the alternative for summary judgment, alleging the
California judgment was not final because both HCT and FICAL had appealed the
judgment.
__________
1
Neither Sunrise nor Clark County are involved in this appeal.
108 Nev. 242, 245 (1992) First Interstate Bank v. H.C.T., Inc.
and FICAL had appealed the judgment. The district court denied the motion and ordered
FICAL to comply with the requirements for commencing action pursuant to the Nevada
Uniform Enforcement of Foreign Judgments Act (NRS 17.330 et seq.). FICAL complied.
Meanwhile, FINEV filed a complaint for interpleader, requesting that the court make a
determination as to the ownership of the CD. HCT filed a motion for summary judgment in
the interpleader case, claiming it had assigned its interest in the CD to Independence Bank
prior to the time of FICAL's writ of garnishment on the CD and therefore Independence
Bank's interest took priority. Independence Bank later joined in HCT's motion. FICAL's
action to enforce its foreign judgment was then consolidated with the interpleader case.
The district court granted the HCT/Independence Bank motion for summary judgment,
directing the CD funds to be delivered to Independence Bank. The summary judgment was
certified as final pursuant to NRCP 54(b). FICAL appealed the summary judgment. HCT
cross-appealed from the order denying HCT's motion to dismiss FICAL's suit to enforce its
foreign judgment.
On appeal, FICAL argues: (1) the district court erred in determining that Independence
Bank was entitled to the CD under the first in time rule; (2) HCT's actions belie its
contention that it assigned its interest to Independence Bank; and (3) Independence Bank
should have been compelled to satisfy its claim from other assets of HCT under the
marshaling of assets doctrine.
Priority
[Headnote 1]
FICAL argues that its interest in the CD attached on August 20, 1990, when its writ of
garnishment was served on FINEV and that HCT's/Independence Bank's interest attached on
August 21, 1990, when the district court confirmed HCT's arbitration award. FICAL's
argument is illogical. If HCT did not have an interest in the CD until August 21, 1990, then
FICAL could not have levied a writ of garnishment against it on August 20, 1990. In order to
determine priority, the threshold question in this case is: at what point in time did HCT
acquire its interest in the CDwhen it was awarded the funds in arbitration, or when the
district court confirmed the arbitration award?
The Legislature intended for an arbitration award to be final and binding. City of Boulder
v. General Sales Drivers, 101 Nev. 117, 119, 694 P.2d 498, 500 (1985). Upon application to a
district court, the award shall be confirmed unless grounds are urged for modifying, vacating
or correcting the award. NRS 3S.135.2 In deciding whether a party's rights vest upon the
declaration of the arbitration award or upon judicial confirmation, one court states:
108 Nev. 242, 246 (1992) First Interstate Bank v. H.C.T., Inc.
38.135.
2
In deciding whether a party's rights vest upon the declaration of the arbitration
award or upon judicial confirmation, one court states:
An arbitration award conclusively determines the rights of the parties unless it is
invalidated by a reviewing court. Thus, if the award is upheld in a reviewing court, the
rights of the parties are determined from the date of the award and not the date of the
court's judgment confirming the award. Any other result would defeat the purpose of
arbitration which is to finally decide the issues between the arbitrating parties without
judicial intervention.
Marion Mfg. Co. v. Long, 588 F.2d 538, 541 (6th Cir. 1978) (citations omitted) (emphasis
added). We agree with the Sixth Circuit and hold that HCT acquired its interest in the CD
when it was awarded the funds in arbitration.
[Headnote 2]
HCT assigned its interest in the CD to Independence Bank on May 4, 1990. HCT was
awarded the CD in arbitration on July 24, 1990. The interest which HCT assigned to
Independence Bank on May 4, 1990, became valuable when HCT was awarded the CD.
HCT's interest in the CD, as well as Independence Bank's interest by assignment, was prior in
time to FICAL's interest which vested on August 20, 1990, when FICAL served the writ of
garnishment against the CD.
[Headnote 3]
Priority between a garnishment and an assignment depends on which interest is first in
time. Board of Trustees v. Durable Developers, 102 Nev. 401, 415, 724 P.2d 736, 746 (1986).
However, an assignment takes priority over a writ of garnishment only to the extent that the
consideration given for the assignment represents an antecedent debt or present advance. Id.
(citing NRS 112.040 (repealed by Statutes of Nevada 1987 ch. 9); cf. NRS 112.170).
3
In the case at hand, HCT assigned Independence Bank its interest in the CD for the
antecedent debt of $350,000 owed by HCT to Independence Bank.
__________
2
NRS 38.135 provides in relevant part:
Confirmation of award. Upon application of a party within 1 year, the court shall confirm an award,
unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or
correcting the award. . . .
3
NRS 112.170 provides in relevant part:
1. Value is given for a transfer or an obligation if, in exchange for the transfer or obligation, property
is transferred or an antecedent debt is secured or satisfied . . . .
108 Nev. 242, 247 (1992) First Interstate Bank v. H.C.T., Inc.
HCT to Independence Bank. The CD was purchased in July of 1988 for $321,444.32.
Independence Bank gave at least $350,000 consideration for the assignment. Therefore,
Independence Bank has priority in the CD to the extent of $350,000 plus whatever interest
HCT owed Independence Bank on the antecedent debt.
The Assignment
[Headnote 4]
FICAL contends that HCT's actions in pursuing this litigation are inconsistent with its
assertion that it made a valid assignment to Independence Bank. We disagree.
HCT's actions in pursuing this case are consistent with its assignment to Independence
Bank. It is true that HCT was not the real party in interest after it assigned its interest in the
CD to Independence Bank. See Thelin v. Intermountain Lumber, 80 Nev. 285, 392 P.2d 626
(1964). However, HCT needed to prove its initial interest in the CD in order to enable
Independence Bank to prevail in this lawsuit. HCT had an interest in Independence Bank
taking priority in order to pay off its debt to Independence Bank.
FICAL also argues that HCT did not have standing to pursue the litigation. This argument
is moot; the issue of standing was resolved when Independence Bank, as the real party in
interest, joined HCT in its motion for summary judgment.
Marshaling of Assets
FICAL asserts that the only asset of HCT's it can look to for satisfaction of its judgment is
the CD and that Independence Bank may resort to two funds: the CD and the personal
guarantees of HCT's stockholders/principals. Therefore, FICAL argues that the district court
erred in not ordering marshaling of assets, contending that if the assets are marshaled, both
FICAL and Independence Bank will receive full payment. This is an issue of first impression
in Nevada.
Marshaling of assets is provided for by NRS 100.040, which reads:
Requiring resort to different funds. Where a creditor is entitled to resort to each of
several funds for the satisfaction of his claim, and another person has an interest in, or
is entitled as a creditor to resort to some, but not all, of them, the latter may require the
former to seek satisfaction from those funds to which the latter has no such claim, so
far as it can be done without impairing the right of the former to complete satisfaction,
and without doing injustice to third persons.
108 Nev. 242, 248 (1992) First Interstate Bank v. H.C.T., Inc.
Both Funds Must be in the Hands of the Debtor
[Headnotes 5, 6]
Whether both creditors can be satisfied in full if marshaling is compelled is of no
consequence. It is a well-settled rule that marshaling of assets is only appropriate where both
funds are in the hands of a common debtor of both the senior and junior creditors. DuPage
Lumber & Home Imp. v. Georgia-Pacific Corp., 34 B.R. 737 (Bankr. N.D. Ill. 1983); In re
United Medical Research, Inc., 12 B.R. 941 (Bankr. C.D. Cal. 1981). Marshaling is barred
when one of the funds is in the hands of a surety of the debtor. DuPage Lumber, 34 B.R. at
740 (citing 53 Am.Jur.2d Marshaling Assets 10 at 17 (1970)). The rule regarding
marshaling where one of the funds is in the hands of a surety of the debtor is summed up as
follows:
A surety is not a fund or security in a sense which those terms are used in
connection with the principle of marshaling. A creditor cannot be compelled to satisfy
his debt from the sureties of his debtor before resorting to a fund or collateral security
on which he has a lien. Again, in the absence of some special equity, the principle of
marshaling assets is not applicable to a case where one of the funds is property of a
surety of the common debtor.
53 Am.Jur.2d Marshaling Assets 23 at 24 (1970) (footnotes omitted). The view that a junior
creditor may not compel marshaling where one fund is in the hands of a surety is consistent
with virtually all courts which have specifically addressed this issue. Matter of Willson Dairy
Co., 30 B.R. 67, 71 (Bankr. S.D. Ohio 1981) (citing Annot., 135 A.L.R. 740). The roots of
the rule regarding sureties date back to 1817. Willson Dairy, 30 B.R. at 71 (citing Union Bank
v. Laird, 15 U.S. (2 Wheat.) 390 (1817)).
[Headnotes 7, 8]
Where a fund is held by a surety or guarantor, marshaling is barred because the debtor
does not hold the funds which are in the hands of the surety or guarantor. DuPage Lumber, 34
B.R. at 740; Willson Dairy, 30 B.R. at 71; United Medical Research, 12 B.R. at 942.
Additionally, both funds must be within the jurisdiction and control of the court. Lewis v.
United States, 92 U.S. 618, 623 (1875).
Very few courts have found an exception to the settled rule and have compelled
marshaling where both funds are not in the hands of the debtor. See In re Jack Green's
Fashions for MenBig & Tall, 597 F.2d 130 (8th Circ. 1979). In Jack Green's, a clothing
corporation borrowed money from the senior creditor and secured the loan by both a lien on
the business assets and on personal residences owned by the principals of the
corporation. Id. at 131-32.
108 Nev. 242, 249 (1992) First Interstate Bank v. H.C.T., Inc.
secured the loan by both a lien on the business assets and on personal residences owned by
the principals of the corporation. Id. at 131-32. The court ordered the senior creditor to resort
first to the real estate for satisfaction of its debt, stating that if the senior creditor were
allowed to exhaust the business assets, the general creditors would receive nothing. Id. at 133;
see also Matter of Multiple Services Industries, Inc. 18 B.R. 635 (Bankr. E.D. Wis. 1982);
Farmers & Merchants Bank v. Gibson, 7 B.R. 437 (Bankr. N.D. Fla. 1980), vacated sub nom,
Peacock v. Gibson, 81 B.R. 79 (Bankr. N.D. Fla. 1981). In Multiple Services and Farmers,
the courts allowed marshaling because they were particularly concerned that the
working-capital loans [to corporations], secured by guaranties and privately-owned real
estate, could deceive trade creditors by giving the illusion of adequate capitalization.
DuPage Lumber & Home Imp. v. Georgia-Pacific Corp., 34 B.R. 737, 742 (Bankr. N.D. Ill.
1983).
The Jack Green's and Farmers decisions have been severely criticized. Id. at 742. As one
court stated:
It is poor policy for courts to upset legitimate business transactions because of some
vague concept of equity. We tend to forget that these decisions affect future commercial
transactions. Advantageous and proper loans to corporations may be frustrated because
shareholders [or guarantors] would be fearful of having their personal assets marshaled
for corporate creditors should they guarantee a corporate debt.
In re United Medical Research, Inc., 12 B.R. 941, 943 (Bankr. C.D. Cal. 1981). We decline to
follow Jack Green's. To compel marshaling against a guarantor in situations similar to the
case at bar would result in a chilling effect on guarantees.
Marshaling Cannot Force the Senior Creditor Into Independent Litigation
[Headnotes 9, 10]
Additionally, if marshaling were ordered in this case, Independence Bank would be forced
to obtain a judgment against the guarantors and then execute on the judgment. Marshaling
cannot be invoked if it will compel the senior creditor to proceed with an independent action
to obtain a judgment. Dixieland Realty Co. v. Wysor, 158 S.E.2d 7, 14-15 (N.C. 1967) (citing
55 C.J.S. Marshaling Assets and Securities 4, at 962).
FICAL argues that the guarantors are already a party to an action by Independence Bank
against HCT and the guarantors in California. However, FICAL provides no proof that this is
true.
108 Nev. 242, 250 (1992) First Interstate Bank v. H.C.T., Inc.
Even if FICAL's assertions are accurate, marshaling is still barred because the guarantors are
not a party to this suit. Some courts consider this an absolute denial of due process for the
guarantors. In re Mesa Intercontinental, Inc. 79 B.R. 669, 673 (Bankr. S.D. Tex. 1987); In re
Coors of North Mississippi, Inc., 66 B.R. 845, 869 (Bankr. N.D. Miss. 1986). We agree. We
will not compel marshaling against guarantors who are not a party to this suit and who have
no notice of marshaling proceedings against their assets.
Marshaling in this case is improper on the grounds that the two funds are not within the
hands of the debtor and the guarantors are not a party to this suit.
The Cross-Appeal
HCT moved to dismiss FICAL's actions seeking to enforce the California judgment
against HCT, or in the alternative for summary judgment, alleging the California judgment
was not final because both HCT and FICAL had appealed. The district court denied the
motion and ordered FICAL to comply with the requirements for commencing action pursuant
to the Nevada Uniform Enforcement of Foreign Judgments Act (NRS 17.330 et. seq.). HCT
appeals from the denial of its motion to dismiss.
[Headnotes 11, 12]
NRAP 3A(b), designates orders and judgments from which an appeal may lie. Where
appeal is not granted by statutory authority, no right to appeal exists. Taylor Constr. Co. v.
Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984). The order denying HCT's motion is not
appealable because it is not listed as an appealable order in NRAP 3A(b).
[Headnote 13]
Additionally, HCT is pursuing an appeal which involves the issues of whether FICAL can
enforce its foreign judgment against HCT's assets in Nevada. While FICAL's enforcement
action against HCT was consolidated with the FINEV interpleader case, only summary
judgment regarding the CD was rendered and certified pursuant to NRCP 54(b).
The only issue which the summary judgment resolved was which party was entitled to the
CD. In the summary judgment, the district court did not include a disposition regarding the
issue of whether FICAL's enforcement action against HCT was allowable by Nevada law.
Because the summary judgment which was certified did not resolve the issue of whether
FICAL can enforce its foreign judgment, HCT cannot challenge the order in this appeal. This
court has made it clear that in a consolidated case, only the claim which is certified pursuant
to NRCP 54(b) is final and appealable.
108 Nev. 242, 251 (1992) First Interstate Bank v. H.C.T., Inc.
and appealable. See Mallin v. Farmers Insurance Exchange, 106 Nev. 606, 609, 797 P.2d 978,
980 (1990).
The cross-appeal is not properly before this court. We therefore dismiss the cross-appeal
for lack of jurisdiction.
Conclusion
The district court properly entered summary judgment in favor of Independence Bank.
Independence Bank's interest in the CD was first in time to FICAL's and therefore has
priority. FICAL may not compel the marshaling of assets under the circumstances of this
case. Further, this court lacks jurisdiction to consider the cross-appeal.
Accordingly, we affirm the judgment entered below and dismiss the cross-appeal.
Mowbray, C. J., Springer, Rose and Young, JJ., and Ames, D. J.,
4
concur.
___________
108 Nev. 251, 251 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
THE HONORABLE PAUL S. GOLDMAN, District Judge, Eighth Judicial District Court, In
and for the County of Clark, State of Nevada, by and Through JULIE
GOLDMAN-WILSON, as Personal Representative of the Estate of PAUL S.
GOLDMAN, Appellant, v. THE NEVADA COMMISSION ON JUDICIAL
DISCIPLINE, Respondent.
No. 18326
April 1, 1992 830 P.2d 107
Appeal from final report of proceedings, findings of fact, conclusions of law and judgment
of the Nevada Commission on Judicial Discipline.
Former district judge sought review of final report, findings of fact, conclusions of law,
and judgment of Nevada Commission on Judicial Discipline. The supreme court held that
evidence supported commission's finding that judge had committed willful misconduct in
office unexcused by any claimed physical or mental disability.
Affirmed as modified.
__________
4
The Honorable Jack B. Ames, Judge of the Fourth Judicial District Court, was designated by the Governor
to sit in place of The Honorable Thomas L. Steffen, Justice. Nev. Const. art. 6 4.
108 Nev. 251, 252 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Beckley, Singleton, DeLanoy, Jemison and List, and J. Mitchell Cobeaga and Alan J.
Lefebvre, Las Vegas; Frank J. Cremen, Las Vegas, for Appellant.
Eugene J. Wait, Jr., Wayne A. Shaffer, and Jeffrey Dickerson, Reno, for Respondent.
1. Judges.
Responsible administration of judicial disability retirement system warrants definitive, final appellate review of determinations by
Commission on Judicial Discipline respecting judge's claim for early, enhanced disability pension.
2. Judges.
Factual findings of Commission on Judicial Discipline constituting grounds for censure, removal, or retirement of judicial officer
must be premised on clear and convincing evidence. Const. art. 7, 4; Commission on Judicial Discipline Rule 15.
3. Judges.
Although judge who is subject of formal allegations of misconduct is not required to present evidence in his own defense, judge
must assume burden of proof with respect to affirmative defenses; mere preponderance of evidence is sufficient to establish affirmative
defense. Commission on Judicial Discipline Rule 27.
4. Judges.
If required probable cause is found with regard to judge who is subject of formal allegations of misconduct, and misconduct or
disability is thereafter alleged in formal statement of charges, prosecuting officer for state Commission on Judicial Discipline always
retains burden of establishing elements essential to finding of misconduct or permanent physical or mental disability by way of clear
and convincing proof. Commission on Judicial Discipline Rule 27.
5. Judges.
Any finding by Commission on Judicial Discipline entitling judge to early retirement on enhanced disability pension must be
premised on clear and convincing evidence showing mental or physical disability preventing proper performance of judge's judicial
duties and which is likely to be permanent in nature. Const. art. 6, 21, subd. 6(b); Commission on Judicial Discipline Rule 33.
6. Judges.
Decision by Commission on Judicial Discipline to censure, remove, or retire judicial officer is not merely advisory or
recommendatory in nature; decision is of independent force and effect absent perfection of appeal. Const. art. 6, 21, subd. 1.
7. Judges.
Appellate review of factual findings by Commission on Judicial Discipline is confined to determination of whether evidence in
record as whole provides clear and convincing support for commission's findings; commission's factual findings may not be
disregarded on appeal merely because circumstances might also reasonably be reconciled with contrary findings of fact. Const. art. 6,
21, 21, subds. 2, 4.
8. Judges.
On appeal from Commission on Judicial Discipline's order of censure, removal, or retirement, court is specifically enjoined by
constitution to exercise independent judgment regarding appropriate sanction warranted by factual findings
properly founded by commission.
108 Nev. 251, 253 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
tion to exercise independent judgment regarding appropriate sanction warranted by factual findings properly found by commission.
Const. art. 6, 21, subd. 1.
9. Judges.
Although evidence indicated that judge suffered from intermittent bouts of depression and stress related ailments, expert testimony
and other evidence supported finding of Commission on Judicial Discipline that judge was not permanently disabled from performing
duties of office for purposes of determining whether judge had defense from disciplinary charges and whether judge was entitled to
immediate enhanced disability pension. Const. art. 6, 21.
10. Judges.
Early judicial disability pension may be awarded only if clear and convincing evidence establishes that judge is truly in extremis
and that, even with medical treatment, judge will not be likely to recover health and capacity to perform duties of his office; no
procedures allow for periodic or future review of disability status once early, enhanced judicial disability pension is awarded. Const.
art. 6, 21; NRS 3.092.
11. Judges.
Commission on Judicial Discipline's constitutional jurisdiction to resolve claim to early enhanced disability pension prevails over
authority conferred on governor, although commission's expressed assertion of its jurisdiction is not sole, determinative factor
precluding action by governor; judge may not automatically defeat commission's jurisdiction to commence proceedings relating to
alleged misconduct or disability by going to governor with notice of intention to seek early, enhanced disability retirement. Const. art.
6, 21.
12. Judges.
If allegation of judicial misconduct before Commission on Judicial Discipline provides incipient basis for commission action
under state constitution, overriding concerns of public and social policy foreclose any attempt by judge to compel governor to act on
question of entitlement to early, enhanced disability retirement. Const. art. 6, 21; NRS 3.092, subd. 3.
13. Judges.
Long-standing pattern of willful misconduct and abuse of power of contempt, unexcused by any claimed physical or mental
disability, warranted removal from office. Const. art. 6, 4, 21, subd. 6(a); SCR 10.
14. Judges.
Standing alone, show cause order was insufficient to establish that judge abused his power of contempt on particular occasions.
15. Judges.
Orders entered by judge and district court documents relating to judge's contempt decisions were properly admitted and considered
by Commission on Judicial Discipline. NRS 47.130, subds. 1, 2.
16. Judges.
Judge was provided reasonable opportunity to defend against findings of Commission on Judicial Discipline relating to show
cause orders concerning a district court clerk.
17. Judges.
Bad faith is essential element to finding of willful misconduct arising out of issuance of judicial decision. Commission on Judicial
Discipline Rule 9.
108 Nev. 251, 254 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
18. Judges.
Experienced trial judge's ignorance of proper contempt procedures, without more, may constitute bad faith necessary to finding
of willful misconduct. NRS 22.010, 199.340.
19. Judges.
Finding of bad faith justifying finding by Commission on Judicial Discipline of willful misconduct by judge is warranted if
evidence shows commission of acts which judge knows or should have known were beyond his power, for purpose other than faithful
discharge of judicial duties.
20. Judges.
Findings and conclusions by Commission on Judicial Discipline respecting comments judge made to media, allegedly concerning
pending and impending litigation, did not show willful misconduct as remarks and questions were made and reported in media after
commission conducted probable cause hearing and after commission entered order of formal complaint. Code of Judicial Conduct,
Canon 3, subd. A(1), (6).
21. Judges.
Absent any evidence in record to support even inference that judge abused alcohol, finding of habitual intemperance must be
reversed; finding of habitual intemperance is not justified if conduct of judge demonstrates pattern of conduct and temperament totally
unbecoming member of judiciary but no obvious use of alcohol is shown. Commission on Judicial Discipline Rule 2, subd. 6.
22. Judges.
Conflicting testimony by physicians in connection with hearing on judicial misconduct provided sufficient evidence to support
finding of Commission on Judicial Discipline that misconduct was neither mitigated nor excused by disabling mental or physical
condition.
23. Judges.
Even if Commission on Judicial Discipline exceeded its authority by declaring judicial office vacant, judge was not prejudiced in
light of statements and action showing judge's clear intention never to resume judicial functions under any circumstances. Const. art. 6,
21, subd. 6(a), (b).
24. Judges.
Power of Commission on Judicial Discipline to adjudicate an order of removal or retirement of judge necessarily implied power to
declare office vacant. Const. art. 6, 21, subd. 6(a), (b).
25. Judges.
Judge waived his right to challenge justice's participation in Commission on Judicial Discipline where counsel knew facts
concerning tentative investigation into judge's competence and expressly waived any objection to justice's participation.
OPINION
Per Curiam:
Former District Judge Paul S. Goldman appeals from the final report, findings of fact,
conclusions of law and judgment of the Nevada Commission on Judicial Discipline (the
commission).
108 Nev. 251, 255 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Following formal proceedings, the commission found that appellant: (1) had voluntarily
abandoned and relinquished his office; (2) had engaged in willful misconduct and habitual
intemperance, unexcused by any claimed physical or mental disability; and (3) was not and
had not been permanently disabled physically or mentally to perform the duties of his office
in the sense contemplated by the Nevada Constitution and statutes. See Nev. Const. art. 6,
21; NRS 3.092. Accordingly, the commission declared appellant's office vacant, ordered his
removal from office, and rejected appellant's claim for an early, enhanced disability pension.
Further, the commission directed that, at such time as appellant became eligible to receive
retirement benefits, he would be entitled to only such standard, ordinary retirement benefits as
he had earned during the course of his actual and active judicial service. For the reasons and
with the modifications specified below, we affirm the commission's determination.
I. PRELIMINARY COMMENTS
On September 14, 1991, after this appeal was submitted for decision, appellant died in a
tragic traffic accident. The special prosecutor for the commission, attorney Eugene Wait, Jr.,
subsequently filed a formal suggestion of death on the record. Thereafter, on October 24,
1991, appellant's counsel moved this court to substitute Julie Goldman-Wilson, the special
administratrix of appellant's estate, as appellant's personal representative on appeal. See
NRAP 43(a) (where a party dies during pendency of an appeal, any party may suggest the
death on the record and the personal representative of the deceased party may be substituted
as a party).
Although the right of this court to proceed to determination of the appeal under these
circumstances is not in question, see Walker v. Burkham, 68 Nev. 250, 252, 229 P.2d 158,
159 (1951), we have nevertheless carefully considered whether appellant's death has rendered
the issues presented moot. For the reasons stated below, we have concluded that the issues of
first impression revealed on this record are of such importance to the citizens of this State
that an appellate resolution is virtually compelled. See McKay v. Bergstedt, 106 Nev. 808,
811-12, 801 P.2d 617, 620 (1990).
[Headnote 1]
First, in our view, the responsible administration of the judicial disability retirement
system warrants definitive, final appellate review of the commission's determinations
respecting appellant's claim for an early, enhanced disability pension. See, e.g., Judicial
Inquiry and Review Bd. v. Snyder, 523 A.2d 294, 300 n.2 (Pa.) (Nix, C. J., concurring), cert.
denied, 484 U.S. 829 (1987).
108 Nev. 251, 256 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
In addition, we perceive a need to clarify the circumstances under which the statutory
authority relating to disability retirement conferred upon the governor is preempted by the
commission's constitutional authority to resolve questions of judicial misconduct and
disability.
A second and equally compelling concern is the lack of direct precedent addressing
matters of judicial misconduct to which members of this state's judiciary may turn for
guidance. See In re Weeks, 658 P.2d 174, 176 (Ariz. 1983) (court reached merits of judicial
discipline matter where resolution of issues would provide future guidance to judiciary).
Notably, Nevadans have historically manifested a pronounced sensitivity to potential abuses
of judicial power. Scholars of this state's constitutional process have suggested, for example,
that this sensitivityoriginating from early public dissatisfaction and criticism of the Nevada
Territorial benchexplains the presence of no less than four separate provisions in our
constitution allowing for the removal of state justices and judges during their terms of office.
1
Little or no instructive and guiding local precedent, however, defines, or interprets the
procedures and grounds upon which removal from judicial office is warranted under these
provisions.
For these reasons, we have concluded that the responsible course is to proceed with a
definitive and comprehensive resolution of the issues presented on this record. We
emphasize, however, that our decision is premised not upon a desire to append an ignoble
epitaph to a life and legal career that included many marks of excellence and distinction.
2
Rather, we proceed upon the premise that our comprehensive and conclusive review of this
appeal will establish needed precedent, enhancing the efficacy of Nevada's judicial disability
retirement system, the competence of its judicial officers and public confidence in the
commission to promote and maintain the integrity of the judiciary. See Snyder, 523 A.2d at
298-99 (judge's defeat in election during pendency of disciplinary matter before supreme
court did not end court's responsibility to maintain integrity of judicial administration and to
uphold public respect for the rule of law; court's jurisdiction
__________
1
See Eleanor Bushnell and Don W. Driggs, The Nevada Constitution: Origin and Growth, 21, 136-39 (6th
ed. 1984). See also Nev. Const. art. 7, 2 (removal by impeachment and trial); Nev. Const. art. 7, 3
(legislative removal upon grounds which may or may not be sufficient for impeachment); Nev. Const. art. 2, 9
(removal by recall election); Nev. Const. art. 6, 21 (removal by commission on judicial discipline).
2
We also wish to emphasize that no suggestion is made on this record of judicial corruption, fraudulent
conduct, personal dishonesty, or alcoholic intemperance. As will be seen, the allegations of misconduct against
appellant entailed willful misconduct encompassing the abuse of his power of contempt and improper public
commentary on pending litigation.
108 Nev. 251, 257 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
over disciplinary matters is only at an end when it issues a final order). See also Matter of
Yaccarino, 502 A.2d 3, 30-31 (N.J. 1985) (predominant interest is preservation of public
confidence in judiciary). In light of the above, we grant the motion to substitute Ms.
Goldman-Wilson as appellant's personal representative.
II. PROCEEDINGS BEFORE THE COMMISSION
In early October 1986, a series of disturbing events focused widespread attention on
appellant's courtroom. Specifically, during the week of October 8, 1986, appellant held three
individuals in contempt of court and ordered them jailed. The individuals included an 87-year
old woman who refused to testify against her son in a criminal matter; a courthouse
maintenance supervisor who appellant determined was responsible for noisy repairs on the
roof of appellant's courtroom; and a Las Vegas Police Commander who appellant unlawfully
held in direct contempt of court under circumstances wherein appellant lacked both subject
matter and personal jurisdiction to take such action. See Goldman v. Bryan, 106 Nev. 30, 787
P.2d 372 (1990); Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986).
Concerned that appellant's behavior might constitute an emergency requiring tentative
administrative reapportionment of the public's judicial business, Supreme Court Justice
Thomas L. Steffen travelled to Las Vegas on behalf of this court to inquire further into these
preliminary indications of appellant's unusual judicial conduct. Subsequently, on October 16,
1986, appellant directed a letter to the chief justice of this court, requesting the court to
relieve him temporarily of his responsibility to act on any matters pending before him. In
view of appellant's apparent acknowledgment that he was at least temporarily unfit for
judicial service, the full court entered an Administrative Order on October 19, 1986,
temporarily reapportioning the public's judicial business in the interest of the efficient and
effective administration of justice. See Goldman v. Bryan, 106 Nev. at 32-33, 787 P.2d at
374; Goldman v. Bryan, 104 Nev. 644, 647 n.3, 764 P.2d 1296, 1297-98 (1988). The order
temporarily precluded appellant from attempting to exercise judicial functions without the
prior approval of the court and directed the Chief Judge of the Eighth Judicial District Court
to reassign to other judges of that district any cases then assigned to appellant for trial or
hearing as [was] necessary to accommodate the interests of justice.
3
Id., 104 Nev. at 647
n.3, 764 P.2d at 1297-98.
__________
3
Appellant never thereafter requested this court to rescind the administrative order and continued to collect
his full salary, without performing any judicial functions, from October 19, 1986, until June 16, 1987, when the
commission entered the decision that is the subject of this appeal.
108 Nev. 251, 258 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Thereafter, the Nevada Commission on Judicial Discipline commenced an investigation
into appellant's fitness for office. Following an initial investigation, the special prosecutor
filed with the commission an informal complaint against appellant setting forth numerous
allegations of misconduct in office. The commission then scheduled and conducted a hearing
to determine if probable cause existed to believe that appellant had engaged in willful
misconduct or habitual intemperance. See Interim Rule 1.2.
4
Appellant attended the hearing
with counsel.
The special prosecutor presented evidence in the form of documentary exhibits, as well as
the testimony of numerous witnesses. Although appellant's counsel cross-examined
witnesses, the only evidence introduced on appellant's behalf was a letter that he had
previously written to then Governor Richard Bryan. The letter notified the governor of
appellant's intention to seek an early, enhanced disability pension and requested the governor
to appoint three physicians to examine him in accordance with NRS 3.092(3) to determine if
he was permanently incapacitated for medical reasons to perform the duties of his office.
5
The governor, however, subsequently declined to act in accordance with NRS 3.092(3) upon
advice from the attorney general that proceedings were pending or impending against
appellant before the commission. Appellant's unsuccessful attempt to compel the governor to
act was the subject of this court's opinion in Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372
(1990).
Following the hearing, the commission issued written findings, conclusions, and an order
of formal complaint. The order advised appellant that the commission had found probable
cause to believe that appellant had "perpetrated inappropriate and unacceptable judicial
conduct in at least three areas," and that such conduct violated the Nevada Code of
Judicial Conduct, as well as Nev. Const. art.
__________
4
On January 10, 1978, this court adopted the Revised Interim Procedural Rules of the Nevada Commission
on Judicial Discipline (hereinafter cited as Interim Rule
------
). Interim Rule 1.2 was formally included in
those rules upon entry of an Order Adopting Rule For Public Hearings By The Nevada Commission On
Judicial Discipline, filed March 18, 1985. The Interim Rules governed the commission proceedings involving
appellant. They were superseded and replaced, however, on April 29, 1988, when the current and more
comprehensive administrative and procedural rules became effective. See Supreme Court Rules, Part VII,
Administrative and Procedural Rules for the Nevada Commission on Judicial Discipline (hereinafter cited as
Comm. Rule
------
). Although the current rules were not in effect at the time of the proceedings against
appellant and did not govern those proceedings, we refer to them from time to time when the policies they reflect
are relevant to the issues under consideration.
5
NRS 3.092(3) provides in material part:
Any judge . . . who desires to retire voluntarily must give notice in writing to the governor. The
governor shall appoint three physicians licensed to practice medicine in the State of Nevada to examine
the judge and report the results to the governor in writing. If a majority of the physicians is of the opinion
that the judge is permanently incapacitated, physically or mentally, the governor shall approve the
retirement . . .
108 Nev. 251, 259 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
appellant that the commission had found probable cause to believe that appellant had
perpetrated inappropriate and unacceptable judicial conduct in at least three areas, and that
such conduct violated the Nevada Code of Judicial Conduct, as well as Nev. Const. art. 6,
21, proscribing willful misconduct and habitual intemperance.
First the commission found:
It appears [Judge] Goldman has abused his contempt power by holding or
threatening to hold individuals in contempt of court under circumstances clearly not
warranted by law. See, e.g., Clark County District Attorney v. Dist. Ct., 101 Nev. 843,
710 P.2d 1384 (1985); Bowman v. District Court, 102 Nev. 474, 728 P.2d 443 (1986);
Cunningham v. District Court, 102 Nev. 551, & 555 n.1, 729 P.2d 1328, & 1330 n.1
(1986); and numerous other contempt orders issued by [Judge] Goldman against
Loretta Bowman, Clerk of the District Court, and Mr. Kennard, Supervisor, Clark
County Department of Maintenance. The foregoing represents examples of a course of
conduct brought before the commission.
Second, the commission found that it appeared that appellant had improperly initiated
direct contacts with an individual, whom appellant knew to be represented by counsel, and
had engaged in judicial misconduct in subsequent dealings with that counsel.
6
Third, the commission found:
It appears that [Judge] Goldman made prohibited public commentary to news media
concerning pending or impending litigation. Specifically, [Judge Goldman] made
improper public comments to news media during a television interview and to
newspaper reporters concerning the contempt citation and jailing of Commander
Cunningham. The Supreme Court of Nevada has held that these public comments
violated Canon 3(A)(6) [of the Nevada Code of Judicial Conduct]. See Cunningham [v.
District Court, 102 Nev. 551, 729 P.2d 1328 (1986)].
The commission observed that, although appellant's counsel cross-examined some
witnesses at the probable cause hearing, he presented nothing to controvert the evidence of
inappropriate conduct adduced against him, and instead, seem[ed] to tender the issue that
his inappropriate and unacceptable conduct was the product of his physical or mental
disability."
__________
6
In its final decision of June 16, 1987, the commission specifically found that the evidence relating to this
charge was inconclusive and declined to return a finding of misconduct. Consequently, we are not concerned
with this allegation of misconduct on appeal. See, e.g., Wenger v. Commission on Judicial Performance, 630
P.2d 954, 956 (Cal. 1981).
108 Nev. 251, 260 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
product of his physical or mental disability. Thus, the commission stated that appellant
evidently contends that he is entitled to immediate enhanced disability retirement benefits,
rather than the standard retirement benefits provided by NRS 3.090. The commission
therefore concluded:
Judge Goldman has conceded that he is not fit for judicial office, and the evidence
demonstrates this. The issue remains as to whether he should receive standard
retirement benefits pursuant to NRS 3.090, or increased benefits based on permanent
physical or mental disability pursuant to NRS 3.092.
Unless [Judge] Goldman can establish to the satisfaction of the Commission that his
actions are the product of mental or physical disabilities which render him so
incompetent and incapacitated that his inappropriate conduct should be excused, he
should be removed from office on constitutional grounds and should receive the
standard pension for past services already earned pursuant to NRS 3.090(2) and (3).
The commission authorized the special prosecutor to arrange for independent experts to
evaluate appellant's mental and physical condition and advised appellant that evidence
pertaining to the extent of the alleged physical or mental disabilities would be received at a
subsequent formal hearing wherein the commission would resolve:
[W]hether Judge Paul S. Goldman's termination of office shall be based on removal for
willful misconduct and/or habitual intemperance with allowance of a standard earned
pension, or whether [Judge] Goldman should be retired as permanently disabled with an
enhanced disability pension immediately payable notwithstanding that he has not yet
reached the standard retirement age of sixty years.
Appellant thereafter filed a verified answer, generally denying the allegations of judicial
misconduct stated in the formal complaint. The answer also contained the following
admissions:
[Appellant] admits he has declared himself permanently incapacitated to perform the
duties of his office; admits that he is in fact incapacitated to perform the duties of his
office for medical reasons; and admits further that because of this incapacitation he
should be retired from his office as District Judge, Eighth Judicial District Court,
Department Ten . . . .
Additionally, the answer set forth affirmative defenses. Appellant asserted that the
commission neither possessed jurisdiction to determine the extent of his disability, nor to
adjudicate his entitlement to an early, enhanced, permanent disability pension.
108 Nev. 251, 261 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
sion. By exercising jurisdiction over those issues, appellant argued, the commission had
usurped the authority and power vested by the Legislature in the office of the Governor . . .
under NRS 3.092. Appellant's answer thus urged dismissal of all charges of misconduct
contained in the commission's order of formal complaint and specifically requested that
appellant be permitted to retire from judicial office due to permanent incapacity and
granted the retirement benefits due him . . . as set forth in NRS 3.092.
Prior to the formal hearing, appellant filed a motion to amend findings, conclusions and
order of formal complaint and further written answer. Appellant's motion challenged the
factual bases of certain of the commission's findings of probable cause and moved to strike or
amend portions of the commission's order of formal complaint. In response, the commission
issued an order denying appellant's motion in all respects but nonetheless clarifying certain
issues for appellant's benefit. Specifically, the commission clarified that three distinct
issues were pending in the proceedings.
First, the commission noted that appellant had tendered his resignation and request for
early retirement, had acknowledged that he was unable to perform the duties of his office and
had formally submitted to the commission his offer to retire. Although the commission
indicated that, under these circumstances, it would be justified in issuing at the formal
hearing an order declaring appellant's office vacant, it also expressly noted that appellant
would remain subject to a subsequent order of the Commission declaring that he is removed
from office, either pursuant to his request for early retirement, with the appropriate pension,
or for willful misconduct or habitual intemperance . . . .
7
(Original emphasis.)
Second, the commission indicated that, because it had jurisdiction over the original
disciplinary matter, it would also determine at the formal hearing the related questions of
whether [appellant] became permanently disabled in office, whether any alleged misconduct
on his part is excused by such disability, and whether [appellant] is entitled to special,
enhanced disability retirement benefits. The commission ruled that, because appellant had
tendered a claim for a special retirement benefit, it was incumbent on him to prove that he is
entitled to such a benefit.
Third, the commission stated that charges of willful misconduct and habitual intemperance
were also pending before the commission, and the mere fact that appellant had tendered his
resignation on grounds of mental or physical disability did not preclude the commission
from adjudicating those charges.
__________
7
The commission eventually found it appropriate to resolve in a single final decision all the matters at issue.
108 Nev. 251, 262 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
preclude the commission from adjudicating those charges. The order stressed, however, that
the burden of proving by clear and convincing evidence any facts justifying removal
remained with the special prosecutor and not with Judge Goldman. Finally, the commission
stated that, contrary to the assertions contained in appellant's motion, the prior order of formal
complaint was not a final adjudication of any issue pending before this Commission.
At the subsequent formal hearing, the special prosecutor offered and the commission
ultimately admitted documentary evidence, including exhibits that were previously offered
and admitted at the probable cause hearing.
8
Additionally, the special prosecutor presented
the testimony of two psychiatrists who had been retained on behalf of the commission to
examine appellant prior to the formal hearing. Appellant was also called to testify as an
adverse witness.
In his defense, appellant testified on his own behalf and presented the testimony of
witnesses including a physician of internal medicine, a psychiatrist, and a clinical
psychologist. The commission admitted into evidence extensive medical records and other
exhibits submitted by appellant.
Following the hearing, the commission entered its final report, findings of fact,
conclusions of law and judgment, resolving the three distinct issues that it had previously
defined as pending before the commission adversely to appellant. This appeal followed.
III. STANDARDS OF PROOF AND REVIEW
This is an appeal of first impression in Nevada. Consequently, we deem it appropriate to
set forth the standards of proof and appellate review that have guided our assessment of the
facts and issues disclosed in this record. See generally Matter of Samford, 352 So.2d 1126,
1128-29 (Ala. 1977); Geiler v. Commission on Judicial Qualifications, 515 P.2d 1, 4 (Cal.
1973), cert. denied, 417 U.S. 932 (1974).
__________
8
At the formal hearing the commission deferred ruling on appellant's objections to the admission of the
transcript of the probable cause hearing and the exhibits that had been admitted at the prior hearing. In its final
judgment, the commission declined to admit or consider the transcript of the probable cause hearing because
Commissioner Shipler had not been present to observe the demeanor of the witnesses. As we hereafter discuss,
however, the commission did admit and consider exhibits offered into evidence by the special prosecutor
relating to appellant's issuance of show cause orders, official court transcripts relevant thereto and Nevada
Supreme Court decisions reversing appellant's contempt citations. Further, the commission admitted and
considered exhibits offered by the special prosecutor relating to appellant's public comments concerning pending
and impending litigation.
108 Nev. 251, 263 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Quantum of Proof
[Headnote 2]
The rules promulgated by this court for the conduct of commission investigations and
hearings expressly provide that a finding of probable cause to proceed with a formal hearing
must be premised upon a determination that, in reasonable probability, the evidence
apparently available for introduction at a later formal hearing could clearly and convincingly
establish grounds for disciplinary action within the commission's jurisdiction. See Interim
Rule 1.2 (emphasis added); see also Comm. Rule 15. The clear and convincing standard
governs judicial disciplinary proceedings in a majority of jurisdictions.
9
By requiring a lesser
degree of proof than the reasonable doubt standard, the standard acknowledges the
non-criminal and non-punitive nature of judicial disciplinary proceedings. At the same time,
however, it is deferential to the severity of the sanctions that the commission may impose by
requiring a higher degree of proof than the mere preponderance of the evidence standard
that governs most civil proceedings. See In re Diener, 304 A.2d 587 (Md. 1973), cert. denied,
415 U.S. 989 (1974).
10
Therefore, pursuant to the applicable Nevada rules and in light of the
persuasive authorities from other jurisdictions, we conclude that factual findings of the
commission constituting grounds for censure, removal or retirement of a judicial officer must
be premised upon clear and convincing evidence.
11
We note that in the instant case,
__________
9
See ABA Joint Comm. on Professional Discipline of the Appellate Judges' Conference and the Standing
Comm. on Professional Discipline, Standards Relating to Judicial Discipline and Disability Retirement 5.13,
5.17, and Official Commentary at 39, 41 (1978). See also In Re Hanson, 532 P.2d 303, 308 (Alaska 1975);
Geiler, 515 P.2d at 4; In Re Jones, 728 P.2d 311 (Colo. 1986); In Re Rome, 542 P.2d 676 (Kan. 1975); Judicial
Performance Com'n v. Walker, 565 So.2d 1117 (Miss. 1990); In Re Jordan, 622 P.2d 297 (Or. 1981).
10
As the court noted in Diener, judicial discipline proceedings are neither civil nor criminal in nature; they
are merely an inquiry into the conduct of a judicial officer the aim of which is the maintenance of the honor and
dignity of the judiciary and the proper administration of justice rather than the punishment of the individual. Id.
at 594.
11
Notably, this court has previously stated that proof of accusations against a county official, in statutory
proceedings concerning that official's removal from office, should attain the dignity of exceeding a reasonable
doubt. Jones v. District Court, 67 Nev., 404, 418, 219 P.2d 1055, 1062 (1950) (quoting Ex Parte Jones and
Gregory, 41 Nev. 523, 173 P. 885, 888 (1918) (McCarran, C. J., concurring)). Jones, however, is clearly
distinguishable from the instant case. For example, judicial discipline commission proceedings differ
substantially from the summary statutory proceedings at issue in Jones. In fulfilling its constitutional duty to
promulgate rules for the conduct of commission proceedings, see Nev. Const. art. 7, 4, the supreme court
108 Nev. 251, 264 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
the commission correctly discerned that the clear and convincing evidence standard governed
its proceedings.
Burden of Proof
[Headnotes 3, 4]
The commission rules now in effect specifically provide that the prosecuting officer has
the burden of proving, by clear and convincing legal evidence, the facts justifying discipline
in conformity with averments of the formal statement of charges. See Comm. Rule 27.
12
A
judge who is the subject of formal allegations of misconduct is therefore not required to
present evidence in the judge's own defense. Nonetheless, persuasive authority suggests that a
judge who is the subject of formal allegations of misconduct must assume the burden of proof
with respect to affirmative defenses.
13
As a general proposition, we agree that the burden is properly assigned to a respondent
judge to come forward with evidence supporting asserted affirmative defenses. Further, a
mere preponderance of evidence is sufficient to establish an affirmative defense. We note,
however, that where the requisite probable cause has been found and misconduct or disability
is thereafter alleged in a formal statement of charges, the commission's prosecuting officer
must always retain the burden of establishing the elements essential to a finding of
misconduct or permanent physical or mental disability by way of clear and convincing proof.
See generally Kelso v. State, 95 Nev. 37, 588 P.2d 1035 (states may require a defendant to
prove by a preponderance of evidence a defense that does not negate any element of the crime
charged, but if the defense, by its nature, disproves a fact essential to the offense, the burden
may not be shifted from the prosecution), cert. denied, 442 U.S. 921 (1979).
__________
has afforded respondent judges far greater procedural protections and safeguards than were provided to the
accused official involved in the Jones case. Thus, in commission proceedings, the clear and convincing evidence
standard poses none of the concerns which influenced the court's reasoning in Jones.
12
Although this specific rule was not in effect during the course of the proceedings involving appellant, it
codifies the proper and applicable standard and burden of proof.
13
See ABA Joint Comm. on Professional Discipline of the Appellate Judges' Conference and the Standing
Comm. on Professional Discipline, Standards Relating to Judicial Discipline and Disability Retirement 5.13;
Official Commentary at 39 (1978) (respondent judge has the burden of proof with respect to affirmative
defenses). See also John J. Todd and M. L. Proctor, Burden of Proof, Sanctions, and Confidentiality, 54
Chi.Kent L. Rev. 177, 179 n. 13 (1977) ([t]he respondent judge still has the responsibility to introduce
evidence supporting affirmative defenses, such as misconduct due to mental or physical disability at the time the
act was committed).
108 Nev. 251, 265 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
[Headnote 5]
Moreover, any commission finding entitling a judge to early retirement on an enhanced
disability pension must be premised upon clear and convincing evidence demonstrating a
mental or physical disability which prevents the proper performance of [the respondent
judge's] judicial duties and which is likely to be permanent in nature. Nev. Const. art. 6,
21(6)(b). Entitlement to an early, enhanced, permanent disability retirement is a special
benefit potentially obligating the State of Nevada to extended payments of substantially
greater cost to the state than a standard unenhanced pension. As the commission rules now
reflect, where a respondent judge's entitlement to such a special benefit is in issue, regardless
of whether the issue is raised in a formal statement of charges or, as here, by the respondent
judge as an affirmative defense, the commission may not commit the state to such an
enhanced expenditure unless clear and convincing evidence demonstrates a disabling mental
or physical condition that will likely be permanent in nature.
14
See generally Ex Parte
McFaddin, 175 S.E.2d 218 (S.C. 1970) (rejecting judge's petition seeking permanent
disability retirement for failure to meet statutory requirement which the court interpreted to
mandate presentation of clear and convincing evidence that alleged disability would continue
throughout judge's lifetime regardless of medical and other treatment). In our view, the
public's right to the fiscally responsible administration of the judicial retirement system
demands no less. It should be clear, however, that where a respondent judge is seeking to
avoid involuntary retirement, an affirmative defense raised by that judge concerning the
judge's disabled status need be proved only by a preponderance of evidence.
Standards of Review
[Headnote 6]
The relevant constitutional provision defining this court's jurisdictional role in an appeal
challenging commission action specifies as follows:
A justice of the supreme court or a district judge may, in addition to the provision of
article 7 for impeachment, be censured, retired or removed by the commission on
judicial discipline.
__________
14
Comm. Rule 33 now provides in pertinent part:
[C]onduct or omissions allegedly showing disability must be such as to demonstrate clearly and
convincingly to the mind of any reasonable person that the respondent has been performing official duties
in a manner substantially inconsistent with any reasonable view of judicial process. All conduct or
omissions relied upon must be alleged with particularity, and must show a substantial disability which is
likely to be permanent.
108 Nev. 251, 266 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
censured, retired or removed by the commission on judicial discipline. A justice or
judge may appeal from the action of the commission to the supreme court, which may
reverse such action or take any alternative action provided in this subsection.
Nev. Const. art. 6, 21(1). Absent the prosecution of an appeal to this court by an aggrieved
judge, this provision unambiguously vests the commission with final authority to order the
censure, removal or retirement of a judicial officer. A commission decision to censure,
remove or retire is not merely advisory or recommendatory in nature; it is of independent
force and effect absent perfection of an appeal to this court.
This broad constitutional authority distinguishes Nevada's commission from similar
commissions in other jurisdictions. The California Commission on Judicial Performance, for
example, is constitutionally empowered only to make recommendations concerning the
imposition of disciplinary sanctions. See Cal. Const. art. 6, 18(c). Formal approval or
further action by the California Supreme Court is necessary before any disciplinary sanctions
may be imposed. Id.
In declaring the standard of review to be applied under this recommendation system, the
California Supreme Court has observed:
Were a recommendation of independent force and effect absent further action by this
court, our review of the evidentiary basis for that recommendation might properly be
limited to a determination whether the Commission's findings of fact were supported by
substantial evidence. Under such a standard of review we would not be free to disregard
the Commission's findings merely because the circumstances involved might also be
reasonably reconciled with contrary findings of fact.
Geiler, 515 P.2d at 4. In Geiler, however, the court further noted that the California
Constitution expressly entrusts that state's high court with the sole responsibility and authority
to render the ultimate, dispositive decision to censure or remove . . . . Id. In exercising that
authority, the California court independently evaluates the record evidence and renders its
own findings of fact and conclusions of law. Judicial disciplinary procedures in many other
jurisdictions are patterned after California's pioneering judicial disciplinary procedures and
similarly require review and final approval of commission recommendations by a higher
tribunal.
15
Thus, the express authority vested in this court under article 6, section 21 of
the Nevada Constitution contrasts sharply with the ultimate and dispositive constitutional
authority conferred upon courts of review in these "recommendation" jurisdictions. It is
readily apparent that by deviating from the California model, the drafters of article 6,
section 21 of the Nevada Constitution rejected California's "recommendation" system in
favor of procedures intended to vest a far greater degree of authority in Nevada's
commission.16 See, e.g., Matter of Samford, 352 So.2d 1126, 1129 {Ala.
__________
15
See In re Inquiry Concerning a Judge, 762 P.2d 1292, 1294 (Alaska 1988); In re Kelly, 238 So.2d 565,
571 (Fla. 1970), cert. denied, 401 U.S.
108 Nev. 251, 267 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Thus, the express authority vested in this court under article 6, section 21 of the Nevada
Constitution contrasts sharply with the ultimate and dispositive constitutional authority
conferred upon courts of review in these recommendation jurisdictions. It is readily
apparent that by deviating from the California model, the drafters of article 6, section 21 of
the Nevada Constitution rejected California's recommendation system in favor of
procedures intended to vest a far greater degree of authority in Nevada's commission.
16
See,
e.g., Matter of Samford, 352 So.2d 1126, 1129 (Ala. 1978) (where adoption of constitutional
amendment replaced old recommendation system of judicial discipline with new system
merely authorizing appeal, Alabama court's scope of review was restricted by such
amendment to a determination of whether the record shows clear and convincing evidence to
support the order of the Court of the Judiciary).
[Headnote 7]
We conclude, therefore, that the Nevada Constitution does not contemplate this court's de
novo or independent review of factual determinations of the commission on appeal. To the
contrary, the constitution confines the scope of appellate review of the commission's factual
findings to a determination of whether the evidence in the record as a whole provides clear
and convincing support for the commission's findings. The commission's factual findings may
not be disregarded on appeal merely because the circumstances involved might also be
reasonably reconciled with contrary findings of fact. See Samford, 352 So.2d at 1129; cf.
Geiler, 515 P.2d at 4.
[Headnote 8]
This court, of course, is not bound by the commission's conclusions of law. Cf. In re Jones,
728 P.2d 311, 313 (Colo. 1986). Moreover, where an appeal from the commission's order of
censure, removal or retirement is taken, this court is expressly empowered to reverse such
action or take any alternative action provided in this subsection. Nev. Const. art. 6, 21(1).
Thus, on appeal, we are specifically
__________
962 (1971); Matter of Del Rio, 256 N.W.2d 727, 735 (Mich. 1977), appeal dismissed, 434 U.S. 1029 (1978);
Matter of Field, 576 P.2d 348 (Or. 1978). See also American Judicature Society, Judicial Conduct
Organizations, Governing Provisions (Kathleen Sampson and Joseph A. Cahill 1984) (detailing constitutional
and statutory provisions of various jurisdictions); Shaman, Lubet and Alfini, Judicial Conduct and Ethics,
13.01 at 381 (1990).
16
Notably, such an intent is also evidenced by the care taken by the drafters to insure fairness, competence,
non-partisanship and geographic diversity in the commission's makeup. The commission, for example, must be
composed of two justices or judges appointed by the supreme court, two attorneys appointed by the state bar,
and three lay members appointed by the Governor. See Nev. Const. art. 6, 21(2). Moreover, an appointing
authority may not appoint more than one resident of any county, nor more than two members of the same
political party. See Nev. Const. art. 6, 21(4).
108 Nev. 251, 268 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
on appeal, we are specifically enjoined by the constitution to exercise our independent
judgment regarding the appropriate sanction warranted by factual findings properly adduced
by the commission. As the Alaska Supreme Court has observed, albeit under a
recommendatory system:
It would be tantamount to an abdication of our constitutional and statutory obligations
if we were to automatically adopt the commission's sanction recommendation. In every
case of this character we must insure that procedural due process has been accorded the
judicial officer proceeded against and that requisite findings of fact have been made and
are supported by substantial evidence. We are further obligated to decide whether the
recommended sanction is justified by the record and is in accord with the objectives of
the commission as reflected in the relevant constitutional and statutory provisions.
See In re Inquiry Concerning a Judge, 762 P.2d 1292, 1294 (Alaska 1988). With these
standards in mind, we turn to a review of the commission's specific findings and conclusions.
IV. THE CLAIM OF PERMANENT DISABILITY
17
During the formal hearing, the special prosecutor presented the expert testimony of Dr.
William Thornton and Dr. Lynn B. Gerow, both licensed psychiatric physicians retained on
behalf of the commission to examine appellant. Dr. Thornton testified that, in his opinion,
appellant was suffering from a disability that is a direct result of his being depressed. Dr.
Thornton, however, did not consider that disability to be by any means permanent.
Assuming appropriate treatment with anti-depressant medications and some psychotherapy,
Dr. Thornton's prognosis for appellant's chances of functioning in a law-related capacity was
excellent. Dr. Gerow similarly testified that appellant was not permanently mentally
incapacitated. Rather, Dr. Gerow stated, appellant was suffering from a type of depression
that was a "temporary impairment."
__________
17
We note that appellant has not raised in this appeal any specific assignments of error contesting the
commission's determinations rejecting his claim to an early, enhanced disability pension. The general, prevailing
rule in appellate proceedings is that prejudicial error is never presumed and must be made to affirmatively
appear. See Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976). Generally, appellate
affirmance of a lower tribunal's judgement is warranted where such error is neither alleged, demonstrated, nor is
plainly apparent on the face of the record. See Sievers v. County Treas., Douglas Co., 96 Nev. 819, 618 P.2d
1221 (1980). Although this court's summary affirmance of the commission's determinations respecting
appellant's claim to an early disability retirement might well be warranted on this basis alone, we have
nonetheless thoroughly reviewed the commission's determinations respecting appellant's claim of permanent
disability and, as discussed below, our detailed review of the record reveals no prejudicial error whatsoever.
108 Nev. 251, 269 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
appellant was suffering from a type of depression that was a temporary impairment. With a
leave of absence and systematic therapy, Dr. Gerow opined, appellant could return to
whatever legal pursuits he wished.
Appellant presented the testimony of Dr. Lance Mayor (a physician of internal medicine),
Dr. Juan Carlos Laborati (a physician and psychiatrist), and Dr. Joan Owen (a clinical
psychologist). Dr. Mayor had previously treated appellant for high blood pressure. He
conceded that he would have to defer to a psychiatric physician respecting appellant's mental
fitness for the bench. Because of the stress associated with being a judge, however, he had
encouraged appellant to consider leaving the bench. Moreover, Dr. Mayor stated that in his
view appellant was to a reasonable medical certainty permanently disabled from being a
judge.
Based on visits with appellant between December 1985 and May 1986, Dr. Laborati
diagnosed appellant as afflicted with major reactive depression aggravated by pre-existing
back problems and hypertension that complicated the presence of the depression. In his
opinion, appellant was permanently incapacitated from performing the functions of a judge.
Dr. Laborati testified that it was possible, but not probable, that appellant could return to
the bench. If appellant was still his patient, the doctor stated, he would advise against
appellant's return to judicial duties because exposure to continuous stress could have a
deleterious effect on appellant's depression. Dr. Laborati further indicated, however, that
appellant was not mentally incapacitated from any kind of productive work. In Dr. Laborati's
view, appellant could do anything but be a judge.
Dr. Owen, a clinical psychologist, testified that she had seen appellant professionally
approximately twenty-five or thirty times since April of 1987. Her treatment focused on
issues of stress, career options, family issues. Over the special prosecutor's objection that
Dr. Owen was not qualified to render an expert medical diagnosis of appellant's mental or
physical condition, the commission permitted her to state her opinion as a therapeutic
counselor that appellant was afflicted with major depression and that he was permanently
incapacitated from returning to the bench.
Additional evidence before the commission relating to the alleged permanent nature of
appellant's claimed disability consisted of exhibits submitted by appellant detailing his
medical history. The medical records indicated that appellant had been hospitalized numerous
times since 1982 with various complaints, including lower back pain, giant hives, ulcers,
hypertension, headaches, fainting spells and episodes of visual blurring and weakness in his
limbs. On one such occasion in December of 19S5, appellant was admitted to a hospital
emergency room after his secretary found him on the floor of his chambers in an "altered
state of consciousness."
108 Nev. 251, 270 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
1985, appellant was admitted to a hospital emergency room after his secretary found him on
the floor of his chambers in an altered state of consciousness. He was subsequently
diagnosed as suffering from depression, placed on medication and discharged in stable health.
He was again admitted briefly to the hospital in February 1986 after a fainting spell and was
discharged with instructions to relax and get some rest. On another occasion in April 1986,
appellant was hospitalized and diagnosed as suffering from probable depression and anxiety.
Following treatment with medication, he improved rapidly and was discharged feeling much
better. On October 17, 1986, appellant again sought treatment in a medical facility in
Orange, California. The records indicate that appellant was diagnosed as suffering from a
very real bipolar disorder which would require longstanding psychiatric support. The
records further indicate that, although appellant was discharged in fair condition, his mental
status at the time of discharge was still one of a person given to rapid cycling mood swings
but he was cooperative and comfortable.
The commission returned the following findings respecting the permanency of appellant's
alleged disability:
1. Although [Judge Goldman] claims to be permanently disabled to perform the
duties of his office, this claim is contradicted by responsible medical testimony
indicating that, at most, [Judge Goldman] is suffering from a condition of depression
and stress which with proper treatment should only be temporary. The Commission
credits and accepts this testimony. The Commission further rejects as unpersuasive any
ostensibly contrary testimony of [Judge Goldman's] expert witnesses.
2. In light of the foregoing, the Commission finds that [Judge Goldman] has failed
to establish any claim for a disability pension, because even assuming, arguendo, he is
or has been disabled, [Judge Goldman] has failed to establish that such disability is
likely to be permanent in nature.
3. To the contrary, the Commission affirmatively finds that [Judge Goldman] is not,
and has not been, physically or mentally disabled to perform the duties of his office, in
the sense contemplated by the Nevada Constitution and statutes.
18
4.
__________
18
See Nev. Const. art. 6, 21(6)(b) (commission may retire a judge only where advanced age interferes with
the proper performance of the judge's duties or where a mental or physical disability prevents the proper
performance of judicial duties and is likely to be permanent in nature); NRS 3.092 (a judge is entitled to early
enhanced disability pension only when he is permanently incapacitated, physically or mentally . . .).
108 Nev. 251, 271 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
4. The Commission concludes, as a matter of law, that even if [Judge Goldman] had
been suffering from a disability at the time of some of the aforementioned misconduct,
any such disability would not justify the Commission in awarding him an enhanced
pension for such disability, because it does not appear that any such disability was, or is
likely to be, permanent in nature. Nev. Const. art. 6, 21(6)(b).
[Headnote 9]
Our review of the record reveals clear and convincing evidentiary support for the
commission's findings. As noted, Drs. Thornton and Gerow both testified that appellant's
depression was in the nature of a temporary impairment which was by no means permanent.
Dr. Gerow's testimony specifically refuted the evidence contained in the medical records
indicating that appellant may have suffered from a long-term bipolar disorder.
19
The
testimony of Dr. Gerow and Dr. Thornton provided a clear and convincing factual basis for
finding that, with medication and systematic treatment, appellant could function as a judge
and that, therefore, appellant's alleged disability was not likely to be permanent in nature.
Even discounting that expert testimony, however, the record provides substantial support
for the commission's finding that appellant failed in his burden to demonstrate that he was
permanently disabled from performing the duties of his office in the sense contemplated by
the Nevada Constitution and statutes. Although evidence in the record indicates that appellant
suffered from intermittent bouts of depression and stress-related ailments, other testimony
and evidence was adduced at the hearing establishing that appellant's condition stabilized or
rapidly improved on the occasions when he received a systematic course of prescribed and
supervised treatment. Such treatment enabled him to remain quite functional. It was also
established during the hearing, for example, that in the early 1980's appellant was able to
preside over some of the most complex litigation ever to come before the Eighth Judicial
District Court. Moreover, the only testimony presented by appellant from an expert qualified
to render a medical and psychiatric opinion was at best ambiguous. In our view, the record as
a whole provides a sound basis to discount Dr. Laborati's testimony that appellant could do
anything but be a judge.
__________
19
Specifically, Dr. Gerow observed that the doctor responsible for that diagnosis of bipolar disorder
provided no basis for the diagnosis, described no manic behavior, mentioned no previous manic episodes in his
discharge summary or his history and, thus, laid no foundation for that diagnosis. Further, in rejecting the
diagnosis of bipolar disorder, Dr. Gerow noted that Judge Goldman said he had not had any previous manic
episode when I examined him.
108 Nev. 251, 272 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
thing but be a judge. See Ex Parte McFaddin, 175 S.E.2d 218 (S.C. 1970).
[Headnote 10]
Additionally, we note that the applicable constitutional and statutory provisions do not
establish procedures allowing for periodic or future review of a claimant's disability status
once an early, enhanced judicial disability pension has been awarded. The absence of any
such provisions persuades us that an early judicial disability pension may be awarded only
where clear and convincing evidence establishes that a judge is truly in extremis and that,
even with medical treatment, the judge will not be likely to recover his health and capacity to
perform the duties of his office.
20
Compare Ex Parte McFaddin, 175 S.E.2d 218, 219-20
(S.C. 1970) (judge's petition for permanent disability retirement denied where medical reports
failed to show that medical treatment was not available to provide relief from emotional
discomforts and other conditions) with State Ex Rel. Simms v. Simmons, 711 P.2d 949, 952
(Okl.Jud.App.Div. 1985) (retirement compensation awarded where seventy-year old judge
demonstrated erratic, bizarre behavior and erosion of judicial ability and temperament
following surgery and radiation therapy for progressive and worsening cancer and other
physical maladies). In our view, on the basis of the evidence disclosed in this record, any
contrary findings by the commission authorizing appellant's retirement on an early, enhanced
disability pension would have manifestly expanded the constitutional and statutory
intendment of the disability provisions far beyond that which was envisioned by the
legislature or the electorate.
__________
20
We further note that on October 1, 1990, shortly before the oral argument in this appeal, the special
prosecutor moved this court to dismiss as moot any issues pertaining to appellant's alleged entitlement to
permanent disability status. The special prosecutor requested this court to take judicial notice of official records
demonstrating that appellant had in fact eventually returned to work as an assistant district attorney in Nye
County, Nevada, and that, in a subsequent election bid for the Office of Nye County District Attorney, appellant
held himself out as fully qualified and capable of serving in that position. We have concluded, however, that our
review is properly confined to the record made and considered by the commission. Thus, in reviewing the
propriety of the commission's factual and legal determinations respecting appellant's physical and mental status,
we have not considered appellant's subsequent return to work as an assistant prosecutor or his bid for election to
demanding public office. Accordingly, we deny the special prosecutor's motions of October 1, 1990.
Nonetheless, we note that the matters raised in the motions support our conclusion that the constitutional and
statutory provisions relating to judicial disability retirement should be strictly construed to apply only where
clear and convincing evidence demonstrates that a judge, who is truly in extremis, is unable to function in office
and is unlikely to recover the capacity to function.
108 Nev. 251, 273 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
We note, as did the commission, that the record does contain ostensibly conflicting
evidence. The commission, however, was entitled to rely on the expert testimony of Dr.
Thornton and Dr. Gerow, and it was for the commission to determine the weight and
credibility to give to any conflicting testimony or evidence. See, e.g., Ogden v. State, 96 Nev.
697, 615 P.2d 251 (1980) (when there is conflicting psychiatric testimony at a competency
hearing, the trier of fact resolves the conflicting testimony of the witnesses). As noted above,
we are not free to disregard the factual determinations of the commission simply because the
circumstances involved might also be reconciled with contrary findings of fact. Even
assuming, without suggesting, that some evidence may have legitimately supported such
contrary findings, we are obligated to uphold the factual findings of the commission unless
they are unsupported by clear and convincing evidence in the records as a whole. The
commission's findings are adequately supported by the evidence. Therefore, we affirm the
commission's determinations that appellant was not entitled to an early, enhanced permanent
disability pension, and that, instead, he was entitled only to such standard and ordinary
retirement benefits as he had earned during the course of his actual and active judicial service.
See Powers v. Bd. of Control of Jud. Ret. Fund, 434 So.2d 745 (Ala. 1983).
Appellant asserted the affirmative defense in the proceedings below that the commission
lacked jurisdiction to resolve his alleged entitlement to an early, enhanced permanent
disability retirement and that, therefore, the commission had usurped the authority and
power vested by the Legislature in the office of the Governor of the State of Nevada pursuant
to NRS 3.092. In Goldman v. Bryan, 106 Nev. 30, 787 P.2d 372 (1990), we previously
addressed the commission's jurisdiction in a somewhat different context.
[Headnote 11]
Bryan entailed a challenge to an order of the district court denying appellant's petition for a
writ of mandamus. The petition sought to compel the governor to act on appellant's request to
retire under NRS 3.092(3). We held in Bryan that the commission derived its authority to
determine appellant's entitlement to disability retirement directly from the constitution. See
Nev. Const. art. 6, 21(1), (6) and (7). Additionally, we affirmed the district court's
conclusion that the applicable provisions of the constitution constitute the supreme law of the
state and control over any conflicting statutory provisions. See Robison v. District Court, 73
Nev. 169, 313 P.2d 436 (1957) (provision in constitution respecting impeachment of state
officer controls over conflicting legislative enactment providing statutory scheme for
removal). Thus, we held that the commission's constitutional jurisdiction to resolve
appellant's claim to an early, enhanced disability pension prevailed over the authority
conferred upon the governor under the provisions of NRS 3.092{3).
108 Nev. 251, 274 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
we held that the commission's constitutional jurisdiction to resolve appellant's claim to an
early, enhanced disability pension prevailed over the authority conferred upon the governor
under the provisions of NRS 3.092(3). Bryan, 106 Nev. at 37, 787 P.2d at 377.
Nevertheless, we also emphasized in Bryan that the commission had in fact expressly
assumed jurisdiction over the issue of appellant's entitlement to an early, enhanced disability
retirement prior to the time appellant filed his petition in the district court seeking to compel
the governor to act in accordance with NRS 3.092(3). We concluded under those
circumstances that the commission's express assertion of its primary constitutional
jurisdiction, prior to the date appellant petitioned the district court for a writ of mandamus
was completely dispositive of the issues presented by appellant's petition for extraordinary
relief. Id. at 43, 787 P.2d at 381. Additionally, we stated that although mandamus may have
been available to compel the Governor to act in the absence of any pending Commission
proceedings, once the Commission exercised its constitutional authority and jurisdiction, the
remedy of mandamus was foreclosed and appellant could not utilize NRS 3.092(3) as a
means of escaping the Commission's disciplinary authority. Id. at 38, 787 P.2d at 378
(emphasis added). We take this opportunity to clarify our precise holding in Bryan to stress
that the commission's express assertion of its jurisdiction is not the sole, determinative
factor precluding action by the governor pursuant to NRS 3.092(3).
Our holding in Bryan was never intended to imply that a judge may automatically defeat
the commission's jurisdiction to commence proceedings relating to the alleged misconduct or
disability of that judge by racing to the governor with a notice of intention to seek early,
enhanced disability retirement in accordance with NRS 3.092(3). As we noted in Bryan, the
commission's jurisdiction derives directly from the constitution. That constitutional authority
can neither be precluded nor ousted by a judge's notice to the governor stating an intention to
retire pursuant to NRS 3.092(3). See generally Quinn v. State Com'n on Judicial Conduct,
430 N.E.2d 879, 885 (N.Y. 1981) (judge charged with misconduct may not generally avoid
consequences of removal for cause by racing to resign); Matter of Probert, 308 N.W.2d 773,
775-77 (Mich. 1981) (judge should not have the power, simply by leaving office, to
short-circuit investigation of allegations against him); see also Powers v. Bd. of Control of
Jud. Ret. Fund, 434 So.2d 745 (Ala. 1983); In re Peoples, 250 S.E.2d 890 (N.C. 1978), cert.
denied, 442 U.S. 929 (1979).
Overriding considerations of public policy, as well as the underlying policy and purpose of
discipline commission proceedings, demand a thorough and comprehensive investigation and
adjudication where mixed questions of misconduct and disability are potentially at issue.
108 Nev. 251, 275 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
adjudication where mixed questions of misconduct and disability are potentially at issue. The
commission, rather than the Office of the Governor, is the proper entity exclusively
empowered to act in the first instance, whenever issues of possible misconduct are presented
along with issues of disability in a given case . . . . Bryan, 106 at 41, 787 P.2d at 379.
An untenable and intolerable situation would arise, for example, if a judge who had
committed misconduct in office could foreclose the commission's jurisdiction by invoking the
provisions of NRS 3.092(3) and simply tendering to the governor a notice of intention to seek
an early, enhanced disability retirement. The statute contemplates that the governor's
authority to retire a judge may be invoked only where the matters in controversy are limited
to the permanency and the extent of the judge's disability.
[Headnote 12]
The commission, on the other hand, must and does have the constitutional authority to
consider and balance the competing and conflicting social and public policy interests at issue
where the matters in controversy include mixed questions of misconduct and disability. In
evaluating whether to retire or remove, the commission, unlike the governor, may consider
the policy concerns underlying NRS 3.092(3), i.e., to encourage and permit a seriously
disabled judge to step down from office with dignity and some protection from the specter of
financial ruin. Further, the commission may take into account the equally compelling social
and public policy against permitting an undeserving judge to retire with an early, enhanced
pension and thus benefit from or avoid the consequences of misconduct. The commission
possesses the authority to weigh and balance all the equities as well as the rights of the judge
and the public's interest in the competence and ethical integrity of the bench. Thus, where, as
here, allegations of judicial misconduct provide an incipient basis for commission action
under the state constitution, overriding concerns of public and social policy, as well as the
commission's preeminent constitutional authority to resolve all potential questions of
misconduct and entitlement to early, enhanced disability retirement, must foreclose any
attempt by a judge to compel the governor to act in accordance with NRS 3.092(3). The
proceedings before the commission must be permitted to run their full constitutional course
from their inception to their conclusion.
V. WILLFUL MISCONDUCT: ABUSES OF POWER OF CONTEMPT
The commission found that appellant abused his power of contempt on eight separate
occasions, thereby demonstrating a long-standing pattern of willful misconduct warranting
appellant's removal from office.
108 Nev. 251, 276 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
long-standing pattern of willful misconduct warranting appellant's removal from office. The
evidence admitted by the commission at the formal hearing relating to these incidents is
summarized as follows:
The Clark County District Attorney Incident
On February 27, 1985, appellant held the Office of the Clark County District Attorney in
direct contempt of court because a deputy district attorney was unable to announce at a
calendar call whether or not the state would be ready to try a criminal case on a date
previously set for trial. The complete facts regarding this episode are detailed in a prior
opinion of this court reversing the contempt citation issued by appellant. See Clark Cty. Dist.
Atty. v. District Court, 101 Nev. 843, 710 P.2d 1384 (1985).
21
The commission admitted
into evidence a certified copy of the opinion at the formal hearing. Other evidence admitted
and considered by the commission included exemplified copies of appellant's order to show
cause and his order of contempt. Additionally, appellant testified extensively regarding this
incident at the formal hearing.
The evidence established that this court reversed appellant's contempt order because the
actions of the deputy district attorney did not constitute a contemptuous act under either NRS
22.010 or NRS 199.340, and because [t]here was no showing that anyone connected with the
Clark County District Attorney's Office deliberately or recklessly disregarded their duties
with respect to [Judge Goldman's] court. An oversight occurred, but it did not disrupt the
court or prejudice the defendant. Clark Cty. Dist. Atty., 101 Nev. at 845-46, 710 P.2d at
1386. Notwithstanding this court's holding, however, appellant insisted in his testimony
before the commission that his order of contempt was entirely appropriate and that his
various actions entailing issuance of show cause orders and contempt citations in general
had all been "quite correct."
__________
21
The facts as stated in that opinion reveal that at a calendar call in a criminal case, appellant inquired
whether the parties would be ready to go to trial the following week, as previously scheduled. After the deputy
district attorney in attendance indicated that he could not say whether the state was ready to proceed because he
did not have the case file, appellant held the district attorney in direct contempt of court and assessed a fine
against the district attorney of $250. Appellant issued the contempt citation notwithstanding defense counsel's
request for a continuance. Additionally, appellant ordered the district attorney to appear before him to show
cause why the case should not be dismissed. At the show cause hearing, a deputy district attorney attempted to
explain that a clerk in the district attorney's office had inadvertently failed to send the case file over to the court
at the previous calendar call, and consequently, the team deputy who appeared before the court at the prior
calendar call was unable to answer the judge's questions. At the conclusion of the hearing, appellant quashed the
order to show cause, but amended his contempt order, sua sponte, to indicate that the Office of the Clark County
District Attorney, was being fined rather than the district attorney personally. Id. at 844-45, 710 P.2d at 1385.
108 Nev. 251, 277 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
appropriate and that his various actions entailing issuance of show cause orders and contempt
citations in general had all been quite correct. A portion of appellant's testimony respecting
this specific incident is set forth in the margin.
22
Based upon this evidence and testimony,
the commission found that appellant abused the contempt power vested in him as a judge.
The Gordon Yach Incident
The evidence adduced at the formal hearing in this respect consists entirely of exemplified
copies of an order to show cause issued by Judge Goldman, an affidavit of an attorney
attached to that order and an acknowledgement of receipt of service of the order to show
cause. These documents merely establish that, on June 20, 1986, appellant issued an order
directing Gordon Yach, the Director of the Clark County Detention Center, to show cause
why he should not be adjudged guilty of contempt of court and punished for his failure to
immediately transport a prisoner to appellant's courtroom when requested to do so on June
18, 1986 at 4:45 p.m. The order further provided that Mr. Yach's failure to appear at the
scheduled show cause hearing would result in the issuance of a bench warrant for the arrest
and confinement of Mr. Yach. An attorney's affidavit attached to the order indicates that a
jury returned a verdict against a criminal defendant at 4:45 p.m. on June 18, 1986, and the
Clark County Detention Center was immediately notified to bring the prisoner to appellant's
courtroom. Repeated calls were thereafter placed to the Detention Center to ascertain the
delay in the prisoner's presence, and the Detention Center did not deliver the prisoner
until 5:20 p.m., a mere thirty-five minutes after the initial call.
__________
22
The transcript reflects that the following exchange occurred between the special prosecutor and appellant:
Q. [The Special Prosecutor] Okay. All right. Then the Supreme Court found that there was no
contemptuous act as defined by the statute?
A. [Appellant] Are you asking me a question, sir?
Q. Question: Is it true that NRS Chapter 22 and NRS Chapter 199 list the acts or omissions which
constitute contempt?
A. I'll have to take your word for it. I'm sure they do.
Q. So you can find things in contempt without knowing what the statute says about that?
A. Oh, yes, I think so.
Q. That's pretty easy to do?
A. Oh, yes, I think so.
Q. Okay. Which subsection of which chapter of NRS were you relying on when you found the District
Attorney
A. I don't know what section it's in sir. I know it was interfering with the orderly process of the Court.
Q. Well, could you tell us why the Supreme Court couldn't find the subsection that you were using to
find the office in contempt?
[Appellant's Counsel]: Objection.
[Appellant]: I challenge anybody to explain the rationale of the Supreme Court to me.
108 Nev. 251, 278 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
Center to ascertain the delay in the prisoner's presence, and the Detention Center did not
deliver the prisoner until 5:20 p.m., a mere thirty-five minutes after the initial call. Although
no further evidence respecting this incident was adduced at the formal hearing, the
commission found that appellant abused the contempt power vested in him and that
threatening to hold Mr. Yach in contempt was inappropriate, and tended to degrade the
judicial process.
The First Loretta Bowman Incident
The order of contempt issued by appellant in this instance was reversed by this court in
Bowman v. District Court, 102 Nev. 474, 728 P.2d 433 (1986). As that opinion relates, on
September 17, 1985, appellant held Loretta Bowman, the Clerk of the Eighth Judicial District
Court, in contempt of court, sentenced her to serve twenty days in the county jail, and
imposed sanctions of $500. Appellant entered his order because a deputy court clerk had
accepted and filed a motion to dismiss in a civil action on the day after a default had been
entered in the same case. Id. at 476, 728 P.2d at 434.
In Bowman, this court concluded that neither the actions of the court clerk nor the actions
of her deputy constituted a contemptuous act under NRS 22.010 or NRS 199.340. Rather,
because the clerk and her deputies had a ministerial duty to accept and file documents and no
authority to pass upon the validity of instruments presented for filing, this court concluded
that appellant held Ms. Bowman in contempt for conscientiously fulfilling her
responsibilities as court clerk. Id. at 478, 728 P.2d at 435.
A certified copy of this court's opinion and exemplified copies of appellant's order to show
cause and order of contempt were admitted by the commission into evidence at the formal
hearing. Appellant also testified at the formal hearing respecting this incident.
23
Based upon
this evidence and testimony, the commission found that appellant abused the contempt
power vested in him as a judge.
__________
23
Specifically, appellant testified in part as follows:
Q. [The Special Prosecutor:] [T]ell us about what contemptuous act you were relying on to find [Ms.]
Bowman entitled to $500 fine and 20 days in jail? What was it that she did that required you to put her in
jail for 20 days?
A. [Appellant:] [Ms.] Bowman's incompetence was evident to me for the past 13 years. Therefore, this
was but one act in a long course of conduct of incompetence.
Q. Was it your understanding, then, that Loretta Bowman stamped this inin this motion?
A. No.
Q. Well, then, what conduct on her part was contemptuous?
A. I have been raised to believe that those who are in charge are responsible.
Q. So the failure of Loretta Bowman to watch her deputy clerk
108 Nev. 251, 279 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
sion found that appellant abused the contempt power vested in him as a judge.
The Southern Nevada Memorial Hospital Incident
At the formal hearing, an exemplified copy of an order issued by appellant on December 2,
1985, in a criminal case was introduced into evidence. The order directed the City of North
Las Vegas to transport a criminal defendant to Southern Nevada Memorial Hospital for a
psychiatric examination. Additionally, the commission admitted into evidence and
considered orders entered by appellant on December 6, 19S5, and December 13, 19S5,
directing a psychiatric charge nurse and the administrator of the Southern Nevada
Memorial Hospital to show cause why they "refused a court order to admit a person in the
custody of the North Las Vegas Police Department into the Psychiatric Ward of Southern
Nevada Memorial Hospital."
__________
stamp in this motion and prevent it was the act of contempt that you found justified 20 days in jail?
A. Yes. The judges of our district passed a generic rule addressed to [Ms.] Bowman. She has
violated
Q. No, Judge, we're talking about your conduct, not the other judges.
A. That's what I'm talking about. She didn't obey the Court's rule. When I say the Court, I'm talking
about the Eighth District.
Q. Yeah. You found her deserving of 20 days in jail?
A. Absolutely.
Q. Okay. And that was because her clerk stamped in something that you didn't want in the Court?
A. In part.
Q. And that's contemptuous?
A. In part.
Q. So you would just do that again the next time somebody stamped in a piece of paper and you
didn't agree with it?
A. I don't know what I would do.
Mr. Cobeaga [appellant's counsel]: Objection, argumentative.
Mr. O'Brien: Overruled.
[Appellant:] I don't know what I would do. Each case is taken on its own merits.
Q. I see. So you thought it was meritorious to award 20 days in jail because the deputy stamped in a
motion to dismiss?
A. In part.
Q. There was another part?
A. Yes.
Q. What other part?
A. I said she had been grossly incompetent for 13 years. This was one of hundreds of times that she
has been so incompetent.
Q. So you think that you should incarcerate people because they're partly incompetent or in part
because of incompetence?
A. In part, yes.
Q. Okay. So if you're incompetent and there's another excuse, you put them in jail?
A. Another excuse?
Q. Yes, if they're incompetent for 13 years and you catch their clerk, you put her in jail, is that how
you do it?
A. I did in that case.
Q. Perfectly all right?
A. In that case, yes.
Q. Judicial temperance?
A. In that case, yes.
Q. You were polite and dignified and judicious in your demeanor?
A. To the letter.
108 Nev. 251, 280 (1992) Goldman v. Nevada Comm'n on Judicial Discipline
the commission admitted into evidence and considered orders entered by appellant on
December 6, 1985, and December 13, 1985, directing a psychiatric charge nurse and the
administrator of the Southern Nevada Memorial Hospital to show cause why they refused a
court order to admit a person in the custody of the North Las Vegas Police Department into
the Psychiatric Ward of Southern Nevada Memorial Hospital. Although the hospital was not
a party to and had no knowledge of the underlying criminal proceeding, appellant's orders
further provided that if these two individuals failed to appear at the scheduled show cause
hearing, a bench warrant would issue for their arrest and confinement.
An exemplified copy of the docket or minute entries of the court was also admitted as
evidence at the formal hearing. The entries suggest that hospital policy would not permit the
criminal defendant to be admitted unless a police officer was assigned to guard the defendant
during his stay. No further testimony or evidence was adduced at the commission's formal
hearing respecting this incident. Based upon this evidence, the commission found that
appellant abused the contempt power vested in him by issuing orders directing the
administrator of the Southern Nevada Memorial Hospital and a psychiatric charge nurse to
show cause why they refused a court order to admit a person in the custody of the North Las
Vegas Police Department into the Psychiatric Ward of Southern Nevada Memorial Hospital.'